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Fairley v. Total Transportation of Mississippi, LLC

Supreme Court of Mississippi

October 25, 2018

CHARLES FAIRLEY, AS CONSERVATOR OF THE ESTATE OF JAMES D. OWENS
v.
TOTAL TRANSPORTATION OF MISSISSIPPI, LLC, A CORPORATION; AND WILL GATES, AN INDIVIDUAL

          DATE OF JUDGMENT: 08/01/2016

          HUMPHREYS COUNTY CIRCUIT COURT, HON. JANNIE M. LEWIS JUDGE.

          TRIAL COURT ATTORNEYS: EDWARD BLACKMON, JR. THOMAS S. MOORE OBY THOMAS ROGERS ROBERT L. GIBBS CHARLES C. WIMBERLY, III HENRY COOPER ELLENBERG, II MITCHELL DIAL MONSOUR, JR.

          ATTORNEYS FOR APPELLANT: HENRY COOPER ELLENBERG, II THOMAS S. MOORE EDWARD BLACKMON, JR. OBY THOMAS ROGERS.

          ATTORNEYS FOR APPELLEES: CHARLES CORBETT WIMBERLY, III ROBERT L. GIBBS GUY D. PERRIER.

          BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.

          MAXWELL, JUSTICE.

         ¶1. James Owens had been experiencing drug-withdrawal symptoms when he wandered off his work shift onto a dark Louisiana highway. Around this time, Will Gates was driving his employer's truck, which struck Owens. Gates did not see Owens, and the truck never left its lane of travel. Owens[1] filed a negligence suit in Humphreys County, Mississippi, against Gates and his employer. The case proceeded to trial, and the jury returned a verdict in favor of Gates and his employer. After review, we find the evidence supported the jury's verdict that Will Gates had not been negligent.

         ¶2. We also find no merit to Owens's claim that the judge wrongly denied his request for a mistrial based on Gates's cousin Abraham Gates, a justice court judge, acting as a jury consultant in his case. This case was a civil jury trial in circuit court, not justice court, and all Owens can show is that Judge Gates sat in the courtroom during trial. Like the circuit-court judge, we fail to see any grounds for a mistrial. Had Judge Gates been an attorney, he could have tried the case for the defense.[2] So his serving as a jury consultant-a role that involved no direct contact or interaction with the jury-was not prohibited.

         ¶3. Moreover, the circuit-court judge allowed Owens's counsel to address the issue of Judge Gates's attendance during voir dire. And the entire venire assured the court that any knowledge of Judge Gates would not impact its ability to be impartial. So the circuit-court judge did not abuse her discretion when she denied Owens's motion for a mistrial.

         ¶4. Therefore, we affirm.

         Background Facts and Procedural History

         I. The Accident

         ¶5. On September 23, 2013, Will Gates was driving an eighteen-wheeler for his employer, Total Transportation of Mississippi, LLC. Around 8:25 p.m., he pulled out of the Folgers Distribution Center in St. Tammany Parrish, Louisiana, onto Highway 434 where his truck struck Owens.

         ¶6. Owens was a temporary worker at Folgers who had walked off his shift without clocking out. Owens testified he left because he was not feeling well. But he had an admitted history of illegal drug use. And his live-in girlfriend, Aleisha Mills, testified that Owens had left because he was experiencing heroin withdrawal. Owens had called Mills multiple times from work. Mills testified Owens asked her to bring him some heroin so he could make it through his shift that did not end until midnight. When she finally arrived at Folgers with the drugs, Owens had left his shift, exited the Folgers facility, and walked onto the narrow, almost nonexistent shoulder of Highway 434.

         ¶7. Gates's truck had only traveled a quarter to a third of a mile from Folgers when it hit Owens. Gates testified that, when he pulled out, no one was on the highway. Gates did not see Owens before impact and figured he must have stepped out in front of him. The accident report admitted into evidence similarly concluded that Owens had stepped into the highway, because Gates's truck never left its lane of travel.

         ¶8. Gates was traveling at twenty miles per hour when he struck Owens. Owens presented an accident reconstructionist who opined that, at that speed with proper headlamps, Gates should have been able to see Owens for several seconds before impact. Owens's theory was that Gates must have been distracted. Owens's counsel questioned Gates about his cell phone records, which indicated he had made a call within a minute or so of calling 911 to report hitting Owens. But Gates insisted he was not on the phone and had not been distracted when the accident occurred. Instead, he had tried to call a family member before he left the Folgers facility. And only after she did not answer did he pull out onto Highway 434.

         ¶9. According to the accident report, that stretch of Highway 434 was dark. And Owens was wearing dark clothing. But several witnesses-including Owens-said he had been wearing a non-reflective, orange mesh work vest.[3]

         ¶10. Owens survived but sustained a head injury. After initial hospitalization, he was transferred to a neurological rehabilitation living center. Through his conservator Charles Fairley, Owens sued Gates and Total Transportation for negligence, [4] alleging the collision caused permanent injuries, including brain damage. Though Owens had a poor work history before the accident, he claimed the accident rendered him unable to work. His doctors also testified his injury impeded his ability to fight his drug addiction.

         II. Trial

         ¶11. While Owens was injured in Louisiana, he decided to file his negligence complaint in Humphreys County, Mississippi, where Gates resided. ...


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