Entergy Mississippi, Inc. v. Bolden

For the Court:

¶ 1. Brenda A. Bolden (“Bolden”) brought suit against Entergy Mississippi, Inc. (“Entergy”) on April 1, 1998, in the Circuit Court of Sunflower County. The first trial ended in a mistrial. Thereafter, in the second trial a jury awarded Bolden $532,000 on November 14, 2001, and judgment was entered accordingly. The trial court denied Entergy’s motion for judgment notwithstanding the verdict, or for a new trial or remittitur. Aggrieved, Enter-gy appeals to this Court.

FACTS

¶ 2. This case arose out of a motor vehicle accident in Sunflower County on July 1, 1997. Bolden was traveling north on B.B. King Road, and W.L. Strawbridge (“Strawbridge”), an Entergy employee, was traveling south on B.B. King Road. Strawbridge made a left turn in front of Bolden onto Lynbar Street when Bolden struck his Entergy truck. There was no testimony by Strawbridge at the trial. A corporate representative was sent by En-tergy. There was disputed testimony whether Bolden was speeding. In her deposition she said she was traveling 35 miles per hour, and at trial she stated that she was going 20 miles per hour. However, the accident report stated that she was traveling 20 miles per hour. The speed limit was 25 miles per hour. There is no evidence that Strawbridge used his turn signal to indicate to Bolden that he was making, a left turn. By all accounts the day was bright and clear, and there was nothing to obstruct Bolden’s view. As the Entergy truck was turning left, Bolden’s Ford struck it.

¶ 8. Bolden sustained injuries to the left side of her body including her knee, shoulder and ankle. She underwent surgery on July 22, 1997, to repair her left knee. Dr. J.O. Manning said she had a prior basketball injury to that knee in 1983. Ankle surgery was performed on August 14, 2000, by Dr. George Wood, II.

¶ 4. Due to her injuries Bolden was unable to go back to her job as a security officer and had lost wages of $9,600. Her total medical expenses were $31,686.06. Dr. Paul Williams assigned a 15% impairment to the left knee and 10% impairment to the left ankle. Dr. Manning testified that he felt that Dr. Williams’s impairment ratings were low. Dr. Williams recommended in June of 1998 that Bolden go back to work. He further stated that she was more at risk to develop arthritis.

¶ 5. Entergy raises the following issues on appeal:

I. WHETHER THE LOWER COURT ERRED IN INSTRUCTING THE JURY THAT STRAWBRIDGE “AS A MATTER OF LAW WAS NEGLIGENT AND THEREFORE ENTERGY MISSISSIPPI, THROUGH THE ACTIONS OF W.L. STRAWBRIDGE WAS NEGLIGENT.”

II. WHETHER THE LOWER COURT ERRED IN NOT INSTRUCTING THE JURY CONCERNING A SPECIAL HAZARD.

III. WHETHER THE LOWER COURT ERRED IN REFUSING TO ISSUE A CONTRIBUTORY NEGLIGENCE INSTRUCTION.

IY. WHETHER THE LOWER COURT ERRED IN FAILING TO GRANT ENTERGY A REMITTI-TUR, OR, IN THE ALTERNATIVE, A NEW TRIAL ON THE ISSUE OF DAMAGES.

V. WHETHER BOLDEN’S CLOSING ARGUMENT WAS PROPER.

STANDARD OF REVIEW

¶ 6. There are several standards of review that must be used in analyzing the issues in this appeal. First, when reviewing jury instructions on appeal, we must read them as a whole. Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 968 (Miss.1999). While a party is entitled to have jury instructions submitted that represent his or her theory of the ease, an instruction that “incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence” need not be submitted to the jury. Humphrey v. State, 759 So.2d 368, 380 (Miss.2000). This Court will not find reversible error where the instructions actually given, when read together as a whole, “fairly announce the law of the case and create no injustice.” Coleman v. State, 697 So.2d 777, 782 (Miss.1997) (citing Collins v. State, 691 So.2d 918, 922 (Miss.1997)). Moreover, the standard of review of jury verdicts is as follows:

Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.

