Littlejohn et al v. Werner Enterprises, Inc. et al
Filing
134
MEMORANDUM OPINION re 133 Order on Motion for Partial Summary Judgment. Signed by District Judge Sharion Aycock on 6/23/2015. (geb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
GARY and PATRICIA LITTLEJOHN,
as Co-Administrators of
the ESTATE of CHRISTOPHER
LITTLEJOHN, deceased
V.
PLAINTIFFS
CIVIL ACTION NO. 1:14-CV-00044-SA-DAS
WERNER ENTERPRISES, INC., and
CLIVE CARVEY
DEFENDANTS
MEMORANDUM OPINION
Plaintiffs Gary Littlejohn and Patricia Littlejohn, acting as co-administrators of the Estate
of Christopher Littlejohn, commenced this personal injury action to recover compensatory and
punitive damages from Clive Carvey and Werner Enterprises, Inc. (“Werner”). Presently pending
before the Court are two motions for partial summary judgment [96, 100]. Upon consideration of
the motions, responses, rules, and authorities, the Court finds as follows:
Factual and Procedural Background
In January 2014, Defendant Clive Carvey was operating a Freightliner truck owned by
Werner while on U.S. Highway 72 in Tishomingo County, Mississippi. Carvey drove the truck
past the weigh station at Iuka, Mississippi. He then stopped in the middle of the four lane
highway and reversed in regular lanes of traffic to go back to the weigh station. As Carvey was
backing his vehicle up, Christopher Littlejohn’s vehicle collided with the rear of Carvey’s
vehicle, fatally injuring Littlejohn.
Plaintiffs brought suit in this Court, pursuing theories of negligence, gross negligence,
and wantonness against both Carvey and Werner, as well as negligent hiring, negligent training,
and negligent supervision against Werner. Plaintiffs have also alleged that, “[a]s principal of
Defendant Carvey,” Werner is responsible for Carvey’s conduct arising “within the scope of his
agency . . . .”
By previous memorandum opinion and order, the Court dismissed any punitive damages
claims against Werner arising solely through vicarious liability for the conduct of Carvey.
Defendants have since conceded that Carvey was negligent in the operation of his vehicle and
that he was acting within the course and scope of his employment at the time of the collision.
In the motions now before the Court, Defendants seek dismissal of the direct negligence
and punitive damage claims against Werner based on the company’s alleged conduct, as well as
any claim against either Defendant for lost earnings based on Littlejohn’s prospective ownership
of a Subway franchise.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when the evidence reveals no genuine dispute regarding any material fact and the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A party may seek summary judgment
on an entire claim or part of a claim. FED. R. CIV. P. 56(a).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at
323, 106 S. Ct. 2548. The nonmoving party must then “go beyond the pleadings” and “set forth
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‘specific facts showing that there is a genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548
(citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of
the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). However, conclusory
allegations, speculation, unsubstantiated assertions, and legalistic arguments have never
constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins.
Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093,
1097 (5th Cir. 1997); Little, 37 F.3d at 1075.
Analysis and Discussion
Direct Negligence Claims against Werner
Mississippi’s federal courts have held direct negligence claims against an employer to be
redundant and due to be dismissed where the employer has admitted vicarious liability for the
injury caused by the actions of its employee. See, e.g., Dinger v. Am. Zurich Ins. Co., 2014 WL
580889, at *3 (N.D. Miss. Feb. 13, 2014); Welch v. Loftus, 776 F. Supp. 2d 222, 225 (S.D. Miss.
2011). As stated above, Defendants have stipulated that Carvey was negligent and that he was
within the course and scope of his employment with Werner at the time of the accident. Thus,
Plaintiffs concede that their direct claims of negligent hiring, negligent training, and negligent
supervision against Werner would be redundant of the vicarious liability claim and should be
dismissed. Summary judgment on the direct negligence claims is, therefore, granted.
