Sidharth Solanki v. Melvin Tyrone Ervin ( 2008 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CA-01083-SCT
SIDHARTH SOLANKI, INDIVIDUALLY, AND AS
WRONGFUL DEATH BENEFICIARY; DEVESHA
S. SOLANKI AND AVANI S. SOLANKI, MINORS
BY AND THROUGH THEIR FATHER AND
NATURAL GUARDIAN, SIDHARTH SOLANKI,
AND NEHA SOLANKI, WRONGFUL DEATH
BENEFICIARIES OF NILIMA SOLANKI,
DECEASED, AND ALL OTHER WRONGFUL
DEATH BENEFICIARIES OF NILIMA SOLANKI,
DECEASED
v.
MELVIN TYRONE ERVIN AND THE
MERCHANTS COMPANY
DATE OF JUDGMENT: 04/10/2008
TRIAL JUDGE: HON. WILLIAM F. COLEMAN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: DON H. EVANS
HARRY MERRITT McCUMBER
CHRISTIE EVANS OGDEN
ATTORNEYS FOR APPELLEES: ROY H. LIDDELL
JOSEPH SPENCER YOUNG, JR.
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 08/27/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRAVES, P.J., RANDOLPH AND PIERCE, JJ.
GRAVES, PRESIDING JUSTICE, FOR THE COURT:
¶1. This case arises out of a two-vehicle accident that took place on Interstate 220 in
Hinds County, Mississippi, on March 29, 2007. As a result of the accident, one of the drivers
died. Her husband and wrongful-death beneficiaries filed suit against the other driver and
his employer, alleging negligence. After a trial, the jury found in favor of the defendants.
Thereafter, the plaintiffs appealed to this Court.
FACTS
¶2. On March 29, 2007, Nilima Solanki was driving southwest1 on I-220 in Hinds County,
Mississippi, when her car, a Toyota Camry, broke down. It is not known exactly what
happened to the car, but, ultimately, it stopped in the left lane of I-220, near the yellow line.
The portion of I-220 in question did not have a shoulder lane on the left side, although there
is a grassy median between the westbound lanes and eastbound lanes of the highway. Melvin
Tyrone Ervin (Ervin) was also driving southwest on I-220 on March 29, 2007. He was
driving an eighteen-wheeler tractor-trailer to deliver groceries for his employer, The
Merchants Company (Merchants). Although Ervin was initially driving in the right lane of
I-220, at some point, he moved into the left lane.
¶3. The facts regarding the exact chain of events leading up to the collision between
Ervin’s truck and Nilima Solanki’s car are unclear and are disputed by the parties. It is
undisputed, however, that Ervin’s truck collided with Nilima Solanki’s car on March 29,
2007. After the accident, Nilima Solanki’s car came to a rest in the right lane of I-220.
Ervin’s tractor-trailer slid down the highway on its side before coming to rest predominantly
in the left lane of the highway. As a result of the accident, Nilima Solanki suffered brain
1
The Solankis’ complaint states that she was driving west on I-220. The
Solankis’ expert, James Hannah, explained that I-220 runs northeast-southwest.
However, he stated that people commonly refer to the direction in which Nilima Solanki
and Ervin were traveling as south.
2
trauma and died in the hospital nine days later. Additional facts will be provided in the
analysis below.
¶4. On April 10, 2007, Nilima Solanki’s husband, Sidharth Solanki (Solanki), and Nilima
Solanki’s oldest daughter, Neha Solanki2 (together, the Solankis), filed a complaint in Hinds
County Circuit Court against Ervin, Merchants, ten John Doe Person(s), and ten John Doe
Entity(ies). The Solankis alleged negligence and sought compensatory and punitive
damages. On May 8, 2007, Merchants filed an answer, affirmative defenses, and a
counterclaim. On the same day, Ervin filed an answer and affirmative defenses. On May 24,
2007, the Solankis filed an answer and defenses to Merchants’ counterclaim.
¶5. On January 15, 2008, Merchants and Ervin (together, the Defendants) filed a motion
for partial summary judgment, arguing for judgment as a matter of law with regard to the
Solankis’ claim for punitive damages. On January 24, 2008, Defendants filed a motion for
partial summary judgment as to the Solankis’ claim of negligent infliction of emotional
distress. On the same day, Defendants also filed a motion for partial summary judgment
regarding the Solankis’ negligence-per-se claim. On January 29, 2008, the Solankis
responded to Merchants’ motion for partial summary judgment with respect to punitive
damages. On February 11, 2008, the Solankis responded to the two remaining partial
summary judgment motions. After a hearing on February 15, 2008, the trial court granted
partial summary judgment as to the Solankis’ claims for punitive damages and negligent
2
Solanki sued in his capacity as an individual, as a wrongful-death beneficiary,
and on behalf of his two minor daughters, while Neha Solanki sued in her capacity as a
wrongful-death beneficiary.
3
infliction of emotional distress, but denied partial summary judgment as to their negligence-
per-se claim.
¶6. On April 8, 2008, the matter proceeded to trial, at the conclusion of which the jury
returned a verdict in favor of Defendants. The verdict of the jury stated: “We, the jury, find
for the Defendants, The Merchants Company and Melvin Tyrone Ervin.” Accordingly, the
trial court entered final judgment in favor of Defendants on April 11, 2008. On April 21,
2008, the Solankis timely filed a motion for judgment notwithstanding the verdict (JNOV)
or, in the alternative, a new trial. Defendants filed a response on April 30, 2008. On May
2, 2008, the trial court denied the Solankis’ motion. On May 30, 2008, the Solankis timely
appealed to this Court.
ANALYSIS
¶7. The Solankis raise three issues on appeal, which have been restated and reordered in
the analysis below.
I. Whether the Trial Court Properly Denied the Solankis’ Motion for Directed
Verdict and their Request for a Peremptory Instruction.
¶8. This Court reviews a trial court’s grant or denial of a motion for directed verdict de
novo. See, e.g., Pierce v. Cook, 992 So. 2d 612, 616 (Miss. 2008); Pace v. Fin. Sec. Life,
608 So. 2d 1135, 1138 (Miss. 1992). A motion for directed verdict tests the legal sufficiency
of the plaintiff’s evidence. Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d 998, 1003
(Miss. 1992). This Court has stated that
[i]n deciding whether a directed verdict . . . should be granted, the trial judge
is to look solely to the testimony on behalf of the party against whom a
directed verdict is requested. He will take such testimony as true along with
all reasonable inferences which can be drawn from that testimony which is
4
favorable to that party, and, if it could support a verdict for that party, the
directed verdict should not be given. If reasonable minds might differ as to
this question, it becomes a jury issue.
White v. Thomason, 310 So. 2d 914, 916-17 (Miss. 1975) (citing Williams v. Weeks, 268
So. 2d 340 (Miss. 1972); Jones v. Phillips, 263 So. 2d 759 (Miss. 1972)). This Court has
also held that “[i]n considering the evidence and all reasonable inferences, the court must
determine whether the evidence is so overwhelmingly against [the nonmovant] that no
reasonable juror could have found in her favor.” Fox v. Smith, 594 So. 2d 596, 603 (Miss.
