IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-CA-01413-SCT

CONSOLIDATED WITH

NO. 1999-IA-01527-SCT

CITY OF JACKSON, MISSISSIPPI AND

UNIVERSITY OF MISSISSIPPI MEDICAL

CENTER

v.

THE ESTATE OF OTHA STEWART, DECEASED,

BY AND THROUGH ITS ADMINISTRATOR,

EMMA WOMACK

DATE OF JUDGMENT: 04/01/2003

TRIAL JUDGE: HON. WINSTON L. KIDD

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: SHARON DIANE GIPSON

PIETER JOHN TEEUWISSEN

LANNY R. PACE

CORRIE SCHULER

ATTORNEYS FOR APPELLEE: JAMES A. BOBO

MARK C. BAKER, SR.

BERNARD C. JONES, JR.

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: AFFIRMED IN PART; REVERSED AND

RENDERED IN PART; AND REVERSED

AND REMANDED IN PART - 05/12/2005

MOTION FOR REHEARING FILED: 05/26/2005; DENIED AND OPINION

MODIFIED AT ¶ ¶ 38, 39, 40, 43, 48, 49, 51, 55

59, 61, 62 & 63 - 08/04/2005

MANDATE ISSUED:2

BEFORE SMITH, C.J., CARLSON AND DICKINSON, JJ.

DICKINSON, JUSTICE, FOR THE COURT:

¶1. This is a personal injury case in which an elderly lady fell after exiting a van operated

by the City of Jackson (the “City”), and before entering a day care center operated by the

University of Mississippi Medical Center (the “Hospital”). The case was tried to the bench,

and the trial court found both the City and the Hospital liable, and both have appealed.

FACTUAL BACKGROUND

¶2. Mrs. Otha Stewart suffered a stroke in 1978 which resulted in paralysis to the right side

of her body. In 1993, she began attending an adult day care center in the city. To get to and

from the day care center, she used a van service operated by the City of Jackson.

The Hospital contract

¶3. A few years later, in response to a proposal submitted by the University of Mississippi

Medical Center (the “Hospital”), the Central Mississippi Planning and Development District\

Area Agency on Aging (“CMPDD”) hired the Hospital to provide certain services within “the

district,” which is identified in the contract as “the City of Jackson.” The operation of the day

care center was included in the services to be provided under the contract.

¶4. The contract, which began October 1, 199 6, and ended September 30, 1997, had a

service objective of 7,500 meals and 15,000 snacks. The contract generally obligated the

Hosp ital: “To provide care, supervision and services to individuals who are capable of only

limited self-care; meet health maintenance and reh abilitation need and promote maximum

level of indepe ndent functioning.” More specifically, the contract obligated the Hospital to:3

(1) Provide blood pressure checks to participants at least three times a week;

(2) Do foot care assistance, such as toenail cutting, to participants as needed,

but at least twice a month;

(3) Arrange for eye examinations as needed, and

(4) Arrange for qualified speakers to provide e ducational programming on

dietary needs, ear care, physical and occupational therapy and any other

health-related information to participants.

¶5. There is no mention of transportation to or from the day care center in the 21-page

contract between CMPDD and the Hospital. However, the Quality Assurance Standards (an

attachment to the contract) provided certain minimum program requirements, including

service activities, location of service, access to service, deliv ery characteristics, staffing,

prohibited service activities, qualifications, personnel management, and monitoring. Section

D, “Minimum Program Requirements,” sub-paragraph 1(d) , “Transportation Services,”

provides the following:

The day care program shall exert reasonable effort to arrange transportation

when needed, for participants to and from their homes and to other community

facilities utilized in implementing the participant s plan of care. Handicapped

accessible transportation shall be provided.

The center is encouraged to use community transportation systems and/or

families for the provision of t ransportation when available. All contracted

transportation systems shall meet local, state and federal regulations. It is

recommended that participants be transported no mor e than sixty minutes

without the opportunity for a rest stop.

¶6. It is not clear from the record before us who actually had the responsibility of

transporti ng participants to the day care center on a daily basis when the Hospital’s contract1 We are informed in one of the briefs that the City had been transporting participants

(including Mrs. Stewart) to the day care center even prior to the contract between CMPDD and

the Hospital.

4 began on October 1, 1996. 1 However, on November 20, 1996, CMPDD contracted with the

City of Jackson to pro vide transportation for participants “to and from community resources

for the purpose of obtaining needed services a n d goals.” This contract had an effective date

of October 1, 1996; and therefore, pursuant to the contract, the City began providing a van and

driver to pick up participants (including Mrs. Stewart) on October 1, 1996. The City was not

a party to the Hospital’s contract with CMPDD, and the Hospital was not a party to the City’s

contract with CMPDD.

