United States District Court,

M.D. Pennsylvania.

Henry CALHOUN, and Tanya Calhoun, Plaintiffs

v.

Stephen VAN LOON, and New Prime, Inc., Defendants.

 

No. 3:12–CV–458.

Filed July 11, 2014.

 

Robert W. Munley, III, Munley, Munley & Cartwright, P.C., Scranton, PA, for Plaintiffs.

 

Dawn L. Jennings, Jon Michael Dumont, Dawn L. Jennings, Segal McCambridge Singer & Mahoney, Ltd., Philadelphia, PA, for Defendants.

 

MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Introduction

*1 Presently before the Court is a motion for partial summary judgment filed by Defendants Stephen Van Loon and New Prime, Inc. d/b/a Prime, Inc. (hereinafter “New Prime”). (Doc. 35). Plaintiffs, Henry and Tanya Calhoun, filed this action to recover damages as a result of an accident wherein Stephen Van Loon, while operating his tractor-trailer, backed into Henry Calhoun’s tractor-trailer, causing injury to Mr. Calhoun. (Pl. Am. Comp., Doc. 10, at ¶¶ 7, 9, 10).

 

For the reasons set forth below, summary judgment will be entered in favor of Defendants Stephen Van Loon and New Prime, Inc. with respect to Counts II, III, and IV.

 

II. Statement of Undisputed Facts

On June 21, 2011, at approximately 5:00 a.m., Stephen Van Loon, while backing his tractor-trailer into a parking place in the Good Humor parking lot in Hazelton, PA, collided with Henry Calhoun’s parked tractor trailer. (Defs. Stat. of Undisp. Facts, Doc. 41, ¶¶ 2, 4). Defendants admit that Van Loon “was acting within the furtherance of business of New Prime, Inc.” at the time of this accident. (Id. at ¶ 11). As a result, Plaintiffs allege that Defendants caused them injuries and damages due to Van Loon’s “negligent, careless, gross, wanton and reckless conduct”, which Plaintiffs also attribute to New Prime as Van Loon’s employer. (Id . at ¶¶ 7–8). Plaintiffs further allege that New Prime is liable due to its “negligen[ce] in hiring, retention, supervising, training, and entrusting Van Loon with a tractor-trailer.” (Id. at ¶ 9).

 

Plaintiffs filed this action on February 24, 2012, in the Court of Common Pleas of Luzerne County and Defendants removed the case to the District Court for the Middle District of Pennsylvania on March 13, 2012. (Doc. 1). Plaintiffs subsequently filed an Amended Complaint on May 22, 2012. (Doc. 10). Plaintiffs allege Negligence by Van Loon (Count I), Negligence by New Prime (Count II), Punitive Damages against Van Loon (Count III), Punitive Damages against New Prime (Count IV), Loss of Consortium by Van Loon (Count V), and Loss of Consortium by New Prime (Count VI). (Id.).

 

The defendants now move for summary judgment on Counts II, III, and IV.

 

III. Standard of Review

Through summary adjudication, the court may dispose of those claims that do not present a “genuine issue as to any material fact .” Fed.R.Civ.P. 56(a). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law,” Fed.R.Civ.P. 56(c); Turner v. Schering–Plough Corp., 901 Fid 335, 340 (3d Cir.1990). “As to materiality, … [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

 

*2 The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). “Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

 

IV. Statement of Disputed Facts

In accordance with the summary judgment standards explained in Section III, supra, for the reasons discussed below, and drawing all reasonable inferences in favor of Plaintiffs, no genuine issues of material fact exist with respect to Counts II, III, and IV.

 

A. Punitive Damages—Counts III and IV

In Pennsylvania, punitive damages “are awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.” SHV Coal, Inc. v. Cont’l Grain Co., 526 Pa. 489, 587 A.2d 702, 705 (Pa.1991) (quoting Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358 (1963)). See also Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747–748 (Pa.1984):

 

Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. Punitive damages must be based on conduct which is “malicious,” “wanton,” “reckless,” “willful,” or “oppressive.” Further, one must look to the act itself together with all the circumstances including the motive of the wrongdoers and the relations between the parties. The state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious. (Internal citations omitted).

 

As such, punitive damages “are not justified where the defendant’s mental state rises to no more than gross negligence.” SHV Coal, 587 A.2d at 705. Further, to succeed on a claim for punitive damages, a plaintiff must produce sufficient evidence to establish that “(1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchinson v. Luddy, 582 Pa. 114, 870 A.2d 766, 772 (Pa.2005).

