Boyd Tunica, Inc v. Premier Transportation Services, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01089-COA
BOYD TUNICA, INC. D/B/A SAM’S TOWN
HOTEL AND GAMBLING HALL
APPELLANT
v.
PREMIER TRANSPORTATION SERVICES,
INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
05/08/2008
HON. ALBERT B. SMITH III
TUNICA COUNTY CIRCUIT COURT
ROBERT A. MILLER
KYLE VERNON MILLER
JOHN D. RICHARDSON
CIVIL - PERSONAL INJURY
JURY FOUND BOYD TUNICA, INC.
LIABLE FOR ONE-HUNDRED PERCENT
OF DAMAGES SUFFERED BY PLAINTIFF
AFFIRMED – 03/09/2010
BEFORE MYERS, P.J., IRVING AND GRIFFIS, JJ.
IRVING, J., FOR THE COURT:
¶1.
Boyd Tunica, Inc., d/b/a Sam’s Town Hotel and Gambling Hall (Boyd Tunica)
appeals from a final judgment of the Circuit Court of Tunica County awarding Ruth Beasley
Latting 1 $250,000 in damages for injuries that Ruth sustained while riding as a passenger on
1
Although Ms. Latting is referred to in the record as Ruth Beasley, we have chosen
to shorten the designation to Ruth. Thus, all of our references will be to Ruth, not Ruth
Beasley or Latting.
a shuttle bus owned by Premier Transportation Services, Inc. (Premier) that was involved in
a near-collision with a pickup truck owned by Boyd Tunica and operated by one of its
employees.2 Following a trial, a jury awarded Ruth $250,000 in damages, after assessing
one-hundred percent of the fault against Boyd Tunica. Feeling aggrieved, Boyd Tunica
appeals and asserts that the circuit court erred by refusing to grant certain jury instructions
and by refusing to grant its motion for a new trial.3
¶2.
Finding no reversible error, we affirm.
FACTS
¶3.
On January 11, 2005, Ruth boarded a twenty-five-passenger shuttle bus in the parking
lot of Hollywood Casino in Tunica, Mississippi, bound for Sam’s Town Casino. She sat on
the front seat and did not fasten her seat belt. While en route to Sam’s Town, Frank Weeden,
the driver of the shuttle bus, forcefully applied his brakes in order to avoid colliding with a
pickup truck that had pulled out in front of him. The pickup truck was driven by John Sevier,
an employee of Sam’s Town. Ruth was thrown from her seat and into the dashboard of the
bus, resulting in three of her ribs being broken.
2
Subsequent to the filing of the appeal and the appellate briefs in this case, Ruth and
Boyd Tunica “entered into an agreement whereby Ruth Beasley Latting released [Boyd
Tunica] from all her claims arising from the subject incident and assigned to [Boyd Tunica]
all her rights and claims against [Premier].” Although Premier is listed as the appellee in this
appeal, there is no explanation in the record as to why this is so because the notice of appeal
designates Ruth as the party against whom the appeal is lodged.
3
Boyd Tunica lists three issues. However, two of the issues involve the refusal of the
circuit court to grant its requested jury instructions.
2
¶4.
Thereafter, on September 12, 2005, Ruth instituted a personal injury action against
Boyd Tunica and Premier in the Tunica County Circuit Court to recover damages for her
injuries. On February 25, 2008, Boyd Tunica filed a motion in limine to
admit evidence of availability of and provision for seat belts in this case under
the exception to [Mississippi Code Annotated section] 63-2-3 recognized by
the Mississippi Supreme Court and to take judicial notice under [Rule 201 of
the Mississippi Rules of Evidence] that the shuttle bus in which Plaintiff Ruth
Beasley Latting was a passenger was a carrier of passengers for hire under
Mississippi law.
Thereafter, on February 27, 2008, Premier filed a motion in limine to exclude all reference
to seat belts, arguing that Mississippi Code Annotated section 63-2-3 (Rev. 2004) provides
that evidence of the failure to wear seat belts is not admissible to prove negligence.
¶5.
