author: GREMILLION, Judge.

text:
    Arlene CHAMBERS v. VILLAGE OF MOREAUVILLE.
    No. 10-1368.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.

      Darrel D. Ryland, Wesley K. Elmer, Attorneys at Law, Marksville, LA, for Plaintiff/Appellee Arlene Chambers.
    Karen Day White, Louisiana Municipal Association, Baton Rouge, LA, for Defendant/Appellant Village of Moreauville.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

bThe Village of Moreauville, Louisiana, appeals a judgment in favor of Arlene Chambers finding it 100 percent at fault for Chambers’ April 19, 2008 fall on a sidewalk in the Village’s care, custody, and control. For the reasons that follow, we affirm in part, as amended, and reverse in part.

FACTS

On April 19, 2008, Arlene Chambers and a friend, Annette Bowman, were returning from the Simpson Baptist Church on Tas-sin Street, where they had attended the funeral of a co-worker, to Chambers’ home. The two ladies had ridden to the church with Bowman’s husband, but were walking to Chambers’ home, where Bowman’s car was parked. Prior to this date, Chambers had never walked along this stretch of Tassin Street before. Chambers is a resident of Moreauville, Louisiana, where she had lived for approximately four years. The church is about seven-tenths of a mile from Chambers’ home. As she was walking, Chambers tripped on a section of sidewalk and fell.

The particular section of sidewalk at which Chambers fell abuts a driveway. Two sections had become, or were installed, depressed in relation to the rest of the sidewalk. As a result, those two sections sit a few inches lower than the remaining sidewalk. They also tilt slightly toward the street. At the point where this depression ends, the sidewalk abruptly rises again, creating an approximately one-and-one-quarter to one-and-one-half inch immediate elevation change in addition to the elevation change created by the depression. Grass grows in the crack beneath this ^elevation change but does not extend across the width of the sidewalk.

Chambers and Bowman were walking abreast on the Tassin Street sidewalk. The weather was fair and the sky sunny. Chambers noted that the sidewalk was uneven, but failed to notice this immediate elevation change that Chambers described as a “ledge.” The toe of Chambers’ boot caught on this ledge, causing her to fall. She sustained a comminuted fracture of the radius of her right arm.

Because Bowman had to go to Baton Rouge to visit her hospitalized brother, Chambers called another friend, who transported Chambers to Avoyelles Hospital in Marksville, Louisiana. Dr. Paul Fenn, an orthopedic surgeon, placed Chambers in a splint and informed her that her wrist would require surgery. He informed her that he could perform the surgery, or he could refer her to Dr. Diego Miranda, an orthopedic surgeon specializing in hand and wrist injuries. Chambers preferred to see Dr. Miranda.

Chambers’ surgery was performed at Rapides Regional Medical Center in Alexandria, Louisiana, on April 28, 2008. Dr. Miranda performed an open reduction of the fracture and installed two plates to affix the fracture. The surgery was performed with no adverse reactions on Chambers’ part. Dr. Miranda saw Chambers for a few follow-up visits, then referred her to Dr. Douglas Gamburg, an orthopedic surgeon within the same clinic, because Dr. Miranda was relocating his practice.

Following surgery, Chambers was referred for physical therapy with Brenda Wood of The Therapy Center of Avoyelles in Marksville. The physical therapy records demonstrate steady progress on Chamber’s part. According to Wood’s records, she felt that Chambers had achieved the maximum benefits from therapy, and recommended that she be discharged from therapy on August 15, 2008.

| gin October 2008, Chambers returned to Dr. Gamburg complaining of pain and limited range of motion in her right shoulder. At that time, Chambers related this shoulder pain to her fall in April. Dr. Gamburg referred Chambers for an MRI of the shoulder. That MRI, taken on October 22, 2008, demonstrated some degenerative changes in the shoulder but no evidence of ■any rotator cuff tear. Dr. Gamburg returned Chambers to physical therapy. Chambers resumed physical therapy on October 28. By November 18, she had achieved all short and long term goals of therapy and appeared ready for discharge to home exercises.

In March 2009, Chambers experienced more problems with her shoulder and returned to Dr. Gamburg. Dr. Gamburg returned Chambers to physical therapy. Again, after about a month, Chambers’ shoulder had progressed to the point that it was felt that she could adequately control her condition through home exercises and she was discharged from therapy.

Chambers returned to Dr. Gamburg in October 2009 with complaints in both the wrist and shoulder. Dr. Gamburg gave Chambers’ shoulder an injection of Depo-Medrol and Marcaine. He also ordered that she undergo nerve conduction studies of the right median and ulnar nerves, which demonstrated no evidence of carpal tunnel syndrome. By February 2010, Chambers was beginning to experience pain in her left shoulder, which Dr. Gam-burg felt were related to the fact that her right shoulder problems were restricting her movements. Dr. Gamburg diagnosed this condition as adhesive capsulitis. He also determined that Chambers had developed inflammatory palmar fasciitis in her right hand. Dr. Gamburg ordered Chambers to undergo a functional capacity evaluation (FCE) that was performed by Alexandria physical therapist, Eugene Noel. The FCE. demonstrated that Chambers had limitations in both 14shoulders and her right wrist. However, the limitations in Chambers’ left shoulder were, according to Mr. Noel, considerable. Her right wrist demonstrated limited motion but her hand strength was above normal. Her frequent lifting capacity was rated as “medium,” as defined by the U.S. Department of Labor physical demand limit. Control tests built into the test showed that Chambers was exerting maximal effort on almost every task.

Dr. Gamburg noted in his testimony that he could find no notation in the records from Drs. Fenn or Miranda to corroborate Chambers’ claim that her right shoulder had caused her problems from the date of the accident until he first saw- her. However, he testified that, assuming her complaints had been present from that date, he would relate her right shoulder complaints to the April 2008 fall. Although he found no evidence of a trauma to the right shoulder, Dr. Gamburg felt that the prolonged immobility of the shoulder necessitated by the right wrist injury caused Chambers to develop problems with the shoulder. Dr. Gamburg testified that Chambers will always' have permanent stiffness in her wrist, and will have occasional pain in her shoulder that may necessitate physical therapy in the future. He did not foresee any future treatment for Chambers’ wrist, and her shoulder can be treated with anti-inflammatory medication, probably Ultram.

Chambers filed suit against the Village in September 2009, and a bench trial was conducted oii August 4, 2010. At trial, plaintiff testified, and called Linda Neland, former Human Resources Manager of the Avoyelles Correctional Center; Vickie Dufour, a friend who testified to the extent of Chambers’ difficulties from her injuries; and Philip Beard, a civil engineer who testified as an expert. She introduced the depositions of Dr. Gamburg, Mr. Noel, and Dr. G. Randolph Rice, an economist. 15Chambers also introduced a report from Dr. Richard Galloway, a vocational rehabilitation expert.

