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Accu-Fab & Construction3/14/2000
OR-SUBCONTRACTOR CONTRACT, WHICH INCLUDES AN INDEMNITY PROVISION, IS ADDITIONAL CONSIDERATION REQUIRED AT THE TIME OF EXECUTION OF THE STANDARD CONTRACT?
WHERE A SUBCONTRACTOR KNOWS OR SHOULD KNOW OF THE DANGER, DOES A GENERAL CONTRACTOR HAVE A DUTY TO WARN A SUBCONTRACTOR WORKING AROUND A SIX-FOOT WIDE HOLE IN THE ROOF ABOUT THE DANGER OF FALLING INTO THE HOLE?
. In Accu-fab's motion for rehearing, it has assigned two errors which essentially were not covered in the errors raised by Anderson in its motion for rehearing; however, Accu-fab did not address the Mississippi Workers' Compensation Act immunity issue and opposes those arguments asserted by Anderson on the indemnity issue. We will discuss whether the apportionment of five percent fault relative to Ladner's comparative negligence regarding his wrongful death was against the overwhelming weight of the evidence next, and will address the issue of the exclusion of Ladner's prior conviction when we address the issue of the exclusion of Ladner's drug test and other evidence of drugs.
II. WHETHER THE APPORTIONMENT OF FIVE PERCENT FAULT RELATIVE TO LADNER'S COMPARATIVE NEGLIGENCE REGARDING HIS WRONGFUL DEATH WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
. Accu-Fab argues that the jury apportioning only five percent of the liability to Ladner for his resulting injury and death was against the weight of the evidence and should have been modified by the trial court. Although after the trial concluded, Accu-fab filed a motion for JNOV, or in the alternative, motion for a new trial, or in the alternative motion for remittitur, in Accu-fab's motion for rehearing it only argues the weight of the evidence. Therefore, this Court will only address the weight of the evidence presented at the trial as it pertains to Ladner's comparative negligence.
. In Herrington v. Spell, 692 So. 2d 93, 103-04 (Miss. 1997), the Mississippi Supreme Court stated, when an appellate court adjudicates whether a jury verdict is against the overwhelming weight of the evidence, the court must accept as true all the evidence which supports the verdict. An appellate court will only reverse the decision of the trial court when certain that the trial court has abused its discretion in failing to grant a new trial. Id. On appeal, this Court will disturb a jury verdict only when the verdict rendered by the jury is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id.
. Testimony revealed that Ladner was on the roof because he had been assigned to fly tools down. It was further revealed that Ladner had not been informed a hole existed prior to his fall. Additionally, no evidence was given which proved that Ladner had seen the hole created by Accu-fab prior to his fall. Furthermore, it was disclosed that Ladner was within a perimeter safety line which was a confined area on the roof; therefore, he was not required to wear a safety belt. After the accident occurred, employees with both Anderson and Accu-fab approached and viewed the hole which Ladner fell through without wearing safety belts. While some witnesses believed a safety belt might have made a difference, the general consensus derived from the differing testimony pertaining to Ladner's possible attribution to his death revealed that even if Ladner had worn a safety belt while working near the hole, due to the work Ladner was performing he would have been at risk at destroying his safety belt, he was not provided an appropriate place to attach the belt within the safety barricade of the clock tower, and would have still had to unhook the belt to continue performing further tasks. Due to the
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