Spooner v. Floore

Filing 111

MEMORANDUM OPINION AND ORDER denying Plaintiff's 71 Motion for Summary Judgment, and granting in part and denying in part Defendant's 76 Motion for Summary Judgment. Signed by District Judge Halil S. Ozerden on 7/25/16. (KWM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MICHELLA SPOONER, as daughter, next
best friend, and personal representative of
Michael Davis Digel; and on behalf of the
wrongful death beneficiaries of Michael
Davis Digel
v.

PLAINTIFF

Civil No. 1:15cv109-HSO-JCG

PRENTISS G. FLOORE

DEFENDANT

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF
LIABILITY AND GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO SPECIFIC ITEMS OF DAMAGES
BEFORE THE COURT are two motions for partial summary judgment:
(1) the Motion [71] for Partial Summary Judgment on the issue of liability filed by
Plaintiff Michella Spooner (“Plaintiff”); and (2) the Motion [76] for Partial Summary
Judgement as to four specific items of damages filed by Defendant Prentiss G.
Floore (“Defendant”). Upon review of the record and relevant legal authority, the
Court finds that Plaintiff’s Motion [71] for Partial Summary Judgment on the Issue
of Liability should be denied because genuine issues of material fact remain on the
issue of causation. Defendant’s Motion [76] for Partial Summary Judgment will be
granted in part as to Plaintiff’s claims for hedonic damages and the decedent,
Michael Digel’s, loss of love, society, and companionship, which are not recoverable
in a wrongful death action pursuant to Mississippi Code Annotated Section 11-1-69,
and will be denied in all other respects.

I. BACKGROUND
A.

Factual Background
This case arises out of the death of Plaintiff’s decedent, Michael Davis Digel

(“Digel”), on April 27, 2014. That afternoon, Digel was riding a motorized bicycle on
U.S. Highway 90 in Jackson County, Mississippi. Compl. [1], at ¶8.1 The weather
was clear, and Defendant Prentiss G. Floore (“Defendant”) later recalled that it was
a nice sunny day. Dep. Floore [81-1], at 67. Defendant was traveling behind Digel
on a straight section of highway in the right lane as the two crossed a concrete
bridge. Id. 67–68. Defendant testified that Digel was traveling at a very slow speed
for the highway, only 10 or 15 miles per hour, and was traveling in the “left/middle”
of the lane. Id. at 30. The speed limit for that section of U.S. Highway 90 was 65
miles per hour. Uniform Crash Report [72-2], at 4. State statute sets the minimum
speed for motor vehicles on federal highways at 30 miles per hour. Miss. Code Ann.
§ 63-3-509.
There was no other traffic on the bridge, so Defendant attempted to pass
Digel’s bicycle on the left. Dep. Floore [81-1], at 30–31. As Defendant’s truck
passed Digel’s bicycle, the vehicles collided. Id. at 29–30. Although Defendant
contends that he cut his truck to the left when he saw the bicycle, Defendant

1

Although the bicycle was equipped with a motor, there is no record evidence
as to whether the motor was running prior to the collision. Dep. Burnett [81-3], at
30; Report Gilbert Rhoades [81-6], at ¶8.
2

