249 So. 3d 1081
Miss. Ct. App.2018Background
- In Sept. 2010 McLaughlin turned left on a two‑lane highway and was struck from behind by an 18‑wheeler driven by Washington while Washington attempted to pass. The truck pushed McLaughlin’s car ~150 feet into a ditch.
- Trooper and EMT testimony noted beer in McLaughlin’s car and the smell of alcohol; breath tests were below .02 and field sobriety testing was effectively passed. McLaughlin admitted taking a sip earlier.
- McLaughlin sought $591,000 for medical expenses, lost wages, and pain and suffering; the jury found both parties 50% at fault and awarded $1,400 (medical expenses incurred the day of the accident) and nothing for wages or pain and suffering.
- Defendant’s expert (Dr. Collip) testified that only the immediate emergency treatment was reasonable/necessary; plaintiff’s physician (Dr. Goel) testified to longer‑term injuries and a 5% permanent impairment.
- Trial rulings upheld: denial of peremptory negligence‑per‑se instruction, allowance of comparative‑negligence instruction, admission of EMT alcohol observations and a Facebook video showing McLaughlin active, denial of JNOV; appellate court affirmed.
Issues
| Issue | McLaughlin’s Argument | North Drew’s Argument | Held |
|---|---|---|---|
| Negligence per se (illegal passing at intersection) | Washington violated §63‑3‑611(2)(c); peremptory instruction should be given | Whether the junction was a statutorily "marked or readily distinguishable" intersection was disputed | Trial court properly denied peremptory instruction; fact of intersection element for statute was for jury to decide |
| Comparative negligence instruction | Instruction inappropriate because North Drew never alleged sole negligence by McLaughlin | Jury may apportion fault when both parties present competing theories and facts | Giving comparative‑negligence instruction was proper; jury may assign percentages of fault |
| Exclusion of alcohol testimony (motion in limine) | EMT’s observations of alcohol were irrelevant and prejudicial | Observations (smell, beer in car) are relevant to credibility and contributory negligence | Denial of motion in limine was within discretion; testimony admissible for credibility/negligence issues |
| Sufficiency/amount of damages & JNOV | Award of $1,400 (versus claimed $591,000) is against overwhelming weight, biased, and requires JNOV/new trial | Conflicting expert evidence supported a lower award; jury is the factfinder on damages | Jury verdict affirmed; damages not so unreasonable as to require JNOV or new trial |
| Admission of Facebook video | Video showing plaintiff doing jumping jacks was irrelevant and prejudicial | Video impeaches plaintiff’s claimed limitations and is relevant to credibility | Admission was within trial court’s discretion; video probative of injury severity |
Key Cases Cited
- Bobby Kitchens Inc. v. Miss. Ins. Guar. Ass’n, 560 So. 2d 129 (Miss. 1989) (standard for granting a new trial/abuse of discretion)
- Motorola Commc’ns & Elecs. Inc. v. Wilkerson, 555 So. 2d 713 (Miss. 1989) (view evidence in light most favorable to jury when reviewing weight challenges)
- Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790 (Miss. 1995) (negligence per se principles)
- Abrams v. Marlin Firearms Co., 838 So. 2d 975 (Miss. 2003) (alcohol evidence relevant to credibility and contributory negligence)
- Jackson v. Brumfield, 458 So. 2d 736 (Miss. 1984) (plaintiff’s medical bills and testimony create prima facie proof of reasonableness; opposing party may rebut)