Whitehead v. Food Max of Mississippi, Inc.

Revised January 6, 1999

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

____________________

No. 97-60574
____________________

BENNIE WHITEHEAD; SUSAN WHITEHEAD, individually
and as Mother and adult next friend
of Amy Whitehead, a minor,

Plaintiffs-Appellees,

versus

FOOD MAX OF MISSISSIPPI, INC.; et al.,

Defendants,

KMART CORPORATION,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
December 16, 1998
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge.

A jury having found that Kmart’s failure to provide adequate

security for its parking lot was a cause of the abduction of Mrs.

Whitehead and her daughter, and ensuing heinous criminal acts, the

principal issue presented in Kmart’s appeal from the judgment in

this Mississippi diversity action, by which Kmart seeks a new

trial, is whether, because of the Whiteheads’ closing argument, the
jury was influenced by passion and prejudice in awarding damages of

$3.4 million. Concluding that the jury was so influenced, we must

REVERSE and REMAND for a new trial on damages; we AFFIRM as to

liability.

I.

Mrs. Susan Whitehead and her then twelve-year-old daughter,

Amy Whitehead, were abducted at knife-point from Kmart’s parking

lot at Beasley Road in Jackson, Mississippi, at approximately 8:30

p.m. on 18 October 1992. The two teenage assailants, Shanta Jones

and James Seaton, forced the Whiteheads into Mrs. Whitehead’s

vehicle. After robbing Mrs. Whitehead of the money in her purse

(totaling four dollars), the assailants drove the Whiteheads to an

ATM machine and had Mrs. Whitehead make a withdrawal. Seaton and

Jones then drove the Whiteheads to a remote location where, outside

the vehicle, they took turns sodomizing and raping Mrs. Whitehead;

while one did so, the other kept Amy Whitehead in the vehicle.

This minimal summary does not even begin to describe, capture, or

convey the indignity, terror, and horror inflicted upon the

Whiteheads.

Approximately one week later, Seaton and Jones were arrested;

each pleaded guilty to abduction, robbery, and rape. They are

serving 125 year sentences in state prison.

At the end of July 1992, approximately three months before the

abominable acts committed against Susan and Amy Whitehead, Kmart

2
terminated the contract for security on its large parking lot. It

contracted with a new security provider; but, that service did not

begin until two days after the abductions. This Mississippi

diversity action is premised on the claim that Kmart’s failure to

provide adequate security for its parking lot was a cause of

injuries to Mr. and Mrs. Whitehead and their daughter.

At trial, the Whiteheads’ security expert criticized Kmart’s

lack of policies regarding parking lot security and opined that the

lack of uniformed, armed security guards on the night of the

abduction created an unsafe environment. Another of the

Whiteheads’ experts opined that Seaton and Jones were “power

reassurance rapists”, who probably chose Kmart because of its lack

of security in its parking lot, and who would probably have been

deterred by the presence of a uniformed security guard.

Kmart’s local loss prevention manager testified regarding the

measures his personnel took in the absence of the security guards,

which primarily involved an unwritten requirement that a loss

prevention employee, carrying a two-way radio, patrol the several

acre parking lot twice an hour for five to ten minutes.

A jury found for the Whiteheads. It awarded Susan Whitehead

$196,000 for past and future medical expenses and $1.5 million for

past and future pain and suffering; Amy Whitehead, $100,000 for

3
future medical expenses and $1.2 million for past and future pain

and suffering; and Bennie Whitehead, $500,000 for loss of

consortium.

Post-verdict, Kmart did not seek judgment as a matter of law.

Instead, it moved only for a new trial or, alternatively, a

remittitur. The motion was denied.

II.

As it did at trial, Kmart acknowledges readily that the crimes

committed against Susan and Amy Whitehead are terrible. On the

other hand, it notes, correctly, that, notwithstanding how vile the

crimes were, the jury could not be improperly influenced by

emotion.

Seeking only a new trial, not that we reverse and render,

Kmart presents three issues: (1) whether there was a lack of

evidence for the jury finding Kmart had a duty to provide private

security for the parking lot (and, in conjunction, whether the jury

was instructed erroneously and whether the district court committed

plain error in admitting testimony); (2) whether the jury awards

are excessive, including that they are a result of passion and

prejudice; and (3) whether the district court properly applied

Mississippi’s statute allocating fault among joint tortfeasors. Of

course, this being a diversity action, we apply state substantive

law. E.g., Gasperini v. Center for Humanities, Inc., 518 U.S. 415,

427 (1996).

4
 A.

The plaintiff in a Mississippi negligence action has the

burden of proving: “a) the duty owed him by the [defendant]; b) a

breach of that duty; c) damages; and d) a causal connection between

the breach and the damages, such that the breach is the proximate

cause of his injuries”. Crain v. Cleveland Lodge, 641 So.2d 1186,

1189 (Miss. 1994) (emphasis in original). Asserting that there was

a lack of evidence on which the jury could find Kmart had a duty to

provide private security, Kmart advances three bases in support:

(1) that there was no evidence showing the requisite “atmosphere of

violence”; (2) that the jury was misled by an instruction regarding

Kmart’s duty; and (3) that unobjected-to testimony prevented a fair

trial.

1.

As noted, following entry of judgment, Kmart moved only for a

new trial, expressly pursuant to FED. R. CIV. P. 59. It did not also

move for judgment as a matter of law, pursuant to FED. R. CIV. P.

50.

Concerning the lack of evidence claim, “[a] trial court should

not grant a new trial on evidentiary grounds unless the verdict is

against the great weight of the evidence”. Pryor v. Trane Co., 138

F.3d 1024, 1026 (5th Cir. 1998) (quoting Dotson v. Clark Equip.

Co., 805 F.2d 1225, 1227 (5th Cir. 1986)). The district court has

“sound discretion” to grant or deny new trial motions; we will

5
affirm absent “a clear showing that this discretion has been

abused”. Pryor, 138 F.3d at 1026; see also Hidden Oaks Ltd. v.

City of Austin, 138 F.3d 1036, 1046 (5th Cir. 1998); Bernard v.

IBP, Inc., 154 F.3d 259, 264 (5th Cir. 1998).

It goes without saying that review of the denial of a new

trial motion is more limited than when one is granted. Pryor, 138

F.3d at 1026. The denial will be affirmed unless, on appeal, the

party that was the movant in district court makes a “clear showing”

of “‘an absolute absence of evidence to support the jury’s

verdict,’ thus indicating that the trial court had abused its

discretion in refusing to find the jury’s verdict ‘contrary to the

great weight of the evidence’”. Hidden Oaks, 138 F.3d at 1049

(quoting Dawsey v. Olin Corp., 782 F.2d 1254, 1261 (5th Cir. 1986))

(emphasis added).1

1
In stating the test for reviewing denials of new trial
motions, Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998)
mistakenly quotes the test used instead for reviewing judgment as
a matter of law rulings: “we must affirm the verdict unless the
evidence–viewed in the light most favorable to the jury’s verdict–
‘points so strongly and overwhelmingly in favor of one party that
the court believes that reasonable men could not arrive at a
contrary conclusion’”. This statement is quoted from Jones v. Wal-
Mart Stores, Inc., 870 F.2d 982, 987 (5th Cir. 1989), which quoted
Whatley v. Armstrong World Industries, Inc., 861 F.2d 837, 839 (5th
Cir. 1988), which quoted Boeing Co. v. Shipman, 411 F.2d 365, 374
(5th Cir. 1969) (en banc), overruled on other grounds, Gautreaux v.
Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997). The ultimate
source of statement in Pryor is the cite to Boeing, in which our
court discussed the test for reviewing judgment as a matter of law
rulings, not for reviewing denials of new trial motions. As quoted
above, the proper standard of review for denials of new trial
motions is contained in Hidden Oaks.