 

Given that “Pennsylvania cases have adopted a very strict interpretation of ‘reckless indifference to the rights of others,’ ” Burke v. Maassen, 904 F.2d 178, 181 (3d Cir.1990), and that “punitive damages are an ‘extreme remedy’ available in only the most exceptional matters,” Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439, 445 (Pa.2005), Plaintiffs have a heavy burden to defeat Defendants’ motion for summary judgment on Counts III and IV. Here, Van Loon admitted that he “should have gotten out and looked and made sure that that was an empty space instead of one occupied”, and that exiting the truck and looking prior to backing up is a company requirement. (Dep. of Stephen Van Loon, Doc. 37–1, Ex. A, at 25). Van Loon also admitted that he had previously “backed into another vehicle” because “instead of getting out and checking like [he] should have, [he] just eased back into that car” and that because he had been “making some mistakes for a while”, the company “decided to call [him] in for some training.” (Id. at 24, 883 A.2d 439). He further stated that he has had a least one other accident since the June 2011 incident. (Id. at 25, 883 A.2d 439)

 

*3 Nonetheless, Van Loon also testified that, at the time of the accident, it was raining, there was a hill in the background “to make it even worse,” and that “it was pretty dark”. (Id. at 13, 15, 883 A.2d 439). Additionally, Van Loon claims that he was going three miles an hour while backing up. (Id. at 13, 883 A.2d 439). Plaintiffs do not appear to dispute Van Loon’s contention regarding the weather on the morning in question or his speed prior to hitting Calhoun’s tractor-trailer. Instead, Plaintiffs argue that pursuant to the testimony of Edward Bernadyn, the operations manager at the facility where the accident occurred, “the area where the accident occurred ‘had lighting’… [and] was sufficiently well-lit to see trucks even with their lights off.” (Pls. Brief in Opp., Doc. 37, at 9 (citing Dep. of Edward Bernadyn, Doc. 37–1, Ex. B, at 17)). We disagree with Defendants’ assertion that “evidence of the lighting conditions are immaterial” because “Defendants admit that Van Loon breached his duty of care to plaintiff at the time of the June 21, 2011 accident” (Defs. Reply Brief, Doc. 42, at 3). However, Defendants are correct that disagreement as to the extent of lighting in the parking lot does not create an issue that could materially affect a jury’s decision as to whether Van Loon’s conduct was sufficiently reckless such that it could be found that he had a subjective appreciation of the risk of harm and that he acted, or failed to act, in conscious disregard of that risk. See Hutchinson, 870 A.2d at 772.

 

The Third Circuit has recognized that a district court may determine punitive damage claims on summary judgment. Vitalis v. Sun Constructors, Inc., 481 Fed.Appx. 718, 729 (3d Cir.2012) (citing Pichler v. UNITE, 542 F.3d 380, 387 (3d Cir.2008) (“If, on remand, the District Court determines that summary judgment is appropriate as to plaintiffs’ punitive damages claim, then a trial will be unnecessary”); Cochetti v. Desmond, 572 F.2d 102, 103 (3d Cir.1978) (“to the claim for punitive damages, we conclude that on the record before the district court summary judgment was proper”)). The undisputed facts, specifically including that Van Loon had been involved, and has continued to be involved since June 2011, in several accidents, and that Van Loon knew he broke the company rules in not exiting the vehicle and checking behind him prior to backing up, are insufficient to raise a question of fact as to whether Van Loon acted outrageously and in conscious disregard of the risks of his conduct. Here, it is clear, even when drawing all inferences in the light most favorable to Plaintiffs, that Van Loon’s actions fail to amount to more than gross negligence.

 

Similarly, there are no genuine issues of material fact with respect to New Prime. Plaintiffs contend that a question of fact exists “as to whether Defendant New Prime, Inc., ignored a known risk in sending Van Loon out on the road.” (Doc. 37, at 9). In support of this argument, Plaintiffs rely on the testimony of Donald Lacy, safety director for New Prime, who stated that not getting out of the vehicle and looking is a safety violation and that “we would bring the person back for additional training” if a driver has a safety violation. (Dep. of Donald Lacy, Doc. 37–1, Ex. C, at 16–17; Doc. 37, at 9). The Calhouns contend that “Van Loon received no such additional training and was not removed from employment … [and that] Lacy … was not even aware of the safety violations.” (Doc. 37, at 9–10). Defendants seemingly do not dispute that Van Loon’s conduct was in violation of the company’s safety requirements or that New Prime requires drivers to attend additional training when such rules are violated.FN1 However, Plaintiffs offer no evidence or testimony as to their contention that Van Loon did not receive any additional training. Indeed, Van Loon testified that after his first accident, wherein he backed into another car, the company “decided to call [him] in for some more training.” (Dep. of Stephen Van Loon, at 24). Further, the allegation that Lacy himself was not aware of the safety violations is not, in itself, demonstrative of any wrong doing on the part of New Prime. Lacy testified that he does not “necessarily know of every accident … particularly every backing accident” (Dep. of Donald Lacy, at 19–20), and there is no indication that his knowledge of every accident was required. Therefore, Plaintiffs have failed to present any genuine issue of fact as to Defendants’ assertion that New Prime did not act “in conscious disregard of a known risk of an accident on June 21, 2011, sufficient to rise to the level of outrageousness necessary to support a claim for punitive damages” (Doc. 41, ¶ 12).