The trial judge held a motion hearing on the morning of the first day of the trial and
heard argument from both sides as to whether it would be proper to allow the jury to hear
evidence regarding the use or non-use of seat belts. Then, immediately prior to opening
statements, the trial judge stated that his “tentative ruling” was that evidence regarding seatbelt use and non-use would be allowed, subject to a cautionary instruction that the evidence
could not be used to assess fault to Ruth as the party responsible for the cause of her injuries.
The trial proceeded as scheduled. After testimony was complete and the attorneys were
presenting the proposed jury instructions to the court, the trial judge said, “D-2 is given.”
However, while reading instruction D-2 to the jury, the trial judge realized that he had not
intended to give instruction D-2, as it conflicted with instruction P-11. The trial judge said:
Disregard that last instruction. That’s not proper law. That’s going to be
withdrawn. That’s going to be refused.
3
I read one earlier instructing you not to consider evidence of seat[-]belt use or
non-use to determine liability or damages against the plaintiff, Ruth Beasley,
or the fault of Premier Transportation.
¶6.
Thereafter, as stated, on May 6, 2008, the jury returned a verdict against Boyd Tunica
in the amount of $250,000. The court entered its judgment on May 10, 2008.4 Following
issuance of the judgment, Boyd Tunica filed a motion for a judgment notwithstanding the
verdict or, in the alternative, for a new trial, which was denied by the trial court on June 6,
2008. On June 24, 2008, Boyd Tunica filed a notice of appeal, which reads as follows:
BY THIS NOTICE, pursuant to Rule 3 of the Mississippi Rules of Appellate
Procedure, to the Circuit Clerk of Tunica County, Mississippi, Ms. Sharon
Granberry, P.O. Box 184, Tunica, Mississippi, against the plaintiff, Ruth
Beasley, from the final judgment entered in this case on May 18, 2008, and the
denial of the Motion for Judgment Notwithstanding the Verdict or, in the
alternative, for New Trial, by order entered on June 6, 2008.
(Emphasis added). As will be discussed later in more detail, Ruth did not file a cross-appeal
against Premier.
¶7.
On July 13, 2009, eighteen days after the final brief was filed in this appeal, the trial
court entered an order, pursuant to a settlement agreement between Ruth and Boyd Tunica,
substituting Boyd Tunica for Ruth. On July 17, 2009, Boyd Tunica filed a document in this
Court, entitled “Motion for Partial Voluntary Dismissal.” In the motion, Boyd Tunica asked
that the instant appeal as to Ruth be dismissed. On August 28, 2009, this Court granted Boyd
4
The judgment provides, in part, that “judgment shall be entered in favor of Premier
Transportation Services, Inc., and the [c]omplaint shall be dismissed with prejudice as to
Premier Transportation Services, Inc.”
4
Tunica’s motion.5
¶8.
It is against the backdrop of this unique set of facts that we consider the issues
presented in this appeal.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶9.
We observe at the outset that the unusual post-appeal proceedings in this case raise
a serious question regarding the viability of this appeal. Therefore, before addressing the
issues presented, we find it necessary to discuss the implications of the post-appeal
proceedings.
¶10.
As noted, more than a year after the trial court had lost jurisdiction of this case, it
entered an order allowing the substitution of Boyd Tunica for Ruth. Clearly, this order is null
and void because the trial court’s jurisdiction ended on June 24, 2008, when the notice of
appeal was filed. However, the order entered by this Court is another matter. As stated, in
the motion filed by Boyd Tunica with this Court, it asked that Ruth’s appeal be dismissed and
that Boyd Tunica be substituted in her place. Inasmuch as Boyd Tunica’s appeal, according
to its own notice, was against Ruth only, the effect of the substitution is to make Boyd Tunica
both the appellant and the appellee. In other words, Boyd Tunica is now pursuing an appeal
against itself. As Ruth’s assignee, Boyd Tunica has stepped into her shoes and possesses
whatever claim or claims that she possessed at the time of the assignment. Since the case had
already proceeded to judgment at the time of the assignment, Ruth possessed at that time the
5
Although this Court granted Boyd Tunica’s motion, it did not direct that the caption
be changed to substitute Boyd Tunica for Premier.