The trial court took the matter under advisement and gave oral reasons in support of its ruling in favor of Chambers on August 11, 2010, during a conference call held on the record with counsel. The trial court found the Village 100 percent at fault and awarded Chambers the following damages: $200,000.00 for past and future pain and suffering; $25,000.00 in hedonic damages; $54,148.00 in future wage loss; $46,616.17 in past medical expenses; $10,000.00 in future medical expenses; and $3,617.34 in past wage loss. The Village was also ordered to pay all court costs, including Chambers’ expert witness fees. A judgment comporting with the trial court’s oral reasons was signed and the Village now appeals.

ASSIGNMENTS OF ERROR

The Village urges that the trial court committed the following errors:

I. The trial court erred in finding that the elevation differential in the sidewalk presented an unreasonable risk of harm in accordance with La.R.S. 9:2800 and Louisiana jurisprudence.
II. The trial court erred in finding that the Village of Moreauville is 100 percent liable for Ms. Chambers’ tumble when the uncontradicted facts established at trial clearly show that plaintiff must bear a percentage of fault, if not all fault, for the accident and the ensuing damages.
III. The trial court erred in awarding plaintiff money for future lost wages when there is absolutely no documentary or testimonial evidence to support such an award.
IV. The trial court erred in awarding plaintiff money for future medical expenses when there is absolutely no documentary or testimonial evidence to support such an award.
V. The trial court abused its discretion in awarding plaintiff $200,000 in general damages /pain and suffering for her injury.
|fiVL The trial court abused its discretion in awarding plaintiff $25,000 as an award for loss of enjoyment of life.

ANALYSIS

Liability of the Village

Liability for defects in premises is generally founded upon Louisiana Civil Code articles 2317, 2317.1, and 2322. When a public entity is involved, that liability is also governed by La.R.S. 9:2800, which provides that when liability is premised upon La.Civ.Code art. 2317, the public entity must have either actual or constructive knowledge of the defect and had a reasonable opportunity to remedy it. A “defect” for purposes of article 2317 can be described as any “risk-creating harm.” Loescher v. Parr, 324 So.2d 441, 446 (La.1975). Only when risk-creating harm poses an unreasonable risk does liability attach. Entrevia v. Hood, 427 So.2d 1146 (La.1983); Celestine v. Union Oil of Cal., 94-1868 (La.4/10/95), 652 So.2d 1299.

Cases involving litigation against municipalities over sidewalk defects are legion. The courts are supplied with ample guidance in determining a municipality’s liability for sidewalk defects. The Louisiana Supreme Court long ago stated:

[Tjhere have evolved certain legal principles which are to be considered in determining the instant controversy. Thus, a municipality is not an insurer of the safety of pedestrians. It must keep the sidewalks reasonably safe, but the maintaining of them in perfect condition is not necessary. To render it liable in damages the defect complained of must be dangerous or calculated to cause injury. Defects in sidewalks that are not in the nature of traps, or from which danger cannot reasonably be anticipated, provide no actionable negligence. Such ways of passage are intended for public use, of course, and a pedestrian is entitled to assume that they are not dangerous. Further, he is not required to constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle. However, he cannot be completely oblivious of its condition; he must exercise ordinary care when using it, having in mind the well recognized fact that throughout every city of any size in this state there exist irregularities in the walkways brought about by natural causes such as rains, expansion, soil erosion and tree roots.

White v. City of Alexandria, 216 La. 308, 314-15, 43 So.2d 618, 620 (1949). The determination of whether a defect creates an unreasonable risk of harm involves weighing the social value and utility of the thing against the potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. As the supreme court has also stated:

There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. To assist the trier-of-facts, we note that many factors are to be considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved.

Dupree v. City of New Orleans, 99-3651, p. 14 (La.8/31/00), 765 So.2d 1002,1012.

Because a pedestrian is obligated to observe his path mindful that every sidewalk contains irregularities, per White, 43 So.2d 618, a condition that is obvious and easily avoidable cannot be considered to present an unreasonable risk of harm. Alexander v. City of Baton Rouge, 98-1293 (La.App. 1 Cir. 6/25/99), 739 So.2d 262, writ denied, 99-2205 (La.11/5/99), 750 So.2d 188. See also, Godwin v. City of Alexandria, 07-1576 (La.App. 3 Cir.5/28/08), 2008 WL 2192800, an unpublished opinion.

Chambers’ expert, Philip Beard, was asked about whether the condition of the sidewalk was obvious. He stated, “There is probably twenty-five to thirty areas that she would have had to negotiate to ever get to this one. Those things tend to low (sic) you to sleep and will bite you when you let your guard down. I think that is exactly what happened here.” However, Beard also admitted that his examination of the site between the church and the area of the accident revealed at least twelve areas that were in need of repair. Indeed, the sidewalk is not continuous as demonstrated by the photographs in evidence, nor does it follow a straight course. There are numerous ^deviations and some appear greater than that at the site of the accident.

The evidence demonstrates that, other than Chambers, no person has complained of the condition of the sidewalk at this location. However, the location of the accident was at the edge of the home of Moreauville’s mayor, Lionel Bordelon, who testified that the condition had changed very little since 1968 when he moved into the house. According to the mayor, at least 25 pedestrians a day pass this area. Chambers’ is the first incident of its kind at this location.

The trial court’s finding that this defect presented an unreasonable risk of harm is reviewed under the manifest error standard. Baker v. State Dep’t. of Health and Human Resources, 05-808 (La.App. 3 Cir.2/1/06), 921 So.2d 1209. The supreme court has instructed us that such findings may be reversed only when we find that a reasonable basis does not exist in the record for the finding and that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Even if we are convinced that had we been siting as the triers of fact we would have decided the matter differently, we may not reverse if the fact-finder’s conclusions are reasonable in light of the record as a whole. Stobart v. State through Dep’t. of Transp. and Dev., 617 So.2d 880 (La.1993); Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

We conclude that a reasonable basis for the trial court’s conclusion that this condition represents an unreasonable risk is supported by the record. The deviation in height was significant. The fact that it occurred immediately after Chambers had to negotiate a downward slope followed by an upward slope made the deviation more difficult to negotiate. The finding that this deviation represented an unreasonable risk of harm is not manifestly erroneous.

19Comparative fault

' The finding that the Village was 100 percent at fault is also reviewed under the manifest error standard. Layssard v. State, Dep’t. of Public Safety and Gorr., 07-78 (La.App. 3 Cir.8/8/07), 963 So.2d 1053, writ denied, 07-1821 (La.11/9/07), 967 So.2d 511. The allocation of fault is not an exact science but is the search for an acceptable range that could reasonably be assessed to each party. Id. Thus, if the court of appeal finds that the trial court erred, the percentages allocated by the trial court can only be adjusted to reflect the highest percentage assessed the Village and the lowest percentage that could be assessed Chambers. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607.

