McMichael v. Nu-Way Steel and Supply, Inc.
| Decision Date | 23 May 1990 |
| Docket Number | No. 07-CA-58897,NU-WAY,07-CA-58897 |
| Citation | 563 So.2d 1371 |
| Parties | Charles A. McMICHAEL, Jr. v.STEEL AND SUPPLY, INC. |
| Court | Mississippi Supreme Court |
Joe E. Roberts, Jr., Crymes G. Pittman, Cothren & Pittman, Hartwell T. Ashford, Jackson, for appellant.
Claire G. Mavar, James D. Holland, Upshaw Williams Biggers Page & Kruger, Jackson, for appellee.
Before DAN M. LEE, SULLIVAN and ANDERSON, JJ.
This is an appeal from the Circuit Court, First Judicial District, Hinds County, wherein the appellant, Charles McMichael, [hereinafter McMichael] filed a complaint against the appellee, Nu-Way Steel and Supply, Inc. [hereinafter Nu-Way Steel], based on injuries he sustained in a fall. The lower court granted Nu-Way Steel's motion for summary judgment based on the applicable statute of limitation, Mississippi Code Annotated, Section 15-1-41 (1972). 1
This case involves a slip and fall. Although the accident occurred more than six years ago, the issue regarding negligence still remains unanswered. We are not here to answer that question today, but we write simply to reiterate how important it is for a trial court to carefully examine all the evidence before granting a motion for summary judgment. The facts are necessarily detailed because the appellant alleges that the trial court erred in granting the summary judgment. Now, with this in mind, we turn to the facts. 2
On May 10, 1984, McMichael was walking with two of his friends at Tracewood Village Apartments. One of his friends was a tenant of the complex. As they were walking along a flight of stairs, McMichael lost his balance and began falling. In an attempt to regain his balance, McMichael "took several steps backwards [sic] which led him back to the landing area where he regained his balance and leaned back against a guard rail placed at the outside ledge of the landing." When McMichael leaned on the rail, "it immediately gave way swinging downward as if hinged at the bottom, allowing [him] to fall backward to the ground approximately four (4) feet landing on his back upon some shrubbery at the bottom of the stairs." As a direct result of this fall, McMichael sustained serious permanent injuries.
On September 10, 1984, McMichael filed suit in the Hinds County Circuit Court naming Tracewood Associates d/b/a Tracewood Apartments, 3 George Krupp and Douglas Krupp as defendants. In this complaint, McMichael alleged negligence on the Defendants' part and requested damages for his injuries.
On February 3, 1987 4, two years and five months after the original complaint was filed, McMichael filed an amended complaint adding to the list of Defendants O'Rourke, Gossen, and Associates, Boley Construction Company of Mississippi, Inc. [hereinafter Boley MS], Boley Construction Company [hereinafter Boley Company], and Nu-Way Steel. In this amended complaint, McMichael alleged that O'Rourke, et al., was the architect of Tracewood Village Apartments [hereinafter Village Apartments]; Boley MS was a subsidiary of Boley Company, and they were the contractors of Village Apartments; Nu-Way Steel was the manufacturer of all guard rails supplied to and installed in the apartment complex and was the sub-contractor in the construction and installation of guard rails of Village Apartments. Moreover, this amended complaint alleged the same facts that were presented in the original complaint.
McMichael, in this amended complaint, also asserted that
[Nu-Way Steel], in performing their work in the manufacture, construction and installation in said apartment building, knowingly manufactured, constructed and installed railings on the aforesaid apartment complex with full knowledge that the same would not be fit for the purpose intended and said installation was known or should have been known, by said Defendant, to be defective at the time of installation. The negligent and defective installation of said railing was the proximate or contributing cause of the injuries to the Plaintiff herein set forth.
On March 6, 1987, Nu-Way Steel filed its Answer and Defenses to McMichael's complaint. It filed fourteen defenses, but, for purposes of this appeal, only one is important: "Any claim stated against this Defendant by the Amended complaint is barred by the applicable Statute of Limitations."
On May 15, 1987, Nu-Way Steel filed a Motion for Summary Judgment based on its Statute of Limitations defense. Specifically, Nu-Way Steel cited to MCA Sec. 15-1-41, which states in part:
No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person arising out of any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property ... more than six years after written the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.... 5
Moreover, Nu-Way Steel also stated that it had completed the work prior to February 11, 1977. According to Nu-Way Steel, "records indicate that all work was completed in relation to this project by [Nu-Way Steel] prior to December of 1975 or January of 1976."
In presenting its evidence in support of the summary judgment motion, Nu-Way Steel alerted the trial court to George Krupp's Affidavit where he stated that Tracewood Associates purchased Village Apartments four years after it was built. 6 Nu-Way Steel also presented Douglas Krupp's affidavit asserting the same. Furthermore, Nu-Way Steel also provided, as evidence, McMichael's response to the first summary judgment motion filed by the original defendants on May 21, 1987. In this particular document, McMichael admitted that the Village Apartments were built "in about 1975" and that Tracewood Associates purchased the complex four years after it was built.