Id. (citing Bell v. City of Bay St. Louis, 467 So.2d 657, 660 (Miss.1985)).

¶ 7. The standard of review for whether a peremptory instruction should be granted is the same as the standard for a directed verdict. Herrington v. Spell, 692 So.2d 93, 97 (Miss.1997). The standard of review in cases where a directed verdict has been granted is as follows: “[t]his Court conducts a de novo review of motions for directed verdict.... If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted.” Pace v. Fin. Sec. Life of Miss., 608 So.2d 1135, 1138 (Miss.1992) (citation omitted). Additionally, this Court has held that “[a] trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree.” Vu v. Clayton, 765 So.2d 1253, 1254 (Miss.2000) (quoting Vines v. Windham, 606 So.2d 128, 131 (Miss.1992)).

DISCUSSION

I. WHETHER THE LOWER COURT ERRED IN INSTRUCTING THE JURY THAT STRAW-BRIDGE “AS A MATTER OF LAW WAS NEGLIGENT AND THEREFORE ENTERGY MISSISSIPPI, THROUGH THE ACTIONS OF W.L. STRAWBRIDGE WAS NEGLIGENT.”

¶ 8. A directed verdict was granted in favor of Bolden on the issue of the negligence of the Entergy driver. Based on the standard of review discussed herein, the trial court determined that the evidence was so overwhelmingly in favor of Bolden on this issue that Entergy was negligent, and a peremptory instruction was granted. When reviewing requests for peremptory instructions, we consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). Our rules and case law allow for questions to be removed from the jury’s consideration when there exists no factual question for it to resolve. M.R.C.P. 50(a) & cmt. See also Mayor & Bd. of Aldermen of the City of Vicksburg v. Young, 616 So.2d 883, 886-87 (Miss. 1992); Hasson v. Hale, 555 So.2d 1014, 1016 (Miss.1990); Bryant v. Alpha Entertainment Corp., 508 So.2d 1094, 1096-97 (Miss.1987).

¶ 9. Bolden submits that a reasonable jury could not have found that Entergy was not negligent based upon the actions of its agent. Herrington v. Spell, 692 So.2d at 97. We agree. No reasonable juror could have concluded from the evidence presented that Strawbridge was not negligent. Unrebutted testimony established that Strawbridge was negligent in crossing in front of Bolden at the intersection where the collision occurred. No contrary evidence was placed in the record to make this a fact question for the jury.

¶ 10. An accident description in Enter-gy’s accident adjuster’s report stated, “En-tergy driver made a left turn in front of other vehicle that had the right-of-way. We failed to yield right-of-way.” The motor vehicle report from the Indianola Police Department stated, “(Entergy) driver stated that he didn’t see (Bolden) and cut across in front of (Bolden) causing the collision.” Both of these reports were admitted into evidence. Strawbridge’s supervisor even testified that he agreed with the Entergy adjuster’s report concerning Strawbridge’s negligence.

¶ 11. The jury instructions left room for the jury to determine the proximate cause of the accident and apportion damages with respect to the amount of fault due to each party’s negligence. The trial court did not err in instructing the jury that Strawbridge was negligent as a matter of law and that, therefore, Entergy was negligent through Strawbridge’s actions.

II. WHETHER THE LOWER COURT ERRED IN NOT INSTRUCTING THE JURY CONCERNING A SPECIAL HAZARD.

¶ 12. At trial, Entergy requested that the court submit Instruction D-3 to the jury. This instruction stated that the “driver or operator of any motor vehicle is under a duty to decrease the speed of their vehicle [sic] when approaching and crossing an intersection, or when a special hazard exists with respect to pedestrians or other traffic.” The court refused Instruction D-3. However, the trial court accepted Entergy’s Instruction D-2, which stated that “[t]he operator of a motor vehicle has ... a duty to reduce their speed [sic] when approaching an intersection.” In its brief, Entergy states that two important elements exist in Instruction D-3 which are absent from Instruction D-2 and all other instructions submitted to the jury: (1) a motorist has the duty to reduce her speed when a special hazard .exists; and (2) a motorist’s duty to decrease speed when faced with a special hazard is a function of statute and failure to comply with the statute is negligence as a matter of law.

