## Facts

- One night, Teresa Rotenberry drove on a Mississippi highway with Timothy Adam Upchurch as her passenger.
- Rotenberry lost control of the vehicle, which left the roadway and struck a tree approximately 160 feet off the road.
- Timothy Upchurch suffered fatal injuries from the collision.
- Timothy’s mother, Beverly Ann Upchurch, filed a wrongful-death action against Rotenberry, alleging Rotenberry negligently caused the crash.
- Rotenberry was the only eyewitness to the incident.
- The evidence at trial conflicted on key points:
  - Police officer Larry Guyton testified that Rotenberry told him she swerved to avoid an animal in the road; his testimony also included inconsistent accounts about whether Rotenberry admitted drinking earlier in the evening.
  - Rotenberry testified she could not remember the incident, which conflicted with an earlier signed statement in which she said she swerved to avoid a large animal.
  - Rotenberry offered expert testimony (Thomas Schaeffer) that physical evidence, including tire marks, was consistent with a sudden evasive maneuver to avoid an animal.
  - Upchurch offered testimony (Kirk Rosenhan) that there was no evidence Rotenberry attempted to regain control; his testimony also included inconsistent statements about whether he smelled alcohol on Rotenberry’s breath.
- The jury returned a verdict for Rotenberry, accepting that she reasonably swerved to avoid an animal and could not have avoided the collision with the tree.
- Upchurch moved for judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial; the trial court denied the motion and entered judgment on the verdict.
- Upchurch appealed to the Supreme Court of Mississippi.

## Issues

1. Did the trial court err by denying Upchurch’s motion for JNOV on the ground that no reasonable jury could find for Rotenberry on negligence and causation?
2. Did the trial court err by denying a new trial because the defense verdict was against the overwhelming weight of the evidence?

## Decision

- The Supreme Court of Mississippi affirmed the judgment for Rotenberry.
- The court held the trial court properly denied JNOV because, viewing the evidence and reasonable inferences in the light most favorable to the verdict, fair-minded jurors could differ on whether Rotenberry acted negligently and whether any negligence caused the crash.
- The court held the trial court did not abuse its discretion in denying a new trial because the verdict was not so contrary to the evidence that allowing it to stand would result in an unconscionable injustice.
- The court emphasized that resolving conflicting testimony—including inconsistencies about alcohol use, Rotenberry’s memory, and the physical evidence—was for the jury, not the appellate court.

## Legal Principles

- A motion for JNOV should be granted only when the evidence, taken in the light most favorable to the nonmovant and with all reasonable inferences, is such that reasonable and fair-minded jurors could reach only one result.
- A motion for a new trial based on weight of the evidence is reviewed for abuse of discretion; a new trial is warranted only when the verdict is against the overwhelming weight of the evidence and allowing it to stand would result in an unconscionable injustice.
- The jury is the judge of witness credibility and the weight to give competing testimony; appellate courts do not reweigh evidence or make their own credibility determinations.
- When the record supports competing versions of how an accident occurred—such as whether a driver made a reasonable evasive maneuver to avoid an animal—those factual disputes are ordinarily for the jury to resolve.

## Conclusion

Upchurch v. Rotenberry affirmed a defense verdict in a wrongful-death auto case because the proof at trial was sharply disputed, including inconsistent testimony about alcohol and the driver’s account of swerving to avoid an animal, and the Mississippi Supreme Court held that these credibility and fact questions were for the jury, making JNOV or a new trial unavailable under the governing standards.


Upchurch v. Rotenberry, 761 So. 2d 199 (2000)