Will Bardwell responded to my hunch that the Supreme Court may well not even get to the caps issue in the Double Quick case– he thinks they will get to it, because of the importance of the issue. In saying that, he leaves me wondering whether he understood why I think what I think.
It’s this: I think, reading the briefs, that the case is quite likely to be resolved on liability, a ruling that Double Quick isn’t liable at all under the premises liability cases. I was persuaded by the arguments from both Double Quick’s briefs and the trade association’s brief that Double Quick would quite likely get the court to reverse and render on liability.
If that happens, the Supreme Court can’t reach the issues about the damages cap. There’s no recovery at all, not $1M or $4M or fifty cents.
Bardwell’s position is, I think, that the damages cap issue is to important– “But under either view, the question of whether caps on non-economic damages are constitutionally kosher seems like exactly the sort of issue that the Court would love to sink its teeth into. … Recovery restrictions represent the hottest issue in Mississippi law over the past decade.” It doesn’t matter how much they want to reach the issue; if Double Quick wins on the liability question, they can’t reach it.
I realize that there are famous instances of appellate courts warping the facts to get to the issue they want to reach– I think I read somewhere this occurred in Pallsgraff v. Long Island Railroad, the Cardozo opinion about proximate cause everyone reads in first year torts (I assume everyone still reads it?). I don’t think that’s likely here.
I did understand the argument, Tom, and I think it’s a good one. And I hope you’re right.
The Court has been much more reluctant to overturn jury verdicts of late, though, even when the law has been murked up a little (think Franklin Corp. v. Tedford). The Court is also reluctant to admit that it has screwed the law up and prefers to work itself out of its knots through distinctions and reframing (think UMC v. McGee meets Jenkins v. Pensacola Health) More specifically, most members of the Court are reluctant to make any decisions that monkey with a trial court’s fact-finding responsibilities (a product of the fact that four justices are former trial judges, no doubt). Getting out the magnifying glass on premises liability would require the Court to encroach on at least one of those pet peeves.
That’s not to say it’s impossible. I just think it’s less likely than passing and moving on to the issue of caps.
And even if the Court does choose to address liability at length, that doesn’t necessarily mean that the Court wouldn’t move on to the constitutionality of caps anyway, as the Court has shown a tendency to address issues of interest despite having already addressed a dispositive issue (think Covenant Health v. Moulds).
Like I said, I hope you’re right.
If the liability issue is dispositive, then I would be very surprised if there were 5 votes to (i) reach out for the constitutionality issues and (ii) decide them the same way.
Say hypothetically that Kitchens/Graves/Chandler would oppose the caps’ constitutionality, and Carlson/Waller would uphold. That doesn’t get the issue addressed by the Court. And I would be a little surprised if Dickinson, Randolph, or Lamar broke the rules to consider the issue. Pierce, I dunno enough about to guess.
I question the liabliity also. As I consider the possible outcome of this action. I guess it’s a personal injury. I would think a large really bad (to person) personal injury claim to be far and few between. I view this to the present day actions of those massive class actions or joinder madness sogans on tv, everyday. The way this all goes down might be slick. Please accept this as a general thought effecting anyone maybe everyone.
Let’s say, if personal injury claim gets converted into a large bogus class action. What occurs is that it takes power from the person. This present action takes to the jury. Whats next? The courts. We’ll just have a group of dictators running things. From what I’ve known regarding certain firms and the state support makes a heck of a deal and connects some dots to a possible forgoing deal via the G.O.B.network.
Victim-x sues j-mart on slim liability. J-mart has family and friends J-mart attorneys already defeated a jury verdict and one appeal as well rejected demand for payment to the court judge. With a so what attitude. The paying of bogus claims create countless serious legal violations some criminal as well, with dismissal of the cause used per awards to no relief. But that isn’t the problem. This is.
