                    IN THE SUPREME COURT OF MISSISSIPPI

                            NO. 1999-CA-01141-SCT



YALE MATERIALS HANDLING CORPORATION, GALBREATH INCORPORATED,
GALBREATH, INC., GALBREATH COMPANIES AND GALBREATH-ESCOTT, INC.
v.
DONNA RICHARDS BRANDON, WIDOW AND PERSONAL REPRESENTATIVE OF
JOHN WESLEY BRANDON, DECEASED, FOR THE BENEFIT OF THE WRONGFUL
DEATH BENEFICIARIES OF JOHN WESLEY BRANDON, DECEASED,
CONTINENTAL INSURANCE COMPANY AND FIDELITY & CASUALTY COMPANY OF
NEW YORK



DATE OF JUDGMENT:      9/28/1998
TRIAL JUDGE:           HON. JOHN M. MONTGOMERY
COURT FROM WHICH       LOWNDES COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR          J. GORDON FLOWERS
APPELLANTS:
                       MARC DARREN AMOS

                       JONATHAN R. COOPER

                       RICHARD HENRY SPANN

                       JAMES PHILLIP WILSON

                       JOHN M. CHRISTIAN
ATTORNEYS FOR          R. DAVID KAUFMAN
APPELLEES:
                       JOHN ERNEST WADE

                       JOSEPH N. STUDDARD

                       DAVID WAYNE BARIA

                       DAVID O. KEMP
NATURE OF THE CASE:    CIVIL-WRONGFUL DEATH
DISPOSITION:           AFFIRMED ON DIRECT APPEAL. REVERSED AND REMANDED
                       ON CROSS-APPEAL 05/23/2002
MOTION FOR             6/6/2002
REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      McRAE, PRESIDING JUSTICE, FOR THE COURT:




¶1. Plaintiffs, the wrongful death beneficiaries of John Wesley Brandon, were assessed $3.5 million in
compensatory damages by a Lowndes County Circuit Court jury in a product liability/wrongful death suit
originating from a workplace accident involving a forklift and a trash hopper or dumpster at the Eka Nobel
Chemical Plant in Lowndes County. The jury assigned 40% of the fault to Galbreath,(1) the manufacturer of
the hopper; 30% to Yale Materials Handling Corporation, the manufacturer of the forklift; 15% to Eka
Nobel, Brandon's employer; 5% to The Duriron Company, the distributor of the hopper; and 10% to
Brandon. Duriron, which sold the hopper to Eka Nobel as part of a hazardous waste disposal system, was
dismissed prior to trial after entering into a settlement with the wrongful death beneficiaries. Eka Nobel was
not a named defendant inasmuch as it was exempt from suit as a statutory employer. Workers'
compensation benefits were paid by Continental Insurance Company and Fidelity Casualty Company of
New York which intervened in the wrongful death action.

¶2. In its special verdict form, the jury allocated 100% of the $3,500,000 damages among Brandon (10%),
Galbreath (40%), Yale (30%), Duriron (5%) and Eka Nobel (15%). Before the court assessed damages in
proportion to these fault percentages, it subtracted the $35,000 Duriron settlement from the $3.5 million.
Then the court subtracted 10% (representing Brandon's comparative fault) of the balance of the $3.5
million. Finally, it determined what 40% and 30% of the balance would be and assessed those amounts
against Galbreath and Yale. The judgment ordered Galbreath to pay $1,247,400 and Yale to pay $935,
550.

¶3. On appeal to this Court, Galbreath and Yale take issue with some of the evidentiary rulings, the denial
of a directed verdict, jury instructions, plaintiffs' closing argument, the conduct of jury deliberations, and the
jury verdict. Plaintiffs have cross-appealed seeking a recalculation of the verdict amounts apportioned to
Galbreath and Yale. Many of the issues are without merit or are procedurally barred and, therefore, will not
be discussed in this opinion. Only those issues warranting analysis are included herein. We hereby affirm the
judgment on direct appeal and reverse for recalculation on cross-appeal since the employer was assessed
15% fault and Duriron's 5% fault was improperly credited.

