Rece Vaughn v. Richard Ambrosino
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00927-COA
RECE VAUGHN
APPELLANT
v.
RICHARD AMBROSINO AND ELLEN AMBROSINO
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEES
2/19/2002
HON. SAMAC S. RICHARDSON
MADISON COUNTY CIRCUIT COURT
JAMES L. POWELL
RICHARD A. COURTNEY
MATTHEW IVAN HETZEL
STEPHEN L. THOMAS
MARGARET OERTLING CUPPLES
JAMES WILLIAM MANUEL
CIVIL - PERSONAL INJURY
VERDICT IN FAVOR OF APPELLEES
AFFIRMED - 11/18/2003
BEFORE MCMILLIN, C.J., LEE AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1.
Rece Vaughn appeals the decision of the Madison County Circuit Court asserting as error the
following issues:
1.
DID THE TRIAL COURT ERR IN CREATING AND GIVING JURY INSTRUCTION 16;
AND
2.
DID THE TRIAL COURT ERR IN REFUSING TO GRANT PLAINTIFF'S JURY
INSTRUCTION 15?.
STATEMENT OF FACTS
¶2.
Vaughn was a full-time housekeeper at the Ambrosinos' residence. As part of her employment,
she lived in a furnished apartment above the garage. She was also paid $125 a week salary. The
Ambrosinos were not required to have workers' compensation coverage because they did not employ the
requisite number of employees.
¶3.
On June 26, 1999, Vaughn was seriously injured when she fell from a ladder while cleaning the
twelve foot high kitchen cabinets. She was using the ladder to reach the upper cabinets. She was standing
midway up the ladder, when the Ambrosinos' dog ran under the ladder. Vaughn did not see the dog hit
the ladder, she felt the dog impact the ladder. The ladder and Vaughn fell. Vaughn suffered a wound to
her head and a crushed heel bone in her foot, which required surgery. There was conflicting testimony
whether the Ambrosinos instructed Vaughn to clean the cabinets that day and whether or not they allowed
her to block off any area of the house from the dog. Vaughn alleged that the Ambrosinos specifically
instructed her to clean the cabinets that day, that they told her that she would just need to be careful when
cleaning the cabinets, and that she was not to shut the dog out of any part of the house. The Ambrosinos
alleged that they did not tell Vaughn to clean the cabinets on her own and that it was her prerogative to
close off the dog.
¶4.
Vaughn sued the Ambrosinos in the Circuit Court of Madison County on June 26, 2000, seeking
almost $2 million. The case was tried on February 4th through the 6th, 2002. A jury verdict in favor of
the Ambrosinos was returned on February 6 and filed on record on February 20. Vaughn filed a motion
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for a new trial on March 1 and it was heard and denied on April 30. Vaughn perfected her appeal on May
28.
LEGAL ANALYSIS
1. THE TRIAL COURT ERRED IN CREATING AND GIVING JURY INSTRUCTION 16; AND
2. THE TRIAL COURT ERRED IN REFUSING TO GRANT PLAINTIFF'S JURY INSTRUCTION
15.
¶5.
Since both issues deal with the denial of plaintiff's jury instruction 15 and the judge's creating and
granting of jury instruction 16, we shall address the two issues as one. A jury instruction must contain a
correct statement of the law and the instruction must be warranted by the evidence. Nolan v. Brantley,
767 So. 2d 234, 239 (¶ 13) (Miss. Ct. App. 2000). There is considerable discretion regarding the form
and substance of jury instructions and we review the instructions as a whole Coho Resources, Inc. v.
McCarthy, 829 So. 2d 1, 22 (¶ 69) (Miss. 2002).
¶6.
Vaughn's Instruction Number 15 which was rejected stated:
If you find from a preponderance of the evidence in this case that
1.
2.
3.
4.
5.
The defendants were in possession or control of the premises at 781 Mannsdale
Road, Madison, Mississippi as the owners, and
the plaintiff was an invitee of the defendants, and
the defendants' own negligence caused the defendants' dog not to be restrained
from plaintiff's work area on the premises, which was a dangerous condition on the
premises, and
the plaintiff was injured by the defendants' dog causing the ladder to fall with the
plaintiff, and
the defendants' negligence was a contributing proximate cause of the plaintiff's
accident and injuries
then you shall find for the plaintiff.
However, if you believe that the plaintiff has failed to show any one of these elements by a
preponderance of the evidence in this case, then your verdict shall be for the defendant.
The trial courts Instruction Number 16 which was given stated:
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If you find from a preponderance of the evidence in this case that
1.
2.
3.
4.
5.
the plaintiff was an invitee of the defendants and
the defendants owned the property or premises and
the defendants not restraining their dog while plaintiff was working created a
dangerous condition which was not readily apparent upon the defendants' property
and
the defendants failed to keep their property or premises in a reasonably safe
condition or warn the plaintiff of a dangerous condition, not readily apparent, of
which the defendant had knowledge and
the defendants' failure to keep their property or premises in a reasonably safe
condition or warn the plaintiff of a dangerous condition, not readily apparent, was
a proximate contributing cause of plaintiff's injuries.
then you shall find for the plaintiff and against the defendants.