testified that he was unable to avoid the collision in time because Digel was
traveling so slowly. Id. at 28–32. Digel died from his injuries later that day.
A Mississippi Highway Patrol Officer, Trooper Kevin Burnett (“Trooper
Burnett”), responded to the collision. Uniform Crash Report [72-2], at 1. According
to Trooper Burnett, when he arrived at the scene Defendant informed him that he
had undergone eye surgery approximately two weeks before the incident, did not
see Digel, and “ran right into him.” Uniform Crash Report [72-2], at 2. Trooper
Burnett testified that he was “100 percent positive” that Defendant said he did not
see Digel. Dep. Burnett [81-3], at 19.
Defendant contends that he does not remember making that statement to
Trooper Burnett, and has testified in his deposition that he did see Digel, as
evidenced by the fact that he struck Digel from the side when passing, as opposed to
striking Digel head-on. Dep. Floore [81-1], at 57–59, 92 (“If I hadn’t seen him I
would have run over him, you know. I wouldn’t have had him on the side . . . .”).
Trooper Burnett’s report reflects that the bicycle’s initial contact with Defendant’s
vehicle was on the passenger’s side of Defendant’s vehicle. Uniform Crash Report
[72-2], at 4. Trooper Burnett also testified that if he had seen Digel traveling 15
miles per hour or less in the middle of that particular section of highway, as
Defendant claims, Trooper Burnett would have considered it to be a dangerous
situation and would have stopped Digel. Dep. Burnett [81-3], at 31–32.
It is undisputed that Defendant underwent lens surgery on his left eye on
April 3, 2014. Def.’s Aff. [76-1]. Defendant avers that he was not advised by the
3

doctor who performed the surgery, Dr. Alan Franklin, or any other medical
provider, that he should not operate a motor vehicle. Id. Moreover, Defendant
asserts that he has driven to and from his work for many years, and that his only
other motor vehicle accident occurred in the 1970s. Id.
Following the accident, Paramedic David Rollins was dispatched to the scene
and arrived at 3:52 p.m. Dep. Rollins [81-9], at 10–12. Digel’s eyes were open and
he was conscious when Rollins arrived, but Digel had a bloody substance coming
from his mouth, was speaking in a garbled tone, and was not alert or oriented. Id.
at 15–16. Digel was transported to the closest appropriate hospital, Singing River
Hospital. Id. at 22. At 4:10 p.m., Dr. Melissa Costello evaluated Digel and began
treatment. Dep. Costello [81-10], at 90. Dr. Costello had passed the site of the
collision her way to work at the Hospital, and was able to quickly assess Digel’s
condition, having observed him on the side of the road before the ambulance
arrived. Id. at 10–12. After a series of unsuccessful resuscitative efforts, Digel was
pronounced dead at 6:40 p.m. Id. at 40–41.
B.

Procedural History
On April 1, 2015, Plaintiff initiated this civil action in her capacity as

daughter, next best friend, and personal representative of Michael Davis Digel, and
on behalf of Digel’s wrongful death beneficiaries. Compl. [1], at 1. The Complaint
seeks damages for Digel’s wrongful death including but not limited to:
a.
b.

All medical expenses;
All funeral expenses;
4

c.
d.
e.

f.
g.
h.

All damages arising from the physical injuries to the person of
Michael Davis Digel;
Physical and Mental Pain and Suffering and Hedonic damages
prior to and up until the time of death;
The present net cash value of the life expectancy of the deceased,
including but not limited to whatever sum Michael Davis Digel
might have recovered as the present value of his own life
expectancy;
The children’s loss of Love, Society, and Companionship of the
deceased;
The Deceased[’]s loss of Love, Society, and Companionship;
All damages as set out in the Wrongful Death Statute as set out in
Section 11-7-13 of Mississippi Code, 1972.

Id. at ¶40. Plaintiff also requests an award of punitive damages for Defendant’s
“willful, wanton, and grossly negligent conduct.” Id. at ¶41.
Plaintiff filed the instant Motion [71] for Summary Judgment on the Issue of
Liability on March 15, 2016, arguing that under the facts of this case Defendant
was negligent as a matter of law. Id. at 3. Plaintiff further maintains that she is
entitled to summary judgment because Defendant acted with reckless disregard by
driving with impaired vision. Id. Defendant has filed a Response [78] in opposition.
Defendant filed a Motion [76] for Partial Summary Judgment as to four
elements of Plaintiff’s claimed damages, specifically:
1)
2)
3)
4)

“[A]ll damages arising from the physical injuries to the person of
Michael Davis Digel;”
Hedonic damages;
The deceased’s loss of love, society, and companionship; and
Punitive damages.

