Articles Posted in Mississippi

A Mississippi Appeals court recently affirmed a trial court decision to throw out a Wal-Mart premise liability case involving a damaged container and corrosive burns. Instead of letting the events (and the injuries) speak for themselves, the court places an extremely high evidentiary expectation that was out of the plaintiff’s grasp. Should courts be allowing corporations to escape liability just because the plaintiff is unable to show every single detail of the accident when he is clearly injured? It is a challenge courts have wrestled with for hundreds of years.

What happened? A patron visited a Mississippi Wal-Mart in the fall of 2010. While perusing the aisles, he selected a bottle of bleach to put in his basket. After leaving the checkout counter, the patron realized he accidentally forgot to purchase the bleach and placed the bottle on his lap to return to the cashier. Unfortunately, this bottle of bleach was leaking and spilled its contents on his legs and thighs. Because of a prior injury, the man had been paralyzed from the waist down since 1967 and he did not become aware of the spilled bleach until the cashier noticed the leaking bottle. The bleach caused chemical burns on his thigh and knee, and he brought suit against the Wal-Mart Corporation.

The patron filed a premise liability claim that alleged Wal-Mart was negligent and had knowledge of a dangerous condition. Wal-Mart made a motion for summary judgment, and the trial court dismissed the case, saying that the patron failed to prove Wal-Mart’s negligent act. The Mississippi Appeals Court affirmed the lower court’s decision.

Our firm has spend a lot of time fighting battles with defense lawyers over independent medical exams. This Mississippi case in the Welding Fume Products Liability MDL (venued in Ohio) involves the defendant’s request for a second independent medical exam and the concern plaintiffs have about the request.

At the defendants’ request, the plaintiff had an IME with a neurologist who – shocker! – found that the plaintiff’s injuries were not from welding fume. Defendants then wanted the plaintiff to submit to a second IME involving electrophysiological testing by neurophysiologists. Plaintiff refused and defendants’ filed a motion to compel.

Plaintiff’s lawyer argued that the plaintiff should not have to undergo electrophysiological testing because it would be extremely stressful for him, since he suffered a severe electrocution accident in 2000.

The Mississippi Supreme Court, again seeing it the defendant’s way, reversed an intermediate appellate court’s reversal of summary judgment in a slip and fall case at Gulfport-Biloxi Regional Airport.

The plaintiff, an Air Force doctor (a plaintiffs’ lawyer’s dream), sued the airport after he slipped and tripped down a wet set of aluminum steps. It was a real fall: he fell down two stories of steps.

The airport sought summary judgment under the dreadful Mississippi Tort Claims Act. The argument was twofold. First, they alleged that the airport had immunity under the MTCA because the dangerous condition plaintiff alleged was open and obvious to one exercising due care. The second – and more annoying – is that the airport is immune from suit because the alleged acts or omissions of the airport were discretionary functions.

One of the biggest exceptions to governmental liability under the local government tort claims act is the discretionary function exception. The Federal Tort Claims Act has the same exception. The doctrine is controversial and has lead to just a ton of lawsuits. The discretionary function exception protects the government from liability for any claim based upon the exercise or performance, or the failure to exercise or perform a discretionary function or duty on the part of a government employee. The idea was to prevent judicial second-guessing of legislative and administrative decisions for which there was a good reason – grounded in social, economic, and political policy – regardless of whether a personal injury claim might be implicated.

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A former Mississippi State University baseball player has filed a lawsuit against the school’s baseball coach. The lawsuit claims the player was forced to pitch while injured.

The lawsuit adds in an allegation that to me diminishes the credibility of the lawsuit. Plaintiff claims the coach “forced” his team to practice more during the week than was allowed by NCAA regulations. First of all, you don’t have to force many college kids to play baseball. And that alleged forcing has nothing to do with his injuries. The purpose of the claim is to expose an evil that has nothing to do with the lawsuit, really. Moreover, the player had a choice to pitch or not pitch. He chose to pitch.

Cases like this – rightly or wrongly – rub me the wrong way. I have a lot of clients minding their own business, driving down the street and someone comes across the double yellow line drunk and hits them. These people never had a choice. This young man had a choice and made it.

A Jefferson County, Mississippi jury has ordered Sherwin-Williams Co. to pay $7 million to a boy who suffered brain damage after ingesting lead-contaminated paint chips. In ruling for the plaintiff, jurors found that the Sherwin-Williams was liable for the boy’s brain injuries.

An lawyer for Sherwin-Williams said they plan to appeal the verdict. With the Mississippi Supreme Court being what it is today, plaintiff’s lawyers have a ways to go.

The Accident and Injury Lawyer Blog has gotten a good bit of traffic regarding an email to me that I posted from Justice Oliver E. Diaz, Jr., a current Mississippi Supreme Court justice who is running for reelection. The New York Personal Injury Attorney Blog has a good post this week about why electing judges is a bad idea.

I’m going to go out on a limb and suggest that Justice Diaz would agree with me.