Darlene Hester v. H. Conner Cain
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-CA-01484-COA
THE ESTATE OF MAGGIE HAZELTON BY AND
THROUGH DARLENE HESTER,
ADMINISTRATRIX OF THE ESTATE OF MAGGIE
HAZELTON, FOR THE USE AND BENEFIT OF THE
ESTATE OF MAGGIE HAZELTON, AND FOR THE
USE AND BENEFIT OF THE WRONGFUL DEATH
BENEFICIARIES OF MAGGIE HAZELTON
APPELLANT
v.
H. CONNER CAIN AND RICHARD L. SMITH
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
11/30/2005
HON. KOSTA N. VLAHOS
HARRISON COUNTY CIRCUIT COURT
F. M. TURNER
WALTER WILLIAM DUKES
CIVIL - WRONGFUL DEATH
MOTIONS FOR SUMMARY JUDGMENT
GRANTED
AFFIRMED - 2/27/2007
BEFORE MYERS, P.J., CHANDLER AND ROBERTS, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Darlene Hester, Maggie Hazelton’s representative, appeals from a summary judgment granted
in favor of the defendants in a civil action for personal injuries and wrongful death allegedly
resulting from negligent care and treatment rendered to the decedent, Hazelton, while she was a
resident at Driftwood Nursing Center in Gulfport, Mississippi.
¶2.
Hester brought suit against Connor Cain, president and controlling shareholder of Driftwood,
and Richard Smith, former administrator of Driftwood, alleging negligence, medical malpractice,
fraud, and wrongful death. Cain and Smith each filed motions for summary judgment. The Harrison
County Circuit Court granted both motions, finding that no genuine issue of material fact existed and
that the defendants were entitled to a judgment as a matter of law. Hester appeals, arguing:
I. WHETHER A GENUINE ISSUE OF MATERIAL FACT EXISTS TO RENDER SUMMARY
JUDGMENT IMPROPER.
¶3.
Finding no error in the lower court’s decision, we affirm.
FACTS
¶4.
Maggie Hazelton was admitted to Driftwood Nursing Center in Gulfport, Mississippi on
April 9, 1999, at the age of eighty-three. She remained a resident of Driftwood until May 30, 1999,
when she was discharged. In June of 1999, Hazelton was readmitted and then discharged again on
August 11, 1999. Hazelton passed away the next day, on August 12th, while a patient at Memorial
Hospital in Gulfport.
¶5.
On July 27, 2001, Darlene Hester filed a civil action against Driftwood Nursing Center, H.
Conner Cain and Richard L. Smith for personal injuries and the wrongful death of Hazelton resulting
from alleged negligent care and treatment she received while a resident of Driftwood. Cain was sued
in his capacity as the licensee and president of Driftwood and Smith as the administrator of the
nursing home. Smith was employed as administrator of the facility upon Hazelton’s initial
admission, but he resigned as administrator on June 15, 1999. Smith was not the administrator
during the last two months of Hazelton’s residency.
¶6.
Hester claims that Hazelton was the victim of a pattern and practice of neglect. As a result,
Hazelton suffered pneumonia, falls, unexplained injuries, bone fractures, urinary and kidney
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infections, weight loss, pressure sores, poor hygiene, sepsis and ultimately death. Hester asserts that
Driftwood’s negligent conduct caused Hazelton to lose her personal dignity and caused her death to
be preceded by extreme and unnecessary pain, degradation, anguish, unnecessary hospitalizations,
disfigurement and emotional trauma.
¶7.
In her initial complaint, Hester alleged that Smith and Cain breached their duty of reasonable
care by failing to provide a minimum number of staff necessary to assist the residents, to provide
adequate supervision, to respond to serious symptoms Hazelton exhibited, to develop and implement
an appropriate residential care plan, and to maintain current records of the residents, and other forms
of negligent care. Hester also maintained that Cain and Smith committed fraud by misrepresenting
to her that the home was able to provide twenty-four hour a day supervision and care, and that
Driftwood employed an adequate amount of staff who were properly trained.
¶8.
On appeal, Hester raises a more generalized allegation, claiming that Cain and Smith had a
legal duty of care pursuant to the guidelines established for nursing homes in the state statutes and
legislative regulations. Further, Hester asserts that Cain and Smith are liable because they either
knew or should have known of the alleged tortious conduct exhibited against Hazleton, and should
have taken steps to prevent it.
¶9.
On March 24, 2003, Cain and Smith filed their respective motions for summary judgment,
arguing that Hester failed to provide sufficient evidence to prove a genuine issue of material fact
pertaining to the elements of negligence and that they were entitled to a judgment as a matter of law.
¶10.
On November 7, 2005, the lower court granted both summary judgment orders, and thereafter
entered final judgments of dismissal for both Smith and Cain, as well as a dismissal without
prejudice in favor of Driftwood. In the order, Driftwood agreed to waive any statute of limitation
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defense should Hester bring a subsequent action relating to the same claims asserted in the present
action. Hester, therefore, perfected her appeal solely as to Cain and Smith.
