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Howell v. Equipment, Inc.

Court of Appeals of Mississippi

December 2, 2014

CHRISTOPHER SHANE HOWELL, WENDY HOWELL, AND BRIDGEFIELD CASUALTY INSURANCE COMPANY, INC., APPELLANTS
v.
EQUIPMENT, INC., APPELLEE

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[Copyrighted Material Omitted]

Page 594

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/09/2012. TRIAL JUDGE: HON. JEFF WEILL SR. TRIAL COURT DISPOSITION: JUDGMENT ENTERED IN FAVOR OF APPELLEE.

FOR APPELLANTS: WALTER C. MORRISON IV, ROGEN K. CHHABRA, DARRYL MOSES GIBBS, ASHLEY L. HENDRICKS.

FOR APPELLEE: DIANE PRADAT PUMPHREY, NICHOLAS D. GARRARD, CASEY DALE YOUNGER.

BEFORE IRVING, P.J., BARNES AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

OPINION

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NATURE OF THE CASE: CIVIL - PERSONAL INJURY

BARNES, J.:

[¶1] Christopher Shane Howell suffered severe bodily injury when the extended platform of the scissor lift on which he had been working fell several feet to the ground. Shane, along with his wife, Wendy Howell, (the Howells) subsequently brought a negligence claim against the lift's manufacturer, JLG Industries Inc. (JLG), and the lift distributor, Equipment Inc.[1] They alleged that JLG had negligently manufactured the lift and that Equipment Inc., which routinely performed service on the lift for Shane's employer, had negligently maintained the lift and allowed it to be used in an unsafe condition.

[¶2] After a jury trial, a verdict was rendered in favor of the defendant, Equipment Inc.[2] The Howells filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV), which was denied by the Hinds County Circuit Court. The Howells now appeal. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

[¶3] On January 29, 2010, Shane was employed as a laborer at a jobsite in Ridgeland, Mississippi, when he fell approximately twelve to fifteen feet from the elevated platform of a JLG CM2546 scissor lift, struck his head on the ground, and suffered broken ribs, an injury to his shoulder, facial fractures, and brain injury.[3] The lift is an aerial work platform that extends vertically, unfolding into an " X" pattern. The main platform contains an extending " bridge" that allows the user to gain closer access to the work area. Shane was working on this extended platform when it collapsed and landed on top of him.

[¶4] The scissor lift manufactured by JLG had been purchased by Equipment Inc., which later sold the lift to Bates Drywall, Shane's employer, in 1993. Equipment Inc., however, continued to perform service maintenance and " annual" inspections of the scissor lift for Bates. (The term " annual" is in quotes because,

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although Equipment Inc. had performed ongoing service on the scissor lift since 1997, documentation shows that complete inspections of the lift were only performed in September 1998, March 2000, June 2003, January 2008, and June 2009.) On January 28, 2010, the day prior to Shane's accident, an employee of Equipment Inc., Hugh Boykin, had conducted a service call for the lift in question to address a steering problem.

[¶5] As stated, the Howells filed a negligence complaint against JLG and Equipment Inc. The basis of the Howells' complaint against Equipment Inc. was the lack of a weight-capacity decal indicating the maximum weight limit for the platform extension (250 pounds). They contended that Boykin should have noted the decal was missing when he came out for the service call and informed Bates Drywall that the lift was unsafe for use. They also argued that " C-channels" on the platform were bent, indicating another potential safety issue.

[¶6] After a jury trial, a verdict was entered in favor of Equipment Inc. The circuit court subsequently denied the Howells' motion for a new trial or, in the alternative, a JNOV, and they filed an appeal, which was deflected to this Court. Finding that the verdict is not against the overwhelming weight of the evidence and that the circuit court did not abuse its discretion in the giving of certain jury instructions, we affirm.

DISCUSSION

I. Whether the circuit court erred in denying the Howells' motion for a new trial or, in the alternative, their motion for a JNOV.

[¶7] The Howells argue that the circuit court erred in denying their motion for a new trial, in which they argued that the jury's verdict was against the overwhelming weight of the evidence.

A motion for a new trial challenges the weight of the evidence. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005). When reviewing the denial of a motion for a new trial, " we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. (citing Herring v. State, 691 So.2d 948, 957 (Miss. 1997)). Furthermore, " the evidence should be weighed in the light most favorable to the verdict." Id.

Hathaway v. Lewis, 114 So.3d 783, 786 (¶ 7) (Miss.Ct.App. 2013). Alternatively, the Howells contend the circuit court should have granted their motion for a JNOV because the evidence was legally insufficient to support a verdict for Equipment Inc. " A motion for a JNOV 'tests the legal sufficiency of the evidence supporting the verdict.'" Fred's Stores of Tenn. Inc. v. Pratt, 67 So.3d 820, 824 (¶ 18) (Miss.Ct.App. 2011) (quoting Goodwin v. Derryberry Co., 553 So.2d 40, 42 (Miss. 1989)). Evidence is considered " in the light most favorable to the party against whom the motion has been made, disregarding any evidence on the part of the movant, which is conflicting." Id. (quoting Bruner v. Univ. of S. Miss., 501 So.2d 1113, 1116 (Miss. 1987)). " A JNOV is not proper 'if there is credible evidence from which to draw reasonable inferences, supporting the jury's verdict.'" Id. (quoting Bruner, 501 So.2d at 1116).

[¶8] The Howells contend that an August 14, 1992 " Distributor Sales and Service Agreement" between JLG and Equipment Inc. (referred to in the agreement as " Distributor" ) imposed an affirmative duty upon Equipment Inc. to address any safety issues with the machine used by

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Bates Drywall. The agreement states in part:

As and to the extent that Distributor becomes aware that any Product is being improperly operated or that any Product requires maintenance or service for its continued safe operation, Distributor shall notify the owner and user of said Product of such and use its best ...

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