Sherri Sanders v. Riverboat Corporation of Mississippi-Vicksburg,
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00645-COA
SHERRI SANDERS, A WRONGFUL DEATH HEIR
AND BENEFICIARY ON BEHALF OF JOSHUA
SANDERS, A MINOR, AND THE ESTATE OF
JOSHUA SANDERS, DECEASED
APPELLANT
v.
RIVERBOAT CORPORATION OF MISSISSIPPIVICKSBURG D/B/A ISLE OF CAPRI CASINO AND
THE CITY OF VICKSBURG, MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEES
10/17/2002
HON. FRANK G. VOLLOR
WARREN COUNTY CIRCUIT COURT
CARROLL RHODES
VICTORIA HARDY RUNDLETT
B. STEVENS HAZARD
GERALD E. BRADDOCK
CIVIL - WRONGFUL DEATH
MOTION TO DISMISS GRANTED IN FAVOR
OF CITY OF VICKSBURG AND RIVERBOAT
CORPORATION OF MISSISSIPPI, D/B/A ISLE
OF CAPRI CASINO
AFFIRMED: 04/19/2005
BEFORE BRIDGES, P.J., GRIFFIS AND ISHEE, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Sherri Sanders, a wrongful death heir and beneficiary on behalf of Joshua Sanders, a minor, and
the estate of Joshua Sanders, deceased filed this wrongful death action against the Riverboat Corporation
of Mississippi-Vicksburg d/b/a Isle of Capri Casino (hereinafter “Isle of Capri”) and the City of
Vicksburg. At the end of the plaintiff’s case-in-chief, the Warren County Circuit Court granted the Rule
41(b) motion to dismiss of the City of Vicksburg and the Isle of Capri. Finding no reversible error, we
affirm the trial court's judgment.
FACTS
¶2.
On June 29, 2001, Sherry Sanders was employed by the Isle of Capri Casino and was pregnant.
Throughout that morning, Sanders experienced some minor pains. Sanders reported to work at 1:00 p.m.
She was employed as a guest services representative. At approximately 5:05 p.m., while sitting at a
computer, Sanders noticed blood on her shoes. At 5:15 p.m., Sanders told her co-worker Tracy Franklin
to call her mother.
¶3.
Sanders went into the restroom where her supervisors, Chandra Winters and Missy Lawrence,
accompanied her. Lawrence told Sanders to lay on the floor. Sanders remained on the floor where she
allegedly began "gushing" so much blood that Winters removed her pants and wrapped towels around
her legs. Sanders remained in the restroom while a security officer called 911 at 5:59 p.m.
¶4.
At approximately 6:05 p.m., the City of Vicksburg's emergency medical technic ian Willie Holt
and paramedic Goodwin arrived at the Isle of Capri. The EMT and paramedic examined Sanders but
did not see any bleeding. Sanders was placed on a stretcher and taken to the elevator. The elevator
malfunctioned while Sanders was inside stopping between two floors. Sanders testified that she was
trapped in the elevator for ten minutes before reaching the lower floor. She was taken immediately to
the ambulance for further assessment. After another ten minutes, the ambulance departed the casino
at 6:32 p.m.
¶5.
At 6:44 p.m., Sanders arrived at the hospital complaining of severe vaginal bleeding and
abdominal pain. Sanders was diagnosed to have had a placental abruption. Forty-one minutes after
arriving at the hospital, Joshua was born at 7:25 p.m. Five weeks later, on August 7, 2001, Joshua died
from complications due to the placental abruption.
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¶6.
A bench trial was held on October 14, 2002, in the Warren County Circuit Court. At the close
of Sanders' case-in-chief, the City of Vicksburg moved for a directed verdict based upon Sanders' failure
to show a breach in the standard of care owed her by the City. The Isle of Capri also moved for a
directed verdict based upon Sanders' failure to prove causation between Joshua’s death and the actions
or inactions of the Isle of Capri. The trial court ruled that a directed verdict was not proper, but rather
treated the motions as Rule 41 (b) motions to dismiss. Finding neither a breach in the standard of care
nor causation, the court granted the motions.
¶7.
On appeal, Sanders claims that the trial court (1) applied an erroneous legal standard in ruling
on the City of Vicksburg's motion to dismiss, (2) erred in its determination of whether the City of
Vicksburg performed a discretionary function and was thereby immune under Mississippi Tort Claims
Act, (3) erred in granting a dismissal to the Isle of Capri, and (4) erred in failing to consider the alleged
combined negligence of the City of Vicksburg and the Isle of Capri.
