Chisolm v. Mississippi Dept. of Transp.
| Decision Date | 09 November 2006 |
| Docket Number | No. 2003-CT-02526-SCT.,No. 2004-CT-00440-SCT.,2003-CT-02526-SCT.,2004-CT-00440-SCT. |
| Citation | 942 So.2d 136 |
| Parties | Oliver David CHISOLM, Jr., Oliver David Chisolm, III, Carolyn Elizabeth Chisolm and Kayla Louisa Chisolm v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION. Linda Pugh v. Mississippi Department of Transportation. |
| Court | Mississippi Supreme Court |
David M. Sessums, Vicksburg, attorney for appellant.
G. Kenner Ellis, Greenville, attorney for appellee.
EN BANC.
ON WRIT OF CERTIORARI
¶ 1. In these consolidated suits, the trial courts granted summary judgment to the Mississippi Department of Transportation ("MDOT"), finding that it could not be held liable for the negligence of its independent contractor, Great River Stone Company ("Great River"), and also that it qualified for immunity under the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-9(1) (Rev.2002) ("MTCA"). The plaintiffs appealed, and we referred the matter to the Court of Appeals, which held that Great River was MDOT's independent contractor and that MDOT was indeed immune from liability under two of the MTCA subsections relied upon by the trial courts. However, because it also found MDOT did not qualify for immunity under a third provision, the Court of Appeals reversed and remanded the case for trial. The dispositive question in this case is whether the plaintiffs can overcome the independent contractor relationship between Great River and MDOT in order to hold MDOT liable for their injuries.
¶ 2. We begin by borrowing the excellent statement of facts set forth by the Court of Appeals:
The night of April 11, 1999, Priscilla Chisolm drove down Highway 61 South in Sharkey County, Mississippi, accompanied by Linda Pugh. At that time, Great River Stone Company (Great River) was under contract with the Mississippi Department of Transportation to replace a bridge with an underground box culvert. According to Pugh, as the women approached the construction area, Pugh heard a `bump' and then heard Chisolm scream, `I've got it.' The right front wheel of the vehicle left the shoulder of the roadway and, as Chisolm attempted to correct the vehicle, the vehicle began a counterclockwise spin. The vehicle flipped, ejecting Chisolm from the driver's seat. Pugh, who was not thrown from the vehicle, testified that she heard Chisolm screaming for help in the darkness. Chisolm did not survive long after the accident and, while Pugh survived, she suffered severe, permanent disabling injuries.
The day after the accident, members of the Pugh family visited the accident scene and found a twelve to eighteen inch bolt lying next to the road. The bolt matched an indentation in the road indicating that the bolt lay partially on the road. According to Pugh, the bolt was found in the area where she recalled hearing the bump, prior to the vehicle spinning out of control.
In October of 1999, Chisolm's heirs filed suit against MDOT and Great River. That month Pugh also filed suit against MDOT and Great River. Both suits alleged that MDOT and Great River were negligent in placing traffic control barrels, failing to provide warning lights, warning signs, barricades, and guardrails, and numerous other allegations of negligence.... On December 18, 2000, MDOT moved for summary judgment in the Chisolm case, to which the Chisolm heirs filed a timely response. On March 28, 2002, the trial court granted MDOT's motion, finding that Great River was an independent contractor and that MDOT was entitled to sovereign immunity under Mississippi Code Annotated Section 11-46-9(p)(v) and (w) (Rev.2002). It is from this ruling that Chisolm's heirs now appeal.
On February 20, 2002, MDOT moved [for] summary judgment against Pugh[, which the trial court granted]. . . . On May 19, 2003, the trial court granted Pugh permission to seek an interlocutory appeal; however, the Supreme Court denied the petition on February 25, 2004. Pugh filed a motion for judgment under Rule 54 of the Mississippi Rules of Civil Procedure, and the trial court granted the motion on February 26, 2004. Pugh appeals to this Court, and the Pugh case and Chisolm case have now been consolidated.
Chisolm v. Miss. Dep't of Transp., No.2003-CA-02526-COA, 2005 Miss.App. LEXIS 560, at *1-4, ___ So.2d at ___- ___ (Miss.Ct.App. Aug.16, 2005).
¶ 3. Pugh and Chisolm's heirs ("Plaintiffs") urged the Court of Appeals to hold that the trial courts erred in finding Great River to be an independent contractor, and in finding that MDOT was immune under the MTCA. Id. at *4, ___ So.2d at ___. In addressing these issues, the Court of Appeals considered the following three provisions of the MTCA:
(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
* * *
(p) Arising out of a plan or design for construction or improvements to public property, including but not limited to, ... highways, roads, streets, [or] bridges ... where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design;
* * *
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care; [or]
(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice[.]
Miss.Code Ann. § 11-46-9(1)(p), (v), (w).
¶ 4. The Court of Appeals affirmed summary judgment as to subsection (p) based on Great River's independent contractor status. Chisolm, 2005 Miss.App. LEXIS 560, at *13, ___ So.2d at ___. The court also affirmed summary judgment as to subsection (w) because the traffic control plan met accepted engineering and design standards. Id. at *18, ___ So.2d at ___. It finally found summary judgment to be premature as to subsection (v) because a genuine issue of material fact existed as to MDOT's notice of the dangerous condition at the construction site and its opportunity to warn or protect against the condition. Id. at *16-17, ___ So.2d at ___-___.
¶ 5. We granted certiorari to resolve the issue of whether the plaintiffs can overcome the independent contractor relationship between Great River and MDOT in order to hold MDOT liable for their injuries.
¶ 6. Mississippi Rule of Civil Procedure 56 governs motions for summary judgment. This Court reviews de novo a trial court's grant of a motion for summary judgment. Webb v. Braswell, 930 So.2d 387, 395 (Miss.2006). In conducting our review, we examine all evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). This evidence must be viewed in the light most favorable to the non-moving party. Hataway v. Estate of Nicholls, 893 So.2d 1054, 1057 (Miss. 2005). The movant carries the burden of demonstrating that no genuine issue of material fact exists. Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000). If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in the movant's favor. Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss. 2005).
Independent contractor status
¶ 7. In Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 148 (Miss.1994), this Court set forth the following definition of an independent contractor: "An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." Under the general rule, the independent contractor's principal has no vicarious liability for the torts committed by the independent contractor or its employees in the performance of the contract. Heirs & Wrongful Death Beneficiaries of Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743 So.2d 311, 318 (Miss.1999) ("Tucker").
¶ 8. Several of the sections of the contract between MDOT and Great River, described below in relevant part, evidence the parties' intent for Great River to serve as an independent contractor:
Section 104.01—Intent of Contract
The Contractor shall furnish all labor, materials, equipment, supplies, transportation, supervision, methods and procedures necessary to complete the work in accordance with the plans, specifications and terms of the contract.
The Contractor shall keep the portion of the project being used by public traffic in satisfactory condition for traffic to be adequately accommodated.
The Contractor shall be bound to the provisions of this subsection and other applicable provisions of the contract with regard to the safe and convenient passage of traffic.
Inspectors employed by the Department will be authorized to inspect all...
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