1992) (citations omitted). “[T]his Court considers ‘whether the evidence, as applied to the
elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a
trier of fact has been obviated.’” Spotlite Skating Rink, Inc. v. Barnes, 988 So. 2d 364, 368
(Miss. 2008) (quoting White v. Stewman, 932 So. 2d 27, 32 (Miss. 2006)). Accordingly, “[a]
directed verdict pursuant to M.R.C.P. 50(a) is not an appropriate means for the disposition
of a case so long as questions of fact are raised in the proof at trial.” Id. (citing Bank of
Shaw v. Posey, 573 So. 2d 1355, 1361 (Miss. 1990)).
¶9. Mississippi Rule of Civil Procedure 50(a) states that “[a] motion for a directed verdict
shall state the specific grounds therefor.” Miss. R. Civ. P. 50(a). The Solankis moved for
directed verdict on the grounds that the evidence clearly showed that Ervin had changed
lanes when it was not safe to do so, that he had changed lanes and had failed to keep a proper
lookout, and that he had not kept his truck under reasonable and proper control. The
Solankis argued that the trial court should direct the jury to find in their favor because Ervin
had been negligent as a matter of law. The trial court denied the motion.
5
¶10. As for the Solankis’ claim that the trial court should have granted a peremptory
instruction, this Court applies the same standard of review as it applies when reviewing the
denial of directed verdict or JNOV:
[T]his Court will consider the evidence in the light most favorable to the
appellee, giving that party the benefit of all favorable inference that may be
reasonably drawn from the evidence. If the facts so considered point so
overwhelmingly in favor of the appellant that reasonable men could not have
arrived at a contrary verdict, we are required to reverse and render. On the
other hand if there is substantial evidence in support of the verdict, that is,
evidence of such quality and weight that reasonable and fair minded jurors in
the exercise of impartial judgment might have reached different conclusions,
affirmance is required. The above standards of review, however, are
predicated on the fact that the trial judge applied the correct law.
Ala. Great S. R.R. Co. v. Lee, 826 So. 2d 1232, 1235-36 (2002) (quoting Steele v. Inn of
Vicksburg, Inc., 697 So. 2d 373, 376 (Miss. 1997)).
¶11. The Solankis do not identify the specific instruction that they claim the trial court
improperly refused. Based on the record, this Court believes that the peremptory instruction
at issue may be instruction P-1 3 . Defendants objected to this instruction, and the trial court
refused it. However, the trial court also refused instruction P-10 4, stating that the
“[o]bjection to P-28 – P-9 will be refused because the last sentence 5 is almost peremptory,”
following which, the Solankis’ counsel clarified that the trial court was actually referring to
3
Instruction P-1 is reproduced in the Appendix.
4
Instruction P-10 is reproduced in the Appendix.
5
Instruction P-10 consists of only one sentence, but the trial court appears to be
referring to the last clause of the instruction, beginning with the words “therefore, the
Merchants Company is liable . . .” when referencing the last sentence of the instruction.
6
instruction P-10. Therefore, this Court assumes that the Solankis appeal from the trial court’s
refusal of both instructions P-1 and P-10.
¶12. On appeal, the Solankis argue that the trial court erred in denying their motion for
directed verdict and in denying their request for a peremptory instruction on the issue of
negligence. They rely on their argument regarding the trial court’s denial of their motion for
JNOV, which will be addressed more fully below, in Section III. Basically, the Solankis
claim that Mississippi law regarding the responsibilities of drivers, the discrepancies in the
testimony of Ervin and Defendants’ expert, William Messerschmidt, and the fact that the jury
was given certain jury instructions all indicate that a directed verdict or peremptory
instruction should have been granted. The Solankis also cite this Court’s decisions in Nobles
v. Unruh, 198 So. 2d 245 (Miss. 1967), and Cipriani v. Miller, 160 So. 2d 87 (Miss. 1964),
and maintain that these cases and others “clearly indicate that if the Appellee changes lanes
without first ascertaining that the lane change could be safely made, then the Appellants
should be entitled to a directed verdict, or, to a peremptory instruction on the issue of
liability.”
¶13. Defendants counter that, based on the evidence presented at trial, questions of fact
remained for the jury to decide with respect to negligence. Defendants also rely on their
argument regarding JNOV, which will be addressed more fully in Section III. Essentially,
Defendants argue that substantial evidence was presented at trial demonstrating that Ervin
was not negligent and that the trial court properly denied the Solankis’ motion for directed
verdict. Defendants also maintain that the Solankis’ arguments are misplaced and
7
inapplicable. Defendants contend that Nobles and Cipriani are distinguishable from the facts
of this case.
¶14. We now review the testimony relevant to the issue of negligence to determine whether
there is sufficient evidence demonstrating that Ervin was not negligent, or whether the
evidence is so overwhelmingly in favor of the Solankis that the trial court should have
granted the Solankis’ motion for directed verdict or their request for a peremptory
instruction. See, e.g., Bankston, 611 So. 2d at 1003; Fox, 594 So. 2d at 603; (citations
omitted); Lee, 826 So. 2d at 1235-36 (citation omitted). The Solankis called Ervin as an
adverse witness. Ervin testified that, prior to the accident, he was driving south on I-220.
Ervin stated that, while he was on I-220, he moved from the right lane to the left lane to pass
a dump truck that was moving slowly in the right lane. Ervin testified that he also noticed
cars merging onto I-220 from Medgar Evers Boulevard. After changing lanes, Ervin testified
that he noticed that there was traffic ahead of him and that he saw Nilima Solanki’s car, but
that he did not identify anything as “a danger.” Ervin stated that, initially, Nilima Solanki’s
car appeared to be moving. According to Ervin, once he realized that Nilima Solanki’s car
was not moving, he tried to move back into the right lane, but was unsuccessful because of
the traffic. He also maintained that he applied the brakes at that point. When pressed, Ervin
estimated that he may have applied the brakes before the bridge 6 (i.e., north of the bridge),
but stated several times that he was unsure of the location at which he first applied the
6
Ervin does not state that this is the bridge or overpass on I-220 that passes over
Medgar Evers Boulevard. However, based on the testimony and the exhibits, it appears
that this is the bridge to which Ervin refers.
8
brakes. Ervin testified that he then attempted to avoid colliding with Nilima Solanki’s car
by going around it on the left side. Ervin stated that, although he tried to avoid hitting her
car, ultimately, he could not avoid “swiping her car.” He insisted that “I done everything
possible that I could to avoid hitting the vehicle by slowing the truck down and even by
trying to go around – around the vehicle to keep from hitting the vehicle.” Ervin testified
that if he had “steered harder to the left,” his truck would likely have “jackknifed” 7 and
caused more damage and put more lives at risk. When asked if he could have attempted to
avoid colliding with Nilima Solanki’s car by going around it on the right side, Ervin testified
that this was not an option, because other cars were there and it would have meant putting
additional lives in danger. Ervin testified that he had not been drinking or taking any drugs
at the time of the accident, and that he had not been in a hurry or distracted by anything at
the time.