ANALYSIS
I.
¶8.
Whether the trial court applied an erroneous legal standard in ruling on
the City of Vicksburg's Motion to Dismiss.
In clarifying the correct standard of review for a Rule 41(b) motion to dismiss, the Mississippi
Supreme Court in Stewart v. Merchants Nat. Bank, 700 So. 2d 255 (Miss. 1997), stated:
The standard of review applicable on motion to dismiss under Rule 41(b) is different
tha[n that] applicable to a motion for a directed verdict. Century 21 Deep S.
Properties, Ltd v. Corson, 612 So.2d 359 (Miss.1992); Real Estate Comm'n v. Geico
Fin. Serv., 602 So.2d 1155 (Miss.1992); Mitchell v. Rawls, 493 So.2d 361, 362-63
(Miss.1986); Davis v. Clement, 468 So.2d 58, 61-62 (Miss.1985). In considering a
motion to dismiss, the judge should consider "the evidence fairly, as distinguished from
in the light most favorable to the plaintiff," and the judge should dismiss the case if it
would find for the defendant. Corson, 612 So.2d at 369. "The court must deny a motion
to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff's
evidence were all the evidence offered in the case." Id. "This Court applies the
substantial evidence/manifest error standards to an appeal of a grant or denial of a
motion to dismiss pursuant to M.R.C.P. 41(b)." Id.
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Stewart, 700 So. 2d at 258-59 (emphasis added).
¶9.
Sanders argues that the trial court was obliged to find for her given that only her evidence had
been presented. She contends that it was error to grant a dismissal when the City of Vicksburg had yet
to present any evidence. Sanders correctly relies upon Stewart, but misinterprets the court's holding.
¶10.
The correct standard of review required the trial court to dismiss Sanders’ claim if the trial court
would have found for the City of Vicksburg with only Sanders' evidence offered. Id. at 259. The trial
court was required to consider the evidence “fairly” rather than “in the light most favorable to
[Sanders].” Id. We find that the trial court correctly applied the standard of review. We are now
faced with the question of whether there was substantial evidence to support the trial court's finding.
¶11.
The trial court’s ruling was supported by substantial evidence. The paramedic testified that the
"hallmark signs" of a placental abruption, excruciating pain and excessive bleeding, were not present.
When they arrived in the restroom, both Goodwin and Holt testified that they did not see blood. Blood
was neither found on the stretcher nor on the sheets. Sanders testified that blood was not found because
her co-workers had wiped the blood from the floor. However, the trial court found that since neither
Goodwin nor Holt testified that they saw blood then it could only find such a decision to be discretionary.
Therefore, given that Sanders’ condition was abnormal, whether to treat the situation as a “load and go”
required Goodwin and Holt to use their own judgment. The trial court correctly deemed the paramedic's
decision as discretionary.
¶12.
Accordingly, we find this issue to lack merit.
II.
¶13.
Whether the trial court erred by determining that the City of Vicksburg
performed a discretionary function and thereby immune under the MTCA.
Sanders argues that the trial court erred in finding the City of Vicksburg’s employees’ conduct
to be discretionary and thereby protected by the Mississippi Torts Claim Act (“MTCA”). She claims
that the failure to immediately transport her to the hospital constituted a reckless disregard for her safety
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and well-being. Sanders relies on the EMT regulations as proof that the situation required a "load and
go" given the late stage of her pregnancy. She argues that the EMT and paramedic’s decision was
ministerial and, therefore, not protected by the MTCA.
¶14.
“The Mississippi Tort Claims Act (‘MTCA’) provides the exclusive civil remedy against a
governmental entity or its employee for acts or omissions which give rise to a suit.” L.W. v. McComb
Separate Mun. Sch. Dist., 754 So.2d 1136, 1138 (¶11)(Miss.1999). Not all acts or omissions are
protected. Mississippi Code Annotated Section 11-46-9 (Rev. 2002) provides in pertinent part:
(1)
A governmental entity and its employees acting within the course and scope of
their employment or duties shall not be liable for any claim: . . .
(c)
(d)
¶15.
[a]rising out of any act or omission of an employee of a
governmental entity engaged in the performance or execution of
duties or activities relating to police or fire protection unless the
employee acted in reckless disregard of the safety and wellbeing of any person not engaged in criminal activity at the time
of injury; [nor]
[b]ased upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part
of a governmental entity or employee thereof, whether or not
the discretion be abused.