6
 a.

In the face of the Whiteheads noting this quite narrow

standard of review for the denial of a new trial motion, Kmart in

its reply brief urges us belatedly to treat its new trial motion as

also seeking judgment as a matter of law. Under that standard of

review, we determine whether “there is no legally sufficient

evidentiary basis for a reasonable jury to find for” the nonmovant.

FED. R. CIV. P. 50(a). Obviously, Kmart’s chances would be much

improved under this standard; it is far easier to satisfy than the

above-discussed requisite showing of “an absolute absence of

evidence to support the jury’s verdict”. Hidden Oaks, 138 F.3d at

1049 (emphasis added).2 Simply put, Kmart is trying to mix the

2
As we have noted, the standard of review for appeals from
denials of a new trial is far more narrow than that for denials of
judgment as a matter of law. At first blush, this appears
inconsistent, given that the remedy of a new trial is far less
drastic for the nonmovant than suffering judgment as a matter of
law. However, the reason for the more narrow standard for review
of the denial of new trial motions springs from the lower standard
applied by the district court to new trial motions — it is far less
demanding than that for judgment as a matter of law. As noted, the
standard for the district court to grant a new trial is whether the
verdict is against the great weight of the evidence. Shows v.
Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982). On the
other hand, the standard for granting judgment as a matter of law
is whether there is a legally sufficient evidentiary basis for the
jury’s verdict. Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir.
1995).

The standard used by the district court for granting a new
trial is lower than that for granting judgment as a matter of law
because “[a] verdict can be against the ‘great weight of the
evidence’, and thus justify a new trial, even if there is

7
proverbial “apples and oranges”.

For starters, Kmart’s attempt to switch the standard of review

comes far too late. As noted, it was not urged until its reply

brief (in a footnote no less). Generally, we do not address points

presented for the first time in a reply brief. See Northwinds

Abatement, Inc. v. Employers Ins., 69 F.3d 1304, 1308 n.3 (5th Cir.

1995); Conkling v. Turner, 18 F.3d 1285, 1299 (5th Cir. 1994);

Unida v. Levi Strauss & Co., 986 F.2d 970, 976 n.4 (5th Cir. 1993);

Blumberg v. HCA Management Co., Inc., 848 F.2d 642, 646 (5th Cir.

1988); Knighten v. Commissioner of Internal Revenue, 702 F.2d 59,

60 n.1 (5th Cir. 1983).

substantial evidence to support it”. Shows, 671 F.2d at 930.
Additionally, “[t]he trial court in passing on a motion for a new
trial need not take the view of the evidence most favorable to the
verdict winner, [as is required in passing on motions for judgment
as a matter of law,] but may weigh the evidence.” Id.; United
States for the use of Weyerhaeuser Co. v. Bucon Constr. Co., 430
F.2d 420, 423 (5th Cir. 1970). Thus, while the district judge in
ruling on a motion for judgment as a matter of law decides a pure,
nondiscretionary question of law, that judge in ruling on a new
trial motion “may and should exercise a sound discretion”.
Weyerhaeuser, 430 F.2d at 423.

Again, it is because the standard for the district court to
grant a new trial is less stringent and is discretionary that the
more narrow abuse of discretion standard of review is applied on
appeal. See Weyerhaeuser, 430 F.2d at 423 (trial court uses its
sound discretion in ruling on motion for new trial, and such ruling
will only be reviewed upon a showing of “clear abuse of
discretion”). In district court, Kmart recognized this more
lenient standard utilized by district courts in ruling on new trial
motions when, in its brief in support of its new trial motion,
Kmart pointed out to the court that it did not have to view the
evidence in the light most favorable to the Whiteheads and that it
could weigh the evidence.

8
 In any event, although here, Kmart belatedly urged the

standard of review for judgment as a matter of law, it did not

concomitantly seek a judgment in its favor. Instead, throughout

its opening and reply briefs, it sought only a new trial. It was

not until oral argument, in response to questioning about this

anomaly, that Kmart finally asked that we reverse and render.

Needless to say, we do not generally consider points raised for the

first time at oral argument. See United States v. Ulloa, 94 F.3d

949, 952 (5th Cir. 1996), cert. denied, 117 S. Ct. 1338 (1997);

Zuccarello v. Exxon Corp., 756 F.2d 402, 407-08 (5th Cir. 1985)

(“[W]hen an appellant raises an issue for the first time at oral

argument, the Court ordinarily will not consider it; failure to

satisfy the requirements of Rule 28 constitutes a waiver of the

issue”); FED. R. APP. P. 28. Obviously, a party is bound by, or

limited to, the relief it seeks on appeal. FED. R. APP. P. 28(a)(7)

(appellant’s brief must contain “[a] short conclusion stating the

precise relief sought”); see Johnson v. New York, N.H. & H.R. Co.,

344 U.S. 48, 54 (1952) (holding that failure to move for judgment

after verdict entitled party “only to a new trial, not a judgment

in its favor”); MacArthur v. University of Texas Health Center, 45

F.3d 890, 897 n.8 (5th Cir. 1995); Zervas v. Faulkner, 861 F.2d

823, 832 n.9 (5th Cir. 1988) (stating that if appellant does not

move for judgment, only relief appellate court can grant is a new

9
trial); University Computing Co. v. Lykes-Youngstown Corp., 504

F.2d 518, 548 (5th Cir. 1974).

Accordingly, while seeking only a new trial, Kmart urges, too

late, that we apply a different standard of review. Of course, we,

not the parties, determine the proper standard of review. E.g.,

United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en

banc) (“[N]o party has the power to control our standard of

review.... If neither party suggests the appropriate standard, the

reviewing court must determine the proper standard on its own”)

(emphasis in original); United States v. Milton, 147 F.3d 414, 420

n*, rehearing en banc denied, 157 F.3d 905 (5th Cir. 1998);

Izzarelli v. Rexene Products Co., 24 F.3d 1506, 1519 n.24 (5th Cir.

1994); United States v. Pierre, 958 F.2d 1304 (5th Cir. 1992). For

this appeal, that standard, as earlier discussed, is the absolute

absence of evidence standard.

But, even assuming arguendo, that, for some unique

circumstance, we could apply the more lenient standard belatedly

urged by Kmart, this case would still not be the one for doing so.

In belatedly urging that lenient standard, Kmart relies on Satcher

v. Honda Motor Co., 52 F.3d 1311, 1315 (5th Cir. 1995), cert.

denied, 516 U.S. 1045 (1996), in which our court allowed a new

trial motion to be treated as one for judgment as a matter of law.

In Satcher, the appellant moved for judgment as a matter of

law “at the close of the plaintiff’s case and at the close of all

10
the evidence”. Id. Kmart points out that it made such pre-verdict

motions. The similarity ends there.