Def.’s Mot. [76], at 1. Defendant contends (1) that Plaintiff is not entitled to the
first three items of damages based on Mississippi’s wrongful death statute, and (2)
that Plaintiff has not presented evidence of conduct by Defendant that was
5

sufficiently wanton or reckless to support a claim for punitive damages. Id. at 2–3.
Plaintiff has filed a Response [81] in opposition, and Defendant has filed a Reply
[89].
II. DISCUSSION
A.

Legal Standard
1.

Summary Judgment Standard

“Summary judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014); see
Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment, a court views the
evidence and reasonable inferences from the summary judgment record in the light
most favorable to the nonmovant. Minter v. Great Am. Ins. Co. of New York, 423
F.3d 460, 465 (5th Cir. 2005).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
2000). “A genuine issue of material fact exists if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Bluebonnet Hotel
Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014)
(quotation omitted). Summary judgment is appropriate unless a nonmoving party
can produce “‘significant evidence demonstrating the existence of a genuine fact

6

issue.’” Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010)
(quoting Russell v. Harrison, 736 F.2d 283, 287 (5th Cir. 1984)) (emphasis omitted).
2.

Wrongful Death Statute, Mississippi Code Annotated § 11-7-13

Wrongful death statutes “create new causes of action on behalf of the
statutorily-designated persons in order to compensate them for the death of the
decedent,” when a defendant’s conduct caused the decedent’s death. Phillips ex rel.
Phillips v. Monroe Cty., Miss., 311 F.3d 369, 374 (5th Cir. 2002). A plaintiff may
seek certain categories of enumerated damages in wrongful death litigation
pursuant to Mississippi Code Annotated Section 11-7-13, but these damages are not
necessarily due to the same claimants. See Bridges v. Enter. Products Co., 551 F.
Supp. 2d 549, 557 (S.D. Miss. 2008).
For instance, the estate is entitled to recover funeral costs and final
medical expenses. The beneficiaries are entitled to recover for their
respective claims of loss of society and companionship. [And, the]
wrongful death beneficiaries are entitled to recover the present net cash
value of the decedent’s continued existence.
Long v. McKinney, 897 So. 2d 160, 169 (Miss. 2004). Section 11-7-13 mandates that
there can be only one suit for the benefit of all parties for recovery of these
damages. See id. at 171–72; Bridges, 551 F. Supp. 2d at 558.
Wrongful death plaintiffs may recover “such 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.” Miss. Code Ann. § 11-7-13. However, pursuant to Mississippi Code
Annotated Section 11-1-69, “damages of every kind” does not include damages for
7

loss of enjoyment of life or hedonic damages caused by death. Miss. Code Ann. §
11-7-69(2). The Mississippi Supreme Court has held that wrongful death damages
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; (4) funeral and medical
expenses of the decedent; and (5) punitive damages. Laney v. Vance, 112 So. 3d
1079, 1081 (Miss. 2013) (citing McGowan v. Estate of Wright, 524 So. 2d 308, 311
(Miss. 1998)); Gatlin v. Methodist Med. Ctr., Inc., 772 So. 2d 1023, 1030–31 (Miss.
2000).
B.

Plaintiff’s motion for summary judgment will be denied because genuine
issues of material fact remain as to the cause of the collision.
Although Defendant has admitted the fact that his vehicle collided with

Digel’s bicycle, and many of the other circumstances surrounding the accident are
undisputed, summary judgment is nevertheless inappropriate in this case because
questions of material fact remain regarding causation. First, a question of material
fact exists on whether Defendant saw Digel prior to the collision and whether he
had an opportunity to avoid the accident. Second, the summary judgment evidence
creates a jury question on the degree of Defendant’s and Digel’s comparative
negligence, which this Court is unable to summarily determine as a matter of law
on the present record.

8

1.

A genuine issue of material fact exists as to whether Defendant saw
Digel before the collision.

