IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01676-COA MAJEEDAH SHARRIEFF, LYNNESE BUTLER, THE HEIRS AND ESTATE OF NAOMI BROWN, NUTROSALYN BUTLER AND MIQUAL BROWN APPELLANTS

v. DBA AUTOMOTIVE TWO, LLC D/B/A LEGACY C-D-J APPELLEE

DATE OF JUDGMENT: 10/31/2016 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANTS: JOHN B. GSANGER MARY BARNETTE COTTON JOHN DAVIDSON ATTORNEY FOR APPELLEE: MICHAEL W AYNE BAXTER NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 04/03/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. Majeedah Sharrief f and f our passengers were traveling north on Interstate 55 (I-55)

near McDowell Road in Jackson when the l ef t r ear t ire on S harrief

f ’s 2003 Isuzu Ascender experienced a com

plete tread separation. As a result of the separation, Sharrief f lost control of the vehicle, and the vehicle overturned a nd crashed. S harrief f and he r p a s s e n g e rs subsequently f

iled suit in Hinds County Circuit C o urt against M ichelin N orth Am erica/B.F.
G o o d r ich (“Michelin”), which m anuf actured the tire, and DBA Autom ot i v e T w o L L C D / B / ALegacy C -D-J (“Legacy ”), which sold the Isuzu to Sharrief f in 2 007 and p laced two new tires

on the vehicle n e ar the tim e of sale. The plaintif f s alleged t h a t t h e M i c h elin tire was def ectively designed and m anuf actured. They also alleged t hat Legacy negligently m ounted the two new tires on the f r o n t of the vehicle and that industry saf ety standards required Legacy to m ount the new tires on the rear of the vehicle. ¶2. Legacy su b s e q u e n t l y mo ved f or sum m ary judgm ent. The circuit court granted the

m otion af ter concluding that there was no evidence that L egacy negligently breached any d u t y to the plaintif

f s or that any a lleged b reach proxim ately caused the plaintif f s’ in j u r i e s . The plaintif

f s later s ettled their claim s against Michelin and then appealed f r om the j udgm ent entered in f

avor of Legacy

. F or the reasons discussed below, we agree with t he c i rcuit court
t hat the plaintif

f s f ailed to create a genuine issue of m aterial f act as to whether Legacy ’ s alleged negligence p roxim ately caused their injuries. T heref ore, we af f i rm the circuit court’s order granting sum m ary judgm ent on that ground.

FACTS AND PROCEDURAL HISTORY ¶3. On March 16, 2007, Sharrief f bough t a u s e d 2003 Isuzu Ascender f r om Legacy , a used car dealership in Brookhaven. Near the tim e of t he sale, Legac y r e p laced two of the tires on the Isuzu with new t i r e s . L e g a c y m o unted the two new tires on the f ront of the vehicle and did n o t replace the tires on the rear. Sharrief f did not have any

issues with the

car or the tires prior to the crash a t issue in t h is case, which occurred m ore than two y ears later. During that tim e, Sharrief f put o ver 1 3 , 0 0 0 miles on the Isuzu without rotating or

2changing any of the tires. ¶4. On May

22, 2009, Sharrief

f and the other plaintif

f s w ere t raveling on I-55 North in Jackson near M cDowell Road when t he Isuzu’s r ear lef t tire experienced a co mplete tread separation. The tread separation caused the Isuzu to pull to the lef t, and Sharrief

f r esponded by steering right. However, the tread separation caused the vehicle to “ oversteer,” m eaning that it was m ore sensitive to s teer inputs and harder f or the driver t o control. As a result, Sharrief f lost control of the vehicle, and the vehicle overturned bef ore com ing to rest of

f the right side of

the interstate. ¶5. T h e plaintif

f s subsequently f

iled suit against Michelin and Legacy in c ircu i t c o u r t

. As to Legacy , they

alleged that the new Michelin tires should have been placed on the rear of the vehicle r a ther than on the f ront. 1 T he plaintif

f s hired two accident reconstruction experts and one tire e xpert. W h en asked to identif y the proxim a te ca u s e o f the crash, all three experts identif

i ed the tread separation and blam ed Michelin. ¶6. Legacy f

i led f or sum m ary judgm ent, arguing (1) that n o law or r egulation required a

car dealer to place better tires o n a vehicle’s rear w heels a nd (2) that there was no evidence

to show that its placem ent o f the new tires o n the f ront of the vehicle proxim ately caused the plaintif f s’ injuries. I n response, the plaintif f s argued that a l l o f t he experts, including Legacy ’s own expert, agreed that newer, b etter tires should b e placed on the rear of a vehicle.