Satcher noted that the appellant also “reurged the motion for

judgment” in its new trial motion and had merely “fail[ed] to style

its motion correctly”. Id. Kmart did not do so here. Contrary to

its assertions, it did not merely fail to style its motion

correctly; it also failed totally to request judgment as a matter

of law. It requested only a new trial or remittitur. (And, as

noted supra, in its opening brief in support of its new trial

motion, it fully developed the evidentiary distinction between

motions for new trials and those for judgment as a matter of law,

stressing that it was seeking the former.) An appellant who fails

to renew its pre-verdict motion for judgment “in the district court

is not entitled to rendition of judgment in his favor on appeal,

but is at most entitled to a new trial”. Id. In short, Kmart’s

reliance on Satcher is most ill-advised, if not sanctionable.

Thus, in order to determine whether a new trial is warranted,

we review Kmart’s sufficiency of the evidence claims under the

above discussed abuse of discretion standard. To reverse, we must

find an absolute absence of evidence to support the verdict.

b.

Mississippi imposes on business owners “the duty to maintain

the premises in a reasonably secure or safe condition” for business

patrons or invitees. Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.

11
1991). This duty includes protection of patrons from the wrongful

acts of third parties on the premises.

[A]ny business which invites the company of
the public must take “reasonably necessary
acts to guard against the predictable risk of
assaults”. A business proprietor owes a duty
to those entering its premises to provide a
reasonably safe place.

Id. (quoting Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d

1364, 1369 (La. 1984)) (internal citations omitted).

Whether the injuries sustained by the Whiteheads were

foreseeable is the central issue; “the foreseeability of the injury

sustained provide[s] the touchstone for liability”. Crain, 641

So.2d at 1189 (emphasis in original); Malloy v. Sears, Roebuck and

Co., 1997 WL 170313, *4 (N.D. Miss. 1997). In this regard, the

intentional criminal acts of third parties do not, by definition,

relieve Kmart of liability. O’Cain v. Harvey Freeman and Sons,

Inc., 603 So.2d 824, 830 (Miss. 1991). Rather, “criminal acts can

be intervening causes which break the causal connection with the

defendant’s negligent act, if the criminal act is not within the

realm of reasonable foreseeability.... [The answer] depends upon

the facts of the case and the duty which the plaintiff asserts for

the particular defendant”. Id. (emphasis in original).

As Kmart notes, foreseeability of the crimes at issue may

arise from two sources: “1) actual or constructive knowledge of the

assailant’s violent nature, or 2) actual or constructive knowledge

12
that an atmosphere of violence exists [on the premises]”. Grisham

v. John Q. Long V.F.W. Post, 519 So.2d 413, 416-17 (Miss. 1988)

(emphasis added); Crain, 641 So.2d at 1189. It is undisputed that

the assailants’ violent nature was unknown to Kmart; therefore,

foreseeability rests on whether “an atmosphere of violence”

existed. Asserting that there was a “complete lack of evidence

that an ‘atmosphere of violence’ existed in the Kmart parking lot”,

Kmart claims it owed no duty to the Whiteheads to provide security

there.

Kmart maintains that the 18 October 1992 crimes were not

reasonably foreseeable in the light of the relative lack of crime

at Kmart. The Whiteheads introduced evidence of several prior

crimes at the parking lot, which had been reported to the police:

(1) in July 1991, a customer hit another customer’s car with a

stick and then attempted to hit him with the stick; (2) in October

1991, a man drove by a customer and snatched her purse out of her

shopping cart; (3) in March 1992, two men drove by a customer and

grabbed her purse; (4) in April 1992, a man was robbed in his car

at gunpoint by another man whom he had recognized and had agreed to

drive home; (5) in May 1992, a customer was nearly knocked to the

ground as her purse was snatched; (6) in June 1992, a man grabbed

a customer’s purse and jumped into a car, dragging the customer to

the ground; and (7) in October 1992, just days before the

abductions, a purse was snatched.

13
 As noted, Kmart contends that this evidence equates, instead,

with “a complete lack of evidence that an ‘atmosphere of violence’

existed in the Kmart parking lot”. We disagree.

Lyle involved facts similar to those at hand. A customer at

a nightclub was abducted in his car at gunpoint, robbed, beaten,

and left in his trunk. Lyle, 584 So.2d at 398. The customer sued

the nightclub owners; but, the trial court granted summary

judgment, finding a lack of proximate cause. Id.

In reversing, the Mississippi Supreme Court noted that there

was evidence of several crimes against the person in the area of

the nightclub; and that, although there was no security on the

night of the abduction, there had been security in the past. Id. at

399. The court held that whether the presence of security on the

night in question would have prevented the customer’s injuries

presented a jury issue, stating that “the jury must determine

whether the [defendants’] discontinuance of its previous policy of

hiring security personnel to patrol the parking lot constituted a

breach of duty and, if so, whether this breach proximately caused

or contributed to [plaintiff’s] injuries”. Id. at 400.

Likewise, we cannot say that there was an absence of evidence

to show that Kmart’s discontinuance of private security guards in

its parking lot was a breach of duty. The Whiteheads introduced

several incidents of crimes against the person that had occurred on

the parking lot, including an armed robbery and several purse

14
snatchings, two of which nearly injured the victims involved. In

Lyle, the court apparently concluded that the evidence of crimes

against the person in the vicinity of the premises and the presence

of security in the past were enough to make a jury issue. Id. at

399. Likewise, we cannot say that there was no evidence from which

the jury could have found that the occurrence of these crimes made

the injury to the Whiteheads foreseeable.

Further, we note that most of these prior crimes occurred

while Kmart employed outside security, and the Whiteheads’ security

expert testified that it was impossible to know how many crimes

would have occurred in the absence of that security. In light of

the fact that several crimes occurred while there was security on

the lot, there was no lack of evidence from which the jury could

find that Kmart’s discontinuance of security for 82 days was a

breach of duty.

Kmart relies on Kelly v. Retzer & Retzer, Inc., 417 So.2d 556

(Miss. 1982). There, the relatives of a young man shot in a

McDonald’s parking lot sued the owners for not providing adequate

security. Id. at 557. The plaintiffs introduced evidence of 28

reported crimes in the parking lot in the previous three years,

including “three incidents of vandalism, two assaults, one

attempted auto theft, one auto theft, one attempted fraud, an armed

robbery in a restroom, one strong armed robbery of a child by a

fifteen year old boy, one simple assault, and one unknown

15
complaint”. Id. at 559. Despite this evidence, the Mississippi

Supreme Court upheld the peremptory instruction in favor of the

defendant, holding that it was not negligent and that the crime was

not foreseeable. Id. at 561, 562.

Kelly is distinguishable from this case. In Kelly, the person

shot was involved in an altercation with others in the parking lot

and was shot as he was heading toward his trunk, apparently to

retrieve a gun. Id. at 558-59. In the light of this, the

Mississippi Supreme Court found a “voluntary interference into an

already hostile situation [that] was an independent and intervening

cause which could not have been reasonably foreseen or prevented by

McDonald’s”. Id. at 562. There is no evidence that Susan and Amy

Whitehead acted in any manner to invite the harm inflicted upon

them.

Further, in Kelly, there was undisputed evidence that an

assistant manager was required to patrol the parking lot every half

hour, that loitering customers were advised to buy something or

leave if they remained in the lot for two to three minutes, and

that the assistant manager immediately called police when he

learned of the altercation. Id. at 562. Here, there was

conflicting evidence at trial regarding whether the loss prevention

personnel actually patrolled the parking lot twice an hour, and the

evidence indicated that no anti-loitering policy existed.

