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Alonso v. Ross

Court of Appeals of Mississippi

July 25, 2017

MARLANA ALONSO, INDIVIDUALLY AND ON BEHALF OF ALL HEIRS AT LAW AND WRONGFUL DEATH BENEFICIARIES OF JAMES LEROY SMITH APPELLANT
v.
JASON C. ROSS APPELLEE

          DATE OF JUDGMENT: 12/29/2015

         FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH, Judge

          ATTORNEY FOR APPELLANT: DON H. EVANS

          ATTORNEYS FOR APPELLEE: MYLES ETHAN SHARP MARK EDWARD NORTON JOSEPH RANDLE TULLOS

          BEFORE GRIFFIS, P.J., ISHEE, CARLTON AND GREENLEE, JJ.

          ISHEE, J.

         ¶1. In February 2013, James Smith was struck by a vehicle driven by Jason Ross on Highway 49 in Hattiesburg, Mississippi. Smith died as a result of the collision. In August 2013, Marlana Alonso, Smith's daughter, filed a wrongful-death suit, individually and on behalf of all heirs-at-law and wrongful-death beneficiaries, against Ross in the Forrest County Circuit Court. Ross moved for summary judgment, which the circuit court granted. Alonso now appeals. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On February 6, 2013, Smith, a pedestrian, was struck and killed by Ross's vehicle at approximately 8 p.m. Ross collided with Smith while traveling northbound on Highway 49 in Hattiesburg, striking Smith near the front-right headlight. The collision took place near the interchange of Highway 49 and Interstate 59, roughly 100 yards south of the intersection of Highway 49 and Classic Drive.

         ¶3. At the time of the collision, Ross, who is an EMT, was en route to work at AAA Ambulance, located approximately one-half mile from the scene of the accident. Ross testified that he was traveling in the right-hand, northbound lane of Highway 49 when the accident took place. He further stated that it was dark, and the roads were wet from rain that had fallen earlier in the day-though it was not raining at the time of the collision. Ross testified that he was neither speeding, using his cell phone, nor under the influence of any substance at the time of the accident. Ross also testified that he never saw Smith before striking him with his vehicle; rather, he became aware of the collision upon feeling its effects. Ross stated that it felt as if he had struck a large animal.

         ¶4. Following the collision, Ross stopped on the shoulder of Highway 49, near the intersection of Highway 49 and Classic Drive. He then walked back toward the area where he felt the contact and saw Smith lying in the grass, off the side of the roadway. Ross stated this was the first time that he realized he had struck a pedestrian. Ross further stated that Smith was wearing a camouflage jacket and pants. With Smith lying motionless, Ross immediately phoned 911 for assistance. He then checked Smith for a pulse, found none, and began performing CPR until medical assistance arrived. It was later determined that Smith possessed a blood-alcohol concentration (BAC) of .247-over three times the legal limit for intoxication.

         ¶5. During Alonso's deposition testimony, she admitted on several different occasions that she did not have any evidence that Ross was negligent in the operation of his motor vehicle. At one point, Alonso stated, "As far as evidence, I do not have any." As a result, Alonso could not testify to: (1) where the accident occurred; (2) the lane in which the accident occurred; (3) which direction Ross was traveling; (4) what speed Ross was traveling; (5) whether Ross was keeping a proper lookout; (6) where Smith was at the time of the accident; and (7) whether Smith was exercising due care. There were no witnesses to the accident other than Ross.

         ¶6. Ross moved for summary judgment, arguing that Alonso had not asserted any claims against Ross founded in admissible evidence-rather, all of Alonso's claims were based upon mere speculation. Alonso responded, arguing that where a pedestrian is struck by a motor vehicle, some form of negligence is involved-thus, jury questions were raised, therefore requiring the denial of Ross's motion for summary judgment. The circuit court heard argument from both parties' counsel and ultimately granted Ross's motion. Alonso now appeals, arguing the circuit court erred as there exist genuine issues of material fact.

         STANDARD ...


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