                                                    FACTS

¶4. On January 28, 1991, Brandon's foreman asked him to dump some hoppers containing hazardous
waste into a trailer for ultimate disposal. Brandon had just completed his shift and was about to leave. He
obtained a Yale forklift and drove to the first hopper. Brandon and his co-worker Mike Young then
secured the hopper onto the forklift with chains. Young rode a bicycle and followed the forklift to the dump
site.
¶5. Two methods were used at the Eka Nobel plant to dump the hoppers. The first method was to tilt a
loaded hopper back on the forklift, release the latch, elevate it, and then tilt the hopper forward, causing the
hopper to discharge its contents. The second method was to elevate the loaded hopper without tilting it
backwards and, while standing on the ground, a co-employee, would use an 8 to 10 foot trip rod to trip
open the safety release latch to the hopper lid. The hopper was then tilted forward to dump the contents.
The forklift operators were required to elevate the hoppers ten feet or more because of the height of the
trailers used to haul off the waste. Eka Nobel preferred that the release for the hopper cover not be
engaged prior to elevation because the hopper contents could be spilled during elevation. Apparently, the
second method was commonly used to dump Galbreath hoppers.

¶6. Neither Young nor Brandon could find the 10-foot trip rod to dump the first hopper. The hopper
contained a corrosive substance referred to as "cakes" consisting of a high concentration of salt. The cakes
were a by-product of the manufacturing process used by Eka Nobel. To dump the first hopper, Brandon
used the first method. He tilted the forks of the forklift backwards, released the hopper safety latch,
elevated the hopper, and then tilted the forks forward, causing the hopper to empty its contents.

¶7. Young and Brandon then returned to pick up and secure the second hopper. Brandon instructed Young
to check on something else and said he would dump the second hopper by himself. The second hopper was
a Galbreath Model H-150W hopper, and the second method was used to dump it. The H-150W has a
latch lock in addition to a safety release latch. The latch lock rotated clockwise, essentially blocking the
safety release latch. In order for the H-150W to dump, the latch lock would have to be unlocked and the
safety release latch would have to be unlatched. The H-150W is "self-dumping" in that once the latch lock
and the safety release latch are opened, a loaded hopper's center of gravity will cause the hopper to tip
forward on its rockers and empty its load. The hopper then rocks backwards and relatches itself. The latch
lock must be disengaged before the hopper is elevated, while the safety release latch can be released when
triggered by a trip rod while the hopper is elevated.

¶8. There were no eyewitnesses to the accident. After the accident occurred, co-workers found Brandon
standing on the dashboard or cowling of the forklift, facing the hopper and pinned between the overhead
guard and the mast(2) of the forklift. Apparently, Brandon was standing on the dashboard attempting to
trigger the safety release latch when his foot came into contact with the tilt control lever and the mast tilted
backwards. The engine of the forklift was running and a 3 to 3-1/2 foot pipe was found in the immediate
vicinity of the forklift. The hopper's safety release latch was closed. Brandon sustained severe crushing
injuries to his pelvis, bladder and urethra and died of his injuries several days later.

¶9. Plaintiffs contended that the hopper was improperly designed and unreasonably dangerous because it
was not equipped with a pull rope which allows a person to pull a rope passing through a pulley, causing the
safety release latch to unlatch while the operator is safely within the overhead guard. Galbreath offered the
pull rope attachment as an optional feature, but the hopper in question was not equipped with the pull rope.
Plaintiffs claimed that the hopper was unreasonably dangerous because it could not be dumped safely and
reliably from elevated heights while the forklift operator remained in the cab, thus forcing the operator to exit
the cab and use other dangerous methods to attempt to open the safety release latch to dump the elevated
hopper. The forklift at issue was a Yale Model GP040.

¶10. Plaintiffs contended that the Yale forklift was unreasonably dangerous for three reasons. First, the tilt
and lift controls which activated its mast were located in an unsafe position and were not adequately
protected from inadvertent contact. Second, Yale failed to design the forklift so that its users would be
prevented from standing on the dashboard even though it was reasonably foreseeable that users would do
so. Finally, Yale failed to provide adequate warnings and instructions to prevent users from placing
themselves in dangerous positions while dumping a hopper from elevated heights even though it was
reasonably foreseeable to Yale that this situation may occur.

¶11. Design alternatives proposed by plaintiffs' experts included that Yale should have relocated the forklift
controls to another location; placed a shield in front of the controls; utilized some type of locking mechanism
like a button that had to be pressed before the controls were activated; utilized a seat actuated hydraulic
lock to lock the controls if the operator left the seat; or utilized a barrier device to keep people from
actuating the controls while standing on the cowl.

