Before Bridges, C.j., Payne, And Southwick, JJ.
The opinion of the court was delivered by: Bridges, C.j.
DATE OF JUDGMENT: 05/15/1997
TRIAL JUDGE: HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: JURY VERDICT FOR APPELLEE
¶1. Timothy Hageney brought this products liability action against Jackson Furniture of Danville, Inc. in the Circuit Court of Hancock County. Toni Hageney, Tim's wife, joined in the suit claiming a loss of consortium. The jury found in favor of Jackson Furniture. Feeling aggrieved, the Hageneys bring this appeal asserting (1) the jury verdict was contrary to the overwhelming weight of the credible evidence, and (2) the trial court erred as a matter of law (a) in denying the Hageneys's motion in limine requesting that testimony be excluded regarding (i) any negligence of Tim Hageney, (ii) Tim Hageney's prior medical history, and (iii) the consumption of alcoholic beverages by Tim and Toni Hageney prior to the incident, (b) in granting jury instructions D-2A and D-5A, (c) in granting Jackson Furniture's motion in limine excluding evidence of a prior failure of a similar bar stool, (d) in allowing into evidence the substance of the cross-examination of Dr. Stuart Phillips by Alpha Gulf Coast, Inc. by way of video deposition, and (e) in refusing jury instruction P-12. Jackson Furniture perfected a cross-appeal, to be considered only in the event a new trial is deemed necessary, assigning as error the trial court's exclusion of Tim Hageney's statements made immediately after the incident affected its substantial right to a fair trial. This Court concludes that the issues raised on appeal are without merit and affirms the judgment entered on the jury's verdict.
¶2. On April 15, 1994, Tim Hageney and his wife, Toni, traveled from their home in Marrero, Louisiana to gamble at the Bayou Caddy's Jubilee Casino in Waveland. Upon arrival at the casino, Tim tried his luck on the quarter slot machines before proceeding to the video poker bar. Tim settled in to play a video poker machine to the far right end of the bar. Approximately thirty minutes later the bar stool in front of the video poker machine collapsed causing Tim to fall to the ground. Although Tim's exact weight at the time of the accident is unknown, three days later Tim weighed in excess of 350 pounds.
¶3. The bartender on duty, Don Hunter, observed Tim squeezing his full body into the armed bar stool. Hunter testified he saw Tim leaning back in the chair before the accident. The bar itself obscured Hunter's vision preventing Hunter from seeing whether two legs of the four-legged bar stool were off the ground. A brass rail surrounded the bottom of the bar and acted as a footrest. When the bar stool collapsed, Hunter was talking to another bartender. Upon hearing the commotion, Hunter turned, saw Tim on the floor, and immediately reported the incident to the security booth. The officer in the security booth turned the surveillance monitor toward Tim.
¶4. The casino surveillance videotape, played at the trial, showed Tim lifting himself off the floor, Security Officer Wayne McCardy arriving on the scene, Tim and his wife sitting next to each other at the bar, and Security Officer Stephen Coco handing Tim a guest injury report to complete. Tim indicated on the report he was not injured. Coco testified he watched Tim for a few minutes before leaving to perform other duties. The Hageneys continued to play the video poker machines for about thirty minutes. On the way home, the Hageneys ate lunch in New Orleans.
¶5. Tim testified he began experiencing sharp pains in his low back after he returned home. The following morning Tim was examined by his family physician, Dr. Robert Murphy, who prescribed muscle relaxers. The pain progressed over the weekend and on Monday Dr. Murphy referred Tim to Dr. Sudderth. Dr. Sudderth prescribed an MRI and physical therapy for his low back. The physical therapy rendered only temporary relief.
¶6. In July 1994 Tim was evaluated by Dr. Stuart Phillips, an orthopedic surgeon in New Orleans, who prescribed medication and a lumbar corset to prevent bending or stooping. Tim was also placed on light duty with limited lifting.
¶7. Tim testified he wore the lumbar corset about eight to ten hours a day while working as a senior quality control inspector with Brown & Root, Inc. at the Shell/Narco Refinery. During a normal work day, Tim testified he spent from six to eight hours on his feet and that his job required him to climb stairs and to bend, stoop and lift. As a result of wearing the corset, he began to develop problems with circulation in his legs.
