Full opinion text
DENNIS, Circuit Judge: The principal issue in this case is whether the evidence supports a reasonable jury’s findings that the defendant fast food restaurant operator’s negligent failures to regulate, train, supervise, and control its off-duty employees on its premises were proximate causes of the plaintiff customer’s quadriplegia. We conclude that it does. The jury reasonably could have found from the evidence that the restaurant operator negligently failed to train and regulate its employees so as to prevent the undue risk of harm to customers by off-duty employees on its premises; that the manager in charge of the restaurant premises negligently failed to supervise and control a hostile off-duty employee who subjected the plaintiff customer to an altercation inside the restaurant; that the manager, rather than defusing the altercation, ordered the participants to take the angry disturbance outside; that the exeunt of protagonists, fellow employees and excited spectators led directly to the plaintiff being assaulted and severely injured by one of the employees in the restaurant parking lot; and that the negligence of the restaurant company and its manager in these respects were proximate causes of the plaintiffs injury and disability- I. Factual Background The plaintiff, Michael Foradori, a 150-pound fifteen-year-old customer in a Captain D’s restaurant in Tupelo, Mississippi was challenged to a fight by A1 Cannon, an older teenage restaurant employee, who was off-duty but dressed in his restaurant uniform. Cannon was angry because he thought Foradori had been hitting on his girlfriend. As a group of young spectators gathered, Cannon’s insistence that Forado-ri go outside to fight grew louder and sharper. The testimony is in dispute as to whether Garious Harris, another restaurant employee, as well as other employees, joined Cannon in confronting Foradori. After berating Foradori for fifteen to twenty minutes, Cannon emphasized his taunts by throwing a small object into Foradori’s face or head. Foradori testified that he felt insulted, humiliated, and bullied during the incident; he said he did not want to fight but at the same time did not want to be seen as “chicken.” The evidence is in conflict as to whether Peggy King, the restaurant manager who was in the dining area near the cash registers, should have known that the escalating altercation created the risk of a fight and bodily harm to Foradori. Jeremy Shells, a cook working in the kitchen further from the disturbance than Ms. King, testified that it was apparent that a fight was in the offing. He characterized the confrontation between Cannon and Fora-dori in the dining area as including “fussing and fighting,” “loud voices ... in an argument,” “arguing inside the store,” and “arguing on their way out of the store.” He also testified that when the dispute moved outside, he followed because “they was already in the store arguing, so the next thing in my mind was, hey, they fixing to fight.” On the other hand, Ms. King, the parent of a teenager, testified that the commotion was loud and distracting but that she thought it was only teenage horse-play. She did not investigate, intervene, or exercise her authority to control the off-duty workers and protect Fora-dori from the risk of harm. Instead, she called out to the noisy teenagers to take the disturbance outside. Cannon responded by walking out the front door with a group of teenagers and Foradori close behind. Foradori followed, he said, because he could no longer endure the humiliation, even though he did not want to fight. Garious Harris, still in his work uniform, clocked out and joined the crowd that flowed outside to be near the fight. In the Captain D’s parking lot, Cannon continued to verbally challenge the still reluctant Foradori. Ultimately, Cannon invited Foradori to show his mettle by joining him for a fight in the parking area of the business next door, which was situated at a lower level than Captain D’s. At the end of the altercation, however, Fora-dori was still standing above on the edge of the Captain D’s parking lot while Cannon taunted him from below. At this point, Harris, a football player over six feet tall and weighing nearly 250 pounds, sprinted toward Foradori from behind and struck him with his fist in the back of his neck. Harris was running at full speed when he delivered the blow, described as a “hard punch” with a “balled-up fist” and “a punch like I never seen before.” It immediately knocked Foradori unconscious, causing him to fall head first to the concrete surface below. Foradori’s next memory was waking up in the hospital “after a couple of days.” Foradori suffered a broken neck and severed spine and was diagnosed with pure C5 sensory loss, meaning that he has no sensation at all beneath his shoulders. His quadriplegia is permanent. According to the American Spinal Association scale of measurement, Foradori suffers from the most severe form of this disability. II. Proceedings in The District Court Foradori brought suit in the Circuit Court of Lee County, Mississippi, seeking damages for injuries resulting from the tortious conduct of Captain D’s, LLC and others. Defendant Captain D’s removed the case to the United States District Court for the Northern District of Mississippi based on diversity of citizenship of the parties. After initially denying Captain D’s motion for summary judgment, the district court reconsidered its ruling and granted summary judgment in respect to plaintiffs premises liability claims. The case proceeded to a trial by jury on October 3, 2005, and at trial, plaintiffs counsel called a number of liability-fact witnesses. Foradori, Shells, and King testified to their versions of the events. According to the testimony of Foradori and Shells, the argument between Cannon and Foradori was sufficiently loud and apparent to make it clear to any reasonably observant person in the restaurant, particularly a manager in charge, that a fight was brewing. Foradori testified that the argument, lasting “15 [to] 20 minutes,” “got louder and louder as it went on,” drew a crowd of spectators, and “was loud enough that [the Captain D’s managers] could have heard it.” Shells corroborated this description of the events, stating that even from his position in the kitchen he could hear the “loud voices ... in an argument” “fussing and fighting” and that his Immediate thought when the group began exiting the restaurant was that “they fbdn to fight.” King testified that her only concern at the time was that what she thought was the “horse-play” of a group of disruptive teenagers was disturbing her cashiers. Foradori also called Jerry Rhodes, the general manager of the Captain D’s restaurant, who admitted that under no circumstances should restaurant employees intimidate or assault customers; that managers, such as Ms. King, are obligated to take action to stop confrontations between customers and employees; and that failure to do so is a violation of restaurant and company policy. Finally, Forado-ri called Phil Purcell, an attorney serving as Captain D’s risk manager and corporate representative, who admitted that the Captain D’s employees’ conduct, if as alleged, violated Captain D’s policy