source: Caselaw Access Project

author: LAMAR, Justice, for the Court:

license: Public Domain

text:
    The ALABAMA GREAT SOUTHERN RAILROAD COMPANY, Mississippi Transportation Commission and Mississippi Department of Transportation v. Chantel JOBES. Mississippi Department of Transportation and Mississippi Transportation Commission v. Chantel Jobes..
    Nos. 2013-IA-01261-SCT, 2013-IA-01268-SCT.
    Supreme Court of Mississippi.
    Jan. 22, 2015.

      Romney H. Entrekin, Richard 0. Bur-son, Laurel, Grayson Lacey, Christopher 0. Massenburg, attorneys for appellants (No. 2013-IA-01261-SCT).
    George W. Byrne, Jr., attorney for ap-pellee (No. 2013-IA-01261-SCT).
    Christopher 0. Massenburg, attorney for appellants (No. 2013-IA-01268-SCT).
    George W. Byrne, Jr., attorney for ap-pellee (No. 2013-IA-01268-SCT).
    Before DICKINSON, P.J., LAMAR AND CHANDLER, JJ.
   LAMAR, Justice, for the Court:

¶ 1. In the early morning hours of April 19, 2010, Chantel Jobes’s vehicle left the southbound lane of Highway 11, crossed the northbound lane and crashed into a concrete railroad trestle. Jobes was seriously injured in the accident, and she filed a complaint against Norfolk Southern Railway Company, the Mississippi Transportation Commission, and the Mississippi Department of Transportation. The trial judge denied the defendants’ motions for summary judgment. This Court granted the defendants’ request for an interlocutory appeal, and we now render summary judgment in their favor.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 18, 2010, Jobes began her shift as a manager at T.G.I. Friday’s in Hattiesburg at 4:00 p.m. She finished her shift between 1:00 and 1:30 a.m. the morning of April 19. She then went to a 24/7 gym nearby to work out, which was her normal routine. She worked out for about an hour and then headed to a friend’s house to celebrate his birthday. She does not remember the party, but her friends told her that she “didn’t want to finish the cocktail or the drink [she] had,” and that she wanted to go home.

¶ 3. Jobes left the birthday party and headed home to Lumberton. As she neared Lumberton, her vehicle left the southbound lane of Highway 11, crossed the northbound lane and crashed head-on into a concrete railroad trestle. According to the Mississippi Highway Patrol’s Uniform Crash Report, the accident was reported at 4:42 a.m. The report also stated that the weather was “dry” and “clear,” and that the crash was life-threatening. It is undisputed that Jobes was driving with a suspended license, was legally intoxicated, and had prescription anti-anxiety medication in her system. Jobes testified in her deposition that she had worked three weeks straight with no days off up until the accident, and that she could not remember a time when she had been more stressed.

¶ 4. Jobes suffered a fractured jaw, fractured right leg, fractured left knee, fractured right arm, fractured hip, fractured ribs, a collapsed lung, and massive head injuries. On August 22, 2011, she filed her “Petition for Damages” against the Mississippi Department of Transportation/ the Mississippi Transportation Commission (hereinafter “MDOT,” collectively) and Norfolk Southern Railway Company. The parties subsequently dismissed Norfolk and substituted The Alabama Great Southern Railroad Company (“AGSR”) as the proper railroad defendant.

¶ 5. In her Petition, Jobes alleged that “suddenly and without warning, she lost control of her vehicle and collided into the Northbound railroad trestle support owned, operated and/or maintained by defendant, [AGSR].” Jobes alleged that her accident was “caused by the negligence” of MDOT and AGSR.

¶ 6. Specifically, Jobes alleged that MDOT was negligent by:

(1) Failing to keep the road in a reasonably safe condition;
(2) Allowing the roadway to persist in a defective and substandard condition, despite actual or constructive knowledge of the defective and substandard condition;
(3) Failing to provide an adequate “clear zone” or shoulder at the site of the accident;
(4) Failing to provide adequate and necessary crash cushions at the site of the accident;
(5) Failing to protect or warn of a dangerous condition at the site of the collision of which defendants had notice, and adequate opportunity to issue appropriate warnings;
(6) Failing to erect and/or maintain appropriate and reasonable signs, signals, warning devices, illumination devices, or guardrails and/or barriers at the site of the accident despite actual or constructive notice of the absence and/or inadequate condition of the existing devices;
(7) Failing to construct and/or maintain the roadway in a reasonably safe condition in accordance with industry and highway safety standards; and
(8)Other acts of negligence that will be shown at the trial of this matter.

¶ 7. Jobes alleged that AGSR was negligent by:

(1) Failing to keep and maintain the railroad trestle supports in a reasonably safe condition;
(2) Failing to post adequate warning devices;
(3) Failing to undertake timely and reasonable repairs;
(4) Failing to maintain the trestle supports in a [reasonably] safe position; and
(5) Other acts of negligence that will be shown at the trial of this matter.

Jobes requested a nonjury trial against MDOT, a jury trial against AGSR, and demanded $10 million in damages.

¶ 8. The parties engaged in discovery during the next two years. Jobes designated Richard Fitzgerald, professional engineer, as an expert witness. According to Jobes’s expert designation, Fitzgerald was expected to testify that the “unprotected bridge pier” constituted an unreasonably dangerous condition, that the roadway under the overpass was in poor condition, that the lack of shoulders on the roadway rendered it unreasonably dangerous, that the railroad overpass supports were unreasonably close to the roadway, and that no adequate warnings were posted. But two months before trial was set to begin, Jobes’s counsel notified all counsel of record that she no longer intended to call Fitzgerald as a witness at trial. This left Jobes with no liability expert.

¶ 9. AGSR and MDOT both filed motions for summary judgment. The parties subsequently filed supplemental motions, responses and rebuttals, but the basic arguments remained the same.

AGSR’s Position

¶ 10. AGSR argued that Jobes was “unable to establish any duty owed by [AGSR] relevant to her claims, much less evidence of a breach of any such duty.” AGSR argued that MDOT was the entity responsible for the roadway conditions along Highway 11, including the installation and/or erection of any crash guards and/or warning devices. AGSR highlighted testimony from the deposition of Todd Jordan, MDOT District Maintenance Engineer for District Six, and from the affidavit of transportation engineering expert Dr. Joseph Blaschke.

¶ 11. Jordan testified that MDOT was responsible for Highway 11 as it pertained to motorists:

Q: And at this intersection, as between the railroad and the Mississippi Department of Transportation, MDOT is actually the entity with the authority over the roadway itself; is that correct?
A: Yes.
Q: And, also, at this intersection, MDOT is responsible for any roadway conditions on and along Highway 11 that the motoring public would face; is that true?
A: That’s true.
Q: And MDOT would be the authority that is responsible for establishing speed limits on and along Highway 11 and particularly at the location of the overpass with the Alabama Great Southern Railroad Company; is that true?
A: That’s true.
Q: And MDOT would be responsible for any roadway signs that are on and along Highway 11 as a motorist would approach this intersection; is that true?
A: That’s true.
Q: And, then, finally, MDOT would be the entity responsible for the installation of any of the crash barriers that would be placed on and along Highway 11 to-benefit the motoring public; is that true?
A: I would think so.

And Dr. Blaschke testified similarly:

[T]he Railroad Company and MDOT have had separate duties with respect to maintenance of the subject trestle. The Railroad Company’s duty has been to maintain the trestle for railroad operations. In other words, the Railroad Company is responsible for maintaining the trestle to ensure that it is structurally sound and capable of supporting the weight of the railroad traffic on top of it. MDOT, on the other hand, is responsible for maintenance of the trestle and the roadway proper for the motoring public traveling underneath the railroad trestle on MS Highway 11. Examples of such maintenance within the sole discretion of MDOT include, but are not limited to, setting the roadway speed limit, placement of traffic control devices, design and installation of safety devices such as crash cushions or guardrails, and design and general maintenance of the surface of the roadway. The Railroad Company, in this case [AGSR], is not responsible for such maintenance of the highway or installation of highway appurtenances, like guardrails and crash cushions, at or near the subject trestle.

Dr. Blaschke also opined that Jobes’s negligence was the “sole proximate cause of [the] accident.” And pharmacotherapy expert Dr. John Cleary stated in his affidavit that

Ms. Jobes’ weight and blood alcohol concentration (95 mg'dL) shortly after her arrival at the Hospital, and at the time of the subject accident, indicates that Ms. Jobes would have been experiencing adverse effects of alcohol that caused her to be significantly impaired with respect to alertness, muscle coordination (e.g., balance, speech, vision, and reaction time), judgment, reasoning, the ability to detect danger, mood and confidence ... The presence of benzodiaze-pines in Ms. Jobes’ system further enhanced, or increased, Ms. Jobes’ level of impairment at the time of the accident.