¶12. Galbreath and Yale contended that Brandon, a trained and certified forklift operator, caused the
accident by violating safety rules and the procedures taught him during training for the safe operation and
use of the equipment, including that Brandon was negligent by failing to turn the engine off before attempting
to unlatch the hopper; by attempting to dump the hopper by himself; by failing to remain inside the cab while
the forklift was running; by standing on the dashboard of the forklift to unlatch the hopper; and by
admittedly being in a hurry.

¶13. With respect to the defective design of the forklift, Yale argued that the location of the controls was
common in the industry and did not make the forklift unreasonably dangerous, and it asserted that the
plaintiffs' expert's suggestions as to the forklift's designs had never been used by any forklift manufacturer
and could be dangerous. Yale also contended that Eka Nobel contributed to the incident by removing the
original overhead guard and replacing it with another which significantly decreased the clearance space
between the overhead guard and the mast. Further, Eka Nobel's decision to dump its hoppers over the high
sides of a trailer without purchasing the optional pull rope attachment for elevated dumping contributed to
the accident.

¶14. Galbreath introduced evidence of a risk-benefit analysis of the pull rope attachment which concluded
that the pull rope attachment would increase risks in situations where the attachment was not needed. The
rope could dangle and cause a nuisance or even be run over, causing a premature release of the hopper. If
the hopper were elevated on the forklift, the forklift operator might be tempted to reach between the
hopper and the forklift to pull the rope. Finally, Galbreath contended that no other manufacturer utilized a
pull rope attachment as standard equipment for hoppers.

                                               DISCUSSION

      I. JURY VERDICT.

      A. Was the verdict against the overwhelming weight of the evidence?

¶15. Galbreath contends that the verdict was against the overwhelming weight of the evidence. Plaintiffs
contend that Galbreath is liable because the hopper had no pull-rope attachment. Galbreath asserts that the
evidence presented at trial established that the absence of a pull-rope attachment for the hopper did not
make the hopper defective.

¶16. To determine if a verdict is against the overwhelming weight of the evidence,
      this Court must accept as true the evidence which supports the verdict and will reverse only when
      convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the
      verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would
      sanction an unconscionable injustice will this Court disturb it on appeal.

Herrington v. Spell, 692 So.2d 93, 103-04 (Miss. 1997).

¶17. We find that the jury verdict was amply supported by credible evidence. The remedial measures taken
and the pre-accident warnings given by Galbreath and Yale show that they knew of the hazards of
operating the forklift and hopper in the manner used by Brandon. In essentially a "battle of the experts,"
Brandon's experts unequivocally stated that the pull rope attachment should have been standard equipment
instead of optional and that if the pull rope attachment had been on the hopper in question, the accident
could have been avoided. It is obvious that the jury believed Brandon's experts over those of Yale and
Galbreath. The jury's allocation of 10% of the liability to Brandon indicates that it considered Brandon's
negligence. The evidentiary and jury instruction rulings complained of by Yale and Galbreath did not infect
the trial with undue prejudice and bias.

      B. Was the verdict the result of bias, passion and prejudice?

¶18. Yale contends that the jury verdict evinced bias, passion and prejudice because the award exceeded
plaintiffs' damage request by $1.2 million and its allocation of fault was half of that suggested by plaintiffs'
attorneys. During closing argument, plaintiffs' counsel asked for $2,303,324 in actual damages and to assign
Brandon 20% of the fault. The jury awarded $503,324 in economic damages and $2,996,676 in non-
economic damages, for a total of $3.5 million, and found Brandon to be 10% at fault. The closing argument
does not limit the jury from awarding more damages than requested, and the jury's pronounced departure
from what was requested, even when compared with the evidence before the jury, does not support the
claims of prejudice.

¶19. We find that the jury's verdict did not evince bias, passion and prejudice and that the jury's finding that
Galbreath and Yale were liable was supported by substantial credible evidence. Therefore, the jury's
allocation of 40% of the fault to Galbreath and 30% of the fault to Yale is not excessive. The evidence and
jury instructions complained of by Yale and Galbreath did not render the trial unfair.

