Fleming v. Floyd

969 So. 2d 881, 2006 WL 2807173
CourtCourt of Appeals of Mississippi
DecidedOctober 3, 2006
Docket2005-CA-00042-COA
StatusPublished
Cited by9 cases

This text of 969 So. 2d 881 (Fleming v. Floyd) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleming v. Floyd, 969 So. 2d 881, 2006 WL 2807173 (Mich. Ct. App. 2006).

Opinion

969 So.2d 881 (2006)

Elizabeth M. FLEMING, Appellant,
v.
Brandy M. Thomas FLOYD, Appellee.

No. 2005-CA-00042-COA.

Court of Appeals of Mississippi.

October 3, 2006.
Rehearing Denied May 8, 2007.

*882 Robert E. O'Dell, Pascagoula, attorney for appellant.

H. Benjamin Mullen, Pascagoula, attorney for appellee.

Before KING, C.J., SOUTHWICK and IRVING, JJ.

SOUTHWICK, J., for the Court.

¶ 1. Elizabeth Fleming appeals from a judgment entered after a Jackson County Circuit Court jury found in favor of Brandy Floyd regarding fault in an automobile accident. Fleming contends that the trial court erred by allowing the accident report into evidence and in refusing to find liability as a matter of law. Though not accepting that the case should have been taken from the jury, we agree that the overwhelming weight of the evidence requires a new trial. We reverse and remand.

FACTS

¶ 2. Elizabeth Fleming and Brandy Floyd were involved in a car accident in the early afternoon of November 14, 1997, in Gautier, Mississippi. Fleming lived on the south side of Old Spanish Trail, which at that location is a two-lane road running from west to east. Fleming testified that while driving her vehicle forward, she stopped at the end of her driveway and looked both ways for oncoming traffic. The view of Old Spanish Trail to her left (westerly direction) was hindered by shrubbery and also by geography. To the left, the road curved slightly behind her and climbed. There was evidence that a vehicle approaching from the west cannot be seen until it is a distance of about two hundred feet from the end of the driveway. Fleming said she did not see any vehicles when she made one last look to the left and then drove out onto the street to cross over the eastbound lane and turned left to go to the west. There was some evidence that the point of impact was at about the moment that she completed her turn onto the westbound lane of Old Spanish Trail.

¶ 3. The oncoming driver, Floyd, testified that she saw Fleming stopped at the *883 end of her driveway and looking away from Floyd to the east. Floyd said that she maintained her course, thinking Fleming had seen her and would remain stopped until she passed. Floyd testified that Fleming pulled onto the road without looking back her direction, causing Floyd to slam on her brakes. Floyd did not know what her speed was before she started to brake. The speed limit is thirty miles per hour in that location. A skid mark of about ninety-four feet was made by Floyd's vehicle. The left front of Floyd's vehicle struck the left side of Fleming's.

¶ 4. At trial, Fleming called Jim Bowman as an expert in accident reconstruction. Bowman is a former police officer who had worked as a trial consultant for eighteen years. He testified that his investigation and subsequent calculations convinced him that Floyd was going at least forty-seven miles per hour when she began to skid and seventeen miles per hour at the point of impact. He determined that Fleming was traveling around four miles per hour at the time of impact. Bowman's opinion was that because of the obstructions in the line of sight and the speed of each vehicle, Fleming could not have seen Floyd before Fleming exited her driveway. Floyd had no expert to refute these calculations.

¶ 5. Neither driver complained of serious, immediate injuries. Fleming alleged that the accident exacerbated existing carpal tunnel syndrome in her wrists, caused injuries to her feet, and re-aggravated a pre-existing back injury. She claimed medical expenses of approximately $7,500 and damage to her car totaling $3,000. Fleming was treated and released the day following the accident by her family physician. She later saw an orthopedist due to the pain in her arms, neck, and feet. The orthopedist had previously treated Fleming for a broken foot in an unrelated incident.

¶ 6. Following a two-day trial in November 2004, the jury returned a unanimous verdict in favor of the defendant Floyd. Fleming appeals.

DISCUSSION

1: Admissibility of opinion evidence in accident report

¶ 7. At the beginning of trial, several agreed exhibits were introduced into evidence. Among them was a form entitled "Mississippi Uniform Accident Report." Some of the information on the form was easily understood, such as the names and basic information about the individuals involved and their vehicles. The largest blank space on the form was used by the officer to draw and label the driveway and the street; he did not draw the locations of the vehicles. In quite abbreviated fashion, a summary of each driver's explanation of the incident was handwritten by the officer.

¶ 8. Those parts of the form are not contested here. The arguments center on blocks in which the investigator listed different details of the investigation by using a code. Nothing on the exhibit indicated what information was to be put into each numbered block, or what the numbers used by the officer meant. To the average juror, this part of the document was unintelligible. A witness was allowed to explain, however. Whether he should have been allowed to do so is our first issue.

¶ 9. The accident report was prepared by Don Jones, a Gautier policeman who investigated the accident. There is no evidence that Jones was unavailable as a witness, but neither party called him. Testimony regarding the report came through Jim Bowman, the plaintiff Fleming's accident reconstruction expert. Both on direct *884 examination by the plaintiff's attorney and on cross-examination, Bowman testified about some of the coded information.

¶ 10. In his direct testimony, Bowman was asked to explain the methods he used to reach his conclusions. Bowman recounted his actions and analysis in several pages of transcribed testimony without being distracted by questions from the attorney. Bowman testified that on the accident report Jones had indicated that he believed the defendant Floyd's brakes were defective. The only record of the conclusion about Floyd's brakes was in one of the coded blocks on the form. Bowman believed Jones to be mistaken about the brakes. Bowman was of the opinion that Floyd's excessive speed was the sole cause of the accident and no fault could be attributed to Fleming.

¶ 11. During his cross-examination of Bowman, counsel for the defendant Floyd asked Bowman about two other codes on the police report:

[Defense attorney]: And you also notice on [the accident report] the section where it says "contributing circumstances"?
[Bowman]: Right.
[Plaintiff's attorney]: I object, your honor.
[Defense attorney]: It's already in, he's testified about it.
BY THE COURT: Your objection based on?
[Plaintiff's attorney]: My objection, Your Honor, is with where he's going with this. He's trying to get opinion evidence of the police officer into evidence. It's not admissible unless the police officer were here to sponsor it.
BY THE COURT: Well, that document has been admitted by stipulation. Overruled.

¶ 12. It appears that the trial court analyzed the issue as one of waiver due to the parties' agreement to introduce the document. From the trial judge's perspective, once a document was admitted without either side's retaining an objection, anything on the document could be explained.

¶ 13.

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969 So. 2d 881, 2006 WL 2807173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleming-v-floyd-missctapp-2006.