 

FN1. In fact, Defendants repeatedly admit to a breach of the duty of care. (See generally Docs. 36, 42).

 

*4 Consequently, we will grant Defendants’ motion for summary judgment as to Counts III and IV.

 

B. Negligence—Count II

Defendants also request that the Court grant them summary judgment on Count II (Negligence by New Prime). Specifically, Defendants argue that “the claim for negligent entrustment, training, hiring, retention, and supervision is redundant where agency is admitted.” (Doc. 42, at 6). Because New Prime admits that, at the time of the accident, (1) Van Loon was acting in furtherance of its business; (2) New Prime is therefore vicariously liable for Van Loon’s actions; and (3) Van Loon breached his duty of care; Defendants state that “the independent claim or [sic ] negligence against New Prime, Inc. is redundant because any recovery awarded shall be paid by the same source, namely New Prime, Inc.” (Doc. 42, at 6).

 

“As a general rule, courts have dismissed claims for negligent supervision and negligent hiring when a supervisor defendant concede[s] an agency relationship with the co-defendant.” Fortunato v. May, 2009 WL 703393, at *5 (W.D.Pa. Mar.16, 2009); see also Sterner v. Titus Transp., LP, 2013 WL 6506591, at *3 (M.D.Pa. Dec.12, 2013) ((“In the majority of states that have addressed this issue, a plaintiff cannot pursue a claim against an employer for negligent entrustment, hiring, supervision, or training when the employer admits that its employee was acting within the scope of employment when the accident occurred”) (collecting cases)), This rule is subject to exception “when a plaintiff has a valid claim for punitive damages.” Sterner, 2013 WL 6506591, at *3. The rationale for Courts to dismiss negligent supervision, entrustment, retention, training, and hiring claims, absent a viable punitive damages claim, is that “[n]othing can be gained from [the negligence claim] when the defendant employer has admitted the agency of the driver, and to permit the action to proceed on both counts would allow the introduction of evidence of prior accidents of the driver, highly prejudicial, irrelevant and inadmissable in the cause of action based on the imputed negligence of the driver,” Allen v. Fletcher, 2009 WL 1542767, at *4–5 (quoting Holben v. Midwest Emery Freight Sys., Inc., 525 F.Supp. 1224, 1224–1225 (M.D.Pa.1981)).

 

As such, federal district courts in Pennsylvania have nearly unanimously declined to permit:

 

claims for negligent entrustment, supervision, monitoring, and hiring to proceed when (1) the supervisor/employer defendant admits that its employee was acting in the scope of his or her employment at the time of the accident, and (2) the plaintiff does not have a viable claim for punitive damages against the supervisor/employer defendant.

 

Sterner, 2013 WL 6506591, at *4 (emphasis in original).

 

Defendants rely on Holben in support of the proposition that “since agency is admitted, any evidence of negligent hiring, retention, supervision, training and entrustment is immaterial, irrelevant and highly prejudicial.” (Defs.’ Brief in Supp., Doc. 36, at 10–11). We agree with Plaintiffs that Holben is distinguishable from the present case. Further, we do not agree that a determination regarding whether the evidence at issue is highly prejudicial should be decided at the summary judgment stage. However, Holben is useful to the extent that it demonstrates why, here, Plaintiffs cannot survive summary judgment. In Holben, on a motion for summary judgment, the Court found genuine issues of material fact surrounding the claim for punitive damages against the defendant company, and that “it is as much an issue of fact whether [the defendant company’s] conduct constitutes such indifference to the consequences as to merit punitive damages as it is a question of whether it constitutes negligence.” Holben, 525 F.Supp. at 1225. Nevertheless, the Court stated that “[w]ere it not for the punitive damages claim we would strike the ‘negligent entrustment’ cause of action.” Id. at 1224.

 

*5 In opposition to Defendants’ reliance on Holben, and other case law purportedly standing for the proposition that where a defendant corporation admits vicarious liability, direct claims are precluded, Plaintiffs rely on Burke v. TransAm Trucking, Inc., 605 F.Supp.2d 647 (M.D.Pa.2009). In TransAm Trucking, the defendant made similar arguments to those of New Prime with respect to negligent entrustment, supervision, and control. TransAm Trucking, 605 F.Supp.2d at 657–658. The Court found that Plaintiffs’ punitive damages claims against the driver of the tractor-trailer and his employer were sufficient to survive summary judgment and that while the company admitted the driver “was its employee and was driving the tractor trailer in the course and scope of his employment at the accident, they do not accept responsibility for the accident.” Id. at 658.

