Jackson Public School District v. Tasha Smith
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00095-COA
JACKSON PUBLIC SCHOOL DISTRICT AND
WILBUR HARDY
v.
TASHA SMITH, AS NEXT FRIEND AND NATURAL
GUARDIAN OF JAQUAN COX, A MINOR
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
12/5/2002
HON. WINSTON L. KIDD
HINDS COUNTY CIRCUIT COURT
JENNIFER L. GARVIN
FRED L. BANKS
JOHN P. SNEED
JAMES W. SHELSON
LARRY STAMPS
YUMEKA CHANEE’ RUSHING
CIVIL - PERSONAL INJURY
JUDGMENT FOR PLAINTIFF IN THE AMOUNT
OF $850,000
JUDGMENT IS REMITTED TO $400,000 AND
AFFIRMED AS REMITTED IF REMITTITUR IS
ACCEPTED BY TASHA SMITH WITHIN TEN
DAYS AFTER THE JUDGMENT OF THIS
COURT BECOMES FINAL; OTHERWISE THE
JUDGMENT OF THE CIRCUIT COURT IS
REVERSED AND REMANDED FOR A NEW
TRIAL ON DAMAGES ONLY-06/22/2004
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE KING, C.J., THOMAS, IRVING AND MYERS, JJ.
IRVING, J., FOR THE COURT:
APPELLANTS
¶1.
The Jackson Public School District (JPS) appeals from an adverse judgment of the Circuit Court
of Hinds County in a negligence action where the judge awarded $850,000 in damages to Tasha Smith for
the benefit of Smith's minor son, JaQuan Cox, who was struck by a JPS school bus. In this appeal, JPS
asserts the following issues for our consideration: (1) whether the trial court erred in not allocating any fault
to Tasha Smith for her negligence in causing the damages sustained by JaQuan, and (2) whether the trial
court’s non-economic damages award of $816,840.72 is grossly excessive.
¶2.
We find that the damage award of $850,000 is excessive. Therefore, we remit the $850,000
award to $400,000.
FACTS
¶3.
On January 21, 2000, JaQuan was struck by a JPS school bus as he was attempting to cross
Nantucket Street in the City of Jackson to access a pathway leading to Raines Elementary School where
he was a second grade student. At the time of this incident, JaQuan was eight years old.
¶4.
The accident occurred just after JaQuan's mother, Tasha Smith, let him out of her van on the right
hand side of Nantucket Street just short of the stop sign at the street’s intersection with Flag Chapel Road.1
No crosswalk or crossing guard was present at this location. JaQuan exited the van, went around the rear
of the van, and proceeded to cross Nantucket Street to get to the pathway leading to his school.
¶5.
At about the same time that JaQuan was exiting his mother's van, Wilbur Hardy, an employee of
JPS, was driving a JPS school bus south on Flag Chapel approaching the intersection of Flag Chapel and
1
Nantucket Street is a two-lane neighborhood street which runs east to west. The street had
no dividing line. Nantucket ended at an intersection with Flag Chapel Road where a stop sign was
erected. Flag Chapel runs north and south. No stop sign or signal light was present on Flag Chapel at
this intersection. Raines Elementary School is located on Flag Chapel, approximately one block south
of the intersection of Flag Chapel and Nantucket. The Nantucket/Flag Chapel intersection is
considered a school zone. Warning signs were posted near the intersection to caution drivers that small
children may have been present.
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Nantucket. When the oncoming traffic cleared on Flag Chapel, Hardy made a left turn onto Nantucket.
As he made the turn, the school bus struck JaQuan. After the bus was brought to a stop, it was determined
that JaQuan was under the bus’s fender with his hand pinned under one of the bus’s front wheels. Hardy
immediately entered the bus and put it in reverse to back off JaQuan’s hand.
¶6.
JaQuan sustained scrapes on his chin, nose, lip, forehead, and back. He also had chipped teeth
and sustained a more serious injury to his right hand, such as several deep lacerations, several damaged
nail beds, and the loss of the tendon of his ring finger. JaQuan also missed three months of school.
¶7.
Smith sued JPS and Hardy. JPS's liability was premised both on the doctrine of respondeat
superior, since Hardy was JPS's employee, and on a theory of negligent hiring, training, and retaining of
Hardy. Additionally, Smith alleged that JPS failed to develop, implement and/or enforce a reasonable and
prudent safety program.
¶8.
Smith's case against JPS proceeded to a bench trial, and at the conclusion of the trial, the circuit
judge found that Hardy was negligent and that his negligence was the sole proximate cause of JaQuan’s
injuries. Consequently, the judge awarded JaQuan damages in the amount of $850,000, which included
$33,159.28 in medical bills, pain and suffering, permanent disfigurement, and loss of enjoyment of life. JPS
sought a new trial and a remittur, but its motions were denied.
ANALYSIS AND DISCUSSION OF THE ISSUES
Standard of Review
¶9.