¶ 13. In support of its proposed instruction, Entergy cites Miss.Code Ann. § 63-3-505. This section of the Mississippi Code sets out the duty of a motorist with regard to special hazards:

[T]he driver or operator of any motor vehicle must decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic....

Miss.Code Ann. § 63-3-505 (Rev.1996) (emphasis added). We have had numerous opportunities to interpret this statute, but only one of our decisions focuses on the existence of a “special hazard” within the meaning of § 63-3-505.

¶ 14. In Bullock v. Sim Ramsey, Jr. Trucking Co., 207 So.2d 628, 629 (Miss.1968), the plaintiffs were driving their automobile southbound in the left-hand lane of Interstate 55. As they crossed a bridge on the highway, the plaintiffs approached the scene of an automobile accident. Id. The plaintiffs saw the emergency lights of a highway patrol car and a police car, which were both facing north. Id. In addition, the plaintiffs saw a police officer in the roadway flashing a red light. Id. Seeing the emergency vehicles and the police officer in the roadway, the plaintiffs drove their car into the right-hand lane and slowed down to a speed of only a few miles per hour. Id. Just as the plaintiffs’ car was parallel to one of the wrecked cars in the left-hand lane, the defendant approached the scene from behind the plaintiffs’ car. Id. Unable to stop his truck, the defendant attempted to drive his truck between the plaintiffs’ automobile and one of the wrecked cars obstructing the left-hand lane. Id. The resulting collision between the defendant’s truck and the plaintiffs’ automobile injured the plaintiffs. Id. The plaintiffs alleged that the defendant was driving his truck at an excessive rate of speed and that there were special hazards present at the time and place of the collision. Id. We held that the plaintiffs’ declarations were “sufficient to state a cause of action, and that cause was shown by the proof offered.” Id.

¶ 15. Here, the thrust of Entergy’s argument on this point is that a vehicle poses a special hazard within the meaning of Miss.Code Ann. § 63-3-505 where the driver of the vehicle is “looking for a street with which he may not be familiar, and who may be momentarily inattentive to other traffic.” The Legislature did not provide a definition of the phrase “special hazard” as it is used in § 63-3-505, and this Court has not delineated the precise scope of that language. However, we have never held, and the statute does not provide, that a momentarily inattentive driver is a special hazard for which another driver must reduce speed. Moreover, a comparison of the facts in this case to those presented in Bullock makes it readily apparent that the Entergy truck here was not a special hazard. In Bullock, there were emergency vehicles in the median and a police officer on the roadway. The emergency lights on the highway patrol and police cars were illuminated as the plaintiffs approached the accident scene. The police officer was flashing a red light in the center of the interstate. Moreover, there were disabled cars obstructing the left-hand lane of the interstate. Furthermore, at the time of the accident, the plaintiffs’ vehicle was traveling at a rate of only a few miles per hour due to the existing accident. The record here, however, is devoid of extreme facts like those present in Bullock — that is, in this case, there were no stalled or wrecked vehicles obstructing the roadway, no emergency vehicles, no emergency lights, etc. The facts here are clearly distinguishable from those presented in Bullock.

¶ 16. The evidence in this case does not support the requested instruction regarding special hazards. Since a party is not entitled to a jury instruction that is not supported by the evidence, Entergy was not entitled to have Instruction D-3 submitted to the jury, and the trial judge therefore did not err in refusing the proposed instruction.

