Michael A. Thompson v. Rizzo Farms, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-01621-COA
MICHAEL A. THOMPSON
APPELLANT
v.
RIZZO FARMS, INC.
DATE OF 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:
MANDATE ISSUED:
APPELLEE
08/14/2007
HON. ROBERT P. CHAMBERLIN
BOLIVAR COUNTY CIRCUIT COURT
J. KIRKHAM POVALL
S. TODD JEFFREYS
W. HUNTER NOWELL
EDWARD J. CURRIE
FRANK F. FARMER
CIVIL - PERSONAL INJURY
JUDGMENT ENTERED ON JURY VERDICT
FOR THE DEFENDANT
AFFIRMED: 09/01/2009
BEFORE KING, C.J., GRIFFIS AND MAXWELL, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Bolivar County Sheriff’s Deputy Michael Thompson filed suit against Rizzo Farms,
Inc., based on personal injuries that Deputy Thompson sustained in a car wreck with Rizzo’s
employee, Rodney Brown. The Bolivar County Circuit Court jury found in favor of Rizzo.
Deputy Thompson now appeals and argues that: (1) the trial court erred when it denied his
motion for a directed verdict and a proposed jury instruction based on negligence per se; (2)
the jury was biased; and (3) the trial court applied an incorrect standard of care for
comparative negligence when it did not require Rizzo to show that Deputy Thompson acted
with reckless disregard. We find no error and affirm.
FACTS
¶2.
On August 28, 2002, Deputy Thompson left the Bolivar County Sheriff’s Department
(“Sheriff’s Department”) to assist another officer after the officer called for backup. The call
for backup was canceled prior to the accident, but Deputy Thompson claimed that he did not
hear the cancellation over the police radio. Deputy Thompson testified that his lights and
sirens were activated at the time of the accident, but this was disputed by other witnesses.
¶3.
While traveling east on Highway 8, Deputy Thompson encountered a heavy-duty
pickup truck and Brown’s truck. Brown was acting within the course and scope of his
employment with Rizzo at this time. Deputy Thompson checked the passing lane for
oncoming traffic, accelerated to 65 or 70 miles per hour, by his estimation, and first
attempted to overtake the heavy-duty pickup truck, and then Brown’s truck. Deputy
Thompson claims that after he began to overtake the trucks, Brown began a left turn into
Brown’s driveway. Brown claims that the passing lane was clear when he began his turn.
Deputy Thompson’s car collided with Brown’s truck as Brown entered his driveway.
ANALYSIS
1.
¶4.
Did the trial court err when it denied Deputy Thompson’s motion for
a directed verdict and a proposed jury instruction based on negligence
per se?
Deputy Thompson argues that Brown violated Mississippi Code Annotated section
63-3-707 (Rev. 2004); therefore, the trial court erred by denying his motion for a directed
verdict and a jury proposed instruction that stated Brown was negligent per se. Rizzo claims
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that Brown did not violate section 63-3-707 and that Deputy Thompson proximately caused
the collision.
¶5.
The supreme court has stated:
Denials of peremptory instructions, motions for [a] directed verdict, and
motions for judgment notwithstanding the verdict each challenge the legal
sufficiency of the evidence presented at trial. They are, therefore, reviewed
under the same standard. . . . Under this standard, [the appellate court] will
consider the evidence in the light most favorable to the appellee, giving that
party the benefit of all favorable inference that may be reasonably drawn from
the evidence. If the facts so considered point so overwhelmingly in favor of
the appellant that reasonable men could not have arrived at a contrary verdict,
we are required to reverse and render. On the other hand if there is substantial
evidence in support of the verdict, that is, evidence of such quality and weight
that reasonable and fair minded jurors in the exercise of impartial judgement
might have reached different conclusions, affirmance is required.
Cmty. Bank, Ellisville, Miss. v. Courtney, 884 So. 2d 767, 772 (¶9) (Miss. 2004) (citations
and quotations omitted).
¶6.
The supreme court has defined negligence per se as a “breach of a statute or ordinance
[that] renders the offender liable in tort without proof of a lack of due care.” Palmer v.
Anderson Infirmary Benevolent Ass'n, 656 So. 2d 790, 796 (Miss. 1995). “In order for the
doctrine of negligence per se to apply, the plaintiff must show that he is a member of the
class that the statute was designed to protect and that the harm he suffered was the type of
harm which the statute was intended to prevent.” Thomas v. McDonald, 667 So. 2d 594, 597
(Miss. 1995) (citations omitted). “When a statute is violated, the injured party is entitled to
an instruction that the party violating is guilty of negligence, and if that negligence
proximately caused or contributed to the injury, then the injured party is entitled to recover.”