¶20. The jury impaneled by the parties was the weigher of facts. Its finding that Brandon was 10% liable
was certainly supported by the evidence. Likewise, the damages awards by the jury should not be
disturbed unless they are "flagrantly outrageous and extravagant, where they have no standard by which to
ascertain the excess." Detroit Marine Eng'g v. McRee, 510 So.2d 462, 471 (Miss. 1987). The verdict
and damages awards are supported by the evidence and cannot be said to be outrageous or extravagant.
The verdict was not the result of bias, passion or prejudice; and therefore, it stands.

      II. JURY INSTRUCTIONS

      A. Jury Instruction No. DG-19 (refused)

¶21. Galbreath complains that the trial court should have given its proffered instruction concerning
knowledge of danger as precluding a failure to warn as follows:

      If a person knows of a danger, a warning cannot increase his awareness of its presence, and where a
      warning would not have prevented the harm, a failure to warn cannot be the proximate cause of the
      injury.

      If you believe from a preponderance of the evidence that [Brandon] knew that one should never put
      his body between the mast and overhead guard of a forklift while standing on the dash or cowling
      with the forklift engine running then a specific warning regarding the pinch point would not have
      increased the plaintiff's awareness of the danger. Therefore, a specific written warning about the pinch
      point would not have prevented the harm, and the lack of such a warning could not have been the
      proximate cause of the plaintiff's injury.

Galbreath argues that manufacturers are not required to warn of dangers that are open and obvious, Toney
v. Kawasaki Heavy Indus. Ltd., 763 F. Supp. 1356, 1360 (S.D. Miss. 1991), aff'd, 975 F.2d 162 (5th
Cir. 1992), and that if the jury found that Brandon should have known not to stand on the dashboard, a
warning would have been moot. The trial court refused to give the instruction on the basis it was repetitive.

¶22. We have stated that if something is open and obvious to the plaintiff, it is also open and obvious to the
defendant. See Horton v. American Tobacco Co., 667 So.2d 1289, 1300 (Miss.1995); Tharp v.
Bunge Corp., 641 So.2d 20, 25 (Miss. 1994). Plaintiffs argue that other instructions adequately explained
that the jury could consider Brandon's "ability to avoid danger by the exercise of due care in the use of the
hopper as designed"; Brandon was negligent by placing himself between the mast and the overhead guard;
the jury could find that Brandon's negligence was the sole proximate cause of his injuries and death; and
comparative negligence instructions were given. The court instructed the jury that if Brandon "would have
suffered the same injuries and ultimately died if the warning labels had been replaced, then the alleged failure
to replace the labels should not be considered by you in determining whether Galbreath is liable under strict
liability or negligence." The jury found Brandon to be 10% negligent. Obviously the jury considered
Brandon's negligence in returning the verdict. The trial court did not err in refusing the requested instruction.

      III. RULINGS ON EVIDENTIARY MATTERS.

      A. Admission of investigative report containing hearsay.

¶23. Ron Good, a safety engineer employed by Eka Nobel, investigated the accident. Good interviewed
Bobby Smith, an Eka Nobel employee, who stated that, although he had never personally observed such,
he had heard that other people had stood on the dashboard of the forklift and used a short rod to release
the safety release latch on the hopper for dumping. Based on this conversation, Good's report stated, "It
has since been learned that a number of other plant employees have attempted the same maneuver violating
a rule of safe forklift operation. This illustrates a learned, unsafe behavior that has been allowed to continue
and eventually someone would get hurt." Yale argues that this statement was based on "hearsay within
hearsay" or "triple hearsay." The trial court overruled the objection, finding that the evidence constituted an
exception to the hearsay rule and that other evidence of negligence had been introduced. The trial court
stated:

      The motion in limine in regard to excluding portions of the report prepared by Mr. Ronald Wayne
      Good is [denied]. The Court finds that it is an exception to the hearsay rule and also the Court has
      allowed evidence of negligence, alleged negligence on the part of Eka Nobel and this report was
      made by an employee of Eka Nobel, and in the interest of justice, the Court feels that it would be best
      to allow the entire report to come in and it will be given. The Court will instruct the jury that they can
      give it whatever weight and worth they feel that it should be given and the motion in limine is [denied].

¶24. Because the trial court stated that it had allowed evidence of Eka Nobel's negligence and that the
report was made by an employee of Eka Nobel, we will assume that the exception to the hearsay rule
referred to by the trial court is that of a declaration against interest. However, plaintiffs argue that the report
was trustworthy and therefore an exception to the hearsay exclusionary rule inasmuch as it was generated in
the regular course of business.