5
right to be paid $250,000, subject to the outcome of this appeal. However, even if Boyd
Tunica’s appeal is successful, Ruth, on remand, cannot pursue any claim against Premier
because she did not file a cross-appeal against Premier. Likewise, Boyd Tunica, independent
of the assignment from Ruth, cannot pursue any claim against Premier because Boyd Tunica
appealed against Ruth only.
¶11.
We are fully aware that Premier entered its appearance in this appeal and filed a brief.
Nevertheless, we do not find that this action made it a party to this appeal, since it was not
made a party pursuant to Rule 3(c) of the Mississippi Rules of Appellate Procedure, which
states in part: “The notice of appeal shall specify the party or parties taking the appeal and
the party or parties against whom the appeal is taken, and shall designate as a whole or in part
the judgment or order appealed from.” As stated, Boyd Tunica’s notice of appeal specifies
that the appeal is taken against Ruth only. As noted, Ruth did not file a cross-appeal against
Premier, even though she could have done so if she felt aggrieved by the trial court’s failure
to instruct the jury regarding Premier’s heightened duty of care that it owed her.6
¶12.
Although, for the reasons expressed, it is questionable as to whether this appeal is
viable, nevertheless, we address the merits of it. As stated, Boyd Tunica contends that the
jury was not properly instructed and that it should have been granted a new trial, because the
court misled it with respect to what it could expect by way of jury instructions. We address
6
Rule 4(c) of the Mississippi Rules of Appellate Procedure provides: “If a timely
notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days
after the date on which the first notice of appeal was filed, or within the time otherwise
prescribed by this rule, whichever period last expires.”
6
these contentions in turn.
1. Jury Instructions
¶13.
Boyd Tunica asserts that the trial court erred in refusing two of its proposed jury
instructions, D-1 and D-2. Boyd Tunica further asserts that the proposed instructions were
necessary in order to properly instruct the jury as to the heightened standard of care that
Premier, as a common carrier, owed to Ruth.7
¶14.
It is clear in this state that “[a] party is entitled to have the jury instructed regarding
a genuine issue of material fact so long as there is credible evidence in the record which
would support the instruction.” Southland Enter., Inc. v. Newton County, 838 So. 2d 286,
289 (¶8) (Miss. 2003) (citing Tharp v. Bunge Corp., 641 So. 2d 20, 26 (Miss. 1994)). Also,
the Mississippi Supreme Court has held that “all instructions as a whole must be read to
determine whether a jury has been correctly instructed.” Glorioso v. Young Mens Christian
Ass’n of Jackson, 556 So. 2d 293, 295 (Miss. 1989) (citing Jackson v. Griffin, 390 So. 2d
287, 290 (Miss. 1980)). Further, “[a]ll instructions taken as a whole must fairly announce
the applicable primary rules of law.” Id. (citing Allen v. Blanks, 384 So. 2d 63, 65 (Miss.
1980)).
Finally, “the trial court has considerable discretion in instructing the jury.”
Southland Enter., 838 So. 2d at 289 (¶9) (citing Splain v. Hines, 609 So. 2d 1234, 1239
(Miss. 1992)).
¶15.
Premier argues that Boyd Tunica never tendered proposed jury instruction D-1 to the
7
Boyd Tunica asserts in its brief that Premier acted as a common carrier; however,
its proposed jury instruction D-2 refers to Premier as a carrier of passengers for hire.
7
trial court. As might be expected, Boyd Tunica disagrees and asserts that it presented the
following unnumbered instruction, which is in fact instruction D-1:
The Court instructs the jury that you may consider the fact that co-defendant
Premier Transportation Services, Inc., was equipped with functional seat belts
in accordance with Premier Transportation’s Tunica County Casino Shuttle
Driver’s Guide for the purpose of determining whether Premier met its duty
of care to its passenger, Ruth Beasley. However, you may not consider
plaintiff’s use or non-use of seat belts in determining, (1) whether the plaintiff
was at fault for her own injuries and/or, (2) whether plaintiff’s use or non-use
of her seat belt caused her injury.