The record in this matter does not reasonably support a finding that Chambers is free from fault. Chambers’ own expert determined that Chambers had probably been lulled into inattention. Chambers professed awareness that sidewalks in the Village were prone to imperfections. She was also aware that the sidewalk dipped or sagged significantly in that area and canted toward the street. Had Chambers looked down as she negotiated this depression, she surely should have seen the tufts of grass growing in the crack at the base of the “ledge.” She testified that she looked down to negotiate the depression, but she and Bowman were talking as they walked, so her attention was diverted.

The trial court essentially ignored these factors and the duty Chambers owed herself to “exercise ordinary care when using [the sidewalk], having in mind the well recognized fact that throughout every city of any size in this state there exist irregularities in the walkways brought about by natural causes such as rains, expansion, soil erosion and tree roots.” White, 216 La. at 315, 43 So.2d at 620. Imlnstead, the trial court focused almost exclusively on the fact that the Village had not repaired the defect because of the cost, the amount of which was very much disputed.

We find that the highest amount the trial court could have assessed the Village is 90 percent. Conversely, the lowest amount it could have reasonably assessed Chambers is 10 percent. The judgment is amended to reflect an allocation of fault in these amounts.

Award of future wage loss

At the time of this accident, Chambers was employed full-time at the Avoyelles Correctional Center as a corrections sergeant. She is still employed there. The facility is a correctional center housing male offenders. Chambers is required to directly interact with the male offenders at the facility and to intervene personally if an altercation erupts. The former Human Resources Manager for the center, Linda Neland, agreed that Chambers was “at high risk for termination.” However, this high risk for termination was based upon the fact that the state corrections facilities are facing budget constriction and the possibility of privatization. If Chambers is unable to perform her job tasks — and the testimony demonstrates that as of trial she was performing adequately — and if budget constriction or privatization force a change in circumstances, her job might be in jeopardy. Juxtaposed to this speculation is the recorded fact that since the accident occurred, Chambers has received a merit pay increase.

Chambers introduced the report of Dr. Richard H. Galloway, an expert in vocational rehabilitation. Dr. Galloway opined that Chambers’ job at the center is classified as medium duty. The FCE demonstrated that Chambers was capable of medium duty work. Dr. Galloway did not opine regarding the probability that 11¶ Chambers would be unable to perform her responsibilities, but did opine that her upper extremity limitations, coupled with her academic limitations, would hamper Chambers’ ability to earn her current wages should she enter the employment market. We also note that since this accident, Chambers has received a promotion.

A plaintiff claiming a loss of future earnings must prove that loss by a preponderance of the evidence. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971). A finding that a plaintiff is entitled to damages for loss of future earnings is reviewed under the manifest error standard. Ryan v. Zurich American Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214. Such an award may not be based upon speculation, probabilities, or conjecture. We have long held that such an award is susceptible of mathematical calculation and is thus not afforded the deference reserved for general damage awards. Ammons v. St. Paul Fire & Marine Ins. Co., 525 So.2d 60, unit denied, 525 So.2d 1045 (1988).

The trial court heard the testimony of Dr. G. Randolph Rice, an economist, on his valuation of Chambers’ loss of future earnings. Dr. Rice testified that Chambers was 61 years old, and would thus have a work life expectancy of 4.18 years from the date of trial. She earns $31,838.20 per year at the Avoyelles Correctional Center. Assuming 2.5 percent annual raises and after applying a three-percent discount rate to the annual salary for the 4.18 years, Chambers had a loss of future earnings from that employment of $131,419.00. Chambers also held a part-time job with the Lucky Rose Casino, a video gaming establishment in Simmesport, Louisiana. That job paid Chambers $7.50 per hour. Dr. Rice opined a loss of future earnings for this employment of $31,889.00. These figures, though, represent what Chambers would lose if she were unable to work after the trial date. If Chambers lost her job at the 112correctional center on the date of trial and was able to procure employment at only $9.00 per hour, her loss would total $86,037.00. Dr. Rice opined that, had Chambers voluntarily terminated her employment with the Lucky Rose, then hypothetically lost her job with the correctional center, her loss of future earnings, assuming re-employment at $9.00 per hour, would be $54,148.00. This was the amount the trial court awarded.

The difficulty presented by the award here is that the record is devoid of evidence that Chambers more probably than not would lose her job with the center due to her injuries. Indeed, she received a merit promotion and pay raise after the accident. She missed relatively little work considering the complexity and severity of her injury. An award of loss of future earnings in this instance is simply too speculative and is manifestly erroneous.

Future medical expenses

Dr. Gamburg addressed Chambers’ need for future medical treatment. He opined that Chambers was probably going to have problems with her right shoulder in the future. She also will be prone to develop arthritis in her right wrist. However, he felt these could be controlled with anti-inflammatory medication such as Ultram. He felt that Chambers’ worst-case scenario would be the development of intractable pain in the wrist, which would necessitate a fusion. He characterized this as only a possibility. He did not feel that Chambers would be in need of future diagnostic testing such as x-rays. However, should her shoulder problems recur, Chambers would require physical therapy as she had in the past. Other than Ultram and physical therapy, Dr. Gamburg foresaw no other future medical treatment Chambers might require.

113Between her first complaint of shoulder pain in October 2008 and trial in August 2010, Chambers underwent three separate courses of physical therapy for her right shoulder.

The Village complains of the trial court’s award of future medical expenses on the basis that the evidence does not support such an award. If a plaintiff proves the necessity of future medical treatment and the reviewing court “can examine the record and determine from past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required,” an award of future medical expenses should not be rejected. Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La.1992).

Chambers demonstrated through the course of these events that when medical treatment is warranted, she seeks that treatment. Dr. Gamburg testified that Chambers may require future medical treatment in the form of prescription anti-inflammatory agents and physical therapy. The trial court felt Chambers had established the need for future medical care. We find no manifest error in this finding.

Chambers established her past medical expenses through the introduction of her bills. Dr. Gamburg charged Chambers between $75.00 and $162.00 per visit. Chambers saw him four times in 2009 for a total of $462.00. The Therapy Center of Avo-yelles charged Chambers $2,125.00 for the one course of twelve treatments it rendered her in 2009. Based upon the history of Chambers’ treatment and the costs associated therewith, we cannot conclude that the $10,000.00 in future medical expenses awarded by the trial court does not represent the minimum amount on which reasonable minds could agree. The trial court’s award of future medical expenses to be placed into a reversionary trust is affirmed.

