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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 95-CA-01072 COA CITY OF JACKSON, MISSISSIPPI v. CHARLES WILLIAMSON AND BETH WILLIAMSON DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES: NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: APPELLANT APPELLEES 09/05/95 HON. HONORABLE JAMES E. GRAVES JR. HINDS COUNTY CIRCUIT COURT WILLIAM A. GOWAN, JR. LANCE L. STEVENS RODERICK D. WARD, III CIVIL - PERSONAL INJURY VERDICT IN FAVOR OF PLAINTIFF, JUDGMENT GRANTED AFFIRMED ON DIRECT APPEAL; REVERSED AND REMANDED ON CROSSAPPEAL - 1/27/98 10/31/97

MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

BEFORE THOMAS, P.J., DIAZ, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT: The original opinion is withdrawn on a motion for rehearing and this modified opinion is substituted. The motion for rehearing is granted. A jury in the Circuit Court of Hinds County returned a verdict in favor of Charles Williamson in a personal injury action which arose out of a motorcycle accident. The City of Jackson appeals on the basis of the following issues: (1) the trial court erred in refusing to excuse a potential juror for cause; (2) a motion in limine excluding evidence that the plaintiff was not wearing a helmet was improperly granted; (3) the trial court erred in allowing the plaintiff to submit his medical

records to the jury under the business records exception to the hearsay rule; and (4) the trial court erred in failing to rule as a matter of law that the plaintiff was a trespasser/licensee. On cross-appeal, the Williamsons allege that: (1) the set-off of the settlement with the Town of Flowood was improper; and (2) the trial court erred by failing to grant additur for the loss of consortium claim of Beth Williamson. We affirm on direct appeal, but agree that each cross-appeal issue requires us to reverse and remand for further proceedings. FACTS Charles Williamson was riding his motorcycle along an access road to a sewage metering station in the Town of Flowood when he struck a cable and sustained severe injuries. The cable was erected by the City of Jackson to reduce vandalism at the metering station. While the City of Jackson owns and maintains the metering station, the access road is the property of the Town of Flowood. The City of Jackson also has access rights to the metering station for maintenance. Charles Williamson filed a negligence action against the City of Jackson and the Town of Flowood. Beth Williamson, Charles's wife, joined in the suit claiming a loss of consortium. The Williamsons and the Town of Flowood reached a settlement in the amount of $17,500. Following a trial in the Circuit Court of Hinds County, the jury awarded Charles Williamson $102, 500, which included a fifty-five percent reduction for his comparative negligence. The jury did not award Beth Williamson anything for her loss of consortium claim. DISCUSSION 1. Failure to Excuse a Juror for Cause On appeal, the City of Jackson asserts that the trial court committed reversible error by failing to excuse a prospective juror, John Robinson, for cause from the jury panel. Because of the trial court's refusal, the City was required to expend a peremptory challenge on Robinson. The City contends that the trial court violated its duty to insure the selection of a fair and impartial jury because of its refusal to sustain the City's challenge for cause of Robinson. During voir dire, Robinson expressed concerns about his ability to serve impartially on the jury. Robinson stated that his son was involved in an automobile accident, and thus he had a degree of empathy toward the plight of the plaintiff. Following further questioning, Robinson stated that he could be "fair as far as his ability." The City of Jackson moved to strike Robinson for cause based upon his past experience. The trial court denied the City's request. Subsequently, the City struck Robinson from the jury panel by using its third peremptory challenge. In a civil action before a twelve-member jury, each party may exercise four peremptory challenges. M.R.C.P. 47(c). Although a party may lose a peremptory challenge, it does not necessarily constitute a denial of the constitutional right to an impartial jury. The prerequisite to presentation of such a claim is a showing that "the defendant had exhausted all of his peremptory challenges and that the incompetent juror was forced to sit on the jury by the trial court's erroneous ruling." Mettetal v. State, 602 So. 2d 864, 869 (Miss. 1992); Chisolm v. State, 529 So. 2d 635, 638 (Miss. 1988). The City of Jackson cannot make such a showing here because it did peremptorily strike Robinson and

never exercised its remaining peremptory challenge. This assignment of error is without merit. 2. Exclusion of Evidence The City of Jackson's next assignment of error is that the trial court improperly granted the Williamsons' motion in limine as to Williamson's failure to wear a helmet. The City argues the evidence was relevant to show an overall disregard for safety. Furthermore, the City asserts that Williamson's failure to wear a helmet constitutes negligence per se, and thus the City was entitled to such a jury instruction. Evidentiary rulings are within the broad discretion of the trial judge and will not be reversed absent an abuse of discretion. Sumrall v. Mississippi Power Co., 693 So. 2d 359, 365 (Miss. 1997). There is no evidence to support the City's proposition that Williamson's failure to wear a helmet proximately caused or contributed to his injuries. Although Williamson suffered severe intestinal and pelvic injuries, he did not suffer any trauma to his head. Williamson's failure to wear a helmet was not relevant, and hence the trial court was correct in excluding such evidence. See M.R.E. 402. The City argues that Williamson's failure to show proper regard for his own safety is also evidence of a general carelessness, which if explained to the jurors might have caused them to allocate more or all of the fault to him. Had the City offered a better predicate for the evidence, the judge's exercise of discretion might more concretely have been reviewed. For example, is there reasonable expert opinion that those cyclists who fail to wear a helmet are more careless, as opposed just to being more libertarian? Based on this record, we find no abuse of discretion in excluding evidence that was of such questionable relevance. The City also contends that Williamson's failure to wear a helmet was in violation of

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