Punitive Damages against Werner
Plaintiffs assert they are entitled to punitive damages on the basis of the allegedly grossly
negligent conduct of Werner in hiring Carvey, retaining him after various driving failures, and
permitting him to drive alone at the time of the accident in question.
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Under Mississippi law, “the trial court is the gatekeeper for the issue of whether punitive
damages . . . should be submitted and considered by the jury[,]” and its decision is reviewed for
abuse of discretion. Franklin Corp. v. Tedford, 18 So. 3d 215, 240-41 (¶54) (Miss. 2009)
(citations and quotations omitted). The “law does not favor punitive damages; they are
considered an extraordinary remedy and are allowed ‘with caution and within narrow limits.’”
Warren v. Derivaux, 996 So. 2d 729, 738 (¶27) (Miss. 2008) (quoting Life & Cas. Ins. Co. of
Tenn. v. Bristow, 529 So. 2d 620, 622 (Miss. 1988)).
Punitive damages are not to be awarded unless the plaintiff proves “by clear and
convincing evidence that the defendant against whom punitive damages are sought acted with
actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the
safety of others, or committed actual fraud.” MISS. CODE. ANN. § 11-1-65(1)(a). The Mississippi
Supreme Court has explained that the types of conduct giving rise to punitive damages “import
insult, fraud, or oppression and not merely injuries, but injuries inflicted in the spirit of wanton
disregard for the rights of others.” Bradfield v. Schwartz, 936 So. 2d 931, 936 (¶17) (Miss. 2006)
(quoting Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759 So. 2d 1203, 1215
(¶52) (Miss. 2000)). The decision of whether to submit the issue of punitive damages to the jury
is made viewing “the totality of the circumstances and in light of defendant’s aggregate conduct .
. . .” Causey v. Sanders, 998 So. 2d 393, 408 (¶48) (Miss. 2008) (quoting Paracelsus Health
Care Corp. v. Willard, 754 So. 2d 437, 442 (¶20) (Miss. 1999)).
To demonstrate Werner exhibited the type of egregious conduct necessary for punitive
damages, Plaintiffs cite incidents occurring throughout Carvey’s employment history, arguing
that Werner was or should have been aware that its driver was a danger to the public. Prior to his
employment with Werner, Carvey was employed in brief stints with two other trucking
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companies, Crete Carrier and Super Service. Carvey testified that during his approximately two
month tenure at Crete Carrier, he would sometimes, while training, miss turns because he was
learning how to drive without using a GPS device, and that he was given the option to participate
in additional training. Carvey also testified that, at the time, issues arose with his son that
required Carvey to be at home. For both of these reasons, Carvey ceased training and
employment with Crete Carrier.
In Carvey’s subsequent employment with Super Service, he was involved in a collision
while turning at a stoplight. Although it is not clear from the record who was at fault, Carvey was
required to undergo additional training as a result. Additionally, Carvey testified that he scraped
a vehicle with his trailer while training, and that his employment was ended with Super Service
because he was not a good fit for the company.
Importantly, as is relevant on the issue of Werner’s conduct, there is no evidence that
Werner had knowledge of any of these prior issues before hiring Carvey. Through verifying
employment with Crete Carrier, Werner was informed that Carvey had a satisfactory work record
with Crete Carrier and was, in fact, eligible for rehire upon a successful interview with the
company. Werner attempted to similarly verify employment with Super Service, but the report
generated did not return Carvey’s work history. It instead instructed Werner to submit a Missing
Records Request, which Werner failed to do. Then, after a follow-up phone call to which Super
Service never responded, Werner chose to hire Carvey.
During his employment with Werner, spanning a period of less than five months, Carvey
was involved in three incidents before the accident at issue. Once, he backed up his truck into
soft terrain and got it stuck. A different time, in order to protect his cargo from being stolen,
Carvey attempted to back his truck up closely to a building, but accidently made contact with the
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building. On the third occasion, he again became stuck in soft terrain, although it is not clear
whether he was backing up at the time.