The incident

¶7. For several months after the inception of the two contracts on October 1, 1996, the

Hospital operated the day care center, and the City provided a regul ar driver and van to pick

up Mrs. Stewart, who regularly attended.

¶8. On August 11, 1997, Doris Spiller, a n employee of the City, was substituting for the

regular van driver. She picked Mrs. Stewart up at her home and proceeded to the day care

center where she helped Mrs. Stewart off the van. The day care center is located in a business

park environment where several businesses share a parking lot which is owned and operated

by the owner of the business park.

¶9. After a ssisting Mrs. Stewart off the van and “stabilizing” her, Spiller turned to assist

another passenger from the van. Mrs. Stewart took a few steps toward the center and began

to fall. When Spiller saw Mrs. Stewart begin to fall, she reached out for Mrs. Stewart and5

attempted uns uccessfully to break the fall. Both Mrs. Stewart and Spiller fell to the ground.

Mrs. Stewart hit her head on the pavement.

¶10. Mrs. Stewart was taken to the emergency room where, according to the emergency

room doctor, she had no swelling, her blood pressure was normal, and she seemed fine. She

was released to go home, and her daughter, Emma Womack, was told to watch her for several

days.

¶11. Mrs. Stewart stayed home the next two days, but decided to return to the center on

August 14, even though she admitted to Womack that “she was still hurting and her head and

legs were still bothering her.” While in the bathroom at the day care center the next day, Mrs.

Stewart fell again, but the fall was not considered serious. Mrs. Stewart remained at the center

for the rest of the day.

¶12. Later that night, Mrs. Stewart was unable to rest well. She complained about her head,

and the next morning she regurgitated her breakfast and was disoriented. Womack called an

ambulance to take Mrs. Stewart to the emergency room. After she was examined, she was

given prescriptions for pain and muscle relaxers, and she was then released to return home.

¶13. Because Mrs. Stewart continued to have problems, Womack took her to see Dr. Calvin

Ramsey a few days later. Dr. Ramsey referred her to Dr. Don Gipson, who had Mrs. Stewart

admitted to the hospital for further tests. According to Womack, Dr. Gipson told her that Mrs.

Stewart had suffered another massive stroke, “far worse than the one she had in the 70's.”

The litigation6

¶14. On August 7, 1998, Mrs. Stewart sued the City , Spiller, and the Hospital for injuries

resulting from the fall in the parking lot. On November 23, 1998, a conservatorship was

established for Mrs. Stewart, and her daughter, Emma Womack, was appointed conservator

of the person and estate o f Mrs. Stewart. On December 18, 1998, Womack, in her capacity

as Mrs. Stewart’s conservator, was substituted as the plaintiff.

¶15. The Hospital, the City, and S piller filed motions for summary judgment, and on

September 1, 1999, the trial cour t denied the Hospital’s motion and granted summary

judgment to the City and Spiller. The Plaintiff filed an interlocutory appeal of the summary

judgment granted to the City and Spiller.

¶16. This Court reversed the summary judgment, holding that the City was obligated under

its contract with CMPDD to provide safe delivery of patrons to the day care center, and that

Mrs. Stewart was a third-party benefi ciary of that contractual obligation. S tewart ex. rel

.

Womack v. City of Jackson, 804 So. 2d 1041 (Miss. 2002).

¶17. The matter was tried to the bench for three days, beginning September 25, 2002. Mrs.

Stewart died on November 4, 2002, and her estate was substituted as plaintiff on January 30,

2003. Thereafter, the trial court entered its Memorandum Opinion and Order on March 19,

2003, and Final Judgment was entered on April 1, 200 3. In the findings of fact and

conclusions of law included in the Memorandum Opinion and Order, the trial court found that:

(1) the City was liable for its failure to “train its drivers and to ensure the

safety of its passengers;”

(2) the City should have provided Spiller with special training in assisting

and handling elderly passengers;2 Curiously, the trial court made no finding as to whether Mrs. Stewart was a third-party

beneficiary of the contract between the Hospital and CMPDD.

