United States District Court, S.D. Mississippi, Northern Division
ORDER REGARDING PLAINTIFF'S POST-TRIAL
T. WINGATE UNITED STATES DISTRICT COURT JUDGE.
THIS COURT is the plaintiff's Motion for Judgment
Notwithstanding the Verdict or, In the Alternative, New Trial
[Docket no. 2');">112]. By her motion, the
plaintiff, Bessie Spriggins (hereinafter referred to as
“Spriggins”), asks this court to set aside the
jury's verdict and either enter judgment in her favor, or
order a new trial for two reasons: according to Spriggins,
this court improperly allowed the jury to consider
comparative negligence; and this court, again according to
Spriggins, committed reversible error when it refused to
allow Spriggins' expert witness, Dr. Molleston, to
testify about Spriggins' need for future surgery.
defendant, Magnolia Hill LLC doing business as Riverwalk
Casino Hotel, LLC, (hereinafter referred to as
“Magnolia Hill”), responds that Spriggins'
motion is simply an attempt to relitigate issues already
decided by this court and that the jury did not consider
comparative negligence nor any question on future surgery
because it found Magnolia Hill was not negligent in any
court, in agreement with Magnolia Hill's argument, is
persuaded that Spriggins' Motion for Judgment
Notwithstanding the Verdict or, In the Alternative, New Trial
[Docket no. 2');">112] is not well-taken and due
to be DENIED in its entirety for the reasons below discussed.
filed her complaint in this federal forum on February 14,
2014, alleging that complete diversity of citizenship exists
between the parties and that the amount in controversy
exceeds the sum of $75, 000, exclusive of costs and
Defendants have not challenged subject matter diversity
jurisdiction; nevertheless, this court has an independent
obligation to verify that indeed it possesses subject matter
jurisdiction.[2" name="FN2" id=
"FN2">2]Upon a review of the pleadings of the
parties, this court finds it possesses diversity of
citizenship subject matter jurisdiction because Spriggins is
an adult resident of Hinds County, Mississippi. Magnolia Hill
is a foreign corporation licensed to do business in the State of
Mississippi. Spriggins claimed damages for multiple surgeries
- including a shoulder surgery and future back surgeries - in
excess of $75, 000, exclusive of costs and fees.
stated supra, Spriggins filed her complaint in this
federal forum on February 14, 2014, alleging causes of action
against Magnolia Hill for negligence under the theory that
Magnolia Hill had failed to maintain its premises in a
reasonable condition to prevent injury to business
invitees. [Docket no. 1]. Magnolia Hill filed its
Answer on April 11, 2014, invoking the affirmative defenses
of Spriggins' own negligence as the sole proximate cause
of her injuries or, alternatively, that Spriggins had
contributed to her injury through her own negligence.
many months of discovery and motion practice, the parties
were ready for a jury trial of this lawsuit that begun on
June 20, 2017. The parties contested their respective
positions over five (5) days during which they presented
their positions to the jury. After deliberation, the jury
returned a verdict in favor of the defendant finding that
Spriggins had failed to prove by a preponderance of the
evidence that Magnolia Hill had actual or constructive notice
of the allegedly dangerous condition that had caused an
injury to Spriggins. [Docket no. 102]. Accordingly, this
court entered judgment in favor of the defendant on June 27,
2017. [Docket no. 107].
with the jury's verdict, Spriggins filed her Motion for
Judgment Notwithstanding the Verdict or, In the Alternative,
New Trial [Docket no. 2');">112] on July 21, 2017.
Magnolia Hill filed its response in opposition on August 4,
2017. [Docket no. 113]. Spriggins filed her reply in support
on August 10, 2017. [Docket no. 114].
SUMMARY OF TRIAL
jury trial of this matter lasted for five (5) days during
which the plaintiff presented ten (10) witnesses and the
defendant presented two (2) witnesses. The parties both
submitted various exhibits to the jury as well.
trial centered on the date of February 14, 2013, when
Spriggins and her friend Larry Harris had been guests at
Riverwalk Casino, a hotel and casino located in Vicksburg,
Mississippi - owned/operated by Magnolia Hill. Spriggins says
that she and Larry Harris, while guests at Riverwalk, visited
to Spriggins, the buffet was busy and she had to wait about
forty-five minutes to be seated. Spriggins' statement
that the buffet was “packed” was contested by
Ruth Harris, an eyewitness with no alleged affiliation to
Magnolia Hill and who is not related to Larry Harris.