16
 This case is also distinguishable from Crain, where the

plaintiff sued the Moose Lodge for an assault in its parking lot.

The court first held that Crain’s injury was not foreseeable

because there had been only two reports of crime on the premises in

the past year (both involving property crimes) and only 11 crimes

against the person in the vicinity of the Moose Lodge in the past

five years. Crain, 641 So.2d at 1192. Further, the court held

that the plaintiff did not show proximate cause between the lack of

lighting in the Moose Lodge parking lot and his injuries. Id.

Here, however, the Whiteheads introduced evidence of several

prior crimes against the person occurring in the Kmart parking lot.

Further, the Whiteheads’ security and rape experts testified that

the presence of uniformed security guards probably would have

deterred the assailants. It is within the province of the jury to

decide how much weight to give this expert testimony, Newport Ltd.

v. Sears, Roebuck & Co., 6 F.3d 1058, 1069 (5th Cir. 1993), and we

cannot say there was an absence of evidence for the jurors to have

found that this crime was foreseeable or that the lack of security

in the lot was a proximate cause of the injuries to the Whiteheads.

In the light of the evidence introduced by the Whiteheads,

there was not an absolute absence of evidence to support the jury’s

verdict. Thus, concerning Kmart’s lack of evidence claim, the

district court did not abuse its discretion in denying Kmart’s new

trial motion.

17
 2.

In conjunction with the foregoing evidentiary challenge, Kmart

asserts that “[t]he jury may have overlooked the lack of evidence

of any ‘atmosphere of violence’ because of the jury charge”.

(Emphasis added.) In this regard, it points to the following

objected-to jury instruction, regarding Kmart’s ability to rely

upon the local police:

Therefore, you are instructed that the
defendant, Kmart Corporation, is not entitled
to rely upon and cannot rely upon law
enforcement agencies such as the Jackson
Police Department and/or Hinds County
Sheriff’s Department to discharge its
nondelegable duty to keep the Kmart store and
parking lot in a reasonably safe and secure
condition.

Kmart asserts that this is an incorrect statement of the law,

misled the jury, and prejudiced Kmart, resulting in reversible

error.

As stated in Davis v. Avondale Indus., Inc., 975 F.2d 169,

174-75 (5th Cir. 1992):

On appeal, the charge must be considered as a
whole, and so long as the jury is not misled,
prejudiced, or confused, and the charge is
comprehensive and fundamentally accurate, it
will be deemed adequate and without reversible
error. This Court will only reverse when the
charge as a whole leaves us with substantial
and ineradicable doubt whether the jury has
been properly guided in its deliberations.

Nevertheless, a defendant is “entitled to
the submission of an appropriate instruction
on its theory of defense,” and we have not
hesitated to reverse where, despite proper

18
 request and objection, the charge fails to in
any adequate way to present a theory of
defense, or recovery, properly raised by the
evidence.

(Internal citations omitted.) See also National Union Fire Ins.

Co. v. Cagle, 68 F.3d 905, 909 (5th Cir. 1995) (quoting Bender v.

Brumely, 1 F.3d 271, 276 (5th Cir. 1993)); Roberts v. Wal-Mart

Stores, Inc., 7 F.3d 1256, 1258 (5th Cir. 1993) (“The function of

the reviewing court with respect to instructions is to satisfy

itself that the instructions show no tendency to confuse or mislead

the jury with respect to the applicable principles of law”).

Kmart maintains that the instruction misinformed the jury,

claiming that the instruction told the jury that Kmart could not

rely on the police and had to provide its own security; and that,

because “[t]he jury was already misled by [Whiteheads’] counsel’s

referral to the so-called ‘gap’ in security services to conclude a

duty to provide security guards existed[,] this jury instruction

sealed Kmart’s fate on the critical legal issue”. In making this

claim, Kmart relies on Kelly, in which the court stated that it was

“of the opinion the responsibility of enforcing the law is on the

government chosen by the people of the area and does not

necessarily rest upon the business involved”. Kelly, 417 So.2d at

563.

But, after the challenged instruction, the district court

added the following:

19
 So you are instructed that a retailer is
not obligated to hire a security guard or to
take other precautions against a crime unless
it reasonably should expect that ordinary
police protection is inadequate. The duty of
a store owner, therefore, does not extend to
the protection of customers from the criminal
acts of third parties unless the risk of this
crime on the premises was sufficiently and
reasonably foreseeable to require special
protection through security measures.

In the light of the instruction as a whole, Kmart’s contention that

the instruction implied that Kmart was required to provide private

security is unavailing. The district court properly instructed the

jury that it was to find a duty to provide private security only if

the jury found first that the attack on Susan and Amy Whitehead was

reasonably foreseeable.

Further, the Mississippi Supreme Court addressed a similar

issue in McWilliams v. City of Pascagoula, 657 So.2d 1110 (Miss.

1995), in which the plaintiffs challenged a jury instruction that

“the responsibility of enforcing the law and protecting persons

from criminal acts rests with the police department”. Id. at 1112.

The court held that this instruction, coupled with the denial of an

instruction on premises liability, was erroneous because it “left

the jury with the impression that the [premises owner] had no

obligation to provide for [the plaintiff’s] safety”. Id. This

further contradicts Kmart’s contention that the instruction

misstated Mississippi law.

20
 Accordingly, the instruction, taken as a whole, did not

mislead the jury with regard to Kmart’s ability to rely on the

police to keep its parking lot safe for its customers. Taken as a

whole, the instruction correctly states the law in Mississippi that

a premises owner has a duty to keep its invitees safe from the

reasonably foreseeable criminal acts of third parties.

3.

Finally, similar to its complaint about the jury instruction,

Kmart asserts that, by the introduction of inadmissible hearsay

evidence, the jury was misled regarding Kmart’s duty. The

Whiteheads’ security expert testified that a supervisor with the

company that had provided security for Kmart had warned Kmart,

prior to the crimes in this case, not to discontinue the security

because of the crime in the parking lot. Kmart did not object at

trial; therefore, as Kmart acknowledges, we are limited to

reviewing only for plain error. FED. R. EVID. 103(d); Barber v.

Nabors Drilling U.S.A., Inc., 130 F.3d 702, 710 (1997), rehearing

denied, 137 F.3d 1353 (5th Cir. 1998).

Kmart maintains that the repeated references to the alleged

warning by the Whiteheads’ security expert, and by their counsel

during closing argument, substantially affected its right to a fair

trial. Although recognizing that experts may rely upon hearsay

that is trustworthy, FED. R. EVID. 703; Christopherson v. Allied-

Signal Corp., 939 F.2d 1106, 1114 (5th Cir. 1991)(en banc),

21
overruled on other grounds, Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 587 n.5 (1993), Kmart asserts that this hearsay

was not reliable because it resulted from an interview conducted by

the Whiteheads’ counsel.

“[U]nobjected-to hearsay may be considered by the trier of

fact for such probative value as it may have.” Peaches

Entertainment v. Entertainment Repertoire, 62 F.3d 690, 694 (5th

Cir. 1995) (quoting Flores v. Estelle, 513 F.2d 764, 766 (5th Cir.