This action was brought under the Mississippi Torts Claims Act which permits negligence actions
against JPS, but requires a bench trial with the circuit judge sitting as finder of fact. In Ezell v. Williams,
724 So. 2d 396 (Miss. 1998), our supreme court enunciated the following standard of review for such
cases:
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Our familiar standard of review requires that when a trial judge sits without a jury, this
Court will not disturb his factual determinations where there is substantial evidence in the
record to support those findings. Put another way, this Court ought and generally will
affirm a trial court sitting without a jury on a question of fact unless, based upon substantial
evidence, the court must be manifestly wrong. This Court must examine the entire record
and accept that evidence which supports or reasonably tends to support the findings of fact
made below, together with all reasonable inferences which may be drawn therefrom and
which favor the lower court's findings of fact.
Id. at 397 (¶4)(citations omitted).
¶10.
Concerning this standard of review, JPS argues that an important exception to this deferential
standard exists and applies to the case sub judice. Citing McCarty v. State, 554 So. 2d 909 (Miss.
1989) as its authority, JPS asserts that if the trial judge fails to make specific findings and makes only
general findings, or makes no findings at all, the scope of review is considerably broader. JPS explains that
the circuit judge made only general findings concerning allocation of negligence. It therefore concludes that
the circuit judge is not entitled to the deference ordinarily accorded to his findings of fact because he made
only “general findings” regarding Smith’s negligence.
¶11.
We are unpersuaded by JPS’s arguments that McCarty is applicable here. McCarty involved the
failure of a judge to make specific findings of fact when determining the admissibility of evidence. Here,
we are concerned not with the factual basis for the admissibility of evidence, but with general factual
determinations made by the trial judge concerning fault.
¶12.
Because we find no merit in JPS’s arguments, we find that the substantial evidence rule applies;
therefore, the trial court’s findings of fact should be given deference equal to that accorded other judges
sitting without a jury.
1.
Allocation of Fault to Tasha Smith
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¶13.
JPS argues that the circuit judge erred when he failed to allocate any fault to Smith for the injuries
sustained by JaQuan. JPS argues that fault should have been assigned to Smith because the evidence
demonstrates that she was negligent. JPS explains that Smith and her children were running late on the
morning of the accident. It proposes that this circumstance contributed to Smith's negligent actions. Next,
JPS specifically points out that Smith was negligent when she (1) dropped JaQuan off on the wrong side
of the street, leaving him to “jaywalk” across the street alone and (2) allowed JaQuan to go behind her van
to cross Nantucket. Finally, JPS asserts that the accident would not have occurred, or the probability of
its occurring would have be reduced significantly if Smith had exercised ordinary care. According to JPS,
Smith's actions, or lack thereof, virtually ensured that JaQuan would become a “darting child” from behind
her van.
¶14.
As a part of its submission that the trial judge erred in not assigning any fault to Smith, JPS posits
that the circuit judge ignored the clear mandate of Mississippi Code Annotated § 85-5-7(7) (1972) which,
in JPS's view, specifies that the judge shall make such a finding.
¶15.
Section 85-5-7(7) states, “In actions involving joint tort-feasors, the trier of fact shall determine the
percentage of fault for each party alleged to be at fault.” We find that JPS misapplies the statute to justify
its argument. Section 85-5-7(7) clearly pertains to the allocation of fault between joint tort-feasors. A
party does not become a joint tort-feasor simply because the other party makes such an allegation. Here,
the circuit judge found that Smith was not contributorily liable for the injury to her son. Therefore, she could
not be a joint tort-feasor.
¶16.
We do not find that the circuit judge was in manifest error when he found that Smith was not also
negligent. While we may have found different had we been the trier of fact, we, as reviewing judges, are
not at liberty to substitute our judgment in the place of the trial judge's unless we can say with conviction
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that the trial judge's findings lacked substantial evidentiary support or that the findings were arbitrary and
capricious.
¶17.
While it was perhaps unwise for Smith to let her son out of the van at a non-designated crossing
walk, the spot where she dropped him off was nevertheless within the school zone. Moreover, the
evidence demonstrates that the accident was caused by Hardy’s failure to maintain a proper lookout. It
is undisputed that Hardy did not see JaQuan prior to the accident. He testified that he arrived at the Raines
Elementary school zone at approximately 7:30 a.m., that he had passed a school zone sign near the
Nantucket/Flag Chapel intersection while traveling his normal route to pick up his students, and that he
knew that students would be walking to Raines Elementary in this particular area. Further, the evidence
demonstrates that Hardy was concentrating on beating the traffic on Flag Chapel Road while making his
turn onto Nantucket and that he was clearly not watching for children that he knew or should have known
might be in the area. Jasper Gray, a passenger on the bus at the time of the accident, testified that he
clearly saw JaQuan exit the van, walk to the back of the van, and prepare to cross the street.
2. Non-Economic Damages
¶18.
Next, JPS argues that the trial judge’s award of $816,840.72 in non-economic damages is grossly
excessive and shocks the conscience. Smith counters that substantial evidence supports the circuit judge’s
award of damages.
¶19.
In determining whether the circuit judge’s award of damages was excessive, our standard of review
is whether substantial evidence supports the award. Odom v. Roberts, 606 So. 2d 114, 118 (Miss.
