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Anderson v. Salaam

Court of Appeals of Mississippi

September 24, 2019

DANIEL ANDERSON APPELLANT
v.
JEROME SALAAM AND TRI-STATE EXPEDITING SERVICES, INC. APPELLEES

          DATE OF JUDGMENT: 04/13/2018

          CHICKASAW COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. JOHN KELLY LUTHER TRIAL JUDGE:

          ATTORNEY FOR APPELLANT: MARK T. FOWLER

          ATTORNEYS FOR APPELLEES: LEWIS W. BELL ROBERT H. PEDERSEN

          BEFORE CARLTON, P.J., WESTBROOKS AND C. WILSON, JJ.

          C. WILSON, J.

         ¶1. Daniel Anderson filed this civil action against Jerome Salaam and Salaam's employer, Tri-State Expediting Services Inc. Anderson alleged that Salaam, while acting as an agent or employee for Tri-State, negligently caused an automobile accident on August 31, 2012, just outside of Okolona, Mississippi. As a result of the accident, Anderson alleged damages of $16, 578.36 for medical bills, $27, 000 for lost wages, and unspecified damages for pain and suffering.

         ¶2. On August 5, 2018, a Chickasaw County jury allocated 25% fault to Salaam and Tri- State and 75% fault to Anderson and determined that Anderson suffered $9, 000 in total damages. On April 13, 2018, the Circuit Court for the Second Judicial District of Chickasaw County entered a final judgment and ordered Salaam and Tri-State to pay Anderson $2, 250 ($9, 000 x 25%) based on the jury's verdict allocating 25% fault to Salaam and Tri-State. On April 18, 2018, Anderson moved for a judgment notwithstanding the verdict, for an additur, or, alternatively, for a new trial. The circuit court denied Anderson's post-trial motion on June 4, 2018, and on June 26, 2018, Anderson filed a notice of appeal from the final judgment and from the circuit court's denial of his post-trial motion. Aggrieved with the amount of the jury's damages award, Anderson raises two issues on appeal, which we will encompass in one: whether the trial court abused its discretion in denying his motion for an additur or alternatively, for a new trial.[1]

         ¶3. After a thorough review of the record, we affirm the circuit court's denial of Anderson's post-trial motion.

         FACTS

         ¶4. The facts of this case originate from an automobile accident on August 31, 2012, involving Anderson and Salaam on Highway 32 just outside of Okolona, Mississippi. At the time of the accident, Anderson worked for Orkin. Anderson and his passenger, Orkin employee Steven Tracey, were driving Anderson's Orkin-owned pickup truck eastbound on Highway 32. Anderson had missed his next customer's location and was looking for a place to turn around. Salaam, carrying a trailer full of furniture behind an 18-wheeler under lease from Tri-State, had been following Anderson eastbound on Highway 32 since he left his last checkpoint in Houston, Mississippi. As Anderson attempted a left turn, the front-right (passenger) side of Salaam's truck collided with the left side of Anderson's truck just behind the driver's door. Anderson's truck came to rest in the private drive on the north side of Highway 32. Salaam's cab came to rest in the westbound lane of Highway 32. Salaam's trailer sprawled both the westbound and eastbound lanes of the highway.

         ¶5. Anderson alleged that Salaam, while acting as an agent or employee for Tri-State, negligently caused the automobile accident, resulting in bodily injuries and damages to Anderson. Salaam and Tri-State conversely alleged that Anderson's negligence proximately caused and/or contributed to the automobile accident.

         Liability Evidence

         ¶6. At trial, Anderson relied on testimony from Salaam and Mississippi Highway Patrol investigating officer Wesley Kelley to contend that Salaam caused the accident when he attempted to pass Anderson in a no-passing zone. Officer Kelley's accident report indicated that Salaam violated the rules of the road by improperly attempting to pass and overtake Anderson's vehicle, based on Officer Kelley's finding that Salaam's tractor-trailer came to rest across the solid yellow center line of Highway 32. In contrast, Salaam repeatedly denied that he attempted to pass Anderson's vehicle and stated that he only moved into the no-passing zone in an attempt to avoid a collision with Anderson's vehicle. Salaam also stated that he believed Anderson was driving erratically.

         ¶7. Anderson also relied on testimony from accident reconstruction expert Jason Walton. Anderson retained Walton to develop the liability theory that Salaam had attempted to improperly pass Anderson in a no-passing zone. Walton, however, actually contradicted Anderson's "improper passing" theory. Based on his extensive experience as an accident reconstruction expert, Walton opined (1) that Salaam was not trying to pass or overtake Anderson; (2) that Officer Kelley incorrectly indicated on his accident report that Salaam was trying to pass Anderson; and (3) that instead, the accident occurred because Salaam was following too closely to avoid hitting Anderson's vehicle. While Walton concluded that Anderson did not cause the accident, he qualified his opinion on the assumption that Anderson was not distracted while using a cellphone at the time of the accident.[2]

         ¶8. Salaam and Tri-State relied on Salaam's testimony and the testimony of witness Steven Tracey to contend that Anderson negligently caused the accident when he signaled to make a right turn before abruptly turning left. Salaam testified that just before the accident, Anderson nearly slowed to a complete stop, signaled right to turn into a driveway on the eastbound side of the road, then suddenly turned left. According to Salaam, he moved into the westbound lane of Highway 32 to avoid Anderson upon Anderson's slowing and signaling a right turn. Salaam further testified that he could see Anderson holding and using a cellphone just prior to and during the accident. Tracey, who was riding with Anderson when the accident occurred, disputed Anderson's testimony that Tracey was asleep prior to and leading up to the time of the accident. Tracey testified that prior to the accident, he and Anderson were looking for directions and had concluded that they had missed their turn. Tracey also stated that Anderson was in fact on his cellphone, and that while on the cellphone, Anderson abruptly made a left turn to turn around.

         ¶9. After hearing the trial testimony and evidence, the jury unanimously found that both Anderson's and Salaam's negligence proximately caused the accident. The jury allocated 25% fault to Salaam and Tri-State and 75% fault to Anderson.

         Damages Evidence

         ¶10. Anderson testified that at the time of the accident, he hit his head against the glass, but that the impact was not hard enough to break the glass, to cause bleeding, or to knock him out. He described his mental and physical state as being "on an adrenaline rush, " and he neither reported nor complained of any injuries to Officer Kelley, who testified that Anderson seemed uninjured. At the scene of the accident, Officer Kelley neither called an ambulance nor reported an injury in the accident report. Around midnight the day of the accident, however, Anderson presented to the emergency room because he "started just tightening up and tensing up to the point [he] could not move at all."

         ¶11. Anderson received the following treatment as a result of the August 31, 2012 accident:

09/01/2012 Dr. Gallaher at the North Mississippi Medical Center diagnosed cervical strain and restricted Anderson to lifting no more than 25 pounds for four days. X-rays showed no ...

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