 

Defendants are not seeking summary judgment on Plaintiffs’ claim of negligence on the part of Van Loon (Count I). (See generally, Doc. 35). Therefore, Plaintiffs’ opposition to Defendants’ motion for summary judgment on Count II requires the presence of evidence to support allegations other than those related to Van Loon’s conduct. The Calhouns do not put forth sufficient facts to support such a claim. The only alleged facts by Plaintiffs not specifically relating to the events of June 21, 2011, and the actions of Van Loon, are that (1) Van Loon did not receive additional safety training and was not removed from employment, “even though he had two … accidents within ten days”; and (2) that Lacy “was not even aware of [Van Loon’s] safety violations” (Pls.’ Ans. to Stat. of Facts, Doc. 43, ¶¶ 12, 14). As previously discussed, Plaintiffs have not come forward with evidence that Lacy should have been aware of the safety violations.FN2 Nonetheless, the adequacy and extent of Van Loon’s training are arguably separate and distinct from allegations of negligence on the part of Van Loon. However, in the absence of any other facts to support a negligence claim other than those related to Van Loon’s conduct, under the rationale of Holben and subsequent case law, the negligence claim asserted against New Prime is sufficiently redundant to warrant summary judgment on Count II in favor of the defendants. Our ruling would likely be different had the record shown evidence that would support a claim for negligent entrustment, training, hiring, retention, and supervision, based on the actions or omissions of New Prime other than those attributed to it under the doctrine of respondeat superior which are also the actions or omissions of Defendant Van Loon in this case.

 

FN2. Lacy testified that the company has 6,000 drivers, approximately 5,000 “trucks on the road”, and that he does not “necessarily know of every accident … particularly every backing accident.” (Dep. of Donald Lacy, at 12, 19–20). Plaintiffs have not provided a company policy, or other similar evidence, stating that Lacy must be aware of each accident.

 

Unlike Holben and TransAm Trucking, where the Courts allowed Defendants’ punitive damages claims to go forward, here, we are granting summary judgment on both punitive damages counts. Additionally, because New Prime admits that, at the time of the accident, Van Loon was acting in furtherance of its business, rendering New Prime vicariously liable for Van Loon’s actions, and that Van Loon breached his duty of care,FN3 TransAm Trucking is distinguishable. Here, Defendants are accepting responsibility for the accident, and as previously discussed, there are not “genuine issues of material fact regarding [the corporate defendant’s] own actions in this case”, TransAm Trucking, 605 F .Supp.2d at 658, such as to create an issue of fact regarding the extent of New Prime’s liability separate from Van Loon’s. In light of the immediately aforementioned grounds for our ruling, Defendants will be estopped at trial from asserting a position that is contrary to the admissions made in their Answer, Brief in Support of Partial Summary Judgment, and Reply Brief (Docs.11, 36, 42); specifically, that Van Loon was acting within the scope of his employment, that his actions breached the applicable duty of care, and that New Prime stands responsible for Van Loon’s conduct and any damages stemming therefrom.

 

FN3. Defendants make this contention in both their Brief in Support of Partial Summary Judgment and their Reply Brief (Docs.36, 42). In support of these statements, Defendants’ Answer states that “defendants admit that Van Loon was an agent of New Prime, Inc. d/b/a Prime, Inc. and was acting within the furtherance of the business of New Prime, Inc. d/b/a Prime, Inc. at the time of the June 21, 2011 accident.” (Doc. 11, ¶ 4). Additionally, Van Loon admitted that he “should have gotten out and looked and made sure that that was an empty space instead of one occupied.” (Dep. of Stephen Van Loon, at 25).

 

*6 Consequently, the Court will grant Defendants’ motion for summary judgment with respect to Count II.

 

V. Conclusion

For the foregoing reasons, the Court will grant Defendants’ Motion for Partial Summary Judgment. (Doc. 35). A separate Order follows.

 

ORDER

AND NOW, THIS 11th DAY OF JULY 2014, upon consideration of Defendants Stephen Van Loon and New Prime, Inc. d/b/a Prime, Inc.’s Motion for Partial Summary Judgment (Doc. 35), and all accompanying briefs, IT IS HEREBY ORDERED THAT Defendants’ motion is GRANTED; to wit;

 

1. Summary judgment is entered in favor of Defendants with respect to Count II (Negligence by New Prime, Inc), Count III (Punitive Damages against Van Loon), and Count III (Punitive Damages against New Prime, Inc.).

 

2. The case will be scheduled for trial on Counts I, V, and VI.

 

Court of Appeals of Mississippi.

Willie KINZIE, Appellant

v.

BELK DEPARTMENT STORES, L.P., Belk, Inc., David Flowers, Shanay Grant, Kathy Coffey, Donald Smith, Nikki Daggins, Ray Faja and Staffmark Investment, LLC, Appellees.

 

No. 2012–CA–01176–COA.

July 15, 2014.

 

Hinds County Circuit Court, Hon. Jeff Weill Sr., J.

Richard Paul Williams III, Terris Caton Harris, Courtney McReynolds Williams, Daryl Matthew Newman, attorneys for appellant.

 

Thomas Lynn Carpenter Jr., Rebecca B. Cowan, Edward J. Currie Jr., Joseph Walter Gill, attorneys for appellees.

 

EN BANC.