7 (3) the Hospital was liable for its failure to have per sonnel available in the

parking lot to assist the passengers of the City’s van in walking into the

day care center;

(4) that Mrs. Stewar t was a third-party beneficiary of the contract between

the City and CMPDD. 2

¶18. With respect to the liability of the Hospital, the trial court stated:

The second quest ion before this Court is whether plaintiff was a third

party beneficiary of the City of Jackson-CMPDD contractual agreement and the

UMMC-CMPDD contractual agreement. The Supreme Court of Mississippi

found that the Plaintiff was indeed a third-party beneficiary of the transportation

agreement between the City of Jackso n and CMPDD. S tewart v. City of

Jackson

, 804 So. 2d 1041 (Miss. 2002 ). Because Plaintiff is a third-party

beneficiary she is legally entitled to sue for the breach o f these contracts. The

breach of the UMMC and the Cit y of Jackson contractual agreements were

material and were the subsequent cause of Plaintiff’s injuries.

¶19. The trial court awarded Mrs. Stewart’s Estate $500,000 on the tort claim, and $500,000

on the breach of contract claim. The trial court then added these two sums together to reach

a final verdict for Mrs. Stewart in the amount of $1,000,000. From this judgment, both the

Hospital and the City appeal.

ANALYSIS

¶20. This Court reviews questions of law, including the proper application of the Mississippi

Tort Claims Act, de novo. Donaldson v. Covington County, 846 So.2d 219, 222 (Miss. 2003)

(citing City of Jackson v. Perry , 764 So.2d 373, 376 (Miss. 2000)).

¶21. The standard of rev iew for the admission or exclusion of testimony is abuse of

discretion. The admission of expert testimony is left to the sound discretion of the trial judge.8

Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an

abuse of discretion, that decision will stand. C rane Co. v. Kitzinger, 860 So.2d 1196, 1201

(Miss. 2003).

¶22. The four issues we shall address are:

I. Wheth er, at the time of the fall, the Hospital had a legal duty to Mrs.

Stewart which it breached, proximately causing her damage.

II. Whether Mrs. Stewart can recover damages under both the Mississippi

Tort Claims Act and breach of contract, for the same injuries.

III. Whether a stroke is a type of damage which is a reasonably fore seeable

consequence of the alleged negligence of Mrs. Spiller.

IV. Whether plaintiff’s expert, Ke arney Waites, testified outside the realm

of his expertise.

I.

¶23. The two separate contracts with CMPDD are the only known contracts associated with

this case. The record reflects no contract between the Hospital and the City regarding the day

care center. The Hospital contracted with CMPDD to provide facilities and a program suited

for those who would be attending the da y care center, while the City contracted to provide

transportation and home-delivered meals. We find no reference in the Hospital’s contract to

any obligation to provide transportation, other than its obligation to “exert reasonable effort[s]

to arrange transportation when needed.” There is no dispute that CMPDD arranged

transportation through its contract with the City. Thus, from the Hospital’s standpoint,

transportation was not “needed.” Once a determination is made that the provision of

transportation is not needed, the Hospital’s obligation “to arrange transportation” ends.9

¶24. The Estate makes muc h of the fact that, on many occasions, personnel from the day

care center would come out into the parking lot to meet the van and assist participants into the

building. However, the City’s employees who drove the van testified that assistance from the

day car e center personnel was only occasional, and no testimony was offered that such

assistance was contracted for or an obligation of the Hospital. It is also clear that, on the day

Mrs. Stewart fell, no personnel from the day care center came to the parking lot. Thus, it

cannot be argued that the City had turned the care of Mrs. Stewart over to the Hospital.

¶25. This Court has held that “negligence is the result of the failure to perform a duty;

therefore actionable negligence cannot exist in the absenc e of a legal duty to an injured

plaintiff.” S tanley v. Morgan & Lindsey, Inc

., 203 So.2d 473, 475 (Miss. 1967). Since no

evidence su ggests that the Hospital ever assumed a legal duty or obligation regarding the

transportation of attendees of the adult day care center program, we must revers e the trial

court’s finding of liability against the Hospital.

II.

¶26. Mrs. Stewart claims that the City breached an implied term in its written contract with

CMPDD to “provide her with safe delivery to the daycare center, not the parking lot in front

of the day care center.” S tewart ex rel. Womack v. City of Jackson

, 804 So.2d 1041, 1050

(Miss. 2002). She was allowed to pursue this claim because we held she was a third-party

beneficiary of the contract between the City and CMPDD. Id . at 1051.

Breach of implied contract10

¶27. By enacting Miss. Code Ann. §§ 11-46-1 et seq., the Legislature defined the parameters

for sovereign immunity within this sta te. This group of statutes is commonly known as the

“Mississippi Tort Claims Act” and has been amended on numerous occasions since its original

enactment in 1984.