Id. at 596 (citations omitted).
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¶7.
Deputy Thompson argues that Brown was negligent per se because he violated section
63-3-707, which states in part:
No person shall turn a vehicle from a direct course upon a highway unless and
until such movement can be made with reasonable safety and then only after
giving a clearly audible signal by sounding the horn if any pedestrian may be
affected by such movement or after giving an appropriate signal in the manner
provided in this article in the event any other vehicle may be affected by such
movement.
Deputy Thompson argues that if Brown had looked in his rearview or side mirror, as he
commenced his left-hand turn, then he would have seen that Deputy Thompson and the
heavy-duty pickup truck were behind him. Both parties agree that there are no hills or curves
on the highway in this area.
¶8.
Brown testified that he did look in the side mirror before he made his turn and that he
did not see Deputy Thompson in the left-hand lane behind him; however, he could not
remember if he saw the heavy-duty pickup truck behind him. Brown stated that he did not
know how many seconds had elapsed between when he looked in his side mirror and made
his turn, but that it all occurred in “one motion.”
¶9.
Deputy Thompson’s expert, Brett Alexander, opined that Deputy Thompson would
have been in the left-hand lane prior to Brown beginning his turn left. His opinion was based
on his estimates of Deputy Thompson’s and Brown’s speeds and his estimate of the distance
between them when Deputy Thompson began to pass the heavy-duty pickup truck. However,
his opinion was not supported by any eyewitness testimony.
¶10.
Jeffery West, a rural mail carrier, had pulled his vehicle onto the shoulder of the road
and was re-entering the road as the accident occurred. West was traveling west toward
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Deputy Thompson and Brown. West was facing Brown and was able to see the accident as
it occurred. He testified that he saw Brown with his blinker on, and out of nowhere, Deputy
Thompson struck Brown. He stated that he could see only the heavy-duty pickup truck and
Brown’s truck, until Deputy Thompson appeared right beside the heavy-duty pickup truck.
West estimated that Deputy Thompson was going 85 miles per hour. West testified that
Brown had begun his turn when West saw Deputy Thompson. West stated that he did not
see Deputy Thompson’s blue lights activated at this time.
¶11.
The driver of the heavy-duty pickup truck, Jerry Jackson, testified that Brown had
signaled for the left turn, slowed down, and had begun his left turn when Deputy Thompson
began to pass. Jackson also stated that he did not see Deputy Thompson’s blue lights on at
this time.
¶12.
Deputy Thompson argues that a motorist is “charged with seeing that which [he]
should have seen.” Campbell v. Schmidt, 195 So. 2d 87, 89 (Miss. 1967). In Campbell, the
defendant admitted that she failed to look both ways before she proceeded through an
intersection. Id. at 88. Here, Brown testified that he did look in his side mirror as he
prepared to turn left and that he did not see Deputy Thompson. Brown’s testimony was
supported by West who said that Brown had already begun his turn when West saw Deputy
Thompson for the first time.
¶13.
There was a factual dispute about whom initiated his move first, Brown or Deputy
Thompson, and about what Brown should have seen given the differences in their speeds.1
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Deputy Thompson was driving an estimated seventy to eighty-five miles per
hour, while Deputy Thompson’s expert estimated that Brown was traveling ten miles per
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This was an issue for the jury to decide. Considering the evidence in the light most favorable
to Rizzo, we conclude that the trial court properly denied both Deputy Thompson’s motion
for a directed verdict and the proposed jury instruction based on negligence per se.
2.
¶14.
Was the jury was biased?
Deputy Thompson claims that three jurors were not truthful during voir dire about
whether they or a family member had previous contact with Deputy Thompson or other
employees of the Sheriff’s Department. Rizzo contends that Deputy Thompson did not prove
that any of the three jurors failed to respond truthfully to relevant, direct, and unambiguous
questions during voir dire as required under Odom v. State, 355 So. 2d 1381, 1383 (Miss.
1978).
¶15.