Plaintiffs argue that, in light of these various incidents, Werner’s decision permitting
Carvey to drive alone, when coupled with Werner’s failure to obtain his work history, provides a
basis for the Court to allow jury consideration of punitive damages. Yet, the Court finds
Werner’s actions in seeking employment verification to be, at worst, incomplete, and certainly
not the type of egregious conduct required for a punitive damage award. See Gaddis v. Hegler,
2011 WL 211801, at *4 (S.D. Miss. May 11, 2011) (finding punitive damages instruction proper
due to allegations that employer forced employee, upon threat of termination, to drive while
experiencing vision problems). Additionally, the decision to retain Carvey as a driver after his
previous incidents, only three of which Werner was aware, cannot be fairly labeled as malicious,
grossly negligent, or fraudulent. See Curd v. W. Exp., Inc., 2010 WL 4537936, at *3 (S.D. Miss.
Nov. 2, 2010) (finding punitive damages not warranted against trucking company even though
employee received approximately three speeding tickets, was involved in ten prior accidents,
allegedly received no training in seven years of work other than initial safety training, and was
not medically qualified to drive the trailer due to poor vision).
This is especially true given the actions Werner did take in ensuring driver safety with
regard to Carvey. As stated earlier, Werner verified Carvey’s employment with Crete Carriers
and attempted to do the same with Super Service. At the time of hiring, Carvey was a properly
licensed, medically qualified commercial motor vehicle operator with a clean report per the
Georgia Department of Motor Vehicles. Werner checked Carvey’s Pre-employment Screen
records, which showed no incidents reportable with the United States Department of
Transportation. Additionally, although Carvey had engaged in some training with his two
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previous employers, Werner treated him as a new driver and required him to log one hundred
and forty hours with a trainer and to pass a skills evaluation before he was permitted to drive a
truck by himself. Further, after the accidents in which Carvey backed into soft terrain and into a
building, Werner placed him on probation and required him to undergo additional training.
Tellingly, Plaintiff’s own expert, Charles Napier, testified that, while in his opinion, there
was evidence to support a finding of “reckless, willful, [or] wanton” conduct with regard to
Carvey’s actions in backing up the trailer in regular lanes of traffic, there was no evidentiary
basis to support a similar finding with regard to Werner’s conduct. Plaintiffs argue that Napier’s
testimony simply represents a refusal to usurp the role of the jury. This argument is doubtful,
however, as Plaintiffs’ expert did testify to the level of fault of Carvey, just not to that of Werner.
Additionally, Federal Rule of Evidence 704(a) permits an expert opinion that embraces an issue
to be decided by the jury so long as it is not otherwise inadmissible.
After viewing the totality of the circumstances, the Court finds Plaintiffs have failed to
adduce clear and convincing evidence showing that Werner acted maliciously, grossly negligent,
or fraudulently. MISS. CODE. ANN. § 11-1-65(1)(a). The claims for punitive damages against
Werner are therefore dismissed.
Lost Earnings
Plaintiffs seek to recover, as an element of damages, the amount Littlejohn would have
earned as a fast food restaurant franchisee during his work-life expectancy. According to
Littlejohn’s father, decedent had expressed a desire to own his own Subway, and the family
began taking steps to achieve that goal. To gain experience, Littlejohn worked for several years
as the store manager at one of his parents’ three Subway locations. Littlejohn’s parents
purchased an additional franchise option from Subway, and the family began to make plans for a
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new location in Burnsville, Mississippi, to be opened before May 2015. Littlejohn’s father
testified that he intended to make Littlejohn the full owner within six months after the store’s
opening. Defendants contend that Littlejohn should not be able to recover lost earnings as a store
owner because such earnings are speculative.1
By its terms, the Mississippi Code is silent as to the elements of recovery in a wrongful
death action. See MISS. CODE ANN. § 11-7-13 (providing for damages “allowable by law as the
jury may determine to be just, taking into consideration all the damages of every kind to the
decedent and all damages of every kind to any and all parties interested in the suit.”). Filling the
void, the Mississippi Supreme Court has held this statutory language to include: “(1) the present
net cash value of the life expectancy of the deceased, (2) the loss of the companionship and
society of the decedent, (3) the pain and suffering of the decedent between the time of injury and
death, and (4) punitive damages.” McGowan v. Estate of Wright, 524 So. 2d 308, 311 (Miss.
