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MARANDA ANN WHITTLEY, A MINOR, ET AL. v. CITY OF MERIDIAN

AUGUST 10, 1988

MARANDA ANN WHITTLEY, A MINOR, ET AL.
v.
CITY OF MERIDIAN, BILL GORDON, D/B/A BILL GORDON ENTERPRISES



BEFORE DAN LEE, P.J, SULLIVAN AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

PROCEDURAL HISTORY

Maranda Ann Whittley, a minor, by Diane Whittley Walters, her mother, filed a complaint against The City of Meridian, Taylor Properties, Ltd., Bill Gordon, doing business as Bill Gordon Enterprises, (hereinafter Gordon) Payson Casters and Leach Company for personal injures sustained by Maranda when a refuse bin fell on top of her.

 In the Circuit Court of Lauderdale County, The Leach Company, the manufacturer of the garbage trucks used by the City of Meridian was dismissed via summary judgment. Taylor Properties, Ltd., owner of the apartment complex where the refuse bin causing the injury was situated and the owner of the refuse bin itself, settled with the appellant for $2,519,276.00 to be paid over a period of time via structured settlement plus an additional $2,706.00 for each month the appellant shall live beyond December 15, 2013. Payson Casters, Inc., maker of the wheels on the refuse bin, settled with appellant for $25,000.00. During the actual trial of the case, after all parties had rested, Gordon, the manufacturer and seller of the refuse bin, was granted a directed verdict and dismissed. The jury returned a verdict in favor of the City of Meridian. From this verdict, the appellant appeals the dismissal of Bill Gordon and the verdict in favor of the City of Meridian, assigning as errors the following:

 I. THE TRIAL COURT ERRED BY GRANTING THE CITY OF MERIDIAN'S MOTION IN LIMINE WHICH EXCLUDED ALL EVIDENCE OF NOTICE ON BEHALF OF THE CITY FROM THE CONSUMER PRODUCT

 SAFETY COMMISSION THAT THE TYPE OF REFUSE BIN IN QUESTION WAS DANGEROUS.

 II. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE, JUDGMENT NOTWITHSTANDING THE VERDICT.

 III. THE TRIAL COURT ERRED IN GRANTING INSTRUCTION NUMBERS D-1-131A AND D-1-SA.

 IV. THE TRIAL COURT ERRED IN GRANTING A PEREMPTORY INSTRUCTION FOR BILL GORDON, D/B/A BILL GORDON ENTERPRISES.

 We reverse and remand for a new trial based upon assignments of error I, III and IV. Therefore, we do not address assignment II.

 STATEMENT OF FACTS

 On June 1, 1981, a side-slanted refuse bin fell on Maranda, a four year old, while she and a friend were playing on or near it. Maranda suffered broken ribs, a broken collar bone, a broken neck and a severed spinal cord. Maranda is now a quadriplegic.

 The refuse bin, owned by Taylor Properties, Ltd. and situated at the Marion Park Apartment complex, was designed to enable the garbage trucks used by the City of Meridian to pick up the bin, empty it into the truck and replace the bin on the ground.

 DID THE TRIAL COURT ERR IN GRANTING THE CITY OF MERIDIAN'S NOTION IN LIMINE?

 During discovery the appellants ascertained that the City of Meridian had received a letter and a federal publication from the Consumer Product Safety Commission of which the city engineer was aware, concerning the potential dangers of refuse bins similar to the one in the case sub judice. Anticipating appellant would introduce evidence relating to the letter to show that the City of Meridian had notice of the instability of the refuse bin, the City made a motion in limine, which was granted by the trial court, to exclude such evidence.

 Counsel for the plaintiff called Garrett, the city engineer in charge of sanitation, as an adverse witness. Since the court granted the City of Meridian's motion in

 limine excluding all evidence pertaining to the letter from the Consumer Product Safety Commission, the court allowed counsel for plaintiff to question Garrett in reference to said letter in the absence of the jury to allow plaintiff to make its record. During this testimony in the absence of the jury, Garrett admitted having received and having read the letter and publication from the Consumer Product Safety Commission wherein it was brought to the city's attention that the refuse bins were a potential threat to the safety of young children.

 Harvey B. Ray, counsel for Bill Gordon, an appellee herein, cross-examined Garrett. During the cross-examination, in the presence of the jury, the witness testified that he had never received any information that the garbage bins were unstable or dangerous.

 Counsel for Maranda Ann Whittley asked permission of the judge to seek to impeach Garrett's testimony using the letter from the Consumer Product Safety Commission. The court denied the request.

 The appellant should have been allowed to impeach the witness' testimony to show that the city had notice of the potential danger of the refuse bins. We find that this letter was admissible under the Mississippi Rules of Evidence. There was no basis for the court's exclusion of the letter. Furthermore, the trial court made no findings of fact or conclusions of law setting forth its reasons for granting the motion in limine. The letter did not constitute hearsay because the appellant offered the letter ...


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