1992). To be excessive, damages "must be so excessive as to strike mankind, at first blush, as being,
beyond all measure, unreasonable, and outrageous, and . . . to have been actuated by passion, partiality,
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prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant." U.S.
Fidelity & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So. 2d 38, 47 (¶24) (Miss. 2002).
¶20.
The amount of physical injury, mental and physical pain, present and future, temporary and
permanent disability, medical expenses, loss of wages and wage-earning capacity, sex, age and health of
the injured plaintiff, are all variables to be considered by the fact-finder in determining the amount of
damages to be awarded. Woods v. Nichols, 416 So. 2d 659, 671 (Miss. 1982). Each suit for personal
injury must be decided by the facts shown in that particular case. Id.
¶21.
The trial judge determined that there was overwhelming evidence that JaQuan suffered significant
scarring and permanent disfigurement to his hand, fingernails, wrist, and forearm. He consequently ordered
that damages be awarded to Tasha and JaQuan in the amount of $850,000, including $33,159.28 in
medical expenses. The trial judge, however, did not make any findings concerning any potential permanent
impairment or functional limitations resulting from JaQuan’s injuries.
¶22.
The evidence demonstrates that JaQuan suffered injuries to his right hand, that he underwent three
operations and a couple of wound cleanings and dressing changes between January 21, 2000 through
November 22, 2000, to remedy his injuries, and that he underwent significant pain during these processes.
¶23.
However, the depositions of Dr. Shelia Lindley and Dr. William Lineaweaver, both of whom
treated JaQuan for the injuries he sustained from this accident, demonstrate that JaQuan, while incurring
a permanent scar along his wrist, has no permanent impairment or functional limitation as a result of his
injuries. Dr. Lindley stated that she did not believe that JaQuan would be limited in what he could do with
his right hand. Moreover, Dr. William Lineaweaver, a plastic surgeon, gave a more detailed prognosis for
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JaQuan. In addressing permanent damage, past and future pain, and potential permanent functional
impairment, he gave the following testimony:
Counsel for Smith:
Let me ask you this: The scarring that you observed, I guess, in
December of 2001, do you have an opinion whether or not it will
be permanent, based on a reasonable degree of medical
probability?
Dr. Lineaweaver:
It will never go away. It will be permanent. Over time it should
get softer and more pliable and less aggravating for him.
Q:
Until that happens, do you have an opinion whether or not it will create any
difficulties as far as his functional ability regarding that hand is concerned?
A:
My impression seeing his activity in clinic and talking about his activity with his
mother was that, although he apparently does have local symptoms that he will
describe as either itching or uncomfortable, that there did not seem to be any
limitation of activity.
Q:
The difficulty or discomfort that he described, do you have an opinion how long
that will last, based on a reasonable degree of medical probability?
A:
Potentially lifelong.
Q:
Lifelong. And would that be including itching and scaling?
A:
I would say, based on his reporting at the last clinic visit, local itching, perhaps
local irritation if he were doing a significant manual activity that would rub against
the area. But the chances of these complications being -- of being persistent are
probably small over his lifetime, and the chances of them being significant are
probably very small.
*
*
*
*
Q:
Based upon a reasonable degree of medical probability, do you have an opinion
as to whether or not JaQuan Cox experienced any pain as a result of the injury
that you treated him for?
A:
Oh, I think that there’s no question that he experienced pain.
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Q:
A:
¶24.
Do you have an opinion, based on a reasonable degree of medical probability,
whether or not he will suffer any pain in the future as a result of the injury that you
treated him for?
I think the pain will be dramatically minimized by having removed that piece of
injured nerve and by reorienting the scar. He may have local areas of discomfort,
but I don’t think that he’ll have any pain that significantly interferes with his
activities.
After examining the facts and the circumstances unique to this case, and the personal characteristics
unique to JaQuan, we concede that the trial court had ample material in the record to justify a reasonable
award of damages. However, we find that on the unique facts of this case, that the award of $850,00 in
damages is so high as to be unreasonable at first blush and is contrary to the overwhelming weight of the
credible evidence. Therefore, we remit the award to $400,000. If Tasha Smith accepts the remittitur
within ten days after the judgment of this Court becomes final, then the award as reduced will be affirmed.
Otherwise, a new trial shall be held on damages only.
¶25. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, AS TO DAMAGES,
IS REMITTED TO $400,000 AND AFFIRMED AS REMITTED IF THE REMITTITUR IS
ACCEPTED BY TASHA SMITH WITHIN TEN DAYS AFTER THE JUDGMENT OF THIS
COURT BECOMES FINAL. IF THE REMITTITUR IS REJECTED, THE JUDGMENT OF
THE CIRCUIT COURT IS REVERSED AND REMANDED FOR A NEW TRIAL ON
DAMAGES ONLY. COSTS OF THIS APPEAL ARE ASSESSED ONE HALF TO THE
APPELLANT AND ONE HALF TO THE APPELLEE.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS AND
CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.
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