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Mississippi Department of Public Safety v. Durn12/31/2003
orioso v. Young Mens Christian Ass'n of Jackson , 556 So. 2d 293, 295 (Miss. 1989). A party is entitled to a comparative negligence instruction only if credible evidence supports the instruction. Haggerty v. Foster , 838 So. 2d 948, 955 (Miss. 2002).
. The Department affirmatively pled comparative negligence as a defense in its answer and placed evidence of Durn's negligence before the circuit court. The circuit court heard testimony that Durn began to turn fifty feet before he reached the lot entrance, and that Lantern had already overtaken the northbound lane attempting to pass when Durn began to make his left turn.
. We find the circuit court did not abuse its discretion as to the amount of damages. Durn's emotional well-being and ability to do different types of physical labor was well documented. Durn also suffered a 10% impairment that would limit his ability to perform the jobs he performed outside of his regular employment.
. However, we find the circuit court failed to determine if comparative fault should be assigned to Durn, and, whether the award of damages should be reduced accordingly. We therefore reverse the judgment and remand to the circuit court.
CONCLUSION
. We affirm the circuit court's findings that Lantern acted in reckless disregard of Durn's safety and well-being and that Durn was not engaged in criminal activity at the time of the accident. We reverse the judgment and remand this case for the circuit court to determine Durn's comparative fault, to consider comparative fault in awarding damages, and to make a new award.
. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
PITTMAN, C.J., SMITH, P.J., COBB AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. EASLEY AND CARLSON, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
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