¶28. Miss. Code Ann. § 11-46-3, which grants sovereign immunity, stated at the time of

Mrs. Stewart’s injuries:

The Legislature of the State of Mississippi finds and determines as a matter of

public policy and does hereby declare, provide, enact and ree nact that the

"state" and its "p olitical subdivisions," as such terms are defined in Section

11-46-1, are not now, have never been and shall not be liable , and are, always

have been and shall continue to be immune from suit at law or in equity on

account of any wrongful or tortious act or omission or breach of implied term

or condition of any warranty or contract.

Miss. Code Ann. § 11-46-3(1)(1997).

¶29. The phrase “breach of implied term or condition of any warr anty or contract” was

added in the Legislature’s Special Session of 1992. This Court’s first opportunity to interpret

the statute, as amended in 1992, was Q uinn v. Mississippi State University

, 720 So.2d 843

(Miss. 1998), which held that, by paying an admission fee to a baseball camp a t Mississippi

State University, Brandon Quinn’s parents “entered into an implied contract with the

university. This contract carried with it the implied promise that the university would provide

a safe instructional environment for [Brandon Quinn].” I d

. at 850. Thus, the Quinns were

allowed to pursue their breach of contract claim against the university.

¶30. In reaching its conclusion, the Q uinn majority provided no analysis of the 1992

addition of “breach of implied term or condition of any warranty or contract” to the sovereign11

immunity statute. Instead, it concentrated on an analysis of the validity of a release signed by

the Quinns. I

d

. However, Justice Mills pointed out in his separate opinion the fallacy of the

majority’s reasoning by stating, “The same soverei gn immunity that bars the Quinns’ tort

claim against MSU bars their breach of implied contract claim as well.” I d

. at 856 (Mills, J.,

concurring in part & dissenting in part). As authority for his statement, Justice Mills cited the

language added by the 1992 amendment to the sovereign immunity statute.

¶31. The Quin n majority concluded that sovereign immunity did not apply to breach of

implied contracts by applying the holding of three prior cases; C hurchill v. Pearl River Basin

Development District

, 619 So.2d 900 (Miss. 1993), Mississippi State Dep’t of Welfare v.

Howie

, 449 So.2d 772 (Miss. 1984) , and C ig Contractors, Inc. v. Mississippi State Bldg.

Comm’n , 399 So.2d 1352 (Miss. 1981). Reliance on these three cases was misplaced.

¶32. The cause of action in the latter two cases, Howie and Cig Contractors , arose prior to

the Legislature’s enactment of the Mississippi Tort Claims Act, and long before the “implied

contract” amendment in 1992. While the decision in C hurchill relied upon the Tort Claims

Act, the cause of action in that case arose prior to the effective date of the “breach of implied

term or condition of any warranty or contract” language.

¶33. Prior to Quinn

, this Court has not addressed the “implied contract” language in the

1992 amendment. However, the Court of Appeals addressed the language in C ity of Grenada

v. Whitten Aviation, Inc. 755 So.2d 1208 (Miss. Ct. App. 1999), in which the court held:

The City, in attempting to apply MTCA to the facts in the case at bar, has

tak en the phrase “breach of implied term or condition of any warranty or

contract” out of context. The clear intent of the legislature in enacting MTCA

w as to immunize the state and its political subdivisions from any torti ous12

conduct, including tortious breach of implied term or condition of any warranty

or contract. The provisions of MTCA have no application to a pure breach of

contract action as is the subject of the case at bar.

Id. at 1213. Making the same error as the Q uinn majority, the Court of Appeals cited

Churchill as its authority. Id.

¶34. We erroneously adopted th e Court of Appeals’ interpretation in H arrison County

Development Comm’n v. Daniels Real Estate

, Inc., 880 So.2d 272 (Miss. 2004), again using

as authority the same three inapposite cases cited in Quinn

.

¶35. We are required to give effect to the language selected by the Legislature to be

included in the 1992 amendment to the sovereign immunity statute. In the context of the case

before us, there are two possible interpretations of the language, “immune from suit at law or

in equity on account of any wrongful or tortious act or omission or breach of implied term or

condition of any warranty or contract .” One interpretation is that the Legislature granted

sovereign immunity for a “wrongful or tortious act or omission, ” and additionally for a

“breach of implied term or condition of any warranty or contract.” The other interpretation

provides that the term, “wrongful or tortious” modifies not only “act or omission,” but also

modifies “breach of implied term or condition of any war ranty or contract.” Stated another

way, the statute either (1) grants sovereign immunity for a “wrongful or tortious act or

omission” and also grants sovereign immunity for “breach of implied term or condition of any

warranty or contract,” or (2) grants sovereign immunity for wrongful or tortious acts, and for

wrongful or tortious omissions, and for wron gful or tortious breach of implied contract.

