McKean v. Yates Eng'g Corp.

Decision Date15 September 2016
Docket NumberNO. 2013-CT-01807-SCT,2013-CT-01807-SCT
Citation200 So.3d 431
Parties David McKean, Francesco Medina, Donald Arrington and Wayne Robertson v. Yates Engineering Corporation, Anderson Regional Medical Center, and Foil Wyatt Architects and Planners, PLLC
CourtMississippi Supreme Court






¶ 1. During the construction of Jeff Anderson Regional Medical Center's (“ARMC”) “Medical Towers III” expansion in Meridian, scaffolding built by W.G. Yates & Sons Construction Company (“Yates Construction”) collapsed, injuring David McKean, Francesco Medina, Donald Arrington, and Wayne Robertson (collectively, the plaintiffs). The trial court granted summary judgment and dismissed the plaintiffs' claims against all defendants. The Court of Appeals affirmed the decisions of the trial court. Although we agree with the Court of Appeals' decision to affirm the trial court, we now grant certiorari to clarify two issues: (1) whether this Court has adopted the seven-factor test used in Hanna v. Huer, Johns Neel, Rivers, & Webb , 233 Kan. 206, 662 P.2d 243 (1983)superceded by statute , as recognized in Edwards v. Anderson Engineering, Inc. , 284 Kan. 892, 166 P.3d 1047 (2007), to determine whether an architect's supervisory powers go beyond the provisions of the contract; and (2) to clarify this Court's position on the effect of an “undocumented immigrant” status on recovery for workplace injuries.


¶ 2. ARMC planned the “Medical Towers III” expansion to be a multi-story building located in Meridian. ARMC hired Foil Wyatt Architects and Planners PLLC (Foil Wyatt) to design the expansion and hired Yates Construction to act as the general contractor for the project. Yates Construction then hired Spectrum II as the subcontractor for concrete services. The plaintiffs were employed by Spectrum II. Construction on the expansion began in 2008. In order to complete the second floor of the building, Yates Construction asked Yates Engineering Corporation (“YEC”) to provide design drawings for a temporary scaffolding used to support the second floor concrete slab during construction.

¶ 3. The Court of Appeals stated:

As of September 2008, the first-story reinforced concrete slab had been poured, and Yates Construction was preparing to pour the concrete walls and columns that would help support the elevated second-story reinforced concrete slab. Yates Engineering became involved in the construction project when Dan Perry, Yates Construction's general superintendent, asked engineer Ted Pope to prepare design drawings of the scaffolding and second-story formwork. During late September 2008, Pope visited the construction site and met with Mike Clark, a construction supervisor for Yates Construction. Pope noticed some formwork for the first-story concrete columns and walls, but he did not see any scaffolding for the second-story formwork.
During Pope's visit, he and Clark discussed some of the necessary features of the scaffolding, such as the need for wooden 4?x4? posts and stringers, and 2?x4? joists. Pope prepared his preliminary design drawings, and submitted them for comments to Yates Construction on October 3, 2008. Meanwhile, Yates Construction had begun building the scaffolding before receiving Pope's design drawings.
It is undisputed that Pope's plan was fundamentally flawed in one significant way-it contemplated using twenty-four-foot posts. However, wooden 4?x4?> posts are not available in that length. Consequently, the posts would have to be “tiered” by stacking them end to end and “spliced” for stability. Despite the fact that Pope's plan was effectively impossible to follow, Yates Construction had no comments about Pope's design. Yates Construction asked Pope to send a final version of his design drawings. Pope complied on October 6, 20 [08]. However, Yates Construction ignored essential features of Pope's scaffolding design.

McKean v. Yates Engr. Corp. , No. 2013–CA–01807–COA, –––So.3d ––––, ––––, 2015 WL 5118062, at *1 (Miss.Ct.App. Sept. 1, 2015), reh'g denied (Mar. 1, 2016). On November 17, 2008, the plaintiffs were attempting to pour an elevated concrete slab for the second floor. As the concrete was being poured, the wooden scaffolding collapsed and caused injury to the plaintiffs. It is undisputed that the scaffolding caused the collapse and not the formwork.

¶ 4. The plaintiffs filed suit against Yates Construction on September 1, 2010, claiming that Yates Construction negligently failed to construct the scaffolding and related structures in accordance with plans and specifications. In February 2011, the plaintiffs amended their complaint to add Yates Engineering and Foil Wyatt as defendants. The plaintiffs alleged that Yates Engineering and Foil Wyatt negligently failed to formulate plans and specifications for the scaffolding, negligently failed to inspect the scaffolding, and failed to correct known deficiencies in the scaffolding.

