On Tuesday a unanimous Mississippi Court of Appeals reversed and remanded a 2009 $1 million Hinds County premises liability verdict in Wackenhut v. Fortune. Here is my December 2009 post on the verdict.

This was the case where the plaintiff was a homeless man who got into it with the manager and security guard at the McDonald’s on Highway 80 in Jackson. The plaintiff was attempting to get a free re-fill at the fountain drink machine with a cup he “acquired” outside in the trash hours earlier that day. The manager refused. Plaintiff left and then returned with a dollar causing a scene. Plaintiff’s blood alcohol level turned out to be an impressive .276.

Plaintiff and the security guard then scuffled outside. Plaintiff fell and claimed injury.

The jury found Wackenhut and the security guard 75% responsible for plaintiff’s injuries and awarded a total of $1 million in the following categories: $600,000 for pain and suffering, $194,000 for lost future earnings, $106,000 for past future medical expenses and $100,000 for “physical impairment and/or functional limitations.”

Wackenhut raised 10 issues on appeal. The plaintiff agreed that Wackenhut was entitled to reversal and remand on 2 of the issues: (1) expert’s calculation of future lost wages; and (2) trial court’s refusal of contributory negligence instruction.   

The Court of appeals found that the trial court erred:

  1. by not allowing evidence of plaintiff’s alcohol use to show likely decrease in life expectancy;
  2. allowing an expert to testify about damages for future surgery when there was no evidence plaintiff would stop drinking to have the surgery; and
  3. by refusing to grant Wackenhut’s contributory negligent instruction.

Fortune’s economist expert (Dr. Glenda Glover) used the same future lost wages technique as the Court ruled improper in the Rebelwood Apartments decision in 2010.

On the evidence of alcohol issue, plaintiff was treated in Jackson area hospitals for intoxication 40 times between 1999 and 2009. He suffered from cirrhosis of the liver and cerebral atrophy. Wackenhut argued that the evidence was relevant to plaintiff’s life expectancy and lost wages claim. The Court agreed, as do I.

On the contributory negligence instruction issue, the Court found that there was evidence to support the instruction and that it should have been given.

There were some other issues the Court discussed, but did not decide.

Judge Larry Roberts wrote the Court’s unanimous decision. Ashley Ogden and Rocky Wilkins represented the plaintiff. Defendant’s counsel on appeal were Matthew Taylor, David Gladden and Jamie Heard.  Judge Winston Kidd was the trial judge.

My Take:

As long as I’m not on the losing end of them, I like unanimous decisions. The fact they are unanimous almost always means that the issues were clear and correctly decided. In light of Rebelwood, the lost wages claim was clearly improper. Overall, the amount of the verdict was too high for a questionable plaintiff.

I believe in everyone having access to the court system to resolve their disputes. However, I’m not sure I can agree that this case should have been filed based on the recitation of facts in the Court’s opinion. It’s a touchy subject, but a raving alcoholic who was disrupting business (probably not for the first time) is eventually going to get some push-back from the business. People aren’t going to want to bring their families in the McDonald’s if a drunk homeless looking man is making a scene over drink re-fills. Here, the business’s push-back was literal and plaintiff’s fall was not surprising given his blood alcohol level. 

Another problem is that a case like this gives ammunition to people who would like to see premises liability actions eliminated. The fact pattern in this case is a lot different from the hypothetical fact pattern I discussed in this post earlier this year when there was a proposal in the legislature to end the right to sue in premises case. 

We have tort reform in Mississippi primarily because back in the day, lawyers were filing cases that shouldn’t be filed and/ or filing them in the wrong venues and then asking juries for too much money. This case might fit in that category of cases.