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Brown v. Professional Building Services, Inc.

Court of Appeals of Mississippi

October 17, 2017

CURTIS BROWN APPELLANT
v.
PROFESSIONAL BUILDING SERVICES, INC. APPELLEE

          DATE OF JUDGMENT: 03/24/2016

         TRIAL JUDGE: HON. JEFF WEILL SR. HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT

          STEVEN HISER FUNDERBURG CRAIG ROBERT SESSUMS ATTORNEYS FOR APPELLANT

          JASON HOOD STRONG, ROBERT L. GIBBS, RICHARD BENJAMIN MCMURTRAY ATTORNEYS FOR APPELLEE

          WILSON, J.

         ¶1. Curtis Brown was the clubhouse manager at Colonial Country Club in Jackson. Brown alleges that he suffered simultaneous bilateral patellar tendon ruptures when he fell over a chair in the doorway of the club's grill on a Friday evening in 2012. He alleges that the club's cleaning service, Professional Building Services ("PBS"), left the chair in the doorway. Brown sued PBS for negligence, and the case proceeded to a jury trial. The jury returned a verdict for PBS, the trial court denied Brown's post-trial motions and entered judgment on the verdict, and Brown appealed.

         ¶2. On appeal, Brown argues that the trial judge abused his discretion by (1) overruling Brown's objection to a photo of a chair in the doorway to the grill, (2) denying Brown's request for a jury instruction that specifically mentioned that the overhead lights in the grill were turned off, (3) allowing a defense expert in biomechanics to testify that Brown's claim that he suffered bilateral patellar tendon ruptures by walking into a chair was not "plausible, " (4) excluding one answer from his treating physician's deposition testimony regarding the general possibility that there could be mistakes in medical records, and (5) by responding to a note from a juror with a general instruction to continue deliberations. We find no abuse of discretion in any of these rulings. Therefore, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶3. Brown was the clubhouse manager at Colonial County Club in Jackson. Brown testified that on Friday, September 28, 2012, he arrived at the clubhouse around 5 p.m. to do his monthly inventory of the grill and 19th hole lounge. A crew from PBS arrived around 7 p.m. to begin cleaning. Around 8:30 p.m., a member of the PBS crew told Brown that they were finished and were leaving. Brown was then the only person still in the clubhouse.

         ¶4. After he finished the inventory and some work in his office, Brown began walking around the clubhouse to make sure all the doors were locked. Brown testified that "as soon as [he] made the turn" from the hallway into the doorway of the grill, he stumbled and fell over a chair. Brown testified that the "chair was right in [the] doorway" to the grill and that he did not see the chair before he walked into it. The lights were on in the hallway outside the grill, but the overhead lights in the grill were turned off. Inside the grill, beer signs, an ice cream machine, and a soda machine near the bar provided some illumination. There was also some light from floodlights in the pool area just outside the grill. On direct examination, Brown testified that the "room is never totally dark." On cross-examination, he agreed that there was "quite a bit of light there, " even with the overhead lights turned off.

         ¶5. Brown testified that after he fell over the chair, his entire body went to the ground and the chair turned over. He immediately felt intense pain in both of his knees, and then he passed out. When he regained consciousness, he tried to get to his feet, but he fell back to the ground and passed out again. When he again regained consciousness, there was a mouse close to his face, which startled him. The mouse ran away, and Brown eventually managed to retrieve his cell phone and call his brother. His brother and a nephew came to the club and took Brown to St. Dominic Hospital.

         ¶6. Brown was diagnosed with bilateral patellar tendon ruptures, and doctors performed surgery on him the next day. Brown's injuries and surgery were extremely painful, and he spent over two months at Methodist Rehabilitation Hospital after he was released from St. Dominic. Brown continued outpatient rehabilitation for months after he was released from Methodist, and his injuries required additional surgeries. For several months, he required assistance with basic daily activities, and he has never fully recovered from the injuries.

