There are reports of a $7.5 million verdict last week in Coahoma County. The case was a wrongful death case involving the death of a 2–year old in an apartment fire.
Ralph Chapman and Brennan Chapman of Clarksdale represented the plaintiff.
I will post more information on this verdict if I get any. I'm sure that an upcoming issue of the Miss. Jury Verdict Reporters will have a full report.
The Mississippi Supreme Court affirmed a $4 million Hinds County premises liability verdict today. Here is the opinion. This was the 2009 Ashley Ogden In Town Suites case that I discussed here.
I will post more on this decision later.
Week before last a Hinds County jury awarded Amy Smith a little over $112,000 in her lawsuit against Kroger. Here is the Clarion-Ledger article on the verdict.
Smith suffered injuries in a 2010 assault and robbery in the parking lot of the Kroger on I-55 in Jackson. Jackson attorney Ashley Ogden represented Smith. The jury apportioned 30% of the fault to Smith and 70% to Kroger.
It appears that the 30% fault apportionment to the plaintiff will reduce her recovery to less than $80,000. It's a little frustrating to see the Ledger write a big article on a jury verdict and not clarify that issue.
As to the damages awarded:
Smith suffered injuries, including to her knee and wrist, and post-traumatic disorder, Ogden said. The jury awarded her $12,189.19 for past medical expenses, $25,000 for future expenses and $75,000 for pain, suffering and mental anguish.
Ogden believes lawsuits against this Kroger store are making the premises safer for customers:
“We just want Kroger to fix the problem in the parking lot so that the women who are shopping there don't have to be afraid of having their purse snatched or being assaulted," Ogden said.
As president of a local anticrime fighting group, Ogden said, "what we are trying to do is make these businesses aware of their responsibility in participating with us in solving the crime problems."
Judge Bill Gowan was the trial judge. I don't know the identity of the defense lawyer.
There were also reports circulating last week of a verdict of over $2 million in Pearl River County. That is the extent of the information that I have been able to gather about that case. That would be some verdict for Pearl River County.
The Clarion-Ledger reported this morning on a $23 million Hinds County jury verdict yesterday against Marriott and the City of Jackson. According to the article:
The key question the jury had to decide was whether West was acting as a police officer or was he acting as a security officer for Marriott when he shot Archey.
Archey was seen walking on the parking garage ramp at the Marriott. West lost sight of him after he ran but eventually saw him run across the street and chased him off Marriott's premises. He eventually caught up with [ plaintiff Dale] Archey near the Robert E. Lee Building parking lot.
Deputy City Attorney James Anderson Jr. said West was working and being paid by Marriott when the shooting occurred. But Marriott's attorney, Brett Bollinger, said West wasn't acting as a security officer for the hotel once he left the premises to chase Archey.
****
West testified he was trying to handcuff Archey when Archey made a quick motion, leading him to think Archey may have been reaching for a knife or screwdriver, Bollinger said.
"Dale Archey made a sudden, quick move and Officer West had only a moment to react," Bollinger said. "He feared for his life."
No weapon was located.
West suspected Archey of breaking into cars in the Marriott garage. Plaintiff argued that Archey was homeless and planned to sleep in the garage.
The plaintiff asked for $16 million. The jury awarded $23 million. The jury apportioned 70% fault to Marriott and 30% to the City. That apportionment should result in the City owing zero (according to the City). The City will appeal anyway and by law, does not have to post an appeal bond.
Issues on appeal will include the following:
It's my understanding that some of the evidentiary issues overlapped with the issues in the Rebelwood Apartments verdict discussed here.
Judge Winston Kidd was the trial judge. Dennis Sweet and Rick Patt of Jackson represented the plaintiff. Brett Bollinger of the Louisiana firm of Allen & Gooch represented Marriott. Deputy City Attorney James Anderson Jr. represented the City of Jackson.
It's well known that Dennis Sweet loves to draw out-of-state defense lawyers. The argument is that for whatever reason, out-of-state lawyers have trouble connecting with Mississippi juries and tend to exacerbate verdicts. Proponents of this theory can point to many massive verdicts with out-of-state defense lawyers and argue that the verdicts would have been less with Mississippi defense counsel.