Finally, AGSR argued that any common-law duty it might have had to protect motorists from its railroad trestles had been superseded by subsequent Mississippi statutory law — specifically, Mississippi Code, Section 65-1-175.

MDOT’s Position

¶ 12. MDOT argued in its motion that it was immune from liability under the Mississippi Tort Claims Act, Mississippi Code Section 11-46-9(1), subsections (d) and (v) specifically. MDOT argued that all of Jobes’s claims involved either road maintenance or the placement of traffic-control devices, and that those were discretionary functions. MDOT also argued that, even assuming the accident site was unreasonably dangerous, Jobes was aware of the dangerous condition and failed to exercise reasonable care.

¶ 13. In rebuttal, MDOT argued that Jobes had not demonstrated an issue of material fact; rather, she had provided the court with only “conclusory allegations and ill-fashioned questions of law.” MDOT also argued that Jobes had presented no evidence of causation, stating: “Plaintiff cites no expert testimony, or other evidence, to establish that a pothole, lack of clear white line, a ‘narrow lane,’ lack of lighting, or the absence of a barrier on the opposing lane of traffic where the accident occurred caused or substantially contributed to her accident or injuries.”

Jobes’s Position

¶ 14. In response to MDOT’s arguments, Jobes argued that MDOT had submitted “no qualified expert testimony or affidavit,.to interpret appropriate medical records to support [their claim that Jobes’s intoxication was the cause of the accident] or to establish that, even assuming intoxication, that this condition was the sole cause of the accident unrelated in any way to MDOT’s lack of adherence to its mandatory obligations relative to the maintenance of this area of Highway 11.” Jobes also argued that disputed issues of material fact existed regarding MDOT’s “mandatory obligations and duties relative to the area of Highway 11 where [Jobes’s] accident occurred....” Jobes highlighted several of MDOT’s standard operating procedures regarding pothole repair and argued that there were questions of fact regarding whether those procedures had been followed.

¶ 15. Jobes also pointed out that, after her accident, MDOT chose to install two additional impact attenuators on the railroad trestles on the opposite sides of the roadway. Jobes argued that there was no way to tell when the “bump” and “slippery when wet” signs close to the accident site were erected, and that the signs “may not” have been in compliance with the Manual of Uniform Traffic Control Devices used by MDOT.

¶ 16. Finally, Jobes argued that there were no edge stripes on the roadway at the accident site, which also was a violation of the Manual requirements. Among the items attached to Jobes’s Response were two affidavits: one from Lumberton resident Michelle Entrekin, who testified that the accident site had standing water “constantly,” contained potholes, and was very “bumpy and uneven”; and a second from Benjamin Smith, who testified about the distance of the warning signs from the accident site and that the edging stripe stopped short of the underpass.

¶ 17. In response to AGSR’s arguments, Jobes argued that AGSR has a common-law duty to maintain its railroad trestles, citing Illinois Central Railroad Company v. Farris, 259 F.2d 445, 447-48 (5th Cir.1958), and that AGSR had done nothing to the trestles since they were built, despite an increase in traffic and speed limits. Jobes stated that the trestles were not illuminated in any way, were not marked by any reflective tape or similar devices, and were positioned only six inches from the edge of the roadway. In sum, Jobes argued that AGSR could not “oversee an overpass with massive support columns built in the mid 1930’s and not adjust to the increasing danger its unlighted columns that eliminate any ‘clear zone’ pose to the increased volume of higher speed vehicles.”

Trial Judge’s Ruling

¶ 18. The trial judge held a hearing on MDOT’s and AGSR’s motions after the briefing was complete. After hearing argument from counsel for all parties, the trial judge denied the defendants’ motions, stating:

[I] do have to state that the stream of commerce has evolved enormously since 1934. And this traffic issue in that location has been a real problem. And I don’t think the railroad can merely stand by and say, We have no responsibility to make additional improvements or alterations to reflect what is going on, on the highway, on a daily basis. I think that common law would support [Jobes’s] position. I cannot and will not grant summary judgment for the railroad in this particular matter. I think it’s too fact intensive. I think the railroad had responsibilities and duties and this has been a real issue.
[As for MDOT], I absolutely do not believe this was discretionary, in view of, by your own statements, that they have continually had issues at that location. They repeatedly attempted to resolve these issues. Pearl River County is in my five-county district. I traverse from outside of Hattiesburg to Pearl River county a minimum of 80 times a year. I counted it up. I went under that overpass that many times in the past several years. I’m certainly aware of the repeated attempt that [MDOT] attempted to maintain that underpass, all in vain, until they spent almost a year resolving it. I do think there’s multiple factual issues. I do think it was a ministerial responsibility of MDOT to cure, and they did not. Therefore, I will deny your motion for summary judgment.

The trial judge later entered an order officially denying the defendants’ motions, but he did not expound on his reasons for the denial. Trial was set to begin soon after the motion hearing, but the parties agreed to continue it so that the defendants could seek an interlocutory appeal with this Court. This Court granted the defendants’ requests and consolidated the cases.

¶ 19. AGSR presents three issues on appeal:

(1)Whether Plaintiffs bare assertions are adequate to survive summary judgment in light of the expert testimony offered by [AGSR] that the installation of highway appurtances [sic], such as guardrails or impact attenuators, at the subject grade separation/underpass is beyond the scope of maintenance duties owed by [AGSR] at the subject grade separation/underpass and would fall within the exclusive purview and sole discretion of the Roadway Authority, in this case MDOT;
(2) Whether Miss.Code Ann. § 65-1-175, which bestows upon MDOT exclusive authority to determine the number, type and location of “protective devices” at public roadway/railroad crossings, negates the imposition of any alleged duty owed by [AGSR] with respect to the installation of additional protective devices at the subject underpass; and
(3) Whether Plaintiff’s claims against [AGSR] can survive summary judgment when Plaintiff offered no evidence to rebut the expert testimony offered by [AGSR] that Plaintiffs intoxication and resulting impairment was the sole proximate cause of the subject accident and her resulting injuries.

MDOT also presents three issues:

(1) Did the Circuit Court err in denying MDOT and MTC’s summary judgment motion, when no evidence was presented, via expert or otherwise, that MDOT or MTC’s actions or inactions were more probably than not a substantial contributing factor in Jobes’ accident or injuries?;
(2) Did the circuit court err in finding that MDOT and MTC were not immune from suit under § 11-46-9(1)(v), when it is uncontested that Jobes was very familiar with the conditions of [the] area of the highway in question, and all claimed dangers were known and obvious?; and
(3) Did the circuit court err in finding that MDOT and MTC’s placement of traffic-control devices were ministerial functions and, therefore, not subject to the immunity protections of Miss.Code. Ann. § 11-46-9, et seq?

Although stated in a variety of ways, both defendants argue simply that the trial judge erred when he did not grant summary judgment in their favor. We agree.

STANDARD OF REVIEW

¶ 20. The standard of review in a summary-judgment case is well-known, and we note that it is especially important in this case. Mississippi Rule of Civil Procedure 56(c) allows summary judgment where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Conrod v. Holder, 825 So.2d 16, 18 (Miss.2002). This Court reviews the denial of a motion for summary judgment de novo. Harrison v. Chandler-Sampson, Ins., Inc., 891 So.2d 224, 228 (Miss.2005). When conducting a de novo review, this Court must view the evidence in the light most favorable to Jobes, but if the evidence shows that AGSR and MDOT are entitled to judgment as a matter of law, summary judgment should be entered in their favor. Conrod, 825 So.2d at 18.

¶ 21. “Under Mississippi law, bare assertions are simply not enough to avoid summary judgment. The nón-mov-ant may not rest upon allegations or denials in his pleadings.” Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996) (citation omitted) (emphasis added). “If the party opposing the motion is to avoid entry of an adverse judgment, he or she must bring forth evidence which is legally sufficient to make apparent the existence of triable fact issues. Summary judgment is mandated where the nonmoving party fails to show evidence sufficient to establish the existence of an essential element to his case.” Sligh v. First Nat'l Bank of Holmes Co., 735 So.2d 963, 965-66 (Miss.1999) (citation omitted) (emphasis added).

ANALYSIS

I. Jobes’s Claims Against MDOT

¶ 22. As mentioned above, Jobes alleges that MDOT was negligent in several different respects, and we separate those claims into categories for purposes of discussion. The following claims all relate to MDOT’s alleged duty to maintain and/or repair Highway 11 and the area around the accident site specifically:

Failing to keep the road in a reasonably safe condition;
Allowing the roadway to persist in a defective and substandard condition, despite actual or constructive knowledge of the defective and substandard condition; and
Failing to construct and/or maintain the roadway in a reasonably safe condition in accordance with industry and highway safety standards.