 

MODIFIED OPINION ON MOTION FOR REHEARING

CARLTON, J., for the Court:

*1 ¶ 1. The motion for rehearing is denied. We withdraw our original opinion and substitute this modified opinion.

 

¶ 2. On July 14, 2009, Willie Kinzie was employed by Triangle Trucking, and he suffered injuries while unloading cargo from a trailer. Kinzie filed suit against Belk Department Stores, and Staffmark Investment LLC FN1 (collectively Appellees) in the Hinds County Circuit Court, alleging negligent loading and securing of cargo. The trial court granted the Appellees’ motion to dismiss based upon Kinzie’s alleged discovery misrepresentations and entered an order dismissing the case with prejudice. Kinzie now appeals the trial court’s order of dismissal. Finding error, we reverse the order of dismissal, and remand this case for further proceedings.

 

FN1. The briefs provide that Staffmark Investment LLC is a staffing company. Kinzie was employed by Triangle Trucking, and Triangle Trucking dispatched Kinzie to Belk as a truck driver.

 

FACTS

¶ 3. Kinzie, a truck driver for twenty-eight years, was employed by Triangle Trucking at the time of the injuries at issue. Triangle Trucking had dispatched Kinzie as a truck driver for Belk since 2007. At the time of his injury, Kinzie’s job required him to pick up a loaded trailer of Belk cargo from the Belk distribution center in Byram, Mississippi, and unload it at other Belk locations throughout the United States.

 

¶ 4. On July 14, 2009, Kinzie picked up a loaded trailer at the Belk distribution center in Byram and traveled to a Belk facility in Cullman, Alabama. In the course of unloading his truck, which contained approximately 2,161 cases of cargo, weighing a total of 18,229 pounds, Kinzie injured his back. Shortly after he received his injury, an ambulance transported Kinzie to the emergency room, where physicians diagnosed him with a central-disc protrusion, disc desiccation, and disc bulging.

 

¶ 5. Kinzie initially engaged in a nonsurgical, conservative treatment. Then, on January 4, 2010, Kinzie underwent a bilateral L4–5 hemilaminectomy and discectomy surgery. On May 25, 2010, Kinzie was placed at a maximum medical improvement with a ten percent impairment rating. Kinzie’s treating physician, Dr. Howard Holaday, explained that Kinzie possessed the capability to perform sedentary to light duty work, with a lifting restriction of no greater than twenty pounds, and restrictions on frequent stooping and bending. Although Kinzie claimed to need a cane for stability and assistance, Dr. Holaday provided no recommendation for Kinzie to use a cane. Kinzie asserted that Dr. Holaday also warned him to wean himself off of the cane. The results of functional capacity evaluations (FCEs) performed on April 20, 2010, and May 13, 2010, showed that Kinzie could perform work on a sedentary-physical-demand level only. The FCEs also showed Kinzie possessed a dysfunctional sacroiliac (SI) joint.

 

¶ 6. On October 21, 2010, Kinzie filed suit against the Appellees, alleging that his back injury resulted from the Appellees’ negligent loading of light cargo items on the bottom of the trailer and heavy cargo items on the top, as well as failure to secure the cargo. Kinzie submits that a medical estimate projects his future medical expenses will total $117,406.90. He also submits that his past medical expenses, lost wages, future medical expenses, and future lost wages amount to $664,890.37. During discovery, Kinzie, through counsel, provided responses to interrogatories and also provided deposition testimony, all of which responded to questions relating to his injury and explaining his present physical limitations resulting from his injury.

 

*2 ¶ 7. Interrogatory 5 inquired about any opinions rendered by a doctor or medical provider regarding Kinzie’s injuries. Kinzie objected to interrogatory 5 as being outside the permissible scope of discovery, but answered by explaining that he had been “assigned permanent work restrictions of no lifting greater than twenty pounds,” was prohibited from “frequent stooping or bending,” and “had been told that [he] can only perform work in the sedentary physical demand level at eight hours a day, five days a week.” Kinzie further stated in his response that he had “been told that [he has] a ten percent whole person permanent impairment rating.” Interrogatory 11 stated: “Describe all activities you were able to perform or participate in prior to July 14, 2009, that you cannot perform or participate in now.” Kinzie answered the interrogatory by stating:

 

As a result of the injuries sustained in this accident, I have the following limitations: not able to cut grass or take care of lawn, unable to perform house cleaning, not able to drive but for very short periods of time, unable to stand or walk for long period[s] of time, cannot lift or carry objects or even groceries, difficulty engaging in usual sexual activities, unable to play and hold grandchildren, and other activities as before incident.

 

¶ 8. Unbeknownst to Kinzie or his counsel, the Appellees hired an investigator to perform surveillance of Kinzie during the period of August 19, 2011, to September 22, 2011 (thirty-four days). Of the thirty-four-day period of surveillance, twenty-five minutes of excerpts of video footage were provided. The excerpts provided were edited and are not a complete video of the entire thirty-four-day time period. As acknowledged, excerpts of the footage provided show snapshots in time during the thirty-four-day surveillance period. The investigator prepared a report of Kinzie’s activities during the period. The excerpts of the video footage reveal Kinzie driving and walking to the post office and his attorney’s office, and working with another man on his shed in the backyard of his house. In response to the video evidence, Kinzie claims that he never violated his physician’s restrictions, nor did he perform any task that he stated in his discovery responses that he could not perform, even while working on his shed.