The summary judgment record reveals a genuine dispute of material fact as
to whether Defendant saw Digel before the collision and whether, if Defendant did
in fact see Digel, the collision was caused by Defendant’s failure to exercise
reasonable care when passing. Trooper Burnett has testified that Defendant told
him at the accident scene that he did not see Digel, and “ran right into him.” Dep.
Burnett [81-3], at 19. Defendant has since testified in his deposition that he did in
fact observe Digel and tried to pass his bicycle on the left, which is why the collision
was on the right side of Defendant’s vehicle. Dep. Floore [81-1], at 57–59, 92.
Under Defendant’s version of the facts, Digel’s slow speed and his traveling too far
to the left of his lane made passing more difficult and caused or contributed to the
collision. Defendant’s statement in his deposition, as compared to Trooper
Burnett’s recollection of Defendant’s statement that he did not see Digel, creates a
question of material fact for the jury to resolve.
Plaintiff argues that Defendant was negligent per se for failing to keep a
proper lookout, citing Dennis By & Through Cobb v. Bolden, 606 So. 2d 111, 113
(Miss. 1992) (“The driver of a car is charged with the duty of keeping a proper
lookout and being on alert for vehicles, objects and persons ahead in the highway.”).
Mem. Supp. Mot. [72], at 11. However, in Bolden, the Mississippi Supreme Court
held that the plaintiff was not entitled to a directed verdict as to the defendant
motorist’s liability for striking a four-year-old child with her vehicle, even though
9

the accident “occurred on a clear day, and on a straight street” because “the front of
the car did not strike the child . . . she was struck by the side of the vehicle.” Id. at
114.
Here, Defendant testified that the front of his truck did not make contact
with Digel, but instead Digel was struck by the passenger’s side mirror.2 Dep.
Floore [81-1], 34. Trooper Burnett’s report further reflects that the area of initial
contact with Defendant’s truck was on the passenger’s side near the mirror.
Uniform Crash Report [72-2], at 4. Viewing this evidence in the light most
favorable to the nonmovant, Defendant here, see Minter, 423 F.3d at 465, and
following the reasoning in Bolden, summary judgment as to liability would be
improper.
Plaintiff also argues that Defendant was negligent per se under Mississippi
law because in Reese v. Summers, 792 So. 2d 992 (Miss. 2001), the Mississippi
Supreme Court held that “when two vehicles are traveling in the same direction,
the duty of avoiding collision generally rests with the driver of the following vehicle,
and that driver is per se negligent if he runs into the leading vehicle absent any
emergency or unusual conditions.” Id. at 996. However, the Court further clarified

2

During Defendant’s deposition, Plaintiff’s counsel referenced photographs of
the damage to Defendant’s vehicle, but those photographs have not been submitted
to the Court for consideration on summary judgment. Dep. Floore [81-1], at 34–40.
In Defendant’s deposition, Plaintiff’s counsel implies that the pictures depict
damage beginning at the truck’s front hood, suggesting that Defendant must have
hit Digel with the front of the truck. Id. at 39. Even in the face of this questioning,
Defendant insisted that he did not strike Digel with the front of his truck. Id.
10

that “whether particular circumstances rise to [the] level of emergency or unusual
is [a] jury question.” Id. Because the driver and passenger in the following vehicle
testified in Reese that the leading vehicle had stopped unexpectedly, the Mississippi
Supreme Court held that this unexpected condition created a jury question on
liability. Id.
Here, a reasonable jury could similarly find that Digel’s riding his motorized
bicycle on the highway at a slow speed and in the “left/middle” of the lane
constituted an unusual or emergency condition, thereby creating a jury question as
to Defendant’s liability. This conclusion is bolstered by Trooper Burnett’s testimony
that had he witnessed Digel traveling slowly on that particular stretch of highway,
as Defendant described, he would have considered it to be a dangerous situation
and would have stopped Digel. Dep. Burnett [81-3], at 31–32.
Plaintiff cites other cases for the proposition that Defendant was negligent as
a matter of law, but these decisions further support the conclusion that summary
judgment is inappropriate here. Mem. Supp. Mot [72], at 11–12. In L.A. Wood &
Co. v. Taylor, 154 F.2d 548 (5th Cir. 1946), the issue of liability was submitted to
the jury when a vehicle collided with a bicycle while passing. Id. at 549. In
Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911 (Miss. 2002), the Mississippi
Supreme Court affirmed the trial court’s decision to grant a directed verdict against
one motorist on the issue of liability, but the trial court had also granted a
comparative negligence instruction regarding any potential liability by the other
motorist and submitted the comparative negligence issue to the jury. Id. at 914.
11