¶8. On January 26, 1996, Dr. Murphy prescribed a Jobst pump for Tim's use to pump the fluid building in the legs back up to the kidneys. Tim testified he spent approximately three to four hours at night six nights a week in the Jobst pump. As a direct result of his injuries, Tim incurred medical bills in the amount of $8,580.51, out-of-pocket travel expenses to medical providers of $361.65, out-of-pocket expenses for lawn care which he formerly did himself of $1,510, and lost wages in the amount of $1,484.15 as a result of taking off work to go to medical appointments.
¶9. Timothy Hageney filed an action in the Circuit Court of Hancock County against Alpha Gulf Coast, Inc. d/b/a Bayou Caddy's Jubilee Casino asserting a premises liability claim and against Jackson Furniture of Danville, Inc., as manufacturer of the bar stool, asserting a products liability claim under Miss. Code Ann. § 11-1-63 (Supp. 1998). Toni Hageney joined in the suit claiming a loss of consortium under Miss. Code Ann. § 93-3-1 (Rev. 1994). Prior to trial, the Hageneys settled their claims with Alpha Gulf Coast, Inc.
¶10. After a three-day trial, the jury returned a verdict in favor of Jackson Furniture on May 15, 1997. The trial court denied the Hageneys's motion for judgment notwithstanding the verdict or motion for new trial, and this appeal was perfected.
ARGUMENT AND DISCUSSION OF THE LAW
I. WHETHER THE VERDICT OF THE JURY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE.
¶11. The Hageneys assert the denial of their motion for judgment notwithstanding the verdict or motion for a new trial was reversible error in that no competent evidence was offered to support Jackson Furniture's defense that Tim's misuse of the bar stool was the sole proximate cause of his injuries. Jackson Furniture responds that there was ample evidence for a juror to reasonably infer that Tim misused the bar stool.
¶12. When reviewing the trial court's denial of a motion for judgment notwithstanding the verdict, this Court looks at the sufficiency of the evidence,
examin[ing] all of the evidence--not just the evidence which supports the non- movant's case--in the light most favorable to the party opposed to the motion. All credible evidence tending to support the non-movant's case and all favorable inferences reasonably drawn therefrom are accepted as true and redound to the benefit of the non-mover. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, the motion should be granted. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different Conclusions, the jury verdict should be allowed to stand and the motion denied, and, if it has been so denied, we have no authority to reverse. C & C Trucking Co. v. Smith, 612 So. 2d 1092, 1098 (Miss. 1992) (citations omitted).
¶13. In a motion for a new trial, the weight of the evidence is challenged. Henson v. Roberts, 679 So. 2d 1041, 1045 (Miss. 1996). The grant or denial of a motion for a new trial is a matter within the sound discretion of the trial Judge. The credible evidence must be viewed in the light most favorable to the non-moving party. When the evidence is so viewed, the motion should be granted only when upon a review of the entire record the trial Judge is left with a firm and definite conviction that the verdict, if allowed to stand, would work a miscarriage of Justice. Our authority to reverse is limited to those cases wherein the trial Judge has abused his discretion. Moody v. RPM Pizza, Inc., 659 So. 2d 877, 881 (Miss. 1995).
¶14. In the case sub judice, the Hageneys alleged that a manufacturing defect caused the stool to collapse and Tim to be injured. Jackson Furniture argued Tim's misuse of the stool was the sole proximate cause of the incident. The record reveals that Tim sat in the bar stool for approximately thirty minutes before it collapsed.
¶15. Tim's testimony at trial that he was sitting full in the seat with his back against the back of the bar stool was impeached by his deposition testimony in which Tim could not recall how he was sitting in the chair prior to the incident. Also Don Hunter, the bartender in the video poker bar, testified that although he could not see the legs of the stool, he saw Tim leaning back in the chair prior to the chair collapsing.
