Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

For Mississippi native son and attorney Philip Thomas, blogging about law, politics and topical issues in the state extends a conversation he’s been... More

December Mississippi Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the verdicts detailed in the December issue of the Mississippi Jury Verdict Reporter:

  • $10.5 million verdict- Coahoma County products liability trial mentioned here (9/25/14);
  • $125,000 verdict- Aberdeen federal court breach of contract case mentioned here (11/4/14);
  • $34,775 verdict/ but 48% fault to plaintiff- DeSoto County car wreck case (7/16/14);
  • $30,000 verdict- Holmes County vehicle vs. cotton picker collision case (10/1/14);
  •  $25,000 counterclaim verdict- Hinds County breach of contract case mentioned here (9/27/14);
  • $10,000 verdict- Walthall County car wreck case (11/12/14); and
  • defense verdict- Jackson federal court trip-and-fall premises liability case (11/4/14).
My Take: Quiet month other than the big products verdict. As always, if you want more details of these verdicts you can subscribe to the Miss. Jury Verdict Reporter.

Duck, Duck………

Posted in Mississippi Supreme Court

Goose!!!!

Get it? It’s a goose case.

The opening line from Miss. Supreme Court Justice Kitchens’ majority opinion says it all:

Janet Olier was attacked and chased by a domestic goose in Donna Bailey’s yard. As she attempted to flee, she fell and broke her arm. Olier sued Bailey in the County Courty of Jackson Count under a theory of premises liability and, alternatively, under the dangerous-propensity rule. The trial court granted summary judgment….. 

Here is the whole opinion.

The plaintiff sued for $200,000 in County Court.

Here are some gems from the majority opinion, with my comments in brackets:

there was no evidence that the particular goose that bit Olier ever had exhibited dangerous propensities… [she sure was a good goose];

Bailey…has a ‘Beware-Attack Geese’ sign in her yard;

Bailey assured Olier that the geese would not bite if Bailey was with her and offered Olier a bamboo pole with which to fend off the birds; [my geese are watch-geese];

At this point, a goose reached out and nipped her in the ‘crotch area.’ Olier turned to flee, tripped over one of the buckets lining the patio, and fell, breaking her arm.

Bailey did not breach her duty of care toward Olier as a landowner, but as an animal owner.

Bailey’s main argument is that the particular goose which bit Olier never exhibited a dangerous propensity in the past, i.e., it never had bitten or chased anyone before. Although an adult goose of the same gaggle admittedly had run a police officer off the property previously, that goose was locked up when the attack upon Olier occured. Bailey argues that, because there was no evidence that the particular goose in question had exhibited a dangerous propensity, she therefore had no actual or constructive knowledge of a dangerous propensity on its part, and therefore she cannot be held liable for its actions. [this reminds me of what that grizzly bear guy used to say. You know the guy? Yea, the one eaten by grizzly bears.];

Was Bailey on notice of the dangerous propensity of her gaggle of geese as a whole?

This Court has never confronted the issue of an aggressive bird under the dangerous-propensity rule, and, it seems few other jurisdictions have either. [big surprise there].

Bailey arguably understood that all of her geese were potentially aggressive and acted accordingly;

The Dickinson dissent would send the plaintiff on a wild-goose chase to find and identify a single offending fowl and determine its particular history of dangerous propensity [pardon the pun];

A different older goose had…chased a police officer out of the yard; [so cops shoot black men, but run from geese like crying pre-schoolers?]

Where, as here, the goose is just being a goose, and being a goose included biting and chasing people….[in my book, being a person includes shooting killer geese];

We fear not the wolf, but the pack; not the bee, but the swarm; not the buffalo, but the herd. Janet Olier feared not the goose, but the gaggle.

By a 6-3 vote, the Court reverses the grant of summary judgment and remands the case to County Court for a trial.

My Take:

First Sophie the wiener dog, then the Wilkinson County alligators, and now the gaggle of geese in Jackson County. Mississippi is a hotbed of animal litigation.

As far as the Supreme Court goes, the winner is Justice Lamar, who concurred in part and in result without separate written opinion.

That’s exactly how I would have voted. Send it back down for a trial, but don’t get suckered into the gaggle of geese arguments offered by either side.  