Thus, even in a situation where the evidence at trial was ultimately strong enough
to support a directed verdict, liability was not determined on summary judgment.
Id.; see also Kettle v. Musser’s Potato Chips, Inc., 162 So. 2d 243, 253 (Miss. 1964)
(directing verdict on liability after jury trial and remanding for new trial on
damages); Robertson v. Welch, 134 So. 2d 491, 494 (Miss. 1961) (same); Rivers v.
Turner, 78 So. 2d 903, 907 (1955) (remanding for new trial after erroneous
instructions when vehicle struck bicyclist from behind).
Based on the present record, Mississippi law seems to indicate that summary
judgment would be inappropriate. Because genuine issues of material fact remain
as to whether Defendant saw Digel and should have been able to avoid the collision,
the Court will deny summary judgment on the issue of Defendant’s liability.
2.

The parties’ comparative negligence is also a question for the jury.

In moving the Court for summary judgment on Defendant’s liability, Plaintiff
also contends that there is no evidence of any comparative negligence on the part of
Digel. Mem. Supp. Mot. [72], at 16–20. However, the Court finds that based on the
present record, a reasonable jury could find that both parties to the collision were
negligent. “Under the comparative negligence statute the respective liabilities of
the parties [are] issues for the jury, and not the court.” Medley v. Carter, 234 So. 2d
334, 335 (Miss. 1970). Mississippi is a pure comparative negligence state. Miss.
Code Ann. § 11–7–15. When both parties’ negligence contributes to the injury,
negligence is measured in terms of a percentage and recoverable damages are

12

reduced in proportion to the negligent party’s fault. Meka v. Grant Plumbing & Air
Conditioning Co., 67 So. 3d 18, 23 (Miss. Ct. App. 2011).
Plaintiff argues that Defendant was negligent for failing to exercise
appropriate care when passing in violation of Mississippi Code Annotated Sections
63-3-609 and 63-3-1309. Mem. Supp. Mot. [72], at 9–10. Defendant counters that
Digel was negligent per se for traveling too slowly on a federal highway in violation
of Mississippi Code Annotated Sections 63-3-509 and 63-3-207. Resp. [79], at 6.
Defendant further maintains that Digel was traveling in the “left/middle” of the
lane, rather than “as close as practicable to the right-hand curb or edge of the
roadway,” as bicyclists are instructed to do by Mississippi Code Annotated Section
63-3-1307.3
On the present record, a jury could reasonably conclude that the negligence of
Defendant or Digel or both contributed to the collision. Viewing the facts in the
light most favorable to the nonmovant, Defendant in this case, the degree of
Defendant’s and Digel’s comparative negligence remains a disputed question of

3

As evidence of the contrary proposition, that Digel was traveling “as close as
practicable to the right hand edge of the road,” Plaintiff cites the Collision Diagram
from Trooper Burnett’s report showing the bicycle on the right edge of the lane. See
Mem. Supp. Mot. [72], at 19 (citing Uniform Crash Report [72-2], at 2). The Court
notes that Trooper Burnett did not witness which side of the lane Digel was
traveling in because he arrived on the scene after the collision, and it is unclear
from what source he would have derived this information or whether the depiction
of the bicycle on the right side of the lane was even intentional. Viewing the facts
in the light most favorable to Defendant, there is a question of material fact on this
issue.
13

material fact, such that the Court finds it appropriate to deny summary judgment
as to liability.
C.

