Before Bridges, C.j., Hinkebein, And Payne, JJ.
The opinion of the court was delivered by: Bridges, C.j., For The Court:
White v. Franklin Mills, 97-CA-00064-COA
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 12/12/96
TRIAL JUDGE: HON. BILL JONES
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION: RULED IN FAVOR OF APPELLEE FRANKLIN MILLS ON ISSUE OF LIABILITY. ORDER ENTERED PURSUANT TO M.R.C.P. 54(B).
DISPOSITION REVERSED AND REMANDED
Joseph Q. White, Administrator of the Estate of Roger W. Robinson, appeals from the judgment of the Circuit Court of Jackson County granting summary judgment in favor of Franklin Mills. Aggrieved by the circuit court's ruling, White alleges on appeal the following issues: 1) that the court erred in not taking judicial notice that Mills had consumed alcohol which would trigger application of Mississippi's established comparative negligence law, making summary judgment as to liability incorrect; 2) that summary judgment in this case is in contravention of a statute previously enforced by the court; 3) that Mississippi's comparative negligence principles and the standard of review conclude that summary judgment should have been denied; and 4) that the record clearly reflects a genuine material issue of fact as to Mills's contributory fault.
On October 21, 1993, at around 4:30 P.M., Franklin Mills was involved in an automobile collision with Roger Robinson (now deceased) while traveling on Mississippi Highway 63 in Moss Point, Mississippi. The accident occurred when Mills struck Robinson's car as Robinson pulled across Mills's lane of traffic from an exit ramp. Allegedly, Robinson had just exited from the westbound I-10 and was traveling down the exit ramp which intersects with Highway 63. The entrance onto Highway 63 is controlled by a stop sign. Robinson failed to stop at the stop sign and pulled onto Highway 63 directly in front of Mills's car. Robinson was killed in the accident and Mills sustained injuries.
Mills filed a complaint on May 23, 1995, arising out of the above accident alleging that Robinson's negligence was the direct and proximate cause of the accident. White (as administrator of the Robinson's estate) filed an answer and counterclaim on July 26, 1995, arguing that it was Mills's negligence that was either the sole proximate cause of the accident or at least was a contributing cause. White alleges that Mills failed to keep a proper lookout and was operating his car under the influence of alcohol. Mills denied any responsibility for the accident in his answer to the counterclaim on October 27, 1995. However, Mills admitted to having two drinks approximately one hour before the accident, but stated that he was not cited for DUI.
On May 13, 1996, Mills filed a motion for summary judgment stating that there was no genuine issue of material fact as to liability, and that Robinson's failure to stop at the stop sign which controlled the traffic entering Highway 63 was the sole and proximate cause of the accident. Mills also included with his motion several affidavits, including one from an eye witness of the accident. White filed a response to the summary judgment motion which stated that since Mills had admitted to drinking within a brief period prior to the accident, and since Mills could not state specifically during his deposition when he first saw the car operated by Robinson, the motion should be denied. The motion was scheduled to be heard on May 20, 1996, but was postponed due to a jury trial that was scheduled, and was eventually heard on November 8, 1996. On December 12, 1996, the court granted the motion for summary judgment stating that pursuant to McKenzie v. Coon, 656 So. 2d 134 (Miss. 1995) and Vines v. Windham , 606 So. 2d 128 ...