Where a prospective juror fails to respond to a question during voir dire, upon motion
for a new trial, the trial court should determine whether the question was: “(1) relevant to the
voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had
substantial knowledge of the information sought to be elicited.” Id. If so, “the court should
then determine if prejudice to the defendant in selecting the jury reasonably could be inferred
from the juror's failure to respond.” Id. If prejudice could reasonably be inferred, then the
trial court shall order a new trial. Id. A trial court's judgment about whether a jury is fair and
impartial will not be disturbed unless it appears clearly that it is wrong. Id.
¶16.
During voir dire, the trial court asked the jurors if anyone knew any of the potential
witnesses. Counsel for Deputy Thompson asked the potential jurors the following:
Thinking back, has anyone thought about either yourself or a family member
hour.
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who might have been involved in an incident or a situation where Officer
Thompson, either working alone or with someone else in Bolivar County, may
have had to, for instance investigate you or your family member for some kind
of alleged problem?
A.
¶17.
Rachel Ramiz
During a post-trial hearing Ramiz acknowledged that she knew her sister, Jessica
Ramiz, had been arrested once by the Sheriff’s Department, but she denied knowing that
Deputy Thompson was the arresting officer in March 2004. Deputy Thompson’s counsel
asked Ramiz why she did not speak up during voir dire about this knowledge, and she replied
that she only recalled being asked if she knew Deputy Thompson. Ramiz stated again that
she did not know Deputy Thompson arrested her sister.
¶18.
Ramiz also acknowledged that her cousin, Terry Ramiz, had been arrested, but she
said she did not know whether he was arrested by the Sheriff’s Department or the Rosedale
Police Department. She knew he was held at the Bolivar County Correctional Facility.
Ramiz denied knowing that Deputy Thompson investigated the allegations against Terry.
She stated that she was not close to Terry and that she did not know why or when he was
arrested. Deputy Thompson’s counsel asked Ramiz why she did not speak up during voir
dire about this knowledge, and she replied that she must not have understood that she was
being asked about a cousin’s arrest history.
¶19.
Deputy Thompson argues that all arrests should have been disclosed in response to
his question about whether potential jurors thought of a family member who might have been
involved in an incident or a situation where Deputy Thompson, either working alone or with
someone else in Bolivar County, may have investigated them. Juror Ramiz did not disclose
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the arrests of her relatives because she said she had no reason to associate them with Deputy
Thompson.
¶20.
During the post-trial hearing, Ramiz stated that she did not know Deputy Thompson
was involved in her sister’s arrest two and a half years before this trial or that he had
investigated her cousin. She did not even know what department had arrested her cousin.
She did not have any personal knowledge about the details of her sister’s arrest. Based on
her testimony at the hearing, the trial court correctly found that Ramiz lacked substantial
knowledge of the information sought to be elicited, because she did not know of Deputy
Thompson’s involvement in either of these incidents. Deputy Thompson should have
specifically asked the question he apparently wanted answered- that being whether anyone
had a family member that had been arrested or investigated by the Sheriff’s Department.
This issue is without merit.
B.
¶21.
Chedra Bolden
Chedra Bolden acknowledged that she knew her cousin, Centrea Bolden, had served
time at the penitentiary, but she claimed that she was unaware that Centrea was arrested by
one of Deputy Thompson’s witnesses, Chief Deputy Charles Gilmer.
¶22.
Bolden also acknowledged that her cousin, Jacqueline Bolden, had been arrested.
Bolden did not know when her cousin was arrested or what department had arrested her.
¶23.
Deputy Thompson has not shown that Bolden answered any voir dire questions
dishonestly. The trial court asked whether any of the potential jurors knew the potential
witness Chief Deputy Gilmer.
While Bolden did not know Chief Deputy Gilmer,
unbeknownst to her, one of her cousins was arrested by him. Further, Deputy Thompson did
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not present any evidence of a situation in which he investigated or arrested Bolden or a
member of her family. This issue is without merit.
C.
¶24.
Leon Hollaman
Leon Hollaman was arrested for forgery by one of Deputy Thompson’s potential
witnesses, Deputy Frazier Nash. Deputy Nash was not called as a witness during the trial.
Hollaman had moved out of state after the trial but before the post-trial hearing; therefore,
he was unable to be served with a subpoena. Accordingly, he was not present at the hearing
concerning jury bias.
¶25.