¶ 23. In light of this Court’s recent decision in Little v. Mississippi Department of Transportation, 129 So.3d 132 (Miss.2013), we cannot agree with MDOT’s argument before the trial court that its duty to maintain Highway 11 is discretionary. This Court specifically stated in Little that: “Because Section 65-1-65 requires [MDOT] to maintain and repair state highways, that duty — and all acts in furtherance of that duty — are ministerial unless, as in Montgomery, another statute makes a particular act discretionary ... [MDOT] is not entitled to discretionary-function immunity for failure to properly maintain and repair highways because that function is ministerial.” Little, 129 So.3d 132 at 138.

¶ 24 So we agree with Jobes that her claims regarding MDOT’s failure to repair and maintain Highway 11 are not barred as a matter of law by the discretionary-function exception to the Mississippi Tort Claims Act. But that does not end the inquiry. Jobes still must “show evidence sufficient to establish the existence of an essential element to [her] case” — she must show that MDOT had a specific duty, it breached that duty, and that the breach proximately caused her injury. Kroger Co. v. Knox, 98 So.3d 441, 443 (Miss.2012). We find that Jobes has shown evidence of none of these things.

¶ 25. While Jobes does generally allude to some of MDOT’s standard operating procedures related to potholes, warning sign placement, and pavement edging in her Response to MDOT’s Motion, she has presented absolutely no evidence regarding MDOT’s exact duties, or whether those duties were breached. Additionally and perhaps more importantly, Jobes has provided no evidence that the alleged negligence caused or contributed to her injuries. On the contrary, her deposition testimony highlights the glaring lack of causation evidence:

Q: Has anybody told you how they think the accident happened?
A: No. Well, people have their [theories] and speculations. I’ve been told so many different things.
Q: Tell me what has been the theories or the speculation about how the accident happened.
A: I was told that maybe I hydroplaned. I was told that maybe I had a stroke. I would assume that would be medically proven though at the time of the wreck. I was told that maybe I fell asleep. And then it was brought to my attention [the intoxication]. And so no doctors, nobody has told me [a] for sure answer due to the fact of lack of memory, and nobody has given me the answers I really want.
Q: Do you think you could have fallen asleep at the wheel that night as tired as you were?
A: Anything is possible, yes.
Q: You don’t know because you don’t remember it?
A: Yeah.
Q: You said hydroplaned. When you drove in that morning, you said you don’t remember—
A: Right.
Q: —you don’t have a memory of it, so you don’t know whether—
A: Yeah. They are all theories of what people think happened.
Q: Do you think if you were on anti-anxiety medication — the medical records say what they say. You don’t have a memory of it. But do you think that based on your experience and understanding, do you think that being — if you were on that medication, it’s in your system. If you were on that medication that that might have intensified the impact of the alcohol that you did drink that night?
A: Yes.
Q: Do you think that that interaction which in your experience, if you hadn’t had that interaction based on all these years of driving that road at that period of time that night and everything else, maybe this accident wouldn’t have happened?
A: Or that severe.
Q: You still think — I’m asking you. Do you still think — you still think you would have wrecked that night if you hadn’t had—
A: Who knows, because we — nobody really knows exactly. I mean, when there’s, you know theories, speculation, but who knows....

¶ 26. We find that this testimony fails to offer any evidence of what actually caused Jobes’ accident. And Jobes has likewise presented no evidence that the alleged negligence by MDOT contributed to the seventy of her injuries — in other words, she has provided no evidence that the lack of impact attenuators or guardrails made the accident worse. In short, Jobes has presented absolutely no evidence regarding MDOT’s duty, any breaches of those duties, or that the breaches caused or contributed to her injuries.

Failing to provide an adequate “clear zone” or shoulder at the site of the accident; and
Failing to provide adequate and necessary crash cushions at the site of the accident.

¶ 27. In addition to Jobes’s failure to provide evidence of duty, breach, and causation as discussed above, these two allegations involve discretionary functions, and MDOT is therefore immune from liability altogether. Mississippi Code Section 65-1-175 states, in pertinent part:

The Mississippi Department of Transportation shall have power, upon its own motion, or upon complaint, and after having made proper investigation and after notice and hearing, if requested, to require the installation of adequate and appropriate luminous reflective warning signs, luminous flashing signals, crossing gates illuminated at night, or other warning devices in order to promote the health and safety of the public ... The department shall have authority to determine the number, type and location of such signs, signals, gates or other protective devices which shall conform as near as may be with generally recognized national standards,[] ...

Miss.Code Ann. § 65-1-175(3) (emphasis added). We find that the statute above allows MDOT, in its discretion, to determine the appropriate type, number, and location of protective devices at railroad crossings, making it immune from liability for these two claims under Section 11-46-9(1)(d).

Failing to erect and/or maintain appropriate and reasonable signs, signals, warning devices, illumination devices, or guardrails and/or barriers at the site of the accident despite actual or constructive notice of the absence and/or inadequate condition of the existing devices.

¶28. Again, proof of causation aside, we find that this allegation also involves a discretionary function, and that MDOT is therefore immune from liability altogether. In Little, this Court stated: “Because Section 65-1-65 requires [MDOT] to maintain and repair state highways, that duty — and all acts in furtherance of that duty — are ministerial unless, as in Montgomery[] another statute makes a particular act discretionary.” Little, 129 So.3d at 138 (emphasis added).

¶ 29. Here, we find that there is another statute that makes the placement of traffic-control devices discretionary: “The commissioner of public safety and the state highway commission shall place and maintain such traffic-control devices conforming to its manual and specifications, upon all state and county highways as it shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn, or guide traffic.” Miss.Code Ann. § 63-3-303 (Rev. 2013) (emphasis added). We find that the statute above allows MDOT, in its discretion, to determine the appropriate type, number, and location of traffic-control devices, making it immune from liability for this claim under Section 11-46-9(1)(d).

Failing to protect or warn of a dangerous condition at the site of the collision of which defendants had notice, and adequate opportunity to issue appropriate warnings.

¶ 30. Jobes specifically states in her brief that she is “not pursuing a claim based on a failure to warn” in this appeal. We therefore decline to address this cause of action.

II. Jobes’s Claims Against AGSR
Failing to keep and maintain the railroad trestle supports in a reasonably safe condition;
Failing to post adequate warning devices;
Failing to undertake timely and reasonable repairs; and
Failing to maintain the trestle supports in a [reasonably] safe position.

¶ 31. Jobes argues that AGSR has a continuing common-law duty to maintain the railroad crossing. It is true that the Fifth Circuit has stated that: “A railroad company has an affirmative duty to maintain highway crossings so as ‘to fulfill its obligation of affording proper security for life and property. Thus the railroad must so construct trestles as to afford reasonably sufficient clearance or headway for ordinary vehicular traffic.’ ” Illinois Cent. R.R. Co. v. Farris, 259 F.2d 445, 447 (5th Cir.1958).

¶ 32. But we find that any common-law duty AGSR may have had to maintain and repair its railroad trestles and to place warning signs has been relegated to MDOT, pursuant to Mississippi Code Section 65-1-175(1): “The jurisdiction of the Mississippi Department of Transportation shall be exclusive with respect to public roadway/railroad crossings either at grade or otherwise except to the extent that its jurisdiction is preempted by valid federal statute, regulation or order.” (Emphasis added.) Jobes has presented no federal statute, regulation, or order that would preempt MDOT’s jurisdiction. So we find that any common-law duty that AGSR might have had to repair, maintain or warn no longer exists.

¶ 33. Moreover, as discussed above, Jobes simply has offered no evidence of what that common-law duty encompasses, or how AGSR breached that duty. We agree with AGSR’s argument that the “tasks of defining, distinguishing between and analyzing the specific duties owed to the motoring public by [AGSR], a participant in one of the most heavily regulated industries in this country, and MDOT, a governmental roadway authority, at this grade separation are beyond the capabilities of the average lay person and require an intimate understanding of industry specific standards and terminology.” In short, highly technical issues would have to be addressed, and Jobes simply has presented no evidence that would make this a fact question for the jury.

¶ 34. And finally, Jobes’s claims against AGSR suffer from the same lack of evidence of causation as do her claims against MDOT. Incredibly, Jobes argues in her brief that:

The affidavit from [AGSR’s] accident re-constructionist that Ms. Jobes’ actions were the sole proximate cause of the accident, is not, as [AGSR] claims, reliable. This expert reaches his conclusion as to causation without appropriate factual support; he simply equates impairment with loss of control without any consideration whatsoever of the role, if any, that the degraded condition of the road surface played in Ms. Jobes’ vehicle veering across the roadway at this particular spot after having already driven approximately 25 miles from Hatties-burg without incident. In short, he only considered one conclusion and failed to consider, evaluate and eliminate other plausible and reasonable causes of the collisions, notably, the substandard condition of the paved surface of [Highway 11] as it passed under the [AGSR] tres-tie ... The [AGSR] affidavit further makes no findings with respect to the effect an impact attenuator designed to prevent head-on collisions, and/or a shoulder unencumbered by massive, immovable columns, would have had on the severity of the injuries sustained by Ms. Jobes in this head-on collision. While the affidavit does make the claim that Ms. Jobes’ acts were the sole proximate cause of the accident, no where does this expert address the issue of the extent to which an impact attenuator would have effected [sic], lessened or reduced the severity of the injuries sustained in this head-on impact.

