Joseph v. Tennessee Partners, Inc., 56709

Citation501 So.2d 371
Decision Date14 January 1987
Docket NumberNo. 56709,56709
PartiesEvelyn JOSEPH, Individually and as Administratrix of the Estate of Lee Joseph, Deceased v. TENNESSEE PARTNERS, INC., Mississippi Fair Commission, Larry Salter, Psalter Promotions, Inc., and Balboa Insurance Company.
CourtUnited States State Supreme Court of Mississippi

Paul Kelly Loyacono, Vicksburg, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Robert E. Sanders, Sp. Asst. Atty. Gen., Ken R. Adcock, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellees.

Before HAWKINS, P.J., and DAN M. LEE and GRIFFIN, JJ.

GRIFFIN, Justice, for the Court:

I.

This action comes before us from the Circuit Court of the First Judicial District of Hinds County, wherein the trial court granted the defendants to the case (except Larry Salter, who was dismissed from the proceeding on a 12(b)(6) motion and, while listed as an appellee, has no error assigned to his dismissal in the text of appellant's brief)--the Mississippi Fair Commission, Tennessee Partners, Inc., Psalter Promotions, Inc., and Balboa Insurance Company--MRCP Rule 56 motions for summary judgment. Evelyn Joseph appeals, and in addition to assigning as error the granting of these motions for summary judgment, she appeals the trial court's failure to award expenses, costs and attorney's fees when defendants' Rule 12 motions to dismiss filed previously were denied.

The case before us today involves a claim of liability against the defendants and appellees, Tennessee Partners, Inc., ("Tennessee"), the Mississippi Fair Commission ("the Commission"), Larry Salter, Psalter Promotions, Inc., ("Psalter"), and Balboa Insurance Co., ("Balboa"), for injuries received by appellant Evelyn Joseph in an alleged slip-and-fall injury sustained on December 3, 1983. Her husband, since deceased, joined in her complaint seeking damages for $50,000 because of the injuries and damages to his wife which caused him to do domestic chores and housework during the time of his own deteriorating physical condition, in addition to his having assumed responsibility for hospital, medical and drug bills jointly with his spouse.

For the reasons stated below, we affirm the decision of the lower court finding the motions for summary judgments were properly granted.

II.

On December 3, 1983, appellant Evelyn Joseph attended the "Bob Barker Fun and Games Show" at the Mississippi Memorial Coliseum in Jackson, Mississippi. Prior to that time, construction work had commenced in the parking lot immediately outside the Coliseum, and several drainage holes which were dug remained uncovered at the time of the event.

After her arrival but before the doors to the Coliseum opened, appellant requested directions to a restroom facility, to which an employee of Psalter-Tennessee responded, telling her of restrooms on the south side of the parking lot. En route to these restrooms, Joseph stepped in one of the drainage holes and fell and injured herself. No complaint was lodged at that time for injuries received, and the record contains no evidence of the alleged medical bills and/or testimony by treating doctors in the case.

The individual defendants each filed MRCP Rule 56 motions for summary judgment, which the trial court in turn granted.

Appellee, Tennessee, a Tennessee corporation who promoted the game show in Jackson, as well as in various other locations around the country, filed its motion on July 9, 1985, which the court in its order granted on July 29, 1985. Psalter is a Mississippi corporation who handled the ticket and money collections for the event pursuant to its agreement with the Mississippi Fair Commission, and whose motion for summary judgment was filed and order entered granting the same along with Tennessee. Psalter was contacted around October 1, 1983, by Robert Rowe, president of Tennessee, concerning the arrangements and promotion of the "Bob Barber Fun and Games". Pursuant to the agreement, Psalter was to handle the ticket office arrangements and to alert the sound equipment personnel at the Coliseum as to what type of equipment was needed.

Also, pursuant to the agreement, Tennessee was to arrange for the performance of the "Bob Barker Fun and Games Show" at the Coliseum on December 3, 1983, and procure a liability insurance policy which insured the performance of the show.