It's also theorized that because of Mississippi's history with bet-the-company litigation, Mississippi defense lawyers tend to be more skilled than lawyers from other states who are less experienced in major litigation.
On Thursday the Mississippi Supreme Court ruled in Doe v. Jameson Inn that people who enter a business premises to smoke pot are licensees rather than invitees. Here is the Court's opinion.
The case involved the rape of a thirteen year old at the Jameson Inn in Pearl. The girl left the adjacent Tinseltown movie theater with a group of boys to smoke pot in the boys' room at the Jameson Inn, which was across the street. One of the boys raped the girl in the room.
The circuit court of Rankin County granted the hotel's motion for summary judgment after finding that the girl's status on the property was a licensee. The Supreme Court affirmed.
Property owners owe licensees a duty to refrain from willfully or wantonly injuring persons on their property. The court defined licensee as one who enters property with the owner's permission for the person's own pleasure or convenience.
An invitee is a person who enters property at the owner's invitation for their mutual benefit. Property owners owe invitees a duty to warn the person about dangerous conditions that the owner has express or constructive knowledge of.
Justice Pierce wrote the Court's 6–2 opinion. Justice Kitchens dissented in an opinion joined by Justice Chandler. The dissent argued that there was a fact question about the girl's reason for entering the premises, since the girl gave contradictory statements about the events.
My Take:
The case facts suggest that it would have been very difficult to get a plaintiff's verdict in this case, regardless of the status of the girl.
This is an important decision for pot-heads. The take-home is that druggies need to rent their own room to smoke weed in—that way they will be an invitee. If they go to a friend's room to smoke weed, they are a licensee. If another guest attacks them in that situation, they will not be able to recover. Dude, that's harsh.
Last week I posted about the Miss. S. Court's reversal of two jury verdicts in premises liability cases. Here are my thoughts on the decisions.
Lymas v. Double Quick
This case was famous not for the underlying verdict, but because the plaintiff challenged the constitutionality of the damages caps on non-economic damages. The Court reversed and rendered on liability, however, and did not mention the caps in the opinion. Justice Kitchens wrote the opinion for the unanimous majority.
Double Quick hinged on a Daubert analysis of two expert witnesses. The plaintiff had two expert witnesses on security issues, but neither opined on proximate cause other than conclusory statements in response to leading questions. Neither expert explained how the alleged failure to take steps to protect the decedent proximately caused the shooting. As a result, the Court found the testimony to be not based on sufficient facts or data and improperly speculative.
There is something to like in the decision for both plaintiffs and defendants. The Court did not change the underlying law or uphold the damages caps, which plaintiffs and their lawyers like. On the other hand, the Court did not strike the caps and gave defendants and their lawyers a lot to argue on causation issues in premises liability cases involving criminal acts by third parties.
Rebelwood Apartments
This decision was in the news over the weekend because of the expert testimony of Jackson Deputy Police Chief Tyrone Lewis. The Clarion-Ledger reported:
JPD Deputy Police Chief Tyrone Lewis, testifying for English, said, "There is no documentation, no written statements or anybody to come forward to say that it did not happen at Rebelwood."
Cleveland Ellis III told police he accidentally killed Coleman, his friend, when his gun went off at Woodbine Terrace apartments, where he lived. He said he drove her body to Rebelwood and left her there.
That evidence was not allowed at trial, a decision by Circuit Judge Winston Kidd that the Supreme Court found erroneous.
The disputed evidence consisted of statements contained in police reports. Justice Randolph's majority opinion concluded that the trial court judge (Judge Winston Kidd) should have found the police reports to be sufficiently reliable and admitted the reports (including the statements) into evidence. In my opinion, the Court made the right ruling, but for the wrong reason.
I agree with Justice Chandler's concurrence. Judge Chandler opined that the statements in the police reports were hearsay within hearsay and therefore, should have been excluded. But he agreed that the defendant should have been able to impeach Chief Lewis with the statements in the reports. Chief Lewis' testimony on direct opened the door to him being impeached with the reports.