The state recieving millions through the use of bogus claims via {nameless}. And the A.G. who refues to take any action per the crime aspect. We now have the state. The attorneys of magical jurisidiction for j-mart, who’s failed trial of gains was before now surpreme judge. Can the story get any better ? An attorney general employing one macical attory of his own who all benifited. Are all out to cap the rest of us. Do as I say. Not as I do? I’d go with the jury verdict and with a middle ground on reasonable amounts. If their serious about this. It really falls to the attoneys skills in the real world in a trial by jury and as close to the end as possible. But this!
Justice Randolph wrote Covenant Health v. Moulds, so I think it’s safe to say that he doesn’t mind writing an opinion that addresses more than one dispositive issue (which isn’t necessarily a bad thing…it just takes a different view of what constitutes mootness, which is of course arguable). That’s three.
Justice Pierce, whom I like, ran openly as a pro-business candidate. He was supported by the Chamber of Commerce, and I recall him using the phrase “Mississippi is open for business” at least once. I think he’d be a safe vote as well. That’s four.
Justice Lamar wrote for the majority in Bunton v. King, a case in which Justice Graves concluded in dissent that the 90-day notice-of-claims requirement is unconstitutional. That’s not exactly the same issue, of course, but it demonstrates that she’s willing to give the Legislature a fair amount of latitude in setting up some parameters for civil litigation. That’s five.
Robert, your post has nothing to do with the thread. You have no idea what you are talking about– if you don’t know what kind of case this is, how can you question liability? You’re just spewing on about something inside you and not responding to the comments of others or the posts themselves.
Cut it out.
Bardwell, I do not see how Randolph’s opinion in Covenant (which can be found here makes your point. He writes about whether the arbitration clause is unconscionable and whether the unavailability of the forum provided for arbitration provided in the agreement causes the arbitration clause to fail. Those are alternate grounds for affirmance. In Double Quick, the court has to pass through point A (liability) to get to point B (caps). In Covenant, the court was saying “either point a or point b means the defendant loses.”
Graves in concurrance did chide Randolph for reaching a point not framed in the cert petition (which I don’t think is your point) and says that the issue of who signed the agreement should be dispositive, while Randolph avoided that issue, saying there was a fact dispute. But I don’t see any parallel in that, either. So I don’t see how you count Randolph either way on the strength of that.
And your point about Lamar and Graves in Bunton almost seems a non sequitur to me. That leads you to count which one for what?
And Pierce is a vote against reaching the cap issue. They have to reach the liability issues, period. Without doubt. Then you have to have five votes to affirm the verdict to reach the cap issue. You could probably look through the premises liability cases to be sure, but where do you get five to affirm? How would these count–Pierce. Carlson. Lamar. Randolph. Waller. Dickinson. I really think there are going to be five and possibly six votes in there for either clarifying and focusing the standard on premises liability or based on the clear business-climate issue (which would be to reverse on liability).
I think Kitchens’s instinct will be to leave the jury verdict alone, and possibly also Graves and perhaps Chandler. Who are the other two votes to affirm this verdict based on these very weak facts, the dicey looking experts, and the probability that under the clearest expressions of their standard here, the verdict shouldn’t stand?
You’re making me more convinced of my guess, not less so.
Here’s one possible way they could (not quite properly) reach the cap: Reverse on the legal standard (and therefore the instructions), remand for a new trial, and opine for guidance on retrial about the constitutionality of the cap. But that seems a stretch to me. I’m thinking the result is more likely “here’s the standard for premises liability in a parking lot shooting case, and that wasn’t proved here. Case dismissed, over and out.”
BUT GUESS WHAT! Surprises happen.
I think we’re comparing forests to trees here, so to speak.
My Covenant Health point is that Justice Randolph doesn’t mind making points that are, arguably, advisory in nature. The same approach could guide him to reverse on the instructions and still reach the question of the caps’ constitutionality. What you’ve described toward the end of your last post is exactly what I’m talking about. Whether that is “not quite proper” is debatable, but Covenant Health makes clear that the Court doesn’t mind taking that route. Justice Dickinson pulled the same trick in Estate of Bolden v. Williams (“Although we find the second issue raised to be dispositive, we also find it prudent to provide some guidance to the trial court and the parties with respect to the remand”).
