IN THE SUPREME COURT OF MISSISSIPPI APPELLANT'S REPLY BRIEF TO VICKSBURG PRINTING AND PUBLISHING COMPANY ORAL ARGUMENT REQUESTED

Transcription

1 E-Filed Document Oct :34: CA COA Pages: 14 IN THE SUPREME COURT OF MISSISSIPPI HELENE BENSON vs. VS. MACK D. RATHER d/b/a THE TINT SHOP AND VICKSBURG PRINTING AND PUBLISHING APPELLANT CAUSE NO CA APPELLEES APPELLANT'S REPLY BRIEF TO VICKSBURG PRINTING AND PUBLISHING COMPANY ORAL ARGUMENT REQUESTED Frank G. Vollor (MSB #6621) 1025 I Jackson Street Vicksburg, Mississippi Tel: (601) Fax: (601) Attorney for Appellant, Helene Benson

2 IN THE SUPREME COURT OF MISSISSIPPI HELENE BENSON VS. MACK D. RATHER d/b/a THE TINT SHOP AND VICKSBURG PRINTING AND PUBLISHING APPELLANT CAUSE NO TS APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this court may evaluate possible disqualifications or recusal. 1. M. James Chaney Circuit Judge P.O. Box 351 Vicksburg, MS William M. Dalehite, Jr. J. Seth McCoy Steen, Dalehite and Pace, LLP P.O. Box 900 Jackson, MS Attorneys for Mack D. Rather d/b/a The Tint Shop 3. Arthur Jernigan, Jr. Jernigan, Copeland & Anderson P.O. Box 2598 Ridgeland, MS Attorney for Vicksburg Printing and Publishing Inc. 4. Frank G. Vollor Attorney at Law P.O. Box Vicksburg, MS Attorney for Helene Benson 5. Helene Benson, Appellant 901 Wright Road Vicksburg, MS 39180

3 6. Mack D. Rather d/b/a The Tint Shop, Appellee 1524 Cherry Street Vicksburg, MS Vicksburg Printing and Publishing Inc., Appellee Louis P. Cashman, III - Registered agent 237 McAuley Drive Vicksburg, MS This the 30 th day of October, Respectfully Submitted, BY: /s/ Frank (i. l/oltor Frank G. Vollor, MSB #6621 Attorney for Appellant 1025 Jackson Street Vicksburg, Mississippi Tel: (601) Fax: (601)

4 TABLE OF CONTENTS CERTIFICATE OF CERTIFIED PERSONS...i TABLE OF AUTHORITIES...iv REPRESENTATION OF FACTS... 1 STATUS OF APPELLANT HELENE BENSON AS BUSINESS INVITEE...3 UNREASONABLY DANGEROUS CONDITION...3 APPLICATION OF NEGLIGENCE PER SE...4 BUILDING CODE... 5 ORDINANCE AS NEGLIGENCE PER SE... 6 CONCLUSION... 7 CERTIFICATE OF SERVICE

5 TABLE OF AUTHORITIES STATE CASES Alexander v. Greer, 959 So.2d 586 (Miss Ct. App. 2007}...4 Cox v. Wal-Mart Stores East L.P., 755 F.3d 231, 235 (5 th Cir. 2014)...3 Kinstley v. Dollar Tree Stores Inc., 63 F.Supp 3d 658 (S.D. Miss. 2014}... 3 Mercy Reg'l Medical Center v. Doiron, 348 So.2d 243, 246 (Miss. 1977}...3 Palmer v. Anderson 11?firmary Benevolent Ass 'n, 656 So.2d 790 (Miss 1995}... 7 Snapp v. Harrison, 699 So.2d 567 (Miss. 1997}... 5 Sweatt v. Murphy, 733 So.2d 207 (Miss. 1999}... 6 Tate v. So. Jitney Jungle Company, 650 So.2d 1347 (Miss. 1995}...3 Thalp v. Bungee Corporation, 641 So.2d 20 (Miss }...4 Trull v. Magnolia Hill LLC, 171 So.3d 518 (Miss. Ct. App. 2015}... 3 Williams ex rei Raymond vs. Waf-Mart Store East L.P., 99 So.3d 112 (Miss 2012}... 7 Wood v. RIH Acquisitions MS II, LLC, 556 F.3d 274, 276 (5 th Cir. 2009)...3 ST ATUTES/CODES/RULES 65A CJS Negligence City of Vicksburg in Ordinance 6-1 (a}... 7 International Building Code Section International Property Management Code Section Resident Landlord Tenant Act et seq MCA Section MCA... 6 Rule 407 M.R.E... 4 iv