1975)). In reviewing such unobjected to evidence only for plain

error, we have discretion to correct an error if, “when examined in

the context of the entire case, [it] is so obvious and substantial

that failure to notice and correct it would affect the fairness,

integrity, or public reputation or judicial proceedings”. Peaches

Entertainment, 62 F.3d at 694 (citation omitted).

Even assuming error, it falls far short of satisfying the

standard for plain error reversal. Further, we are not unmindful

of the apparently conscious choice that Kmart’s counsel made at

trial, once the testimony at issue was given, of choosing to attack

its credibility, rather than object to its introduction and request

a curative instruction. As noted, this choice has limited us to

plain error review. Cf. United States v. Handly, 591 F.2d 1125,

1128 (5th Cir. 1979) (“Where, however, the record indicates that

defense counsel’s failure to object to an improper comment was part

22
of his defense strategy, then the defendant will not be heard to

claim he was prejudiced by the prosecutor’s indiscretions”).

In sum, in regard to Kmart’s asserted bases for a new trial on

liability, there was not an absence of evidence to prove that Kmart

breached its duty to the Whiteheads; the challenged jury

instruction was not inaccurate; and the admission of the challenged

testimony did not constitute plain error. Accordingly, as to

liability, the district court did not abuse its discretion in

denying Kmart’s new trial motion.

B.

Maintaining that the damages of $3.4 million are excessive,

Kmart advances two independent bases: that they shock the judicial

conscience; and, that they are the result of passion and prejudice,

caused by improper closing argument by the Whiteheads’ counsel.

Because we conclude that the jury was so influenced by passion and

prejudice, we do not reach whether the awards are otherwise

excessive.

1.

The denial of a new trial on the issue of damages is reviewed

for abuse of discretion. E.g., Colburn v. Bunge Towing, Inc., 883

F.2d 372, 375 (5th Cir. 1989); Caldarera v. Eastern Airlines, Inc.,

705 F.2d 778, 781 (5th Cir. 1983). A new trial, rather than a

remittitur, is the appropriate remedy when a jury award results

from passion and prejudice. E.g., Caldarera, 705 F.2d at 782. In

23
that regard, Kmart asserts, inter alia, that, during closing

argument, one of the Whiteheads’ counsel emphasized improperly

Kmart’s status as an out-of-state corporation; invoked “Golden

Rule” arguments; and made other “blatantly prejudicial” comments.

“The propriety of an argument is a matter of federal trial

procedure under Byrd v. Blue Ridge Rural Electric Cooperative,

Inc., 356 U.S. 525 (1958), and, therefore, in a diversity case,

subject to federal rather than state law.” Westbrook v. General

Tire and Rubber Co., 754 F.2d 1233, 1239-40 (5th Cir. 1985). No

doubt, final arguments must be forceful. And, generally, counsel

are allowed a “reasonable latitude” in making them. Edwards v.

Sears, Roebuck and Co., 512 F.2d 276, 283 (5th Cir. 1975). “When

a closing argument is challenged for impropriety or error, the

entire argument should be reviewed within the context of the

court’s rulings on objection, the jury charge, and any corrective

measures applied by the trial court.” Westbrook, 754 F.2d at 1238.

Our task is complicated by Kmart’s failure to object to almost

all of the statements now challenged. Although we may review such

challenges even where no contemporaneous objection was made, Liner

v. J.B. Talley and Co., Inc., 618 F.2d, 327, 329 (5th Cir. 1980),

we are, of course, extremely reluctant “to address for the first

time on review errors which the trial court was not given the

opportunity to consider and correct”. Edwards, 512 F.2d at 286,

288; Liner, 618 F.2d at 330 (expressing “extreme reluctance to

24
grant relief in the absence of an objection”). This extreme

reluctance is grounded in several obvious reasons. Among other

things, it is in keeping with the great deference we accord the

decision by the trial judge, who was present and heard the

evidence, to deny a new trial motion. Gautreaux v. Scrulock

Marine, Inc., 84 F.3d 776, 783 (1996), rev’d on other grounds, 107

F.3d 331 (5th Cir. 1997)(en banc); Guaranty Service Corp. v.

American Employers’ Ins. Co., 893 F.2d 725, 729 (5th Cir. 1990)

(decision by trial judge to grant or deny new trial not lightly

reversed).

At least a few pertinent objections were made during the

Whiteheads’ closing argument, as discussed infra. And, for the

unobjected to, but now challenged comments, consistent with plain

error review, we must reverse when necessary to preserve

“substantial justice”. FED. R. CIV. P. 61; Hall v. Freese, 735 F.2d

956, 963 (5th Cir. 1984); Westbrook, 754 F.2d at 1241; Edwards, 512

F.2d at 286. In sum, in order to serve “the interests of justice”,

we must abandon our deference for the district court’s decision.

Westbrook, 754 F.2d at 1241.

Obviously, awards influenced by passion and prejudice are the

antithesis of a fair trial. This case was fertile ground for such

bias. By its very nature, it was extremely emotional. Indeed,

part of the damages involved “emotional distress”. But, this did

not permit appeals to emotion — quite the contrary. In cases of

25
this type, counsel must be unusually vigilant and take the greatest

care to avoid and prevent such appeals, in order to keep the

verdict from being infected by passion and prejudice.

Unfortunately, the Whiteheads’ counsel did just the opposite. Our

close and repeated review of the Whiteheads’ closing argument

convinces us that it caused the verdict to be so influenced.

First, the Whiteheads’ counsel made statements that appealed

to local bias. On numerous occasions, he reminded the jury that

Kmart is a national, not local, corporation, with its principal

place of business in Troy, Michigan. And, he contrasted that with

his status as a Mississippi resident and, implicitly, his clients’

similar status: “as a little old lawyer down here in Mississippi,

to take on a national corporation, I knew I had to bring in the

best experienced person in security that I knew”; and “[n]ow when

I, as a lawyer here in Mississippi, bring a legal action against a

national corporation -- having done this a few years -- they are

tough cases”. (Emphasis added.)

Another example of the emphasis on Kmart being an out-of-state

corporation follows:

The problem is — way up there in Troy,
Michigan — way up there in Troy, Michigan,
where they decide to write a two or three inch
thick loss prevention manual, they don’t think
about the customers’ safety and security in
the parking lot. Because they are more
concerned about profits and not people.

26
(Emphasis added.) That this blatant appeal to sectionalism would

be made in a federal court in this day and time is nothing short of

amazing.

This repeated emphasis on Kmart being a national, not local,

corporation was exacerbated by counsel’s shameless refusal to abide

by the district court’s sustaining Kmart’s objections to counsel’s

comments concerning Kmart not presenting proof about its security

measures through non-local witnesses. As noted, Kmart presented

such proof through the loss prevention manager at the Kmart store

in question. He also served as Kmart’s corporate representative at

trial. Consistent with emphasizing that Kmart was not a local

corporation, the Whiteheads’ counsel stated:

It bothers me and I hope it bothers you, that
if what I presented to you in this case about
the corporate negligence in security was not
true, why didn’t we ... see someone from the
national company come into this courtroom and
try to explain their conduct.

Immediately after the court sustained Kmart’s objection and

gave a curative instruction (that a defendant has no obligation to

produce any witnesses), the Whiteheads’ counsel returned to this

tactic, in total defiance of the district court’s ruling, until

counsel was interrupted by the same objection. Before being

interrupted, he stated: “We heard no one from the national

corporation — the national corporation come here and explain why—”.