¶25. The foundational requirements for business records are that (1) the statement is in written or recorded
form; (2) the record concerns acts, events, conditions, opinions or diagnoses; (3) the record was made at
or near the time of the matter recorded; (4) the source of the information had personal knowledge of the
matter; (5) the record was kept in the course of regular business activity; and (6) it was the regular practice
of the business activity to make the record. M.R.E. 803. See also Flowers v. State, 773 So.2d 309, 331-
32 (Miss. 2000). The comments to M.R.E. 803 state that there must be testimony from a foundational
witness to provide evidence of the foundation requirements. See also id.

¶26. In the case at bar, Good testified that he was the safety engineer at Eka Nobel on the date of the
accident. When he arrived at the accident scene, Brandon, who was conscious, had been removed from the
forklift and was lying on the ground. Eka Nobel supervisors requested that Good prepare an accident
investigation report, and he did so within the next two days. We therefore find that the report was generated
during the regular course of business and was admissible under M.R.E. 803.

¶27. The evidence contained in the report tends to confirm plaintiffs' allegation that Galbreath and Yale
knew that the forklift and hopper would be operated in the way that Brandon was using them, and that they
should have therefore modified their designs. There is other evidence in the record to prove that Galbreath
and Yale should have known of the dangerous way in which Eka Nobel employees used the equipment.
For instance, Yale modified the design of other forklifts prior to Brandon's accident, moving the controls
from the dashboard to the area around the base of the seat. Furthermore, Galbreath published
advertisements showing the hopper in question elevated ten feet off the ground by a forklift demonstrating
that one of the hopper's intended uses was dumping at elevated heights. Therefore, Galbreath was aware
that industrial workers would attempt to dump the hoppers while elevated, and that if the pull rope
attachment was not standard equipment, other means of unlatching the hopper would be utilized.

¶28. Good's report was generated in the regular course of business, and the jury heard other evidence of
reasonable foreseeability on the part of Yale and Galbreath.

      B. Evidence of misuse of the forklift by Eka Nobel employees.

¶29. Brandon's widow testified that Ed Adkins, an Eka Nobel employee, told her that the method Brandon
was using to dump the hopper had "been done a million times before." Yale and Galbreath objected on the
grounds that the testimony was hearsay and was not covered by any relevant exception. The trial court
ruled that the statement was admissible because it was an admission against interest. Yale claims that this
ruling was reversible error because Eka Nobel was not a party; and therefore, its agent could not be
making an admission against interest.

¶30. Adkins's statement was a declaration against interest, not an admission against interest because
neither Adkins nor Eka Nobel were parties to the suit. See, e.g., Clay v. Int'l Harvester Co., 674 So.2d
398, 408-09 (La. 1996). Therefore, M.R.E. 804(b)(3) applies. M.R.E. 804(b)(3) provides that a
declaration against interest may be admissible as an exception to the hearsay rule "if the declarant is
unavailable as a witness." Because plaintiffs did not show that either Adkins or Eka Nobel (through its
corporate representatives) was unavailable to testify at trial, the declaration against interest constituted
inadmissible hearsay. Nevertheless, the erroneous admission of this testimony cannot be said to unfairly and
substantially prejudice Galbreath and Yale because other evidence of foreseeability and misuse was
admitted. At best, it was harmless error.

      IV. RECALCULATION OF APPORTIONMENT OF DAMAGES.

¶31. On cross-appeal, plaintiffs contend that the trial court incorrectly credited Galbreath and Yale twice
for Brandon's comparative negligence and for the amount of Duriron's settlement; in other words, the trial
court erred by subtracting Duriron's settlement and Brandon's 10% allocation of fault prior to multiplying the
balance by the percentages allocated to Galbreath and Yale.

¶32. First, we note that the allocation of fault and apportionment of damages are separate calculations. The
jury is required by Miss. Code Ann. § 85-5-7(7)(1999) to allocate the percentage of fault for all parties
alleged to be at fault. However, fault should not be allocated to employers who are immune from liability by
virtue of our workers' compensation laws. See Accu-Fab & Constr., Inc. v. Ladner, 778 So.2d 766,
770 (Miss. 2001). Therefore, the trial court erroneously instructed the jury to allocate fault to Eka Nobel,
the statutory employer of Brandon.