I am afraid that the majority's opinion will make a mess of the law regarding the admissibility of statements within police reports.
The majority also concluded that the trial judge should not have allowed plaintiff's economist expert (Dr. Glenda Glover) to base her loss of future earnings analysis on national averages because there was evidence that the decedent earned less than the national average. All justices concurred except for Justice Kitchens.
I thought that the majority got it right on this issue. Sometimes proving lost earnings might require the use of a national average because there is no other evidence to base an opinion on in a particular case. But the national average should not be used as a damages floor when there is evidence that the decedent earned less than the national average. Just as someone who earned more than the national average should be allowed to recover more for loss of future earnings, someone who earned less should recover less.
Finally, the majority found that race was improperly interjected into the economist's testimony by referring to the “Mississippi Black Effect.” I agree with the majority that this was improper. Even if this was not intentional, this sounds like the playing of a race card during trial, which is a big no-no.
Saturday Update: The title is a poor choice of words. People are interpreting it as meaning that the decisions were bad for plaintiffs in other cases. That is not what I meant.
I meant that the decisions were bad for the plaintiffs in these cases. I did not mean that the decisions were anti-plaintiff or made changes in the law that are bad for plaintiffs in other cases.
Plaintiff's lost two substantial verdicts today at the Miss. S. Ct.
The much anticipated Lymas v. Double Quick case involving a challenge to Mississippi's damages caps was reversed and rendered on liability. Here is the opinion. Here is the early report by Scoop Bardwell.
Meanwhile, Jackson attorney Ashley Ogden had a $3 million Hinds County premises liability verdict reversed and remanded. Here is the opinion.
I will have commentary on these major decisions in a later post.
Update: I've now read the opinions and judge them [pardon the pun] to be well written and very interesting. Neither case makes substantive changes to premises liability law.
Tom Freeland (NMC) invented the wheel on the analysis of the Double Quick case. Here is his post about the decision, which links his prior posts that correctly predicted that the plaintiff would lose on liability and that the Court would not reach the caps issue.
Here is my report on the oral argument in Double Quick, where I noted that the Justices focused on liability issues. Freeland predicted that the case would fall on liability well before the oral argument.
The Ogden case (Rebelwood Apartments) wasn't even decided on premises liability concepts. It went down based on evidentiary and Daubert issues.
I hope to discuss each case individually next week.
Finally, an honest to goodness jury verdict report is coming to Mississippi. I have seen the first issue and will link it next week. It should be a great resource for Mississippi lawyers and will give us much more systematic reporting on verdicts than the current haphazard reporting in newspapers, blogs and courthouse rumor mills.
Ashley Odgen has done it again. On Thursday a Hinds County jury awarded $1.5 million to Ogden's client who injured his hip in a fall at Bailey Lumber & Supply in Jackson.
Michael Baxter and Mason Montgomery of Copeland Cook defended the case. The trial judge was Judge Malcolm Harrison.
For a complete description of the case as provided by plaintiff's counsel, click here.
For information on other recent verdicts obtained by Ogden, click here.
There was a jury verdict of $900,000 last week in the Hinds County Circuit Court in a premises liability case. The rumor around town this week has been that the verdict was for $2 million, but my investigation revealed a verdict of $900,000.
Judge Malcolm Harrison was the trial judge.
The plaintiffs were victims of armed robbery at the Crossings Apartment on Ridgewood Road in Jackson. The jury's verdict was for one of the two victims. Judge Harrison will determine the damages for the other plaintiff, but I do not know why.
I do not know what the injuries/ damages were. There were no punitive damages in the case.
Precious Martin of Jackson represented the plaintiff. James Holland from Page Kruger in Flowood represented the defendant.
One interesting tidbit I'm hearing is that the spouse of a prominent Jackson defense attorney was on the jury.
A Hinds County Circuit Court jury returned a $3.6 million verdict Friday in a premises liability case. Judge Winston Kidd was the trial judge.