The district court reminded the Whiteheads’ counsel that it had

sustained the objection and gave another curative instruction.

27
 In his rebuttal closing argument, and notwithstanding the

court’s having earlier sustained Kmart’s objections, the

Whiteheads’ counsel returned to this improper tactic:

[Kmart’s] whole ploy in this case was to come
in and attack the plaintiffs’ case, attack
their witnesses, be critical of them and have
a nice man from Jackson [Kmart’s local loss
prevention manager/corporate representative]
and a nice, good, mild-mannered lawyer trying
to make you think: Well, they are just real
nice folks, and they just didn’t do anything
wrong.

....

Shame on Kmart. Shame on the corporation
for not sending representatives here to
testify about why they don’t have a policy.
Shame on them for having a local man sit here
and take the fall....

(Emphasis added.) Once again, the district court sustained the

objection by Kmart.

In short, counsel twice violated the court’s ruling on Kmart’s

objection. Counsel’s continued improper references to Kmart using

a local representative/witness served to do nothing but appeal to

prejudice and passion.3 It goes without saying that such conduct

3
Although we are reviewing a cold record, the heated,
emotional atmosphere at trial is reflected by the Whiteheads’
counsel’s response, during his rebuttal closing argument, to
Kmart’s objection, in which it noted to the court, consistent with
the court’s earlier ruling on the similar objection, that, had they
felt it important, the Whiteheads could have introduced testimony
by a non-local Kmart representative. Instead of responding to the
court, as the court had had to instruct counsel earlier in the
trial, the Whiteheads’ counsel responded to Kmart’s counsel
concerning his statement that the Whiteheads could have offered
non-local Kmart testimony; the Whiteheads’ counsel responded, “And

28
and comments have no place in a federal court. Worse still, they

prevent a fair trial.

“Arguments which invite a jury to act on behalf of a litigant

become improper ‘conscience of the community’ arguments when the

parties’ relative popular appeal, identities, or geographical

locations are invoked to prejudice the viewpoint of the jurors”.

Guaranty Service Corp., 893 F.2d at 729. Again, such arguments

distract the jury from its “sworn duty to reach a fair, honest and

just verdict according to the facts and evidence presented at

trial”. Westbrook, 754 F.2d at 1238. When such arguments are

used, as here, against out-of-state parties, they “carry the

potential of substantial injustice”. Id. at 1239.

Counsel made other highly prejudicial statements during

closing argument. For example, he stated that Susan Whitehead’s

last thought before death would be of the rapists, and that Amy

Whitehead needed to be compensated to avoid thoughts, on her

wedding night, of her mother’s rape. Neither person so testified.

so could you”.

In sustaining the objection, the court stated it would take up
another matter later. While the jury was deliberating, the
district court sanctioned the Whiteheads’ counsel $1,000 for
violating its earlier warning to respond to the court, not to
counsel. (That counsel would even need to be instructed to respond
to the court, not to opposing counsel, speaks volumes.) One of the
reasons presented to the district court by the Whiteheads’ counsel
against imposing the sanction was that “[t]his is a very emotional
trial”. (Kmart counsel also urged that the sanction not be
imposed.) As noted, it is in such emotional trials that counsel
must keep emotion within its proper bounds.

29
Nor is this fair comment on the evidence. As another example,

counsel, again going outside the evidence and again not engaging in

fair comment on it, told the jury that, other than to testify, “the

Whiteheads have not been in the courtroom. And you know why. It’s

just too painful for them to listen–listen to the horrors and the

events of what happened in the liability testimony”.

Such statements could serve no purpose other than to inflame

the passions of the jury to return large awards. They are similar

to those found to be prejudicial in Edwards, where, during closing

argument in a wrongful death case, counsel, inter alia, invoked

images of the decedent’s children crying at the grave and waiting

for their father on the porch steps. Edwards, 512 F.2d at 285-86.

Finally, counsel engaged in an improper “Golden Rule”

argument. “This court has forbidden plaintiff’s counsel to

explicitly request a jury to place themselves in the plaintiff’s

position and do unto him as they would have him do unto them.”

Stokes v. Delcambre, 710 F.2d 1120, 1128 (5th Cir. 1983). Such

arguments encourage the jury to “decide the case on the basis of

personal interest and bias rather than on the evidence”. Loose v.

Offshore Navigation, Inc., 670 F.2d 493, 496 (5th Cir. 1982)

(quoting Ivy v. Security Barge Lines, Inc., 585 F.2d 732, 741 (5th

Cir. 1978), rev’d on other grounds, 606 F.2d 524 (5th Cir. 1979)(en

banc)).

30
 The Whiteheads’ counsel stated:

The incident took approximately two hours from
when they were abducted to when they were
released. And I calculated it, and that’s
7,200 seconds. And I want for you to just for
a couple of seconds to see–when I say start,
that’s ten seconds. Ten seconds.

And can you imagine how it would feel to
have a knife in your side or a knife on your
leg or a pistol at your neck for ten seconds?

(Emphasis added.) Even assuming he was not explicitly invoking the

Golden Rule, counsel was clearly inviting the members of the jury

to put themselves in the place of the plaintiffs when deciding

damages.

Of course, we need not find that each statement, taken

individually, was so improper as to warrant a new trial. Rather,

taken as a whole, these comments prejudiced the jury’s findings

with respect to damages. Even though most of the challenged

statements were not objected to, substantial injustice would

result, contrary to Rule 61, were we to affirm the awards.

That the awards were improperly influenced by passion and

prejudice is indicated by their size. Without deciding that the

awards are excessive, we note that, at the very least, they are at

the high end of the spectrum for such damages. This large verdict,

when accompanied by counsel’s improper arguments, further indicates

that the jury was influenced by the prejudicial statements. See

Westbrook, 754 F.2d at 1241 (“[A]ppeals to local bias against an

outsider are prejudicial, and a large verdict accompanied by such

31
appeals leads us to conclude they had an influential impact on the

jury’s deliberations”).4

2.

As noted, a new trial, rather than remittitur, is the

appropriate remedy when a jury award results from passion and

prejudice. Caldarera, 705 F.2d at 782. Here, the new trial need

be only on damages. This is appropriate where the “factual

questions relating to damages are sufficiently distinct and

independent of those questions pertaining to liability”.

Westbrook, 754 F.2d at 1242. That is the situation here.

Additionally, Kmart does not claim that the entire verdict was

influenced by passion and prejudice, only the damages. And, as

previously noted, the damage awards were high; this also indicates

the jury’s strong belief that Kmart was liable. See id. (“[T]he

extremely high amount of the award ... suggests the jury had little

4
Again, we are most cognizant of the fact that the trial
judge is in a far, far better position than we to gauge the effect
of closing arguments; he is present and hears the statements, while
we are limited to the cold record. See Caldarera, 705 F.2d at 782
(“Our review is not only hindsight, but is based on a written
record with no ability to assess the impact of the statement on the
jury or to sense the atmosphere of the courtroom”). However, our
insight into what took place during closing argument is sharpened
and illumined by the actions by the Whitehead’s counsel on
appeal–specifically, extremely inappropriate appeals to emotion at
oral argument, and, even while acknowledging the exclusion of
certain evidence offered by the Whiteheads (concerning Kmart’s duty
to provide security), nevertheless presenting that excluded
evidence in his brief.