against on-premises customer assault; that an employee’s assault on a customer likely warranted his discharge; and that a manager who, knowing that an employee was acting disrespectfully to a customer, failed to intervene would violate company policy. In fact, Purcell conceded that if Foradori’s injury occurred as Foradori and Shells described it, Captain D’s should be responsible. At the close of Foradori’s case, Captain D’s rested without calling any witnesses. Captain D’s then moved for a judgment as a matter of law dismissing all of Foradori’s claims. The district court granted the motion in part, dismissing Foradori’s action to hold Captain D’s vicariously liable for Harris’s assault upon Foradori because that intentional tort was outside the scope and course of Harris’s employment. But the court also denied the motion in part, refusing to dismiss Foradori’s claims based on Captain D’s negligent failure to regulate, train, supervise and control its managers and employees, and submitted those negligence claims to the jury. Following closing arguments, the district court charged the jury on the elements underlying Foradori’s claims based on Captain D’s alleged negligent failure to supervise, control, and train its employees in order to protect its customers from undue risk of harm. The district court noted that this court, in Williams v. United States Fidelity & Guaranty Co., 854 F.2d 106, 109 (5th Cir.1988), indicated that Mississippi law places a duty on employers to control a servant’s conduct outside the scope of employment but on the employer’s premises comparable to the duty imposed by the Restatement (Second) of Torts § 317. Accordingly, the district court followed the principles of § 317 in instructing the jury as follows: An employer is under a duty to exercise reasonable care to train and supervise its employees so as to prevent the employee from harming others or from so conducting himself as to create an unreasonable risk of bodily harm to others. The duty to supervise applies if the employee is upon the premises in possession of the employer and the employer knows or has reason to know that he has the ability to control his employee and knows or should know of the necessity and opportunity for exercising such control. Neither the plaintiff nor the defendant raised or preserved any objection for appeal as to this part of the district court’s jury instructions. The jury returned a verdict in favor of Foradori, awarding him $10 million for past, present, and future physical pain and suffering, mental anguish, and the loss of enjoyment in life; $1,581,884.41 for reasonable and necessary medical expenses already incurred; $8 million for the present value of the reasonable and necessary medical expenses reasonably likely to be incurred in the future; and $1,300,000 for the present value of loss of future earnings or earning capacity resulting from his disability. The district court entered judgment on the verdict. Captain D’s filed a combination motion renewing its motion for judgment as a matter of law and moving, alternatively, for a new trial or remittitur. The district court denied the motion in its entirety. Captian D’s filed a timely notice of appeal, challenging the district court’s denial of judgment as a matter of law and, alternatively, seeking a new trial or remittitur. III. Discussion A. District Court’s Denial of Motion for Judgment as a Matter of Law “We review de novo the district court’s denial of a motion for judgment as a matter of law, applying the same standard as the district court.” Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 296 (5th Cir.2005) (citing Cozzo v. Tangipahoa Parish Council-President Gov’t, 279 F.3d 273, 280 (5th Cir.2002)); see also Lyrick Studios, Inc. v. Big Idea Prod., Inc., 420 F.3d 388, 391 (5th Cir.2005); Serna v. City of San Antonio, 244 F.3d 479, 481 (5th Cir.2001). But when a case is tried by a jury, a Rule 50(a) motion is a challenge to the legal sufficiency of the evidence. Int’l Ins. Co., 426 F.3d at 296 (citing Brown v. Bryan County, 219 F.3d 450, 456 (5th Cir.2000)). In resolving such challenges, we draw all reasonable inferences and resolve all credibility determinations in the light most favorable to the nonmoving party. Id. (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Thus, we will reverse the denial of a Rule 50(a) motion only if the evidence points so strongly and so overwhelmingly in favor of the nonmoving party that no reasonable juror could return a contrary verdict. Id. (citing Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir.2001)). A jury verdict must be upheld unless “there is no legally sufficient evidentiary basis for a reasonable jury to find” as the jury did. Id. at 296-97 (citing Fed.R.Civ.P. 50(a)(1); Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir.1995)). This court has consistently applied this standard to show appropriate deference for the jury’s determination. As we have explained: A jury may draw reasonable inferences from the evidence, and those inferences may constitute sufficient proof to support a verdict. On appeal we are bound to view the evidence and all reasonable inferences in the light most favorable to the jury’s determination. Even though we might have reached a different conclusion if we had been the trier of fact, we are not free to re-weigh the evidence or to re-evaluate credibility of witnesses. We must not substitute for the jury’s reasonable factual inferences other inferences that we may regard as more reasonable. Id. (citing Hiltgen, 47 F.3d at 700); Rideau v. Parkem Indus. Serv., Inc., 917 F.2d 892, 897 (5th Cir.1990). Federal diversity jurisdiction provides an alternative forum for the adjudication of state-created rights, but it does not carry with it generation of rules of substantive law. Under the Eñe doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law. Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 426-27, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). In this diversity case, the district court and this court must apply the substantive negligence law of Mississippi. See Erie v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Am. Nat’l Gen. Ins. Co. v. Ryan, 274 F.3d 319, 328 (5th Cir.2001). In the absence of applicable statutes, the rules of common law negligence apply in Mississippi. See Chadwick v. Bush, 174 Miss. 75, 163 So. 823, 824 (1935); Amy D. Whitten & Deanne M. Mosley, Caught in the Crossfire: Employers’ Liability for Workplace Violence, 70 Miss. L.J. 505, 517 (2000). Accordingly, Mississippi has long imposed on every person who undertakes an action a duty of reasonable care to protect against causing injury to others, see Dr. Pepper Bottling Co. of Miss. v. Bruner, 245 Miss. 276, 148 So.2d 199, 201 (1962), and while this duty requires that precautions be taken only against foreseeable risks, “in satisfying the requirement of foreseeability, a plaintiff is not required to prove that the exact injury sustained by the plaintiff was foreseeable; rather, it is enough to show that the plaintiffs injuries and damages fall within a particular kind or class of injury or harm which reasonably could be expected to flow from the defendant’s negligence.” Glover ex rel. Glover v. Jackson