III. WHETHER THE LOWER COURT ERRED IN REFUSING TO ISSUE A CONTRIBUTORY NEGLIGENCE INSTRUCTION.

¶ 17. Entergy argues that the trial court erred in refusing to grant a contributory negligence jury instruction. Entergy contends that Rule 49(c) of the Mississippi Rules of Civil Procedure authorizes a trial court to submit special interrogatories to the jury; therefore, En-tergy maintains that the trial court in this case erred when it refused to accept En-tergy’s special interrogatory, Instruction D-15. However, Entergy offers no authority to support this position.

¶ 18. We have consistently held that “an argument unsupported by cited authority need not be considered by the Court.” Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124, 1136 (Miss.2002). In addition, we have expressly held that “[i]t is the duty of an appellant to provide authority in support of an assignment of error.” Jones v. Howell, 827 So.2d 691, 702 (Miss.2002). Where an assertion of error is not supported by authority, that assertion is deemed abandoned. Id. This Court is therefore procedurally barred from considering unsupported assertions on appeal. Webb v. DeSoto County, 843 So.2d 682, 685 (Miss.2003).

¶ 19. Here, Entergy failed to meet its burden under our existing case law. In assigning as error the trial court’s failure to allow Instruction D-15, Entergy assumed the obligation of presenting to this Court some type of legal authority in support of that position. In its brief, Entergy simply declares that “such an instruction was clearly authorized. Rule 49(c), Miss. R. Civ. P.,” referring to the proposed contributory negligence instruction. While Entergy correctly cites the controlling rule regarding special interrogatories, it offers no authority in support of its assertion that the trial court erred in this case. Merely pointing out that our Rules of Civil Procedure authorize the submission of special interrogatories in no way supports the contention that the trial court erred in refusing to allow Instruction D-15. In sum, because Entergy cites no supporting authority for its assertion that the trial court erred when it refused the special interrogatory, Instruction D-15, we are procedurally barred from considering this issue on appeal.

IV. WHETHER THE LOWER COURT ERRED IN FAILING TO GRANT ENTERGY A RE-MITTITUR, OR, IN THE ALTERNATIVE, A NEW TRIAL ON THE ISSUE OF DAMAGES.

¶ 20. There are no fixed standards as to when an additur or remittitur is proper. Leach v. Leach, 597 So.2d 1295, 1297 (Miss.1992). Therefore, we proceed on a case-by-case basis in determining whether a jury award is excessive. Biloxi Elec. Co. v. Thorn, 264 So.2d 404, 405 (Miss.1972). We will not disturb a jury’s award of damages unless its size, in comparison to the actual amount of damage, shocks the conscience. City of Jackson v. Locklar, 431 So.2d 475, 481 (Miss.1983). The standard of review for the denial of a remittitur is abuse of discretion. Odom v. Roberts, 606 So.2d 114, 121 (Miss.1992). A remittitur is appropriate when either (1) the jury or trier of fact was influenced by bias, prejudice, or passion, or (2) the damages were contrary to the overwhelming weight of the evidence. Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 944 (Miss.1992). “The bias, prejudice or passion standard is purely a circumstantial standard[.]” Cade v. Walker, 771 So.2d 403, 407 (Miss.Ct.App.2000). “[EJvidence of corruption, passion, prejudice or bias on the part of the jury (if any) is an inference ... to be drawn from contrasting the amount of the verdict with the amount of the damages.” Rodgers, 611 So.2d at 944-45.