(Emphasis added). We note that the above instruction is attached as exhibit “C” to Boyd
Tunica’s posttrial motion. From our review of the record, we find that an instruction, which
may have been the proposed instruction D-1, was presented to the court during the juryinstruction conference and denied. However, we are unable to determine whether the
instruction that was presented was in fact D-1, because the trial court did not recite enough
of the instruction for us to make that determination. On this point, the record reflects the
following recitation with respect to the instruction: “The Court instructs the jury you may
consider the fact the co-defendant was equipped with -- front seat, [sic] accordingly.” At no
point in the record was this instruction ever identified as D-1.
¶16.
It is well-settled law that it is the responsibility of the appellant to present a record
sufficient to support his assignments of error. Juarez v. State, 965 So. 2d 1061, 1065 (¶12)
(Miss. 2007) (citing Acker v. State, 797 So. 2d 966, 971 (¶19) (Miss. 2001)). Since the
record is insufficient to enable us to properly review the instruction in question, we find no
merit to Boyd Tunica’s argument that the trial court erred in refusing to grant instruction D-1.
8
Further, even if exhibit “C” is an accurate copy of instruction D-1 that was presented to the
trial court during the jury-instruction conference, we are unable to discern its usefulness to
Boyd Tunica. As shown by its wording, the instruction identified as exhibit “C” not only
would have instructed the jury that Ruth’s failure to buckle her seat belt could not be used
as evidence against her, it also would have instructed the jury that Ruth’s failure to buckle
her seat belt could not be used as evidence of the causation of her injuries. If the fact that
Ruth’s seat belt was not fastened could not be considered in determining the causation of her
injuries, we fail to perceive how Boyd Tunica was prejudiced by the trial court’s refusal to
grant the instruction. It appears quite clear to us that the instruction identified as exhibit “C”
is at odds with Boyd Tunica’s theory of the case that Ruth’s injuries were caused not by its
driver pulling out in front of Premier’s shuttle bus, but by Ruth’s riding on the shuttle bus in
the front seat with her seat belt unfastened. While a trial court has an obligation to see that
a jury is properly instructed, it is not required to draft instructions for either party. Wilson
v. State, 936 So. 2d 357, 363 (¶14) (Miss. 2006). Here, Boyd Tunica did not offer an
instruction consistent with its theory of the case. Therefore, for this additional reason, we
find that the trial court did not err in not granting the instruction that is reflected in exhibit
“C.”
¶17.
As stated, Boyd Tunica also argues that the trial court erred in refusing to grant jury
instruction D-2, which reads as follows:
The Court instructs the jury that under the law of the State of Mississippi, a
carrier of passengers for hire is required to exercise the highest degree of care
and diligence for the safety of its passengers. If you find by a preponderance
9
of the evidence that Premier Transportation negligently operated its shuttle bus
which the driver, Frank Weeden, drove with the knowledge that Ruth Beasley
was a front seat passenger who was not wearing a seat belt, and that this was
contrary to the driver guidelines of Premier Transportation, Inc. and that
further by operating the vehicle while Ruth Beasley was not wearing a
seatbelt, defendant [Premier] [T]ransportation, through its driver, failed to
exercise the highest degree of care and diligence for the safety of its
passengers including Ms. Beasley, you should find for the plaintiff Ruth
Beasley against him [sic].
¶18.
According to Boyd Tunica, instruction D-2, along with instruction D-1, would have
informed the jury that it could consider Premier’s violation of its seat-belt policy as evidence
of Premier’s negligence. Premier’s seat-belt policy provides:
The law requires that all front seat passengers and driver wear the seat belt
while the vehicle is in motion. Wear your seat belt at all times, it’s the law.
Premier Transportation insists that all passengers “buckle up.” Inform the
company if you find anything wrong with the vehicle safety belts as you would
with any other defect in the safety, comfort or operation of the vehicle.
¶19.