¶15. The Solankis then called James Hannah to provide expert testimony in the field of
accident reconstruction. Hannah testified that he began his investigation of this accident by
visiting the scene of the accident about a week after it occurred. He stated that he reviewed
photographs taken by the police and also took photographs of his own. Hannah found that,
based on the evidence, the accident report, and his own investigation, Ervin had a distance
of more than 400 feet in which to avoid the accident. Hannah stated that this was the
distance between the top of the bridge 8 and the location of Nilima Solanki’s car. Hannah
7
The term “jackknife” is not defined in the testimony.
8
Again, Hannah does not state that this is the bridge or overpass on I-220 that
passes over over Medgar Evers Boulevard, but context indicates that it is.
9
testified that he determined that Ervin could have seen the car from the top of the bridge.
According to Hannah, Ervin should have been able to slow down much more than he did
over a distance of 400 feet. Hannah estimated that Ervin should have been able to come to
a full stop in 263 feet, although he admitted that he did not test Ervin’s truck. He also
testified that Ervin could have slowed down and waited to move back into the right lane.
Hannah testified that, based on Ervin’s testimony that he had started applying the brakes
north of the bridge, he had already perceived and started responding to Nilima Solanki’s car
at that point. However, on cross-examination, Hannah admitted that no physical evidence
showed that Ervin actually started to apply his brakes north of the bridge. Hannah concluded
that Ervin did not do everything that he could have done to avoid the accident, because he
had enough space to slow down to a speed at which he could have avoided colliding with
Nilima Solanki’s car. He concluded that Ervin had not been keeping a proper lookout, that
he did not have his vehicle under control, and that he did not respond to the stopped car until
he was in the immediate area of the car.
¶16. Defendants called Messerschmidt to provide expert testimony, also in the field of
accident reconstruction. Messerschmidt testified that he conducted an investigation of the
accident and visited the site of the accident in September 2007. He testified that, based on
physical evidence, Nilima Solanki’s car was in the left southbound lane of I-220 at the time
of the accident, approximately 220 feet south of the bridge. Messerschmidt described the
topography of the scene of the accident as follows: “as you go south on 220 and you
approach Medgar Evers Boulevard, you start up a hill, and at the crest of that hill is the
bridge, and then you start gradually down from the crest of the bridge.” Messerschmidt
10
testified that, based on the readings from the GPS 9 on Ervin’s truck, he had been traveling
at sixty-seven miles per hour prior to the accident. When asked what he found with respect
to Ervin’s attempt to avoid the accident, Messerschmidt stated that the tire marks, the
forensic mapping conducted by Richard Davis, and the photographs taken by Officer
Maurice Kendrick demonstrated that Ervin had moved his truck six feet to the left and into
the grass in the median in an attempt to avoid the accident. He added that, based on peer-
reviewed, published research regarding the ability of trucks to be steered in either direction,
Ervin “was steering pretty much as hard as he could have steered to go to the left” without
“jackknifing.”
¶17. He stated that the research indicated that a “stopped vehicle would be easily
identifiable as an immediate hazard” from 309 feet away. Messerschmidt stated that, because
Ervin had been traveling at sixty-seven miles per hour and because Nilima Solanki’s car
would have been identifiable as a hazard from 309 feet away, Ervin had 3.14 seconds to
react. Messerschmidt testified about research addressing the ability of drivers to perceive a
stopped car without context. He stated that there had been no context for Ervin to determine
that Nilima Solanki’s car was not moving. He also testified that Ervin had been dealing with
multiple hazards during the period of time directly preceding the accident because he was
driving along a highway with traffic in both lanes, in addition to traffic merging onto the
highway. Messerschmidt stated that research has shown that multiple hazards and the lack
of context to judge the movement (or lack thereof) of a car causes the time required for
perception and for response to increase.
9
Global positioning system.
11
¶18. He then testified that, based on research he conducted, the median distance at which
a person could physically respond to an object is fifty-nine feet from the point of impact with
that object. However, he found that Ervin had begun steering to the left ninety-eight feet
from Nilima Solanki’s car. Thus, Messerschmidt concluded, Ervin had responded faster (in
that he responded from a greater distance) than a person whose response distance was in the
median range of the research study. He estimated that it would have taken 250 to 310 feet
for Ervin’s truck to stop if he had fully engaged the brakes. Based on Ervin’s speed and the
fact that he had to move his truck to attempt to avoid the accident, Messerschmidt stated that
it would have taken Ervin 116 feet to have avoided the accident by swerving to avoid hitting
Solanski’s car. Messerschmidt testified that:
Mr. Ervin took the best method that was available to him. It would take
between Mr. Hannah’s number of 246 to 350 feet to stop.
It would take 116 feet to change lanes and get out of the way. He tried
to change lanes and get out of the way. His right-hand lane is blocked.
The lane is 11 and a half or 11.7 feet wide. His truck is eight feet wide.
...
So to stay in 4.5 or so feet of lane [i.e., the distance between Nilima
Solanki’s car and the right lane] and not hit cars on the right is impossible. I
mean eight is more than four and a half.
¶19. Considering the evidence relevant to the alleged negligence of Ervin and drawing all
reasonable inferences in favor of Defendants, this Court cannot say that the evidence is so
overwhelmingly in favor of the Solankis that the trial court improperly denied their motion
for directed verdict and their request for a peremptory instruction. See, e.g., Bankston, 611
So. 2d at 1003; Fox, 594 So. 2d at 603 (citations omitted); Lee, 826 So. 2d at 1235-36(citation omitted). Substantial evidence demonstrates that Ervin was not negligent,
supporting the jury verdict. See, e.g., Lee, 826 So. 2d at 1235-36. Therefore, this Court finds
12
that the trial court properly denied the Solankis’ motion for directed verdict and their request
for a peremptory instruction on the issue of negligence. Because directed verdicts and
peremptory instructions test the legal sufficiency of the evidence, the remainder of the
parties’ arguments will not be addressed, as they are not relevant to the sufficiency of the
evidence.
II. Whether the Trial Court Properly Gave Jury Instructions 20 and 22.
¶20. When reviewing a challenge to a jury instruction, this Court asks whether the
instruction at issue contains a correct statement of the law and whether the instruction is
warranted by the evidence. See, e.g., Church v. Massey, 697 So. 2d 407, 410 (Miss. 1997)
(citation omitted). “A party has a right to have jury instructions on all material issues
presented in the pleadings or evidence.” Glorioso v. YMCA, 556 So. 2d 193, 195 (Miss.