¶33. Also, the settlement reached in this case should not have been credited before the proportionate
damage amounts were calculated respecting Yale and Galbreath, the non-settling defendants. See Krieser
v. Hobbs, 166 F.3d 736 (5th Cir. 1999)(where a non-settling defendant was found 50% liable and was
held responsible for $100,000 of the $200,000 verdict, even though plaintiff settled with the other
defendant, who was also 50% liable, for $650,000). Also, pursuant to § 85-5-7, where fault has been
apportioned between settling and non-settling defendants, the non-settling defendants remain liable for the
amount of damages allocated in direct proportion to each one's percentage of fault. While it is true that we
have adopted the settlement-first method of damages calculation, that method is limited to cases in which
"the trial court instructed the jury to consider only the relative culpabilities of the plaintiff and the non-settling
defendant(s) in apportioning fault under comparative negligence principles." See McBride v. Chevron
U.S.A., 673 So.2d 372, 380 (Miss. 1996). Clearly, this is not the case here. In the case sub judice, the
trial court instructed the jury to allocate fault for the statutory employer and the settling defendant as well as
Brandon and non-settling defendants. Therefore, the settlement-first method articulated in McBride does
not apply in this case.

¶34. The jury assessed fault at 40% to Galbreath and 30% to Yale of the $3.5 million verdict. The plaintiffs
in this case can recover up to 50% of the recoverable damages in this case jointly and severally from
Galbreath and Yale. See DePriest v. Barber, 798 So.2d 456 (Miss. 2001); Estate of Hunter v.
General Motors Corp., 729 So.2d 1264 (Miss. 1999); Miss. Code Ann. § 85-5-7(2). Since the
employer was improperly included, the 15% assessed to the employer is to be divided proportionately to
Galbreath and Yale as the jury has assessed. Further, Duriron's settlement was erroneously credited before
damages were apportioned. Simply stated, the jury set out the percentages that each defendant was
required to pay of the $3.5 million verdict together with their additional apportionment of the 15% fault
assessed to the employer. Therefore, we hereby reverse and remand for a recalculation of the
apportionment of damages and reformation of the judgment consistent with this opinion.

                                               CONCLUSION

¶35. For the reasons discussed herein, we find no reversible error on the direct appeal by Galbreath and
Yale and, therefore, affirm the judgment of the trial court. However, on the plaintiffs' cross-appeal, we
reverse and remand for a recalculation of the apportionment of damages and entry of a reformed judgment
in accordance with this opinion.

¶36. AFFIRMED ON DIRECT APPEAL. REVERSED AND REMANDED ON CROSS-
APPEAL.

      PITTMAN, C.J.,DIAZ AND EASLEY, JJ., CONCUR. CARLSON AND GRAVES, JJ.,
      CONCUR IN RESULT ONLY. WALLER, J., DISSENTS WITH SEPARATE WRITTEN
      OPINION JOINED BY SMITH, P.J., AND COBB, J.

      WALLER, JUSTICE, DISSENTING:

¶37. I respectfully dissent because I believe that numerous evidentiary and jury instruction errors made by
the circuit court caused the jury to be biased in favor of Plaintiffs. This bias is evidenced by the jury's
apportionment of only 10% liability, half of what Plaintiffs' attorneys argued was reasonable, to the
deceased, and awarding damages in excess of what was requested by the Plaintiffs' attorneys in closing
argument. The excessive damages and the minimal apportionment of fault to Brandon further show that the
jury clearly ignored the proof at trial, including Brandon's admission that he was substantially at fault.

      A. Erroneous admission of investigative report containing hearsay.

¶38. The majority correctly finds that Ron Good's investigative report was generated in the regular course
of business; however, I disagree with the majority's conclusion that the circuit court correctly introduced the
entire investigative report into evidence. The part of the report of misuse by unnamed employees was
hearsay that should never have come in under any circumstances, particularly where not one single witness
was called at trial to document the allegations of misuse.