¶ 35. Jobes has completely reversed the parties’ relative burdens of proof. It is not AGSR’s burden to prove that its alleged negligence was not a substantial factor in causing Jobes’s injuries; rather, it is Jobes’s burden to prove that it was — a burden she has not even attempted to meet. As AGSR succinctly stated: “[Jobes] failed to articulate what specific duties she alleges were owed by [AGSR], much less how [AGSR] breached such alleged duties or even that such alleged breaches proximately caused or contributed to her injuries.”

CONCLUSION

¶ 36. We find that all of Jobes’s claims against the defendants fail, either because defendants are immune from liability (in MDOT’s case), or because she has wholly failed to “show evidence sufficient to establish the existence of the essential elements” of her claims. We reverse the ruling of the Lamar County Circuit Court and enter summary judgment in favor of the defendants.

¶ 37. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Jobes testified in her deposition that she does not remember the accident or the day leading up to the accident, but she has been able to piece together a timeline of events with the help of friends and coworkers.

      . The Alabama Great Southern Railway's ("AGSR”) predecessor constructed the rail line above the location of Jobes’s accident and began operating it in 1883. In 1934, AGSR's predecessor and MDOT’s predecessor entered into a contract to construct the underpass where Jobes’s accident occurred.

      .Jobes’s blood alcohol content was 0.095.

      . This correspondence is not in the record, but Jobes does not dispute it.

      . Jobes did designate "technical analyst” Benjamin Smith, but Jobes's expert designation stated that he was expected to testify only as to his "inspection of the accident site. including measurement taken by him and the photographs that were taken, which measurements and photographs are included in the initial preliminary report of Richard Fitzgerald, P.E.” There is no indication that Smith was going to testify about the Defendants’ duty or about what caused or contributed to the accident.

      . AGSR attached Jordan's deposition transcript to its motion and Dr. Blaschke’s affidavit to its supplemental motion.

      . AGSR attached Dr. Cleary's affidavit to its supplemental motion also.

      . "The jurisdiction of the Mississippi Department of Transportation shall be exclusive with respect to public roadway/railroad crossings either at grade or otherwise except to the extent that its jurisdiction is preempted by valid federal statute, regulation or order.” Miss.Code Ann. § 65-1-175(1) (Rev. 2012) (emphasis added).

      . “A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ... (d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]” Miss.Code Ann. § 11—46—9(1)(d) (Rev. 2012).

      ."A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ... (v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care[.]” Miss. Code Ann. § 11—46—9(1)(v) (Rev. 2012).

      . As mentioned above, Jobes designated Benjamin Smith as an expert, and he identifies himself in his affidavit as an "expert in accident reconstruction.” But again, Jobes's expert designation does not indicate that Smith was going to testify as to duty, breach, or causation, and she does not argue that he was going to on appeal.

      . In fairness to MDOT, we note that it seems to have abandoned this argument on appeal. In its brief, it argues only that its placement of traffic-control devices was discretionary.

      . We reiterate that Jobes has no expert for trial.

      . Tellingly, Jobes's counsel admitted at the summary judgment hearing that "[t]here's no testimony, no evidence what those national standards are at this time. That is an issue for resolution at some point in time.”

      . In Illinois Central Railroad Co. v. Farris (which is the same case relied on by Jobes to assert that AGSR has a common-law duty to maintain its railroad crossings), the Fifth Circuit Court of Appeals stated: "Narrowly, the term ‘crossing’ applies to an intersection of a railroad and a road or highway in the same plane. More broadly, the term includes overpasses, underpasses, bridges or other means by which one crosses from one side of a railroad to the other.” Illinois Cent. R.R. Co. v. Farris, 259 F.2d 445, 447 n. 2 (5th Cir.1958).

      . Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789 (Miss.2012).

      . As quoted above, Section 65-1-175(3) gives MDOT full power to place warning signs and other protective devices at railroad crossings: "The department shall have authority to determine the number, type and location of such signs, signals, gates or other protective devices which shall conform as near as may be with generally recognized national standards....” Miss.Code Ann. § 65-1-175(3) (Rev. 2012).

      . "The general rule in Mississippi is that expert testimony is not required where the facts surrounding the alleged negligence are easily comprehensible to a jury.” Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 388 (Miss.2001) (citing Hammond v. Grissom, 470 So.2d 1049, 1052 (Miss.1985)) (emphasis added).


author: DICKINSON, Presiding Justice, CHANDLER, Justice,

text:
    Richard A. CHUNN v. STATE of Mississippi, ex rel. MISSISSIPPI DEPARTMENT OF INSURANCE.
    No. 2013-SA-01353-SCT.
    Supreme Court of Mississippi.
    Jan. 22, 2015.
    Chandler, J., filed dissenting opinion in which Waller, C.J., Randolph, P.J., and King, J., joined.

      William Andy Sumrall, attorney for appellant.
    Office of the Attorney General by Mark Ivah Lampton, Brandon Lee White, attorneys for appellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Thirty-three years ago in Texas, Richard Chunn pleaded guilty to possessing marijuana. That conviction did not prevent him from pursuing his twenty-plus-year career as a licensed bail-bond agent. Then, in 2011, the Legislature amended Section 83-39-3 of the Mississippi Code by adding a provision that prohibits all felons — regardless of the nature and dates of the offenses — from obtaining or renewing a bail-agent license. When the Mississippi Department of Insurance refused to renew his license, Chunn challenged the constitutionality of the statute by appealing to the Hinds County Circuit Court, which affirmed. Because the statute violates the Equal Protection Clause of the Fourteenth Amendment, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1981, Richard Chunn pleaded guilty in Texas to possession of marijuana. Thereafter, and for the past thirty-three years, he has committed no other violations of the law. For the past twenty years, Chunn has worked as a licensed bail agent. Then the Legislature changed the law in July 2011 so that no felon — regardless of the nature of the felony or how long ago it was committed — may hold a bail-agent license.

¶ 3. In August 2011, Chunn applied to renew his license with the Mississippi Department of Insurance. As a result of this change in the law, the Department refused to renew his license. He appealed and the Circuit Court of Hinds County affirmed. Chunn now appeals to this Court, challenging the constitutionality of the statute.

ANALYSIS

¶ 4. Chunn contends that the law unconstitutionally deprived him of his license to work as a bail agent. We agree. The State has failed to articulate any rational basis for precluding all felons — regardless of the nature or age of the felony — from holding bail-agent licenses. Accordingly, the licensing requirement violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We reverse the decisions of the Hinds County Circuit Court and the Mississippi Department of Insurance.

¶ 5. The Fourteenth Amendment to the Constitution of the United States provides that “[n]o State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.” This promise “must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” So, “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Because neither a fundamental right nor a suspect class is involved in this case, the question is whether the law “bears a rational relation to some legitimate end” or advances “a legitimate government interest.” While few laws have trouble surviving this lenient test, the one before us today does not.

¶ 6. Before proceeding with this analysis, we pause to point out that the issue is not whether the State has a legitimate interest in prohibiting some felons from engaging in this profession. Rather, the question is whether the State has, in this case and as applied to Chunn, articulated a legitimate governmental interest for prohibiting a person whose only crime was thirty years ago, for possession of marijuana — which, interestingly, is now legal in numerous states for medical purposes, and in four states for recreational use.

¶ 7. It is undisputed that the law in question denies all felons — regardless of the nature and age of the crime, and regardless of their record and conduct following the crime — the opportunity ever to obtain a bail-agent license. Because Chunn challenged the statute’s constitutionality, the State was required to provide its legitimate governmental interest. It has failed to do so. The State’s only effort to describe a rational basis for the law was to say:

By virtue of a felony conviction, a person does lose some of the trust of society. The Mississippi Legislature, in all its wisdom, decided to protect the bail agent process, which is an important part of the judicial process, by restricting from its practice persons who have been convicted of a felony crime.

¶8. This rationale utterly fails. The reasoning that supports the government’s purpose — lack of trust — may apply to some felonies. For example, a conviction for embezzlement certainly calls into question the offender’s trustworthiness. But the statute’s broad reach includes many felonies that bear no relationship to trustworthiness. For instance, a person convicted of manslaughter for overloading a boat could not, under the statute in question, serve as a bail agent.