Here’s my reasoning:

  • anyone stupid enough to keep a gaggle of marauding attack geese at their house is at least as stupid as…..
  • anyone stupid enough to go look at blooming banana plants at the home of someone who keeps a gaggle of geese at their house;
  • but the insurance company who insures a homeowner with a gaggle of geese at the house is dumber than both and deserves to have to pay something if, for no other reason, winning the stupid contest.

Juries were designed to decide hopeless fact questions like this: which of the two litigants was the dumbest?  

I sure hope that somewhere along the way, a judge ordered mediation. It sounds like the settlement value of this case was in the ballpark of $50,000. Maybe even less. Based on these super-weird facts, it could have gone either way on the facts and the law.

I could see a case like this making it to the Supreme Court if the value of the case was much bigger. But this was a relatively small case that either side could lose. Cases like that beg for a settlement.

I can think of several current or former trial court judges who would have gotten the parties into their chambers and twisted arms until they settled. If you ask what kind of judge would do that, my response is that I can think of two who are either current or former judges on the Fifth Circuit Court of Appeals.

Now, we’ve got a 36-page Supreme Court decision that sends the litigants back to the starting gate. Good grief!

Jury Verdict Leaves Rappers Singing the Blues

Posted in Hinds County Circuit Court, Verdicts in Mississippi

The Clarion-Ledger reported last week that former NBA and USM basketball star Clarence Weatherspoon has won a Hinds County lawsuit against two rap artists. From the article:

Donald Sharp, a.k.a. “Cadillac Don,” and Tiyon Rogers, a/k/a “J Money;” filed the lawsuit in 2011 against Weatherspoon and his company, 3535 Entertainment LLC, claiming Weatherspoon owed the clients music royalties and unspecified compensation and damages related to sales of the 2006 album Look at Me and its hit single, “Peanut Butter & Jelly.”…

After a week-long trial in late September of this year, a Hinds County Circuit Court jury returned a verdict in favor of Weatherspoon and ordered Rogers and Sharp to pay him $25,000 for expenses incurred on the project.

Chad Hammons with Jones Walker in Jackson represented Weatherspoon.

My Take: 

I don’t listen to much rap music, so I have no idea how this verdict might impact the hip-hop scene.

But it’s got to be big, right? I mean, who doesn’t love peanut butter and jelly?

Update (12/10/14):

Ed Blackmon from Canton and Kaytie Pickett with Jones Walker assisted with the defense. Wil Colum and Scott Colom from Columbus represented the rappers.

Finally, here is what it was all about – the video for PB&J [warning: explicit language]: 

Is Choosing a Law School Now Like Buying a Used Car?

Posted in Law School

The New York Times reported this week that law schools are desperate for students. From the article:

Summer was waning and students were already packing for the fall semester, but Prof. Daniel B. Rodriguez, dean of the Northwestern University School of Law, was still fielding phone calls from incoming students seeking to bargain down the tuition at the elite school. 

“It’s insane,” Professor Rodriguez said. “We’re in hand-to-hand combat with other schools.”…..

“Students are voting with their feet, and demanding a better deal,” said Professor Rodriguez of Northwestern, who is also president of the Association of American Law Schools. “And they are willing to spend less,” he said, meaning they are seeking the best deal.

My Take:

Outstanding. Snobby law schools that used to have students kicking down the doors now have to beg. 

“Law school black Friday special: we’ll discount your tuition by 10%, give you $500 cash back and you pay no interest for 48 months.”

So what’s a prospective student to do? Negotiate. Make the school a low ball offer and see what happens. They’re desperate.

A good rule of thumb in today’s legal economy climate is to avoid going into debt to attend law school. It’s just not worth the risk that you will be left jobless and owing a thousand dollars or more a month in non-dischargeable law school debt.

And you probably would not like being a lawyer even if you found a job.

Mississippi Wins By Losing Gay Marriage Case

Posted in Politics in Mississippi, U.S. District Courts in Mississippi

One day Mississippi’s loss last week in the fight over gay marriage will go down in history as a big win for the state. That’s right. Mississippi won by losing.

In a state with a sad history of being on the wrong side of civil rights issues, U.S. District Judge Carlton Reeves’ ruling against the state’s ban on gay marriage was a win for Mississippi. Even if the losing party in the case was the State of Mississippi.