32
doubt that [the defendant] should be held responsible for [causing

the plaintiff’s] injuries”).

C.

Finally, even though we are remanding for a new trial on

damages, it is appropriate now to address Kmart’s contentions

regarding allocation of fault under Mississippi’s statute limiting

joint and several liability, MISS. CODE ANN. § 85-5-7. Under

subsection (3), with certain exceptions, a joint tortfeasor’s

liability is limited to “the amount of damages allocated to him in

direct proportion to his percentage of fault”. § 85-5-7 (3).

Of course, we review questions of statutory interpretation de

novo. E.g., Spacek v. Maritime Ass'n, 134 F.3d 283, 288 (5th Cir.

1998).

The district court denied Kmart’s pretrial request for

specific mention of the assailants in the verdict form under

subsection (7) of § 85-5-7 (requiring that “the trier of fact

shall determine the percentage of fault for each party alleged to

be at fault”). The order did permit Kmart to assert an “empty

chair” defense at trial under the “percentage of fault” language of

subsection (3). The jury instructions, however, contained no

“percentage of fault” language. (Earlier, Kmart had moved to join

the assailants as co-defendants; but, it withdrew the motion.)

Section 85-5-7 became effective 1 July 1989, during a wave of

legislative modification of joint-and-several liability in favor of

33
allocation schemes among tortfeasors. 1989 Miss. Laws Ch. 311;

e.g., Kathleen M. O'Connor and Gregory P. Sreenan, Apportionment of

Damages: Evolution of a Fault-Based System of Liability for

Negligence, 61 J. Air Law & Comm. 365, 374-81 (1996). This

legislative activity followed the shift from contributory to

comparative negligence tort regimes. E.g., id. at 368-73.

Mississippi was first in this trend, adopting a pure comparative

negligence statute in 1910. MISS. CODE ANN. § 11-7-15; KEETON ET AL.,

PROSSER AND KEETON ON TORTS 471 (5th ed. 1984).

Both modifications changed all-or-nothing regimes to ones

dividing liability based on respective fault: comparative

negligence so dividing liability between the plaintiff and

defendant, allocation so dividing liability among defendants. Over

35 States now use comparative negligence and allocate liability

among defendants rather than imposing unqualified joint-and-several

liability. Carol A. Mutter, Moving to Comparative Negligence in an

Era of Tort Reform: Decisions for Tennessee, 57 Tenn. L. Rev. 199,

203 (1990).

Legislative history and subsequent judicial interpretation

shed little light on the contours of allocation in Mississippi.

Only seven majority opinions in either federal or Mississippi state

court mention § 85-5-7 at all; none address our issues squarely.

Two federal district courts have faced issues tangential to our

inquiry. See Chism v. Burlington Northern Railroad Co., 1996 WL

34
408907, *3 (N.D. Miss. 1996) (unpublished) (applying § 85-5-7(3) to

support the joinder of other defendants, resulting in the loss of

diversity and remand to state court); White v. Esmark Apparel,

Inc., 788 F. Supp. 907, 908-09 (N.D. Miss. 1992) (declining to

allow “phantom party” pursuant to allocation under § 85-5-7(3)).

Remaining opinions address other subsections. See Mississippi

Transp. Comm’n v. Jenkins, 699 So.2d 597, 600 (Miss. 1997)

(applying § 85-5-7(5) and reaffirming that the section does not

affect sovereign immunity); Midsouth Rail Corp. v. Citizens Bank &

Trust Co., Inc., 697 So.2d 451, 452 (Miss. 1997) (contribution

rules of § 85-5-7(4) do not apply to damages incurred before its

effective date); Adkinson v. International Harvester Co., 975 F.2d

208, 218 n.7 (5th Cir. 1992) (same); Stringfellow v. Reed, 739 F.

Supp. 324, 326 (S.D. Miss. 1990) (disallowing the use of § 85-5-7

to obtain a contribution from an employer immune under workman’s

compensation law); Garriga v. Nationwide Mut. Ins. Co., 813 F.

Supp. 457, 463 (S.D. Miss. 1993) (referring briefly to § 85-5-7's

“joint tortfeasor” locution in remaining areas of joint and several

liability).

Four concurrences and dissents also refer to the section. See

Robles By and Through Robles v. Gollott and Sons Transfer and

Storage, Inc., 697 So.2d 383, 386 (Miss. 1997) (Prather, P.J.,

concurring) (noting question whether § 85-5-7 compels contribution

absent a joint judgment); Mississippi Power & Light Co. v. Lumpkin,

35
1998 WL 80164, *28 (Miss. 1998) (Smith, J., dissenting in part)

(arguing for an application of § 85-5-7 to allow assessment of a

plaintiff’s negligence); King v. City of Jackson, 667 So.2d 1315,

1317-18 (Miss. 1995) (Banks, J., dissenting) (mentioning § 85-5-7

in the course of explaining when plaintiff driver’s negligence

could be considered); Sweeney v. Preston, 642 So.2d 332, 343 (Miss.

1994) (Hawkins, C.J., dissenting) (noting that use of § 85-5-7

might cause a conflict of interest).

The section provides:

(1) As used in this section “fault”
means an act or omission of a person which is
a proximate cause of injury or death to
another person or persons, damages to
property, tangible or intangible, or economic
injury, including but not limited to
negligence, malpractice, strict liability,
absolute liability or failure to warn.
“Fault” shall not include any tort which
results from an act or omission committed with
a specific wrongful intent.

(2) Except as may be otherwise provided
in subsection (6) of this section, in any
civil action based on fault, the liability for
damages caused by two (2) or more persons
shall be joint and several only to the extent
necessary for the person suffering injury,
death or loss to recover fifty percent (50%)
of his recoverable damages.

(3) Except as otherwise provided in
subsections (2) and (6) of this section, in
any civil action based on fault, the liability
for damages caused by two (2) or more persons
shall be several only, and not joint and
several and a joint tort-feasor shall be
liable only for the amount of damages
allocated to him in direct proportion to his
percentage of fault. In assessing percentages

36
 of fault an employer and the employer’s
employee or a principal and the principal’s
agent shall be considered as one (1) defendant
when the liability of such employer or
principal has been caused by the wrongful or
negligent act or omission of the employee or
agent.

(4) Any defendant held jointly liable
under this section shall have a right of
contribution against fellow joint tort-
feasors. A defendant shall be held
responsible for contribution to other joint
tort-feasors only for the percentage of fault
assessed to such defendant.

(5) Nothing in this section shall
eliminate or diminish any defenses or
immunities which currently exist, except as
expressly noted herein.

(6) Joint and several liability shall be
imposed on all who consciously and
deliberately pursue a common plan or design to
commit a tortious act, or actively take part
in it. Any person held jointly and severally
liable under this section shall have a right
of contribution from his fellow defendants
acting in concert.

(7) In actions involving joint tort-
feasors, the trier of fact shall determine the
percentage of fault for each party alleged to
be at fault.

(8) Nothing in this section shall be
construed to create a cause of action.
Nothing in this section shall be construed, in
any way, to alter the immunity of any person.

MISS. CODE ANN. § 85-5-7 (emphasis added).

