OF JUDGMENT: 03/24/2016
COUNTY CIRCUIT COURT, HON. JEFF WEILL, SR. TRIAL JUDGE:
COURT ATTORNEYS: STEVEN HISER FUNDERBURG JASON HOOD STRONG
ROBERT L. GIBBS ROGER C. RIDDICK CRAIG ROBERT SESSUMS MARCIAL
DAVIDSON FORESTER, III
ATTORNEYS FOR APPELLANT: STEVEN HISER FUNDERBURG CRAIG ROBERT
ATTORNEYS FOR APPELLEE: JASON HOOD STRONG ROBERT L. GIBBS
RICHARD BENJAMIN McMURTRAY
Curtis Brown petitioned this Court for a writ of
certiorari, claiming the Mississippi Court of
Appeals erred in affirming the judgment entered by the Hinds
County Circuit Court in favor of Professional Building
Services (PBS). Brown claimed the trial court had abused its
discretion by admitting certain evidence and by instructing
the jury with instructions to which Brown had objected at
Finding that the jury was instructed properly on this
evidence and that the testimony was provided by an expert
qualified under Mississippi Rule of Evidence 702, we affirm
the judgment of the Court of Appeals, and we affirm the
judgment of the circuit court.
AND PROCEDURAL HISTORY
Brown was the former clubhouse manager at Colonial Country
Club in Jackson, Mississippi, which closed its doors in 2014.
On September 28, 2012, Brown arrived at the clubhouse around
5 p.m. to do a monthly inventory of the "19th Hole
Lounge" and "the grill"-a restaurant inside
the clubhouse. That night, PBS employees also were at the
clubhouse, cleaning and vacuuming the grill area. Around 8:00
p.m., the PBS staff left, leaving Brown alone in the
After finishing his reports, Brown walked around the
clubhouse to make sure all of the doors had been locked.
Brown testified that, as he approached the grill, he noticed
that the overhead lights were off, that the lights were on
behind the bar, in the pool area outside, and in the hallway
outside the grill. An ice cream machine, a soda machine, and
beer signs inside the grill also produced some light. Brown
noted that, with this secondary lighting, "[the grill]
is never totally dark." On cross-examination, Brown told
PBS that there was "quite a bit of light," even
though the overhead lights had been turned off.
Brown testified that, "as soon as [he] made the
turn" into the doorway of the grill, he stumbled and
fell over a chair positioned "right in the
doorway." He testified that his whole body went over the
chair, the chair turned over, and he hit the ground. He felt
immediate pain in his knees and face, then he passed out.
When he woke up, he noticed his knees were swollen, but there
was no blood. He tried to stand up but fell and fainted
again. When he woke up a second time, Brown crawled to his
phone and called his brother, who arrived at the clubhouse to
take him to St. Dominic Hospital.
On separate occasions at the hospital, and before he was
given pain medication, Brown told a doctor and a nurse that
he had been injured when he hit a chair while running up
stairs at work. But he told Michael Barrett, Colonial's
general manager, that he had been injured chasing a mouse
through the grill. He later reiterated the mouse story to
Grace Owens, a bartender at the clubhouse. However, at trial,
Brown testified that he did not remember describing any of
these alternative versions of the events.
At St. Dominic Hospital, Brown was diagnosed with a bilateral
patellar tendon rupture in both knees and underwent surgery
for the injuries a few hours after he was admitted. Brown
spent three days recovering in the hospital; then, he was
transferred to Methodist Rehabilitation Hospital, where he
had two more operations and spent more than two months
In December 2014, Brown filed a negligence action against
PBS. When the trial concluded on March 10, 2016, the jury
returned a verdict in favor of the defendant. After reviewing
Brown's post-trial motions, the circuit court denied
Brown's requests for relief and entered a final judgment
on the jury verdict.
Brown timely appealed, raising five issues. Therein, Brown
argued that the trial judge had 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.
Brown v. Prof'l Bldg. Servs., Inc., 2017 WL
4641265, at *1 (Miss. Ct. App. Oct. 17, 2017). The Court of
Appeals held that the trial court properly had ruled on
Brown's claims and affirmed its ruling. The court first
found issues (2), (4), and (5) to have been "well
settled, and [that] their discussion and application to the
facts of this case would not add value to the jurisprudence
of this state." Id. at *2. (citing Gen.
Motors Corp. v. Jackson, 636 So.2d 310, 311 (Miss.
1992)). The court analyzed only issues (1) and (3) and
discussed only the photograph of a chair in the doorway of
the grill and the admissibility of testimony by Dr.
Bain-"an expert witness in the field of
biomechanics." Id. at *5. Finding that the
circuit court appropriately had allowed the jury to consider
both the photograph and Dr. Bain's testimony, the Court
of Appeals affirmed the circuit court's verdict, noting
that "[t]he jurors were capable of considering the photo
and the uncomplicated testimony . . . without being confused
or misled." Id. at *5.
Aggrieved, Brown petitioned this Court for a writ
certiorari. We granted certiorari to review
whether the trial court erred in overruling Brown's
objection to certain photographic evidence and expert
testimony submitted by the defense.
Whether the trial court abused its discretion by
allowing Exhibit 29 into evidence.
Before trial, Brown filed a motion in limine to
exclude several pieces of evidence. Now before this Court is
Exhibit 29: a photograph taken by defense counsel several
years after the incident in an attempt to recreate the scene
of the incident. The photograph was one of many photographs
admitted into evidence by the defense to show the jury what
the grill and doorway looked like. Unlike the other
photographs, Exhibit ...