¶ 9. We do not stand alone in our views on this issue. Other courts have struck down similar laws, finding they violate the Equal Protection Clause. For instance, in Smith v. Fussenich, the plaintiff filed an equal-protection challenge to a Connecticut statute that barred all felony offenders from obtaining licenses as private detectives or security guards. The court employed a rational-basis review to analyze the statute’s constitutionality. The court noted that the state essentially contended that “there is an irrebuttable presumption that convicted felons cannot be relied on to exercise traits of honesty, fidelity, integrity and obedience to the law in the performance of their duties as guards and investigators.” The court soundly rejected that reasoning:

The legislation fails to recognize the obvious differences in the fitness and character of those persons with felony records. Felony crimes such as bigamy and income tax evasion have virtually no relevance to an individual’s performance as a private detective or security guard.

¶ 10. Likewise, in Furst v. New York City Transit Authority, a city transit worker who pleaded guilty to second-degree attempted manslaughter claimed that his termination under a transit authority policy requiring dismissal of all employees convicted of felonies violated the Equal Protection Clause. The court, applying a rational-basis review, found that the policy failed to satisfy rational-basis scrutiny because “a municipal employer must demonstrate some relationship between the commission of a particular felony and the inability to adequately perform a particular job.”

¶ 11. In still another example, a California federal court struck down a similar provision contained in a city charter, which precluded the employment of convicted felons by the city. The judge found that the policy violated Equal Protection:

Employment is denied to individuals, like plaintiff, who were convicted of felonies bearing no relationship whatsoever to the individual’s honesty or his ability to work. Thus, whereas a felony tax evader is denied a janitorship, a person with a known proclivity for violence or thievery, even a person actually convicted of misdemeanor assault or theft, is not automatically precluded from the job although his personal traits and even his previous misdemeanor convictions might reasonably be considered related to the opportunities and temptations presented by a janitorship. The distinction thus drawn between ex-felons and nonfelons is not rationally related to any legitimate state interests.

¶ 12. An Iowa court reached a similar conclusion in Butts v. Nichols. There, the court addressed the municipality’s contention “that municipal employees occupy a position of special trust, and since convicted felons have displayed their disregard for their fellow citizens, they should not be placed in a position to disregard the rights of their fellow citizens again.” The court concluded:

There is no doubt that the State could logically prohibit and refuse employment in certain positions where the felony conviction would directly reflect on the felon’s qualifications for the job (e.g., conviction of embezzlement and a job requiring the handling of large sums of money). The Iowa statutory scheme, however, has an across-the-board prohibition against the employment of felons in civil service positions. There is simply no tailoring in an effort to limit these statutes to conform to what might be legitimate state interests.

¶ 13. Finally, in Thompson v. Gallagher, a custodian at a city diesel plant challenged his termination under a city ordinance that precluded from city employment any person with a less-than-honorable discharge from the armed forces. The United States Court of Appeals for the Fifth Circuit found that the ordinance implicated neither a fundamental right nor a suspect class, so it performed a rational-basis review. The city had articulated its rational basis for the law as follows:

Certainly, the fact that a person does not get an honorable discharge from the armed forces conotes [sic], if not criminality, at least antisocial character. The City undoubtedly has an interest in not hiring persons with such character .... it cannot be gainsaid that the exclusion of persons with criminal and/or strongly antisocial character will not, in the long run, operate to create a better serving, more efficient and more reliable service.

¶ 14. But the court found that “[n]u-merous factors which have absolutely no relationship to one’s ability to work as a custodian in a power plant may lead to other than honorable discharges from the military....” The court held that “a general category of ‘persons with other than honorable discharges’ is too broad to be called ‘reasonable’ when it leads to automatic dismissal from any form of municipal employment.” Finding an equal-protection violation, the court held that “the ordinance which bars that class of persons from city employment, without any consideration of the merits of each individual case” was irrational.

¶ 15. As the Connecticut court said in Smith:

the statute’s across-the-board disqualification fails to consider probable and realistic circumstances in a felon’s life, including the likelihood of rehabilitation, age at the time of conviction, and other mitigating circumstances related to the nature of the crime and degree of participation. We believe it is fair to assume that many qualified ex-felons are being deprived of employment due to the broad sweep of the statute.

The State has provided a single line of explanation of the State’s rational basis for a law that prevents Chunn — whose only crime was possession of marijuana, thirty-three years ago — from continuing to work as a bail agent. Every felony — no matter its nature or how long ago it was committed — qualifies under this broad-brush statute. A person’s God-given, constitutional liberty to engage in a profession should not so easily be extinguished by the government.

¶ 16. Chunn — who has possessed a bail-agent license for twenty years — is one of the “many qualified ex-felons ... being deprived of employment due to the broad sweep of the statute” referenced in Smith. Because the statute fails to account for the differences in particular felonies and the relationship between particular felonies and fitness to hold a bail-agent license; and because it has no time limits for when the felony was committed, we must conclude that the statute, as applied to Chunn, violates the Equal Protection Clause.

¶ 17. In addition to Section 89-39-2, the Insurance Commission denied Chunn’s renewal because he failed to disclose his felony conviction in 1990 and 1991 renewal applications. While Section 83-39-15 of the Mississippi Code specifically allows the Commission to refuse to renew a license based on misrepresentations made in obtaining a license, it specifically limits that power to misrepresentations that are material. And while Chunn’s misrepresentations arguably were material to the 1990 and 1991 renewal decisions, they certainly are not relevant to applications submitted over a decade later. This is particularly true because the Commission has failed to show that, during his twenty-year tenure as a bail agent, Chunn has committed even the slightest violation of his responsibilities. So Chunn’s failure to disclose the conviction in 1990 or 1991 was not material to his current application and cannot justify denying Chunn a renewal of his license.

CONCLUSION

¶ 18. Because Section 89-39-2(2) lacks any rational basis as applied to Richard Chunn, we find that it violates the Equal Protection Clause of the Fourteenth Amendment. Chunn cannot be denied a bail-agent license based on such a broad-brush statute.

¶ 19. REVERSED AND RENDERED.

LAMAR, KITCHENS, PIERCE AND COLEMAN, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., RANDOLPH, P.J., AND KING, J.

CHANDLER, Justice,

dissenting:

¶ 20. I respectfully dissent. I would find that this statute passes the rational-basis test. Mississippi’s law is similar to laws found in other states, and such laws consistently have been upheld. While I agree with the majority that laws placing unqualified restrictions on felons should be reviewed carefully for equal-protection concerns, this law concerns a privilege license intimately associated with the workings of the criminal justice system. I cannot find that restricting felons from accessing this privilege is not rationally related to a legitimate government interest.

¶ 21. The majority is unable to cite a case that specifically strikes down an unqualified restriction on a felon’s ability to obtain a bail-bond license. Restrictions on a felon’s ability to obtain a bail-bond license are common nationwide and are consistently upheld. For example, in Texas, similar to Mississippi, anyone convicted of any felony is ineligible for a bail-bond license, as well as anyone convicted of a misdemeanor involving moral turpitude. Smith v. Tarrant Cnty. Bail Bond Bd., 997 S.W.2d 870, 874 (Tex.App.1999). Upholding newly tightened restrictions on a felon’s ability to obtain or renew a bail-bond license, the Colorado Supreme Court rejected the argument that the existence of more reasonable exceptions rendered the law unconstitutional, stating:

[T]he fact that such exemptions were enacted at one time does not compel the conclusion that a licensing act is invalid if the exemptions are eliminated. The mere failure of a governmental regulation to allow all possible and reasonable exceptions to its application is not sufficient to render the regulation unconstitutional. The General Assembly has broad discretion to fashion a licensing scheme that, in its view, protects the public health, safety, welfare, and morals, and we do not sit as a “super legislature” to weight the propriety of that legislation.

Ficarra v. Dep’t of Regulatory Agencies, Div. Of Ins., 849 P.2d 6, 22 (Colo.1993). That court also described the legitimacy of restrictions on felons as bail-bond agents as related to numerous governmental interests:

The bail bond business is intimately involved in the process of determining who in the criminal justice system will be released pending trial and who will remain incarcerated. Professional bail bondsmen must be prepared to handle valuable collateral, and to encourage within the bounds of the law the appearance at trial of persons accused (and sometimes previously convicted) of serious crimes. The importance to the public of the safe and honest performance of these activities can hardly be overemphasized, and thus the bail bond business is without question a matter of substantial public concern subject to reasonably regulation under the police power of the State.

Id. (citations omitted).

¶ 22. The rationale of these restrictions also is seen in the numerous laws-including Mississippi’s — prohibiting bond agents from employing felons. Davis-Everett v. Dale, 926 So.2d 279, 282 (Miss.Ct.App.2006); Ramirez v. State, 113 So.3d 28, 30 (Fla.Dist.Ct.App.2012).

¶ 23. I also disagree with the majority’s position that Chunn’s failure to disclose his felony on his initial bail-bond application is immaterial to his subsequent applications. Mississippi Code Section 83—39—15(1)(c) establishes that material misstatement, misrepresentation, or fraud in obtaining the license creates grounds for denial, suspension, revocation, and refusal to renew a license. Chunn would not have been granted his initial license if he had disclosed that he had a felony within the past ten years of that application, and his subsequent licenses were granted under a grandfather clause that a convicted felon could not be granted a license “unless presently licensed for bail bonds.” That “present license” was granted based on a misrepresentation.