Defendant’s motion for summary judgment as to specific items of damages
will be granted in part where such damages are prohibited by State law, and
denied in all other respects.
Defendant moves the Court for summary judgment only as to four items of

damages claimed in the Complaint, which he argues are unavailable as a matter of
law.
1)
2)
3)
4)

“[A]ll damages arising from the physical injuries to the person of
Michael Davis Digel;”
Hedonic damages;
The deceased’s loss of love, society, and companionship; and
Punitive damages.

Def.’s Mot. [76], at 1.
1.

Plaintiff’s claim for “all damages arising from physical injury” appears
to refer to damages that are recoverable in a wrongful death action.

As to the first challenged item of damages, Plaintiff argues that her claim for
“all damages arising from the physical injuries to the person of Michael Davis
Digel” merely tracks the plain text of Mississippi’s wrongful death statute,
Mississippi Code Annotated Section 11-7-13 (“[P]arties suing shall recover such
damages allowable by law as the jury may determine to be just, taking into
consideration all the damages of every kind to the decedent . . . .”). Damages in a
wrongful death action have been held 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
14

and death; (4) funeral and medical expenses of the decedent; and (5) punitive
damages. Laney v. Vance, 112 So. 3d 1079, 1081 (Miss. 2013) (citing McGowan v.
Estate of Wright, 524 So. 2d 308, 311 (Miss. 1998)); Gatlin v. Methodist Med. Ctr.,
Inc., 772 So. 2d 1023, 1030–31 (Miss. 2000).
The Court is unable to determine from Plaintiff’s briefing what damages she
claims are specifically encompassed by her separate claim to “all damages arising
from the physical injuries to the person of Michael Davis Digel” that are not covered
by the other, more specific, items of damages listed in the Complaint such as loss of
society, medical expenses, funeral expenses, and pain and suffering until the time of
death. Resp. [81], at 7–10. In opposing summary judgment on this issue, Plaintiff
discusses evidence relevant to the beneficiaries’ claims for loss of society, and
Digel’s pain and suffering from the time of the collision until his death three hours
later. Id. at 9–10. These are all items of damages allowed by Mississippi’s wrongful
death statute. Laney, 112 So. 3d at 1081.
Defendant argues that he seeks summary judgment on this issue because
Plaintiff may recover the five types of damages listed above, but any additional
damages that might fall under this generalized claim “are simply not allowable.”
Reply [89], at 5. However, in arguing against summary judgment on this issue,
Plaintiff has not articulated any claims for damages falling outside the five
allowable categories under the statute, such that the Court at this juncture cannot
decipher an impermissible claim to dismiss on summary judgment. Plaintiff’s claim
for all damages arising from injuries and losses suffered by Digel prior to his death
15

may proceed to trial to the extent it is encompassed by Mississippi’s wrongful death
statute and the five categories of damages listed above. Defendant’s Motion for
Summary Judgment will be denied on this issue, since there is no specific
unallowable claim for the Court to dismiss, and Defendant has not carried his
summary judgment burden to demonstrate that he is entitled to judgment as a
matter of law.
2.

Hedonic damages are not recoverable in a wrongful death action.

In her Response [81], Plaintiff has not briefed the issue of hedonic damages,
and the Court finds that such damages are clearly disallowed in a wrongful death
action pursuant to Mississippi Code Annotated Section 11-1-69. Laney, 112 So. 3d
at 1081. Defendant’s motion for summary judgment on the issue of hedonic
damages will be granted as to this claim.
3.

Digel’s loss of love, society, and companionship is not recoverable in a
wrongful death action.