We first observe that Premier’s seat-belt policy appears to be based on Premier’s
mistaken notion that the law requires that its drivers and its front seat passengers fasten their
seat belts at all times. This is not the case. Mississippi’s mandatory seat-belt law, codified
as Mississippi Code Annotated sections 63-2-1 through 63-2-7 (Rev. 2004), requires the
operator, every front-seat passenger, and every child under seven years of age to wear their
seat belts fastened when riding in a passenger motor vehicle. However, the seat-belt law
defines a passenger motor vehicle as a “motor vehicle designed to carry fifteen (15) or fewer
passengers including the driver . . .” Miss. Code Ann. § 63-2-1(2) (Supp. 2009) (emphasis
added). The shuttle bus on which Ruth was riding when she was injured was designed to
carry twenty-five passengers. Therefore, neither she nor the operator was required by law
10
to have his seat belt fastened during operation of the shuttle bus.
¶20.
Even if Premier’s shuttle bus had been subject to the mandatory seat-belt law and
Premier had failed to provide a seat-belt-restraint system in its shuttle buses, it could not have
been subjected to a claim of contributory negligence because of the provisions of Mississippi
Code Annotated section 63-2-3 (Rev. 2004), which provide:
This chapter shall not be construed to create a duty, standard of care, right or
liability between the operator and passenger of any passenger motor vehicle
which is not recognized under the laws of the State of Mississippi as such laws
exist on the date of passage of this chapter or as such laws may at any time
thereafter be constituted by statute or court decision. Failure to provide and
use a seat[-]belt[-]restraint device or system shall not be considered
contributory or comparative negligence, nor shall the violation be entered on
the driving record of any individual.
(Emphasis added).
¶21.
It is counterintuitive to suggest that the law would impose liability on Premier for
violating its seat-belt policy when, in this instance, the law does not require that Premier even
provide seat-belt restraints. However, even if the law required such restraints, Premier’s
failure to provide them could not be used as evidence of Premier’s contributory or
comparative negligence. Boyd Tunica seems to implicitly recognize this point, for it argues
that Premier’s violation of its internal regulations serves as an “exception” to the law’s
prohibition against considering non-use of seat belts as evidence of negligence in any form.
We are not persuaded by this argument. It is clear to us that Premier’s seat-belt policy is
predicated upon its mistaken notion of what the seat-belt law requires, rather than upon its
desire to limit its exposure in tort actions, despite the requirements of the law. Even
11
assuming the latter consideration was the basis for Premier’s seat-belt policy, it is again
counterintuitive to suggest that a private policy that Premier established to limit its liability
exposure from its passengers can be used against it to impose liability, not by one of its
passengers, but by another with whom Premier does not share a mutual interest as it does
with its passengers.
¶22.
It has long been established in this state that “[t]he person charging negligence must
show that the other party, by his act or omission, has violated some duty incumbent . . . upon
him and thereby caused the injury complained of.” Milner Enters., Inc. v. Jacobs, 207 So.
2d 85, 91 (Miss. 1968). Because Premier did not owe a duty to Boyd Tunica, it could not
have breached that duty and could not have caused any injury to Boyd Tunica. The question,
however, is not whether Boyd Tunica was entitled to have the jury instructed regarding
Premier’s duty of care to Boyd Tunica, but whether Boyd Tunica was entitled to have the
jury properly instructed on the standard of care owed by Premier to Ruth.
¶23.
During the pretrial hearing, the trial judge determined that Premier was a common
carrier. In Erwin Mills, Inc. v. Williams, 238 Miss. 335, 339, 118 So. 2d 339, 341 (1960),
our supreme court held that “[t]o constitute . . . a common carrier, [one] must hold himself
out as engaged in public service for all persons indifferently, so that he would be liable for
refusal without excuse, to carry for all who might apply.” Further, in Lambert v. Lott, 222
So. 2d 816, 818 (Miss. 1969) (quoting Teche Lines, Inc., v. Keyes, 187 Miss. 780, 193 So.
620, 621 (1940)), the Mississippi Supreme Court held that “a common carrier by motor . .