¶24. I do not deny that the Legislature’s unqualified restriction may result in unfair consequences. However, this is not grounds for finding that a statute fails the rational-basis standard of review. Mississippi currently has numerous laws placing restrictions on felons in various contexts. Sympathetic as Chunn’s individual situation is in this particular case, I do not know that this Court wants to create such broad grounds for striking down restrictions under the rational-basis standard of review. The Legislature is free to enact a more sophisticated version of the statute if it wishes to enable felons in Chunn’s position to obtain a privilege license so closely related to the workings of our criminal justice system. For all of these reasons, I respectfully dissent.

WALLER, C.J., RANDOLPH, P.J., AND KING, J., JOIN THIS OPINION.

      . Miss.Code Ann. § 83-39-3(2) (Rev. 2011).

      . We stop to note that under Mississippi law, Chunn's possession of four ounces of marijuana could have been charged as either a misdemeanor or a felony. Miss.Code Ann. § 41-29-139(c)(2)(C) (Rev. 2013).

      . U.S. Const. amend. XIV, § 1.

      . Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).

      . Id.

      . See Smith v. Fussenich, 440 F.Supp. 1077, 1080 (D.Conn.1977)

      . Romer, 517 U.S. at 631, 116 S.Ct. 1620.

      . Id. at 632, 116 S.Ct. 1620.

      . Miss.Code Ann. § 83-39-3(2)(a) (Rev. 2011).

      . See Dillard v. Musgrove, 838 So.2d 261, 264 (Miss.2003).

      . Miss.Code Ann. § 97-23-19 (Rev. 2014).

      . Miss.Code Ann. § 97-3-41 (Rev. 2014).

      . Smith, 440 F.Supp. at 1078-79.

      . Id. at 1080.

      . Id.

      . Id.

      . Furst v. New York City Transit Auth., 631 F.Supp. 1331, 1332 (E.D.N.Y.1986).

      . Id. at 1336-38.

      . Kindem v. City of Alameda, 502 F.Supp. 1108, 1110 (N.D.Cal.1980).

      . Id. at 1112.

      . Butts v. Nichols, 381 F.Supp. 573, 574 (S.D.Iowa 1974).

      . Id. at 579-80.

      . Id. at 580.

      . Thompson v. Gallagher, 489 F.2d 443, 445 (5th Cir.1973).

      . Id. at 447.

      . Id. at 448.

      . Id. at 449.

      . Id.

      . Id.

      . Smith, 440 F.Supp. at 1080.

      . Miss.Code Ann. § 83—39—15(c) (Rev. 2011).

      . This is regardless of whether the felony involves moral turpitude.


author: KITCHENS, Justice, for the Court:

text:
    DEPENDABLE ABRASIVES, INC. v. Richard PIERCE.
    No. 2013-IA-01162-SCT.
    Supreme Court of Mississippi.
    Jan. 29, 2015.

      Silas W. McCharen, B. Stevens Hazard, Sandra Denise Buchanan, Jackson, Matthew Toxey Vitart, Ridgeland, Eugene M. Harlow, Laurel, attorneys for appellant.
    David Neil McCarty, Robert Allen Smith, Jr., Timothy W. Porter, Patrick C. Malouf, Ridgeland, John Timothy Givens, Jackson, attorneys for appellee.
    Before WALLER, C. J., KITCHENS and COLEMAN, JJ.
   KITCHENS, Justice, for the Court:

¶ 1. Richard Pierce has a debilitating and deadly disease known as silicosis. Having worked for many years as a sandblaster, preparing surfaces for painting, Pierce sued, among multiple defendants, sellers of sand including Dependable Abrasives, alleging that Dependable’s failure to provide adequate warnings of the dangers of the inhalation of respirable silica caused his silicosis and rendered Dependable strictly liable. The jury returned a verdict for Dependable Abrasives and the trial court granted Pierce a new trial. Aggrieved, Dependable Abrasives filed an interlocutory appeal in this Court. But, although the injury to Pierce was substantial, no causal link was established between the Dependable Abrasives product, Diamond Blast sand, and Pierce’s injuries. As such, the jury’s verdict was not against the overwhelming weight of the evidence. We therefore reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 2. Pierce worked as a sandblaster and painter from 1976 until 1992. According to Pierce’s trial testimony, this involved a work week of five to seven days, depending on weather, and workdays of eight to ten hours. A sandblasting machine shoots out sand at a high rate of speed through a nozzle, which is wielded by the machine’s user, in order to clean surfaces for painting. Pierce testified that the sand proceeds from the nozzle at a rate of 500 miles per hour and that, when sand hits metal, it ricochets back in the direction of the machine’s user. In 1992, Pierce changed careers to become a truck driver because he “couldn’t stand the paint fumes.” But in March of 2012, Pierce was making a delivery in New Orleans when suddenly he could not catch his breath. During a five-day hospital stay, Pierce was diagnosed with silicosis.

¶ 3. Dr. Steven Haber, a pulmonologist, testified at trial on behalf of Pierce, explaining that “[s]ilicosis is a disease of the lungs related to inhaling these crystalline silica particles” which are “like little shards of glass.” He continued that the particles “get deep into the lung and they cause inflammation and then scar tissue. And it’s the scar tissue that causes [the] disease silicosis.” A “disabling disease,” silicosis is “caused by breathing dust that contain[s] small pieces of crystalline silica.” However, the “crystalline silica is so small that you can’t see it with the naked eye. And it’s like little shards of glass that will get into the lungs.” Those “very small pieces get into the lungs and they get trapped in there. And they cut the lung and they scar the lung.” But unfortunately, according to Dr. Haber, medicine has no cure for silicosis: “There’s no stopping it. There’s no slowing it down.” He went on to say that the greater the respirable silica exposure, the greater the adverse effect on the lungs: “at the higher dose you get a much more exuberate response to the scar tissue.” The dose to which Pierce was exposed “was substantial,” according to Dr. Haber. As such, Dr. Haber estimated Pierce’s life expectancy: “I certainly wouldn’t be surprised if’ Pierce were to die “in three or four years, but death “certainly would be likely” within seven years.”

¶ 4. Industrial hygienist Dr. Vernon Rose described silica as a “silent killer,” because it “provides no warning of any type to the individual who is going to be harmed.” Rose, tendered as an expert witness in the field of industrial hygiene, continued: “And that is applicable to sand and especially the type of sand, the form of sand that can cause disease, which is different than the sand in your children’s play box and sand box, if you will.” Res-pirable silica “can’t be seen.” In fact, “these particles that get into ... the worker’s lungs [are] ten microns or less in diameter. Human hair is about 75 to 90 microns in diameter.” In the context of sandblasting, where it strikes metal and fractures, the silica then becomes respira-ble, but “it has no taste” and “it has no odor,” and therefore “the harmful form of the size of the sand has no warning properties.”

¶ 5. Because silica is a “silent killer,” companies producing sand warn users of the toxic and deadly nature of the product. Pierce called Dr. Edward Karnes, an expert in ergonomics, or the discipline “concerned with an evaluation of the human factors that are involved in the design and use of products, equipment, and facilities,” to testify to the adequacy of warnings placed on Dependable Abrasives’ sand. Dr. Karnes testified that manufacturers placing products in the marketplace “are in the best position to know about the hazards associated with their product.” As such, manufacturers of products have an obligation to eliminate the hazard, to provide some type of guard against the hazard, or to warn users of the hazards. Dr. Karnes testified that the warning on Dependable Abrasives’ product, Diamond Blast sand, was “[g]rossly inadequate,” because, among other reasons, it failed to inform the user of the product of the latent, fatal danger of respirable silica.

¶ 6. The former president of the now-dissolved Dependable Abrasives, Inc., James Dickerson, was called at trial as an adverse witness by Pierce. Dickerson, who had been owner and president of Dependable Abrasives from 1985 to 1998, testified that he sold Diamond Blast sand, which was marketed exclusively for sandblasting. Dickerson testified that he sold sand throughout Mississippi, Louisiana, and Alabama to eighty or ninety customers, but he had no sales receipts or records because they had been destroyed in a fire. According to Dickerson, eighty percent of his company’s sand was sold in Louisiana, fifteen percent was sold in Mississippi, and five percent was sold in Alabama. Dickerson testified that, of the eighty or ninety customers to whom he sold, he personally knew ninety percent of them and had actually been to and delivered the sand to their work sites.

¶ 7. Dependable Abrasives bought the sand, processed it, “bagged it and sold it in bulk in tanker trucks.” But Dependable Abrasives had not sold bagged sand until April of 1986: “[i]n the beginning it was mostly probably around 90 percent bulk sand; 10 percent bag sand. Eventually bagged sand grew to be about 20 percent.” Dickerson testified that, while all his competitors sold white sand, he sold brown sand “mined out of the red clay hills of Wiggins[, Mississippi].”