Acceptance of the latt er interpretation would require us to accept that, by specifically13

including a tortious breach of implied contract, the language of the statute intended to exclude

tortious breach of express contract. Otherwise, there would have been no purpose in including

the word, “implied.”

¶36. The for mer interpretation, on the other hand, is in complete harmony with the text of

the statute. Furthermore, by granting sovereign immunity for claims of breach of implied

contract, the statute does no violence to the reasoning in prior decisions which refused to

allow the state and its political subdivisions to invoke sovereign immunity to escape its

written contractual obligations.

¶37. The Legislatu re added the phrase “breach of an implied term or condition of any

warranty or contract” as a separate dependent cla u se after the dependent clause “on account

of any wrongful or tortious act or omission.” The adjective “tortious” obviously modifies act

or om ission. However, there is nothing in the language of the statute to indicate that it also

modifies the separate dependent clause. That is to say, there is nothing in the language of the

statute to lea d us to conclude that a “breach of an implied term or condition of any warranty

or contract” must be tortious.

¶38. We therefore hold that Miss. Code Ann. § 11-46-3 grants immunity to the state and its

political subdivisions for “breach of implied term or condition of any warranty or contract.”

However, Miss. Code Ann. § 11-46-5 provided a limited waiver o f the immunity granted

under Section 11-46-3, and it further provides that Miss. Code Ann. § 11-46-15 shall set “the

extent of the maximum amount of liability. ” In this case, the maximum liability under § 11-

46-15 at the time of the incident, was $250,000.14

¶39. Although we previously held in ruling on an interlocutory appeal in this case, that Mrs.

Stewart was a third-party beneficiary of the City’s contract with CMPDD, we did not address

the issue of damages, or whether the City’s liability was limite d. The City enjoys immunity

for claims that it breached an implied contractual term. That immunity, however, is waived

by Section 11-46-5, to the extent of the $250,000 maximum damages allowed by Section 11-

46-15. Thus, the maximum recovery allowed by the statute under Mrs. Stewart’s breach of

contract claim is $250,000. To the extent Q uinn a n d Harrison County Development

Comm’n conflict with our holding today, they are overruled. Today’s holding gives full

meaning and effect to each phrase of the amended statute.

¶40. The Estate’s breach of cont ract action and its tort action both arise from the same set

of operative facts, and they allege the same damage. In other words, plaintiff claims when

Mrs. Spiller left Mrs. Stewart unattended, the City breached its contract with CMPDD and it

was also negligent. Plaintiff further claims it was permissible for her to bring suit under both

causes of action. We agree. However, this Court has never held that a plaintiff may pursue

two causes of action or theories and, having established liability under both, collect the same

damages under both.

¶41. This Court rece ntly held “that ‘[t]here can be but one satisfaction of the amount due

the plaintiff for his damages’.

. . Thus, double recovery for the same harm is not permissible.”

Medlin v. Hazlehurst Emergency Physicians, 889 So.2d 496, 500-01 (Miss. 2004).

¶42. The trial court correc tly held that the maximum recovery against the City for Mrs.

Stewart’s tort claim was $250,000. Her maximum recovery under her claim for breach of3 Because of the result we reach today, we need not analyze the Estate’s claim of

traditional tort damages under a breach of contract theory. We do not hold such recovery is

impossible but caution that careful analysis is required. See Hadley v. Baxendale , 9 Exch. 341,

156 Eng. Rep. 145 (1854).

15 imp lied contract is also the same $250,000. However, these are the same damages awarded

under two separate theories of recovery. As such, Mrs. Stewart’s estate is entitled to only one

recovery. Thus, she may recover no more than $250,000, whether for negligence, breach of

contract, or both. 3

III.

¶43. We now turn to the proof of damages. The Estate claims that Mrs. Stewart’s fall on

August 11, 1997, resulted in a stroke, and much evidence was admitted to establish an

amount of compensation for the stroke. In order to recover damages related to the stroke,

however, the Estate must show more than negligent conduct which resulted in damages; it

must show not only that the stroke resulted from the fall and that the fall resulted from a

defendant’s negligence, but als o that a stroke is a reasonably foreseeable consequence of the

alleged negligent act. That is, the estate must show that where one negligently allows a

person like Mrs. Stewart to fall, stroke is a t ype of damage that is reasonably probable to

occur.