. owes the duty to its passengers to exercise the highest degree of care and precaution for
12
their safety that is consistent with the practical conduct of its business.”
¶24.
It appears to us that Premier was a carrier of passengers for hire, rather than a common
carrier, as it did not hold itself out as engaged in public transportation services generally,
available to all persons who might apply to ride. Rather, pursuant to a contract with Sam’s
Town Casino to provide shuttle service “along a fixed route,” it provided service only to
people who wished to travel between the various casinos that Premier serviced. However,
for the purpose of determining the standard of care owed by Premier to Ruth, it does not
matter whether Premier is classified as a common carrier or as a carrier of passengers for
hire, because both carriers’ standard of care to their passengers is the same. In Goodwin v.
Gulf Transport Company, 453 So. 2d 1035, 1036 (Miss. 1984), our supreme court held that
a carrier of passengers for hire “is required to exercise the highest degree of care and
diligence for the safety of its passengers.” The Goodwin court also held that “[a carrier of
passengers for hire] may be held liable for personal injuries only where those have been
caused by the carrier’s failure to exercise this highest degree of care.”
¶25.
Thus, it is clear that Premier owed a duty to Ruth to exercise the highest degree of
care to ensure her safety. Now that we have established the standard of care owed by
Premier to Ruth, we return to the question at hand: did the trial court err in not granting
instruction D-2.
¶26.
Instruction D-2 states that “under the law of the State of Mississippi, a carrier of
passenger[s] for hire is required to exercise the highest degree of care and diligence for the
safety of its passengers.” That is a correct statement of the law. However, the balance of
13
instruction D-2 is confusing, as it would have allowed the jury to find that Premier
negligently operated the shuttle bus, even though there is no evidence in this record that
Weeden negligently operated the shuttle bus.8 There is evidence that Weeden drove the
shuttle bus with the knowledge that Ruth was not wearing a seat belt. However, that is not
the same thing as negligently operating the shuttle bus. Further, instruction D-2 would have
invaded the province of the jury by peremptorily instructing the jury that Premier, by
operating the shuttle bus while Ruth was not wearing a seat belt, failed to exercise the highest
degree of care and diligence for her safety. Finally, and most importantly, instruction D-2
would have shifted total liability for Ruth’s injuries to Premier, notwithstanding the fact that
Boyd Tunica’s driver’s action of pulling out in front of the shuttle bus was the sole proximate
cause of the abrupt stop that Weeden was forced to make. Therefore, we find that, based on
the facts of this case, instruction D-2 was not proper, and the trial judge did not err in
refusing to grant it.
8
Although we have quoted instruction D-2 in its entirety, for the sake of convenience,
we quote it again here:
The Court instructs the jury that under the law of the State of Mississippi, a
carrier or passenger for hire is required to exercise the highest degree of care
and diligence for the safety of its passengers. If you find by a preponderance
of the evidence that Premier Transportation negligently operated its shuttle bus
which the driver, Frank Weeden, drove with the knowledge that Ruth Beasley
was a front seat passenger who was not wearing a seatbelt, and that this was
contrary to the driver guidelines of Premier Transportation, Inc. and that
further by operating the vehicle while Ruth Beasley was not wearing a
seatbelt, defendant transportation, through its driver, failed to exercise the
highest degree of care and diligence for the safety of its passengers including
Ms. Beasley, you should find for the plaintiff Ruth Beasley against him [sic].
14
¶27.
Boyd Tunica’s final argument regarding jury instructions is that the trial court erred
in granting instruction P-11, which provides: “You are instructed not to consider evidence
of seat-belt use or non-use in determining liability and/or damages against the Plaintiff, Ruth
Beasley, or the fault of Premier Transportation.” We have already found that the seat-belt
law does not apply to Ruth and the passengers that were on Premier’s shuttle bus. On this
point, Boyd Tunica agrees.
We have also found that even if the seat-belt law were
applicable, evidence of Ruth’s non-use of her seat belt would not have been admissible,
because the seat-belt law prohibits such admission. Again, Boyd Tunica acknowledges as
much.
