Marlana Alonso v. Jason C. Ross
2017 Miss. App. LEXIS 407
Miss. Ct. App. Hist.2017Background
- On Feb. 6, 2013, James Smith (pedestrian) was struck and killed at ~8:00 p.m. on Highway 49 in Hattiesburg; Jason Ross (driver, an EMT) struck Smith near his vehicle’s front-right headlight and stopped immediately.
- Ross testified it was dark, roads were wet from earlier rain, he was driving in the right northbound lane, was not speeding, not on his phone, not impaired, and never saw Smith before impact.
- Ross found Smith off the roadway wearing camouflage; Smith’s post-mortem BAC was .247. No independent eyewitnesses to the collision existed.
- Plaintiff Marlana Alonso (Smith’s daughter) sued Ross for wrongful death. Alonso admitted she had no evidence of Ross’s negligence and could not identify key facts (exact location, lane, Ross’s speed, lookout, Smith’s position or due care).
- Ross moved for summary judgment arguing Alonso had no admissible evidence of negligence; the circuit court granted summary judgment. Alonso appealed; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was improper because negligence could be inferred from a vehicle striking a pedestrian | Alonso: Hitting a pedestrian permits inference Ross failed to keep proper lookout or adjust speed for wet/dark conditions, creating triable issues | Ross: Alonso has no evidence on breach/proximate cause; her claims rest on speculation and she bears burden as nonmovant | Affirmed — plaintiff failed to produce evidence on essential elements; speculation insufficient for trial |
Key Cases Cited
- Monsanto Co. v. Hall, 912 So. 2d 134 (Miss. 2005) (standard of review for summary judgment)
- Miller v. Meeks, 762 So. 2d 302 (Miss. 2000) (grant of summary judgment reversed only if triable facts exist)
- Davis v. Hoss, 869 So. 2d 397 (Miss. 2004) (view evidence in light most favorable to nonmovant)
- Tucker v. Hinds Cty., 558 So. 2d 869 (Miss. 1990) (moving party must show no genuine issue of material fact)
- Crain v. Cleveland Lodge 1532, Order of Moose Inc., 641 So. 2d 1186 (Miss. 1994) (summary judgment appropriate when nonmovant shows complete failure of proof on essential element)
- Todd v. First Baptist Church of West Point, 993 So. 2d 827 (Miss. 2008) (elements of negligence: duty, breach, causation, damages)
- Perry Inv. Grp. LLC v. CCBCC Operations LLC, 169 So. 3d 888 (Miss. Ct. App. 2014) (plaintiff bears burden to prove essential elements)
- Estate of Kiihnl v. Family Dollar Stores of Miss. Inc., 197 So. 3d 920 (Miss. Ct. App. 2016) (to survive summary judgment plaintiff must allege facts proving all four negligence elements)
- Partlow v. McDonald, 877 So. 2d 414 (Miss. Ct. App. 2003) (driver owes pedestrians duty to exercise reasonable care)