¶39. I believe that the trial court erred by admitting the report without redaction of portions containing
hearsay pertaining to safety violations. The foundational requirements for business records are that (1) the
statement is in written or recorded form; (2) the record concerns acts, events, conditions, opinions or
diagnoses; (3) the record was made at or near the time of the matter recorded; (4) the source of the
information had personal knowledge of the matter; (5) the record was kept in the course of regular business
activity; and (6) it was the regular practice of the business activity to make the record. M.R.E. 803. See
also Flowers v. State, 773 So. 2d 309, 331-32 (Miss. 2000). The comments to M.R.E. 803 state that
there must be testimony from a foundational witness to provide evidence of the foundation requirements.
See also id. Finally, in a case involving the admissibility of a report prepared by a police officer at the scene
of an accident, we have cautioned against the use of unredacted business records:

      In holding such report admissible we should not be understood as holding all the contents of the
      report were necessarily admissible. For example, there may be notations in such a report which are
      recitations of statements of others, and would be inadmissible even though the officer were present in
      court testifying. The report is simply a substitute for the officer appearing in person and testifying.
Copeland v. City of Jackson, 548 So. 2d 970, 975 (Miss. 1989).

¶40. Under Copeland, the circuit court erred by failing to redact the report to remove the portions
containing inadmissible hearsay such as where Good reported that an Eka Nobel employee told him that
other employees had stood on the dashboard of the forklift to dump hoppers. The hearsay contained in
Good's report, along with Mrs. Brandon's hearsay testimony, constituted the only evidence of other misuse
at trial, and it was highly prejudicial to Galbreath and Yale.

      B. Improper Comments on Comparative Negligence.

¶41. Yale and Galbreath complain that the circuit court's commentary on the Special Verdict Form to the
jury improperly emphasized that if the jury found that Brandon was the sole proximate cause of his injuries,
then Plaintiffs would not receive any damages:

      Do you find from a preponderance of the evidence that the negligence of John Wesley Brandon was
      the sole proximate cause of the accident? If you put yes, then you're basically finding for the
      defendants; that Mr. Brandon caused the whole accident and nobody else did anything else wrong
      and that's the end of it. You don't go any further. You are finding for the defendants, and Mrs.
      Brandon and them will not be awarded any damages.

Yale states that the commentary also led the jury to believe that the trial court was sympathetic to Plaintiffs.
Whether or not a jury "wanted" to award damages was not relevant; whether they found that Brandon was
the sole, proximate cause of the accident was relevant.

¶42. A review of the record shows that the circuit court gave other instructions which either objectively
stated or supported the defendants' theory of comparative negligence. The circuit court's statements tend to
show sympathy for Brandon, especially in light of the fact that the court repeated these statements a second
time during its charge to the jury. While these statements constitute a proper subject for oral argument by
counsel, trial courts should not comment on the effect of the findings of sole proximate cause.

      C. Denial of Jury Instruction No. DG-19

¶43. Galbreath complains that the trial court should have given its proffered instruction concerning
knowledge of danger as precluding a failure to warn as follows:

      If a person knows of a danger, a warning cannot increase his awareness of its presence, and where a
      warning would not have prevented the harm, a failure to warn cannot be the proximate cause of the
      injury.

      If you believe from a preponderance of the evidence that [Brandon] knew that one should never put
      his body between the mast and overhead guard of a forklift while standing on the dash or cowling
      with the forklift engine running then a specific warning regarding the pinch point would not have
      increased the plaintiff's awareness of the danger. Therefore, a specific written warning about the pinch
      point would not have prevented the harm, and the lack of such a warning could not have been the
      proximate cause of the plaintiff's injury.

Jury Instruction DG-19. Galbreath argues that manufacturers are not required to warn of dangers that are
open and obvious, Toney v. Kawasaki Heavy Indus. Ltd., 763 F. Supp. 1356, 1360 (S.D. Miss. 1991),
aff'd, 975 F.2D 162 (5th Cir. 1992), and that if the jury found that Brandon should have known not to
stand on the dashboard, a warning would have been moot. The circuit court refused to give the instruction
on the basis it was repetitive.

¶44. Plaintiffs argue that other instructions adequately explained that the jury could consider Brandon's
"ability to avoid danger by the exercise of due care in the use of the hopper as designed"; Brandon was
negligent by placing himself between the mast and the overhead guard; and the jury could find that
Brandon's negligence was the sole proximate cause of his injuries and death. However, a fair reading of the
instructions shows that the jury was not instructed that it could find that a failure to warn was not a
proximate cause of the accident. On the other hand, the circuit court did instruct the jury that if Brandon
"would have suffered the same injuries and ultimately died if the warning labels had been replaced, then the
alleged failure to replace the labels should not be considered by you in determining whether Galbreath is
liable under strict liability or negligence."