Testifying during the jury trial via video deposition, she
stated: “It wasn't a lot of people-matter of fact,
it wasn't anybody at the buffet but she [Spriggins] and
I. Wasn't anybody else up. It was just a quiet night. It
was really quiet.” After being seated, Spriggins left
her chair and approached the buffet tables. She prepared two
(2) plates. With the salad bar on her left, Spriggins began
the return to her table. Before she could reach the table,
says Spriggins, she slipped and struck the floor with her
tailbone, and left elbow. She suffered a cut to her thumb,
she fell, says Spriggins, she observed water leaking from
under the salad bar, a movable piece of equipment, she
contends. Her friend, Larry Harris, said he also witnessed
water trickling from under a machine, which created a puddle.
contrast, Ruth Harris testified that the buffet area was
clean and that she saw no water leaking from the salad bar.
Ruth Harris suggests that Spriggins may have slipped on some
salad dressing that had been dropped by a patron, or dropped
by Spriggins herself. James Abdo (“Abdo”), the
Senior Director of Food and Beverage at Riverwalk, also
disagreed with Spriggins' testimony. He testified that
the salad bar was, and is, fixed to the floor with a concrete
base-not moveable as Spriggins had testified-and hard plumbed
to the ground. Because of this firm set up, reasoned Abdo,
water could not have leaked from the bottom of the salad bar
as described by Spriggins. Moreover, Abdo claims that the
refrigeration unit has never leaked, nor has it malfunctioned
or required repairs.
Jones (“Jones”), a disgruntled former member of
the cleaning crew, though, testified that she had observed a
puddle of water shortly before Spriggins' accident, while
she was patrolling the casino with her supervisor Marilyn
Davis (“Davis”). Jones stated that Davis told her
to leave the water on the floor because there was another
spill that needed cleaning in a different location in the
casino. Davis' testimony, however, did not support that
of Jones. Davis denied speaking to Jones about a spill, or
entering the buffet prior to Spriggins' fall.
also stated that she had had to clean this particular area
frequently because Riverwalk used ice in its salad bar to
keep the vegetables cool, and the melted ice would leak onto
to Spriggins, an African American male employee of Riverwalk
came over to help her after she had slipped. Spriggins
alleged that the unknown employee told her that they had
noticed the spot and failed to clean it up. Spriggins says
she does not know the identity of this Riverwalk employee.
Regardless, Spriggins alleged that no warning signs were
placed around the puddle and she was not warned about the
puddle which, she claimed, was neither open nor obvious.
result of the slip-and-fall, Spriggins said she suffered
injuries including, but not limited to: a cut thumb; back
pain radiating down her legs; neck pain; and a torn rotator
cuff in her shoulder. Spriggins' medical evidence was
challenged by the defendant.
court instructed the jury on all issues, liability and
damages, and then submitted the jury verdict form to the
jury. After deliberation, the eight (8) person jury returned
a unanimous verdict in favor of Magnolia Hill. On the Verdict
Form submitted to the jury, the jury only reached question 1,
which asked as follows:
1. Do you find that Plaintiff has proven by a preponderance
of the credible evidence that the Defendant had actual or
constructive notice, of an unreasonably dangerous condition
on its premises at a point in time before the accident such
that it could have remedied or warned of the condition?
[Docket no. 102]. The jury answered “No”, thus
having no need to reach questions of comparative negligence
Standard of Review
District Courts must review a motion for judgment
notwithstanding the verdict under the jurisprudence governed
by Rule 50 of the Federal Rules of Civil Procedure.
A judgment notwithstanding the verdict (JNOV) should be
granted by the trial court only when the facts and inferences
point so strongly and overwhelmingly in favor of the moving
party that reasonable jurors could not arrive at a contrary
verdict, viewing the facts in the light most favorable to the
party against whom the motion is made, and giving that party
the advantage of every fair and reasonable inference which
the evidence justifies.
Spuler v. Pickar, 2d 103');">958 F.2d 103, 105 (5th Cir. 1992)
(citing Harwood & Assoc., Inc. v. Texas Bank &
Trust, 2d 1073');">654 F.2d 1073, 1076 (5th Cir. Unit A Sept.
1981)). When considering a motion for judgment as a matter of
law, the Court must consider all of the evidence contained in
the record. Reeves, 530 U.S. at 150.
In doing so, however, the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.
Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge. Thus, although the court
should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not
required to believe. That is, the court should give credence
to the evidence favoring the nonmovant as well as that
evidence supporting the moving party that is uncontradicted
and unimpeached, at least to the extent that that evidence
comes from disinterested witnesses.
Id. at 150-51 (citations omitted). This Court
“will not disturb the jury's verdict unless,
considering the evidence in the light most favorable to [the
plaintiff], the facts and inferences point so overwhelmingly
to [the defendants] that reasonable jurors could not have
arrived at a verdict except in [their] favor.”
Streber v. Hunter, 221 F.3d 701');">221 F.3d 701, 721 (5th Cir. 2000)
(citing Douglas v. DynMcDermott Petroleum
Operations Co., 144 F.3d 364, 369 (5th Cir. 1998)).