1988) (citations omitted). At issue here is the present net cash value of Littlejohn’s work life
expectancy.
Determining the decedent’s lost future income is intended to “ensure a reasonable and
workable system for establishing damages and to replace what has been lost.” Illinois Cent. R.
Co. v. Young, 120 So. 3d 992, 1010 (¶48) (Miss. Ct. App. 2012) (citation omitted). Indeed, “[t]he
paramount concern of a court awarding damages for lost future earnings is to provide the victim
with a sum of money that will, in fact, replace the money that he would have earned.” Rebelwood
Apartments RP, LP v. English, 48 So. 3d 483, 496 (¶57) (Miss. 2010) (quoting Culver v. Slater
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Defendants have also filed a Daubert Motion [104], seeking to exclude Plaintiffs’ economics expert from testifying
for failing to subtract an amount from lost earnings for Littlejohn’s personal consumption. Defendants have not,
however, argued that Plaintiffs’ expert should be excluded for purposes of this motion for partial summary
judgment. Additionally, Mississippi law does not require expert testimony to establish lost future earnings. See
Coleman v. Swift Transp. Co. of Arizona, LLC, 2014 WL 3533322, at *6 (N.D. Miss. July 16, 2014). Hence, the
Court need not opine as to the admissibility of the expert testimony in order to rule on this motion.
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Boat Co., 722 F.2d 114, 121 (5th Cir. 1983)). Mississippi law requires such an award to be
“rooted in the earnings of the decedent during his [work-life] expectancy.” Illinois Cent., 120 So.
2d at 1010 (¶48) (quoting New Deemer Mfg. Co. v. Alexander, 85 So. 104, 107 (Miss. 1920))
(emphasis removed). Yet, lost future earnings are recoverable, “not as damages to the
decedent[,]” but “as damages to the parties interested . . . .” Id. (quoting Belzoni Hardwood Co.
v. Cinquimani, 102 So. 470, 474 (Miss. 1924)). Thus, wrongful death beneficiaries are entitled to
“reasonable compensation for the loss of such pecuniary contributions as the decedent would
have, and could have, made to them.” Smith v. Indus. Constructors, Inc., 783 F.2d 1249, 1252-53
(5th Cir. 1986).
In arguing that the recovery for Littlejohn’s lost future earnings should not include sums
he would have earned as a Subway franchisee, Defendants rely primarily on the Mississippi
Supreme Court wrongful death case Rebelwood Apartments RP, LP v. English, 48 So. 3d 483
(Miss. 2010). There, the decedent earned $10,585 and $13,099 respectively in the two years
preceding her death. Id. at 489 (¶28). Although she had obtained applications for entry into the
nursing programs of Hinds Community College and Mississippi College, there was no evidence
that she actually applied for admission. Id. at 496 (¶55). Nonetheless, the trial court permitted the
plaintiffs’ expert to testify to a base-rate income of $38,651 for 2007 by utilizing national
average salaries of high school graduates and registered nurses with bachelor of science degrees.
Id. at 489-90 (¶¶28-29). On appeal, the Mississippi Supreme Court found only “meager evidence
of an intent to [attend] school,” and remanded for a new trial. Id. at 496-97 (¶55).
Defendant argues that Rebelwood requires the lost future earning calculation to begin and
end with the decedent’s previous income, and that any projected changes in circumstances that
would increase the decedent’s income are too speculative. This Court, however, has previously
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expressed doubt regarding Defendant’s reading of Rebelwood. See Person v. Ford Motor Co.,
2011 WL 10501606, at *8 (N.D. Miss. Oct. 13, 2011) (“[T]he court finds little new precedent
arising from this decision. Indeed, it is apparent that the Supreme Court in Rebelwood objected
to what it found to be attempts by the expert in that case to play the ‘race card’ . . . .”).