State Univ., 968 So.2d 1267, 1278 (Miss.2007) (citing City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 715 (Miss.2005) and Gulledge v. Shaw, 880 So.2d 288, 293 (Miss.2004)). Mississippi courts, like those of other states, have refined general negligence principles to require an owner of a business catering to the public to maintain a reasonably safe environment to protect business invitees from foreseeable harm by employees and third persons. “Mississippi imposes on business owners ‘the duty to maintain the premises in a reasonably secure or safe condition’ for business patrons -” Am. Guar. & Liab. Ins. Co. v. 1906 Co., 273 F.3d 605, 613 (5th Cir.2001) (citing Whitehead v. Food Max, Inc., 163 F.3d 265, 271 (5th Cir.1998) and Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991)). To fulfill this duty, businesses must “take reasonably necessary acts to guard against the predictable risk of assaults,” id. (citing Whitehead, 163 F.3d at 271 (quoting Lyle, 584 So.2d at 399)), and such a duty “includes the protection of patrons or invitees from the foreseeable wrongful acts of employees and third persons on the premises.” See id. at 613-14; see also L.T. ex rel. Hollins v. City of Jackson, 145 F.Supp.2d 750, 759 (S.D.Miss.2000) (citing Little by Little v. Bell, 719 So.2d 757, 760 (Miss.1998); Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 377 (Miss.1997)). In addition to this broad duty owed to invitees, the Mississippi Supreme Court, in Tillman ex rel. Migues v. Singletary, 865 So.2d 350, 353 (Miss.2003), expressly quoted and adopted the principles of the Restatement (Second) of Agency § 213 stating that: [a] person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: (a) in giving improper or ambiguous orders or in failing to make proper regulations; or (b) in the employment of improper persons or instrumentalities in work involving risk or harm to others; (c) in the supervision of the activity; or (d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instru-mentalities under his control. Id. (citing and quoting Restatement (Second) of Agency § 213 (1958)). In Tillman, the court held that a plaintiff swimmer, who was injured by a negligent powerboat driver, was entitled to a jury instruction under § 213 on the theory that the boat owner, who was in the boat at the time of the accident, had been negligent in his supervision of the driver. The boat owner was also the driver’s employer, but at that time they were on a weekend outing that was not work-related. The Tillman court approved the use of § 213 only as the basis of a jury instruction on negligently supervising an activity. However, because the court embraced all of § 213 with approval and the other negligence principles of § 213 are closely analogous to that of negligent supervision of an activity, we think the court would apply them as well in an appropriate case. In fact, prior to Tillman the court had already approved a theory of recovery based on an employer’s negligent failure to train or regulate its employees. See Gamble ex rel. Gamble v. Dollar Gen. Corp., 852 So.2d 5, 14 (Miss.2003) (holding that “[bjased on Dollar General’s failure to show any training provided to [its employee], other than handing her a manual, it was proper to allow the jury to consider the issue of negligence for Dollar General’s failure to train its employee”). The comments under § 213 deal with the applications of the rule to some of the specific situations which commonly involve a principal or master and indicate different ways in which a principal or master may be negligent. See Restatement (Second) of Agency § 213 cmt. a (1958). The corn-ments most pertinent to the present case are: g. Inadequate regulations. A master is negligent if he fails to use care to provide such regulations as are reasonably necessary to prevent undue risk of harm to third persons or to other servants from the conduct of those working under him. One who engages in an enterprise is under a duty to anticipate and to guard against the human traits of his employees which unless regulated are likely to harm others. He is likewise required to make such reasonable regulations as the size or complexity of his business may require. id. at cmt. g (citing Restatement (Second) of Torts § 317) (internal citation omitted); and i. Acquiescence in tortious conduct. A master is subject to liability as the possessor of premises for conduct of a servant thereon, or in fact the conduct of anyone, to the continuance of which he consents after he knows or should know that such conduct contains an unreasonable risk of harm to licensees or those upon adjacent roads or premises. Failure on the part of the possessor of premises to prevent negligent conduct thereon by others does not necessarily make him responsible. If, however, being in control of the premises and of the persons acting by the fact that he is their principal or master, he does not object to dangerous conduct, his inaction may cause him to be liable to persons harmed by it. In such case, liability is based not merely upon the fact that he is the possessor of things which he is under a duty to prevent from harming another, which comes within the rule stated in Section 214, but upon the fact that by permitting another to use them in a dangerous manner he is aiding the dangerous conduct. id. at § 213 cmt. i. As the foregoing comments indicate, the principles of Restatement (Second) of Agency § 213 and Restatement (Second) of Torts § 317 are similar and interrelated. Section 317 of the Restatement (Second) of Torts provides: A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control. Restatement (Second) of Torts § 317 (1965). Thus, § 317 provides that a master is under a duty to use reasonable care to control the actions of his servant while the servant is acting outside the scope of his employment to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the servant is on the master’s premises and the master knows or has reason to know that he has the ability to control his servant, and knows or should know of the necessity and opportunity for exercising such control. In view of the Mississippi Supreme Court’s adoption of the Restatement (Second) of Agency § 213 principles in Tillman, and their similarity and partial overlap with the Restatement (Second) of Torts § 317 principles, we conclude that the highest court of Mississippi would apply the similar principles of both of those Restatement sections in determining the questions of negligence and proximate cause in the present case. Our conclusion in this respect is bolstered by our circuit precedent in Williams, 854 F.2d at 109, recognizing that the Restatement (Second) of Torts § 317 sets the proper limits in Mississippi of an employer’s duty to control a servant’s conduct outside the scope and place of employment. Further, this view is consistent with the well established duty that Mississippi imposes upon a business proprietor to exercise reasonable care to protect a patron from reasonably foreseeable risks of harm by others on the business premises. See Lyle, 584 So.2d at 399; Grisham v. John Q. Long V.F.W. Post, 519 So.2d 413, 417 (Miss.1988); Kelly v. Retzer & Retzer, Inc., 417 So.2d 556, 560 (Miss.1982); Joan Teshima, Annotation, Tavemkeeper’s Liability to Patron for Third Person’s Assault, 43 A.L.R.4th 281 (1986). Moreover, in related tort contexts the Mississippi Supreme Court has generally accepted and applied Restatement principles when relevant. The parties essentially agree that these are the principles of law that the district court was required to follow in instructing the jury and deciding the motion for judgment as a matter of law and that this court must apply the same precepts in reviewing the district court’s decision. 