_[i4General and hedonic damages

The Village complains that the general damages and the hedonic damages (loss of enjoyment of life) were abusively high. Before this court can disturb an award made by the trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Wattigny v. Breaux, 488 So.2d 419 (La. App. 3 Cir.1986); Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). In reviewing an award of damages to determine whether it is inadequate or excessive, the appellate court must first look to the individual circumstances of the case before it. Broussard v. Peltier, 479 So.2d 679 (La.App. 3 Cir.1985). Only after an analysis of the facts reveals an abuse of discretion can the appellate court disturb the award, and then only to raise inadequate awards to the lowest amount the trial court could have reasonably awarded, or lower excessive awards to the highest amount the trial court could have reasonably awarded. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco, 341 So.2d 332; Clark v. State Farm Ins. Co., 520 So.2d 860 (La.App. 3 Cir.1987); Freeman v. Harold Dickey Transport, Inc., 467 So.2d 194 (La.App. 3 Cir.1985).

A trial court has abused its discretion when an articulated analysis of the facts demonstrates that the award is clearly beyond the amount a reasonable trier of fact could assess. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). A review of jurisprudence in similar situations is only useful once it has been determined that the trial court abused its vast discretion. Id. In the present matter, Chambers sustained a comminuted fracture of the wrist that necessitated the surgical installation of two plates, which are held in place by ten screws. These plates will not be removed. As a result of the injury, | lsChambers had a 22 percent impairment of her right arm according to the testing in the FCE. She had a 13 percent whole-body impairment based on that same testing. Not only did Chambers sustain the right wrist injury, but also injured her right shoulder, which necessitated treatment on three separate occasions over the course of many months. Chambers was forced to immobilize her right arm, which resulted in the impairment of her left shoulder as well.

Based upon these facts, we are unable to conclude that an award of $200,000.00 is clearly beyond what a reasonable trier of fact could assess. We affirm that award.

It is well settled that hedonic damages constitute a compensable element of general damages distinct from pain and suffering. McGee v. A C And S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770. “Loss of enjoyment of life ... refers to detrimental alterations of the person’s life or lifestyle or the person’s inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury.” Id. at 775. The testimony demonstrated that following the accident, Chambers’ activities outside her employment were diminished to an appreciable degree. Before the accident, Chambers enjoyed yard work. Her friend, Vickie Dufour, testified that since the accident, the beauty of Chambers’ yard has degraded. Chambers no longer engages in canning and preserving fruit and vegetables as she formerly did because of her wrist limitations. Chambers used to play pokeno with Dufour and others, but finds that difficult because she lacks the dexterity required to shuffle and deal the cards. Also, Chambers, Dufour, and some friends would gamble at the casino. Because of her wrist and shoulder pain, Chambers has difficulty engaging in that activity.

|lfiOn the other hand, surveillance video captured by an investigator, Rodney Per-ro, does demonstrate Chambers engaged in many activities of daily living that involve her right wrist and arm, including screwing shut the gas cap on her car, lifting items, and driving her ear.

Taken as a whole, the record supports an award of $25,000.00 for the hedonic component of Chambers’ general damages. While the award is somewhat high, it is not so high that we could conclude that it is beyond what a reasonable trier of fact could assess.

CONCLUSION

The trial court’s determination that the sidewalk defect represented an unreasonable risk of harm is subject to a manifest error standard of review. The same standard applies to the trial court’s determination that Chambers was without fault in the accident. We find no manifest error in the finding that the sidewalk represented an unreasonable risk of harm. However, we do find manifest error in its determination that the Village was 100 percent at fault, and amend the judgment to assess the Village with 90 percent fault and Chambers with 10 percent fault.

The amount of awards of future medical expenses, loss of future earnings, and general damages, including hedonic damages, are reviewed to determine whether the trial court abused its discretion. We find the trial court did not abuse its discretion in awarding Chambers future medical expenses or in the amount it awarded. Nor do we find an abuse of the trial court’s discretion in its award of any component of general damages. The trial court did manifestly err in awarding Chambers an amount for loss of future earnings, as we find that she failed to prove any loss. That portion of the judgment is reversed.

|17A11 costs of this appeal, in the amount of $132.50, are taxed to Defendant/Appellant, Village of Moreauville.

AFFIRMED IN PART AS AMENDED, REVERSED IN PART.

      . It is unclear whether the depression of these two sections was intentional. Between the street and the sidewalk a drain has been installed. The driveway at which the two sections are located has been extended and is similarly depressed, as though to shunt effluent toward the drain.


source: Caselaw Access Project

author: CARLSON, Presiding Justice, KITCHENS, Justice, CHANDLER, Justice,

license: Public Domain

text:
    Lord Marie RUTLAND v. STATE of Mississippi.
    No. 2008-CT-01544-SCT.
    Supreme Court of Mississippi.
    March 17, 2011.
    Rehearing Denied May 12, 2011.

      William Andy Sumrall, Thomas P. Welch, Jr., Jackson, attorneys for appellant.
    Office of The Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court:

¶ 1. Loni Marie Rutland was convicted of felony child abuse in a jury trial in the Circuit Court of Franklin County. Rut-land was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with ten years suspended and ten years to serve. The trial court denied Rutland’s post-trial motions, and she appealed her conviction. The Court of Appeals affirmed Rutland’s conviction and sentence. Rutland filed a petition for writ of certiorari with this Court, and we granted the petition. Having now considered the issues before us, we affirm the Court of Appeals’ judgment.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. While in Rutland’s care, Rutland’s seventeen-month-old daughter, A.T., suffered several injuries, including a fractured skull and a broken leg. Rutland and A.T. lived with Rutland’s sister, but they also stayed two-to-three nights a week with Rutland’s boyfriend, Andrew Jones, who lived with his parents in Franklin County.

¶ 3. According to Rutland and Jones, on August 1, 2006, A.T. fell off a three-foot plastic slide and landed on her head. Later that night, Rutland noticed bruising under A.T.’s eyes. She took A.T. to a local clinic the next morning. A.T. was diagnosed with a sinus infection and prescribed antihistamine. Rutland testified that when they returned home, A.T. was disoriented from the medicine, tripped over a puppy, and struck her head on an end table. Rutland and Jones took A.T. to the hospital, where A.T. saw Dr. Kevin Hubbard. A CT scan was taken of A.T.’s head. Rutland and Jones testified that they were told the CT scan results were blurry, but from what the doctor could tell, the results were normal. Dr. Hubbard instructed Rutland to give A.T. Tylenol for pain and to follow up with her doctor the next day. Rutland testified that she did not read the instructions on the discharge papers and did not go to a follow-up appointment with her doctor.