1989) (citing Barkley v. Miller Transporters, Inc., 450 So. 2d 416 (Miss. 1984); Alley v.
Praschak Mach. Co., 366 So. 2d 661 (Miss. 1979)). When this Court reviews a claim of
trial-court error in granting or denying jury instructions, all of the jury instructions are
reviewed as a whole, and no instruction is read in isolation. See, e.g., Richardson v. Norfolk
S. Ry. Co., 923 So. 2d 1002, 1010 (Miss. 2006) (citations omitted); Burton v. Barnett, 615
So. 2d 580, 583 (Miss. 1993) (citations omitted). “Defects in specific instructions do not
require reversal ‘where all instructions taken as a whole fairly – although not perfectly –
announce the applicable primary rules of law.’” Burton, 615 So. 2d at 583 (citations
omitted).
¶21. Furthermore, this Court has held that “when a jury instruction is offered at trial, it is
the duty of the opposing party, in order to preserve this point for appeal, to state a
13
contemporaneous objection in specific terms so that the trial court has an opportunity to
correct any mistake.” Young v. Robinson, 538 So. 2d 781, 783 (Miss. 1989) (citations
omitted). “[O]n appeal a party may not argue that an instruction was erroneous for a reason
other than the reason assigned on objection to the instruction at trial.” Id. (citations omitted).
¶22. The Solankis contend that the trial court erred in granting jury instructions 20 and 22.
Instruction 20 is modeled after Mississippi Code Section 63-3-903, which states, in relevant
part:
(1) No person shall stop, park or leave standing any vehicle, whether
attended or unattended, upon the paved or improved or main traveled part of
any highway outside of a business or residence district when it is practical to
stop, park or so leave such vehicle off such part of said highway. . . .
(2) This section shall not apply to the driver of any vehicle which is
disabled while on the paved or improved or main traveled portion of a highway
in such manner and to such extent that it is impossible to avoid stopping and
temporarily leaving such disabled vehicle in such position.
Miss. Code Ann. § 63-3-903(1)-(2) (Rev. 2004). Instruction 20 states:
The Court instructs the jury that according to Mississippi law no person
shall stop, park or leave standing any vehicle, whether attended or unattended,
upon the paved or main traveled part of any highway, unless it is impossible
to avoid stopping in the roadway.
Therefore, if you find from a preponderance of the evidence in this case
that the decedent, Nilima Solanki, allowed her vehicle to stop in a lane of
travel on the highway when it was possible or reasonably practicable for her
to steer her vehicle onto the shoulder of the highway, then the Court instructs
the jury that such acts constitute negligence on behalf of the decedent, and if
you find from a preponderance of the evidence that such negligence was the
sole proximate cause of the accident, then it is your sworn duty to return a
verdict for Melvin Ervin and The Merchants Company.
If you find that such negligence of the decedent Nilima Solanki was a
proximate contributing cause of the accident and that the negligence of Melvin
Ervin was also a proximate contributing cause of the accident, then it is your
sworn duty to decide the amount you would have awarded for her death, if
any, and then reduce that amount by the percentage of Nilima Solanki’s
negligence.
14
¶23. The Solankis’ counsel objected to instruction 20 (then instruction D-8) on the grounds
that it was “misleading, confusing, and I don’t think it’s based upon testimony in the court.”
Defendants argued that the instruction was based on Mississippi Code Section 63-3-903 and
that it was applicable to the facts in this case. The trial court granted the instruction,
informing the Solankis’ counsel that “[y]ou will be completely at liberty to argue that stop,
park are affirmative actions and that she’s certainly not guilty of affirmatively stopping and
parking.”
¶24. On appeal, the Solankis argue that the evidence demonstrated that it was not
reasonably practicable for Nilima Solanki to move her car off I-220. They further assert that
Defendants failed to demonstrate “that it was reasonably practical for Decedent Nilima
Solanki to pull her motor vehicle off of the highway” after it stalled on I-220 and that it was
clear that it was not reasonably practical for her to do so. As if by way of explanation, the
Solankis claim in their appellate brief that “[a] man may have figured out how to not get
stopped in the roadway but many women, when given mechanical problems, do not know
what to do.” The Solankis quote testimony regarding Sidharth Solanki’s discussion over the
phone with Nilima Solanki before the accident, presumably to demonstrate that it was not
reasonably practicable for Nilima Solanki to move her car off the highway.
¶25. Defendants assert that instruction 20 accurately reflects the law as set out in Section
63-3-903(1)-(2) and that the instruction includes the term “reasonably practicable.”
Defendants point out that whether it was reasonably practicable for Nilima Solanki to steer
her car off the highway is a question of fact for the jury. Defendants also claim that the issue
was properly submitted to the jury along with this instruction, which provided proper
15
guidance for the jury. Defendants further contend that the Solankis failed to preserve this
issue for appeal by making a general objection to the instruction.
¶26. This Court finds that the trial court properly granted instruction 20 because it contains
a correct statement of the law and was warranted by the evidence. See Massey, 697 So. 2d
at 410 (citation omitted). The language in instruction 20 is not identical to that in Section 63-
3-903(1). Instruction 20 begins by stating that “no person shall stop, park or leave standing
any vehicle . . . upon the . . . highway, unless it is impossible to avoid stopping in the
roadway.” (Emphasis added.) Section 63-3-903(1) states, in relevant part, that “[n]o person
shall stop, park or leave standing any vehicle . . . upon the . . . highway . . . when it is
practical to stop, park or so leave such vehicle off . . . said highway.” Miss. Code Ann. § 63-
3-903(1) (Rev. 2004) (emphasis added). Section 63-3-903(2) states, in relevant part that
“[t]his section shall not apply to the driver of any vehicle which is disabled while on the . .
. highway in such manner and to such extent that it is impossible to avoid stopping and
temporarily leaving such disabled vehicle in such position.” Miss. Code Ann. § 63-3-903(2)
(emphasis added). Notably, instruction 20 also instructs the jury that, “if you find from a
preponderance of the evidence in this case that the decedent, Nilima Solanki, allowed her
vehicle to stop in a lane of travel on the highway when it was possible or reasonably
practicable for her to steer her vehicle onto the shoulder of the highway, then the Court
instructs the jury that such acts constitute negligence on behalf of the decedent.” (Emphasis
added.) Thus, this Court finds that instruction 20 fairly announces the applicable rule of law
in that it includes the term “reasonably practicable” (rather than “practical”), even though it
also includes the term “impossible.” See Burton, 615 So. 2d at 583 (citations omitted).
16
¶27. Contrary to the Solankis’ assertion that instruction 20 is not supported by the evidence
presented by Defendants, this Court finds that there was an evidentiary basis for instruction
20. Solanki testified about his phone conversation with Nilima Solanki, during which she
told him that she had been driving at seventy miles per hour when her car broke down and
that her car was stopped by the yellow line on I-220 with the emergency lights activated.