The Plaintiffs were Benny Ohazurike, Esther Ohazurike, and Darlington Ohazurike (6 year old son). Plaintiff's counsel were Ashley Ogden and former Chief Justice Jim Smith.
The Defendants were Parham Pointe South (owner), Ballard Realty Company (management company), and K. Wayne Rice & Associates (owner). Defense counsel were: (1) Jamie Travis with Page Kruger & Holland in Flowood (attorney for Parham Pointe South and K. Wayne Rice & Associates); and (2) Benny “Mac” May with Dunbar Monroe in Ridgeland (attorney for Ballard Realty and Crystal Bridges-Corcoran).
Plaintiff Benny Ohazurike is a creator and designer of board games. In 2001 Benny and his wife Esther moved into Parham Apartments on
In mid 2007 a pipe in the Plaintiffs’ bathroom began to leak. For at least 6 weeks Benny begged the manager and the maintenance staff to fix the leak. They told Benny they would fix the leak and never did. In May 2007 Benny and Esther went to the grocery store. When the family came back to their apartment they discovered the leaking pipe in the bathroom had burst and flooded the majority of the apartment. Benny had been keeping blueprints for his board games on the floor in the apartment bedroom while he worked on them. Benny also had blueprints and partial game designs stored in the closet. The flooding from the burst pipe destroying 19 of Benny’s game designs and blueprints.
Management did not stop the water spewing from the pipe until several hours after it was discovered and reported by the Plaintiff. After the flood, management continuously refused to replace the carpet in the apartment, make any other repairs or move the family into a vacant apartment. Because of the flood the carpet began to mildew and mold spread throughout the apartment. Plaintiff’s 3 year old son,
At trial several former employees of Parham testified that management and the owners intentionally ignored the Plaintiff’s requests for repairs and maintenance and threw away his maintenance requests. The employees testified that Benny annoyed management because he asked for repairs and because he acted as an informal security guard and maintenance man and would constantly complain about the lack of maintenance on the property, the crime on the property, and employees not doing their jobs.
There was testimony that management denied maintenance to the Plaintiffs in order to force them out and rent the apartment for a higher price. There was testimony that certain members of management and maintenance would randomly turn off the air conditioner to the Plaintiffs’ apartment to force them to move. One employee, a housekeeper, testified that management forced her to sign false criminal affidavits against Benny alleging that he had threatened her with a gun. The employee testified that when she refused to go to court and pursue the false charges, management fired her.
The defendants’ witnesses who were all former managers and regional supervisors testified that the plaintiffs were several months behind on rent and that no flood occurred. The defendants testified that just because the rent was late they could not deny maintenance service to tenants. The defense argued that the value of the plaintiffs’ injuries was zero and that the plaintiffs’ damaged games had no value. The plaintiff countered by showing a pattern at the property of no one being able to determine who owed rent because of the problems with managers taking cash and money orders and not applying the rent to the correct tenants. The plaintiff also showed that while he had fallen behind on rent in the past he had always paid up making his rent current and paid.
The Verdict
The jury awarded the Plaintiffs the following amounts:
Benny - $2,502,208.00, Ester- $500,253.00,
The total amount awarded to the Plaintiffs was $3,603,712.00.
The entire Mississippi Supreme Court heard oral arguments on Tuesday before a mostly full courtroom in the Double Quick v. Lymas case. Here is the Clarion-Ledger's article on the hearing. The audience was not disappointed as the arguments were very interesting.
Case Background
The case is a premises liability case out of Humphrey County involving the shooting of a patron by a third-person in the parking lot of a convenience store in Belzoni. There was a large jury verdict that the trial court reduced due to the legislative cap on non-economic damages. Both sides appealed. The defendant appealed on liability and the plaintiff challenged the constitutionality of the caps.
The Court Focused on Liability Issues
The justices appeared most interested in the liability arguments. Defense counsel John Henegan argued for thirty minutes and argued that the verdict should be reversed and rendered based on lack of foreseeability and proximate cause. Plaintiff counsel Joe Tatum then argued for thirty plus minutes and did not get to the cap issue until his time had technically expired. Henegan then argued caps for close to thirty minutes on rebuttal. It looked liked the lawyers were more eager to get into the caps than the justices.