The Mississippi Supreme Court has held that a duty is discretionary if it requires the official to
use their judgment and discretion in the performance thereof. T.M. v. Noblitt, 650 So. 2d 1340, 1343
(Miss.1995)(citing Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (1935)). However, discretionary
conduct alone is not an absolute bar to liability. L.W., 754 So.2d at 1141(¶¶20-24) (citing Noblitt, 650
So. 2d at 1346). When conduct is found to be discretionary, a determination of ordinary care must then
be made before the statutory bar is raised. Pearl Public School Dist. v. Groner, 784 So. 2d 911, 914
(¶10)(Miss. 2001).
In contrast, an act is ministerial if it is positively imposed by law and if the
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performance of the conditions imposed are not dependent on an officer's judgment or discretion. L.W.,
754 So. 2d at 1141(¶22).
¶16.
Sanders argues that the EMT’s and paramedic’s conduct was ministerial. Sanders relies first
on the Central Mississippi EMS District Protocol Manual, specifically the "Obstetrics" section. The
manual addresses the proper guidelines for emergency procedures. The Obstetrics subsection clarifies
what treatment, if any, should be given to the patient. According to the protocol, a patient is to be
"transport[ed] immediately if abnormal presentation, heavy bleeding, or history of previous cesarian
section or multiple births" is present. There was testimony that such a presentation would constitute a
"load and go" emergency.
¶17.
However, Holt and Goodwin testified that none of the symptoms recorded in the protocol manual
were present. Only Sanders' and her co-worker's testimony alleged severe bleeding. Goodwin and Holt
recorded Sanders' complaints of bleeding. Although, Goodwin and Holt testified that when they looked
on the floor, in the stall, around the toilet, and on the sheets from the stretcher, they found no blood.
Goodwin testified that Sanders' blood pressure was taken immediately and was high. Such a reading
was inconsistent with the alleged massive amount of blood loss.
¶18.
Dr. Carl Reddix, Sanders' expert witness, testified that placental abruptions also present with the
classic symptom of "lots of pain." The record is void of any complaints of such pain. Rather, Sanders
testified that the pains remained minor until she arrived at the hospital at 6:44 p.m. Dr. Reddix testified
that he was surprised at Sanders’ lack of severe pain and that it was extremely unusual to have a
placental abruption with such minor pains.
¶19.
Sanders also argues that the City of Vicksburg acted with reckless disregard for her health and
safety. She claims that the failure to treat the situation as a "load and go" caused a critical delay in her
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reaching the hospital, and this ultimately caused Joshua's death. Dr. Reddix’s opinion is relied upon by
Sanders for support. Dr. Reddix opined that had Joshua been delivered within thirty minutes of onset
of the abruption, Joshua would have had close to a 100% chance of survival.
¶20.
Nevertheless, the trial court considered Dr. Reddix’s opinion and found that the City was not
liable. Sanders testified that she noticed the bleeding at 5:05 p.m. Dr. Reddix opined that the abruption
started at 5:15 p.m. By the theory of Dr. Reddix, the chance of the child's survival depended on the
child’s delivery by 5:45 p.m. The ambulance report indicated that the 911 call was received at 5:59 p.m.,
and the ambulance arrived at 6:04 p.m. The City was not called until forty-four minutes after the
abruption began and fifty-four minutes after the bleeding was noticed. Thirty minutes had expired before
City’s emergency team was called. The trial court correctly found that the City’s actions were not the
proximate cause of death.
¶21.
"[W]hen a trial judge sits without a jury, this Court will not disturb his factual determinations
where there is substantial evidence in the record to support those findings." Ezell v. Williams, 724 So.
2d 396, 397 (¶4)(Miss.1998)(citations omitted). Here, protocol was followed and none of the classic
symptoms were present. Sanders did not complain of severe pain, nor did the EMT or paramedic
observe massive bleeding. Whether Sanders' condition necessitated a "load and go" approach involved
the emergency team’s judgment. Therefore, the decision was not ministerial, but instead discretionary.
The City is immune under the MTCA. Finding no error, we affirm the trial court’s judgment on this
issue.
III.
¶22.
Whether the trial court erred by granting a dismissal to the Isle of Capri Casino.