¶45. I believe that the jury was not adequately instructed that if it should find for Galbreath on Plaintiffs'
warnings claim if it found that Brandon would have disregarded the warnings and stood on the dashboard
while attempting to unlatch dashboard anyway. This instruction was fairly supported by the facts that
Brandon had been instructed in the proper procedures for operating the forklift and hopper and that he had
emptied a hopper by standing on the dashboard immediately prior to the accident in question.

      D. Was the verdict the result of bias, passion and prejudice?

¶46. Yale contends that the jury verdict evinced bias, passion and prejudice because the award exceeded
Plaintiffs' damage request by $1.2 million and its allocation of fault to Brandon was half of that suggested by
Plaintiffs' attorneys. During closing argument, Plaintiffs' counsel asked for $2,303,324 in actual damages and
to assign Brandon 20% of the fault. The jury awarded $503,324 in economic damages and $2,996,676 in
non-economic damages, for a total of $3.5 million, and found Brandon to be 10% at fault. While closing
argument does not limit the jury from awarding more damages that requested, the jury's pronounced
departure from what was requested, when compared with the evidence before the jury, certainly confirms
the claims of prejudice by the defendants.

¶47. Galbreath adds that Plaintiffs failed to prove that a defect existed in the Galbreath H-150W hopper
and that the jury evidently ignored Brandon's "substantial negligence," even after the court instructed them
that Brandon was "negligent to some degree." Evidence was introduced at trial that Brandon admitted that
he had "messed up," "took some shortcuts," "shouldn't have done what [he did]," and "was in a hurry," and
that the accident was his fault. Brandon, an experienced operator, had been trained by his supervisor never
to attempt to dump the hopper without another person being present to assist him. He had attended a
refresher forklift safety training program six months prior to the accident where he was once again taught
never to place any part of his body outside the cab of the forklift. Dr. Edward Caulfield, an expert witness
testifying for Galbreath, testified that the accident was caused by Brandon's failure to follow instructions,
training, and warnings. Galbreath also complains of the admission into evidence of Mrs. Brandon's
testimony of common misuse by other employees was based on hearsay.

¶48. The record clearly shows that Brandon's negligence was one of the primary causes of the accident and
that the dangers presented by the forklift and hopper were open and obvious. Brandon failed to wait to
attempt to dump the hopper until he was assisted by a co-worker; failed to turn the engine of the forklift off
before climbing up onto the dashboard; climbed up on the dashboard and positioned his feet where the
forklift controls were located; and placed himself between the mast and the body of the forklift. All of these
actions were contrary to Brandon's training and experience. After the accident, Brandon himself stated that
it was all his fault and that he had been in a hurry. The jury's allocation of only 10% of the fault to Brandon
is contrary to the evidence and to what a reasonable allocation of fault would be.

¶49. Numerous errors during the course of the trial benefitted Plaintiffs and prejudiced Galbreath and Yale.
The trial court allowed inadmissible hearsay to be admitted into evidence. And even though Galbreath and
Yale were procedurally barred from presenting these claims on appeal, these errors may be considered
when determining whether the verdict was the result of bias, passion and prejudice: the trial court instructed
the jury that Yale "could not escape liability"; another instruction evinced the lower court's sympathy for
Plaintiffs; during closing, Plaintiffs' counsel urged the jury to make Galbreath and Yale "do something" about
their products and that the jury had the power to effectuate change; and Plaintiffs' counsel impermissibly
argued that their expert had been involved in three other similar cases.

¶50. All of these matters add up to a trial that was infected with incompetent evidence, unfair jury
instructions and impermissible closing arguments and which resulted in an unreasonable and unfair verdict
and allocation of fault.

¶51. Because the jury's verdict was infected with bias and prejudice as evidenced by the jury's award
which far exceeded what Plaintiffs requested in closing argument, together with a minimal assignment of
contributory negligence to Brandon, I believe that the verdict and judgment of the Circuit Court of Lowndes
County should be reversed and this case should be remanded for a new trial.

      SMITH, P.J. AND COBB, J., JOIN THIS OPINION.

1. We will refer to defendants Galbreath, Incorporated; Galbreath, Inc.; The Galbreath Companies; and
Galbreath-Escott, Inc., as "Galbreath."

2. The overhead guard of the forklift provides protection from objects which might fall from above. The
mast of the forklift is the frame on which the forks are mounted. It is capable of being tilted back and forth.
The "forks" move up and down on the mast. The tilt function of the mast operates only if the forklift engine is
on.