6 IN THE SUPREME COURT OF MISSISSIPPI HELENE BENSON vs. MACK D. RA TUER d/b/a THE TINT SHOP AND VICKSBURG PRINTING AND PUBLISHING APPELLANT CAUSE NO CA APPELLEES APPELLANT'S REPLY BRIEF TO VICKSBURG PRINTING AND PUBLISHING COMPANY COMES NOW, Helene Benson Appellant, and files this her reply to brief of Appellee, Vicksburg Printing and Publishing Company. Representation of Facts Appellant Helene Benson takes issue with certain representation of facts contained in the Appellee' s Brief. In the Statement of the Case Appellee asserts that Helene Benson made "new arguments" on October 30, 2014 of the violations of the International Building Code. On January 7, 2014, ten ( l 0) months prior to that, Appellant Helene Benson in Answer to Interrogatory Number 5 to discovery propounded by Vicksburg Printing and Publishing set forth the building did not comply with the International Building Code adopted by the City of Vicksburg. Appellant, Helene Benson on January 8, 214 filed her designation of Experts setting forth the violation of the International Building Code adopted by the City of Vicksburg and on January 24, 2014 served supplemental answer to interrogatories with the Preliminary Report of Expert Lamar T. Hawkins, JD, P.E. setting forth in detail the violation of the International Building Code adopted Pagel of9

7 by the City of Vicksburg. There is absolutely no basis for that assertion by Appellee Vicksburg Printing and Publishing Company. The Appellee further asserts that this "new argument" was the reason the Judge allowed letter briefs. A review of the Judges comments (Tr ) shows that Appellee Rather requested to respond to cases cited in Appellant's slides that were not in the previously filed memorandum and the Judge allowed any supplement the parties wanted to make, not because of a "new argument". In the Appellee's facts, the statement is made "She then stepped back out of her car and inquired about her keys from one of the Tint Shop employees who happened to be walking by in the parking lot." Appellee refers to "CP 134". That page does not refer to her or anyone asking for keys of anyone. It refers to the Appellant after her fall. What the record does reflect on page is that when the keys were not in her car, Mrs. Benson got out and closed the door. Still standing next to the door outside of her car she saw the young man who had put the tires on her car sitting on the concrete wall that separates the two service bays. Without moving, she asked him where her keys were. The young man then asked Appellee Rather. Rather stated back there pointing. Rather was in the first service bay. Mrs. Benson paused and waited but the young man did not move from the concrete wall to retrieve her keys. When he failed to do so, she began to walk toward the wall (R ). The Appellee's facts further allege posted signs were in the office/waiting area prohibiting customers from entering the garage and cites (CP , 218). The record reflects on page 245 (page 28 of Rather's deposition, line 15) that the signs were just inside the service bays. The court even made reference to the fact that there were no signs in the waiting room in its opinion (R-359). Page 2 of9

8 Status of i\pp-ellant H~lene Benson as Business Invitee Appellee Vicksburg Printing and Publishing Company makes argument that Benson was not an invitee at the time and location of her trip and fall. The Circuit Court found: '''Benson did not lose her status of being a business invitee in this case." See R-359. Appellee Vicksburg Printing and Publishing Company did not cross-appeal this issue and the Court is without jurisdiction to consider it. The Motion to Strike filed by Appellant Helene Benson should be granted as to the issue of the status of Helene Benson at the time of her trip and fall. Unreasonably Dangerous Condition Evidence is sufficient to establish the existence of an unreasonably dangerous condition. The 2 ~"to 3" concrete lip in the opening in the half wall left after the door was removed between the two level floors of the bays, whether categorized as a threshold or not, is not a usual and normally expected hazard. The floors in both service bays were the same level and this arbitrarily raised lip would not be anticipated and thus unusual and unreasonably dangerous. Tate v. So. Jitney Jungle Company, 650 So.2d 1347 (Miss. 1995). It was not a common architectural feature and falls outside the range of any ""categorical exceptions" Wood v. RIH Acquisitions MS II, LLC, 556 F.3d 274, 276 (5 th Cir. 2009), Cox v. Waf-Mart Stores East L.P., 755 F.3d 231, 235 (5 th Cir. 2014) nor was it a '"slight variation" as in Trull v. Magnolia Hill LLC, 171 So.3d 518 (Miss. Ct. App. 2015) which did in fact comply with ADA standards for acceptable threshold height and widths. If the facts are undisputed but reasonable minds may draw different interferences as to negligence therefrom, solution of the issue of negligence should be left to the jury. See Kinstley v. Dollar Tree Stores Inc.. 63 F.Supp 3d 658 (S.D. Miss. 2014) quoting Mercy Reg 'I Medical Center v. Doiron, 348 So.2d 243, 246 (Miss. 1977). Helene Benson has raised a material fact question that should be submitted to the jury. Page 3 of9