This fact notwithstanding, Boyd Tunica insists that the court erred in giving
instruction P-11. As we understand Boyd Tunica’s argument, the problem with instruction
P-11 is that it prohibited the jury from taking into consideration the heightened duty of care
that Premier owed to Ruth.
¶28.
There is no evidence in the record that Premier failed in any way to provide the
highest standard of care to Ruth, unless operating the shuttle bus without making sure that
she had fastened her seat belt can be considered such failure. As the seat-belt law contains
no provisions that required Ruth to have her seat belt fastened, Boyd Tunica’s
argument—that Premier failed to provide the requisite standard of care to Ruth—is
predicated solely upon Premier’s driver’s guide, which contains Premier’s seat-belt policy
and other provisions designed to ensure passengers’ safety. As stated, the seat-belt policy
contains the following provision: “Premier Transportation insists that all passengers ‘buckle
up.’” Other provisions of the driver’s guide instruct the driver regarding safety measures that
15
must be followed. For example, in the section on safety, the driver is instructed to “[n]ever
pull away from a stop until all passengers are seated.” In the section on bus-driving hints that
will help avoid accidents, the driver is instructed to “[b]e sure all the passengers are securely
seated before attempting to pull off from the curb.” Finally, in the section on passenger
safety, the driver is instructed to “[r]emain stopped until all passengers are seated and/or have
cleared the bus before proceeding from the curb.” As can be seen from the quoted passages,
there is no provision in the driver’s guide that requires the driver to make sure a passenger
has his seat belt fastened before the driver operates the bus. The admonition to the driver is
to make sure that the passengers are seated or securely seated. While the seat-belt policy,
which is one of the sections of the driver’s guide, states that Premier insists that all
passengers buckle up, it stops short of placing the responsibility on the driver to ensure that
the passengers’ seat belts are fastened. There is no evidence that Weeden failed to comply
with the provisions that were applicable to him. For example, there is no evidence that Ruth
was not firmly in her seat when he moved from the stop where he picked her up.
¶29.
Nevertheless, assuming that the driver’s guide requires the operator to make sure that
the front-seat passengers have their seat belts fastened, we cannot find that Weeden’s
violation of this policy was either the proximate cause or a contributing cause of the abrupt
stop that Weeden was forced to make. As stated, there is no evidence that Weeden operated
the shuttle bus in a negligent manner. While it is true that if Ruth had had her seat belt
fastened, she may not have been propelled into the dashboard of the shuttle bus, it is also true
that if Boyd Tunica’s employee had not suddenly pulled out in front of the shuttle bus,
16
Weeden would not have had to abruptly apply the brakes.
¶30.
In support of its argument that instruction P-11 prohibited the jury from considering
Premier’s violation of its internal safety regulations as evidence of its breach of duty to
exercise the highest degree of care for Ruth’s safety, Boyd Tunica directs our attention to
several cases, including Moore ex rel. Moore v. Memorial Hospital of Gulfport, 825 So. 2d
658 (Miss. 2002); Taylor v. Singing River Hospital System, 704 So. 2d 75 (Miss. 1997);
Steele v. Inn of Vicksburg, Inc., 697 So. 2d 373 (Miss. 1997); and Chisholm v. Mississippi
Department of Transportation, 942 So. 2d 165 (Miss. Ct. App. 2005). We accept that the
law in this state is that a breach of one’s internal policies may be considered in determining
whether one has exercised the appropriate standard of care. Therefore, we see no need to
discuss those cases. Suffice it to say that none of those cases are factually on all-fours with
our case. None of those cases involved a putative joint tortfeasor.
¶31.