         ¶7. Although Brown alleged in his complaint and testified at trial that he was injured when he walked into and fell over a chair in the door to the grill, multiple records from St. Dominic reflect that as soon as Brown was admitted to the hospital-and before he was given any pain medication-he told doctors and nurses that he was injured when he fell forward onto both of his knees while running up stairs at work. On Sunday, the day after his surgery, Brown told Colonial's general manager, Michael Barrett, that he was injured when he fell over a chair while chasing what he thought was a rat or a mouse through the grill. While he was still at St. Dominic, Brown also told Grace Owens, a bartender at the club, that he fell over a chair in the grill while chasing a mouse or a rat. At trial, Brown testified that he could not recall giving these different versions of events to the doctors, nurses, Barrett, and Owens. He testified that a mouse was near his face the second time he regained consciousness, but he denied that he fell while chasing a mouse or running up stairs.

         ¶8. In December 2014, Brown filed a complaint against PBS alleging negligence. The case proceeded to a jury trial on March 7-10, 2016, and the jury returned a verdict in favor of PBS. The jury's verdict was in the form of a "no" answer to the question whether Brown had "proven by a preponderance of the evidence his claim that [PBS] was negligent and that such negligence, if any, proximately caused or contributed to [Brown's] damages." The circuit court denied Brown's post-trial motions and entered final judgment on the jury verdict, and Brown appealed.

         ¶9. As noted above, Brown raises a total of five issues on appeal. The Court has reviewed the briefs and record as to all five issues, and the Court is in unanimous agreement that the trial judge committed no abuse of discretion as to issues (2), (4), and (5). The controlling legal principles on those issues are well settled, and their discussion and application to the facts of this case would not add value to the jurisprudence of this State. Accordingly, we forgo discussion of those issues. Cf. Gen. Motors Corp. v. Jackson, 636 So.2d 310, 311 (Miss. 1992).

         ¶10. We address issues (1) and (3) below and discuss additional facts as needed.

         ANALYSIS

         I. The trial judge did not abuse his discretion by admitting exhibit 29, a photo of a chair in the grill doorway.

         ¶11. Prior to trial, Brown filed a motion in limine that sought to exclude several types of evidence, including photos "taken by defense counsel . . . in an attempt to 're-create' the scene." Brown's motion argued:

[T]hese photographs were taken by defense counsel . . . in an attempt to "re-create" the accident scene but were not taken contemporaneously. Moreover, the angles and positioning of the room and chair in question are not accurate and are deliberately photographed to favor Defendant. Plaintiff has no objection to general photographs of the room in question but move[s] to exclude any attempt by the Defendant to show re-created pictures to the jury allegedly to demonstrate the positioning of the chair (pre- or post-accident) are not authentic, accurate or permissible and should be excluded . . . .

         ¶12. The photo that was eventually admitted into evidence as exhibit 29 is attached as an appendix to this opinion.[1] The photo depicts a chair in the doorway to the grill.

         ¶13. In response to Brown's motion, PBS acknowledged that the chair should have been facing left rather than right-i.e., it should have been rotated 180 degrees. With that caveat, PBS maintained that the photo fairly depicted Brown's own recorded statement that the chair was "right in the doorway." PBS relied on a statement that Brown, with counsel present, gave to PBS's insurer in July 2014. In that statement, Brown said that the chair was "[l]iterally, right in the doorway, " "[m]aybe inches" or "maybe a foot" inside the room. In addition, Brown's December 2014 complaint alleged that he "fell over a chair which had been left in the middle of the doorway." At his March 2015 deposition, Brown testified that the chair was not square in the middle of the doorway but was "a little bit more" toward the right edge of the door and "a little bit more" inside the room. However, Brown also testified that he could not say exactly where the chair was positioned because:

I never saw the chair. When I stepped into it, I never saw it.
. . . .
I never saw it. I never saw the chair until I stepped-when I hit it. I don't remember seeing it. I just ...

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