Folks may recall that many lawyers were awaiting a decision in Double Quick v. Lymas, in which the plaintiff had a verdict reduced because of the damages cap. The idea was that the Mississippi Supreme Court was going to use the case as an opportunity to hold the damages cap unconstitutional. I was convinced otherwise for several reasons:
- I thought that the really serious issue in the case was liability– I thought it most likely that the court would avoid the constitutional argument (as it would have to) because the plaintiff had fundamental flaws in its liability case.
- I thought that the plaintiff’s constitutional argument was extremely weak; I can imagine, easily, some constitutional arguments against the damages cap, but did not think the plaintiff had made any of them.
I also thought that Wayne Drinkwater had filed an extremely effective amicus brief on the liability issue, telling the court that premises liability law was all screwed up and that it should be fixed, and, if the law was fixed, the court would have to reverse and render. This was effective because Double Quick was forced to argue “under the premises liability law we’ve got, we should win, reverse and render.”
In posts earlier this year, I wrote about at length about the constitutional arguments, along with a side-trip into some legal history in the Double Quick brief, a shorter post about absent constitutional arguments, explained why the amicus brief was effective and why I thought the case was about liability, and then, after Will Bardwell said he thought the court would (over)reach to get to that meaty constitutional issue and perhaps hold the damages cap unconstitutional, I explained further why I thought not.
So, I’ll tell you that Justice Kitchens wrote the Double Quick opinion, and ask whether you think Will or I get to collect the “I told you so.”
What if I add that the opinion is unanimous. Change the guess?
The opinion decides that there was no proof of proximate cause– that there was no proof causally connecting the shooting of the plaintiff to anything the plaintiff proved (through expert testimony) that Double Quick could have done to make a more secure environment. Kitchens’s opinion finds that the expert testimony the plaintiff offered about security measures was speculative and therefore inadequate on the subject of causation.
The amicii did not get there hope of some clarification of premises liability law, but I’m betting everyone on the defense side (friends included) are pretty happy about this one.
This should be in an open-thread comment, but the TLC tv network has a whole hog BBQ contest in pits, the way NMC likes.
I expected the case to be bounced on causation, but not in a unanimous opinion by Kitchens.
And I confess that I don’t understand the reasoning at all.
To prevail, Lymas must demonstrate: “(1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) damages; and (4) a causal connection between the breach and the damages, such that the breach is the proximate cause of the damages.” Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So. 2d 413, 416 (Miss. 1988) (citations omitted). “Although not an insurer of an invitee’s safety, a premises owner owes a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another.” Simpson v. Boyd, 880 So. 2d 1047, 1051 (Miss. 2004) (citing Newell v. S. Jitney Jungle Co., 830 So. 2d 621, 623 (Miss. 2002)). Generally, “criminal acts can be intervening causes which break the causal connection with the defendant’s negligent act, if the criminal act is not within the realm of reasonable foreseeability.” O’Cain v. Harvey Freeman & Sons, Inc., 603 So. 2d 824, 830 (Miss. 1991) (citing Touche Ross v. Commercial Union Ins., 514 So. 2d 315, 324 (Miss. 1987); Robinson v. Howard Bros. of Jackson, Miss., 372 So. 2d 1074, 1076 (Miss. 1979)). In premises liability cases, foreseeability may be established by proving that the defendant had “(1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.” Corley v. Evans, 835 So. 2d 30, 38-39 (Miss. 2003) (quoting Lyle v. Mladinich, 584 So. 2d 397, 399 (Miss. 1991)).
Kitchens writes that the only proof of proximate cause was from the experts, and that it was inadequate. I’ll agree with the latter, but since when does a jury have to have expert testimony to find foreseeability or causation in a premises-liability case?
I could see ruling that the alleged “atmosphere of violence” was too thinly proved to withstand a JNOV motion. But bouncing the case on causation implies, to me at least, that D-Q could’ve been held to have a duty and have breached it, which ordinarily would leave causation for the jury, no?
I’m not as puzzled by Kitchens’s decision, although I think he could explain it better, both by saying some things he doesn’t say but implies and by omitting some things he does say. The business about the experts and proof of causation is confusing.
In the proximate cause cases in textbooks, the courts have no problem finding there’s no causation in an almost jury-like way; in law school (and nothing I’ve read since has disabused me of this), I thought understanding proximate cause involved developing an instinct for how the cases come out and then using the language that explains that particular outcome; the incantation doesn’t explain the outcome, merely announce it. Kitchens skips over the incantation. (Normally, one might expect him to find that expert testimony sufficient to support a jury verdict..).
The way Kitchens describe the randomness of this shooting– these guys were having a verbal argument, Lymas goes by and he’s shot with his back to the argument– is what this decision is about, I think.
It would also not surprise me to learn that if any of them (Kitchens comes to mind) were looking at a case to decide whether its the one to challenge the caps, they’d have had to conclude from the briefs “this is not it.” The issues were not well-argued by the plaintiff, and the liability case as presented in the briefs was squirrelly and thin. I really was not surprised at Kitchens’s vote.
The way Kitchens describe the randomness of this shooting– these guys were having a verbal argument, Lymas goes by and he’s shot with his back to the argument– is what this decision is about, I think.
Okay, but if so, that’s not a good basis. The legal issue isn’t whether this particular incident was foreseeable; it’s whether something like this was foreseeable.
I think they should’ve just said that the “atmosphere” proof was insufficient as a matter of law.
This particular kind of randomness does enter into the foreseability analysis, I think. There was an ongoing argument. It didn’t raise a warning flag to Lymas. Then– pow! he’s shot (according to his own story).
Look at Kitchens’s invocation of the notion that a criminal act by a third party can be an intervening cause.
But if criminal acts are intervening causes, then how could a premise ever be liable for 3d-party criminal acts?
That’s where the “atmosphere of violence” (god, that sounds hokier every time I type it) comes in, and that’s either (1) a jury question or (2) too insufficient to go to a jury.
Kitchens comes close to sounding like some witness has to SAY “there was a causal link,” and I don’t think that’s true at all. The court should’ve just said that the evidence was insufficient to create a jury question, because not all that much had happened on the premises.
By now I think I’m complaining too much … maybe my insomnia just made me an uncharitable reader of Kitchens’s opinion.
Anyone have a copy of Drinkwater’s amicus brief?
The briefs are available here. I wrote about the amicus brief here.