On Thursday the Mississippi Supreme Court reversed and rendered a $2.5 million jury verdict against Kroger in 2009 based on the 2007 beating of a customer in a purse snatching incident. Here is the Court’s opinion in Knox v. Kroger.

I wrote on the verdict in 2009 here and here.

Justice Dickinson wrote the Court’s 4–3 decision. In a succinct opinion, the Court held that evidence of three prior purse snatchings and a stolen purse in the three years before the beating was insufficient to put Kroger on notice of an atmosphere of violence in its parking lot. As a result, the trial court should have granted either Kroger’s motion for directed verdict or motion for judgment notwithstanding the verdict (JNOV).

The majority distinguished the case from other premises verdicts by the fact that the other cases had more incidents of crime before the attack.

Justices Carlson, Lamar and Pierce joined the majority opinion. Justice King dissented joined by Justices Kitchens and Chandler.

The minority contended that the evidence was sufficient when considered in the light most favorable to the verdict, as required under the standard of review for ruling on a motion for JNOV.

However, the minority would not have affirmed the trial court. The minority would have reversed and remanded for a set-off due to the trial court’s failure to reduce the verdict by $1,075,000, representing the amount of plaintiff’s settlement with the co-defendant security guard company before trial.

LeAnn Nealy and Donna Brown Jacobs of Butler Snow, Bill Luckett and Mary Leslie Davis represented Kroger on the appeal.

Rocky Wilkins, Ashley Ogden and Jim Smith of Jackson represented the plaintiff.

My Take:

Both the majority and minority opinions make good arguments. It’s easy to see why this was a close decision that could have gone either way.

This case is an example of why these types of premises cases are dangerous for both sides. A plaintiff might get a big verdict, but the verdict may have a hard time standing up on appeal. There is tremendous uncertainty and serious efforts to settle make sense for both sides.

Is it just me, or was the trial court’s failure to apply an off-set to the settlement a head scratcher? 

  • Anderson

    No head-scratcher. (1) Ashley Ogden; (2) Winston Kidd. That is all.

  • JTL

    A little help. This case makes me curious. Regarding the set-off law – what would be the correct legal result if the jury would have returned a Plaintiff’s verdict for full damages less than the settlement of $1,075,000? Would the Plaintiff have recovered 0 from Kroger and is there a case on point where this scenario has played out?

  • UnderdogSoldier

    The court did not apply a settlement set-off because of the the way 85-5-7 functions. The jury determines the amount of damages and the percentage of fault of responsible parties and then each defendant pays the percentage of damages reflecting its degree of fault. Thus, pre-verdict settlements are of no consequence to the operation of 85-5-7.
    @JTL — in the first scenario, if the jury awarded $1M against Kroger, the plaintiff would have been entitled to $1M from Kroger, irrespective of the settlement. In your second scenario, it is simply a defense verdict but the Plaintiff gets to wipe her tears with the $1.075M settlement.

  • Roland Tembo

    My understanding is there was no set-off because Kroger didn’t move for it at trial.

  • Brad

    It is my understanding of set-offs that we still have two options under MS law. (1) You can request a set off of the jury verdict (i.e. a McBride set-off), or you (2) request the jury apportion fault to the absent defendants (or non-parties). You cannot do both. If you ask for a set off, the jury, by statute, is not informed of the settlement and you just subtract what the verdict is from the settlement (and you can end up paying 0). If you choose to apportion fault, you take your licks with whatever percentate of the verdict the jury gives you. The opinion does not inform us of enough facts to determine what Kroger actually did (but presumably they did not request the apportionment route). It probably did not make sense to ask to apportion to their own (albeit independent) security force.

  • Anderson

    The dissent (which reads like it began as the majority) says:
    ” After the verdict, Kroger asked the trial court to reduce the verdict by the amounts paid by the settling defendants.”
    I know no reason they had to move for offset any sooner.

  • JTL

    FYI – the answer to my previous question is contained in 166 F.3d 736.

  • Anderson

    Unless & until the MSSC ratifies that Erie guess in Krieser, JTL, I think that’s going to remain *an* answer to your question.
    The Yale Materials case in 2002 went along with Krieser, but then got withdrawn when the parties settled the case pending rehearing.

  • Ian

    Brad – I am curious where this “option” exists by a defendant where they can choose between “set off” credits for settlements with co-defendants or “allocation of fault” on the special verdict form submitted to the jury (with each party being liable for its allocated fault). Do you have a case that supports this? My understanding is that pro tanto credits are only reserved for joint/several liability states, and MS is not one of those.