Hill v. City of Horn Lake

• Decision Date: 15 January 2015
• Docket Number: No. 2012–CA–01748–SCT.,2012–CA–01748–SCT.
• Citation: 160 So.3d 671
• Parties: Bertram HILL, Individually, Jenanne Mooneyhan and Rachael Phillips, As Wrongful Death Beneficiaries of David Mooneyhan v. CITY OF HORN LAKE, Mississippi.
• Court: Mississippi Supreme Court

160 So.3d 671

Bertram HILL, Individually, Jenanne Mooneyhan and Rachael Phillips, As Wrongful Death Beneficiaries of David Mooneyhan

v.CITY OF HORN LAKE, Mississippi.

No. 2012–CA–01748–SCT.

Supreme Court of Mississippi.

Jan. 15, 2015.

Rehearing Denied April 23, 2015.

John Thomas Lamar, III, John Thomas Lamar, Jr., Senatobia, Joseph Harland Webster, Ralph Edwin Chapman, Clarksdale, attorneys for appellants.

Roy Jefferson Allen, Lyon, attorney for appellee.

EN BANC.

Opinion

COLEMAN, Justice, for the Court:

¶ 1. The City of Horn Lake (“the City”) contracted with Phillips Construction Company and its owner Michael Phillips (collectively “Phillips”) to work on a sewer project. Two employees of Phillips, Bertram Hill and David Mooneyhan, were working near the bottom of a trench that was seventeen feet deep when the walls of the trench suddenly collapsed. Mooneyhan was killed, and Hill was injured. Mooneyhan's beneficiaries and Hill (collectively “Plaintiffs”) sued the City for Phillips's negligence under respondeat superior and also alleged that the City had negligently hired Phillips. The circuit court properly granted summary judgment in favor of the City, and we affirm.

Facts and Procedural History

¶ 2. On October 28, 2008, a trench being constructed in connection with the City's Chapel Hill Sewer Installation Project (“project”) collapsed on itself, causing serious injury to Bertram Hill and death to David Mooneyhan. Two city employees who were at the site to deliver supplies witnessed the event. Hill and Mooneyhan had been performing work near the bottom of the trench as part of their employment with Phillips. Phillips did not have general liability insurance coverage at the time of the trench collapse. Since that time, OSHA has investigated Phillips for possibly violating federal regulations in connection with its work on the project.

¶ 3. Phillips and the City never reduced to writing the agreement for the project's completion, but the record provides ample information about the agreement. The project was to be completed on a cost-plus basis, and Phillips ultimately requested $9,678 for its work.¹ Interrogatory responses from Phillips and depositions of Calvin Shields, the City's Director of Operations, shed additional light on the nature of the agreement. Via interrogatory responses, Phillips testified that his company was an independent contractor for the City and that the City did not participate in the construction or direct the manner or means by which the work was done. Shields testified that the City would inspect the site only if the contractor requested an inspection. Shields testified that city employees had visited the site only twice during the course of the project.

¶ 4. Plaintiffs filed a complaint against the City on August 4, 2009, alleging that the City was liable for Phillips's negligence on the basis of respondeat superior and also for its own negligence in maintaining the site. On February 9, 2012, the City moved for summary judgment on the following grounds: (1) Plaintiffs contended that Hill and Mooneyhan were employees of the City, thus rendering their claims subject to the exclusive remedy provision found in the Mississippi Workers' Compensation Act; (2) Phillips was an independent contractor, not an agent, so the City could not be liable to Plaintiffs under respondeat superior; and (3) the discretionary function exemption of the Mississippi Tort Claims Act (“MTCA”) rendered the City immune from liability for maintenance of a sewer system.

¶ 5. In response to the City's motion for summary judgment, Plaintiffs admitted that Hill and Mooneyhan were not employees of the City, thus rendering the City's defense under the Mississippi Workers' Compensation Act moot. Plaintiffs argued that the City was not immune from liability under the discretionary function exemption because the City still had a duty to warn of dangerous conditions. Finally, they added that the City was liable under Mississippi Code Section 31–5–51(7), which requires any person entering into a formal contract with a city that exceeds $25,000 to furnish proof of general liability insurance coverage. Miss.Code Ann. § 31–5–51(7) (Rev. 2010). The City argued that the statute was inapplicable because the contract amount was only $9,678, well below the $25,000 threshold.