¶16. In support of the Hageneys's position, Joe Albert McEachern, Jr., a mechanical engineer, testified on direct that several design and/or manufacturing defects contributed to the failure of the bar stool:
"Q. From what you understand from the testimony that's been described by Mr. Hageney do you know of anything that Mr. Hageney did, at least from his testimony, that would have contributed to the ultimate failure and collapse?"
"A. I really have no way to know. I didn't deeply examine any testimony or anything at the time of my analysis [of the bar stool in question]. I put in my report that it could be aggravated by somebody rocking the chair or something like that. I think that's an obvious factor that has to be considered in any case."
"Q. Is a rocking of a chair a foreseeable use of that product?"
"A. That's certainly foreseeable."
"Q. And is rocking normally accomplished if one moves a chair in or out from under him, will the chair rock in some degree?"
"Q. Will that put stresses on the joints?"
"A. Absolutely. We all know, our mothers always told us if we rock a chair back on one leg or something it puts undo stress on the chair, and it's not a good practice. But in designing a commercial chair you have to consider a certain amount of that kind of abuse is going to occur."
¶17. While being cross-examined by Jackson Furniture regarding his testimony of the design and/or manufacturing defect, McEachern acknowledged that the failure of the stool would have been consistent with a man the size of Tim tipping the stool backwards causing the legs to bend and fracture.
¶18. Jackson Furniture's theory that the stool collapsed due to Tim improperly leaning the bar stool back on its rear two legs was supported by its expert witness, Harold R. Myers, a consulting engineer. Based on a failure analysis on the stool, Myers concluded that had Tim been sitting fully in the stool his weight would have been evenly distributed on all four legs of the stool and, if there was a defect in the manufacturing of the stool, the stool would have collapsed underneath Tim, not away from Tim, as the fracture indicated and McEachern testified.
"Q. And what did you observe from this [bar stool] that led you to that Conclusion?"
"A. You notice that this leg split through here to this point right here, and at that point it broke off because this section got thin. If this had failed from a shear load, from a load coming down on it. . . . This splinter would have gone on out to the edge. As you can see it's beginning to taper. It would have gone on out to the edge because before this can move this would have to have a place to go. So what happened here is we had a load which placed this area in bending. . . ."
"Q. In other words, these legs had to be off the ground in order to move to create the bend?"
¶19. Whether the stool's failure was caused by a manufacturing defect and/or Tim's size and his improper use of the stool by leaning the stool back on two legs was a fact question for the jury to determine. When facts are in dispute as they were in this case, the jury is given the power to resolve the factual disputes, and this jury did so in favor of Jackson Furniture. Moreover, it was the province of the jury to weigh the credibility of the witnesses. After careful review of the record, it is this Court's opinion that a "reasonable, hypothetical juror" could have returned a verdict as this one did. There is ample evidence supporting the jury's verdict. When the evidence is disputed and different Conclusions argued, the Court "has refused to take an issue from the jury or to interfere with a jury's decision." McKinzie v. Coon, 656 So. 2d 134, 140 (Miss. 1995). This issue is without merit.
II. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE HAGENEYS'S MOTION IN LIMINE AND IN GRANTING JACKSON FURNITURE'S MOTION IN LIMINE.
¶20. The Hageneys next contend that the trial court erroneously denied their motion in limine requesting the exclusion of testimony regarding (1) Tim's medical history prior to April 15, 1994, (2) whether Tim was contributorily negligent or assumed the risk, and (3) any consumption of alcoholic beverages by Tim. Further, the Hageneys assert that the trial court erred in granting Jackson Furniture's motion in limine barring the Hageneys from introducing any evidence of an alleged similar accident involving another bar stool manufactured by Jackson Furniture.
¶21. The admission or exclusion of evidence lies within the sound discretion of the trial court whose determination will not be reversed absent abuse of discretion. Thompson Mach. Commerce Corp. v. Wallace, 687 So. 2d 149, 152 (Miss. 1997).
¶22. Based upon the test adopted by the Mississippi Supreme Court in Whittley v. City of Meridian, 530 So. 2d 1341 (Miss. 1988), the trial court did not abuse its discretion in ruling on the motions in limine.
[A] motion in limine "should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to ...