1. In this case, the district court, in denying Captain D’s motion for judgment as a matter of law in respect to the negligent acts and omissions of its manager, Ms. King, in failing to control its employees on its premises, explained: [T]he burden [was] upon plaintiff to demonstrate that at least one Captain D’s employee [other than Garious Harris], acting in the scope of his or her employment, acted negligently in this case and that this negligence was a proximate cause of plaintiffs injuries. The jury found that plaintiff carried this burden of proof, and this conclusion was, in the court’s view, supported by the evidence at trial. In particular, there was substantial testimony at trial suggesting that manager Peggy King acted negligently in this case, and Captain D’s does not dispute that King’s actions were taken in the course and scope of her employment as a Captain D’s manager. In denying directed verdict as to plaintiffs negligence claims, the court wrote as follows: [T]estimony at trial indicated that the assault in this case did not arise “out of the blue,” but, rather, was preceded by a period of verbal confrontation between Foradori and A1 Cannon, a Captain D’s employee. Foradori testified that this confrontation was a loud one which should have been overheard by Captain D’s management personnel, and the testimony at trial indicated that restaurant chef Jeremy Shells, who was in the kitchen area, overheard the verbal confrontation in the dining area and went out to witness what he believed would be a fight. Moreover, Captain D’s manager Peggy King admitted at trial that she heard the verbal exchanges between Foradori and Cannon, and she further testified that she ordered the young men to take their dispute outside. King maintained that she only felt that “horseplay” was taking place between the young men, but she conceded that she did not investigate the matter further to determine the true facts in this regard. In the court’s view, the aforementioned facts create fact issues as to whether, unlike the sudden assault in Mays, Captain D’s management either knew or, in the exercise of reasonable supervision should have known, of the confrontation which was brewing in their restaurant. In light of the foregoing, there were clearly triable fact issues in this case as to whether King was negligent and whether that negligence was the proximate cause of plaintiffs injuries. The jury apparently chose to believe Shells’ testimony that he went outside the restaurant with the full expectation of seeing a fight. Specifically, Shells testified that: I seen a crowd of people go outside and they was already in the store arguing so the next thing in my mind was, hey, they fixing to fight. So I went out behind them. Shells also testified that, prior to the young men going outside, he could hear “loud voices” in the restaurant which clearly indicated to him that an argument was taking place. With regard to Harris’ assault on Foradori, Shells testified that while Cannon and Foradori were facing off outside: I turned around and Garious come out of nowhere running full speed and hit Michael Foradori in the back of the neck ... that was a hard punch. I’m talking about a punch like I never seen before. Assuming that the jury found this testimony to be credible, it could very reasonably have disbelieved King’s self-serving testimony that she merely felt that innocent “horseplay” was taking place between Cannon and Foradori. Indeed, given that Shells, who was working in the food preparation area behind King, apparently managed to correctly perceive that a fight was brewing in the dining area a considerable distance away, King’s self-serving testimony that she was unable to do so even though she was closer to the altercation can reasonably be viewed with skepticism. Assuming that the jury made this very reasonable inference from the evidence, Captain D’s arguments that Harris’ intentional assault was a superseding cause as a matter of law likewise lacks merit. In the court’s view, it is clearly foreseeable that a customer might receive injuries from engaging in a fight with an employee, and Shells’ testimony could have led a reasonable juror to conclude that King knew or should have known that her actions in ordering her employees outside (as well as her actions in not stopping the confrontation from brewing in the first place) would have resulted in a fight and possible injuries to Foradori. The mere fact that plaintiffs injuries were more serious than would generally be expected, and the fact that it was another employee who actually inflicted those injuries, make no difference as to the issue of foreseeability. Captain D’s argued at trial that Shells’ testimony was unreliable, but this was clearly an issue for the jury. This court considered Shells’ testimony as to his reasons for going outside to be credible, in large part because young men typically do not rush outside to watch “horseplay” take place. Shells clearly left the restaurant for a reason, and his testimony that he did so to watch a fight seemed credible to this court. Shells’ testimony was clearly damaging to Captain D’s case, inasmuch as it cast doubt upon Captain D’s argument that King had no reason to anticipate that a fight would occur. The credibility of Shells’ version of events was also enhanced by Peggy King’s own testimony regarding her actions after the tragic incident in this case. The court found it extraordinary that King admitted that she made no inquiries whatsoever of her employees even after Foradori was left paralyzed by Harris’ attack. King testified that she felt that it was the job of the police to investigate the incident, and this admission arguably speaks volumes regarding the level of discipline, and the degree of supervision, which existed between King and her employees. In the court’s view, the jury could have reasonably concluded that a manager who admittedly failed to make basic inquiries after a fight involving grievous injuries to a customer would have been indifferent to whether that fight occurred in the first place. An inference of negligence on the part of King was also supported by the fact that three separate Captain D’s employees under her supervision (i.e. Cannon, Harris and Shells) behaved in such a grossly inappropriate manner on the night in question. It is one thing for Captain D’s to argue that the inappropriate actions of one employee were somehow an aberration, but the fact that three employees under King’s supervision behaved in such an inappropriate manner reasonably supports a finding that a general lack of supervision and discipline prevailed at this particular restaurant. In light of the foregoing, the court concludes that the evidence in this