1 The plaintif

f s also alleged that Legacy n egligently f ailed to certif

y that the vehicle was saf e bef ore selling it and that Legacy had a d uty to r eplace a ll f

our tires on the vehicle, not just two. The plaintif f s eventually

abandoned those claim s . 3The plaintif f s a lso argued that Legacy ’s negligent placem ent of t he new tires contributed to the oversteer condition, which caused the crash and their injuries. ¶7. T h e c i r c u i t court concluded that the plaintif f s f ailed to create a genui n e i s s u e o f

m aterial f a ct as to either negligence or proxim ate causation. Theref o r e , t h e c o urt granted

sum m ary judgm ent i n f

avor of Legacy

. A f

ter the plaintif

f s settle d t h e i r c laim s against Michelin, they

f iled a tim ely

notice of appeal.
ANALYSIS ¶8. W e review an order granting sum m a ry judgm ent de novo. Miss. Dep’t of Revenue v. Hotel & Rest. Supply , 192 So. 3d 942, 945 ( ¶5) (Miss. 2016). A p arty is entitled to sum m ary judgm ent if the record shows both that there is n o genuine issue of m aterial f a ct a n d that the party is e ntitled to a judgm ent as a m atter of law. M.R.C.P. 5 6(c). W e r eview the sum m ary judgm ent record in the light m ost f avorable to the nonm oving party

. Thomas v
. C h e v ron U.S.A. Inc. , 212 So. 3d 58, 60 (¶7) (Miss. 2 017). However, the nonm oving party “m ay not
rest upon the m ere a llegations or d enials of his pleadings, but his response . . . m ust set f orth specif ic f a cts showing that there is a genuine issue f or trial.” M.R.C.P. 56(e). ¶9. To prevail on a claim f o r negligence, a plaintif

f “m u st show a) the duty owed him by the [ d ef endant]; b) a breach of that duty ; c) d am ages; a nd d) a causal connection between the breach and the dam a ges, such that the breach i s the p roximate cause of his injuries.” Crain

v. Cleveland Lodge 1532, Order of Moose Inc. , 6 41 So. 2d 1186 , 1 1 8 9 (Miss. 1994). “To withstand sum m ary

judgm ent, the party opposing the m otion m ust present suf

f icient proof

4to establish each elem ent of e ach claim .” Morton v. City of Shelby , 98 4 S o . 2 d 3 2 3, 330

(¶17) (Miss. Ct. App. 2007). ¶10. The c ircu i t c o u r t r u l ed, as a m atter of l aw, t hat Legacy had no duty to the plaintif f s with respect to tire p la c e me n t

. The circuit court reasoned that the plaintif f s presented evidence only of a “general recom m endation i n the tire i ndustry , ” n o t a l egal duty ; and because t here w as no duty , there could b e no breach. The circuit court also ruled that there

was no g enuine issue of m aterial f act and that th e proxim ate cause of the accident was the tire tread separation, not tire placem ent. W e af f irm on the issue of

proxim ate causation. ¶11. “In any t ort case, i dentif y ing and proving the source of t he harm that p r o x i ma t ely caused a plaintif

f ’s injuries is essential.” J ohnson & Johnson Inc. v. Fortenberry , 234 So. 3d 381, 403 (¶78) (Miss. 2017). “Proxim a t e cause of an injury is that cause which in natural and continuous sequence u n b r o k e n b y a

ny ef f icient intervening cause produces the injury and without which the result would n ot have occurred.” Delahoussaye v. Mary Mahoney’s Inc. , 783 So. 2d 666, 671 (¶13) (Miss. 2001). “In order f or an act o f negligence to proxim ately

cause the dam age, the f

a ct f inder m ust f ind that the n egligence was both the cause in f act and legal cause of the dam age.” Glover ex r el. Glover v. Jackson State Univ. , 968 So. 2d 1267, 1277 (¶31) (Miss. 2007). ¶12. W h en a p laintif

f ’s injuries are brought about by the actions of m ultiple tortf

easors, a def endant’s negligence is considered the cause in f act if it “was a substantial [ contributing]
f a c tor in bringing about the harm .” Glenn v. Peoples , 185 So. 3d 981, 986 (¶ 1 9 ) ( M i s s .

52015) (quoting Glover , 968 So. 2d at 1277 n.11). “ T he plaintif f s bear the burden of proof

on the issue of causation and m ust ‘introduce e vidence which af f ords a reasonable basis f

or the conclusion that it is m ore l ikely than n ot that the conduct o f the def endant was a cause in f act of the result. A m ere possibility of such causation is not e n o u g h

. ’ ” R o w a n v. Kia
Motors A m. Inc. , 1 6 So. 3d 62, 66 (¶12) (Miss. Ct. App. 2009) (quoting Herrington v. Leaf
River Forest Prods. Inc. , 7 33 So. 2d 774, 7 7 7 ( ¶ 1 0 ) (Miss. 1999)). “A def endant’s negligence which is f

ound t o be the cause in f

act of a plaintif

f ’s dam age will also b e the legal

cause o f t hat dam age, provided t he dam age is the ty pe, o r within the c lassif

ication, of dam age the negligent actor should reasonably e x p e c t (or f oresee) t o r esult f

rom the negligent act.” Glover , 968 So. 2d at 1277 (¶33). ¶13. In the present case, the tire that f ailed was one of the older tires m ounted o n the r ear of the Isuzu. There is no a llegation or evidence that the tire tread separated because it was

on the rear of the car rather than on the f ront. Indeed, t here i s no allegation o r e vidence that Legacy is in any way to blam e o r at f ault f or the tread separation. Rather, the plaintif f s’ allegation is that tire placem e nt caused or contributed to the “oversteer” event that resulted
f rom the tread separation. ¶14. Yet, a s n o t e d a b o v e , n one of the plaintif f s’ experts identif

ied tire p lacem ent as a proxim ate cause of the crash. They all blam ed the tread separation. M oreover, the testim ony of Stephen Arndt, the plaintif f s’ prim ary accident reconstruction expert, directly contradicts plaintif f s’ claim against L egacy . Arndt gave the f ollowing testim ony about w hat would have

6occurred if the n ewer tires had been m ounted on the rear of the vehicle, r ather t han the f ront, and the tread separation had occurred on the f ront lef t tire:
If y ou have a . . . tread separation on the lef t f ront [ t ire], t h e f

irst part t hat happens is the vehicle pulls to the l ef t, not unlike what happens in the rear. So both those two t h i n g s are sim ilar except f or, if y ou have a f

ront tire tread separation, i t prob a b l y p u l l s mo re to the lef t t han if it’s on t he rear and t hat because i ts o n a steer axle, and y ou’ll get a slight steer ef f ect b e c a u s e of the drag at that lef

t f ront position. So t he ef

f ect is that it will pull m o re to the l ef t if it occurs at the lef

t f ront than it does at the lef t rear. So that’s the f

i rst thing that happens. Now, the n ext thing that happens i s d r a m atically dif f erent than the rear, and that is, i nstead of becom ing very sensitive to steer inputs, t he vehicle becom es very insensitive to steer inputs. So if the driver puts in what they think is an appropriate steer r esponse to a lef t f ront separation, instead of it im m ediately going to the . .

. right and spinning out, the vehicle continues to the l ef t. It’s very unresponsive. You have to put in a m uch g reater steer than anticipated. And so y ou have a v e r y d i f f erent kind o f event. Y ou h ave an e vent o f som e k i n d , b u t it’s dif

f erent. I nstead of spinning out to t he r ight, the vehicle go e s lef t, it’s unresponsive, chances are i t hits the [ concrete] J ersey barrier, and w e don’t know what happens

. It’s a dif f erent event. (Paragraph breaks om itted; em p hasis added). ¶15. Thus, to sum m arize, Arndt testif ied that a tread separation o n the f ront lef t tire likely would have caused the vehicle to (1) “pull m o re to the lef t,” (2) “ b ecom e[ ] very i nsensitive

to steer i nputs,” (3) “continue[ ] to the lef t,” and (4) h it the concrete barrier in the m iddle of
I-55. T o put this testim ony in context, the plaintif f s were t raveling on I-55 North i n Jackson in heavy t raf

f ic, Sharrief

f was in the lef

t lane b ecause she had j ust p assed another car, and she was driving between sixty and seventy m iles per hour. The plaintif f s’ lane w as separated
f rom oncom ing traf

f ic on I-55 South by

only a concrete barrier. In this c ontext, testim ony
7that a dif

f erent tire placem ent would have r e s u l t e d i n an “event of som e kind” but a “dif f erent k i n d o f event” is u nhelpf ul, and it is i nsuf

f icient to create a genuine issue of

m aterial f act. ¶16. The p laintif

f s of f e re d n o e v i d e nce as to what would have f o llowed if the Isuzu had collided w ith t h e concrete b arrier a t a speed of sixty to s e venty m iles per hour. Indeed, Arndt adm itted that “we don’t know what [ would have] h appen[ ed]” in t hat scenario. Nor is there
any evidence t hat the crash or t he plaintif f s’ injuries would h ave b een any less serious in that scenario. 2 In f

act, Arndt’s expert report recognized that a collision with “the concrete Jersey barrier s eparating north and southbo u n d t r a v e l lanes” would have “pos[ ed] a threat to [ Sharrief f ], her passengers, and other roadway users.” ¶17. Testim ony that t he crash would have been “dif f erent” in som e way

—but “we don’t know” how—is insuf

f icient to create a g enuine issue of m aterial f act. The circuit court
correct ly recognized that t he plaintif f s f ailed to produce “evidence w hich af f ords a reasonable basis f

o r the conclusion that it is m o re likely t han not that [ L e gacy ’s] c onduct

. . .

was a cause in f

act of the result. A m ere poss i b i lity o f such causation is n ot enough.”
Rowan , 16 So. 3d at 66 (¶12) (quoting Herrington , 733 So. 2d at 777 (¶10)). T heref ore, the circuit court properly granted sum m ary judgm ent f

or Legacy on the issue of

causation. 3

2 Indeed, the record on appeal does not d isclos e w h a t i n juries the plaintif

f s experienced or how they

were injured during the crash.

3 Because we a f

f irm on the ground that the plaintif f s f ailed to present evidence that tire placem ent was the c ause in f act of t heir injuries, we need n ot address the issues of legal causation (f

oreseeability ), duty , or breach (negligence). 8¶18. AFFIRMED.

LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARL TON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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