The trial court asked the potential jurors if anyone knew the potential witness Deputy
Nash. The question was relevant to the voir dire examination and unambiguous, but Deputy
Thompson fails to show that Hollaman had substantial knowledge of the information sought
to be elicited. Hollaman was arrested by Deputy Nash in September 29, 2003, three years
before this trial in September 2006. Deputy Nash did not testify at Deputy Thompson’s trial;
therefore, Hollaman did not have an opportunity to recognize Deputy Nash. Deputy
Thompson argues jury bias based upon Hollaman’s alleged recognition of Deputy Nash’s
name from a single arrest that occurred three years prior to trial without any testimony by
Hollaman to that effect. We find that Deputy Thompson did not show that Hollaman had
substantial knowledge. This issue is without merit.
3.
¶26.
Did the trial court apply an incorrect standard of care for comparative
negligence when it did not require Rizzo to show that Deputy Thompson
acted with reckless disregard?
Deputy Thompson argues that the trial court misapplied the law of comparative
negligence and that Rizzo should be required to show that he acted with reckless disregard
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before comparative negligence would apply because of protections provided by the
Mississippi Tort Claims Act (MTCA). Rizzo responds that the MTCA does not deprive a
defendant of a simple-negligence defense when a police officer files a personal-injury suit.
¶27.
“In matters that are questions of law, this Court employs a de novo standard of review
and will only reverse for an erroneous interpretation or application of the law.” Morgan v.
West, 812 So. 2d 987, 990 (¶8) (Miss. 2002).
¶28.
Mississippi Code Annotated section 11-46-9(1)(c) (Supp. 2008) provides that:
(1) A governmental entity and its employees acting within the course and
scope of their employment or duties shall not be liable for any claim:
....
(c) Arising out of any act or omission of an employee of a governmental entity
engaged in the performance or execution of duties or activities relating to
police or fire protection unless the employee acted in reckless disregard of the
safety and well-being of any person not engaged in criminal activity at the time
of injury.
This section would protect Deputy Thompson from liability in a suit by Brown against
Deputy Thompson by requiring Brown to show that Deputy Thompson was acting in reckless
disregard at the time of the injury. However, the question before this Court is what Rizzo
must show when defending a personal-injury suit brought by Deputy Thompson.
¶29.
Deputy Thompson argues that it was error to apportion any fault to him unless he
acted with reckless disregard because section 11-46-9(1)(c) protects him from liability until
his actions reach this level. We disagree.
¶30.
Subsection 11-46-1(a) (Rev. 2002) defines a claim as “any demand to recover
damages from a governmental entity as compensation for injuries.” (Emphasis added). Here,
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Deputy Thompson’s suit against Rizzo – a non-governmental entity – is not a claim as
defined under section 11-46-1. Therefore, Deputy Thompson is not afforded the protection
provided by section 11-46-9(1)(c).
¶31.
Furthermore, the supreme court has recognized that in the context of Mississippi Code
Annotated section 85-5-7 (Supp. 2008) – which addresses joint and several liability for
damages caused by two or more persons – that:
Fault and liability are not synonyms. "Fault" is defined by § 85-5-7 as "an act
or omission." Immunity from liability does not prevent an immune party from
acting or omitting to act. Rather, immunity shields that party from any liability
stemming from that act or omission. There is nothing logically or legally
inconsistent about allocating fault but shielding immune parties from liability
for that fault. And there is no reason to imagine that the Legislature did not
intend fault to be allocated against immune parties, insofar as that allocation
can be of no detriment to those parties.
Mack Trucks, Inc. v. Tackett, 841 So. 2d 1107, 1114 (¶26) (Miss. 2003). Subsection
11-46-9(1)(c) limits liability, not fault, when a plaintiff files suit against a governmental
entity. We see no reason why it should prohibit the allocation of fault when an employee of
the governmental entity files suit against a non-governmental entity.
¶32.
The Legislature determined that it was necessary to protect governmental entities and
their employees from liability for the “performance or execution of duties or activities
relating to police or fire protection unless the employee acted in reckless disregard of the
safety and well-being of any person not engaged in criminal activity at the time of injury.”
Miss. Code Ann. § 11-46-9(1)(c).
However, the Legislature has not burdened non-
governmental entities and private persons with liability for personal injuries sustained by an
employee of a governmental entity when that person’s actions fall somewhere in between
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simple negligence and the “reckless disregard of the safety and well-being of any person not
engaged in criminal activity at the time of injury.” Miss. Code Ann. § 11-46-9(1)(c). We
do not do so today. Accordingly, we affirm the ruling of the trial court.
¶33. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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