¶ 6. The circuit court granted the City's motion for summary judgment on all issues, holding that Plaintiffs had not established the City had more than a supervisory role over the project, that the City's maintenance of a sewer system is a discretionary function, and that the burden under Mississippi Code Section 31–5–51(7) is placed on the contractor, not the City. Plaintiffs appealed.

¶ 7. We requested supplemental briefing from the parties on the following issues: (1) whether the contract, if any, between Horn Lake and Phillips was void and unenforceable as a matter of public policy because it was formed in violation of Mississippi Code Section 31–7–13 ; (2) whether the existence of an enforceable contract is a prerequisite for the existence of independent-contractor status for the purposes of determining whether Horn Lake is vicariously liable for the negligence, if any, of Phillips; and (3) whether the Court's opinion in Little v. Mississippi Department of Transportation, 129 So.3d 132 (Miss.2013), has any effect on whether Horn Lake enjoyed discretionary immunity.

Standard of Review

¶ 8. The standard of review for a grant or denial of summary judgment is de novo. Ladnier v. Hester, 98 So.3d 1025, 1027–28 (¶ 9) (Miss.2012). Courts determine whether summary judgment is proper by considering whether “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c). A fact is material if it “tends to resolve any of the issues properly raised by the parties.” Moss v. Batesville Casket Co., 935 So.2d 393, 398 (¶ 16) (Miss.2006). Issues of fact exist when one can draw more than one reasonable inference from uncontradicted facts. Ladnier, 98 So.3d at 1029 (¶ 14). The moving party has the burden of demonstrating the absence of a genuine issue of material fact. Id. at 1028 (¶ 10). If there is any doubt as to the existence of a genuine issue of material fact, the benefit goes to the nonmoving party. Id. at (¶ 9). However, the nonmoving party may not rest on mere allegations or denials in the pleadings, but must set forth specific facts showing that there are genuine issues for trial. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (¶ 4) (Miss.2008).

Discussion

¶ 9. The DeSoto County Circuit Court granted the City's motion for summary judgment on the following grounds: the City had no liability under respondeat superior; the City was exempt from liability because the maintenance of a sewer is a discretionary function; and the City was not liable for negligence in hiring Phillips. Plaintiffs raise the following issues on appeal: (1) whether the circuit court erred by holding that the City cannot be vicariously liable for the actions of Phillips because Phillips was an independent contractor; (2) whether the circuit court erred by dismissing Plaintiffs' negligent hiring and per se negligence claims by ruling that the City has no liability under Mississippi Code Section 31–5–51(7) ; and (3) whether the circuit erred by dismissing the City as a defendant based on the discretionary function of the MTCA. Additionally, in response to the parties' supplemental briefs, the Court finds it appropriate to discuss whether the contract, if any, between Horn Lake and Phillips was void and unenforceable as a matter of public policy because it was formed in violation of Mississippi Code Section 31–7–13.

I. Whether the circuit court erred by holding that the City cannot be vicariously liable for the actions of Phillips because Phillips was an independent contractor.

¶ 10. The City may be vicariously liable for Phillips's negligence if there was a master-servant relationship between the two entities when the trench collapsed.See Richardson v. APAC–Miss., Inc., 631 So.2d 143, 151 (Miss.1994). However, the City may not be vicariously liable for Phillips's negligence if Phillips was merely an independent contractor of the City. See Hodges v. Attala County, 42 So.3d 624, 626 (¶ 6) (Miss.Ct.App.2010). Plaintiffs would bear the burden at trial of proving the City vicariously liable for Phillips's negligence, if any, and accordingly bear the burden here of producing evidence to demonstrate the existence of a disputed material fact on the issue. Webster v. Miss. Publishers Corp., 571 So.2d 946, 949 (Miss.1990) ; Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988).

¶ 11. A servant is “a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.” Richardson, 631 So.2d at 148. An independent contractor is defined as “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.” Id. In short, the difference between a master-servant relationship and an independent-contractor relationship is that an employer in a master-servant relationship has control of, or the right to control, the employee in the details of the work. See Miller v. R.B. Wall Oil Co., Inc., 970 So.2d 127, 132 (¶ 15) (Miss.2007) ; Stewart v. Lofton Timber Co., LLC, 943 So.2d 729, 734 (¶ 15) (Miss.2006). In determining whether an employer has the right of control over the employee, the Court should consider what the employer was entitled to do under the contract, as opposed to what the employer actually did. Richardson, 631 So.2d at 150 (quoting Kisner...