Additionally, Mississippi Supreme Court cases preceding Rebelwood permit the trier of
fact to consider projected increases in a decedent’s salary to support a lost earning award. For
example, in Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1165 (Miss. 1992), the Court
affirmed the decision to admit expert testimony that the decedent’s income would have increased
at a rate of 9.1 percent per year. As later explained in Rebelwood, the decedent’s income for the
five years before the injury provided a “colorable factual predicate upon which [the expert]
might base his opinion.” 48 So. 3d at 495 (¶53) (quoting Tanksley, 608 So. 2d at 1165).
A decade later, the Mississippi Supreme Court again affirmed the decision to admit an
expert’s testimony concerning future earnings even though such earnings significantly exceeded
the decedent’s previous income. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 918
(¶¶22-26) (Miss. 2002). There, the plaintiff had graduated from college and applied to work for
an insurance company, where he could expect to earn substantially more than he was making at
the time of his death. Id. The defendant urged, similar to the argument advanced here, that
evidence of a “decedent’s intention to enter an occupation other than the one engaged in at the
time of death was improper.” Id. The Court disagreed, explaining in part: “[a]mong matters
whose consideration by the trier of fact has been approved are the occupation of the decedent at
the time of his death, and other occupations he was qualified to fulfill, or intended, eventually, to
fulfill.” Id. (quoting 22 Am. Jur. 2d Death § 284 (1988)). The Court explained that the decedent
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“had been trained, received a college degree, was working and was absolutely qualified to be a
‘typical college graduate’ and to receive the earnings commiserate therewith.” Id.
Turning to the facts before the Court, prior to his death, Littlejohn and his parents took
several steps toward ensuring he would become a Subway franchisee. Littlejohn’s parents
purchased the right to open a Subway franchise in Burnsville, Mississippi; Littlejohn issued a
check in the amount of $7,000 for a “franchise fee;” Littlejohn sat for and passed an aptitude test
required for all Subway owners; and he and his parents entered into preliminary negotiations
with the owner of the East Burnsville Shopping Plaza to lease a space for the prospective
Subway location. According to Larry Vuncannon, Littlejohn’s friend and his partner in a
different business, Littlejohn intended to open the restaurant prior to May 2015. Littlejohn’s
father testified that he “was going to help [Littlejohn] get the building up, you know, get it
started, . . . and our plan was to turn it completely over to him, probably within six months after
it opened, if that long.” Accordingly, this case is unlike Rebelwood, where there was only
“meager evidence of an intent to [attend] school.” 48 So. 3d at 496 (¶55). Rather, more like the
plaintiff in Hailey, Littlejohn had trained by working as a Subway manager, was apparently
qualified as evinced by his passing the aptitude test, and had taken very specific steps toward
achieving the position he sought.
Defendants argue that notwithstanding Littlejohn’s future plans, the success of his
business is far from established, and the extent of that success is purely speculative. The Court
agrees that the damages must be proven at trial to a reasonable degree of certainty. Tanksley, 608
So. 2d at 1164. To that end, Plaintiffs have submitted evidence of ownership earnings for the
three other Subway locations owned by Littlejohn’s parents, all in towns with small populations
similar to Burnsville, Mississippi. The Court finds this to be a sufficient factual basis for a jury to
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determine an appropriate amount. After all, some level of juror approximation will prove
inherent in any calculation of a future, hypothetical income stream. See Butler v. United States,
726 F.2d 1057, 1068 (5th Cir. 1984) (explaining “that [t]here is no mathematical formula
recognized in the jurisprudence of Mississippi to determine the amount of damages in a wrongful
death action, and that the Mississippi Supreme Court does not ordinarily disturb the findings of
the trier of facts . . . [unless] it appears from the evidence that the amount of the [award] bears no
reasonable relation to the loss suffered”) (quotations omitted) (alterations in original); see also
Flax v. Quitman Cnty. Hosp., LLC, 2011 WL 3585870, at *7 (N.D. Miss. Aug. 16, 2011) (“The
trajectory of an individual’s work career is not set at age twenty-one . . . .”). And at trial,
Defendants are free to rebut Plaintiffs’ assertions with use of their own evidence and by cross
examination.