¶44. Mississippi case law is replete with f oreseeability cases. Two such cases are D onald

v. Amoco Production Co.

, 735 So.2d 161 (Miss. 1999), and G ulf Refining Co. v. Williams

183 Miss. 723, 185 So. 234 (1938). Another case decided by a United States District Court

is Smith v. United States

, 284 F. Supp. 259 (S. D. Miss. 1967), a ff’d per curiam, 394 F.2d

482 (5 th Cir. 1968).16

¶45. In Smith , the district court held:

It is the universal rule in tort actions that mere proof of injury complained of

raises no presumption of negligence

... ‘Forese eability, as respects liability of

the negligent person, does not include events which are bizzare or so unique as

to be witho ut the...contemplation of one reasonably prudent’... ‘A person

charged with neg ligence in that he should have anticipated the probability of

injury from an act done by him is not bound to a prevision or anticipation which

would include an unusual, improbable or extraordi nary occurrence, a lthough

such happening is within range of possibilities .’

284 F. Supp. at 261-62 (citations omitted & emphasis added).

¶46. In Donald

, this Court hel d “[a] defendant is o bligated solely to safeguard against

reasonable probabilities and is not charged with foreseeing all occurrences, even though such

occurrences are within the range of possibility.” 735 So.2d at 175 (citations omitted &

emphasis added).

¶47. In Williams , this Court held:

The general language of the courts in stating the rule of law of

negligence in regard to the liability of the actor as to harmful results which are

foreseeable is that he will be liable for all such harm as a reasonably prudent

person would or should have anticipated as the natur a l and probable

consequences of his act.

* * *

‘Probabil ity arises in the law of negligence when viewed from the

standpoint of the judgment of a reasonably prudent man, as a reasonable thing

to be expected ’

* * *

It is true, as already mentioned, that remote possibilitie s are not within

the rules of negligence as respects foreseeability

. . . these rules do not demand

‘that a person should prevision or anticipate an unusual, improbable, or

extraor dinary occurrence, though such happening is within the range of

possibilities... Remote possibilities do not constitute negligence from the judicial

standpoint .’

185 So. at 235-36 (citations omitted & emphasis added).4 Although this testimony was sufficient for the question of causation, it had no bearing

on the question of foreseeability.

17 ¶48. We wish to emphasize that the question of foreseeability is different from the question

of causation. The causation question is whether the City’s negligence caused or substantially

contributed to Mrs. Stewart’s stroke. This is a question which can be answered only by

examining the facts of this pa rticular incident after the fact. We find the Estate produced

sufficient evidence to establish causation.

¶49. By contrast , foreseeability presents the question of whether a stroke is the type of

damage which reasonably should be a nticipated (or foreseen before the fact) as a result of

negligently allow ing an elderly person to fall in a parking lot. This is the precise teaching

from Donald

, Williams, and Smith

.

Dr. Calvin Ramsey

¶50. Two physicians testified concerning the stroke. The first physician was Mrs. Stewart’s

family physician, Dr. Calvin Ramsey, who had treated her for numerous ailments since 1985.

Dr. Ramsey saw Mrs. Stewart eight days following the fall in the parking lot at the day care

center. During that eight-day period, Mrs. Stewart had another fall in the rest room at the day

care center.

¶51. Dr. Ramsey, board certified in internal medicine, described Mrs. Stewart as “a darling

patient” who he had been taking care of for “some 20 years or so.” He testified that Mrs.

Stewart suffered a stroke in 1977 and had experienced numerous m edical problems. He

further testified that, in his opinion, Mrs. Stewart suffered an extension of the 1977 stroke

following the fall at the day care center on August 11, 1997. 4 When asked when the stroke18

occurred, Dr. Ramsey testified, “And all I can tell you is that sometime between the 11th and

the 19th, she had the stroke.” Dr. Ramsey later admitted that it was possible that she had a

stroke on the 11th and then fell. When asked, “How do you know that she didn’t have a

stroke on the 11th, and that c aused her to fall?” He replied, “Well, Counsel, I don’t think

we’r e disagreeing about that. She could have had a stroke on the 11th, and I don’t know

that.” He further testified that Mrs. Stewart’s stroke could have been caused by the fall or it

could have been caused by stress.

¶52. D r Ramsey acknowledged that medical records from Mrs. Stewart’s visit to St.

Dominic’s emergency room on the 11th established that her blood p ressure was normal.

