DATE OF JUDGMENT: 10/10/2012.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. WILLIAM A. GOWAN, JR.
FOR APPELLANT: JOE N. TATUM.
FOR APPELLEES: KEITH D. OBERT, WILLIAM F. BROWN.
RANDOLPH, PRESIDING JUSTICE. LAMAR, KITCHENS, CHANDLER AND KING, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND PIERCE, J. COLEMAN, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
¶1. Kenyatta Cheeks was entering an AutoZone store when he was struck by a vehicle driven by Jason Johnson. The jury returned a verdict for Cheeks in the amount of $2,580,000, finding that AutoZone was forty-five percent at fault and Johnson was fifty-five percent at fault. The trial court entered judgment in the sum of $1,161,000, with interest at the rate of five percent per annum from the date of judgment until the amount is paid in full. Later, the trial court granted AutoZone's motion for judgment notwithstanding the verdict (JNOV). Cheeks appeals. We reverse the JNOV and remand the case to the Hinds County Circuit Court for entry of judgment consistent with this opinion.
¶2. On Saturday evening, May 1, 2010, Cheeks and Cleveland Dortch drove to an AutoZone store located at 1401 Ellis Avenue, Jackson, Mississippi, to purchase auto parts. Cheeks parked at a nonstorefront
side of the store, where there was no raised sidewalk or protective bollards.
¶3. The store provides parking facing two sides of the building. The store has an angled glass entranceway connecting the storefront with a masonry wall. The east, mostly glass wall served as the storefront. Vehicles parking on the north side primarily faced a solid wall with no glass. The storefront wall had bollards in a raised sidewalk that were erected in conjunction with the original construction of the store. No bollards protected the entranceway connected to the north wall.
¶4. As Cheeks opened an entrance door, he heard a warning. Cheeks turned to see a car " feet away," bearing down on him. Before Cheeks could make it behind a bollard, he was struck by a car driven by Jason Johnson. Cheeks sustained significant injuries.
¶5. Cheeks filed suit against AutoZone and Johnson. During discovery, AutoZone identified the bollards as a " safety measure" in response to an interrogatory, which was read to the jury. The interrogatory is as follows:
INTERROGATORY NO. 14: Identify and describe all safety measures taken and equipment used by you on May 1, 2010 for the protection of your patrons and invitees of the subject AutoZone store located at 1419 Ellis Avenue, Jackson, Mississippi for the risk of being struck by a motor vehicle, and for each piece of major equipment, state whether it was operative the date of May 1, 2010.
The pertinent part of the answer reads as follows:
RESPONSE: . . . all safety measure (bollards, elevated walkway and/or tire stops or curb stops) designed to protect pedestrians on the raised walkway immediately adjacent to the building of the subject AutoZone store located at 1419 Ellis Avenue, Jackson, Mississippi, from parking vehicles, were in place and in use on May 1, 2010, and in plain, open and obvious view. . . .
¶6. On the morning of the trial, the parties agreed to dismiss Jason Johnson from the lawsuit with prejudice. Cheeks testified that, on May 1, 2010, he had worked on two or three cars at his shop. Later, Dortch came by to visit. The two went to Harbor Freight Tools (" Harbor" ) to pick up a car jack. After leaving Harbor, Cheeks decided to stop at AutoZone to purchase parts for autos to be worked on Monday. Cheeks pulled into the AutoZone and parked, facing the wall on the north side. Cheeks testified that it was " kind of drizzling[,] raining" as they pulled into AutoZone. Cheeks was familiar with the layout of the store, as he had frequented it many times. He was aware that bollards protected the storefront, but not the other sides. Cheeks testified that " I figured that AutoZone had put enough bollards in place to stop a car from getting onto the ...