Solanki also testified that he did not know why his wife’s car was stopped on the highway,
as opposed to the median. Hannah admitted that, if Nilima Solanki had been driving at
seventy miles per hour when her car stalled, then the car would have rolled a significant
distance before coming to a complete stop. Hannah also testified that there was no physical
barrier preventing Nilima Solanki’s car from being moved off the highway and that he was
not certain of the angle at which her car was pointed when it stopped. Messerschmidt
testified that the evidence showed that Nilima Solanki’s car had rolled to a stop and was
positioned parallel to, and to the right of, the yellow line on I-220.
¶28. Thus, the testimony regarding the circumstances under which Nilima Solanki found
herself prior to the accident established an evidentiary basis for instruction 20. The
testimony also created a question of fact as to her ability to move her car off the highway.
Both parties recognize that, ordinarily, such a question of fact should be “submitted to the
jury on proper instructions.” Stong v. Freeman Truck Line, Inc., 456 So. 2d 698, 708
(Miss. 1984). Based on the testimony, this question of fact was not “so clear that reasonable
minds could not differ.” Id. (citations omitted). Whether Defendants failed to demonstrate
“that it was reasonably practical for Decedent Nilima Solanki to pull her motor vehicle off
of the highway,” as the Solankis claim on appeal, was for the jury to determine. Therefore,
17
this Court concludes that the question was properly submitted to the jury, along with
instruction 20. Id. (citations omitted). Because we conclude that instruction 20 was a proper
reflection of the law and supported by the evidence, the remainder of the parties’ arguments
will not be addressed.
¶29. Instruction 22 states:
You are instructed that Mississippi law provides for comparative
negligence, that is, more than one party may be responsible for causing a
person’s injury or death.
Further, you are instructed that while operating her vehicle, the
decedent, Nilima Solanki, had a duty to use reasonable care in the interest of
safety of others on the roadway that a person of ordinary intelligence would
exercise under the same or similar circumstances. If you find that Nilima
Solanki did not exercise such reasonable care by failing to steer her vehicle
onto the shoulder of the roadway as her vehicle began to stall and/or by talking
on her cell phone instead of exiting the vehicle in order to move to a place of
safety after her vehicle stopped, and if you further find that her failure to use
reasonable care proximately caused or contributed to the accident or her own
death, then it is your sworn duty to decide the amount you would have
awarded for such death, if any, and then reduce your verdict by the percentage
of Nilima Solanki’s own negligence.
Furthermore, should you find that Nilima Solanki’s own negligence was
the sole proximate cause of the accident, then you shall return a verdict in
favor of Melvin Ervin and The Merchants Company.
¶30. With respect to instruction 22 (then instruction D-11), the Solankis’ counsel objected
on the grounds of “confusion, misleading, and not a true statement of the law, and it’s not
supported by the facts in evidence, and there’s no evidence to support the instruction. It’s
based on pure speculation, conjecture, and no proof of negligence on her part.” The trial
court granted the instruction.
¶31. The Solankis maintain on appeal that instruction 22 is extremely confusing and
misleading, in part because “[s]aid [i]nstruction lays blame on Nilima Solanki [as] if she
18
talked on her cell phone instead of exiting, without taking into consideration that a mother
would not leave her child in the car and just try saving herself.” The Solankis also rely on
the fact that the trial judge granted instruction 23 (then instruction P-30) – the Solankis’
comparative negligence instruction – “reluctantly” because he did not believe that there was
evidence of Nilima Solanki’s negligence. Instruction 23 states:
If you find from a preponderance of the evidence in this case that:
1. Melvin Tyrone Ervin was negligent but also,
2. That Nilima Solanki, Deceased, was negligent;
3. That the negligence of both Melvin Tyrone Ervin and Nilima Solanki,
Deceased, were proximate, contributing causes of the accident in this
case, and
4. That Nilima Solanki and the Plaintiffs sustained injuries and damages
caused by the combined negligence of Melvin Tyrone Ervin and Nilima
Solanki, Deceased, then you will, in arriving at your verdict, first
determine that sum of money which will fairly and adequately
compensate the Plaintiffs, for said injuries and damages, and then
reduce this sum in proportion to the causal negligence of Nilima
Solanki, Deceased, using the following method . . . .
When this instruction was discussed at the trial level, the trial court stated: “This is [a]
comparative negligence statute, and I expected it to come from the defense, but I don’t
understand what negligence is there of the deceased?” Defendants’ counsel then argued for
the instruction, stating that there was evidence that Nilima Solanki had an opportunity to
steer her car into the shoulder of I-220 and that there was testimony that she had sat in her
car for one-and-a-half minutes after her car had stopped. The Solankis’ counsel then
attempted to withdraw the instruction. The trial judge initially stated that he would not rule
on the instruction at that time. However, after hearing further argument from Defendants’
counsel, the trial court decided to give the instruction “out of an abundance of precaution.”
¶32. The Solankis end their argument on appeal by conclusorily stating that:
19
One can clearly see that the Court did not see any negligence on the part of
Nilima Solanki, and for the jury to have assessed her with 100% of the
negligence evinces bias or prejudice on the part of the jury, or, shows that they
were just confused as to what the law was and as to how they were supposed
to rule.
¶33. Defendants counter that the Solankis’ claim that the jury found Nilima Solanki one
hundred percent negligent is incorrect. Defendants also contend that substantial evidence
demonstrated Nilima Solanki’s negligence. Defendants further argue that the Solankis
waived any objection to this instruction because they requested, and were granted, their own
comparative-negligence instruction – instruction 23.
¶34. Assuming arguendo that the Solankis can appeal this instruction (despite submitting
their own comparative-negligence instruction), this Court finds that it contains a correct
statement of the law and is warranted by the evidence. See Massey, 697 So. 2d at 410
(citation omitted). Mississippi is a comparative-negligence state. See, e.g., Blackmon v.
Payne, 510 So. 2d 483, 486 (Miss. 1987) (citing Evans v. Journeay, 488 So. 2d 797, 799
(Miss. 1986); Bell v. City of Bay St. Louis, 467 So. 2d 657, 664 (Miss. 1985); Miss. Code
Ann. § 11-7-15 (Rev. 2004)). Also, instruction 22 is warranted by the evidence. There was
testimony, reviewed above, regarding the location and positioning of Nilima Solanki’s car
on I-220, which is relevant to the issue of comparative negligence. Don Williams testified
that he had observed Nilima Solanki sitting in the driver’s seat of her car, with one leg on the
highway, on her cell phone for one minute to one-and-a-half minutes. As stated above,
Solanki also testified about his phone conversation with Nilima Solanki before the accident,
although he stated that they had spoken on the phone for no longer than twenty seconds
before the accident. Thus, the testimony provided an evidentiary basis for instruction 22.
20
Therefore, this Court finds that instruction 22 was properly given. See Richardson, 923 So.
2d at 1010 (citations omitted). Because we conclude that instruction 22 was a proper
reflection of the law and supported by the evidence, the remainder of the parties’ arguments
will not be addressed.