You might think that after that little deal called slavery, or the 100 years of white supremacy that followed slavery, Mississippi would realize that its first reaction on civil rights issues is wrong. Incorrect. Instead, Mississippi double-downs on bigotry.

And this is a civil rights issue.

Mississippi wants to honor its traditions by being last on every important civil rights issue for all time.

The gay marriage issue will be like slavery and racial civil rights. One day in the not too distant future, Mississippi will find itself embarrassed about its stance on the issue.

You might also think there is no relation between Mississippi’s resistance to civil rights and its consistent bottom ranking in education and economic development. But you’d probably be wrong.

Maybe it’s just a coincidence that Silicon Valley is located in a region that was one of the first to recognize gay rights. Then again, maybe it’s not.

It’s hard to imagine a progressive company like Google, Apple or Facebook establishing a meaningful presence in a state that consistently embarrasses itself on civil rights issues. Mississippi needs to get in line with the 35 other states that now recognize gay marriage. It’s the right thing to do in a country that prides itself on individual freedom and liberty.

So by losing its fight against gay marriage, Mississippi wins. One day people will say, “thank God Judge Reeves wasn’t a nut like our political leaders.” He saved us from our own bad judgment.

On the plus side, I’m not sure how many Mississippians are really into this whole fighting gay marriage thing. Were there any protests in response to Judge Reeves’ ruling?

Or do most people feel like the portrayal of the issue depicted in this hilarious 2013 Daily Show skit?

Jones County Voters Elect New Circuit Judge

Posted in Politics in Mississippi

For the first time in nearly 30 years, someone other that Judge Billy Joe Landrum will preside over the Jones County Circuit Court in January. Laurel attorney Dal Williamson defeated Judge Landrum in Tuesday’s runoff.

Not much media coverage of the runoff. I couldn’t find anything other that the WDAM story linked above, which provides little information.

Rare Circuit Court Judge Runoff Today

Posted in Politics in Mississippi

Today Jones County voters will decide a rare runoff in a Circuit Court Judge election. The runoff is between longtime incumbent Judge Billy Joe Landrum and Laurel attorney Dal Williamson. Things have gotten a bit heated in Laurel.

From the WDAM article on the election:

 “My opponent has resorted to negative ads, untruth, that’s very disappointing,” said candidate Dal Williamson. “When I pick up the newspaper and I read an ad that says no circuit court experience, zero jury trials.” 

Williamson said it concerns him when he sees statements about him in full page ads. He said an ad that states he has no circuit or county court experience is false. 

“He has never tried in my court since I’ve been on the bench, ever, period,” said incumbent Judge Billy Joe Landrum. 

Williamson said he’s handled at least 16 cases in the Jones County Circuit Court, which are all signed by Judge Landrum and go back to at least 1993.

My Take: 

How many people are going to get out and vote when the race on the ballot is a runoff for a judicial position? My guess is not many. That must favor whoever has the most hardcore supporters.

About the first time that I ever appeared in court when I was about 12 fresh out of law school was in Judge Landrum’s courtroom. I don’t remember what the case was about. But notorious lawyer Travis Buckley filed some sort of motion to strike our written discovery because it contained sub-parts. Seriously.

Seeing where this was headed, my supervising partner at Wise Carter–the one with subparts in his form discovery–sent me to the slaughter argue the motion.

Everyone in the courtroom expected the kid lawyer from Jackson to lose the motion. And he did.

Judge Landrum was kind of gruff in the hearing. But 20 years and many hearings later, it’s memorable only because it was my first court appearance, Buckley was on the other side and it was about the stupidest motion I’ve ever seen filed.

Of course, I’ve never used sub-parts in written discovery since then.

PERS Still Massively Underfunded Despite Stock Market Hitting All-Time Highs

Posted in Mississippi Public Employer's Retirement System (PERS)

Steve Wilson at Mississippi Watchdog recently wrote here about how Mississippi’s pension system ranks nationally. From the article:

A new report by nonprofit State Budget Solutions says Mississippi’s Public Employees’ Retirement System of Mississippi is carrying $56 billion in unfunded liabilities, worst in the nation — now at 53 percent of the gross state product in 2013. It covers only 27 percent of the state’s liabilities, which is fifth-worst.