Defendants additionally argue that the Plaintiffs, Littlejohn’s parents, are entitled to no
recovery for Littlejohn’s lost earnings as a Subway owner because they still own the rights to
open the Subway franchise, and that any recovery on the basis of such an ownership interest
would constitute an impermissible double recovery in their favor. See Richardson v. Canton
Farm Equip., Inc., 608 So. 2d 1240, 1250 (Miss. 1992) (“Compensatory damages . . .
compensate the injured party for the injury sustained, and nothing more, such as will make good
or replace the loss caused by the wrong of the injury.”) (citation omitted).
However, Defendants’ position mistakes the basis of the lost earnings for which Plaintiffs
seek to recover. Undoubtedly, Littlejohn’s parents have not lost the contractual option to open a
Subway franchise in Burnsville, Mississippi. But any compensation that would have accrued as a
result of Littlejohn’s labor, time, ingenuity, and other contributions to the workplace as an owner
has been lost due to Littlejohn’s passing and, thus, may serve as a basis for a lost earnings award.
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See Rebelwood, 48 So. 3d at 496 (¶57) (noting the purpose of lost earnings award to “replace
what has been lost.”)
Defendants also suggest that summary judgment is appropriate because Plaintiffs are
under a duty to mitigate their losses by opening and running the Subway franchise themselves or
by having a different child do so. Under Mississippi law, a plaintiff is under a duty to “take
reasonable steps to mitigate his damages.” Manhattan Nursing & Rehab. Ctr., LLC v. Pace, 134
So. 3d 810, 818 (¶28) (Miss. 2014) (quoting Buras v. Shell Oil Co., 666 F. Supp. 919, 924 (S.D.
Miss. 1987)). Thus, “an injured plaintiff is not allowed to recover for damages that he did not
take reasonable steps to avoid.” Id. (citing Munn v. Algee, 924 F.2d 568, 573 n.9 (5th Cir. 1991)).
Yet regarding the duty to mitigate, no case has been cited by Defendants or located by the
Court compelling the conclusion that wrongful death beneficiaries are required to generate
income (through the running of a business or otherwise) as replacement for what their deceased
family member would have earned. Defendants identify authority recognizing a duty to mitigate
under Mississippi law in the wrongful death context, but those cases involve decisions to refuse
healthcare prior to the decedent’s death, not the failure to minimize projected lost earnings of the
decedent after his death. Manhattan Nursing, 134 So. 3d at 818 (¶28) (finding the healthcare
refusal of the family of the decedent relevant to the issue of mitigation); Munn, 924 F.2d at 57374 (declining to recognize an exception to the duty to mitigate when refusal of healthcare was
based on religious motivation). And importantly, “mitigation is an affirmative defense[,]” and
defendants are “burdened to charge and prove that [plaintiffs] ha[ve] failed in their duty.” Wall v.
Swilley, 562 So. 2d 1252, 1258 (Miss. 1990) (citations omitted). Thus, granting summary
judgment on an alleged failure to mitigate would be inappropriate.
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The Court finds that Plaintiffs may present evidence of Littlejohn’s potential Subway
ownership to the jury for a determination of the appropriate lost earnings award.
Conclusion
For the foregoing reasons, the Motion for Partial Summary Judgment [96] as to claims of
direct negligence and punitive damages against Werner is GRANTED, but the Motion for Partial
Summary Judgment [100] as to the lost earnings award is DENIED. A separate order to that
effect shall issue this day.
SO ORDERED, this 23rd day of June, 2015.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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