Burton v. Choctaw County, 95-CA-00071-SCT.

• Decision Date: 07 August 1997
• Docket Number: No. 95-CA-00071-SCT.,95-CA-00071-SCT.
• Citation: 730 So.2d 1
• Parties: Delsie BURTON, Administratrix of the Estate of Evie Burton, Deceased v. CHOCTAW COUNTY, Mississippi; Choctaw County Hospital d/b/a Choctaw County Nursing Home; Homer Mack Martin, Director of Said Nursing Home in his Representative Capacity; The Collective Board of Trustees of the Choctaw County Hospital and the Individual Members Therof: R.T. McKnight, Jim Cresap, Sammy Whitmire, Don Threadgill, Samuel V. Kennedy, Frank Randall, and Sharon Castle, in their Respresentative Capacities; and Rochelle Moore.
• Court: Mississippi Supreme Court

730 So.2d 1

Delsie BURTON, Administratrix of the Estate of Evie Burton, Deceased v. CHOCTAW COUNTY, Mississippi; Choctaw County Hospital d/b/a Choctaw County Nursing Home; Homer Mack Martin, Director of Said Nursing Home in his Representative Capacity; The Collective Board of Trustees of the Choctaw County Hospital and the Individual Members Therof: R.T. McKnight, Jim Cresap, Sammy Whitmire, Don Threadgill, Samuel V. Kennedy, Frank Randall, and Sharon Castle, in their Respresentative Capacities; and Rochelle Moore.

No. 95-CA-00071-SCT.

Supreme Court of Mississippi.

August 7, 1997.

Rehearing Denied April 22, 1999.

Rabun Jones, Howard Dyer, III, Dyer Dyer Jones & Daniels, Greenville, Attorneys for Appellant.

J. Lawson Hester, Hubbard T. Saunders, IV, Crosthwait Terney, Jackson; Ronald S. Wright, Ackerman; George M. Mitchell, Jr., Eupora; C. Hugh Hathorn, Louisville, Attorneys for Appellee.

Before SULLIVAN, P.J., and McRAE and JAMES L. ROBERTS, Jr., JJ.

McRAE, Justice, for the Court:

¶ 1. In this appeal, we are asked to determine whether the circuit court committed reversible error in granting summary judgment on the plaintiff's state law claims on the grounds of sovereign immunity. Because we find that genuine issues of material fact remained as to whether professional services were involved in this case, and because the exclusionary clause under review in this case was ambiguous, we answer in the affirmative. Accordingly, we reverse and remand for trial on the merits.

I.

¶ 2. Delsie Burton filed her initial complaint in the Circuit Court of Winston County, Mississippi for the wrongful death of her mother, Evie Burton, who died on September 1, 1993. According to the medical examiner's report, Evie died as a result of burns she sustained on August 29, 1993, while she was being bathed by Rochelle Moore.

¶ 3. In 1993, Evie Burton was a resident of the Choctaw County Nursing Home located in Ackerman, Mississippi. On August 29, 1993, as part of her employment as a nurse's aide with the Choctaw County Nursing Home, Rochelle Moore ran bath-water in a whirlpool to give Evie Burton a bath. Moore tested the temperature of the water with her bare arm and hand and found it satisfactory. Burton also tested the water by putting her foot in and demonstrated that the water was okay. Burton was placed in the lift chair, strapped in, and lifted over the water.

¶ 4. Maggie Baldwin, another nursing home employee, added the soap to the water, and Burton was placed inside the tub. After Moore bathed Burton, Moore asked Melissa Reed and Mary Baker to help get Burton out of the tub. When they got her out, Reed noticed a small spot on Burton's left hip. Although Burton had no burns on her body prior to being placed in the water, redness of her extremities was noted over the next thirty minutes with blisters beginning and continuing to form.

¶ 5. Early on, doctors felt that the burns were of first and second degree over approximately fifty percent of Burton's body from her mid-back down over the buttocks, perineal area and lower extremities. Later, however, it was determined that the burns were second and third degree and covered over sixty percent of Burton's body. Evie Burton was transferred to Hospital, where she died on September 1, 1993. The medical examiner determined that Burton's burns produced a classic donut patter injury commonly seen in immersion burns of children when placed in water, inducing a thermal burn pattern. The examiner also concluded that these burns precipitated Ms. Burton's death.

¶ 6. While Burton was a resident of the nursing home and during her brief confinement in the Choctaw County Hospital following her burns, she was under the care of Morris Parsons, M.D. Dr. Parsons's orders pertaining to Ms. Burton indicated that she "may have a whirlpool bath, tub bath, or shower two to three times per week." According to him, "this bathing was not classified as treatment, but instead was for hygienic purposes." As noted by Parsons, Burton was experiencing incontinence during this time, and the bathing was partly to eliminate the body odor problem associated with that. In contrast to assertions made by Parsons, Moore testified in an affidavit that she had been giving nursing treatment to Evie Burton while Burton was living at the Choctaw County Nursing Home.