III. Whether the Trial Court Properly Denied the Solankis’ Motion for Judgment
Notwithstanding the Verdict.
¶35. This Court reviews a trial court’s denial of a motion for JNOV de novo. See, e.g.,
U.S. Fid. & Guar. Co. v. Martin, 998 So. 2d 956, 964 (Miss. 2008) (citing Adcock v. Miss.
Transp. Comm’n, 981 So. 2d 942, 948 (Miss. 2008)). This Court has held that:
In deciding a motion for judgment notwithstanding the verdict, the trial court
must consider the evidence in the light most favorable to the non-moving
party, giving that party the benefit of all favorable inferences that reasonably
may be drawn therefrom. The trial court should consider the evidence offered
by the non-moving party and any uncontradicted evidence offered by the
moving party. If the evidence thus considered is sufficient to support a verdict
in favor of the non-moving party, the motion for j.n.o.v. must be denied.
Corley v. Evans, 835 So. 2d 30, 36 (Miss. 2003) (quoting Goodwin v. Derryberry Co., 553
So. 2d 40, 42 (Miss. 1989)). This Court has stated that “[a] motion for JNOV is a challenge
to the legal sufficiency of the evidence, and this Court will affirm the denial of a JNOV if
there is substantial evidence to support the verdict.” Martin, 998 So. 2d at 964 (citing
Adcock, 981 So. 2d at 948); see also Sentinel Indus. Contracting Corp. v. Kimmins Indus.
Serv. Corp., 743 So. 2d 954, 961 (Miss. 1999) (citing Steele v. Inn of Vicksburg, Inc., 697
So. 2d 373, 376 (Miss. 1997)). “Substantial evidence” has been defined as “information of
such quality and weight that reasonable and fair-minded jurors in the exercise of impartial
judgment might have reached different conclusions.” Martin, 998 So. 2d at 964 (citing
21
Adcock, 981 So. 2d at 948-49); see also Smith v. Averill, 722 So. 2d 606, 613 (Miss. 1998)
(citing Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523 So. 2d 324, 326 (Miss. 1988)).
In reviewing the trial court’s denial of a JNOV, this Court must “consider the evidence in the
light most favorable to the appellee, giving that party the benefit of all favorable inference
that may be reasonably drawn from the evidence.” Spotlite Skating Rink, Inc. v. Barnes,
988 So. 2d 364, 368 (Miss. 2008) (quoting Steele, 697 So. 2d at 376); see also Miss. Transp.
Comm’n v. SCI, Inc., 717 So. 2d 332, 338 (Miss. 1998) (citing Sperry-New Holland v.
Prestage, 617 So. 2d 248, 252 (Miss. 1993), superseded by statute on other grounds, Miss.
Code Ann. § 11-1-63(f)(ii), as recognized in Wolf v. Stanley Works, 757 So. 2d 316, 321
(Miss. 2000)). “If the facts are so overwhelmingly in favor of the appellant that reasonable
and fair-minded jurors could not have arrived at a contrary verdict, then this Court must
reverse and render.” SCI, Inc., 717 So. 2d at 338 (citing Prestage, 617 So. 2d at 252); see
also Kimmins Indus. Serv. Corp., 743 So. 2d at 960 (citation omitted). “On the other hand,
if there is substantial evidence in support of the verdict, that is, evidence of such quality and
weight that reasonable and fair minded jurors in the exercise of impartial judgment might
have reached different conclusions, affirmance is required.” SCI, Inc., 717 So. 2d at 338
(citing Prestage, 617 So. 2d at 252); see also Kimmins Indus. Serv. Corp., 743 So. 2d at 960
(citation omitted).
¶36. The Solankis argue on appeal that the trial court should have granted their motion for
JNOV because the verdict was against the overwhelming weight of the evidence. We note
that the Solankis provide the wrong standard for determining whether JNOV should be
granted. As stated above, a motion for JNOV challenges the legal sufficiency of the evidence
22
– not the overwhelming weight of the evidence. See, e.g., Martin, 998 So. 2d at 964 (citation
omitted). The Solankis’ argument is divided into three sections.
¶37. In section A, the Solankis discuss Mississippi Code Section 63-3-603, which requires
drivers to ascertain whether a lane change can be made safely before changing lanes. Miss.
Code Ann. § 63-3-603 (Rev. 2004). They also mention several cases that cite or apply
Section 63-3-603. They next quote the jury instruction given by the trial court stating that
drivers may not change lanes until they have ascertained that they can safely do so. The
Solankis then perfunctorily state that “[e]ven if we did not have the statute, Appellee Ervin
would be guilty of common law negligence, because it is clearly negligent to change lanes
at a time when one does not know whether it is safe to do so or not.” The Solankis do not
include any facts from this case in section A to support their contention that JNOV was
improperly denied and make no attempt to demonstrate how the facts in the cases cited are
analogous to the facts in this case.
¶38. In section B, the Solankis cite White v. Miller, 513 So. 2d 600 (Miss. 1987), for the
proposition that “rear-enders,” that is, drivers of cars that collide with cars in front of them,
must have their car under control, keep a proper lookout, and drive at a sufficient speed and
at a sufficient distance to prevent a collision if the car in front suddenly stops. They next
quote the jury instruction given by the trial court stating that, under Mississippi law, drivers
have a duty to exercise ordinary care to keep their vehicles under reasonable control, drive
at a reasonable rate of speed, keep a reasonable and proper lookout for other vehicles, and
anticipate the presence of other vehicles in order to avoid collisions. The Solankis then
conclusorily state that “[a]ppellee Ervin certainly failed in all of the above-mentioned
23
categories.” Again, the Solankis include no facts from this case in section B to show that
JNOV should have been granted and make no attempt to demonstrate how the facts in the
cases cited are analogous to the facts in this case.
¶39. Although section C is entitled “Argument applying the facts of the present case to
Mississippi Law in showing that the jury verdict was against the overwhelming weight of the
evidence in this case,” it contains no argument, and, as stated above, cites the wrong standard
for a motion for JNOV. The Solankis state that “[a]ppellee Ervin clearly made a lane change
at a time when he did not first ascertain that the lane change could be safely made.” For
support, the Solankis reference the discrepancies in Ervin’s deposition and trial testimony
and assert that the testimony from Ervin “clearly and unequivocally make[s] him negligent
and totally at fault for the subject accident.” The Solankis further state that Ervin “would
even be totally at fault by his expert’s version of when Appellee Ervin changed lanes.” The
Solankis recount at length what they allege to be three different versions of the facts provided
by Ervin, followed by the version provided by Messerschmidt. Then, they argue that three
jury instructions should not have been given by the trial court. At the close of the discussion
of the three jury instructions, the Solankis state:
One can clearly see that the Court did not see any negligence on the part
of Nilima Solanki, and for the jury to have assessed her with 100% of the
negligence evinces bias or prejudice on the part of the jury, or, shows that they
were just confused as to what the law was and as to how they were supposed
to rule. In any event, Appellees’ Jury Instruction regarding “parking in a
roadway,” which was the Court’s Jury Instruction No. 22, clearly confused and
mislead the Jury.
