DATE OF JUDGMENT: 07/05/2012
HINDS COUNTY CIRCUIT COURT, HON. JEFF WEILL SR. TRIAL JUDGE
ATTORNEYS FOR APPELLANT: RICHARD PAUL WILLIAMS III TERRIS CATON HARRIS, COURTNEY MCREYNOLDS WILLIAMS DARYL MATTHEW NEWMAN
ATTORNEYS FOR APPELLEES: THOMAS LYNN CARPENTER JR. REBECCA B. COWAN EDWARD J. CURRIE JR. JOSEPH WALTER GILL
BEFORE GRIFFIS, P.J., ISHEE AND CARLTON, JJ.
¶1. On July 14, 2009, Willie Kinzie was employed by Triangle Trucking, and he suffered injuries while unloading cargo from a trailer. Kinzie filed suit against Belk Department Stores, and Staffmark Investment LLC (collectively Appellees) in the Hinds County Circuit Court, alleging negligent loading and securing of cargo. The trial court granted the Appellees' motion to dismiss based upon Kinzie's alleged discovery misrepresentations and entered an order dismissing the case with prejudice. Kinzie now appeals the trial court's order of dismissal. Finding error, we reverse the order of dismissal, and remand this case for further proceedings.
¶2. Kinzie, a truck driver for twenty-eight years, was employed by Triangle Trucking at the time of the injuries at issue. Triangle Trucking had dispatched Kinzie as a truck driver for Belk since 2007. At the time of his injury, Kinzie's job required him to pick up a loaded trailer of Belk cargo from the Belk distribution center in Byram, Mississippi, and unload it at other Belk locations throughout the United States.
¶3. On July 14, 2009, Kinzie picked up a loaded trailer at the Belk distribution center in Byram and traveled to a Belk facility in Cullman, Alabama. In the course of unloading his truck, which contained approximately 2, 161 cases of cargo, weighing a total of 18, 229 pounds, Kinzie injured his back. Shortly after he received his injury, an ambulance transported Kinzie to the emergency room, where physicians diagnosed him with a central-disc protrusion, disc desiccation, and disc bulging.
¶4. Kinzie initially engaged in a nonsurgical, conservative treatment. Then, on January 4, 2010, Kinzie underwent a bilateral L4-5 hemilaminectomy and discectomy surgery. On May 25, 2010, Kinzie was placed at a maximum medical improvement with a ten percent impairment rating. Kinzie's treating physician, Dr. Howard Holaday, explained that Kinzie possessed the capability to perform sedentary to light duty work, with a lifting restriction of no greater than twenty pounds, and restrictions on frequent stooping and bending. Although Kinzie claimed to need a cane for stability and assistance, Dr. Holaday provided no recommendation for Kinzie to use a cane. Kinzie asserted that Dr. Holaday also warned him to wean himself off of the cane. The results of functional capacity evaluations (FCEs) performed on April 20, 2010, and May 13, 2010, showed that Kinzie could perform work on a sedentary-physical-demand level only. The FCEs also showed Kinzie possessed a dysfunctional sacroiliac (SI) joint.
¶5. On October 21, 2010, Kinzie filed suit against the Appellees, alleging that his back injury resulted from the Appellees' negligent loading of light cargo items on the bottom of the trailer and heavy cargo items on the top, as well as failure to secure the cargo. Kinzie submits that a medical estimate projects his future medical expenses will total $117, 406.90. He also submits that his past medical expenses, lost wages, future medical expenses, and future lost wages amount to $664, 890.37. During discovery, Kinzie, through counsel, provided responses to interrogatories and also provided deposition testimony, all of which responded to questions relating to his injury and explaining his present physical limitations resulting from his injury.
¶6. Interrogatory 5 inquired about any opinions rendered by a doctor or medical provider regarding Kinzie's injuries. Kinzie objected to interrogatory 5 as being outside the permissible scope of discovery, but answered by explaining that he had been "assigned permanent work restrictions of no lifting greater than twenty pounds, " was prohibited from "frequent stooping or bending, " and "had been told that [he] can only perform work in the sedentary physical demand level at eight hours a day, five days a week." Kinzie further stated in his response that he had "been told that [he has] a ten percent whole person permanent impairment rating." Interrogatory 11 stated: "Describe all activities you were able to perform or participate in prior to July 14, 2009, that you cannot perform or participate in now." Kinzie answered the interrogatory by stating:
As a result of the injuries sustained in this accident, I have the following limitations: not able to cut grass or take care of lawn, unable to perform house cleaning, not able to drive but for very short periods of time, unable to stand or walk for long period[s] of time, cannot lift or carry objects or even groceries, difficulty engaging in usual sexual ...