¶ 7. At the time of the events complained of by the appellant, Choctaw County, Mississippi was a subdivision of the State of Mississippi. At the time of the occurrence, Choctaw County was also a member of the Mississippi Public Entity Property and Liability Pool. This Pool is a self-insurance fund made of contributions of public funds by approximately twenty-six participating Mississippi governmental entities.

¶ 8. Based on an exclusionary clause within the contract between the Pool and Choctaw County, the Administrator of the Pool notified Choctaw County that no coverage existed under the Pool's provisions and that the Pool would not afford Choctaw County a defense or coverage to the appellant's claims. The County then filed its motion to dismiss/for summary judgment. Its theory was that sovereign immunity protected it from suits of such a nature as brought by Delsie Burton, because the acts of Rochelle Moore while she was a county employee were excluded under the coverage of the Pool contract.

II.

¶ 9. As a court of appeals, this Court conducts a de novo review of decisions by lower courts to grant summary judgment. Westbrook v. City of Jackson, 665 So.2d 833, 836 (Miss.1995). In conducting a de novo review, this Court analyzes all affidavits, admissions in pleadings, interrogatory answers, depositions and other matters of record, and considers all such evidence in the light most favorable to the party against whom the motion for summary judgment was made. Short v. Columbus Rubber and Gasket Co., 535 So.2d 61, 63 (Miss.1988). If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Westbrook, 665 So.2d at 836. Otherwise, the motion should be denied.

¶ 10. "All motions for summary judgment should be viewed with great skepticism and if the trial court is to err, it is better to err on the side of denying the motion." Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993). A motion for summary judgment should be overruled unless the trial court finds, beyond any reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim. Id. In order for there to be genuine issues of material fact, the affidavits and other evidence must be sworn, made upon personal knowledge, and show that the party providing the factual evidence is competent to testify. Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989).

¶ 11. The party moving for summary judgment bears the burden of persuading the trial court that no genuine issue of material fact exists, and that they are, based on the existing facts, entitled to judgment as a matter of law. Skelton v. Twin County Rural Elec. Ass'n, 611 So.2d 931, 935 (Miss. 1992). The burden of showing this is one of production and persuasion, not of proof. Ales v. Ales, 650 So.2d 482, 484 (Miss.1995). To prevent summary judgment, the non-moving party must establish a genuine issue of material fact by means allowable under M.R.C.P. 56(c). Id. An issue of fact may be present where there is more than one reasonable interpretation that may be given undisputed testimony, where materially differing but nevertheless reasonable inferences may be drawn from the uncontradicted evidentiary facts, or when the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial judge cannot say with reasonable confidence that the full facts of the matter have been disclosed. American Legion Ladnier Post Number 42 v. Ocean Springs, 562 So.2d 103, 106 (Miss.1990); Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984).

Genuine Issue of Material Fact

¶ 12. The trial court erred in granting summary judgment because there remained at least one issue of material fact, based on the summary judgment evidence. Rochelle Moore swore out an affidavit in which she stated that she "assisted registered nurses in rendering nursing treatment to the occupants of the Choctaw County Nursing Home, including Ms. Evie Burton." She repeated in this statement that she provided "treatment" to Evie Burton, including "nursing care and treatment" and "whirlpool bath treatment" on August 29, 1993.

¶ 13. In contrast, Delsie Burton submitted, in opposition to Choctaw County's motion for summary judgment, an affidavit from Dr. Morris Parsons. Parsons was the attending physician for Evie Burton while she was a resident of the Choctaw County Nursing Home, including the point at which she died. He testified that he directed nursing home staff to give Burton a whirlpool bath, tub bath or shower two to three times per week. He also testified that "[t]his bathing was not classified as treatment, but instead was for hygienic purposes."

¶ 14. In this case, Burton was admitted to a nursing home and was given a bath by a nurse's aide, who, although certified by the State of Mississippi, is not a professional in the ordinary sense of the word. Further, the bath given was not a part of any treatment, even though the physician recommended that Burton receive periodic baths. Moore's affidavit asserts, rather presumptively, that she was engaged in nursing services. However, the affidavit of Dr. Parsons directly contradicts Moore, in that he asserts that the baths given to Burton were not part of any treatment. They were given partly to keep her clean, due to her incontinence. This dispute in the proof means that an issue of fact exists as to whether nursing treatment was given to Ms. Burton.

¶ 15. These contradictory statements create a clear factual issue as to whether Burton's bath on August 29, 1993, constituted "nursing...