350 So.3d 1133
Miss. Ct. App.2022Background:
- Kemp Bush (owner of a farm) asked neighbors Kathy Darlene Brewer and Mack Busby to help put up barbed-wire fencing; they used Bush’s utility vehicle and tools kept there.
- Brewer and Busby threaded a spool onto a wooden pole, wedged the pole into the utility vehicle, and secured the spool with a bungee cord after it slipped; the bungee cord snapped and struck Brewer’s eye, causing severe injury.
- Brewer sued Bush alleging he breached a duty to provide reasonably safe tools (theory rested on an implied contract-for-hire / master-servant relationship); the trial court granted partial summary judgment dismissing premises-liability theories but denied summary judgment on the tools/employment claim.
- At trial the jury returned a unanimous verdict for Bush; the trial court denied Brewer’s motion for a new trial; Brewer appealed raising sufficiency/weight of the evidence and multiple jury-instruction and verdict-form errors.
- The Court of Appeals affirmed, finding the jury verdict not against the overwhelming weight of the evidence and that the trial judge did not abuse discretion in instructing the jury or submitting verdict forms.
Issues:
| Issue | Plaintiff's Argument (Brewer) | Defendant's Argument (Bush) | Held |
|---|---|---|---|
| Whether the verdict was against the overwhelming weight of the evidence/new-trial motion | Evidence established an implied contract for hire and Bush failed to provide safe tools | Jury could find no master-servant relationship or that provided tools were reasonably safe; accident caused by Busby/Brewer’s choices | Trial judge did not abuse discretion; verdict affirmed |
| Whether modified/refused instructions misled jury on proximate cause (sole cause requirement) | Modified instructions and verdict forms required finding Bush was sole proximate cause to win | Instructions read as a whole allowed recovery if Bush’s negligence was a proximate contributing cause and provided apportionment rules | No reversible error; instructions fair when read together |
| Whether D-18A (“simple tools”) instruction was improper/peremptory | No evidence tools were "simple"; instruction effectively absolved Bush | Wooden pole and bungee cord were simple tools; instruction correctly stated law and was non-peremptory | Instruction appropriate and not peremptory; no abuse of discretion |
| Whether D-15 (foreseeability/proximate causation) improperly omitted qualification that particular injury need not be foreseen | Instruction omitted that tortfeasor need not foresee the exact manner/extent of injury | D-15 is a correct, model statement of Mississippi law on foreseeability | Instruction is accurate/model; giving it was not error |
| Whether submission of four verdict forms (including apportionment to nonparty Busby) was confusing/error | Including Busby was improper because Bush’s interrogatory answers blamed only Brewer | Evidence at trial allowed apportionment to Busby; interrogatory answers are non-binding admissions | No reversible error; inclusion of Busby permissible and issue waived without objection |
| Whether Bush’s many proposed instructions and long charge conference violated UCRCCC 3.07 or prejudiced Brewer | Excessive number of instructions and a prolonged charge conference prejudiced Brewer | Parties may present more than six instructions for good cause; no timely objection and no showing of prejudice | Issue waived for failing to object; court did not abuse discretion |
Key Cases Cited
- Bobby Kitchens Inc. v. Miss. Ins. Guar. Ass'n, 560 So. 2d 129 (Miss. 1989) (standard for ordering new trial when verdict is against overwhelming weight of evidence)
- Amiker v. Drugs For Less Inc., 796 So. 2d 942 (Miss. 2000) (trial judge’s discretion on new-trial motions; deference required)
- Weber v. Estate of Hill, 335 So. 3d 1030 (Miss. 2021) (deferential standards: trial court and jury credibility determinations)
- Patton-Tully Transp. Co. v. Douglas, 761 So. 2d 835 (Miss. 2000) (right-of-control is determinative for master-servant relationship)
- Gulfport Creosoting Co. v. White, 157 So. 86 (Miss. 1934) (master’s duty re: furnishing reasonably safe tools is not absolute insurer standard)
- Cherry v. Hawkins, 137 So. 2d 815 (Miss. 1962) (master need not furnish newest or best machinery; must furnish reasonably safe tools)
- Jones v. S. United Ice Co., 150 So. 652 (Miss. 1933) (simple tools doctrine: servant’s ordinary intelligence may suffice to detect defects)
- BFGoodrich Inc. v. Taylor, 509 So. 2d 895 (Miss. 1987) (answers to interrogatories are admissible as non‑binding evidentiary admissions)