case not only supported the jury’s finding that Captain D’s was negligent, but that it did so strongly. Captain D’s motion for JML and/or new trial based upon the sufficiency of the evidence will therefore be denied. Considering the record in this case, we agree with the district court and conclude that the jury’s verdict in respect to Captain D’s liability for the negligent failure of its manager, Ms. King, to control its off-duty employees and take other precautions to prevent the foreseeable risk of harm to its customer, Foradori, is supported by legally sufficient evidence, which included the undisputed facts that Cannon loudly and angrily challenged Foradori to a fight in full view and hearing of Ms. King inside the restaurant for 15 to 20 minutes; that Ms. King heard and saw the angry confrontation, which she misinterpreted as horse-play, and ordered Cannon and Fora-dori to go outside without investigating, intervening or taking any precaution to protect Foradori; that Ms. King allowed a crowd including both employees and customers to follow the protagonists into the parking lot without taking any precautions, such as calling the police; and that as soon as Foradori reached the edge of the restaurant parking lot Garious Harris, a restaurant employee, assaulted him without warning from behind, knocking him unconscious and breaking his neck. In addition, the jury reasonably could have found that Ms. King, as Captain D’s manager in charge of its employees and its premises, knew or should have known that Cannon, an off-duty employee, was creating an unreasonable risk of a fight and harm to Foradori; that she as the manager on duty had the ability to control the employee Cannon while he was on the premises, even though he was off-duty; that she had the ability to control the other employees and to some extent the customers on the restaurant premises; that she aggravated the risk of bodily harm to Foradori, and created similar risks to other customers and employees, by causing the occupants to exit into the parking lot to witness or participate in the fight; that she knew or should have known of the necessity and the opportunity to exercise her ability to control everyone on the premises for the protection of Foradori as well as other customers and employees; and that had Ms. King exercised reasonable care and her ability to control Cannon and the other employees and occupants present, the assault that resulted in Foradori’s injury and disability would not have occurred. Captain D’s argues that, as a matter of Mississippi law, it did not have a duty to supervise or control Cannon and Harris at the time of Foradori’s injury simply because they were then off-duty and not acting in the scope of their employment, citing Williams, 854 F.2d 106, as its authority. This argument misreads Williams and the underlying Restatement (Second) of Torts § 317 principles upon which it is based. Under those principles, Captain D’s had a duty to control its off-duty employees, such as Cannon, Harris, Shells and perhaps others, so as to protect patrons like Foradori from any foreseeable unreasonable risk of harm created by those employees, because those employees’ conduct occurred on Captain D’s premises, and the jury reasonably could have found that Captain D’s manager knew or had reason to know that she had the ability to control them, and knew or should have known of the necessity and opportunity for exercising such control. On distinguishable facts, Williams held only that the employer in that ease had no duty under the § 317 principles to control the conduct of an employee off its premises who was not acting in the course of his employment when he injured the plaintiff. See Williams, 854 F.2d at 109. Captain D’s also argues that it owed no duty to protect Foradori from Harris’s assault because it had no reason to know that Harris had any propensity for that type of conduct. The argument is not relevant to this case. Foradori’s action is based on Captain D’s negligent failure to regulate and train as well as control and supervise its employees whom it knew or should have known were creating an unreasonable risk of harm to its patron on its premises. Foradori did not pursue an action against Captain D’s for negligently hiring or retaining Harris. Under a negligent hiring action Foradori would have had to show that Captain D’s had reason to believe that an undue risk of harm would exist because of its employment of Harris due to his dangerous propensity. But the showing of a dangerous propensity of an employee is not an essential element of the action based on the employer’s negligent failure to control or supervise its employee whom it knows or should know to be engaging in conduct creating an unreasonable risk of harm to customers or others on its premises. Captain D’s other arguments on this issue are equally without merit. They are simply attempts to shoehorn this case into the inapposite mold of a negligent hiring case or other cases distinguishable on their facts, along with reprises of its unsuccessful closing argument to the jury on the facts of this case. 2. We also conclude that the district court properly denied Captain D’s motion for judgment as a matter of law in respect to its negligent failure to train its managers and employees and inculcate in them the discipline of compliance with work rules. The district court stated: [T]he evidence in this case appears to establish a widespread failure among multiple Captain D’s employees to behave in an appropriate manner in this case. Obviously, it is not proper behavior for a Captain D’s employee such as Cannon, off-duty or not, to approach a customer on restaurant premises in a hostile manner and to encourage him to fight. The fact that Cannon apparently felt comfortable in behaving in such an improper manner on restaurant premises raises troubling questions regarding the level of training, supervision and discipline which existed at the Captain D’s franchise in question. The fact that yet another employee — Harris—apparently felt comfortable in violently assaulting a customer on or near restaurant premises strengthens the court’s conclusions in this regard. Finally, the fact that a restaurant chefs instinctive reaction upon learning of the fight was to go witness the altercation rather than break it up or notify management strongly supports a conclusion that there was a general failure on the part of Captain D’s to properly supervise and train their employees at this particular franchise. It seems very likely that Captain D’s management would have eventually learned of Harris’ violent assault on Fo-radori, which occurred during business hours just outside the restaurant. The fact that Harris nevertheless elected to commit this assault raises questions in this court’s mind as to whether Captain D’s management had adequately informed Harris of the adverse consequences which would result if he behaved in a violent manner towards a customer. The court’s skepticism in this regard is strengthened by the fact that King testified that, even after Foradori was injured, she never directly asked Harris whether he had assaulted Fora-dori. Indeed, King testified that she never interviewed any of her employees about the