¶ 8. The parties never have disputed that Pierce suffers of silicosis, and Dr. Haber testified to the severity of Pierce’s silicosis. The parties did disagree at trial whether Pierce was exposed to sand produced by Dependable Abrasives. The defendants quipped: “[i]f we weren’t there, we cannot share the responsibility.” Nevertheless, Pierce testified that he had used Dependable Abrasives sand during his sandblasting career. He testified that “[i]t was a brown bag that had a diamond shape on it .... it looked like a star shining out from it and everything. And on the top of it had [written] Diamond Blast.” He recalled that the sand came from Wiggins, Mississippi. He recalled that there was a warning on the bag of Dependable Abrasives sand. When asked what he would have done if he had known that his inhalation of the product would be fatal, Pierce responded, “I’d [have] found something else to do.” But when asked the color of the sand he used from Dependable Abrasives, Pierce testified: “White. White sand.”

¶ 9. The case was tried from March 27, 2013, through April 3, 2013. On April 3, 2013, the jury returned a verdict for the defense. With regard to the first interrogatory to the jury, whether a preponderance of the evidence supported “that the Plaintiff, Richard Pierce, has injuries related to Plaintiff’s silica exposure,” the jury found in the affirmative. With regard to the second jury interrogatory, whether a preponderance of the evidence supported “that the Defendants’ products were defective because they failed to provide adequate warnings or instructions OR were defective in design, if any, and caused injuries to the Plaintiffs,” the jury by a vote of eleven to one voted “no.”

¶ 10. Pierce, on April 15, 2013, filed a “Motion for Judgment Notwithstanding the Verdict [JNOV], Or In the Alternative, For New Trial,” arguing that “the Jury’s finding that Dependable did not have a defective product because they provided an adequate warning is against all the evidence that was presented at trial.” On April 16, 2013, in accordance with the verdict, the circuit court rendered judgment in favor of Dependable Abrasives. But, following a hearing on the Motion for JNOV conducted on May 20, 2013, the circuit court entered an “Order Granting [Motion] for New Trial” on June 19, 2013. The circuit court held that “the jury’s finding that Dependable Abrasives did not have a defective product because they provided an adequate warning is against the overwhelming weight of the evidence presented at trial.” Dependable Abrasives petitioned this Court for an interlocutory appeal, which was granted on August 14, 2013.

¶ 11. On interlocutory appeal, Dependable raises the following issue, and four subissues:

The Trial Court abused its discretion by granting Pierce a new trial because the jury’s verdict was not against the overwhelming weight of the evidence.
A. The jury had a legally sufficient evidentiary basis to find that Pierce failed to prove that Dependable’s product caused his injuries.
B. Because Pierce failed to prove that he was exposed to Dependable’s product, the adequacy of Dependable’s warning was a moot issue.
C. Alternatively, the jury had a legally sufficient evidentiary basis to find that Pierce failed to prove that Dependable’s warning was inadequate.
D. The Trial Court improperly shifted the burden of proof to Dependable.

Finding the issue of causation dispositive, we address only the following:

Whether the overwhelming weight of the evidence presented at trial supports the trial court’s grant of a new trial to Pierce, in light of Dependable Abrasives’ assertion at trial and on appeal that Pierce never was exposed to its product, Diamond Blast sand.

STANDARD OF REVIEW

¶ 12. “The standard of review on a motion for a new trial is abuse of discretion.” Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.2d 20, 23 (Miss.2007) (citing Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997)). But “[a] jury’s verdict is given great deference by this Court, and ‘conflicts of evidence presented at trial are to be resolved by the jury.’” Johnson, 967 So.2d at 23 (citations omitted). This Court’s *“role of reviewing a challenge to the weight of the evidence is that of a thirteenth juror.” Johnson, 967 So.2d at 23 (citing Bush v. State, 895 So.2d 836, 844 (Miss.2005)). Nevertheless, “[t]he evidence reviewed ... ought to be weighed in the light most favorable to the verdict.” Johnson, 967 So.2d at 23 (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). “A new trial may be granted where the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty instructions, or when the jury has departed from its oath and its verdict is a result of bias, passion, and prejudice.” Dupree v. Plantation Pointe, L.P., 892 So.2d 228, 235 (Miss.2004) (citing Griffin v. Fletcher, 362 So.2d 594, 596 (Miss.1978)). This Court, “[w]hen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence,” only will “disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Johnson, 967 So.2d at 23 (quoting Bush, 895 So.2d at 844) (citing Herring, 691 So.2d at 957). To meet the “unconscionable injustice” standard, the yerdict must “shock the conscience or rest on a complete lack of evidence.” Johnson, 967 So.2d at 23 (citing Blossman Gas, Inc. v. Shelter Mut. Gen. Ins. Co., 920 So.2d 422, 426-27 (Miss.2006)).

ANALYSIS

Whether the overwhelming weight of the evidence presented at trial supports the trial court’s grant of a new trial to Pierce, in light of Dependable Abrasives’ assertion at trial and on appeal that Pierce never was exposed to its product, Diamond Blast sand.

¶ 13. On interlocutory appeal, Dependable Abrasives argues that the threshold question, product exposure, was not provén by Pierce at trial and, as such, the jury’s verdict was not against the overwhelming weight of the evidence. Pierce responds that the grant of a new trial should be affirmed and that the verdict was against the overwhelming weight of the evidence. In support of his argument, Pierce highlights the testimony of Dr. Karnes, who testified that the warning on the product inadequately warned of the deadly nature of respirable silica. Pierce also highlights his own testimony that he recalled the Dependable Abrasives’ product, Diamond Blast sand.

¶ 14. Pierce points out that “[t]here are two prongs a failure to warn claim must meet.” In order “[t]o rely on an inadequate warning to establish the existence of a defect, plaintiffs must prove that: 1. the manufacturer or seller knew or in the light of reasonably available knowledge should have known about the danger; and 2. that the ordinary user or consumer would not realize its dangerous condition.” 3M Co. v. Johnson, 895 So.2d 151, 166 (Miss.2005) (citing Miss.Code Ann. § 11-1-68(c)(i) (Rev.2014)). Pierce argues that both prongs were met, since Dickerson testified that he drafted the warning which appeared on the Diamond Blast sand, knowing of the potentially fatal hazard of silica inhalation. Because the warnings contained, in Pierce’s words, “soft language,” he was not on notice that he could die from inhalation of respirable silica. Dr. Karnes testified that the warning was “grossly inadequate.” Pierce, therefore, posits that “the jury ignored [Karnes’s testimony regarding the inadequacy of warnings] and proceeded to determine that the warning was safe. This was a startling abandonment of their duty....”

¶ 15. But Mississippi Code Section 11-1-63(c)(i) states:

In any action alleging that a product is defective because it failed to contain adequate warnings or instructions ... the manufacturer, designer or seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, designer or seller, the manufacturer, designer or seller knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought that the ordinary user or consumer would not realize its dangerous condition.

Miss.Code Ann. § 11-1-63(c)(i) (Rev.2014) (emphasis added). In SM, the Court continued that “[a] key element ... for a failure-to-warn claim is proof of a causal link between the plaintiffs injuries and the product’s allegedly lacking a warning or having an inadequate warning.” 3M, 895 So.2d at 166. The Court continued: “In other words, the failure to warn must be the proximate cause of the injuries suffered or it is irrelevant.” Id. (citations omitted).

¶ 16. Product exposure is a threshold question in products liability cases: “[I]t is incumbent upon the plaintiff in any products liability action to show that the defendant’s product was the cause of the plaintiffs injuries.” Banks ex rel. Banks v. Sherwin-Williams Co., 134 So.3d 706, 710 (Miss.2014) (quoting Moore ex rel. Moore v. Miss. Valley Gas Co., 863 So.2d 43, 46 (Miss.2003)). Even accepting as true Pierce’s allegation that the warnings on the Diamond Blast sand were “grossly inadequate,” as posited by Dr. Karnes, there can be no recovery if Pierce failed to prove that the danger of inadequate warnings on Diamond Blast sand “caused the damage for which recovery is sought.”

¶ 17. Very recently, this Court considered the question of product exposure in Mississippi Valley Silica v. Reeves, 141 So.3d 377 (Miss.2014). In that case, R.B. Reeves worked as a brakeman and as a conductor for Illinois Central Railroad from 1947 to 1991. Id. at 378. Reeves was exposed to sand and dust, dispensed onto the tracks for the purpose of creating locomotive wheel traction. Id. Reeves was diagnosed with interstitial pulmonary fibrosis and, after joining multiplaintiff suits against numerous defendants, died in 2010. Id. at 390. Following his death, Reeves’s widow and wrongful death beneficiary, Gwendolyn, was substituted as plaintiff. Id. The jury returned a verdict for Reeves, and Mississippi Valley Silica appealed the denial of its motion for judgment notwithstanding the verdict. Id. at 380.

