265 So. 3d 203
Miss. Ct. App.2019Background
- Savage, a ProBuild delivery driver, slipped into an uncovered 8-foot oil pit at a Fairley Construction quick-lube job site while moving a plywood cover during a sheetrock delivery. No Fairley employees or warning signs were present.
- The plywood covering the pits was not fastened; Savage testified he could not tell a hole existed under the plywood and had not been to that site before.
- Savage sued Fairley for premises negligence (failure to maintain/warn); the jury awarded $460,000 in damages and allocated fault 80% to Fairley and 20% to Savage.
- Fairley moved for JNOV or a new trial; the trial court denied the motion. Fairley appealed, raising sufficiency of evidence, admission of OSHA/ANSI testimony, jury-instruction errors, and that the verdict was against the overwhelming weight of the evidence.
- The Court of Appeals reviewed (1) whether sufficient evidence supported liability, (2) admissibility/limitation of OSHA/ANSI evidence, (3) the propriety of several jury instructions, and (4) whether the verdict was against the weight of the evidence, and affirmed.
Issues
| Issue | Plaintiff's Argument (Savage) | Defendant's Argument (Fairley) | Held |
|---|---|---|---|
| Sufficiency / JNOV: did evidence permit liability? | Fairley failed to keep premises reasonably safe and failed to warn of hidden pit; expert testified covers/maintenance violated industry standards. | Savage was an independent-contractor employee whose employer (ProBuild) or Savage himself knew or should have known of the pits; danger was inherent to his work. | Evidence was sufficient to support jury verdict for Savage; JNOV properly denied. |
| Imputation of knowledge (ProBuild/Savage knowledge) | Savage lacked actual or constructive knowledge of pits; ProBuild did not inform Savage. | ProBuild/its manager knew or should have known the site had pits; that knowledge imputed to Savage. | Jury resolved disputed facts; no reversal — imputation claim not established as a matter of law. |
| Admission of OSHA/ANSI evidence | OSHA/ANSI evidence used only to show industry standards and reasonable care; limiting instruction given. | OSHA/ANSI testimony and exhibits were improper to prove negligence; exhibits were marked but excluded from jury. | Court allowed OSHA/ANSI testimony for limited purpose consistent with Accu‑Fab; Fairley waived contemporaneous objections to expert reading excluded materials. |
| Jury instructions & new trial (weight) | Given instructions properly explained duty to independent contractors and limitations; verdict supported. | Some defense instructions (peremptory, D‑8/D‑10/D‑11/D‑12) refused or altered; instructions allegedly imposed a heightened duty and omitted exceptions. | Instructions read as a whole fairly announced the law; trial court did not abuse discretion. Verdict not against overwhelming weight of evidence; new-trial motion denied. |
Key Cases Cited
- Johnson v. St. Dominics-Jackson Memorial Hosp., 967 So. 2d 20 (Miss. 2007) (standard for reviewing denial of JNOV and new-trial motions)
- Anderson v. McRae’s Inc., 931 So. 2d 674 (Miss. Ct. App. 2006) (review standard: view evidence in light most favorable to appellee)
- Ratliff v. Georgia Pacific Corp., 916 So. 2d 546 (Miss. Ct. App. 2005) (distinction between invitee and independent-contractor employee where danger arises from contractor’s work)
- Accu-Fab & Construction, Inc. v. Ladner, 778 So. 2d 766 (Miss. 2001) (OSHA standards inadmissible to prove negligence but may show industry standard/reasonable care with limiting instruction)
- Sumrall v. Mississippi Power Co., 693 So. 2d 359 (Miss. 1997) (OSHA regulations cannot be used as direct proof of negligence)
- Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004) (classifying entrant status: invitee, licensee, trespasser)
- Doe v. Jameson Inn, 56 So. 3d 549 (Miss. 2011) (premises-liability duty framework)
- Magers v. Diamondhead Resort LLC, 224 So. 3d 106 (Miss. Ct. App. 2016) (standard for reviewing jury instructions)