Premier’s breach of duty, if indeed there was a breach, is not the proximate cause, or
a proximate contributing cause, of Ruth’s injuries so as to make Premier liable for those
injuries, because Boyd Tunica’s employee, not Premier’s driver, set in motion the chain of
events that led to Ruth’s injuries. Had Boyd Tunica’s employee not driven his truck in the
front of Premier’s shuttle bus, Ruth would have ridden to her destination with her seat belt
unfastened and without incident. Furthermore, as we have stated, it would have been
improper under section 63-2-3 to instruct the jury that the non-use of seat belts could be
considered as contributory or comparative negligence. Boyd Tunica offers two rationales
as a part of its argument that the statutory prohibition is inapplicable here. First, Boyd
17
Tunica posits that notwithstanding the fact that Ruth’s non-use of her seat belt could not have
been used to establish that she was at fault or that the non-use caused her injuries, granting
instruction P-11 was error because it was not improper for the jury to be instructed that
Ruth’s non-use of her seat belt could be considered in determining whether Premier, in not
following its own policies, violated its duty of care to her. Second, Boyd Tunica suggests
that the prohibition contained in section 63-2-3 does not apply, because the duty was imposed
by Premier’s internal policy, not by statute.
¶32.
With respect to Boyd Tunica’s first point, we note that this argument fails to take into
consideration that because of the unique fact situation involved, application of this general
evidentiary principle is unavailing. We acknowledge that evidence may be admissible for
one purpose while being inadmissible for another. The problem here, however, is that any
instruction that would have informed the jury that it could consider Ruth’s non-use of her
seat belt as evidence of Premier’s failure to comply with its heightened duty of care to her
would also have had to instruct the jury that it could not consider her non-use of seat belts
in determining whether she was at fault in causing her injuries and/or whether the non-use
of seat belts caused her injuries.
¶33.
As to Boyd Tunica’s second contention, we point out that it has presented no authority
holding that the provisions in Premier’s driver’s guide, particularly the provisions regarding
the seat-belt policy, create an exception to the statutory prohibition against considering non-
18
use of a seat-belt as evidence of contributory or comparative negligence.9 In the absence of
such authority, we see no reason to hold that Premier’s voluntary enactment of a seat-belt
policy, not required by statute, vitiates the protection that would be in place were its
passengers required by statute to wear seat belts. In other words, we see no reason why
Premier should be punished for insisting that its passengers wear seat belts, even though they
are not required by law to do so. Therefore, we find that the trial court did not err in giving
instruction P-11.
2. Motion for a New Trial
¶34.
An appellate court “will only reverse the denial of a motion for a new trial when the
trial court has abused its discretion.” Davis v. Wal-Mart Stores, Inc. 724 So. 2d 907, 910
(¶11) (Miss. 1998) (citing Daniels v. Wal-Mart Stores, Inc., 634 So. 2d 88, 94 (Miss. 1993)).
¶35.
Boyd Tunica asserts that the trial judge erred in failing to grant its motion for a new
trial because the trial court’s “reversal of its pretrial rulings resulted in unfair and substantial
prejudice.” Specifically, Boyd Tunica argues that it “concentrated its defense on Premier’s
failure to enforce its internal safety regulations.”
¶36.
We find that Boyd Tunica is not entirely correct in asserting that the trial court
reversed its pretrial ruling regarding whether evidence of seat-belt use and non-use would
be allowed, subject to a cautionary instruction that the evidence could not be used to assess
9
Under the jurisprudence of this state, an appellate court is not required to consider
an issue if the proponent of the issue fails to provide some authority in support of his
position. Grenada Living Ctr., LLC v. Coleman, 961 So. 2d 33, 37 (¶14) (Miss. 2007).
19
fault to Ruth as the party responsible for the cause of her injuries. Our review of the record
reveals that the trial judge’s initial ruling was tentative and remained so throughout the trial.
Therefore, it is puzzling to this Court how Boyd Tunica can assert that it concentrated its
defense on Premier’s alleged violation of its internal regulations “in reliance on the circuit
court’s ruling before the commencement of trial” when the trial judge clearly asserted that
his ruling was tentative in nature. Furthermore, Boyd Tunica has failed to proffer what it
would have done differently had it known what the trial judge’s final ruling would be. We
find no merit to this issue.
¶37. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE AND ROBERTS, JJ.,
CONCUR. GRIFFIS AND MAXWELL, JJ., CONCUR IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.
20
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