It is not clear if Plaintiff is continuing to claim damages for both (1) the
beneficiaries’ loss of love, society, and companionship of Digel, and (2) Digel’s loss of
love, society, and companionship of his beneficiaries. These items of damages are
identified separately in Plaintiff’s Complaint [1] as items (f) and (g) respectively.4
Defendant’s motion challenges only the second claim, and argues that damages for a

4

f. The children’s loss of Love, Society, and Companionship of the
deceased;
g. The Deceased[’]s loss of Love, Society, and Companionship;
Compl. [1], at ¶40.
16

decedent’s loss of society are not recoverable in a wrongful death action under
Mississippi law pursuant to Laney.
Plaintiff has cited no authority for the proposition that Digel’s own loss of
love, society, and companionship from the time of his injury until his death is
recoverable in a wrongful death action. Resp. [81], at 11–12. Instead, Plaintiff
references cases, including Laney, which confirm that wrongful death beneficiaries
are entitled to recover for the loss of the companionship and society of the deceased.
Plaintiff further states that she “does not seek anything other than the recognized
elements of such damages.” Id.
To the extent Plaintiff’s Complaint [1] raises a distinct claim for Digel’s loss
of love, society, and companionship under item (g), such a claim will be dismissed,
and Defendant’s motion will be granted in part in this regard. This dismissal does
not impact Digel’s beneficiaries’ ability to recover damages for their own loss of the
companionship and society of the deceased in accordance with Laney.
4.

Punitive damages are recoverable in a wrongful death action, and
Plaintiff has submitted credible summary judgment evidence creating
a material fact question on her claim for punitive damages.

As to punitive damages, such damages are recoverable pursuant to
Mississippi Code Annotated Section 11-1-65 when a defendant “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).
Punitive damages are available in a wrongful death action. Hailey, 822 So. 2d at
923–24. “Missisippi law does not favor punitive damages” and the Mississippi
17

Supreme Court has cautioned that such damages “are only appropriate in the most
egregious cases so as to discourage similar conduct and should only be awarded in
cases where the actions are extreme.” Warren v. Derivaux, 996 So. 2d 729, 738
(Miss. 2008) (quotation marks and citations omitted). “When deciding whether to
submit the issue of punitive damages to a trier of fact, the trial court looks at the
totality of the circumstances, as revealed in the record, to determine if a reasonable,
hypothetical trier of fact could find either malice or gross neglect/reckless
disregard.” Bradfield v. Schwartz, 936 So. 2d 931, 936 (Miss. 2006).
The record in this case contains sufficient competent summary judgment
evidence, at least at this stage of the case, to permit the claim for punitive damages
to proceed. Trooper Burnett’s report and testimony state that, at the scene of the
accident, Defendant informed him that he had recently undergone eye surgery and
did not see Digel. Uniform Crash Report [72-2], at 2; Dep. Burnett [81-3], at 19. If
Digel’s vision was so poor that he could not physically see a bicyclist on a clear day
or should not have been driving at all, a reasonable jury could find that he was
grossly negligent for continuing to operate a motor vehicle given his admittedly
considerable history of vision problems. Id. at 78–79.
On the other hand, a reasonable jury might also find that Defendant’s
purportedly decades-long incident-free driving record before this collision takes his
conduct out of the realm of gross negligence. Def.’s Aff. [76-1]. On the present
record, a material fact question exists on the availability of punitive damages.

18

Defendant’s Motion for Partial Summary Judgment on the issue of punitive
damages will be denied.
III. CONCLUSION
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result. For the
foregoing reasons,
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion [71]
for Partial Summary Judgment as to Liability filed by Plaintiff Michella Spooner is
DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED the Motion [76] for
Partial Summary Judgment filed by Defendant Prentiss G. Floore is GRANTED IN
PART as to Plaintiff’s claims for hedonic damages and the decedent, Michael David
Digel’s, loss of love, society, and companionship, and DENIED IN PART in all
other respects. Plaintiff’s claims for hedonic damages, see Compl. [1], at ¶40(d), and
the decedent’s loss of love, society, and companionship, see Compl. [1], at ¶40(g), are
hereby DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED, this the 25th day of July, 2016.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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