9 The Appellee asserts that '''Benson admitted she was not looking at the floor when she tripped because she had been focused on trying to spot her keys and that there was no conditions or circumstances that would have prevented her from seeing the threshold if she had looked down" (See Appellee Brief pages 11-12). This assertion ignores that the open and obvious defense was abolished in Tharp v. Bungee Corporation, 641 So.2d 20 (Miss. 1994). Further what Mrs. Benson specifically said was: Q: Now if you had looked down, do you think you would have seen it? A: Possibly, but I can't say for certain. Q: Was there any reason in terms of visibility or color? This is a gray-colored floor. Was there any reason that it was not seen by you, other than the fact that you were focused on your keys? A: It was not, what I tripped over, was not painted a different color. And I can't say with certainty that if it had been painted a different color I would have seen it. I don't know if that makes a difference or not, but it was not marked; it was not painted blue or red or yellow. R-131 Helene Benson does not know if she would have seen it or not if she had looked down. Rather admitted in his deposition it was his duty to remove the concrete lip to make the structure flat and safer (R-242). Contrary to the argument of Appellee this statement by Rather is admissible under Rule 407 M.R.E. as impeachment. Alexander v. Greer, 959 So.2d 586 (Miss. Ct. App. 2007). AI>-p-iication of Negligence Per Se The application of negligence per se is not procedurally or substantively barred. The Appellee Vicksburg Printing and Publishing, first asserts that negligence per se was not plead so it could not be raised by Appellant Helene Benson. In Paragraph 12 of the Complaint Appellant Helene Benson asserts: 12. The unmarked, unpainted, concrete lip, which blended with the surrounding concrete floor constitute an unreasonable, latent, dangerous and unlawful Page 4 of9

10 condition of said area and was caused by both Defendant's negligence... (em phasis added). Further in paragraph 14 of the Complaint, Appellant Helene Benson asserted: 14. As a proximate result of negligence of Defendants, Plaintiff suffered bodily injury... (emphasis added). The Appellant Helene Benson clearly plead negligence of Defendants was the proximate result of her injury. In Snapp v. Harrison, 699 So.2d 567 (Miss. 1997), a similar assertion was made against Snapp. The Court stated, ""Negligence per se is a subset of negligence in general, whether it be contributory, comparative or otherwise. Thus, a pleading of negligence on the part of the Snapps would encompass negligence per se." ld. at 571 ~21. The Court held that since negligence had been pleaded the issue (negligence per se) had been pleaded. Appellant Helene Benson's Complaint of negligence encompassed negligence per se and there is no merit to the objection of Appellee Vicksburg Printing and Publishing. Building Code Next, Appellee Vicksburg Printing and Publishing Company asserts that the International Property Maintenance Code not the International Building Code applies to existing buildings. This assertion ignores the clear applicable provisions of the International Property Maintenance Code Section 102.3, which says "'all repairs, additions, or alterations to a structure, or changes occupancy shall be done in accordance with the procedures and provision of the International Building Code... " (emphasis added). In conjunction with that provision, the International Building Code Section says '''The provisions of this code shall apply to construction, alteration,.. repair.. use and occupancy... of every building or structure or any appurtenances connected or attached to such building or structures." The lip was part of a barrier wall that was Page 5 of9