Bridges v. Enter. Prods. Co., 2d 549');">551 F.Supp.2d 549,
552-53 (S.D.Miss. 2008).
motion, plaintiff asks this court to set aside the jury's
verdict - that which favored the defendant - and either to
grant her judgment as a matter of law or, alternatively, a
new trial. Plaintiff alleges that this court abused its
discretion by instructing the jury on comparative negligence
and by excluding part of the expert witness testimony, of Dr.
Michael Molleston, proffered by the plaintiff.
also asks this court, alternatively, to view her request as a
motion for a new trial based on the same grounds. Fifth
Circuit precedent for granting a new trial is similar to its
standard for directed verdict/judgment notwithstanding the
“[a] trial court should not grant a new trial on
evidentiary grounds unless the verdict is against the great
weight of the evidence”. Pryor v. Trane Co.,
24');">138 F.3d 1024, 1026 (5th Cir. 1998) (quoting Dotson v.
Clark Equip. Co., 2d 1225');">805 F.2d 1225, 1227 (5th Cir. 1986)).
The district court has “sound discretion” to
grant or deny new trial motions; [the Fifth Circuit Court of
Appeals] will affirm absent “a clear showing that this
discretion has been abused”. Pryor, 138 F.3d
at 1026; see also Hidden Oaks Ltd. v. City of
Austin, 138 F.3d 1036, 1046 (5th Cir. 1998); Bernard v.
IBP, Inc., 259');">154 F.3d 259, 264 (5th Cir. 1998).
Whitehead v. Food Max, 265');">163 F.3d 265, 269 (5th Cir.
court is persuaded that plaintiff has not met her burden
under either a motion for a judgment notwithstanding the
verdict or under a motion for new trial. The reasoning of
this court is set out below.
plaintiff complains about the jury instructions this court
gave the jury in this lawsuit. This court held a jury
instruction conference with the parties after the close of
the evidence and formulated, with the parties, the jury
instructions it would use to charge the jury.
Regarding jury instructions, the trial court possesses
considerable discretion. Bickham v. Grant, 861 So.2d
299, 301 (Miss. 2003) (citing Southland Enters. v. Newton
County, 2d 286');">838 So.2d 286, 289 (Miss. 2003) (citing
Splain v. Hines, 2d 1234');">609 So.2d 1234, 1239 (Miss. 1992)). A
party is entitled to a jury instruction if it concerns a
genuine issue of material fact and there is credible evidence
to support the instruction. Mariner Health Care, Inc. v.
Estate of Edwards, 2d 1138');">964 So.2d 1138, 1156 (Miss. 2007)
(citing DeLaughter v. Lawrence County Hosp., 601
So.2d 818, 824 (Miss. 1992)).
Young v. Guild, 251');">7 So.3d 251, 259 (Miss. 2009).
the jury instruction conference, this court announced the
jury instructions it intended to, and did, charge the jury.
Plaintiff objected at that time about the comparative
negligence instruction. This court overruled her objection.
initial observation, the jury did not reach the question of
comparative negligence in this lawsuit sub judice.
The first question submitted to the jury asked if the jury
had determined whether the defendant was negligent in any
respect, thereby causing plaintiff's alleged injury. The
jury answered “No”. Even had this court erred in
instructing the jury to consider comparative negligence, the
given instruction had no effect upon the jury's verdict
finding that defendant had manifested no negligence
whatsoever relative to the incident in question.
cites in support King v. Kroger Co., 2d 677');">787 So.2d 677,
681 (Miss. 2001). The Mississippi Supreme Court, in
King, held that the comparative negligence jury
instruction, given in that lawsuit, confused the jury. The
court's reasoning however, was telling: “there was
not a single instance of negligence on the part of [the
Plaintiff] which could have supported a comparative
negligence finding”. Id. at 681. The
King situation is not the factual scenario here.
defendant responds, and this court agrees, that the evidence
in this lawsuit clearly provided the jury with incidents from
which the jury could have found that plaintiff was negligent.
Furthermore, says the defendant, plaintiff did not preserve
the issue of comparative negligence for either this court or
the Fifth Circuit Court of Appeals to review.
court is not persuaded that plaintiff failed to preserve this
issue. Plaintiff actually objected to any comparative
negligence analysis or presentation of such to the jury. This
court recalls that it instructed plaintiff that she had
preserved the issue and could stop objecting based on these
grounds. Plaintiff nevertheless continued to object. Fifth
Circuit precedent is quite clear on this issue, that it
“construes rule 50(b) liberally” and that
“[t]o demand slavish adherence to the procedural
sequence … would be to ‘succumb to a nominalism
and rigid ...