Also, the Appellants are from India, and the Jury could have been
prejudice [sic] for this reason, but there was no basis for a verdict totally for
the Appellees under these facts.
24
¶40. Defendants counter that JNOV was properly denied. Like the Solankis, Defendants
misstate the proper standard applicable to motions for JNOV. Defendants contend that
substantial testimony was presented at trial by Ervin and Messerschmidt that Ervin had kept
a reasonable lookout when changing lanes and that he had made his best efforts to avoid
colliding with Nilima Solanki’s car. Defendants assert that this testimony was sufficient to
support the jury verdict. In response to the Solankis’ discussion of Section 63-3-603,
Defendants argue that the plain language of Section 63-3-603 indicates that it is inapplicable
to the facts in this case. Defendants further claim that, even if Section 63-3-603 is applicable,
this does not alter the fact that Defendants presented substantial evidence to show that Ervin
was not negligent. Likewise, Defendants argue that the Solankis’ discussion of the law
regarding “rear-enders” does not change the fact that Defendants presented substantial
evidence to show that Ervin was not negligent. As for the Solankis’ discussion of the alleged
three versions of Ervin’s testimony and Messerschmidt’s testimony, Defendants contend that
the Solankis ignore the fact that the jury is responsible for weighing discrepancies in the
evidence and for evaluating the credibility of witnesses. Defendants further point out that,
when reviewing a trial court’s decision regarding JNOV, the evidence is to be viewed in the
light most favorable to the appellee, and that all reasonable inferences must be drawn in the
appellee’s favor. Thus, Defendants argue, the Solankis improperly ask this Court to
reevaluate the credibility of Ervin and Messerschmidt. Defendants then discuss the evidence
presented at trial demonstrating that Nilima Solanki was negligent.
¶41. Based on the testimony presented at trial, which this Court reviewed in Section I, this
Court finds that JNOV was properly denied. At trial, Ervin and Messerschmidt testified that
25
Ervin’s conduct before the accident was not negligent. Ervin maintained that he did all he
could do to avoid an accident. Messerschmidt testified that Ervin had begun steering to
avoid an accident ninety-eight feet away from Nilima Solanki’s car. He stated that the
median distance at which someone could respond to an object is fifty-nine feet from the point
of impact with the object. He also testified that it would have taken 250 to 310 feet for the
truck to stop and 116 feet for him to avoid an accident. He concluded that Ervin “took the
best method that was available to him.” The jury heard all the evidence presented. The jury
ultimately found that Ervin was not negligent and that Defendants, therefore, were not liable
to the Solankis. The jury determines the weight and credibility of witnesses. See, e.g.,
Nelson v. State, No. 2008-KA-00299-SCT, 2009 WL 1085485, at *17 (Miss. Apr. 23, 2009)
(citing Moore v. State, 933 So. 2d 910, 922 (Miss. 2006)) (“The jury determines the weight
and credibility of witness testimony.”); Gathright v. State, 380 So. 2d 1276, 1278 (Miss.
1980) (“This Court has in numerous cases, too many to mention, said that when the evidence
is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight
and worth of their testimony.”). This Court finds that the testimony of Ervin and
Messerschmidt is legally sufficient to support the jury verdict.
¶42. The Solankis fail to make a coherent argument as to why the testimony was
insufficient to support the verdict and why, therefore, JNOV should have been granted. The
issues raised by the Solankis are completely irrelevant to the determination of whether
sufficient evidence was presented at trial to support the jury’s verdict. The Solankis set out
the law regarding changing lanes and the responsibilities of individuals driving cars behind
other cars. While this may be relevant to their theory of the case, and while it would have
26
been helpful in trying to convince the jury to find in their favor, this law is irrelevant to the
question of whether there is sufficient evidence to support the jury verdict. The Solankis fail
to connect the law to the facts of this case in order to illustrate how the testimony of Ervin
and Messerschmidt was insufficient to support the verdict. The fact that Mississippi law
imposes certain responsibilities on drivers does not, in and of itself, indicate that JNOV
should have been granted in this case. Likewise, the fact that this Court has found certain
drivers to be negligent in the cases cited by the Solankis does not necessarily mean that
JNOV should have been granted in this case. The Solankis’ discussion of the three jury
instructions also is irrelevant to the question of whether the evidence presented at trial was
sufficient to support the jury verdict.
¶43. Furthermore, Defendants are correct in arguing that the Solankis improperly ask this
Court to reevaluate the weight and credibility of the testimony provided by Ervin and
Messerschmidt. The jury heard the testimony presented by Ervin and Messerschmidt. The
jury also heard the Solankis’ attempts to impeach Ervin with his deposition testimony at trial.
As stated above, the jury is responsible for weighing the evidence and determining the
credibility of witnesses. See, e.g., Nelson, 2009 WL 1085485, at *17 (citation omitted);
Gathright v. State, 380 So. 2d at 1278. Thus, the jury was entitled to credit the testimony
of Ervin and Messerschmidt and not that of Hannah. Moreover, it is well established that,
when reviewing trial court decisions regarding JNOV, the evidence is to be considered in the
light most favorable to the appellee. See, e.g., Spotlite Skating Rink, Inc., 988 So. 2d at 368
(citation omitted).
27
¶44. Lastly, we note that the Solankis are mistaken in claiming that the jury found Nilima
Solanki one hundred percent negligent. The jury found that Ervin was not negligent and
made no findings as to whether or not Nilima Solanki was negligent. The jury may have
concluded that she was negligent, but it also may have found that the Solankis simply failed
to meet their burden of proving by a preponderance of the evidence that Ervin was negligent.
For the same reason, we do not address Defendants’ assertion that Nilima Solanki was
negligent, because it is irrelevant to whether sufficient evidence showed that Ervin was not
negligent to support the jury verdict in favor of Defendants.
¶45. After a de novo review of the record, this Court concludes that the trial court properly
denied the Solankis’ motion for JNOV. This Court finds that the testimony of Ervin and
Messerschmidt constitutes substantial evidence because it is “of such quality and weight that
reasonable and fair-minded jurors in the exercise of impartial judgment might have reached
different conclusions.” See, e.g., Adcock, 981 So. 2d at 948-49 (citation omitted). This
Court cannot say that “the facts are so overwhelmingly in favor of the appellant that
reasonable and fair-minded jurors could not have arrived at a contrary verdict.” See e.g.,
SCI, Inc., 717 So. 2d at 338 (citation omitted). Taking the evidence “in the light most
favorable to the appellee, giving that party the benefit of all favorable inference that may be
reasonably drawn from the evidence,” this Court concludes that JNOV was properly denied.