The amount of unfunded liability compared to gross state product is an attempt to make an apples to apples type comparison, since population differences make ranking total unfunded liability not particularly illuminating. 

Mississippi’s fund enjoyed stellar rates of return of 18% in 2014 and 13.4% in 2013. That’s good news.

But to get there, the fund had to heavily invest in stocks as opposed to bond investments that typically support conservative investments programs.

There are people who argue that the world economy is in a liquidity bubble as a result of QE type programs. These people predict that at some point, governments will have to stop pumping money into the economy and that when that happens, the stock market is going to crash again.

Were that to happen, Mississippi’s PERS is going to get massacred if it remains so heavily invested in stocks. And considering the fact that PERS is still way underfunded despite record returns, expect the system to keep chasing high returns in the stock market.

The stock market has lost 50% of its value twice in the last 15 years. Now it’s at all time highs. Yet for the average Joe (like me), the general economy still feels pretty bad. There is a disconnect there that makes many people fearful of the stock market at its current valuations.

What would happen to PERS if there was another 50% drop in the stock market in the next 5 years? The whole thing should be scary for lawmakers, taxpayers and PERS participants.

But don’t expect this to come up when the legislature convenes in January. No elected official wants to be the bearer of bad news when it comes to PERS.

November Mississippi Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the verdicts detailed in the November issue of the Mississippi Jury Verdict Reporter:

  • $4,568,116 verdict- Hinds County products liability case discussed here (10/7/14);
  • $484,481 verdict- Harrison County medical malpractice case (9/25/14);
  • $65,000 verdict- Aberdeen federal court employment retaliation case discussed here (9/20/14);
  • plaintiff verdict- Oxford federal court insurance coverage dispute (9/26/14);
  • defense verdict- DeSoto County medical malpractice case (9/9/14);
  • defense verdict- Madison County pedestrian collision case (9/9/14);
  • defense verdict- Jackson federal court nursing home case discussed here (10/23/14); and
  • defense verdict- Panola County alienation of affection case discussed here (10/17/14).

My Take:

At 2-2, it was a bad month for doctors. First, the retired doctor plaintiff lost the pedestrian collision case resulting from his walking track collision with another patron at The Club.

This was a landmark verdict. It’s not often that walkers are zoned out enough to actually collide. Even rarer do injuries result. But then a big circuit court trial? John Grisham must be salivating to work this trial into one of his books.

Later in September, a doctor lost a medical malpractice trial in Harrison County of all places. 

Doctors evened their record by winning a DeSoto County medical malpractice trial and a Panola County alienation of affection trial.

Winning half your games will get you fired as the football coach at most SEC schools. The same probably applies for  representing doctors in Mississippi in 2014.

U.S. Supreme Court Reverses 5th Circuit in a Jim Waide §1983 Action

Posted in 5th Circuit Court of Appeals, U.S. Supreme Court

On Monday the U.S. Supreme Court reversed a 5th Circuit decision that affirmed the District Court’s grant of summary judgment in Johnson v. City of Shelby. Here is the Court’s per curiam Opinion.

The plaintiffs worked as police officers for the City of Shelby. They alleged that they were fired for refusing to ignore an alderman’s criminal activity.

The District Court dismissed the Complaint because plaintiffs failed to specifically invoke 42 U.S.C. §1983 in their complaint. The Fifth Circuit affirmed. 

In reversing the Fifth Circuit, the Court stated:

federal pleading rules call for a ‘short and plain statement of the claim showing that the pleader is entitled to relief’….they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.

If you’re like me, you are wondering about Twombly and Iqbal. But the Court explained that they:

…are not in point, for they concern the factual allegations of a complaint must contain to survive a motion to dismiss. A plaintiff, they instruct, must plead facts sufficient to show that her claim has substantive plausibility. Petitioners’ complaint was not deficient in that regard….Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. 

It appears that the Court granted cert and reversed all in one shot. That’s got to be a great feeling given the long odds on the Court granting cert in a case.

Jim Waide of Tupelo represented the plaintiffs.

Gary Friedman, William Harvey and LaToya Merritt with Phelps Dunbar in Jackson represented the City of Shelby.