 

¶ 9. The Appellees filed a motion to dismiss, arguing that based on the surveillance video, Kinzie misrepresented the extent of his injuries during discovery. The trial court found that the elements set forth in Pierce v. Heritage Properties Inc., 688 So.2d 1385 (Miss.1997), were satisfied such that Kinzie’s alleged discovery violations warranted dismissal of the case with prejudice. The trial court entered an order dismissing Kinzie’s case with prejudice.

 

¶ 10. Kinzie now appeals, arguing that: (1) the trial court erred in holding that he made false representations in his interrogatory responses and deposition testimony; (2) the trial court erred in finding that no lesser sanction was appropriate and applying the sanction of dismissal with prejudice; and (3) the trial court erred in denying Kinzie an evidentiary hearing.

 

STANDARD OF REVIEW

*3 ¶ 11. Mississippi Rule of Civil Procedure 37(b)(2)(C) provides that a trial judge may, in appropriate cases, impose the sanction of “dismissing the action or proceeding or any part thereof.” On appeal, we review such dismissals under an abuse-of-discretion standard. Woodexrel Wood v. Biloxi Pub. Sch. Dist., 757 So.2d 190, 192(18) (Miss.2000). When reviewing a decision that is within the trial court’s discretion, we first ask if the trial court applied the correct legal standard. Id. “If the trial court applied the correct legal standard, then [the appellate court] will affirm a trial court’s decision unless there is a * definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.’ “ Id. (quoting Scoggins v. Ellzey Beverages Inc., 743 So.2d 990, 996 (¶ 27) (Miss.1999)); Pierce, 688 So.2d at 1388.

 

DISCUSSION

¶ 12. Kinzie argues that the trial court erred in holding that Kinzie’s alleged discovery violations warranted dismissal of the case with prejudice pursuant to Pierce. Kinzie asserts that no misrepresentation occurred during discovery. He explains that he listed his present limitations in his discovery responses, and that he made it very clear that his pain “was not there every day,” that some days his pain “is worse than others,” and that “it comes and goes.”

 

¶ 13. The Appellees concede that the surveillance video fails to show Kinzie violating any of his medical restrictions, but instead argue that the video shows Kinzie misrepresented the extent of his injuries and pain caused by these injuries. Kinzie refutes this argument, explaining that the video surveillance is consistent with his discovery responses. Kinzie states that he never violated his physician’s restrictions, nor did the video reveal Kinzie performing any task that he said he could not perform in his discovery responses.

 

¶ 14. The record shows that the trial court, despite Kinzie’s objection, adopted the proposed order drafted by the Appellees containing findings of facts and conclusions of law. The supreme court has established that “[a] circuit judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Clinton v. Smith, 861 So.2d 323, 326(116) (Miss.2003) (citation and internal quotation marks omitted)

 

¶ 15. The trial court’s order of dismissal specifically took issue with Kinzie’s response to interrogatory 11, which stated: “Describe all activities you were able to perform or participate in prior to July 14, 2009, that you cannot perform or participate in now.” Kinzie answered the interrogatory by stating:

 

As a result of the injuries sustained in this accident, I have the following limitations: not able to cut grass or take care of lawn, unable to perform house cleaning, not able to drive but for very short periods of time, unable to stand or walk for long period[s] of time, cannot lift or carry objects or even groceries, difficulty engaging in usual sexual activities, unable to play and hold grandchildren, and other activities as before incident.

 

*4 The order of dismissal reflects that during Kinzie’s September 12, 2011 deposition, the Appellees inquired as to Kinzie’s physical limitations and his response to interrogatory 11. The order states that Kinzie

proceeded to testify under oath that he always has his cane with him when he is outside his house; that he has to use his cane or pieces of furniture while walking inside his house; that he cannot climb up and down to drive a truck; and that he cannot handle a lawn mower or anything else with a handle.

 

¶ 16. The trial court listed out the Pierce elements for determining whether the dismissal of a party’s cause of action for discovery violations is an appropriate sanction.FN2 The trial court stated that it applied the Pierce elements to the present facts and determined that Kinzie’s “discovery violations … require the dismissal of his action with prejudice.” The trial court explained:

 

FN2. In Pierce, 688 So.2d at 1389, the supreme court held:

 

First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situation[s] where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.

 

(Quoting Batson v. Neal Spelce Assos. Inc., 765 F.2d 511, 514 (5th Cir.1985)).