¶ 18. In spite of an abundance of evidence regarding the extent of R.B.’s silica exposure, “Valley’s failure properly to warn about the dangers of silica exposure, and how R.B.’s exposure to silica had caused silicosis and ultimately, his death,” this Court reversed and rendered a judgment in favor of Mississippi Valley Silica. Id. at 380, 384. The Court held that “[t]he plaintiff failed to adduce sufficient evidence from which a jury reasonably could conclude that any appreciable amount of the silica inhaled by Robert B. Reeves over the course of his career was supplied by Valley.” Id. at 384. The Court continued: “No evidence of invoices or other records detailing sale of Valley sand to Illinois Central was adduced; no testimony by workers who actually filled the sand tanks on the locomotives was forthcoming.” Id. The only evidence linking Reeves’s injuries to Mississippi Valley sand was Reeves’s own testimony that he had handled a single bag of Mississippi Valley sand in the 1970s. Id.

¶ 19. In the present case, Pierce testified he had worked as a sandblaster between 1976 and 1992, that he had used several sands throughout his career, and that he had recognized the Diamond Blast (Dependable Abrasives’ brand) bag. Dickerson, Dependable’s president, testified that, although Dependable was founded in April 1985, the sand was not sold in bags until April 1986. Donna Pierce, the plaintiffs wife, testified that Pierce had worked for Williams Surry in Virginia for about a year, from around November 1986 through November 1987. She testified that he had worked for Mansville Industrial Coatings in the Virgin Islands from November 1987 through December 1990. Pierce, himself, testified that he had worked in the Virgin Islands for Mansville for three years. He testified that, in 1991, he began a new career as a truck driver with A & D Transport, and did “very little” sandblasting in 1991 and 1992. Dickerson, the former president of Dependable, testified that he never sold any sand in Virginia, nor did he sell sand to Mansville Industrial Coatings or in the Virgin Islands. Thus, Dependable contends that the only “time period during which Pierce could possibly claim exposure to Diamond Blast was from April 1986 until November 1986 and [during] a very small fraction of 1991 and 1992.”

¶ 20. Pierce could not recall where or when he used or was exposed to Diamond Blast sand. While Pierce was able to identify the Dependable Abrasives bag, he could not correctly identify the sand itself. He testified that the sand was white. Pierce’s testimony that the sand was white in color contrasted with Dependable President Dickerson’s uncontradicted testimony that his company’s sand was distinctly brown in color, due to its extraction from the red clay hills in or near Wiggins, Mississippi. Pierce further testified that Clark Sand, which he also professed to have used, was a white sand, just like that of Dependable Abrasives. Dickerson testified that Dependable never sold sand to any of the companies for which Pierce had worked, though Dependable did sell to eighty or ninety customers who engaged in subcontracting activities. Dickerson responded affirmatively when asked whether he “wouldn’t know all the work sites that [his] sand reached.”

¶21. The jury was instructed as follows:

The Plaintiff must prove by a preponderance of the evidence that he frequently and regularly used or was in close proximity to Defendant’s products under the circumstances that would make it reasonably likely that such product was a substantial contributing cause of his injury, if any. Mere evidence that Plaintiff was in close proximity to Defendant’s products on a single occasion, or on an infrequent basis is not sufficient to establish that Defendant’s products cause [sic] plaintiff injury if any.

The jury was provided a Jury Verdict Form which, in part, posed the following options:

If 9 or more of you find by a preponderance of the evidence (more likely true than not true) that the Defendants’ products were defective because they failed to provide adequate warnings or instructions OR were defective by design, if any, and caused injuries to the Plaintiff, state “YES” in the blank provided. If you find the answer to this question as to any Defendant is no, please indicate “NO.”

(Emphasis added.) As to Dependable Abrasives, the jury checked “NO.” Polling of the jury following the reading of the verdict revealed that the “NO” result was reached by a margin of eleven to one. The circuit court granted a new trial because “the jury’s finding that Dependable Abrasives did not have a defective product because they provided an adequate warning is against the overwhelming weight of the evidence presented at trial.”

¶22. While the circuit court held that the jury’s finding that Dependable Abrasives’ warning was adequate was against the overwhelming weight of the evidence, the circuit court altogether failed to analyze whether the jury’s determination of causation was against the overwhelming weight of the evidence. Even though an abundance of evidence may have been presented regarding the extent of Pierce’s exposure to respirable silica, with respect to Dependable Abrasives’ “failure properly to warn about the dangers of silica exposure, and how [Pierce’s] exposure to silica had caused silicosis,” as in Reeves, “[t]he plaintiff failed to adduce sufficient evidence from which a jury reasonably could conclude that any appreciable amount of the silica inhaled by [Richard Pierce] over the course of his career was supplied by [Dependable Abrasives].” Reeves, 141 So.3d at 384. In the present case, Pierce remembered the Diamond Blast bag and the warning label, but could not accurately recall the color of the sand, the very product that he alleged had caused his injuries. If he was exposed at all, the time frame in which Pierce could have worked with Diamond Blast sand was minimal. Indeed, this case is more favorable to the defense than Reeves, since the jury here rendered a verdict in favor of Dependable Abrasives. Under the facts presented, this conclusion cannot be said to have been “against the overwhelming weight of the trial evidence.”

¶ 23. This Court has held that “the jury should be ‘permitted to pass upon the question of fact raised by this conflicting evidence.’ ” Banks, 134 So.3d at 711 (quoting Searles v. Alabama & Vicksburg Ry. Co., 69 Miss. 186, 13 So. 815, 816 (1891)). “When evidence is conflicting, we defer to the jury’s determination of the credibility of witnesses and the weight of their testimony.” Banks, 134 So.3d at 711 (quoting Bickham v. Grant, 861 So.2d 299, 307 (Miss.2003) (quoting Ducker v. Moore, 680 So.2d 808, 811 (Miss.1996))). “The credibility of witnesses and the weight of their testimony, along with the interpretation of the evidence where there are multiple reasonable interpretations, is primarily a determination for the trier of fact.” Banks, 134 So.3d at 711 (citing Bickham, 861 So.2d at 307; Abrams v. Marlin Firearms Co., 838 So.2d 975, 981 (Miss.2003); Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967)).

¶ 24. In Banks, for instance, this Court reversed a grant of summary judgment to Sherwin-Williams where the evidence showed that only Sherwin-Williams paint was used on playground equipment and the paint tested positive for lead, “a jury could reasonably infer that the paint on the playground equipment came from Sherwin-Williams.” Banks, 134 So.3d 706, 711 (Miss.2014). The Court held that, while “Sherwin-Williams did an excellent job of compiling evidence to contradict the plaintiffs’ evidence that the lead paint on the playground equipment originated at its store in Cleveland, Mississippi,” the evidence “at best creates doubt that summary judgment is appropriate.” Id. at 712. In this case, the jury actually heard the contradictory evidence and rendered a verdict in favor of the defendant. As for product exposure and causation, allowing the jury’s verdict to stand cannot be said to amount to “an unconscionable injustice.” Johnson, 967 So.2d at 23 (citations omitted). The verdict here does not “shock the conscience or rest on a complete lack of evidence.” Id. (citations omitted). As such, we find that the circuit court abused its discretion in granting a new trial.

CONCLUSION

¶ 25. Though Pierce’s condition is terminal and his suffering immeasurable, insufficient evidence was adduced at trial to prove, by a preponderance of the evidence, that Dependable Abrasives’ Diamond Blast sand caused his silicosis. The jury’s verdict for Dependable Abrasives, therefore, was not against the overwhelming weight of the evidence. Because no causal link was established between Pierce’s injuries and Dependable Abrasives’ product, we reverse the circuit court’s grant of a new trial and render a judgment that the jury’s verdict for Dependable Abrasives be reinstated.

¶ 26. REVERSED AND RENDERED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., NOT PARTICIPATING.

      . Pierce's lawsuit against Dependable Abrasives was tried simultaneously with his claims against codefendant American Optical Corporation, a company which had produced allegedly defective equipment used for the purpose of protecting against dust inhalation. Pierce’s Motion for a Judgment Notwithstanding the Verdict, or in the Alternative, for New Trial, requested relief as to Dependable Abrasives only. The trial court granted Pierce a new trial against Dependable Abrasives.

      . Pierce’s counsel did, in fact, question Dickerson about a sales invoice from Degussa Corporation, one of the companies for which Pierce testified he had worked, but the document was never marked for identification, offered as an exhibit, or entered into evidence. It does not appear in the appellate record.

      . The verdict form, which nests causation in the same interrogatory with the adequacy of warnings, was drafted by Pierce’s counsel. It is impossible to know precisely upon which element (inadequacy of warnings or causation) the verdict rested.