Jones v. James Reeves Contractors, Inc.

• Decision Date: 27 March 1997
• Docket Number: No. 93-CA-01139-SCT,93-CA-01139-SCT
• Citation: 701 So.2d 774
• Court: Mississippi Supreme Court
• Parties: Wanda M. JONES as Mother and Natural Guardian of Alexander C. Jones, Ditra S. Cooley, and Derrick L. Cooley, the Minor Heirs at Law of Willis Cooley, Deceased; and Jimmy H. Cooley as Administrator of the Estate of Willis Cooley, Deceased, v. JAMES REEVES CONTRACTORS, INC., Howard Industries, Inc., and Foil, Wyatt, & McKewen, P.A.

Page 774

701 So.2d 774

Wanda M. JONES as Mother and Natural Guardian of Alexander C. Jones, Ditra S. Cooley, and Derrick L. Cooley, the Minor Heirs at Law of Willis Cooley, Deceased; and Jimmy H Cooley as Administrator of the Estate of Willis Cooley, Deceased, v. JAMES REEVES CONTRACTORS, INC., Howard Industries, Inc., and Foil, Wyatt, & McKewen, P.A.

No. 93-CA-01139-SCT.

Supreme Court of Mississippi.

March 27, 1997.

Cases Decided Decisions Hand Down

Nov. 20, 1997.

Rehearing Denied Nov. 20, 1997.

John Arthur Eaves, Jr., T. Jackson Lyons, Jane Sanders Lewis, Jackson, for Appellant.

Sandra S. Mohler, Jon Mark Weathers, Bryan Nelson Randolph & Weathers, Hattiesburg; Michael O. Gwin, Watkins & Eager, Jackson; Luke Dove, Dove Chill & Calhoun, Jackson, for Appellee.

En Banc.

SMITH, Justice, for the Court:

The heirs and estate administrator of a construction worker sued the project architects, the lessee of the construction property and the general employer of a trackhoe operator. The worker and two others were killed when the walls of a ditch being excavated for a sewer line caved in, burying the workers and smothering them to death. The trial judge sustained motions for summary judgment as to all defendants and dismissed the lawsuit on the basis that (1) the trackhoe operator was the "loaned employee" of the general contractor and thus immune from suit under the Workers Compensation statute; (2) the lessee of the construction site had breached no duty to the deceased worker; and (3) the project architects had no duty to warn the deceased worker of dangerous soil conditions. It is the opinion of the Court that the judgment of the trial court should be reversed as to the trackhoe operator and affirmed as to the project architect and the lessee of the construction site.

FACTS

In 1988, Howard Industries (Howard) began to construct an expansion of its plant in Jones County. The expansion site had been purchased from Howard by Jones County and then leased back to Howard. The Jones County Board of Supervisors approved a bond issue to raise money for the expansion. The lease required Howard to repay all of the bond money, and gave Howard an option to repurchase the property for a de minimis amount upon full repayment. Jones County owned the site and was responsible for constructing the building. Howard was the authorized agent of Jones County for the purpose of completing the construction project.

Pursuant to the authority granted to it in the lease agreement, Howard selected Foil, Wyatt & McKewen (Foil-Wyatt) to perform architectural services in connection with the project. Foil-Wyatt had no general supervisory duties over the project, nor were they present on the day of the fatal accident. They simply performed the design portion of the project. McCaskill Brothers Plumbing Company, Inc. (McCaskill Brothers), the employer of the deceased Willis Cooley, was selected along with three other contractors through the public bidding process. Each contractor selected was to complete a particular portion of the project. Howard did not have possession of the premises at this time Because McCaskill Brothers did not have the heavy equipment needed for the excavation of the hole, John McCaskill, Sr., president of McCaskill Brothers, orally contracted with James Reeves, Contractor, Inc. for the use of a track backhoe (trackhoe) and an operator. James Reeves, Jr. was the person from Reeves Construction who took the call from McCaskill. Reeves testified at his deposition that McCaskill, Sr. called to ask if Reeves Construction could rent out a trackhoe for the following day for the purpose of setting a manhole. It is the practice of Reeves Construction to send an operator with the trackhoe whenever someone rents the machine. No price was discussed, neither was a specific operator requested. James Reeves, Jr. decided that he would be the operator because he was the only one in town. John McCaskill, Jr. stated that it was his understanding that McCaskill Brothers' contract was with Reeves Construction and not with James Reeves individually since the equipment was owned by the construction company.

but did maintain a project coordinator at the site to ensure that the project's four contractors complemented each other in the completion of portions of the work. McCaskill Brothers' portion was the plumbing, heating and air conditioning work, including the installation of a sewer lift station, which required the excavation of a hole approximately fifteen feet deep. John McCaskill, Jr., McCaskill Brothers' site supervisor, testified that before the fatal excavation he had noticed water in the ditches for the foundation footings. Based upon this observation, he had a well-point system installed at the construction site about one and one-half weeks before the excavation for the purpose of "dewatering" the soil. The system was supposed to pull moisture out of the excavation site, thus making the soil more compact and lessening the chance of a cave-in.

