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.

Robert, take it easy.

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

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.

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.

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.

Cut it out.