 

[Kinzie] intentionally misrepresented his limitations and impairments to the [Appellees] while responding to interrogatory 11 on September 6, 2011. In that response, he states that he “cannot lift or carry objects or even groceries,” but surveillance video taken of [Kinzie] two weeks earlier shows [him] lifting and carrying objects, including ladders and lumber, while building a shed. [Kinzie] then falsely testified in his deposition that he carries a cane with him whenever he walks outside, that he cannot walk inside his house without a cane or the aid of a piece of furniture, that he cannot operate anything that has a handle, and that he cannot climb up and down. Again, surveillance video taken of [Kinzie] during the month before his deposition clearly shows that he can walk freely without his cane, use several tools with handles, and climb up and down a ten-foot ladder. Second, this court concludes that these same false representations made by [Kinzie] establish that any sanction other than the dismissal of his cause of action would result in this court’s condoning [Kinzie’s] conduct and would not serve as a deterrent in other cases involving similar conduct before this court.

 

¶ 17. The order acknowledges Kinzie’s argument that he qualified his response to interrogatory 11 by stating that he could not perform the activities listed “as before the incident.” The trial court rejected Kinzie’s argument, stating that Kinzie’s use of the words “as before the incident” failed to qualify his answer and failed to diminish the extent of his misrepresentation in his response. The trial court stated that it reviewed Kinzie’s deposition testimony, and it held that

 

although [Kinzie] may have testified that he has pain while performing certain physical activities, he also testified that he could not perform many other activities that he is clearly seen performing in the video surveillance, e.g.[,] walking without a cane and climbing up and down a ladder. More important, while [Kinzie] may have qualified some of his answers in his deposition when asked about his limitations, there is nothing ambiguous about his false answer to interrogatory 11. As the [supreme] court in Pierce … recognized, “[a] false answer [to an interrogatory] is in some ways worse than no answer; it misleads and confuses the party.” Pierce, 688 So.2d at 1389.

 

*5 ¶ 18. In reviewing the interrogatory responses provided by Kinzie, we acknowledge that in the trial court’s order dismissing Kinzie’s case, the trial court bases its decision upon Kinzie’s response to interrogatory 11. In concluding that Kinzie misrepresented his injures under oath, the trial court’s order reflects no mention or consideration of other interrogatory responses, even though Kinzie referenced them when explaining the limitations on his activities. Interrogatory 5 inquired about any opinions rendered by a doctor or medical provider regarding Kinzie’s injuries. Kinzie objected to interrogatory 5 as being outside the permissible scope of discovery, but he answered by explaining that he had been “assigned permanent work restrictions of no lifting greater than twenty pounds, no frequent stooping or bending,” and that he “had been told that [he] can only perform work in the sedentary physical demand level at eight hours a day, five days a week.” Kinzie further stated in his response that he had “been told that [he has] a ten percent whole person permanent impairment rating.”

 

¶ 19. We further find that Kinzie’s response to interrogatory 11 also contained qualifying language when he explained what he could do, but the trial court found this qualifying language insufficient. We disagree, particularly when the response to interrogatory 11 is considered in the context of other answers provided by Kinzie, specifically to interrogatory 5. The record before us indeed reflects that Kinzie’s medical restrictions allowed him to engage in some activity within the stated restrictions. The surveillance footage provided fails to show Kinzie engaging in any activity in violation of his medical restrictions. The video footage certainly appears to show Kinzie walking, and also assisting with the construction of his shed, without a cane. However, the video, as acknowledged by the Appellees, is incomplete and portions of time were edited out. Kinzie submitted affidavits of various witnesses to the trial court, asserting that when Kinzie helped them during the construction of his shed, he wore a back brace, had his cane with him, and took many breaks. Kinzie claims that portions of the footage showing him using his cane and resting were edited out of the excerpts provided to the trial court.

 

¶ 20. Kinzie also argues that the video footage showing him using a hammer, lifting a board, and climbing a ladder fails to provide a basis for finding he provided false testimony. Kinzie argues that these activities violated none of his medical restrictions. Additionally, the deposition testimony and interrogatory answers show that Kinzie never stated he lacked the physical capability to perform the activities shown on the surveillance video; rather, he explained that when he tries to or does perform these tasks, he experiences pain. See Wood, 757 So.2d at 194 (¶ 13).

 

¶ 21. The record and briefs on appeal reflect that Kinzie was asked during his deposition about using hand tools and performing work around the house, and in response, Kinzie explained he could not use a lawn mower because it hurt his back. When asked whether he could work with tools with handles, Kinzie explained:

 

*6 [I]f I tried to do any type of handyman work around the house, push a lawn mower or stuff like that with a handle, you know what a toothache is like, that’s just the way my lower back is. It [is] constantly coming All I can tell you is that [my sciatic nerve] has a pain going down in my back and down both of my legs. It’s not there every day, but it’s there for the majority of the time.

 

¶ 22. The Appellees argue that the surveillance video showed Kinzie using a hammer, and that Kinzie’s use of a tool with a handle shows Kinzie provided false testimony. However, the record reflects that Kinzie was not asked specifically about using a hammer, and Kinzie did not specifically state he could not use a hammer.