¶ 4. On August 27, 2006, A.T. was again taken to the hospital after she woke up crying and could not walk on her left leg. Rutland testified she had noticed the day before that A.T.’s left ankle was swollen. Rutland attempted to treat the swelling at home with ice packs. An X-ray showed three breaks in A.T.’s left leg and dislocation of her left-ankle joint. A.T. was seen again by Dr. Hubbard. Rutland explained the breaks by telling Dr. Hubbard that A.T. would sometimes put her legs through the slats in her crib. Rutland also testified that A.T. had fallen several times while running in the yard at the house of Rutland’s sister and that A.T. possibly had injured her leg then. Dr. Hubbard inquired about a large bruise on A.T.’s forehead. Rutland explained that A.T. would sometimes hit her head against the crib. Rutland also stated that A.T. had fallen into the side of an end table.

¶ 5. Unsatisfied with Rutland’s explanations of the injuries, Dr. Hubbard requested a consultation with social services. Rutland became defensive when questioned by social workers and told them that she took care of her child “twenty-four/seven” and that she did not injure A.T.

¶ 6. After the consultation, A.T. was taken to the University of Mississippi Medical Center (UMMC), where Dr. Kevin Keaton performed a full-body CT scan. The scan revealed fractures on both sides of A.T.’s skull in addition to the fractures to her left leg and the dislocation of her ankle. Surgery was performed on her leg and ankle the next morning. It was determined that the fractures had occurred recently. The Mississippi Department of Human Services sent a sheriffs deputy to inspect Rutland’s home. Photographs were taken of the end table and crib. The sides of the crib where A.T. slept were lined with blankets and pillows.

¶ 7. Rutland was indicted on two counts of felony child abuse. Count I addressed the facial and head injuries, and Count II addressed the injury to A.T.’s leg. This case ultimately went to trial before a jury in the Circuit Court of Franklin County, Judge Forrest A. Johnson, Jr., presiding. At the close of the State’s case-in-chief, Judge Johnson denied Rutland’s motion for a directed verdict; however, at the close of Rutland’s case-in-chief, Judge Johnson found that insufficient evidence had been presented regarding the cause of A.T’s facial and head injuries and therefore granted a directed verdict in favor of Rutland as to Count I. Judge Johnson denied Rutland’s motion for a directed verdict as to Count II, and the jury subsequently found Rutland guilty of felonious child abuse as charged in Count II.

¶ 8. During deliberations, the jury sent a note to the trial judge with the following question: “Is negligence the same thing as abuse?” The trial court responded by sending a handwritten note to the jury that it “... must rely on the Court’s instructions on the law already given to you. Please continue your deliberations.” The jury had received instructions on the elements of felony child abuse and the term “serious bodily harm.” After receiving the trial court’s response, the jury continued deliberating for approximately half an hour and then returned a guilty verdict.

¶ 9. Some time after the jury’s verdict, Rutland’s boyfriend, Andrew Jones, while at a local gas station, saw an individual who had served as a juror in Rutland’s trial. The juror told Jones that he and another juror had been confused about the definition of “neglect,” so they had looked up the definition and had determined that “abuse” and “neglect” meant the same thing. According to Jones, this individual told him that the two jurors then had determined that Rutland was guilty of child abuse. After Jones became aware of this information, he told Rutland’s friend, Bridget Thompson, who subsequently called Rutland’s attorney and informed him of the juror’s purported statement.

¶ 10. Rutland filed a Motion for Judgment Notwithstanding the Verdict (JNOV), Or in the Alternative, for a New Trial, claiming, inter alia, that the jurors had failed to follow the jury instructions given by the trial court, because certain jurors had used dictionary definitions during their deliberations; therefore, according to Rutland, at the very least, a new trial was warranted in the interests of justice. The State conceded that “one of the jurors did look up the definitions of the words ‘neglect’ and ‘abuse’ and brought these definitions into the jury room;” however, according to the State, Rutland was not prejudiced by the misconduct. As to this issue, the trial court found that Rut-land was not prejudiced by the juror’s misconduct. In the end, the trial court entered an order thoroughly addressing the issues raised by Rutland in her motion for JNOV and motion for a new trial, and denied these post-trial motions.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 11. Before the Court of Appeals, Rut-land presented the following issues: (1) the trial court erred in denying her motion for judgment notwithstanding the verdict; (2) the verdict was against the overwhelming weight of the evidence; and (3) the trial court erred when it failed to grant a new trial due to juror misconduct. Rutland, 60 So.3d at 188, ¶ 2. After thoroughly discussing the issues, the Court of Appeals found no error and affirmed Rutland’s conviction and sentence. Id.

DISCUSSION

¶ 12. In Rutland’s petition for writ of certiorari, she argues the following two issues: (1) the Court of Appeals erred in affirming the trial court’s denial of judgment notwithstanding the verdict because an essential element of the crime of felony child abuse was not proven; and (2) the Court of Appeals erred in finding that a juror’s act of misconduct was not prejudicial.

¶ 13. Even though Rutland submits two issues for us to consider today, under Mississippi Rule of Appellate Procedure 17(h), we have the authority to limit the question for review upon our grant of certiorari. Walton v. State, 998 So.2d 971, 975 (Miss.2008). With this in mind, although we will address briefly Rutland’s first issue, our main focus today will be on the second issue. Likewise, we restate the issues for the sake of today’s discussion.

I. WHETHER THE TRIAL COURT ERRED IN DENYING RUT-LAND’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR A NEW TRIAL.

¶ 14. Like the defendant in Bush v. State, 895 So.2d 836, 843 (Miss.2005), Rut-land, in her petition for writ of certiorari, combines her arguments regarding the legal sufficiency of the evidence and the overwhelming weight of the evidence. As set out in Issue Number 1 in her petition for writ of certiorari, Rutland titles this issue “Denial of JNOV-Essential Element Not Proven.” Rutland then states, inter alia:

The COA ruled that the trial court did not err in denying Petitioner’s motion for new trial based on a verdict against the overwhelming weight of the evidence. In Bush v. State, 895 So.2d 836 (¶ 16) (Miss.2005), the Court reaffirmed that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush, 895 So.2d at 843 (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
[T]he COA erred in not reversing and rendering, or at the very least, reversing and remanding for a new trial.

¶ 15. Without belaboring the point, Bush offers guidance to the practitioner in distinguishing between an argument challenging the legal sufficiency of the evidence in seeking the grant of a judgment notwithstanding the verdict, as opposed to an argument challenging the overwhelming weight of the evidence in seeking the grant of a new trial. Bush, 895 So.2d at 842-45. Thus, giving Rutland the benefit of the doubt, we assume, arguendo, that Rutland, as she did before the Court of Appeals, again is challenging both the legal sufficiency of the evidence and the overwhelming weight of the evidence. We quickly dispatch this issue by stating that the record before us and the applicable law undergird the Court of Appeals’ decision as to these issues. The Court of Appeals thoroughly addressed these issues and set out the evidence in the record which supported its findings that the evidence was legally sufficient to sustain the guilty verdict and that the guilty verdict was not so contrary to the overwhelming weight of the evidence that the court, on appeal, would be sanctioning an unconscionable injustice by allowing the guilty verdict to stand. We thus adopt the reasoning of the Court of Appeals on these issues. Rut-land, 60 So.3d at 189-92, ¶¶ 9-20.