¶ 21. It is clear from the record that the most generous award of special damages would result in Bolden obtaining roughly $41,286.00. The total awarded in this case adds almost $500,000 to that sum for future pain and suffering. A remittitur is proper if the jury verdict evinces bias, passion or prejudice. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 485 (Miss.2002). See also J.O. Hooker & Sons, Inc. v. Roberts Cabinet Co., 683 So.2d 396 (Miss.1996); Terex Corp. v. Ingalls Shipbuilding, Inc., 671 So.2d 1316 (Miss.1996). A remittitur is appropriate if there is insufficient proof to support the award of damages. Cade, 771 So.2d at 406. The plaintiff has the burden of proving her damages by a preponderance of the evidence. TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1016 (Miss.1997). When the amount of the verdict evinces passion, prejudice or bias, it is the duty of this Court to order a remitti-tur. Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216, 225 (Miss.1969). We conclude that the scant testimony offered in support of damages for pain and suffering does not justify such a large award of damages for pain and suffering. The size of the award here, given the facts of the case at bar, “shocks the conscience” of this Court. As such, we hold that the trial court abused its discretion in failing to grant Entergy a remittitur reducing the verdict from $532,000 to $232,000.

V. WHETHER BOLDEN’S CLOSING ARGUMENT WAS PROPER.

¶ 22. Entergy claims that Bol-den’s closing arguments were wholly unsupported by facts in evidence and were designed to incite bias, passion, or prejudice on the part of the jury. This Court has continually held that counsel is afforded broad latitude in closing argument. Berry v. State, 703 So.2d 269, 281 (Miss.1997). This latitude is set out by the Court in Nelms & Blum Co. v. Fink, 159 Miss. 372, 382-383, 131 So. 817, 820 (1930). However, an issue is waived on appeal where there was no contemporaneous objection. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992). There was no objection made at trial by Entergy’s trial counsel, Mr. Perkins. However, “[i]n order to reverse under the plain error doctrine, the reviewing court must find both error and harm.” Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 727 (Miss.2001); Dobbins v. State, 766 So.2d 29, 31 (Miss.Ct.App.2000); Riggs v. State, 744 So.2d 365, 372 (Miss.Ct.App.1999). Since there was no objection made in this case, the error, if any, is harmless.

¶ 23. The Fifth Circuit has called “the use of the closing arguments to bring before the jury damaging facts not in evidence and never established a particularly indefensible tactic.” Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 284 (5th Cir.1975). The Fifth Circuit further held that “where placing material facts not in evidence before the jury in final argument substantially prejudices a party, reversal is required.” Id. at 285.

¶ 24. The statements that Enter-gy claims are in error here consist of the statement in closing that Bolden’s knee is more at risk for arthritis. However, in Dr. Williams’s testimony he stated that Bolden was more at risk to develop arthritis. Also, Entergy argues that mentioning Bol-den’s property damage to her car was error because this had been previously settled. This is harmless error. No amount was even mentioned regarding the value of the car.

¶ 25. Entergy further claims that it was error for Bolden’s counsel to assert that Bolden suffers with every step. However, the jury was instructed that what the attorneys said was not evidence. The jurors had heard all of the evidence, including doctors’ testimony, and could decipher that evidence.

¶ 26. Under the plain error doctrine, this is not clear error and certainly not harmful.

CONCLUSION

¶ 27. For these reasons, we conclude that only Entergy’s assignment of error regarding damages is well taken. We remit the judgment from $532,000 to $232,000, and affirm the judgment as remitted to $232,000, provided this remitted judgment is accepted by Brenda Bolden within ten (10) days of the final judgment of this Court. Otherwise, the judgment is vacated, a new trial confined to the issue of damages is granted, and the case is remanded for such. Should Bolden accept the remittitur, the principal sum of $232,000 will be payable together with interest at the legal rate from the date of the original judgment. On all other issues, we affirm the trial court.

¶ 28. AFFIRMED AS TO LIABILITY; JUDGMENT REMITTED FROM $532,000 TO $232,000, AND AFFIRMED AS REMITTED, CONDITIONED ON ACCEPTANCE BY BRENDA BOLDEN WITHIN 10 DAYS OF THE FINAL JUDGMENT OF THIS COURT. OTHERWISE, THE JUDGMENT IS VACATED, AND THE CASE IS REMANDED FOR A NEW TRIAL AS TO DAMAGES ONLY.

PITTMAN, C.J., WALLER, COBB AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J. DIAZ, J., NOT PARTICIPATING.