Although referencing an MRI from August 19, 1997, Dr. Ramsey a dmitted he never

personally reviewed the scan. In reference to Mrs. Stewart’s numerous hospital admissions

for various treatments since August 1997, he testified that the stroke caused her pneumonia,

urinary tract infections, and “every single hospitalization.”

¶53. Dr. Ramsey summed up his opinion in the following statement:

The iss ue is that she fell and struck her head, it caused a lump, contusions,

ended up with a stroke, which changed her whole life. And generalized ability

and all the other things that we have talked about, all attest to the fact that she

should have been handled with a little bit more care when she was getting off

that bus. Louise wasn’t there to help her off the bus that day; there was a

substitute there. And it’s unfortunate that that happened, but if Louise or

someone was paying more attention to Ms. Stewart, then she would not have

fallen. That’s the issue.

¶54. In discussing Mrs. Stewart’s condition prior to her fall on August 11, 1997, Dr. Ramsey

was asked whether she required assistance to walk. He testified, “No sir. She was using a

quad cane and

. . . [her daughter] would help her in getting up to the exam table, but as she5 See footnote 4, and accompanying text, supra.

19 ambulated down the hall, she was able to walk on her own with no assistance.

. . . She would

need a ssistance in getting from Point A to Point B, but once she was up on her feet, she was

able to walk without any assistance.” He later confirmed that Mrs. Stewart could walk on her

own, “but if she has to go up an incline, down an incline, getting from a seated position,

getting from a whatever position, to get u p to stand to walk, she certainly needs assistance.”

¶55. Although Dr. Ramsey offered a great deal of testimony concerning whether the fall on

the 11th caused the stroke, 5 and whether the stroke caused Mrs. Stewart’s numerous maladies,

he offered no testimony which sheds light on the question of whether stroke was a foreseeable

risk or expected consequence of the fall.

Dr. Clara Adele Thiel

¶56. The second physician to testify at trial was Dr. Clara Adele Thiel, a board certified

neurologist with an office at River Oaks Hospital in Jackson. Dr. Thiel never treated Mrs.

Stewart but formulated her opinions upon review of the medical records.

¶57. Dr. Thiel testified that the standard of care when a physician suspects a stroke is to

order an MRI or CT scan. She noted that neither was ordered when Mrs. Stewart visited the

emergency room following the fall on August 11 th. She further testified that St. Dominic’s

Hospita l records reflected no swelling, no increased blood pressure, and no neurological

deficit on the day of the fall.

¶58. Dr. Thiel testified that the symptoms exhibited by Mrs. Stewart as reported in the

hospital admission on the 19 th could indic ate a new stroke, but they could also be caused by6 Counsel for the Estate argue that Dr. Thiel never used the word, “foreseeable.” Her

testimony, however, under any label, clearly characterized stroke as an unforseen consequence of

Mrs. Stewart’s fall and head trauma.

20 any number of minor things, and an MRI is required to diagnose a new stroke, a n extension

of the old stroke, or one of the other more minor causes of the sym ptoms. The MRI,

performed on Mrs. St ewart on the 19th, showed the old stroke but no evidence of a new

stroke. Dr. Thiel testified that “essentially, she had old chronic findings but nothing new.”

Dr. Thiel testified she would expect something to show up on an MRI to indicate a new

stroke, even just a mild one.

¶59. Concerning the foreseeability 6 of a stroke resulting from the fall, Dr. Thiel testified:

It wou ld be extremely uncommon, almost unheard of for a minor fall to cause

a stroke.

. . any minor head trauma should not cause a st r oke.

. . . I am saying

that head trau ma per se is not really cause for strokes. It’s not a precipitating

factor for stroke, you know. If you have a major head trauma, certainly there

can be some sequelae and some problems form [sic] that, but it’s generally not

a stroke.

¶60. As stated earlier in Smith v. United States , “A person charged with negligence in that

he should have anticipated the probability of an injury from an act done by him is not bound

to a prevision or anticipation which would include an unusual, improbable or extraordinary

occurrence, although such happening is within range of possibilities. 284 F. Supp. at 261-62.

The only expert witness to testify concerning the likelihood of a fall causing a stroke was Dr.

Thiel, who testified that it is “extremely uncommon, almost unheard of for a minor fall to

cause a stroke. . . . I am saying that head trauma per se is not really a cause for strokes.”

