Decisions – Miss.S.Ct. – April 23, 2015

Joseph Cook v. State –  hearsay in child sex abuse cases – Joe Cook was convicted on two counts of sexual battery on his girlfriend’s ten year old daughter and for one count of directing her nine-year-old brother to have sex with the girl. He was  sentenced as an habitual offender to a life sentence.   On appeal he argues that the trial court let in inadmissible hearsay when it allowed in  the children’s statements to a Sexual Assault Nurse Examiner (SANE) as well as to their  great-grandmother and to a forensic interviewer.  The court finds that Cook’s attorney did not object to the videotaped interview so he cannot pursue that claim on appeal. As for the statements to the great-grandmother and the interviewer, the court finds that the trial court analyzed the indicia-of-reliability factors and did not abuse its discretion in finding the  statements admissible.

Cynthia Woodall on behalf of the estate of Joseph Woodall v. AAA Ambulance Services –  Tort Claims Act – In July of 2010, Cynthia Woodall’s husband suffered a cardiac arrest while working as a heating and cooling contractor at a home in McComb.  The homeowner called 911 and 911 immediately notified AAA.  A year and a half later, Woodall sued alleging that AAA then failed to respond e in a timely manner, and that the ambulance crew  failed to follow established protocol for cardiac-arrest response.  The trial court, after allowing discovery as to the ownership of AAA,  granted summary judgment on the grounds that  it was protected by the Tort Claims Act and Woodall failed to give timely pre-suit notice or file within the one year SOL.   As it turns out, AAA is owned by the City of Hattiesburg, Forrest County, and Forrest County General Hospital, a community hospital.  The Miss.S.Ct. affirms.

City of Magee v. Connie Jones –  Tort Claims Act/discretionary function – In Jan.  2007, raw sewage entered Connie Jones’s house through a shower drain and flooded several rooms of the house. In March 2008, Jones filed suit against the City of Magee  claiming that Magee had negligently installed and maintained the sewage lines providing service to her home, causing the sewage overflow. Magee filed for summary judgment based on discretionary immunity.  The trial court denied it. Magee filed an interloc. which the Miss.S.Ct. granted.  The Court ends up remanding it so that the trial court can apply the new law that has developed on discretionary immunity.

Under the new test announced in Brantley, this Court must first determine whether the overarching governmental function at issue is discretionary or ministerial. Id. at 1114. “The Court then must examine any narrower duty associated with the activity at issue to determine whether a statute, regulation, or other binding directive renders that particular duty a ministerial one, notwithstanding that it may have been performed within the scope of a broader discretionary function.” Id. at 1115. To defeat a claim of discretionary-function immunity, a plaintiff must prove that an act done in furtherance of a broad discretionary function “also furthered a more narrow function or dutywhich is made ministerial by another specific statute, ordinance, or regulation promulgated pursuant to lawful authority.” Id. This Court applied this new test to determine whether a city employee’s act of negligently unloading a stretcher from an ambulance fell within the purview of Section 11-46-9(1)(d). Id. at 1116. This Court determined that the overarching function at issue, the provision of ambulance services, was rendered explicitly discretionary by statute. Id. (citing Miss. Code Ann. § 41-55-1). However, this Court also noted that many duties related to the overarching function are subject to ministerial regulations promulgated by the State Board of Health. Id. This Court remanded the case to the trial court for a determination of whether the plaintiff could prove that the defendant had violated a narrower ministerial duty within the otherwise discretionary function of providing ambulance services. Id. at 1118.

Ricky Chase v. State Atkins v. Va. – Chase was given a hearing to determine whether he was too intellectually impaired to be subject to the death penalty.  The trial court found that Chase was not sufficiently impaired.  The Miss.S.Ct. affirms.  “We take the opportunity presented by this case to recognize the definitions of intellectual disability promulgated by the American Association on Intellectual and Developmental Disabilities in 2010 and the American Psychiatric Association in 2013. We hold that these definitions may be used in our courts in determining whether a criminal defendant is intellectually disabled for the purposes of the Eighth Amendment.”

Lowndes County v. Hal MacLanahan, IIIroad abandonment – In Sept. of 2011, C7G RR requested a public hearing to abandon a road – Co-Op Road, that crossed two set of RR tracks in Lowndes County.  A hearing was arranged.  Nobody opposed showed up.  After the road was barricaded, some residents moved the Board to reconsider its decision.  The Board revisited its decision and decided to keep the road closed.  The residents filed a bill of exceptions with the circuit court.  The Board claimed it was not timely filed.  The circuit court ended up setting aside the closing on the grounds that the Board failed to comply with MCA Sect. 65-7-121.   The Board appealed.  The COA found the bill of exceptions was untimely. The residents filed for cert. which was granted.  The Miss.S. Ct. finds that the bill of exceptions was timely because it was filed ten days after the Board reconsidered the issue and issued a new order.  “We recognize that Section 11-51-75 includes no procedure authorizing motions for rehearing or reconsideration, but neither are they prohibited.17 Boards of supervisors certainly are not prohibited from reconsidering their previous decisions and issuing new decisions.18 And when they do—as they did in this case—Section 11-51-75 allows aggrieved residents to file a bill of exceptions challenging the new decision.”  The Court remands “for the circuit court to consider, consistent with this opinion, whether the Board’s actions at the February 6 meeting complied with Mississippi Code Section 65-7-121’s procedure for abandoning a county road.”

Mine Safety Appliance v. Huey Holmes – This is another silica case.  In  2002,  Huey Holmes along with other plaintiffs filed a lawsuit alleging  silica-related injuries. Holmes alleged his injuries were the result of part time construction jobs (jackhammering concrete) that he held between 1958 and 1964.  Holmes was dismissed from that lawsuit on April 7, 2006, for misjoinder.  He filed a new lawsuit on May 16, 2007. The claims against Mine Safety Appliance Co. were based on alleged respirator failure.  MSA defended the lawsuit on statute of limitation grounds, that Holmes failed to prove exposure as well as failure to prove that MSA should have known that jackhammering concrete could lead to silicosis, etc.  Judge Pickard allowed the case to go to a Jefferson County jury which found in favor of the plaintiff.   The jury held MSA liable for 90% of Mr.Holmes’ damages, and his former employer, T.P. Groome Construction, 10% liable. The judgment against MSA was for $787,500. The Miss.S.Ct. reverses and renders.

We agree with the trial court’s ruling that the complaint was filed within the statute of limitations, and that Holmes was exposed to a harmful level of silica during the relevant time period. But we further find the trial judge erred in denying MSA’s motion for judgment notwithstanding the verdict (JNOV) regarding Holmes’s warnings claim. We also find that MSA is entitled to a judgment as a matter of law regarding Holmes’s design-defect claim because misuse of the respirator materially changed the product’s condition after it left MSA’s control. We therefore reverse and render on these issues.

Jason Isham v. Statefunds for expert where defendant indigent –   In May, 2012, Isham’s two year old stepson was hospitalized with a a severe, traumatic brain injury. “Because Isham was alone with Tommy when this occurred, he was charged with felonious child abuse of Tommy.”  Before trial, Isham’s public defender  asked for funds to hire an expert to refute the state’s expert that the injuries resulted from blunt trauma. He was denied said funds and convicted.  The Miss.S>Ct. reverses. “In light of this Court’s recent holding in Brown v. State, 152 So. 3d 1146 (Miss. 2014), we reverse Isham’s conviction and remand the case for a new trial in which the trial court must order public funds for such defense experts as are necessary for the accused to prepare and present an adequate defense.”

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