accident. Considered as a whole, King’s testimony at trial appeared to reflect a rather passive managerial approach which, in the court’s view, may well have contributed to the tragic injuries suffered by Foradori. The court therefore declines to dismiss plaintiffs negligent training and supervision claims against Captain D’s, although it will, as stated previously, grant defendant’s motion to dismiss plaintiffs vicarious liability claims based upon Harris’ intentional assault. After reviewing the record, we conclude that the district court correctly analyzed the evidence and applied Rule 50, not simply for the district court’s stated reasons, but also because of additional legally sufficient evidence in the record from which the jury reasonably could have found that Captain D’s failed to take reasonable steps to train and discipline its employees to take reasonable precautions to control and defuse customer-related altercations on its premises. The evidence was undisputed that, although Captain D’s had work rules and manuals addressing this subject, it failed to adequately train the managers and employees to comply with them in this case. Ms. King, the manager on duty in the restaurant dining room at the time of the incident, testified that although she “was given some oral things on disruption” she did not know what to do when an altercation occurred but would have to go ask her supervisor. As a consequence, she negligently failed to recognize or address the need to take reasonable precautions to protect Foradori from the unreasonable risk of bodily harm created by employees on the premises. Ms. King’s supervisor, Mr. Ferguson, who was on-duty but absent from the dining room at the time, stated he believed there were rules regarding the misconduct of employees and customers but that he did “not specifically” know what they were. Mr. Shells, the cook on duty, testified that he was never, “[provided] a manual of rules and regulations that [he] should follow,” “[instructions on] any rules or regulations on how [he] should treat customers,” or “about how to handle a dispute between an employee and a customer.” Mr. Rhodes,. Captain D’s general manager, who also was not present when Foradori was injured, admitted he was not aware whether Captain D’s had guidelines for handling arguments or disturbances in the restaurant: “I don’t think we have anything in writing for handling a disturbance. It could be. We’ve got books and books and books of policy and they change all the time.” Rhodes testified that he “never walked ... Peggy King through how to handle an incident involving an employee who was threatening or intimidating a customer” and did not prepare the other store managers for such a situation. Nonetheless, Rhodes stated that “if management didn’t teach the rules and regulations [to employees]” that would constitute a “violation of Captain D’s policy.” Under the Restatement (Second) of Agency § 213 negligence principles that we have concluded the Mississippi Supreme Court would apply, an employer who engages in an enterprise is under a duty to anticipate and to guard against the reasonably expected human traits and episodes of its employees within its industry to prevent undue risk of harm to third persons or to other employees; and is likewise required to make such reasonable regulations as the size or complexity of its business may require. See Tillman, 865 So.2d at 353 (quoting with approval and applying § 213). Further, in Gamble, the Mississippi Supreme Court affirmed a jury verdict for a plaintiff customer of a department store based on evidence that a store employee followed her into the parking area, accused her of shoplifting, and grabbed her underwear. See Gamble, 852 So.2d at 14. The court held that it was proper to allow the jury to consider the issue of the employer’s negligent failure to train without the need of expert testimony based on evidence that the store failed to provide any training other than handing the employee a manual. Id. In light of the foregoing legal principles and evidence, there was a legally sufficient evidentiary basis for the jury to find that Captain D’s actually anticipated or should have expected that angry confrontations would arise occasionally between a customer and employees or other customers on its premises; that Captain D’s therefore had a duty to take reasonable precautions to train its managers and employees to deal with such situations and attempt to prevent them from escalating into unreasonable risks of bodily harm to customers or employees; that Captain D’s negligently failed to provide reasonable training and regulation; and that if Captain D’s had taken reasonable precautions the injury to its customer, Foradori, in this case would not have occurred. Captain D’s simply ignores the testimony of its managers and employees and argues that the only evidence presented in support of plaintiffs claim that it negligently failed to train its managers and employees was the expert testimony of Stuart Feigenbaum, who defendant contends was not qualified to testify to industry training practices. We disagree. As the preceding discussion of the evidence demonstrates, even without the expert’s testimony, the combined testimony of Captain D’s managers and employees provided a more than sufficient basis for the jury’s finding that the defendant failed to satisfy its duty to train and regulate its employees. 3. Finally, the district court, in rejecting Captain D’s argument that Harris’ intentional assault was the superseding and sole proximate cause of Foradori’s injury, reasoned: Captain D’s arguments that Harris’ intentional assault was a superseding cause as a matter of law likewise lacks merit. In the court’s view, it is clearly foreseeable that a customer might receive injuries from engaging in a fight with an employee, and Shells’ testimony could have led a reasonable juror to conclude that King knew or should have known that her actions in ordering her employees outside (as well as her actions in not stopping the confrontation from brewing in the first place) would have resulted in a fight and possible injuries to Foradori. The mere fact that plaintiffs injuries were more serious than would generally be expected, and the fact that it was another employee who actually inflicted those injuries, make no difference as to the issue of foreseeability. Captain D’s argued at trial that Shells’ testimony was unreliable, but this was clearly an issue for the jury. This court considered Shells’ testimony as to his reasons for going outside to be credible, in large part because young men typically do not rush outside to watch “horseplay” take place. Shells clearly left the restaurant for a reason, and his testimony that he did so to watch a fight seemed credible to this court. Shells’ testimony was clearly damaging to Captain D’s case, inasmuch as it cast doubt upon Captain D’s argument that King had no reason to anticipate that a fight would occur. Mississippi law has long held that a cause of injury is not superseding if it is foreseeable. See, e.g., Glover, 968 So.2d at 1279-80 (“where the intervening cause of injury was foreseeable, it cannot super-cede the liability of the defendant”); O’Cain v. Harvey Freeman & Sons, Inc. of Miss., 603 So.2d 824, 830 (Miss.1991) (“[A]n independent intervening cause is one that could not have been reasonably foreseen by the defendant while exercising due care”); Canton Broiler Farms, Inc. v. Warren, 214 So.2d 671, 676-77 (Miss.1968) (“[I]f foreseeable, the subsequent negligence is not independent and intervening, but is concurrent with the prior negligence.”); Meridian Hatcheries Inc. v. Troutman, 230 Miss. 493, 93 So.2d 472, 476 (1957) (“where the act of a third party, even if it is negligent, intervenes between the original negligence of defendant and the injury, there is proximate cause if, under the circumstances, an ordinarily prudent man could or should have anticipated that such intervening act, or a similar intervening act, would occur.”); Oliver Bus Lines v. Skaggs, 174 Miss. 201, 164 So. 9, 12 (1935) (“an independent intervening cause is one that could not have been reasonably foreseen by the defendant while exercising due care”). As the Mississippi Supreme Court has recently confirmed, even a criminal act by a third party is not a superseding cause if it was foreseeable. See Glover, 968 So.2d at 1279-80 (finding that a rape was not a superseding cause of injury when it was a reasonably foreseeable consequence of defendant’s negligence). “[I]n satisfying the requirement of foreseeability, a plaintiff is not required to prove that the exact injury sustained by the plaintiff was foreseeable; rather, it is enough to show that the plaintiffs injuries and damages fall within a particular kind or class of injury or harm which reasonably could be expected to flow from the defendant’s negligence.” See Glover, 968 So.2d at 1278-79 (concluding that “although the specific harm of forcible rape may not have been contemplated by [defendant]” it was foreseeable because it fell within the class of acts that might occur as a result of defendant’s negligence); Canton Broiler Farms, 214 So.2d at 677 (holding that a car accident arising out of unique and improbable facts was foreseeable because: “[i]t seems clear, of course, that no mortal could foresee that which happened. The real question is, could the defendant reasonably foresee that some accident and injury would probably result from his [negligence]”); id. (“There are other intervening causes which could scarcely have been contemplated by any reasonable man in the place of the defendant at the time of his conduct, but which are nevertheless to be regarded as normal incidents of the risks he has created.”) (quoting Prosser, Torts § 51 at 314 (3d ed.1964)); Whether a cause of injury is foreseeable is a question for the jury. See O’Cain, 603 So.2d at 830 (“the question of superseding intervening cause is so inextricably tied to causation, it is difficult to imagine a circumstance where such issue would not be one for the trier of fact.”). Applying these principles, we conclude that the district court correctly denied Captain D’s motion for judgment as a matter of law on the superseding cause issue. In light of the evidence, the jury reasonably could have found that an assault and battery upon Foradori by one or more of a numerous class of third persons became foreseeable when, after the lengthy dining-area altercation between Cannon and Foradori, the manager in charge, King, relinquished her ability and duty to control the agitated employees and customers by ordering them to go outside. Thus, the jury similarly could have found that it was not unforeseeable that Foradori would be harmed by any number of hazards posed that night by the turbulent crowd of teenagers in the Captain D’s parking lot; and that the assault on Fora-dori by Harris fell within the particular kind or class of injury or harm which reasonably could be expected to flow from the restaurant manager’s negligent failure to control and supervise its employees and customers on its premises as well as from Captain D’s negligent failure to train and regulate its managers and employees in respect to altercations on its property. B. Captain D’s Motion for a New Trial 1. Verdict of liability against the weight of the evidence Defendant protests that the jury’s verdict on liability was contrary to the great weight of the evidence and thus a new trial is warranted. Our review of the district court’s denial of a motion for a new trial is more deferential than our review of a motion for judgment as a matter of law. We will reverse the trial court’s denial of a motion for a new trial only when there is a clear showing of an abuse of discretion. See Hiltgen, 47 F.3d at 703; Dawsey v. Olin Corp., 782 F.2d 1254, 1261 (5th Cir.1986). To show an abuse of discretion in this respect, the defendant must show an absolute absence of evidence to support the jury’s verdict. Whitehead, 163 F.3d at 269; Hiltgen, 47 F.3d at 703; Dawsey, 782 F.2d at 1262. Because we have already concluded that the jury’s verdict was supported by the evidence in reviewing the district court’s denial of judgment as a matter of law, we necessarily find that there was no abuse of discretion in its denying the motion for a new trial on liability. 2. New trial or remittitur of excessive damages After a full trial on liability and damages, the jury returned a verdict for Fora-dori and awarded him $10 million for past, present, and future physical pain and suffering, mental anguish, and the loss of enjoyment in life; $1,581,884.41 for reasonable and necessary medical expenses already incurred; $8 million for the present value of the reasonable and necessary medical expenses likely to be incurred in the future; and $1,300,000 for the present value of loss of future earnings or earning capacity resulting from his disability. Alternatively to its motion for a judgment as a matter of law, Defendant moved for a new trial or remittitur. The district court denied the motion as to all awards. Defendant attacks as excessive the $10 million award for pain, suffering and loss of quality of life. a. The Supreme Court in Gasperini, 518 U.S. at 419, 434, 116 S.Ct. 2211, held that, in an action based on state law but tried in federal court by reason of diversity of citizenship, a district court must apply a new trial or remittitur standard according to the state’s law controlling jury awards for excessiveness or inadequacy, and appellate control of the district court’s ruling is limited to review for “abuse of discretion.” “Within the federal system, practical reasons combine with Seventh Amendment constraints to lodge in the district court, not the court of appeals, primary responsibility for application of [the state’s new trial or remittitur standard], Trial judges have the ‘unique opportunity to consider the evidence in the living courtroom context,’ while appellate judges see only the ‘cold paper record.’ ” Id. at 438, 116 S.Ct. 2211 (internal citation omitted). “In light of Erie’s doctrine, the federal appeals court must be guided by the damage-control standard state law supplies, but as the Second Circuit itself has said: ‘If we reverse, it must be because of an abuse of discretion ... The very nature of the problem counsels restraint ... We must give the benefit of every doubt to the judgment of the trial judge.’” Id. at 438-39, 116 S.Ct. 2211 (citing Dagnello v. Long Island R. Co., 289 F.2d 797, 806 (2d Cir.1961)) (footnote omitted). The Mississippi statutory standard for granting a new trial or remittitur provides: The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur. Miss.Code Ann. § 11-1-55 (emphasis added) Therefore, in accordance with Gasperi-ni, we must review the district court’s decision in applying the foregoing Mississippi new trial/remittitur standard to the evidence in this case to determine whether the district court abused its discretion. In doing so, we may not substitute our own application of Mississippi’s new trial/remit-titur rule for the district court’s, and we may not generate or apply our own appellate review rules in lieu of simply performing a review for abuse of discretion. b. At trial Foradori and his examining physician, Dr. Howard Katz, an expert in physical medicine and spinal cord injuries, testified describing the effects of Foradori’s injury in respect to his pain, suffering, mental anguish, and loss of quality and enjoyment of life. According to their undisputed testimony, Foradori is essentially paralyzed from the neck down. He can feel his neck and the top of his shoulders, and he has some sensation “coming down his lateral upper arms about halfway down.” Below that, Foradori has no sensation whatsoever. Using his upper arm, he can bend his elbow but cannot straighten it; he must rely on gravity to-do so. His shoulder is similar; he is able to generate slight movements up, forward, or backward and must rely on gravity for the rest. Foradori can use these shoulder movements to operate his electric wheelchair, but he has no control over his hands or wrists. He is unable to sit up on his own and cannot remain upright unless strapped in a chair. Foradori is unable to feed himself, despite his attempts to use specially designed devices; to eat he relies on others to “take a fork or a spoon and dip it in food and put it in [his] mouth.” Similarly, he is unable to wash or dress himself. Despite the paralysis of Foradori’s arms and legs, he suffers from spasms, commonly associated with spinal cord injury, in those extremities. To control these spasms, he required the surgical insertion of a Baclofen pump. This procedure involved inserting a “tube into a catheter into the spinal column into the epidural space” as well as placing a pump under the skin. The pump must be refilled every three months and replaced every five years. Foradori’s bodily functions are deeply compromised and require extensive external manipulation. He suffers from a “neurogenic bladder,” meaning he has no bladder control. This condition leads to bladder spasms which can combine to create either uncontrolled urination or improper and unhealthy increases in bladder pressure. To manage this condition, Fo-radori requires a catheter, but because Foradori, like most spinal cord injury sufferers, cannot rely on a condom catheter to stay on his penis, he must use an indwelling catheter. Foradori describes the device as something “inserted into my private, going all the way to my bladder, then they have to blow up a balloon to keep it in and urine passes through the catheter to a bag.” To function, this must remain attached to Foradori at all times, channeling the urine out of view to a black bag behind the leg rest of Foradori’s wheelchair. Dr. Katz describes Foradori’s indwelling catheter, as “the worst possible choice for management of a spinal cord injury bladder” because “100 percent of the people who have an indwelling catheter develop bacteria, chronic bacteria and infection in their bladder.” As a result, Foradori can expect to “have problems with recurrent urinary tract infections.” Indwelling catheters also cause “increased risk of bladder stones, kidney stones, ... vesico-ureal reflux where [urine] goes back toward the kidney, hydronephritis or water on the kidney, bladder cancer, kidney cancer, renal [failure] and death.” Defecation for Foradori is even more uncomfortable. Foradori suffers from “neurogenic bowel,” which means he has no control over his bowel and must endure partial bowel obstruction. Before Forado-ri moved to a nursing home, his father had to “perform digital stimulation [of the bowels] two times a week.” This consisted of his father “performing] digital stimulation, leaving] him in bed, waiting] until he’s through being incontinent, and then cleaning] him up, just changing] the sheets and everything.” Foradori’s experience at the nursing home shows little improvement; “three nights a week I have to have something inserted into my bottom in order to make me go to the bathroom ... I have to wait three or four hours in order to go to the bathroom and wait for somebody to come clean me up and turn me over.” From this bowel stimulation, Foradori runs a high risk of developing both internal and external hemorrhoids and fissures in his rectum, and he runs increased risk of colon polyps and gall bladder disease. At the time of trial, Fo-radori experienced “a lot of incontinence of stool at school.” Understandably, this sensitive area is of particular concern to Foradori, who, when first presented to Dr. Katz, “was very unhappy with the fact that he couldn’t control his bowel or bladder.” Foradori also suffers from “neurogenic sexual dysfunction,” so he has no function in his sexual organs. In his own words: “I can’t feel. I can’t control anything. I can’t get an erection on my own.” Forado-ri has been unable to achieve or maintain an erection even with the use of Viagra. Before moving into a nursing home, Fo-radori depended on his family for his care routine. This required Foradori’s father, who worked two jobs, to administer Fora-dori’s bowel routine, shower him, dress him, and feed him daily. The wear of this responsibility on Foradori’s father led For radori to move to a nursing home, where he follows a limited routine every day: I get a bath on Tuesday and Thursdays; otherwise I wake up in the morning, take my medicine, they come in there around nine, 9:30, wash me up, put my clothes on for me. They have a lift, they use a pad that goes under my shoulders and under my legs to get me to a lift and they have to crank the lift up until it gets me up high enough to get me over my chair. And then they have to carry me over to my chair, put the lift around my tires, and push me back in my chair to let me down to make sure I’m all the way in, and strap me in. After I’m in the chair I basically just ride around all day, come back to my room, eat lunch, watch TV, ride around some more until it’s suppertime; eat supper. Since his injury, Foradori has suffered from “continuing pain most of the time,” and much of this, such as pain in his head and shoulders as well as perceived pain in his feet, is “lifetime pain.” For the six months following his injury, Foradori’s neck hurt constantly and severely enough to remain “very bad” despite steady morphine doses. To date this neck pain continues periodically and Foradori suffers from muscle spasms that are sometimes “so bad it hurts my back, my shoulders, [and] my neck.” Further, Foradori continues to have persistent pain in his shoulders caused by “bilateral subluxation of shoulders with early arthritis of both shoulders.” This apparently arose because his accident cr