¶ 16. Finding this issue to have no merit, we now address what we deem to be the critical issue before us.

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BASED ON JUROR MISCONDUCT.

¶ 17. The Court of Appeals thoroughly addressed this issue and found no merit in Rutland’s assertions. Rutland, 60 So.3d at 192-93, ¶¶ 21-26. While we agree with the Court of Appeals’ analysis and its disposition, we take this opportunity to revisit the issue of alleged juror misconduct which surfaces post-trial, and to expand the Court of Appeals’ discussion on this issue.

¶ 18. The standard of review for the grant or denial of a motion for new trial is abuse of discretion. Irby v. State, 49 So.3d 94, 103 (Miss.2010) (citing Miller v. State, 980 So.2d 927, 929 (Miss.2008)). Uniform Circuit and County Court Rule 10.05 sets out grounds on which the trial court may grant a new trial. For the sake of today’s discussion, these grounds include, inter alia, “[i]f required in the interests of justice,” and “[i]f the jury has received any evidence, papers or documents, not authorized by the court....” URCCC 10.05(1), (4).

¶ 19. Rutland argues that, because of the juror’s conclusion that “abuse” and “neglect” meant the same thing, she was essentially convicted of neglect, a crime for which she was not indicted. The State argues that the juror’s use of the defínition(s) was not prejudicial and did not amount to reversible error.

A. Mississippi Rule of Evidence 606(b)

¶ 20. Rutland focuses much of her argument on the assertion that, during deliberations, the jury — through the use of improper extraneous information — determined that neglect and abuse had the same meaning, and, therefore, Rutland was guilty of abuse. Rutland’s argument is based on a juror’s statement, which is deemed improper for consideration under our Rules of Evidence. Mississippi Rule of Evidence 606(b) governs inquiries into the validity of verdicts and states:

Upon an inquiry into the validity of a • verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether. extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

(Emphasis added.) The purpose of Rule 606(b) is to protect jurors from fear of being interrogated about their actions or mental processes and to allow the jury to deliberate freely. Gleeton v. State, 716 So.2d 1083, 1087 (Miss.1998), overruled on other grounds by Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 39, 42-43 (Miss.2003).

¶ 21. Under Rule 606(b), jurors may not testify as to how extraneous information affected the verdict. James v. State, 912 So.2d 940, 951 (Miss.2005) (“[I]t would be inappropriate, and in violation of M.R.E. 606(b), for any juror to be questioned with regard to whether or not the extraneous information actually altered his verdict.”); Perkins v. Dautenve, 882 So.2d 773, 781 (Miss.Ct.App.2004) (citing Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 414, 419 (Miss.1993)) (“A juror may only testify as to extraneous information or outside influence introduced by other jurors or other sources, and may not testify as to how that information or influence affected the verdict”). Under the plain language of Rule 606(b), a juror’s statement concerning the effect that extraneous information had on the verdict also is inadmissible.

¶ 22. Rutland bases her argument on the assertion that the jury improperly used the definition of neglect to reconcile the supposed differences between abuse and neglect. This argument is based on a juror’s statement that “he and another juror were confused about the definition of the word ‘neglect’ so they looked up the word in a dictionary and concluded that the words ‘neglect’ and ‘abuse’ meant the same thing, so they determined that the Defendant was guilty of child abuse.” (Emphasis added.) The juror’s statement relates to how extraneous information affected the jury’s verdict. Thus, the juror’s statement is improper under our Rules of Evidence. Rutland may not base her argument for a new trial on a statement that is prohibited by our Rules.

B. Prejudice

¶ 23. In addition to improperly basing much of her argument on the juror’s statement, Rutland also fails to demonstrate how she was prejudiced by the juror’s impropriety. See Brister v. State, 86 Miss. 461, 463, 38 So. 678, 678 (1905) (The jury’s verdict will not be disturbed unless it appears that prejudice resulted from the juror’s misconduct.).

¶ 24. When the trial court is presented with an allegation of juror misconduct, the court must determine what communication was made and what it contained. Gladney, 625 So.2d at 419. Once this determination is made, the trial court must decide whether it is reasonably possible that the improper communication altered the jury’s verdict. Id. The party contending the misconduct must make an adequate showing to overcome the presumption of jury impartiality. Gatewood v. Sampson, 812 So.2d 212, 217 (Miss.2002).

¶ 25. In today’s case, the trial court was made aware of the perceived impropriety through Rutlánd’s motion for a new trial. The State, in its response, conceded that a juror had looked up the definitions of the words abuse and neglect, but argued that this did not prejudice the jury’s verdict. In its order denying Rutland’s post-trial motions, the trial court found, among other things, that, while it was improper for the juror to bring extraneous information into the jury room, the impropriety did not prejudice the verdict.

¶ 26. Of significant import, Judge Johnson stated in his order:

The court has carefully considered the motion, the presentations at the hearing, and the authorities submitted.by each side. Cases must be decided by juries upon the evidence presented in court and without extraneous evidence, investigations or improper influences or information. However, it must surely be recognized that jurors do not deliberate and decide cases in a vacuum. Twelve citizens of various backgrounds, educations and life experiences consult with one another about the case and ultimately render their individual and collective verdict based upon the evidence received and the instructions on the law from the court.
The court finds that standard dictionary definitions for the words “neglect” and “abuse” are not the type of improper extraneous information that have been found to invalidate jury verdicts in our case law. There is nothing inherently prejudicial in the definitions or as applied to this case. The dictionary definition of the two words is clearly something within the collective intelligence and common knowledge of any jury.
There is a very strong legal presumption that jurors follow the law, as they are instructed by the court. To engage in speculation otherwise, without a sound basis, would be contrary to the foundations of our jury system.

¶ 27. The trial court’s finding that Rut-land was not prejudiced by the juror’s use of the dictionary definition is in accord with our precedent. In Collins v. State, 701 So.2d 791, 796 (Miss.1997), this Court held that a defendant was denied a fair trial when the trial court had provided the jury with a law dictionary. In Collins, we found that, because the trial court had provided the external source, there was a presumption of prejudice. Id. We went further, however, to find that this presumption does not arise when the external source is someone other than the trial judge, stating that:

Because the extraneous influence was introduced into the jury’s deliberations by the court and not by accident or some outside party, we hold that a presumption is raised that prejudice flows from the injection of such extraneous influence. The action of a trial judge in giving instructions to a jury or sending evidence to a jury for consideration is substantially and qualitatively distinct from the jury’s improper use of law books discovered in the jury room or an extraneous influence injected by an outside party and requires a more stringent standard.

Id. (internal citations omitted).

¶ 28. In today’s case, because the definitions were not provided by the trial court, there is no presumed prejudice. Rutland must demonstrate how the jury’s verdict was prejudiced by the external influence.

¶ 29. In Wilcher v. State, 863 So.2d 719, 773 (Miss.2004), this Court held that it was not reversible error for a jury to have access to a standard dictionary. In Wil-cher, the defendant asserted that he was denied a fair trial and based his claim on the unsworn statement of a juror who stated that the jury was given a dictionary during deliberations. Id. at 770. This Court distinguished the facts of Wilcher from Collins, finding that: (1) the dictionary was not provided by the trial court; (2) there is a difference between a standard dictionary and a law dictionary, the former being “less likely to improperly instruct a jury on the laws of the State of Mississippi”; and (3) because the only evidence of an external influence was the unsworn statement of a single juror, the record did not clearly establish that the jury was in fact given a dictionary or by whom the dictionary was given. Id. at 772.

¶ 30. Similar to Wilcher, in today’s case, the dictionary definition was not given to the jury by the trial court. Further, there is no evidence in the record of what type of dictionary the juror used to obtain the definition. Rutland claims that the juror used a dictionary from home to look up the definition, which tends to support a conclusion that a standard dictionary was used. Also, Rutland’s claim is not supported by affidavit. The only evidence in this case of the external influence is a juror’s statement made after the trial to Rutland’s boyfriend at a gas station. Rut-land’s boyfriend then told Rutland’s friend about the juror’s use of the definition. The friend, in turn, notified Rutland’s attorney, who subsequently filed a motion for a new trial based on this unsworn statement that had passed through multiple sources.

¶ 31. The State did concede in its response to Rutland’s motion that a juror had looked up the definitions of the subject words and had brought the definitions to the jury room. This concession, however, is not enough to establish prejudice. Without providing more than the statement contained in her motion — most of which is inadmissible under Rule 606(b)— Rutland cannot demonstrate that she was prejudiced by the juror’s use of the definitions. The only part of the juror’s statement that is permissible under Rule 606(b) is the fact that he and another juror looked up the definitions of the words abuse and neglect.

¶ 32. Moreover, Rutland presents no evidence of what type of dictionary was used or what the actual definitions were. We do not know if the definitions which were looked up are similar to our statutory definitions. Arguably, the definitions could be similar to our statutory definitions of abuse and neglect. Several courts in other jurisdictions have held that when extraneous definitions do not differ from jury instructions, or when there is no showing that extraneous material differs from the law, the jury’s exposure to the material does not result in reversible error. See State v. Melton, 102 N.M. 120, 692 P.2d 45, 49 (1984) (jurors’ consideration of dictionary definitions which did not vary from the usual ordinary meaning of those words, or from the meaning contained in the trial court’s instructions did not prejudice the defendant); State v. Tinius, 527 N.W.2d 414, 417 (Iowa Ct.App.1994) (definition did not conflict with legal concepts and was compatible with common meaning of word); Dawson v. Hummer, 649 N.E.2d 653, 665 (Ind.Ct.App.1995) (finding no reversible error because there was no way of determining which dictionary was used by the jury; thus, there was no way of determining whether the dictionary definition differed from the legal definition); Stagecoach Transp., Inc. v. Shuttle, Inc., 50 Mass.App.Ct. 812, 741 N.E.2d 862, 869 (2001) (finding no reversible error because “the material did not differ in great respect from the - actual law”).

¶ 33. Considering that much of the evidence Rutland presented to support her claim of juror misconduct is inadmissible under Rule 606(b), Rutland has failed to demonstrate how she was prejudiced by the juror’s impropriety. Without showing more, Rutland cannot show prejudice. Collins, 701 So.2d at 795. Accordingly, the trial court did not abuse its discretion in denying Rutland’s motion for a new trial. Gladney, 625 So.2d at 415 (“This Court’s authority to reverse a trial court’s ruling on a motion for new trial is limited to those instances when the trial court abuses that discretion.”).'

¶ 34. We thus find this issue to be without merit.

CONCLUSION

¶ 35. Having adopted the reasoning of the Court of Appeals concerning two of the three issues raised on direct appeal, and having addressed what we deem to be the critical issue of alleged juror misconduct, we affirm the judgment of the Court of Appeals, which affirmed Loni Marie Rut-land’s Franklin County Circuit Court judgment of conviction and sentence for felony child abuse.

¶ 36. COUNT II: CONVICTION OF FELONIOUS CHILD ABUSE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN (10) YEARS SUSPENDED AND TEN (10) YEARS TO SERVE, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.; CHANDLER, J., JOINS THIS OPINION IN PART. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY DICKINSON, P.J., AND KITCHENS, J. KING, J., NOT-PARTICIPATING.

KITCHENS, Justice,

Dissenting:

¶ 37. When the jury room is infiltrated by influences or information not authorized by the court, and such things in any way bear upon the issues being tried, however inconsequential the intrusion may seem, ,it is as if some foreign substance has found its way into delicate machinery, or, allegorically speaking, a pea has been placed under the mattress of a princess.

¶ 38. Under our system of justice, every person charged with a crime is entitled to a fair trial before an impartial jury of his or her peers. Miss. Const. art. 3, § 26; U.S. Const, amend. VI. During deliberations, the jury should consider only the evidence developed at trial. Collins v. State, 701 So.2d 791, 794 (Miss.1997). “A jury’s verdict must be based upon the evidence and not affected by extraneous influences.” Fuselier v. State, 468 So.2d 45, 57 (Miss.1985). This Court has held that, where an extraneous influence is introduced into the jury’s deliberation by accident or from some outside source, the extraneous influence must be shown to be prejudicial before a new trial is warranted. Collins, 701 So.2d at 796.

¶ 39. Notwithstanding our requirement that some prejudicial effect of the unauthorized material be proven as a prerequisite to a new trial, we have promulgated a rule that, in almost every scenario imaginable, precludes the development of such proof. The principal objective that likely generated Mississippi Rule of Evidence 606(b) — to insulate and protect jurors from post-trial inquiries about their deliberations — is laudable. However, if the jurors themselves are not permitted to relate what did or did not influence their decisions, how is the prejudicial effect of an extraneous influence to be determined?" The answer is that, in almost all such cases, a prejudicial effect may be impossible to identify or to quantify. Thus, in my judgment, there is a strong case to be made for presuming that such unauthorized influences in the jury room always are prejudicial, or for eliminating altogether the requirement of proof of a prejudicial effect. The matter at hand provides a compelling example of why we should not require a litigant to prove the improvable in order to seek relief when unauthorized matter has invaded a jury room. The parties have agreed that an extraneous influence did enter this jury room. There is no way to assess its impact. At the same time, we cannot reliably divine that it had no impact.

¶ 40. Certainly, extraneous information or material in a jury room is a knife that can cut either way, depending upon its nature, character, and, sometimes, its source. It is not difficult to imagine — or, in the case of more seasoned members of the trial bar, to recall — instances in which unauthorized intrusions into the jury room created considerable anguish for the prosecution. In the next such case, the party seeking relief may be the State. Neither the prosecution nor the defense should be saddled with the burden of proving prejudice as a prerequisite to a meaningful remedy. In the end, the thing that must be protected unfailingly is the efficacy of the process itself; the jury room must be sacrosanct, so that the litigants, the lawyers, and the public at large may have as much confidence as can be built into the system that juries reach their decisions on the basis of nothing other than the evidence and the law, both of which have come to the jurors with the knowledge and approval of the presiding judge.

¶ 41. In this case, the trial judge gave a preliminary instruction that informed the jurors that they “[were] not permitted to ... make any independent investigation.” Further, the trial court explained to the jury that “[a]fter both sides finally rest, [the court] will review the instructions of law with the attorneys and then they will be read to you.”

¶42. Following the first day of trial, one of the jurors did make an independent investigation by researching the meaning of the words neglect and abuse in what is described in the majority opinion as a standard dictionary. The juror then recorded those definitions onto a sheet of paper and carried the paper into the jury room on the following day, without the knowledge or approval of the judge. On the second day of trial, after receiving the jury instructions and deliberating for fifty minutes, the jurors sent out the following question: “Is negligence the same thing as abuse?” The trial court, quite correctly, sent the jury a note with the following response: “You must rely on the Court’s instructions on the law already given to you. Please continue your deliberations.” The jury resumed its deliberations for approximately half an hour, then returned a guilty verdict.

¶ 43. As evidenced by the jury’s note to the trial judge asking whether negligence was the same thing as abuse, it is clear that the jurors were concerned about the meanings of those words. Even though I would not require Rutland, or any other litigant in such circumstances, to prove prejudice, it is clear to me that a juror’s improper introduction of dictionary definitions of the words neglect and abuse into the jury’s deliberations substantially prejudiced Rutland.

¶ 44. Rutland was indicted under Mississippi Code Section 97 — 5—39(2)(a), which provides, in part:

Any person who shall intentionally (i) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike, or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse of a child....

Miss.Code Ann. § 97 — 5—39(2)(a) (Rev.2006) (emphasis added). She was not indicted under the portion of Mississippi Code Section 97-5-39, which provides that:

Except as otherwise provided in this section, any parent, guardian or other person who willfully commits any act or omits the performance of any duty, which act or omission contributes to or tends to contribute to the neglect or delinquency of any child ... shall be guilty of a misdemeanor....

Miss.Code Ann. § 97-5-39(l)(a) (Rev.2006) (emphasis added).

¶ 45. Further, while neglect and abuse may have similar meanings in the dictionary utilized by the juror, the legal distinctions found in Mississippi Code Section 97-5-39 are the difference between less than one year in prison and life in prison. The juror’s non-legal, dictionary definitions of abuse and neglect, brought into jury deliberations from an outside source, were grossly out of place in a venue that our government of laws, especially the judicial branch, from the inception of our nation, has gone to extraordinary lengths to keep inviolably free of improper influences. It bears reiteration that the prosecution, the defense, and a very astute trial judge all agreed that these outside definitions should never have entered the jury room. That the definitions may have been more or less accurate, or even consistent with applicable law, is not the point. Obviously, the point is that they did not come from the solitary, authorized giver of the law in this case, the trial judge himself. This defilement of the process irreparably contaminated the verdict of the jury.

¶ 46. Rutland argued that the use of these definitions was prejudicial to her case because the jury could have relied on the definition of neglect, a misdemeanor, but still have convicted her of felony abuse if the jury had determined that neglect and abuse had the same meaning. Rut-land was not charged with, nor was she indicted for, child neglect. The jury was not instructed regarding the misdemeanor of child neglect. Clearly, one of the jurors unilaterally and wrongfully introduced the concept of neglect into the jury deliberations following private, independent, and unauthorized research. The juror’s research dealt with a concept that was introduced into the trial by neither the court nor the parties. We cannot rule out that the jury, which had sought but failed to receive definitions of these terms from the court, determined on the basis of information provided by one of their number that neglect was tantamount to abuse, and that if they believed there had been neglect they could appropriately find the defendant guilty of abuse. However, there are at least two problems with that analysis. First, Rutland was not charged with neglect. Second, the definitions of both neglect and abuse were obtained from an extraneous, clandestine source and not from the court. The only way to repair the morass of mischief caused by this juror’s disregard of the court’s clear instructions not to engage in independent investigation of the case is to afford Rutland a new trial, free of extraneous influences.

¶ 47. I would reverse this case and remand it to the trial court for a new trial.

DICKINSON, P.J., JOINS THIS OPINION. CHANDLER, J., JOINS THIS OPINION IN PART.

CHANDLER, Justice,

Dissenting:

¶ 48. I respectfully dissent, and I concur in part with the dissent of Justice Kitchens. While I am unwilling to go as far as Justice Kitchens, who would hold that every extraneous influence in the jury room, no matter how insignificant, requires a new trial, I would find that the extraneous information in this case prejudiced Rutland. The parties and the trial court were forbidden by Mississippi Rule of Evidence 606(b) from delving into the effect that the extraneous information had upon the jury’s verdict. But notwithstanding the lack of subjective evidence of prejudice, I believe a reasonable person would find it prejudicial for a juror to bring dictionary definitions of abuse and neglect into the jury room in a child-abuse case. Therefore, I would reverse and remand for a new trial.

DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION IN PART.

      . In order to protect the identity of the minor child, we have substituted initials in place of the child’s name.

      . Rutland was indicted under Mississippi Code Section 97-5-39(2)(a) (Rev.2006), which states:
      Any person who shall intentionally (I) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm shall be guilty of felony child abuse of a child and, upon conviction, shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years....

      . The facts up to this point are essentially a recitation of the facts as stated in the Court of Appeals' opinion. Rutland v. State, 60 So.3d 187, 188-89, ¶¶ 3-8 (Miss.Ct.App.2010). However, additional facts from the record also have been added.

      . Submitted Jury Instruction C-ll (given by the trial court as Jury Instruction #11) informed the- jury, inter alia, "that the term serious bodily harm, as used in other instructions of the court [i.e., the elements instruction] means bodily injury which creates a substantial risk of death, or permanent or temporary disfigurement, or impairment of any function of any bodily organ....” Rut-land was not indicted for child neglect, and the jury did not receive any instructions on child neglect.

      . Rutland’s post-trial motion states that the juror looked up only the definition of neglect. In her petition for writ of certiorari, however, Rutland asserts that the juror looked up two definitions: neglect and abuse.