It appeared that five or more justices were skeptical that the plaintiff established that the shooting was foreseeable or that any negligence by Double Quick proximately caused the shooting. For this reason, the case could be reversed and rendered without ever reaching the cap issue.
Justices Were Skeptical of Legislative Caps Arguments
On the issue of the caps, Justice Pierce pointed out that the plaintiff did not raise on appeal the argument that the caps violate the equal protection clause. It appeared that Justice Pierce thought that this was the best argument challenging the caps. Several justices appeared skeptical of the constitutionality of the caps in their questioning of counsel.
Henegan argued that not only are the caps constitutional, but that the legislature can eliminate the right to recover “these types of damages” entirely. I thought he lost the justices with that one. The justices quickly realized that if the legislature can abolish some types of damages, then it can abolish the right to recover all damages. And it did not look like they were buying it.
Henegan was steadfast on this argument, citing the workers' comp system and the fact that the legislature abolished hedonic damages as a separate category of damages. But it's my understanding that hedonic damages are recoverable, they are just within the other non-economic damages. In addition, Justice Pierce pointed out that the workers' comp system is different, since employees do not have to prove negligence in return for the limits on recovery.
In any event, the right to sue for damages in civil court is older than this country. If the right were abolished, people would revert to taking the law into their own hands. Violence and chaos would be common. The best thing about our civil justice system is that it provides an orderly mechanism for resolving disputes. Although the system is imperfect, it beats the hell out of the alternative.
Henegan argued that the right to recover can be eliminated by the state legislature. I think he is dead wrong.
One last point on this issue. I find it difficult to believe that companies that make money from selling liability insurance advocate a system where there can be no tort liability. Liability insurance carriers would be out of business. So while insurance companies like caps that limit exposure, they do not want to eliminate exposure. It would eliminate their business.
There are reports of Ashley Ogden obtaining another large verdict in a premises case, this one in federal court in Jackson. Here is the Complaint in Durr v. MBS Construction.
The Plaintiff was shopping at the Target Store in Jackson in 2004 when a wall fell on her, causing severe injuries. MBS was performing construction work in the store. Target intervened in the case. I am not sure who the verdict was against, since the verdict has not yet been posted on Pacer. I believe that the filing part of Pacer is down for the weekend, so it will probably be filed Monday. There is also no Pre-Trial Order on Pacer, so information about the parties and issues at trial is scarce.
The Plaintiff had a back injury that required surgery and had approximately $180,000 in medicals.
Former Chief Justice Jim Smith and Wendy Yaun [correction: Yuan] tried the case with Ogden. Defense counsel were Greg Spyridon and other attorneys from his New Orleans firm and John Corlew of Jackson. Corlew filed his entry of appearance three days before trial, which I am sure limited his ability to have a meaningful influence on the outcome.
Judge Tom Lee was the trial judge.
I hope to have more on this verdict next week.
A Hinds County jury returned a $1 million verdict this week for a plaintiff who was beaten by a Wackenhut security guard in a McDonald’s restaurant located on Highway 80 in Jackson after a dispute with the manager over a cup of ice.
The plaintiff was allegedly a homeless man who was intoxicated at the time of the incident. He claimed to be a frequent customer of the McDonald’s. The plaintiff was arguing with the manager when the Wackenhut guard used force to remove plaintiff from the store. Plaintiff claimed to suffer a broken shoulder and other injuries.
The jury was shown a video of the attack. The Wackenhut guard shoved the plaintiff out the doors of the store, causing the plaintiff to fall and hit his head. The guard then followed the plaintiff out and stomped on the plaintiff, causing his shoulder to shatter.
The defense argued that the use of force was justified and that plaintiff had a knife, but several witnesses testified that they did not see the plaintiff with a knife.
The jury deliberated for 2 hours and 45 minutes and apportioned 75% of the fault to Wackenhut and its guard and 25% to McDonald's.
The entire verdict was for compensatory damages. The plaintiff did not request punitive damages.