11 partially altered and repaired when the use and occupancy changed from being a service station and cars were no longer washed in the far bay (which Appellant Helene Benson asserts is sometime after 2001 when the building stopped being used as a service station) (Defendant Rather expert report substantiating the alterations and repairs at the building ceased being used as a service station is contained in the Record at pages 335 through 341). Ordinance as Negligence Per Se Last, Appellee cites Sweall v. Murphy, 733 So.2d 207 (Miss. 1999) to try to attack the application of negligence per se to the ordinance of the City of Vicksburg adopting the International Building Code. That case is distinguishable in that it deals with the very specific statute-resident Landlord Tenant Act et seq MCA. Section MCA of the act states: "(1) A landlord shall at all times during the tenancy, (a) comply with the requirements of applicable building and housing codes materially affecting health and safety..." The Plaintiff in that case tried to apply the act to make all codes, which vary from municipality to municipality a matter of negligence per see The court rejected that application as arbitrary and inequitable because of the varying codes in favor of a more uniform standard of implied warranty of habitability. That decision is in harmony with the general provision that "In order for a violation of a statute or ordinance to constitute negligence per se, the statute or ordinance violated must contain a specific requirement to do or to omit to do a definite act." (65A CJS Negligence 135). The Resident Landlord Tenant Act merely repeated the common law duty of reasonable care, but it did not set forth specific guidelines to govern behavior (65A CJS Negligence 135). The court concluded the legislative intent was not to constitute the various and divergent codes as negligence per see That case is not applicable to the present case. The International Building Code sets forth Page 6 of9

12 specific requirements and was adopted by the City of Vicksburg in ordinance 6-1 (a) set forth in Exhibit 2 page 36 and states: There is hereby adopted for purpose of establishing rules and regulations for the construction, alteration, removal, demolition, equipment, use and occupancy of buildings, and structures... that certain building code known as the International Building Code and Commentary... (emphasis added). The City of Vicksburg intended that the International Building Code to be the standard, a violation of which, is negligence per se. Mississippi has recognized the doctrine of negligence per se, which in essence provides that breach of a statute or ordinance renders the defendant liable in tort without proof or a lack of due care. Palmer v. Anderson Infirmary Benevolent Ass 'n. 656 So.2d 790 (Miss. 1995). Williams ex ret Raymond vs. Wal-Mart Stores East L.P., 99 So.3d 112 (Miss. 2012). The doctrine of negligence per se as applied to ordinances is alive and well in Mississippi and should be applied in this case. Appellee makes an unfounded argument, not supported by the records, that applying the International Building Code to buildings that pre-dated the code would be "inequitable and extreme result." Appellees continue to ignore that the provisions of the code apply to alteration, repairs, and changes in use and occupancy-all of which are involved in this building. (Appellant asserts these occurred after 2001 when the building ceased being used as a service station). Conclusion The Circuit Judge abused his discretion in granting the Summary Judgment. The appellant Helene Benson raised disputed issues of material fact and the Circuit Judge attempted improperly to try those disputed issues of material fact in the Summary Judgment proceedings. The opinion and order of the Circuit Court of Warren County should be reversed and the matter Page 7 of9

13 remanded for a trial before a jury-the proper trier of fact. Respectfully submitted, Helene Benson Attorney for Appellant Vollor Law Office 1025 Jackson Street Vicksburg, MS Phone: Fax: By: /s/ 'Frank 9. 'VolTor FRANK G. VOLLOR(MSB 6621) Page 8 of9

14 CERTIFICATE OF SERVICE I, Frank G. Vollor, Attorney for the Appellant, certify that I have this day served a copy of the foregoing document via first class mail, postage prepaid, to the following person(s): Arthur Jernigan, Jr., Esquire Jernigan, Copeland & Anderson Post Office Box 2598 Ridgeland, Mississippi William Dalehite, Jr., Esquire J. Seth McCoy Steen, Dalehite & Pace, LLP Post Office Box 900 Jackson, Mississippi M. James Chaney Circuit Judge P.O. Box 351 Vicksburg, MS Dated this the ---- day of October, /s/ frank g. 'Yotfor FRANK G. VOLLOR, ESQ. Vollor Law Office 1025 Jackson Street Vicksburg, Mississippi Tel: (601) Fax: (601) Page 9 of9