The general rule is stated in subsection (3): “[A] joint tort-

feasor shall be liable only for the amount of damages allocated to

him in direct proportion to his percentage of fault.” § 85-5-7(3).

37
Exceptions for common schemes and for recovery of at least 50

percent of the damages are stated in subsections (6) and (2).

At issue is the application of the allocation in subsection

(3) to Seaton and Jones, who engaged in the criminal conduct

against Susan and Amy Whitehead. Because Seaton and Jones are

intentional tortfeasors and non-parties in this action, we are

faced with two separate issues of application of § 85-5-7(3). Each

issue concerns the total of which the defendant’s “percentage of

fault” is a percentage: does it include intentional torts, and does

it include the fault of non-parties? No authority need be cited

for the rule that the starting point for answering these questions

is the plain language of the statute.

We need not answer the second question, because the definition

of “fault” in subsection (1) provides a clear and immediate answer

to the first question: “fault” does not include intentional torts.

The words of the allocation requirement in subsection (3), “in

direct proportion to his percentage of fault” (emphasis added),

therefore preclude allocation of damages between a negligent and an

intentional tortfeasor. Kmart’s percentage of “fault” here is 100

percent, because intentional tortfeasors Seaton and Jones have no

“fault” as defined by subsection (1).

Our reading, mandated by the plain wording of the statute, is

confirmed by decisions from at least 15 other States that have

addressed apportionment of fault between a negligent defendant and

38
an intentional tortfeasor. Arizona, California, Colorado,

Connecticut, Kentucky, New Jersey, New Mexico, New York, and Utah

allow such comparison. See Hutcherson v. City of Phoenix, 961 P.2d

449, 451-53 (Ariz. 1998); Weidenfeller v. Star & Garter, 2 Cal.

Rptr.2d 14, 16 (Ct. App. 1991); Pamela B. v. Hayden, 31 Cal.

Rptr.2d 147, 159-160 (Ct. App. 1994); Martin v. United States, 984

F.2d 1033, 1039 (9th Cir. 1993); Harvey v. Farmers Insurance

Exchange, 1998 WL 679864, *3-*4 (Colo. Ct. App. 1998); Bhinder v.

Sun Company, Inc., 717 A.2d 202, 208-212 (Conn. 1998); Roman

Catholic Diocese of Covington v. Secter, 966 S.W.2d 286, 291 (Ky.

Ct. App. 1998); Blazovic v. Andrich, 590 A.2d 222, 230 (N.J. 1991);

Steele v. Kerrigan, 689 A.2d 685, 690-691 (N.J. 1997); Reichert v.

Atler, 875 P.2d 379, 381 (N.M. 1992); Barth v. Coleman, 878 P.2d

319, 321-22 (N.M. 1994); Siler v. 146 Montague Assocs., 652

N.Y.S.2d 315, 319-20 (App. Div. 1997) (but see Morales v. County of

Nassau, 667 N.Y.S.2d 239, 240 (Sup. Ct. 1997), distinguishing Siler

based on “public policy considerations”); Field v. Boyer Company,

L.C., 952 P.2d 1078, 1080 (Utah 1998). Louisiana has a case-by-

case rule. Veazey v. Elmwood Plantation Assocs., 650 So.2d 712,

717-19 (La. 1995). North Dakota decided against comparison under

an old law, but new legislation may change the result. McLean v.

Kirby Co., 490 N.W.2d 229, 244 (N.D. 1992). Florida, Kansas,

Tennessee, and Washington have held that the responsibility of

39
intentional and negligent tortfeasors may not be compared. Merrill

Crossings Associates v. McDonald, 705 So.2d 560, 562-63 (Fla.

1997); Kansas State Bank & Trust Co. v. Specialized Transportation

Services, Inc., 819 P.2d 587, 605-06 (Kan. 1991); Gould v. Taco

Bell, 722 P.2d 511, 516-17 (Kan. 1986); M. Bruenger & Co., Inc., v.

Dodge City Truck Stop, Inc., 675 P.2d 864, 869 (Kan. 1984); Turner

v. Jordan, 957 S.W.2d 815, 821-23 (Tenn. 1997); Welch v. Southland

Corp., 952 P.2d 162, 165 (Wash. 1998).

None of the statutes construed to allow comparison between

negligent and intentional tortfeasors, however, have had such an

explicit definition of “fault” as does § 85-5-7(1). See ARIZ. REV.

STAT. § 12-2506(A), 12-2506(F)(2)(1997) (allocating liability based

on “defendant’s percentage of fault”; defining “fault” as “an

actionable breach of legal duty”); CAL. CIV. CODE § 1431.2 (1997)

(referring to “defendant’s percentage of fault”, without defining

“fault”); COLO. REV. STAT. § 13-21-111.5(1) (1998) (limiting liability

to defendant’s “degree or percentage of the negligence or fault”,

without defining “fault”); N.J. STAT. ANN. § 2A:15-5.3(c) (West 1997)

(referring to defendant’s “negligence or fault”, without defining

“fault”); N.M. STAT. ANN. § 41-3A-1 (Michie 1998) (referring to

“ratio of such defendant’s fault to the total fault attributed to

all persons”, without defining “fault”); N.Y. C.P.L.R. 1601

(McKinney 1997) (allocating liability “in accordance with the

relative culpability” of persons causing damage); UTAH CODE ANN. §§

40
78-27-39(1), 78-27-37(2) (1998) (limiting liability to defendants’

“proportion of fault”; defining “fault” as “any actionable breach

of legal duty, act or omission”). (Connecticut and Kentucky base

apportionment to intentional tortfeasors on common-law principles,

rather than on statutes. See Bhinder, 717 A.2d at 208; Secter, 966

S.W.2d at 291.)

Needless to say, statutory definitions of “fault” may resolve

whether apportionment to intentional tortfeasors is appropriate.

See Hutcherson, 961 P.2d at 452 (“‘The legislature defined fault

broadly to include all types of fault committed by all persons’”,

quoting Thomas v. First Interstate Bank, 930 P.2d 1002, 1003 (Ariz.

App. 1996)); Veazey, 650 So.2d at 717 (finding that courts

apportioning liability to intentional tortfeasors “explicitly or

implicitly, have construed the term ‘fault’ contained in various

provisions of the comparative fault law as encompassing both

unintentional and intentional conduct”); McLean, 490 N.W.2d at 244

(noting that new statute directs comparison of “fault”, rather than

comparison of “negligence”, possibly changing scope of

apportionment); Harvey, 1998 WL 679864, *3 (“we conclude that the

word ‘fault’ as it appears in the statute was intended to include

a broad range of blameworthy conduct, including intentional

torts”); Field, 952 P.2d at 1080 (“we find that [the statutory]

definition of ‘fault’ encompasses both negligent and intentional

41
conduct”); Welch, 952 P.2d at 634 (“the statutory definition of

fault does not include intentional acts or omissions”).

But, again, the explicit statement in § 85-5-7(1) that “fault”

does not include intentional torts correspondingly resolves the

issue presented by the Mississippi statute. Therefore, the

exclusion of the assailants from the verdict form and omission of

their share of fault was proper.

III.

Accordingly, that portion of the judgment as to liability is

AFFIRMED; that portion as to damages is REVERSED; and this case is

REMANDED for a new trial only on the issue of damages.

AFFIRMED in PART; REVERSED in PART; and REMANDED

42