TWIN CTY. ELEC. POWER ASSN. v. McKenzie

823 So. 2d 464, 2002 WL 938139
CourtMississippi Supreme Court
DecidedMay 9, 2002
Docket2000-CA-01675-SCT
StatusPublished
Cited by9 cases

This text of 823 So. 2d 464 (TWIN CTY. ELEC. POWER ASSN. v. McKenzie) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TWIN CTY. ELEC. POWER ASSN. v. McKenzie, 823 So. 2d 464, 2002 WL 938139 (Mich. 2002).

Opinion

823 So.2d 464 (2002)

TWIN COUNTY ELECTRIC POWER ASSOCIATION, Michael Lang and Jeremy Fuller
v.
Gwenevere McKENZIE.

No. 2000-CA-01675-SCT.

Supreme Court of Mississippi.

May 9, 2002.
Rehearing Denied August 15, 2002.

*465 Bradley Farel Hathaway, Greenville, William C. Trotter, Belzoni, attorneys for appellants.

Thomas T. Dunbar, Jackson, Edward Blackmon, Jr., Canton, Jonathan B. Fairbank, Jackson, attorneys for appellee.

EN BANC.

SMITH, P.J., for the Court.

¶ 1. Twin County Electric Power Association (TCEPA) and two of its employees, Michael Lang (Lang) and Jeremy Fuller (Fuller), appeal from an adverse judgment of $1,995,000 entered by the Humphreys County Circuit Court upon a jury verdict for Gwenevere McKenzie (McKenzie). McKenzie sought recovery for damages sustained in a one-car accident allegedly caused by the negligence of Lang and Fuller. McKenzie cross-appeals the circuit court's refusal to allow the jury to consider punitive damages.

¶ 2. We find that there is no evidence from which the jury could reasonably infer that the negligence of the two TCEPA truck drivers, even if admitted, proximately caused McKenzie's accident. Accordingly, we reverse and render the judgment entered on the jury verdict against the defendants.

FACTS

¶ 3. McKenzie was injured in a one-car accident on Gooden Lake Road near Belzoni, *466 Mississippi, on April 5, 1997. McKenzie, a forty-year-old certified nursing assistant, was returning home from visiting a patient. According to McKenzie, she was headed east on Gooden Lake Road when two TCEPA trucks passed her at a speed of approximately 70 mph, then veered sharply in front of her at a close distance. McKenzie testified that as the trucks passed her, they hit a pothole, splashing muddy water on her windshield and reducing her visibility. She then hit the same pothole, lost control of her GEO Tracker, and ran off the road. McKenzie was ejected from the soft roof of her vehicle, and she landed on a fence in a nearby pasture.

¶ 4. The speed limit on Gooden Lake Road is 55 mph. It was later determined that Lang was driving a half-ton pickup truck and Fuller a TCEPA bucket truck on Gooden Lake Road the morning of the accident. Both Lang and Fuller testified that they would have been eastbound on Gooden Lake Road about 10:30 a.m., the approximate time of the accident.

¶ 5. It rained the night before McKenzie's accident. The pavement itself was dry, but there was water standing in the potholes on Gooden Lake Road. The condition of the road at the scene of the accident was contested at trial, as was the speed of the TCEPA trucks and their direction at the time of the accident. Chief Deputy Sheriff Zelie Shaw, who investigated the accident, testified from his accident report that McKenzie told him twice at the scene of the accident that the trucks were traveling west, the opposite direction from McKenzie, at the time of the accident. Deputy Shaw also stated that when he spoke with McKenzie, she was alert and articulate. McKenzie testified that Deputy Shaw's report is incorrect. Deputy Shaw's account was supported by the testimony of Quincy Bell, the only eyewitness to the accident, who testified that the trucks were going west at the time of the accident at a speed of approximately 55 mph. Lang testified that he obeys traffic laws "all the time," whether he is working or not. He stated that he had a car accident when he was twenty years old and that he never drives fast anymore.

¶ 6. McKenzie testified that the road in the area of the accident was very deteriorated, having at least seven or eight holes. Charles Van Allen, a county road foreman, testified that he was instructed to repair the area in question just days after the accident and that he repaired six to seven holes. Deputy Shaw testified that he walked up and down the road the morning of the accident and that he saw only one pothole. Jean Braswell, who lives on Gooden Lake Road near the scene of the accident, testified that the numerous potholes described by McKenzie did not exist at the time of the accident and that there was only one pothole. Quincy Bell testified that there was only one pothole in the vicinity where the accident occurred.

¶ 7. The injuries sustained by McKenzie as a result of the accident included a shattered left femur, two fractured right ribs, and five fractured vertebrae in her lower back. McKenzie underwent surgery to repair her femur, and a rod was inserted into her leg. She subsequently reported to her treating physicians back pain and leg pain. In October or November of 1997, McKenzie's orthopaedic surgeon released her to return to work. McKenzie informed her employer, Sta-Home Health Agency, that she was ready to return to work with a full patient load. However, McKenzie's employment with Sta-Home was terminated in November 1997 prior to her return to work. According to Sta-Home, government cutbacks resulted in a reduction of Sta-Home's work force and because McKenzie was not available for work at *467 the time, Sta-Home determined it could no longer hold the job open for her.

¶ 8. At trial, it was McKenzie's testimony that she was unable, as a result of her injuries, to perform the duties required of her as a nurse's aide such as bending and lifting patients. Her testimony was supported to some extent by that of her physicians. Dr. Mack Gorton, McKenzie's internist, testified that McKenzie's injuries rendered her unable to lift more than 20 pounds and that this disability would limit her abilities as a nurse's aide. Dr. Fred Sandifer, an orthopaedic surgeon who treated McKenzie, assigned her an 8% impairment rating and testified that the restricted movement in McKenzie's hip due to the accident is likely to adversely affect her ability to perform the duties required of a nurse's aide. Dr. William Geissler, another orthopaedic surgeon who treated McKenzie, placed no restrictions on her activities and testified that McKenzie was ready to return to work. McKenzie testified that she had tried to find a job with other home health agencies, but that they were not hiring. McKenzie filed suit on December 19, 1997, against TCEPA, unnamed TCEPA employees, and Humphreys County. By amended complaint, filed August 17, 1998, McKenzie named Fuller and Lang and demanded $2 million in compensatory damages as well as punitive damages. Her complaint contained allegations of gross negligence against Fuller, Lang, and Humphreys County. McKenzie settled her claim with the County prior to trial for $5,000.

¶ 9. The claims against TCEPA, Fuller, and Lang (hereafter collectively referred to as "TCEPA") proceeded to trial before Circuit Judge Jannie M. Lewis and a jury. At the close of McKenzie's case-in-chief, the trial court directed a verdict in favor of TCEPA on McKenzie's claim that Lang and Fuller were negligent in failing to honk their horns as they passed her and on her claim the Lang and Fuller should not have passed her in a legal passing zone. The trial court refused to direct a verdict on McKenzie's claims that Lang and Fuller were negligent in speeding and in veering sharply in front of her as they completed their pass.

¶ 10. The jury returned a verdict for McKenzie in the amount of $2,247,921. The trial court refused to allow the jury to consider the question of punitive damages. On August 18, 2000, the court entered judgment on the jury's verdict, limiting the judgment to $2,000,000, the amount requested in McKenzie's complaint, pursuant to Miss. R. Civ. P. 54(c).

¶ 11.

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Cite This Page — Counsel Stack

Bluebook (online)
823 So. 2d 464, 2002 WL 938139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/twin-cty-elec-power-assn-v-mckenzie-miss-2002.