¶61. The Estate directs us to much authority which establishes that a particular injury need

not be anticipated, so long as some injury can reasonably be expected to result from negligent7 The Estate claims Dr. Thiel’s testimony was “directly contrary to the opinions of three

(3) well qualified treating physicians.” The record belies this claim. There is no contradiction in

the record to Dr. Thiel’s testimony that “head trauma per se is not really a cause for strokes.”

21 conduct. S ee e.g., Gulledge v. Shaw

, 880 So. 2d 288, 293 (Miss. 2 004). We do not retreat

from thi s principle of law. It should certainly be anticipated that negligently allowing an

elderly person to fall in a parking lot could lead to many kinds of injuries including a broken

arm, cuts b ruises, or even concussion. The exact injury need not be expected, anticipated or

even contemplated. But these are i njuries brought about by trauma. A stroke is not an injury

but rather a medical condition which (according to Dr. Thiel’s unrebutted testimony ) is not

an anticipated result of trauma. Thus, our holding in Gulledge is inapposite.

¶62. Citing B lake v. Clein

, 903 So. 2d 710, 729-30 (Miss. 2005), the Estate also urge s us

to find that Mrs. Stewart was an “eggshell plaintiff.” The “eggshell plaintiff” theory does not

obviate the necessity to show foreseeability. It simply provides that plaintiffs who are far

more susceptible to a pa rticular harm than the average person may nonetheless recover their

full damages without reduction. In other words, you take the plaintiff as you find him or her.

Applying the “eggshell plaintiff” theory to this case, if stroke were a foreseeable consequence

of the City’s negligence, then the City would be liable for all da mages related to the stroke,

even if Mrs. Stewart were far more susceptible to stroke than the average person. But we do

not reach the “eggshell plaintiff” analysis without first satisfying the question of

foreseeability.

¶63. Because the unchallenged 7 expert testimony at trial established tha t stroke is not a

foreseeable consequence of the alleged negligence w h ich led to Mrs. Stewart’s fall, we hold22

that the Estate may not recover damages related to t he stroke, whether or not it was caused

by the fall on August 11, 1997.

IV.

¶64. Mrs. Stewart calle d Kearney Waites to testify as an expert and tendered him as an

expert in administrating programs with a com ponent of transporting the elderly and infirm.

At the time of trial, Waites was the director of the Association for Retarded Citizens Programs

in Warren County. He received both a master’s degree in counseling and a bachelor of arts

degree in education from t he University of Mississippi. None of his programs dealt

specifically with the transportation of elderly citizens. Mrs. Stewart’s attorney admitted that

“[w]e’re not offering him as an expert in contract law.” Even after this admission, however,

the trial court allowed Waites to testify about numerous contracts, policies, regulations and

forms including specific contract provisions, how they interacted, what standard of care they

provided and who was bound by them.

¶65. Since the standar d of review for the admission of expert testimony is abuse of

discretion, the decision will be reversed only if there is a finding that the discretion was

arbitrary and clearly erroneous. C rane Co. v. Kitzinger, 860 So.2d at 1201. We find that

matters of contract interpretation were clearly outside the tendered expertise of Mr. Waites.

In Hart v. State

, 637 So.2d 1329, 1338 (Miss. 1994), this Court held “[a] trial judge may

exclude expert opinions which are not helpful to the tri er of fact and which state legal

conclusions beyond the specialized knowledge of the expert.” The realm of expert testimony

was further clarified when this Court held that an expert may not “offer so-called expert23

testimony in other areas in which he not even remotely meets the Miss. R. Evid. 702 criteria.”

Stubbs v. State, 845 So.2d 656, 670 (Miss. 2003).

¶66. In light of Hart

and Stubbs, the trial court abused its discretion by allowing Waites to

testify to integral contract matters without any expertise in contract interpretation.

CONCLUSION

¶67. We affirm the trial court’s judgment to t he extent that it found the City liable to

Stewart. We reverse the trial court’s judgment against the University of Mississippi Medical

Center, and we render judgme nt here that Stewart take nothing from it and that Stewart’s

complaint and action against it are finally dismissed with prejudice. We reverse the trial

court’s judgment awarding $500,000 against the City of Jackson, and we remand this case for

a new trial on damages consistent with this opinion, with instructions to the trial court to limit

any damage award against the City to $250,000, and to exclude from its award any damages

attributable to the stroke.

¶68. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND

REVERSED AND REMANDED IN PART.

SMITH, C.J., WALLER AND COBB, P.JJ., AND CARLSON, J., CONCUR.

RANDOLPH, J., CONCURS IN RESULT ONLY. EASLEY, J., CONCURS IN PART

AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND

GRAVES, JJ., NOT PARTICIPATING.