 

¶ 23. As stated earlier, the record contains the FCEs that show that Kinzie possessed more pull strength than push strength, and that his SI joint was dysfunctional. Also, while the FCEs document Kinzie’s dysfunctional SI joint and disc problems, the FCEs fail to document any arm or rotator-cuff injury. The record documents his diagnosis that included L4–5 hemilaminectomy and central-disc protrusion, disc herniation, and disc bulging; and the record shows that Kinzie underwent surgery for bilateral L4–5 hemilaminectomy and disectomy surgery on January 4, 2010. Therefore, the record shows that Kinzie suffered an injury to his back requiring lumbar, or in lay terms, back surgery. The FCEs provide evidentiary support for Kinzie’s explanation of why pushing a lawn mower by its handle would cause pain, due to the continual pushing force required to make the lawn mower move and due to engagement of the back and his dysfunctional SI joint in producing the force required to move the mower. However, the record reflects no injury to Kinzie’s shoulder, rotator-cuff, arm, or hand that would prevent him from lifting a hammer weighing less than twenty pounds and swinging it with his arm.

 

¶ 24. Although the Appellees asked Kinzie a broad question about the use of all tools with handles, Kinzie provided in his response an explanation with a specific example of how he was limited in the use of a lawn mower. The Appellees failed to follow up or clarify Kinzie’s responses with more specific questions relating to a hammer or similar small nonmotorized hand tool. While the question was broad, Kinzie provided a specific example in his response. As explained, nothing in his medical restrictions limited him from clasping a handle or lifting under twenty pounds. Kinzie’s deposition answer logically reflects that when responding to the Appellees’ broad question, Kinzie provided an example of the particular motion required to operate one device, a lawn mower. As stated, the Appellees provided no follow-up questions about other types of tools requiring different force and movement from that of a lawn mower. After a review of the record, the Appellees’ failure to clarify the ambiguity of Kinzie’s response by questioning him about other types of tools, like the hammer in the video, or other small hand tools, fails to show Kinzie misrepresented his ability to use a lawn mower. See Wood, 757 So.2d at 194 (¶ 15) (finding an interrogatory response subject to different interpretations).

 

*7 ¶ 25. The omission of the footage from the video also defeats the Appellees’ argument that Kinzie misrepresented his injuries with respect to the cane. Kinzie’s deposition concedes that his doctor required no cane and wanted Kinzie to wean himself off of using it. Kinzie, as discussed, asserts that he keeps his cane in the car with him when traveling, because he “never know[s] when that pain is going to hit.” Kinzie further argues that when working on his shed, he took breaks not shown on the footage provided.

 

¶ 26. The supreme court found in Wood, 757 So.2d at 191 (¶ 3), that the trial court abused its discretion in dismissing a suit based on one response to an interrogatory. In Wood, the defense provided video surveillance of the plaintiff, Mark Wood, engaging in manual labor, despite Wood’s claim of a back injury. Id. at 192 (¶ 5). The defense argued the video surveillance was inconsistent with Wood’s interrogatory responses wherein he stated that his injury affected his attitude, concentration, school work, and “ability to do manual labor”; and he was “no longer … able to enjoy tinkering with automobiles[,] as the stooping, bending, and squatting are painful.” Id. at (¶ 6). The defense moved to dismiss, asserting that Wood made “false statements under oath to deceive the defendants and the court.” Id. Upon review, the supreme court found that the interrogatory response was “ambiguously worded” and “subject to differing interpretations,” and that “it was not clearly established that Wood knowingly made false statements.” Id. at 194 (¶ 14). The supreme court further stated that “the alleged untruthfulness in Wood’s interrogatories, if any, does not constitute a sufficiently egregious discovery violation” to warrant dismissal. Id. at 195 (¶ 18).

 

¶ 27. Based on the foregoing, we find no evidence of misrepresentation by Kinzie in his responses to the interrogatories and deposition questions. As stated, we review Kinzie’s response to interrogatory 11 in the context of all of the interrogatory responses provided by him. See Pierce, 688 So.2d at 1389.FN3 In so doing, the record shows Kinzie provided his medical physical limitations in his response to interrogatory 5. We also find no clear misrepresentation under oath by Kinzie in his deposition wherein he responded to a general question about all tool handles, with an answer limited to one type of equipment with a handle; and the Appellees failed to obtain a more responsive answer addressing all types of machines or tools with handles. We therefore find that the trial court abused its discretion in dismissing Kinzie’s case, and the trial court erred in dismissing it with prejudice. See Wood, 757 So.2d at 191 (¶ 3). Accordingly, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

 

FN3. “[T]he focus must be on the intentional nature, as well as the pattern, of the plaintiff’s conduct, which included deliberately providing false responses in three discovery mechanisms: the answers to interrogatories, the request for production of documents, and the deposition testimony.” Pierce, 688 So.2d at 1389.

 

¶ 28. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

 

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR.