KITCHENS, Justice, for the Court:
¶ 1. Michael Howard and Shannon Poole were awarded a four-million-dollar jury verdict against InTown,
¶ 2. Michael Keith Howard and Shannon Poole had rented a room at InTown in June 2008, where the couple temporarily resided while waiting for a home to become available in Belhaven, a residential area in Jackson, Mississippi. On June 27, 2008, at approximately 9:30 p.m., Howard left the motel room to take his dog for a walk. As he was returning to the room, three men burst through the door, demanded money from the couple, and ransacked the room. One of the assailants hit Howard in the face with a hand gun, then pointed the gun at Poole's head and demanded money. Howard and Poole denied having money in the room. Undeterred, one of the assailants flipped the mattress off the bed, while Poole was on top of the mattress, causing her to be pushed against a wall. The men found between $700 and $900 under the mattress. The assailants took the money, Howard's and Poole's drivers' licenses, and Poole's cell phone. Following the altercation, Howard and Poole were treated for various injuries that each had sustained during the attack. Initially, Howard was treated for broken bones in his face and numerous contusions and lacerations to his body. Prior to trial, Howard had to undergo facial reconstructive surgery. Poole sustained contusions and bruises in the attack, followed by soreness and severe psychological damage. Howard and Poole were under the continuing care of physicians and psychiatrists. No arrests were made in connection with the armed robbery and physical assaults.
¶ 3. Howard and Poole filed their joint complaint against the defendants on July 18, 2008, alleging: (1) that they were invitees of InTown; (2) that they were seriously injured because the defendants had failed to fulfill their joint, several, and collective duties to use reasonable care and to take adequate and reasonable security precautions or measures to protect invitees of InTown, including the plaintiffs, from foreseeable harm and danger, including the harm suffered by Plaintiffs; (3) that, before June 27, 2008, InTown knew or should have known that it had inadequate security, that strangers, trespassers and loiterers frequently came onto its property, that the wooden fence surrounding part of its property was in disrepair, that the locks on the guest room doors were not working properly, and that the property was not reasonably safe; (4) that InTown had failed to remedy or repair the unsafe conditions and inadequacies of the property; (5) that InTown had a duty to the plaintiffs to make sure that the facilities, including all common areas, as well as guest rooms, were secure, safe, and fit for their particular purposes, that reasonable security measures were provided and maintained, that the property, including the fences surrounding part of the property and the locks on all guest room doors, were properly maintained, and that general upkeep of the property was performed; (6) that InTown had specific control and
¶ 4. Trial commenced on September 21, 2009, and the jury returned a general verdict in favor of Howard and Poole on September 23, 2009.
¶ 5. Numerous Jackson police officers testified at trial regarding calls for service at InTown. One officer had been called to InTown Suites as many as thirty times to respond to "armed robberies, auto burglaries, car jackings, just auto thefts; different things of that nature . . . primarily major crimes." The officer had advised the manager of InTown that the crime problem on the property could be eliminated by hiring professional security.
¶ 6. A lieutenant with the Jackson Police Department testified that "InTown Suites. . . had a number of problems on their property. Specifically they've had robberies. They've had burglaries. Cars have been stolen. There's prostitution, drugs on the property; just anything you can think of." The lieutenant testified that he was "advised that [InTown] had a courtesy officer. He was not a security officer, nor a security guard. . . . [T]he difference is a courtesy officer, he was not armed and was not properly trained to handle any type situations that would come up. He was only to call the police . . . if he saw something there on the property criminal in nature." The lieutenant also testified that he had told the manager of InTown that off-duty officers "would be more than willing to come out there and work off duty after we got off work to patrol the property. . . ." The lieutenant further testified that he had instructed the manager that InTown should be informing its customers of the problems that had been occurring on the property, and that the manager had indicated that InTown would have no customers if such a warning were given.
¶ 7. Another officer testified that he was a part of the "delta strike force," which the Jackson Police Department had formed in an effort to deter crimes along the Interstate 55 corridor. He testified that InTown Suites was a target area that the delta strike force was to patrol. He explained that the delta strike force's duty was to "go through [InTown's] parking lot, make sure there was no cars broke into, no illegal happenings on the streets or on the property itself. Mostly we were there to try to answer calls and be quick as possible in responding to calls that may happen at InTown Suites or other locations." He
¶ 8. Charles Campbell, the property manager of InTown Suites in Jackson on the date that Howard and Poole were attacked in their room, testified that one of InTown's duties was "to ensure that customers were provided adequate protection from crime that would occur on the property." He also testified that he was in contact with his regional manager on a daily basis and that he often informed regional and corporate officials that there was a crime problem at the Jackson property. Campbell testified that he had asked his regional manager to provide security at the Jackson location of InTown Suites on more than one occasion, and that the regional manager always had told him that InTown had insufficient funds to hire armed security.
¶ 9. Several expert witnesses also were called to testify. Kenneth Goodrum, a commander with the Jackson Police Department, was accepted without objection as a plaintiffs' expert "in the area of security with emphasis in the area of premises." Commander Goodrum testified that he had reviewed "all the documentation and the evidence that was given to [him,] as well as the depositions and offense reports" in this case. Commander Goodrum had completed a crime history report of the Jackson location of InTown, and was able to determine that, in the two-and-a-half-year period prior to Howard and Poole's injuries, "eight armed robberies, 32 auto thefts, 55 auto burglaries, six hold-up alarms, 15 simple assaults . . . three armed robberies of businesses, four men with a gun, two vandalisms, 48 disturbances and 12 threats" had occurred on the property of InTown. Without objection, Commander Goodrum testified that the assault of Michael Howard and Shannon Poole "was preventable. And my opinion is that if they would have hired off-duty police officers or armed security guards to patrol that parking lot and patrol their property, it would have been able to be prevented."
¶ 10. Plaintiffs deposed David Groves, a regional director of operations for InTown. Groves testified that approximately twelve InTown properties have armed security on the property, and that the decision to provide armed security guards at a particular property is decided on a case-by-case basis. Groves said that the general manager would have to request that armed security be provided, and then the decision to provide security personnel would be up to InTown's corporate officials. Part of Groves's deposition was read into the record at trial. InTown objected, but the trial court reasoned that "it still is a part of that testimony which shows notice with reference—and it goes to the issue of foreseeability, which is an issue in this case. And I think it probably deals with the issue of security in its entirety. As such, I'm going to allow the testimony with reference to . . . Groves."
¶ 11. The plaintiffs offered an economist, who testified regarding Poole's claim for future loss of wages. The economist opined that Poole's future loss of income ranged from $574,209 to $1,922,589. InTown did not object at trial to the testimony or methodology of the economist. Dinesh Goel, M.D., a board-certified general surgeon and accepted expert in the fields of general surgery and family medicine, testified at trial. Dr. Goel had treated both Howard and Poole for their injuries sustained after being attacked at InTown.
¶ 12. Dr. Goel testified that, in addition to Howard's badly broken cheek bone and orbit bone, he had suffered a broken jaw, a head injury, and a bulging disk. Additionally, Howard had suffered post-traumatic stress disorder as a result of the attack at InTown. As a result of his injuries and post-traumatic stress disorder, Howard had headaches, nightmares, sleep loss, and exhibited symptoms of depression, for which Dr. Goel had referred Howard to a psychiatrist for treatment. Dr. Goel further testified that he did not "expect [Howard's symptoms] to get cured, but they're going to wax and [wane]. They're going to get better at times, they're going to get worse at times, but he's going to live with it."
¶ 13. Regarding Dr. Goel's future treatment of Howard, he testified that Howard would "need a follow-up on a monthly basis and even quarterly later on," and that the cost of that treatment would be approximately $3,000 to $4,000 per year, plus the cost of medications.
¶ 14. Dr. Goel testified that Poole had suffered head, back, and neck injuries as a result of being attacked at InTown on June 27, 2008. He said that he initially had treated her with pain medications, and later referred her to a psychiatrist for treatment of her post-traumatic stress disorder, headaches, nightmares, and sleep loss. Dr. Goel said that Poole would need to have medical follow-ups on a regular basis, and that the future cost of her medical care would be approximately $1,000 to $2,000 per year. Further, Dr. Goel said that her condition is "going to wax and [wane], but it's not going to go away. It's been more than a year she's been hurting and suffering with it. I think she's going to stay with it."
¶ 15. Krishan Gupta, M.D., a psychiatrist, treated Howard and Poole for post-traumatic stress disorder. Dr. Gupta testified that his initial diagnosis of Howard was "adjustment disorder and acute stress disorder. As time progresses, we can find the signs and symptoms of post traumatic stress disorder. And we gave a diagnosis of post traumatic stress disorder." Dr. Gupta also testified that Howard was "doing a little better, but still needs continuous psychotherapy and medication management." Dr. Gupta further testified that post-traumatic stress disorder "is a psychological scar in the brain. This will not go away. It's not a physical injury you can see like [Howard's] face was reconstructed, but psychological cannot be. So they're going to be there as long as [Howard] is living on this earth."
¶ 16. Dr. Gupta said that "in the initial evaluation [Poole] was very anxious, so I gave her a diagnosis of acute stress disorder. As the time progressed as we understand more about [Poole], we gave a diagnosis of post traumatic stress disorder later on." Dr. Gupta said that Poole had suffered from panic attacks, but that most of the panic attacks were from her post-traumatic stress disorder. Further, Dr. Gupta testified that Poole was "not making much progress. She needs more counseling, and she needs more intensive therapies which will help her to come out and function like [Howard] is doing right now. [Howard] is holding a job at this time. [Poole] is not able to do that at this time at all." He also said that Poole
¶ 17. Dr. Gupta testified that, over the lifetime of both Howard and Poole, the cost of each individual's psychiatric treatment would be, at a minimum, $500,000.
¶ 18. At the close of the plaintiffs' case-in-chief, InTown rested without presenting evidence. The jury returned a general verdict in the amount of $2,000,000 for Howard and $2,000,000 for Poole.
¶ 19. On appeal, InTown raises the following issues:
¶ 20. At the close of all of the evidence, InTown moved for a directed verdict on the issue of causation. InTown began its argument with the following statement: "I realize the plaintiffs have established a duty was owed, and that's admitted. But I believe the plaintiffs have failed to establish. . . that regardless of security that was present or regardless of any actions that were taken, the plaintiff failed to show that any additional security or any additional acts could have prevented the event from happening." The trial court denied InTown's motion for directed verdict. InTown filed a post-trial "Motion for Judgment Notwithstanding the Verdict, or in the alternative, Motion for a New Trial, or, in the alternative, Motion for a Remittitur and/or Motion to Amend the Verdict," arguing that "[t]he jury's verdict reflected a finding that the alleged inadequacy of security was the proximate cause of the Plaintiffs' [injuries]" because "the evidence presented at trial failed to establish that this alleged inadequate security was the sole cause of the subject incident." The trial court denied InTown's post-trial motion.
¶ 21. On appeal, InTown argues that Howard and Poole "failed to meet their burden to establish that the proximate cause of their assault was the failure of InTown to employ an armed, off-duty JPD officer to provide security at the Jackson property." InTown argues that the plaintiffs "were required to proffer sufficient evidence to establish that the failure of InTown to employ an armed, off-duty JPD officer was a substantial factor in bringing about their injuries, and had InTown employed an armed, off-duty JPD officer the harm would not have occurred." Further, InTown alleges that "[t]he only record evidence on the issue of whether InTown's failure to employ an armed, off-duty officer was the proximate cause of Plaintiffs' assault is the conclusory statement of Plaintiffs' proffered `expert' JPD Officer Kenneth Goodrum." InTown argues that the plaintiffs failed to meet that
¶ 22. "The standard of review for the denial of a motion for a judgment notwithstanding the verdict (JNOV) is de novo." United Services Auto. Ass'n (USAA) v. Lisanby, 47 So.3d 1172, 1176 (Miss.2010) (citing U.S. Fid. and Guar. Co. of Miss. v. Martin, 998 So.2d 956, 964 (Miss.2008)). "A motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a JNOV if there is substantial evidence to support the verdict." Adcock v. Miss. Transp. Comm'n, 981 So.2d 942, 948 (Miss.2008) (citing Johnson v. St. Dominics-Jackson Mem'l Hosp., 967 So.2d 20, 22 (Miss.2007)). "This Court will consider the evidence in the light most favorable to the appellee, giving the party the benefit of all favorable inference[s] that may be reasonably drawn from the evidence." Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364, 368 (Miss.2008) (quoting Ala. Great S. R.R. Co. v. Lee, 826 So.2d 1232, 1235 (Miss.2002)). "In essence, judgments as a matter of law present both the trial court and the appellate court with the same question—whether the evidence, as applied to the elements of a party's case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated." USAA, 47 So.3d at 1176 (quoting White v. Stewman, 932 So.2d 27, 32 (Miss.2006)). "[T]his Court applies the same standard of review as it applies when reviewing the denial of directed verdict or JNOV." Solanki v. Ervin, 21 So.3d 552, 557 (Miss.2009).
¶ 23. The substantial evidence submitted by the plaintiffs was more than legally sufficient, and included a stipulation that InTown's management and employees had been the victims of three armed robberies that had closely preceded these attacks.
¶ 24. InTown argues for the first time on appeal that the trial court erred in giving a jury instruction that provided that the jury could find against InTown if it found that InTown had failed "to warn Michael Keith Howard and Shannon Poole of the existence of a known dangerous condition." InTown argues that Jury Instruction Number 11 "improperly permitted the jury to find InTown liable if the jury agreed with Plaintiffs' novel theory and believed that InTown breached a duty to warn Plaintiffs of the generalized `atmosphere of violence' on and around the Jackson property."
¶ 25. This Court "has held that unless substantial rights are affected, issues not presented to the trial judge are procedurally barred from being raised for the first time on appeal." Ill. Cent. R.R. Co. v. Byrd, 44 So.3d 943, 948 (Miss.2010) (citing Dora v. State, 986 So.2d 917, 925 (Miss.2008)). InTown did not make a contemporaneous
¶ 26. InTown argues that the "trial court erred in admitting testimony regarding (a) the profitability of the Jackson property; (b) armed security provided by InTown at other locations across the South without requiring Plaintiffs to lay a proper foundation that the circumstances surrounding those other properties were similar to the circumstances surrounding the Jackson property; and (c) the alleged motive/reason why InTown did not employ an armed, off-duty JPD officer at the Jackson property."
¶ 27. "The standard of review regarding admission or exclusion of evidence is abuse of discretion. Where error involves the admission or exclusion of evidence, this Court `will not reverse unless the error adversely affects a substantial right of a party.'" Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)).
¶ 28. InTown argues that it was highly prejudicial for the trial court to allow the plaintiffs to adduce testimony regarding the profitability of InTown for the year preceding the armed robbery of Howard and Poole. However, InTown failed to make a contemporaneous objection to this line of questioning at trial.
¶ 29. Portions of the deposition of David Groves were read in the presence of the jury, over InTown's objection. The trial court allowed the evidence to be presented to the jury, reasoning that "it still is a part of that testimony which shows notice with reference—and it goes to the issue of foreseeability, which is an issue in this case. And I think it probably deals with the issue of security in its entirety. As such, I'm going to allow the testimony with reference to . . . Groves." Assuming, arguendo, that the admission of this evidence was in error, the remaining evidence of foreseeability and need for additional security was clearly established, and was
¶ 30. InTown argues that plaintiffs' counsel improperly argued that InTown's motive for not employing an armed security officer was because InTown did not want to provide the funding for such an officer. InTown argues for the first time on appeal that plaintiffs' counsel made inappropriate comments during opening arguments. InTown did not make a contemporaneous objection to plaintiffs' counsel's opening argument.
¶ 31. InTown also complains of the following questions by plaintiffs' counsel and Charlie Campbell's responses:
InTown failed to interpose a contemporaneous objection to that line of questioning. Because of its failure to make a contemporaneous objection to the opening statement or the questions on cross-examination, InTown waives the issue on appeal; InTown is procedurally barred from raising this issue. Hyundai, 53 So.3d at 755.
¶ 32. InTown argues that it was entitled to a comparative fault instruction because the jury could have apportioned the Plaintiffs "some fault for their personal injuries." InTown argues that Howard and Poole should have immediately given their money and possessions to the three assailants who had broken into their room, rather than insisting that they did not have money. InTown argues that the plaintiffs' injuries would have been less severe if they had done as the robbers had insisted.
¶ 34. Mississippi Code Section 11-7-15 provides that:
Miss.Code Ann. § 11-7-15 (Rev.2004). Moreover, our case law provides that "[e]vidence of the plaintiff's own negligence may operate to reduce the plaintiff's damages. Indeed, we have a number of cases where we have sensitively assessed a plaintiff's own negligence when he makes the charge that the jury's damage award is grossly insufficient." Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1162 (Miss. 1992). However, we have no case law that supports InTown's argument that the victims of this armed robbery had a duty to mitigate their damages by abiding by the robber's demands. The cases from other states cited by InTown in support of their argument are clearly distinguishable. To penalize a crime victim for his failure to cooperate with his assailant would constitute a bizarre and perverse misapplication of the doctrine of comparative fault. The trial court did not abuse its discretion in denying InTown's request for a comparative negligence instruction.
¶ 35. In its post-trial "Motion for Judgment Notwithstanding the Verdict, or in the alternative, Motion for a New Trial, or, in the alternative, Motion for a Remittitur and/or Motion to Amend the Verdict," InTown attacked the expert testimony used to calculate the plaintiffs' economic damages, although it had not objected to that testimony at trial. It further argued that "[t]he fact that these two [p]laintiffs were awarded the exact same amount [of damages] after presenting such differing testimony as to how they were affected by this incident, and that their alleged economic losses were significantly different should be overwhelming evidence of bias, passion or prejudice. As a result, the judgment should be reduced." InTown then argued that "Plaintiffs are capped in their recovery for non-economic damages, the judgment is excessive in light of the relevant testimony and Defendants respectfully move [the trial court] for a remittitur or a new trial on the issue of damages." Finally, InTown moved the trial court "for a remittitur or, in the alternative, to amend the judgment to properly reflect an amount in damages which is substantiated by the evidence in law, and to amend the judgment to comply with Mississippi statutory and case law." The trial court denied InTown's post-trial motion.
¶ 37. Finally, on appeal, InTown attacks the plaintiffs' experts' testimony and argues that "[g]iving [the plaintiffs] the benefit of the full $1,000,000 cap on noneconomic damages, the maximum amount of damages, based on the trial testimony, that could have been awarded to Howard is $1,692,400," and the maximum amount of damages "that could have been awarded to Poole is $1,853,800." InTown argues that the trial court erred in denying its remittitur, and that this Court should "order the trial court [to] reduce [the plaintiffs'] damage award. . . ."
¶ 38. Mississippi Code Section 11-1-60 provides, in pertinent part, that:
Miss.Code Ann. § 11-1-60(2)(b), (c) (Supp. 2010).
¶ 39. InTown argues that the jury returned a verdict in which it is unable to determine what amount was awarded for economic damages and what amount was awarded for noneconomic damages, and because the two types of damages were indistinguishable, the trial court "erred by failing to take sufficient steps to enable her to discharge her statutory duty to apply the cap on noneconomic damages and reduce the jury verdict in accordance with Miss.Code § 11-1-60(2)(b)." InTown further argues that "[w]hile in some cases it may be possible for the appellate court to review the trial testimony and make a determination regarding the amount of economic and non-economic damages awarded by the jury, in this case, the jury awarded each Plaintiff exactly $2,000,000 in damages based on testimony that provided a range of possible amounts for each element of damages calculation, as opposed to exact amounts for each element of the damage calculation." InTown alleges that "it is not possible for this Court to determine with any degree of accuracy how much the jury awarded each Plaintiff for economic damages and non-economic damages thus enabling this Court to apply the statutory cap on non-economic damages," and asserts that "it should not be deprived of its right to have the statutory cap on non-economic damages applied to Plaintiff[s]' damage awards due to the error of the trial judge."
¶ 41. Jury Instruction Number 13 provided that:
¶ 42. Jury Instruction Number 14 provided that:
¶ 43. Jury Instruction Number 18 provided that:
¶ 44. InTown did not object to these jury instructions. Because it did not object to the form of the verdict jury instruction at trial, InTown is procedurally barred from doing so on appeal. See Hyundai, 53 So.3d at 755. Additionally, because InTown did not ask the trial court to give a jury instruction that separated economic and noneconomic damages, it cannot complain on appeal that such an instruction was not given. See King v. State, 857 So.2d 702, 720 (Miss.2003) (Defendant is "procedurally barred from asserting the absence of an individualized instruction," and "a trial judge will not be put in error on a matter which was not presented to him for his decision."). This Court does not engage in speculation or conjecture, and it would be nothing more than supposition for us to try to guess what amount the jury awarded in economic damages and what amount it awarded in noneconomic damages.
¶ 45. Alternatively, InTown argues that the trial court erred in denying its motion for a remittitur. InTown argues that Howard's damages should be remitted from $2,000,000 to $1,692,400, and Poole's damages should be remitted from $2,000,000 to $1,853,800. InTown argues that Howard's economic damages ranged from $651,800 to $692,400, which would make his damages, at most, $1,692,400, including noneconomic damages, and that Poole's economic damages ranged from $813,400 to $853,800, which would make her damages, at most, $1,853,800.
¶ 46. "The standard of review for trial court decisions regarding a remittitur is the abuse of discretion standard." U.S. Fid. and Guar. Co. of Miss., 998 So.2d at 969. However, this Court has held that it "has the responsibility to see that such judicial discretion is exercised soundly and, if not, to reverse." Id. (quoting Holmes County Bank & Trust Co. v. Staple Cotton Coop. Assoc., 495 So.2d 447, 451 (Miss.1986)). The standard for granting an additur or remittitur is whether or not "the court finds that the jury was influenced by bias, prejudice, or passion or. . . if the damages were contrary to the overwhelming weight of credible evidence." Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 944 (Miss.1992).
¶ 47. InTown does not cite any law supporting its contention that it is entitled to a remittitur. See Bowen v. State, 607 So.2d 1159, 1161 (Miss.1992) ("An argument unsupported by competent authority will not be considered on appeal"); M.R.A.P. 28(a)(6) ("The argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on."). Moreover, in light of the general verdict and InTown's failure to request a special verdict or special interrogatories, we cannot conclude that the trial judge abused her discretion in denying the remittitur.
¶ 48. Accordingly, the judgment of the Circuit Court of the First Judicial District of Hinds County is affirmed.
¶ 49.