The Coliseum is owned by the state of Mississippi, and managed by the Commission, who is responsible for the maintenance and upkeep of the building itself, the parking lot and fairground. The Commission employs a maintenance crew who periodically inspects and makes repairs on the parking lot surrounding the Coliseum. If repair work is done, the Commission does the work itself or hires a contractor to do the work under its supervision, according to testimony of Billy Orr, executive director of the Commission whose job responsibilities include overseeing the maintenance and upkeep of the building, grounds and parking lot, as well as leasing the Coliseum.

Also involved but not named as a defendant to the case is a Jackson Exchange Club, whose members on the evening in question organized parking in the lot and collected money, which was later split with the Commission pursuant to their agreement.

The standard lease contract was entered into by the Commission and Psalter Promotions on behalf of Tennessee on October 31, 1983, Tennessee being unable to make the trip to Jackson. There are several pertinent portions of the contract relative to the case at bar: first, paragraph one (1) lists the portions leased to Tennessee--which are the arena, restrooms and dressing rooms; secondly, paragraph seven (7) mentions that Psalter must accept the "grounds, exits, entrances, building(s), restrooms, and all other equipment and/or facilities," and must leave these areas in the same condition as found; and third, paragraph four (4) of the contract requires the lessee of the Coliseum to acquire liability insurance covering the show or event on the date of performance and further requires the lessee to show proof of coverage, both of which requirements Tennessee met in entering into an insurance agreement with Balboa on November 1, 1983.

On June 22, 1984, Evelyn Joseph filed this suit presently on appeal, alleging that the defendants were negligent in maintaining the parking lot surrounding the Coliseum or that defendants were negligent in failing to warn of dangers in the parking lot. On September 24, 1984, the plaintiff amended her complaint and added Larry Salter, Psalter and Balboa as defendants.

Motions to dismiss under Rule 12 of the M.R.C.P. were filed by Tennessee, Psalter, Larry Salter, the Mississippi Fair Commission and Balboa, and following a hearing on all the motions the trial court sustained only that of Larry Salter.

Subsequent to the rulings on the motions to dismiss, motions for summary judgment were filed on behalf of the Commission, Tennessee, Psalter and Balboa. The Commission was granted summary judgment on the grounds that it enjoyed sovereign immunity as a political subdivision of the state of Mississippi and, as such, could not be sued therein. Balboa was granted summary judgment on the grounds that it was wrongfully joined as a defendant in the suit. Psalter and Tennessee were granted summary judgment on the grounds that they did not owe a duty to the plaintiff regarding the condition of the premises where appellant, Evelyn Joseph, was injured.

Plaintiff has assigned as error the ruling of the court regarding the granting of summary judgment to the Commission, Psalter, Tennessee and Balboa, and the court's failure to award appellants expenses in connection with the defense of appellees' motions to dismiss.

III.

The requirements as mandated by M.R.C.P. Rule 56(c) provide that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Following adoption of this rule, we interpreted the language contained within a motion for summary judgment first in Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983), in which we noted, while referring to comment made by the advisory committee on the Mississippi Rules of Civil Procedure that:

A motion for summary judgment lies only where there is no genuine issue of material fact; summary judgment is not a substitute for the trial of disputed fact issues. Accordingly, the Court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried.... The trial court must review carefully all of the evidentiary matters before it--admissions and pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should be forthwith entered in his favor. Otherwise, the motion should be denied.

444 So.2d at 362. See also, Modling v. Bailey Homes, Inc., 490 So.2d 887 (Miss.1986); and Cole v. Wiggins, 487 So.2d 203 (Miss.1986).

In the case at bar, appellant argues for the existence of a genuine issue of material fact against the motion granted to the Mississippi Fair Commission, in that the Commission is not cloaked from liability because of the doctrine of sovereign immunity, and as a statutorily created agency (Miss.Code Ann. Secs. 69-5-1 et seq. (1972)), which was charged with the upkeep and maintenance of the building and grounds, the...

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