My Bunton point that Justice Lamar’s affirmance of the notice-of-claim’s constitutionality suggests (to me, at least) that she is more likely than not to see the caps as a valid use of legislative authority, as she did with the 90-day notice requirement.
And my overarching point, which started this whole discussion, is that the members of the Mississippi Supreme Court are human beings like you and me. If they’re interested by this issue — and I don’t see why they wouldn’t be — and want to write about it, then they’ll find a way to write about it. And this issue strikes me as too big a worm for the fish to pass on.
Bardwell is of course correct that if the MSSC wants to reach the issue, it will reach it — who’s to tell ‘em no?
But I can’t imagine they’re eager to go there, particularly since the issue doesn’t sound tremendously well-briefed in this case.
However, I have a hard enough time guessing what they’ll do with my own cases that I know something about — I’m extra-special incompetent to guess about this case.
Micky D’s didn’t warn of the hot coffee. liability. One man shoots another in a parking lot of the corner store. One of trillions, shabby. I take this wasn’t turned into a class action. But I’m probably wrong. Something which could have been as planned as a rearend collison for fraud. Yes I’ve seen the impossible. I find law work to be a long drawn out affair. Intentionally. It snakes its way on behalf a cause which isn’t law. How anything gets legally done is way beyond me. I couldn’t waste a life time of studing something as fake as law. When it’s real and there’s real dollars at stake and certain indiviuals these no law. But I wasn’t impling a thing of anything in my head as much as it is an actual fact. Some firms their state counterparts to pass activities which makes void jury decisions or appeals are about milk this via a shabby cause to effect everyone. That’s not just a thought in my mind but a reality happening in the courts.
A suprise is something unknown my friend. Before I get out the way.
Tom I know you have done this{ being a lawyer} most or all your life. I was wondering if there was a time in your opinion when the court might have ran a little smoother. I remember it taking a few month to settle injury of persons working on boats and such. Yes that was years ago mid 70′s. Now it takes years and years. Thats not progress. If its all about money, just give the attoreny half over the 90 to 100 percent most of them take now anyway. Now days I recall friendly trial lawyers. Non specific. So if you might recall a golden era of law were everyone was pleased or maybe not. Of course your right I’m in the way of folks who know about how pass laws countered each other only to be repeated to fit a present need to some future repeat. If John Grisham’s appeal’s close, and Graves stays out of the dual perpose bathroom stalls he might win by a nose.
Ah, Season’s Greetings
Tom, if the Court decides the liability issue against the plaintiff, then I think you are correct. It’s been a while since I have had reason to look, but I recall a strong rule that a court should not reach a Constitutional issue if the case can be decided on another ground. This is sound policy and law. The court should not reach the issue if it is not an issue in the case, even on remand.
Robert, take it easy.
Tom,
Alas you are correct! This case will be reversed on liability. (90% chance) They are very unlikely to take up caps. (25%) This is the opinion of everyone I know that has reviewed this damn thing, briefed it or otherwise. It is a bad case to challenge the caps. Better one coming down the line but the votes are not there.
I find Robert’s enthusiasm to be refreshing. I can’t really follow his posts, but I like the energy nonetheless.
Agreed. If this thread were an episode of “The Muppet Show,” then he’d be Animal.
With respect to Covenant Health v Moulds, the issue of substantive unconscionability and resulting unenforcability of the entire contract was raised in the briefs before the Court of Appeals, which ignored the issue in light of Vicksburg Partners v Stephens and Covenant Health v Brown. MRAP 17 does not confine the Supreme Court to issues raised either in the petition for cert or in the motion for rehearing in the Court of Appeals. It specifically authorizes the Supreme Court to reach any issue raised in the underlying appeal. It was the capacity issue that led to the grant of cert (the Court of Appeals had failed to follow the decision in Mississippi Care Center v Hinyub) but then the Court looked at the entire case.