Plaintiff’s counsel were Rocky Wilkins and Ashley Ogden of Jackson.
Michael Wolf and Smith Boykin of the Page Kruger firm represented the Wackenhut guard. Matt Taylor of the Streetman firm represented Wackenhut. Jason Strong and Garner Berry of the Daniel Coker firm represented McDonald's.
Judge Winston Kidd presided over the case.
A Hinds County jury awarded a total of $4 million to a Jackson couple who were assaulted and beaten in 2008 in their room at the In Town Suites on I-55 in North Jackson. The case was tried before Judge Tommie Green. Plaintiff's counsel was Ashley Ogden of Jackson. Defense counsel was Wade Manor and another attorney with Scott, Sullivan Streetman and Fox of Ridgeland. The jury awarded $2 million to each of the two plaintiffs.
I watched a good portion of this trial and there really was no defense. Someone severely beat the two Plaintiffs in their room at the hotel. The former hotel manager testified that he quit because he feared for his life after having a gun put to his head in an earlier robbery. The manager testified that he begged for security. The corporation that owned the hotel would not grant the manager's requests for armed security, stating that it was not in the hotel's budget. The manager testified that the hotel netted $700,000 in profit in 2007, which was the year before the assault.
Several police officers testified that there was a major crime problem at the hotel that hotel ownership did not address. The defendant argued that lighting and peep holes in doors was security and that there were inconsistencies in the two plaintiffs' accounts of what happened. Defense counsel seemed to be suggesting that the plaintiffs knew their attackers and were doing something wrong. But the defendant put on no evidence to support this theory. Defendants can occasionally win cases with suspicion and innuendo rather than hard evidence, but it did not happen this week in Hinds County.
On Friday a Hinds County Circuit Court jury rendered a $2.5 million verdict for Linda Knox, a 62 year old woman who in 2007 was severely beaten in the parking lot of the Kroger Grocery Store on I-55 in northeast Jackson. Ms. Knox was hospitalized for two weeks following the attack and was permanently blinded in one eye. Her two attackers targeted older women in shopping center parking lots. Ms. Knox's attorneys were Rocky Wilkins and Ashley Ogden of Jackson. Kroger's attorney was Bill Luckett of Clarksdale.
Viewing the comments to the story on the Clarion-Ledger's website , there is sympathy for Kroger's defense, which the Ledger described as follows:
But Luckett said there was no way Kroger could have prevented "crazy, drugged out thugs" from carrying out the attack.
Luckett said one of those charged in the crime said they had driven around the parking lot looking for a female to snatch her purse.
"Look at it as an unfortunate event that happened on Kroger's lot," Luckett said.
I'm going to argue the other side of the coin on this one. Businesses on the I-55 corridor in Jackson invite customers in and take their money, but never disclose that there is a history of crime activity in their parking lots. There are many purse snatchings and similar assaults in the parking lots of these businesses. Most do not make the news. Visit that Kroger and I promise you that you will never see a sign that says: "Warning! Crazy drugged out thugs beat up an old lady in the parking lot last week. Shop at your own risk." Businesses like Kroger should either disclose the crime history on their premises or provide protection for their customers.
To get a verdict in a premises liability case the plaintiff must prove that the defendant was on notice of a dangerous condition. Ms. Knox and her attorneys presumably met this burden. I doubt that Ms. Knox knew about the crime wave in the Kroger parking lot--most people do not. Kroger knows this and likes it that its customers do not know, otherwise they might drive out to the Wal Mart. The critics of this verdict would not give Kroger or another business their sympathy if they were attacked in the parking lot of a business with an undisclosed history of crime activity.
The Clarion-Ledger reported Sunday that former Jackson mayor Dale Danks filed a wrongful death premises liability case in the Circuit Court of Hinds County. The plaintiff is suing the owners of a South Jackson apartment complex where the plaintiff's son lived and was killed by a robber with an assault rifle.
The Complaint does not identify the amount of damages sought. A strong premises liability case can result in a seven figure verdict or settlement.
Here is the story.
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