Sanders argues that the trial court erred in considering whether to dismiss her negligence claim
against the Isle of Capri. She claims that the Isle of Capri’s failure to maintain and repair the elevator
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caused the malfunction that led to an additional ten minute delay in her arrival at the hospital. Sanders
claims that the delay contributed to and was the proximate cause of Joshua’s death.
¶23.
In granting the Rule 41(b) motion to dismiss, the trial court found that Sanders' evidence was
insufficient to prove the required elements of negligence. The trial judge stated that to establish liability,
Sanders would have to prove that the Isle of Capri was somehow negligent in its maintenance and repair
of the elevator. Additionally, Sanders would have to prove that their negligence caused the elevator to
malfunction on the day of the incident. In an effort to prove the negligence, Sanders points to previous
incidents of the same elevator’s malfunction. However, the trial judge found no evidence that proved
that Isle of Capri maintained the elevator.
Rather, the evidence proved that the elevators were
maintained and repaired by ThyssenKrupp. The trial court ruled that the elevator's malfunction was
foreseeable, but that the negligence of the Isle of Capri was not the proximate cause of Joshua's death.
¶24.
Sanders also relied heavily on Dr. Reddix’s testimony to establish causation. Dr. Reddix’s
theory of Joshua’s survival depended upon the delivery occurring within thirty minutes of the onset of
the abruption. However, from the onset of abruption until Sanders was placed in the elevator, thirty
minutes had elapsed. Sanders was loaded on the elevator at approximately 6:12 p.m., almost one hour
after the estimated onset of the abruption. Even if the elevator operated properly, Sanders arrival at the
hospital would have been ten minutes earlier, approximately 6:34 p.m. Thus her arrival, without the delay
of the elevator, was approximately one hour and twenty minutes after the onset of the abruption.
Furthermore, Dr. Reddix testified that it was pure speculation as to whether Joshua would have lived
even if the delivery occurred within thirty minutes of the onset of the abruption. The trial court was
within its discretion to find that Sanders failed to show a causal connection between the negligence of
Isle of Capri and the death of Joshua. Therefore, this issue is also without merit.
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IV.
¶25.
Whether the trial court erred in failing to consider the alleged combined
negligence of the City of Vicksburg and the Isle of Capri.
Finally, Sanders argues that it was "clear error" for the trial court to consider the negligence of
the City of Vicksburg and the Isle of Capri separately.
Sanders' argument is that the combined
negligence of the City’s employees and Isle of Capri were the proximate cause of Joshua's death. The
trial court considered this issue and found the allegation to be without merit. The trial court found no
fault by either the City of Vicksburg or the Isle of Capri.
¶26.
To prove that the City was liable, Sanders had to prove that the employees’ duties were
ministerial and not discretionary. The employees’ duties were not imposed by law, nor were their
actions required at a specifically designated time, or in a specifically designated manner. L.W., 754 So.
2d at 1141(¶22) (quoting T.M. ex rel. E.N.M. v. Noblitt, 650 So.2d 1340, 1346 (Miss.1995) (Banks, J.
concurring)).
Therefore, the duties were not ministerial.
Rather, the employees’ actions were
discretionary since the employees had to use their own judgment and discretion. L.W., 754 So.2d at
1141(¶22); T.M. ex rel. E.N.M., 650 So. 2d at 1343. Accordingly, the City employees were protected
by MTCA. The trial court was correct in finding that the City was not negligent.
¶27.
Additionally, Sanders had to prove the Isle of Capri’s negligence. Sanders had to prove further
that the Isle of Capri’s negligence was the proximate cause of Joshua’s death. The trial court did not
find negligence. Rather, the trial court found that it was not enough for there to be coexisting negligence
and injury; the negligence must have caused the injury. Herrington v. Leaf River Forest Products,
Inc., 733 So. 2d 774, 779(¶15)(Miss.1999); Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 497, 186
So. 625, 627 (1939). There was no proof that the negligence of the Isle of Capri was the proximate
cause of Joshua’s death.
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¶28.
Given Sanders’ failure to establish negligence on either the City of Vicksburg or the Isle of Capri,
there can be no concurrent negligence as Sanders alleges. Accordingly, this issue is without merit. The
judgment of the trial court granting the motion to dismiss in favor of the City of Vicksburg and the Isle
of Capri Casino is affirmed.
THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS AFFIRMED.
¶29.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, BARNES AND
ISHEE, JJ. CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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