See, e.g., Spotlite Skating Rink, Inc., 988 So. 2d at 368 (citation omitted).
IV. Whether the Trial Court Properly Denied the Solankis’ Motion for a New Trial.
¶46. This Court reviews a trial court’s grant or denial of a motion for a new trial for an
abuse of discretion. See, e.g., Pierce v. Cook, 992 So. 2d 612, 620 (Miss. 2008); Allstate Ins.
28
Co. v. McGory, 697 So. 2d 1171, 1174 (Miss. 1997). This Court has held that “a new trial
becomes appropriate when a trial court determines that error within the trial mechanism itself
has caused a legally incorrect or unjust verdict to be rendered.” White v. Stewman, 932 So.
2d 27, 33 (Miss. 2006). This Court further stated in Stewman:
In ordering a new trial, the trial court makes a determination that the jury
verdict is in error, and that due to mistakes made in conducting the trial,
mistakes made in applying the law, or due to a jury verdict that is against the
great weight of the evidence, a new trial is necessary.
Id. at 33. This Court also has held that:
A new trial may be granted in a number of circumstances, such as when the
verdict is against the overwhelming weight of the evidence, or when the jury
has been confused by faulty jury instructions, or when the jury has departed
from its oath and its verdict is a result of bias, passion, and prejudice.
Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So. 2d 129, 132 (Miss. 1989) (citing
Clayton v. Thompson, 475 So. 2d 439, 443 (Miss. 1985)). “Throughout the entire history
of jury trials, the courts have exercised a supervisory power over them, and have granted new
trials whenever convinced, from the evidence, that the jury has been partial or prejudiced,
or has not responded to reason upon the evidence produced.” Stewman, 932 So. 2d at 33.
¶47. The Solankis’ argument regarding their motion for a new trial is the same as their
argument regarding their motion for JNOV, which is summarized above in Section III, and
which includes a claim that the jury was confused, biased, or prejudiced. The Solankis do
not separately address the trial court’s denial of their motion for a new trial on appeal. The
argument the Solankis presented to the trial court in their motion for JNOV or, in the
alternative, a new trial, includes a section that is similar to the argument they present on
appeal. We note that in their motion for JNOV or, in the alternative, a new trial, the Solankis
29
also claim that the trial court should have granted a directed verdict; that the trial court
should have granted a peremptory instruction in their favor; that the trial court improperly
excluded Hannah’s supplemental report, video, and photographs; that the trial court should
not have granted jury instructions D-6, D-8, D-11, D-4a, D-7a, and D-2; that the trial court
erred in denying the Solankis’ motion to designate an expert out of time; that the trial court
should have granted jury instruction P-7 and P-3; that the trial court improperly granted
partial summary judgment as to the Solankis’ negligent-infliction-of-emotional-distress
claim; and that the trial court erred in granting partial summary judgment as to punitive
damages. For several of these alleged points of error, the Solankis only include a heading
and do not include any substantive arguments in support. Moreover, the Solankis fail to
demonstrate how these supposed errors resulted in a jury verdict that is against the
overwhelming weight of the evidence, unjust, or contrary to the law. Therefore, this Court
will not address these additional arguments.
¶48. Defendants contend that the trial court properly denied the Solankis’ motion for a new
trial, arguing that there was no error in the trial that resulted in a legally incorrect or unjust
verdict. Defendants assert that there is no indication that the jury was confused by the jury
instructions or that they reached a verdict based on bias, passion, or prejudice.
¶49. Based on the evidence relevant to the issue of negligence, which this Court reviewed
in Section I, this Court cannot find that the trial court abused its discretion in denying the
Solankis’ motion for a new trial. The Solankis fail to identify an error within the trial
mechanism that resulted in a jury verdict that is against the overwhelming weight of the
evidence, unjust, or contrary to the law. They also fail to demonstrate how the jury verdict
30
warrants a new trial. Once again, the jury is the sole judge of the credibility of witnesses and
the weight of the evidence. See, e.g., Nelson, 2009 WL 1085485, at *17 (citation omitted);
Gathright, 380 So. 2d at 1278. Although the Solankis claim that the jury was confused by
the jury instructions, they provide no support for this claim. The Solankis also claim that the
jury was biased or prejudiced against them. While claims of prejudice should not cavalierly
be dismissed, the record in this case is devoid of any evidence to support the contention that
the verdict of the jury in the instant case was the result of bias, passion, and prejudice. This
Court recognizes that the Solankis are Indian and that Nilima and Sidharth Solanki
immigrated to this country. We note that testimony about the Solankis’ country of origin,
their immigration to the United States, their life here, and their plans for the future, including
returning to India in their retirement, was introduced by their counsel during the direct
examination of Sidharth Solanki.10 However, the Solankis did not identify (and this Court
cannot find) anything in the record to indicate that the jury was prejudiced against the
Solankis because of their race or national origin.
¶50. As stated above, the Solankis set out the law regarding changing lanes and the
responsibilities of individuals driving cars behind other cars. This is irrelevant to the
question of whether there was an error in the trial mechanism. The Solankis’ discussion of
the three jury instructions could be relevant to the question of whether there was an error in
the trial mechanism that caused a jury verdict that is against the overwhelming weight of the
evidence, unjust, or contrary to the law. However, the Solankis fail to explain how the jury
10
In addition, plaintiffs’ counsel stated during his opening statement that the
Solankis were from India.
31
instructions caused the jury to reach a verdict that warranted a new trial. Therefore, this
Court finds that the trial court properly denied the Solankis’ motion for a new trial.
CONCLUSION
¶51. This Court concludes that the trial court did not err in denying the Solankis’ motion
for directed verdict, in giving jury instructions 20 and 22, or in denying the Solankis’ motion
for judgment notwithstanding the verdict or, in the alternative, a new trial. Therefore, the
trial court’s denial of directed verdict, giving of jury instructions 20 and 22, and denial of
judgment notwithstanding the verdict and a new trial are affirmed.
¶52. AFFIRMED.
CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.
32
Appendix
Instruction P-1
The Court instructs the jury that you shall find for the plaintiffs against
the defendants, The Merchants Company and Melvin Tyrone Ervin, with the
form of your verdict being as follows:
“We, the jury, find for the plaintiffs and against the
defendants, the Merchants Company and Melvin Tyrone
Ervin and assess their damages in the sum of
$____________.”
and you will write your verdict upon a separate piece of paper.
Instruction P-10
The Court instructs the jury that Melvin Tyrone Ervin, at the time and place
of the accident in question, was an employee of The Merchants Company and
that he was working and acting within the course and scope of his employment
with The Merchants Company and was acting in furtherance of the company’s
business and was therefore at all time in question an agent of The Merchants
Company, and therefore, The Merchants Company is liable to the Plaintiff for
the injuries and death of Nilima Solanki which were established by a
preponderance of the evidence to be the proximate result of the negligence, if
any, of Melvin Tyrone Ervin.
33