Nu-Way Steel also included other evidence. It provided an affidavit of Richard L. Bowe, former president of Boley MS, who stated that he was familiar with the construction of the apartment complex from beginning to end. As a matter of fact, the job began on October 14, 1974, and the sub-contract agreement between Nu-Way Steel and Boley MS was dated on January 20, 1975.
Also, in this document Nu-Way Steel points to McMichael's admissions to allegations made in response to its summary judgment motion which was filed on June 10, 1987. In addition, Nu-Way Steel relied on McMichael's response that he lacked the knowledge to either admit or deny the statement that the work performed by Nu-Way Steel had been performed prior to February 11, 1977.
Nu-Way Steel then relies on the sub-contract agreement between it and Boley MS. This sub-contract provides for the final payment to be made to Nu-Way Steel within thirty days after the sub-contractor had performed his obligations under the contract. And, finally, Nu-Way Steel's seventh item, in establishing its right to summary judgment, was the affidavit of Charles T. King, Comptroller of Nu-Way Steel. In this affidavit, King said that the job was completed prior to January 1, 1977.
Before Nu-Way Steel presented all of this evidence in support of its summary judgment motion, McMichael, on June 10, 1987, filed his Response to the summary judgment motion. Included with his response McMichael stated that he relied on the complete court file; his affidavit; affidavit of Warnie Crawford Kennington, Jr.; and the original defendants' response to his second set of interrogatories and request for production.
McMichael elaborately puts forth evidence to demonstrate that a genuine issue of material fact existed. In his affidavit, for example, McMichael detailed the efforts he took in attempting to ascertain the names and addresses of all the individuals involved in constructing Village Apartments. He searched through interrogatories, depositions, and inquiries with individuals in the business. After he timely filed his complaint, he took a second set of interrogatories in search of the needed defendant. His interrogatories to the original defendants included the following:
Q. What is the name and address of the general contractor of Tracewood Village Apartments?
A. Defendants were not the owners of Tracewood Village Apartments at the time these apartments were built. However, defendants did conduct diligent inquiry but were unable to determine the name of the general contractor on the job.
Q. State the name and address of all steel fabricators of Tracewood Village Apartments:
(a) structural;
(b) miscellaneous metals; and
(c) ornamental metals.
A. Defendants were not the owners of Tracewood Village Apartments at the time these apartments were built. However, defendants did conduct diligent inquiry but were unable to determine the name of the steel fabricators on the job.
Q. State the name and address of all steel erectors of Tracewood Village Apartments:
(a) structural;
(b) miscellaneous metals; and
(c) ornamental metals.
A. Defendants were not the owners of Tracewood Village Apartments at the time these apartments were built. However, defendants did conduct diligent inquiry but were unable to determine the name of the steel erectors on the job.
Still unable to locate any information as to the sub-contractors, architects, etc., according to McMichael's affidavit, he went to the City of Jackson Permit Department. This search, however, did not reveal anything because he was informed that all the original plans stored on Jefferson [Street] prior to 1979 were destroyed in the 1979 flood. Only after extensive discovery did McMichael become aware that Nu-Way Steel was the sub-contractor and fabricator of the guard rail, and it was the necessary party defendant.
Also included with his response, McMichael included the affidavit of Warnie C. Kennington, Jr., Manager of Building Permit Division of the City of Jackson. His statement concurred with McMichael's in that no records or permits of the Village Apartments...
To continue reading
Request your trial
-
Foster by Foster v. Bass
...of a triable issue of fact.' Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990) (citations omitted); McMichael v. Nu-Way Steel and Supply, Inc., 563 So.2d 1371, 1374-75 (Miss.1990). An elaborate discussion of this procedure is found in Palmer, 564 So.2d at Catholic Charities insists the "pl......
-
Hurst v. Southwest Mississippi Legal Services Corp.
...rebut by producing significant probative evidence showing that there are indeed genuine issues for trial." McMichael v. Nu-Way Steel & Supply, 563 So.2d 1371, 1375 (Miss.1990); Newell v. Hinton, 556 So.2d 1037, 1041 (1990). This burden of rebuttal arises, however, only after the moving part......
-
McKay By and Through McKay v. Boyd Const. Co., Inc.
...of a triable issue of fact.' Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990) (citations omitted); McMichael v. Nu-Way Steel and Supply, Inc., 563 So.2d 1371, 1374-75 (Miss.1990). For a more recent discussion of summary judgment procedure see Palmer v. Biloxi Regional Medical Center, Inc.......
-
Erby v. North Mississippi Medical Center
...review of a lower court's grant of summary judgment. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993); McMichael v. Nu-Way Steel and Supply, Inc., 563 So.2d 1371, 1374 (Miss.1990); Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990); Tucker v. Hinds County, 558 So.2d at 873, citing Short......