However, if you believe that the plaintiff has failed to show any of these elements by a
preponderance of the evidence in this case, then your verdict shall be for the defendants.
¶7.
We begin our analysis of the given instruction by noting that there is no question that Vaughn was
an invitee on the Ambrosinos’ premises. An invitee is one who goes upon the premises of another in
answer to expressed or implied invitation of the owner or occupant for their mutual advantage. Hudson
v. Courtesy Motors, Inc., 794 So. 2d 999, 1003 (Miss. 2001) (¶ 9). In Lumbley v. Ten Point Co., 556
So. 2d 1026, 1030 (Miss. 1989), the supreme court found that a hunting camp carekeeper and his wife,
both of whom were provided lodging on the premises as part of their compensation, were considered
invitees. Vaughn’s and the Ambrosinos’ situation is similar in that it provided both parties with advantages.
¶8.
The landowner's duty to an invitee is to take care that the property is "reasonably safe" and to warn
the invitee of "hidden dangers" that are not "plain and open." Little by Little v. Bell, 719 So. 2d 757, 760
(¶ 16) (Miss. 1998). There is no duty to warn of dangers that should be obvious to the invitee. Nolan, 767
So. 2d at 240 (¶15). Based on this, we hold that the given instruction accurately conveys the law.
¶9.
The question now comes down to whether, by not restraining the dog, the Ambrosinos created a
danger to Vaughn, their invitee, which was not readily apparent. Since Vaughn lived at the residence, and
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had worked there for some time, the dog’s size and nature were familiar to her. There was even evidence
that the dog had almost knocked over the ladder the night before. Therefore, the possibility of the dog
knocking over the ladder was readily apparent to her on the day of the accident. This is made evident by
the fact that Vaughn claims to have told Mr. Ambrosino of the first near-accident.
¶10.
Further, evidence was presented that the use of the ladder was entirely up to Vaughn. The
Ambrosinos provided Vaughn with “extension handles” she could use to reach the cabinets while standing
on the floor. It was not necessary for her to use a ladder at all. Therefore, even if failing to restrain the dog
created a dangerous condition, Vaughn is at least partly at fault for using the ladder when a safer alternative
was available.
¶11.
We find this situation to be analogous to that in Nolan. There, Nolan agreed to cut the grass on
his mother’s property. While using a riding lawn mower, Nolan slid into a ditch or washed-out area that
he knew existed and was injured. Id. at 237. We ruled that Mr. Nolan knew of the dangerous condition
and chose to proceed anyway. Id. at 241. In the instant case, Vaughn, based on her experience the prior
night, knew that the dog could possibly bump into the ladder and cause it to tip over. Vaughn had a safer
option, the extension handles, but chose to use the ladder instead. We will not hold the Ambrosinos liable
for Vaughn's choice.
¶12.
We find that the trial court’s jury instruction accurately reflects the law, and that it was warranted
given the evidence presented. Therefore, we affirm the verdict from the trial court.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS
AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., AND SOUTHWICK, P.J., THOMAS, LEE, CHANDLER AND
GRIFFIS, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY BRIDGES AND IRVING, JJ.
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KING, P.J., DISSENTING:
¶14.
With appropriate respect for the majority, I believe that the trial court should have granted
instruction 15 rather than 16.
¶15.
As given instruction 16 reads:
If you find from a preponderance of the evidence in this case that
1. the plaintiff was an invitee of the defendants and
2. the defendants owned the property or premises and
3. the defendants not restraining their dog while the plaintiff was working
created a dangerous condition which was not readily apparent upon the defendants'
property and
4. the defendants failed to keep their property or premises in a reasonably
safe condition or warn the plaintiff of a dangerous condition, not readily apparent, of which
the defendants had knowledge and
5. the defendants' failure to keep their property or premises in a
reasonably safe condition or warn plaintiff of a dangerous condition, not readily apparent,
was a proximate contributing cause of plaintiff's injuries, then you shall find for the plaintiff
and against the defendants.
However, if you believe that the plaintiff has failed to show any of these elements
by a preponderance of the evidence in this case, then your verdict shall be for the
defendants.
¶16.
It is the use of the phrase "not readily apparent" which causes me concern about instruction 16, and
leads me to believe it to be inconsistent with the evidence. Mrs. Vaughn testified that notwithstanding her
request, the Ambrosinos refused to allow her to restrain or confine the dog.
¶17.
Likewise, notwithstanding this refusal, Mrs. Vaughn was expected to perform duties. It is the
supposed refusal of the Ambrosinos to allow confinement of the dog, while requiring that she perform her
duties as housekeeper, which created the dangerous situation and lead to Mrs. Vaughn's injury.
¶18.
Instruction 16 would not allow the jury to consider the refusal of the Ambrosinos to allow
confinement of the dog. Instead, it placed the responsibility solely on Mrs. Vaughn, by inclusion of the
phrase "not readily apparent."
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¶19.
That I believe to be inconsistent with the evidence. For that reason, I dissent.
BRIDGES AND IRVING, JJ., JOIN THIS OPINION.
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