The next morning, Reeves loaded the trackhoe onto a trailer, drove to the construction site, unloaded it, and met with John McCaskill, Jr. McCaskill laid out the plan for the work to be done that day. McCaskill showed Reeves a rough circle he had painted on the asphalt approximating where the lift station was to be installed and instructed Reeves to dig there. McCaskill, Jr. also informed Reeves of the location of a grade beam, a water line, and the well-point system in and around the excavation to help Reeves determine where the trackhoe could be safely placed.

McCaskill, Jr. stated that the only responsibility that Reeves had at the site was to dig the hole. He did not name any further responsibilities that Reeves would have while working on the job that day and stated that it would not be Reeve's place to do tasks that he would ordinarily order his regular employees to do. He also stated that he would measure the elevation to let Reeves know when the hole was deep enough.

Reeves testified in his deposition that at one point he stopped digging because he discovered that the subsurface had a flowing stratum of what Reeves termed "watersand." Given the dangerous propensities of that type of soil, Reeves testified that he told McCaskill, Jr. about the dangerous condition. For his part John McCaskill, Jr. denies that such a conversation ever took place between himself and Reeves. Reeves also stated that he would not have gone into the hole, but it was not his place to tell Willis Cooley not to go because "he did not work for us."

McCaskill used a transit to determine the depth of the hole. At one point, Reeves lowered the manhole into the hole. McCaskill used the transit to measure the depth, and determined that the hole needed to be six to eight inches deeper. This was important because according to McCaskill, Jr., the top elevation of the manhole had to be within one inch of the existing road under which it was being placed. Reeves then removed the manhole, and dug the hole deeper. On the second attempt, the manhole was lowered into the hole. Larry Jones, a McCaskill Brothers employee went into the hole to assist in measuring the new elevation of the manhole. He was pinned at the knees to the manhole by a small clump of dirt. Willis Cooley and Jerry Kitchens, who were already in the hole, ran around and began to try to pull the dirt away from Jones's legs. At that point, the walls of the excavation It is unclear from the record whether McCaskill Brothers ever paid either James Reeves, Jr. or James Reeves, Contractor, Inc. McCaskill Brothers subsequently hired another construction company to complete the job which was understandably abandoned by Reeves after the fatal accident.

caved in, burying and suffocating all three men.

On February 6, 1992, the heirs of Willis Cooley sued James Reeves, Contractor, Inc., Howard Industries, and Foil-Wyatt, on the grounds of wrongful death and negligence. All three defendants moved for summary judgment and the plaintiffs moved for partial summary judgment as to liability against Howard and Reeves Contractor, Inc. On July 15, 1993, the trial judge entered his order sustaining the defendant's summary judgment motions and denying summary judgment to the plaintiffs. The plaintiffs now appeal.

STANDARD OF REVIEW

This Court reviews matters involving summary judgment de novo. Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993). A de novo review entails reviewing all evidentiary matters in the record: affidavits, depositions, admissions, interrogatories, etc. The evidence must be viewed in the light most favorable to the nonmoving parties, and they are to be given the benefit of every reasonable doubt. Id. A motion for summary judgment will lie only where there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Id.

SULLIVAN, Presiding Justice, for the Court:

I.

WHETHER THE TRIAL COURT ERRED IN HOLDING THAT JAMES REEVES, JR. WAS A LOANED SERVANT OR DUALLY EMPLOYED--THEREBY AFFORDING REEVES, INC. IMMUNITY UNDER THE WORKERS COMPENSATION ACT.

The plaintiffs' first allegation of error is that the trial court should not have ruled that James Reeves, Jr. was a co-employee of Willis Cooley at the time of the accident under the "dual employment" or "loaned servant" doctrine. If Cooley and Reeves, Jr. were co-employees of McCaskill Brothers at the time of the accident, then Reeves Contractor, Inc. cannot be sued because it is protected under the statutory immunity granted to co-employees and employers under the Mississippi Workers Compensation Act. Miss.Code. Ann. § 71-3-1 to 181 (1972). If, however, Reeves was not a co-employee of Willis Cooley at the time of the accident, then Reeves would have been acting as the agent of a third party independent contractor. James Reeves, Contractor, Inc., on whose behalf he would have acted, would be a stranger to the employment relationship between...