¶ 5. American Resources Insurance Company Inc. filed a declaratory-judgment action in the United States District Court for the Southern District of Mississippi. In March 2012, the district court held that Yates Construction was Spectrum II's statutory employer. Because Yates Construction had secured workers' compensation insurance coverage for the plaintiffs, the circuit court dismissed the plaintiffs' suit against Yates Construction pursuant to the exclusive remedy provision of the Mississippi Workers' Compensation Act. In June 2012, the plaintiffs filed a second amended complaint, adding ARMC as a defendant and claiming that ARMC negligently failed to require a written contract with Yates Construction, negligently failed to supervise and inspect Yates Construction's work, and failed to maintain the premises in a reasonably safe condition and warn the plaintiffs of dangers.

¶ 6. Yates Engineering, joined by ARMC, filed a motion for summary judgment against plaintiff Medina, claiming that because Medina allegedly was not an American citizen and was therefore not lawfully employed, his claims should be dismissed due to his activity at the time of the accident. On February 20, 2013, the trial court dismissed Francesco Medina's claims. The circuit court then granted summary judgment in favor of Foil Wyatt, finding that Foil Wyatt had no duty to inspect the scaffolding. The Court of Appeals stated:

In August 2013, the circuit court granted summary judgment in favor of Yates Engineering. The circuit court's decision was based on its conclusion that [a]t no point in time did Yates Engineering assume the duty [to] inspect or supervise the construction and implementation of its design drawings either by contract or conduct.” The circuit court later granted ARMC's motion for summary judgment. According to the circuit court, “no genuine issue of material fact remains with respect to Plaintiffs' claims against [ARMC], and therefore, [ARMC] is entitled to summary judgment on Plaintiffs' claims against it.” The circuit court also entered a final judgment on that date.

McKean , No. 2013–CA–01807–COA, ––– So.3d at ––––, 2015 WL 5118062, at *3.

¶ 7. The plaintiffs appealed and argued that the trial court erred in granting summary judgment to Foil Wyatt, Yates Engineering, and ARMC. In its September 1, 2015, opinion, the Court of Appeals affirmed the trial court on all issues.


I. Supervisory Duty

¶ 8. It is undisputed in this case that defects in the scaffolding, not the formwork, caused the collapse that injured the plaintiffs and that part of the scaffolding had been built by Yates Construction before Pope turned in his design drawings. The plaintiffs argued that a genuine issue of material fact existed as to whether Pope breached his duty to design a sufficient scaffolding system and as to whether Pope breached his duty to inspect the scaffolding that Yates Construction built. The plaintiffs also argued that Foil Wyatt had a duty through contract and conduct to inspect the scaffolding before the concrete was poured. In its analysis to determine whether an engineer had a supervisory duty outside the provisions of the contract, the Court of Appeals quoted a seven-factor test used in Hanna v. Huer, Johns Neel, Rivers, & Webb , 233 Kan. 206, 662 P.2d 243 (1983) :

There are “seven factors to determine whether supervisory powers go beyond the provisions of [a] contract.” Hobson , 878 So.2d at 72 (¶ 15) (citations omitted). Those factors are: (1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) assumption of responsibilities for safety practices; (6) authority to issue change orders; and (7) the right to stop the work. Id.

McKean , No. 2013–CA–01807–COA, ––– So.3d at ––––, 2015 WL 5118062, at *5 (quoting Hobson v. Waggoner Eng'g Inc. , 878 So.2d 68, 77 (Miss.Ct.App.2003) ).

¶ 9. This Court first cited the seven-factor Hanna test in Jones v. James Reeves Contractors, Inc. , 701 So.2d 774 (Miss.1997). There, the Court was tasked with determining, inter alia , whether a project's architects had a duty to warn workers of dangerous soil conditions based upon their prior knowledge. Id. at 784. Because it was an issue of first impression, the Court looked to other jurisdictions for guidance and quoted in a string cite the Hanna factors. Id. at 784. The Jones Court later rejected the Hanna court's holding that an architect's contractual duty to maintain actual supervision over the details of the construction project did not entail the duty to supervise safety, and stated that [i]t is the opinion of this Court that the...

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