STANDARD OF REVIEW
¶11.
This Court reviews the record de novo to determine whether a motion for summary judgment
was properly granted. Lowery v. Guaranty Bank and Trust Co., 592 So. 2d 79, 81 (Miss. 1991). A
motion for summary judgment should be granted if it can be shown by the evidence that no genuine
issue of material fact exists and that the moving party is entitled to a judgment as a matter of law.
M.R.C.P. 56(c). On a motion for summary judgment, a court does not try issues of fact; it can only
determine whether there are issues to be tried. Hartford Cas. Ins. Co. v. Haliburton Co., 826 So. 2d
1206, 1209-10 (¶6) (Miss. 2001). All evidence must be viewed in the light most favorable to the
non-movant, and the court should presume that all evidence in the non-movant’s favor is true.
Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993).
LAW AND ANALYSIS
¶12.
The question before us is whether a genuine issue of fact exists to establish personal liability
against Driftwood’s licensee and administrator. We hold that summary judgment was proper
because the record demonstrates insufficient evidence to withstand the motion.
¶13.
In a negligence action, the plaintiff bears the burden of producing sufficient evidence to
establish the existence of the conventional tort elements of duty, breach of duty, proximate causation,
and injury. Bailey v. Wheatley Estates Corp., 829 So. 2d 1278, 1282 (¶17) (Miss. Ct. App. 2002).
Hester argues that a genuine issue of material fact exists as to whether Cain and Smith had a legal
duty pursuant to the statutes and regulations for nursing homes, and also as to whether Cain and
Smith breached that alleged duty. Hester maintains that Cain, as licensee for Driftwood, and Smith,
as administrator, either knew or should have known of the alleged negligence against Hazelton, and
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that both men should have objected to the conduct or taken steps to prevent it. Cain and Smith argue
that because they did not have direct involvement in any alleged tort, they are not liable. Miss.
Printing Co. v. Maris, West & Baker, Inc., 492 So. 2d 977, 978 (Miss. 1996).
A. Duty
¶14.
Hester asserts that Cain and Smith owed a legal duty to Hazelton under Mississippi Code
Annotated Sections 43-11-1 to -13 (Rev. 2004) and the State’s internal nursing home regulations.
Section 43-11-13 authorizes the Mississippi State Department of Health to grant and revoke licenses
for institutions assisting the aged and infirm. Miss. Code Ann. § 43-11-13. The rules, regulations
and standards governing nursing homes are recorded in the Department of Health’s Rules,
Regulations and Minimum Standards for Institutions for the Aged or Infirm.
¶15.
Hester argues that because a license is personal to a licensee, the licensee is therefore
personally responsible for compliance with the rules and regulations and “shall be the person who
[sic] the Department . . . will hold responsible for the operation of the home in compliance with these
regulations.” Miss. Dept. of Health, Rules, Regulations, and Minimum Standard for Institutions
for the Aged or Infirm, Rule 402.1 (1999). Likewise, the administrator must also hold a separate
license which requires that he or she have the “authority and responsibility for the operation of the
institution in all its administrative and professional functions.” Id., Rule 403.1.
¶16.
Violation of a statute, regulation, or ordinance may support a cause of action for negligence
per se where (1) the plaintiff is within the class protected, and (2) the harm sustained is the type
sought to be prevented. Palmer v. Anderson Infirmary Benevolent Ass’n., 656 So. 2d 790, 795
(Miss. 1995) (citing Boyer v. Tenn. Tom Constructors, 702 F. 2d 609, 611 (5th Cir. 1983)). Section
H, Rule No. 408.1 of the Minimum Standards states that a patient “has a right of action for damages
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or other relief for deprivations of infringements of his right to adequate and proper treatment and
care established by an applicable statute, rule, regulation or contract . . . .”
¶17.
Although the statutes state that the purpose of section 43-11-1 is to establish standards to
protect individuals in aged or infirm institutions, the record does not provide evidence to support the
second prong required to find negligence per se. Hester merely makes general assertions that
Hazelton suffered certain injuries, but no affidavit or substantive evidence is shown to either prove
the alleged harm or to demonstrate a causal link between Cain and Smith to Hazelton. Likewise, no
evidence was shown that Cain or Smith authorized or negligently failed to remedy alleged
misconduct by subordinates.
¶18.
Our supreme court held in Moore v. Mem’l Hosp., 825 So. 2d 658, 665 (¶24) (Miss. 2002),
that alleged violations of internal regulations do not give rise to an independent cause of action for
damages and that although a violation of a regulation may serve as evidence of negligence, it does
not, by itself, create a separate cause of action. While Moore focused on the State Board of
Pharmacy’s internal regulations, we find the holding to be applicable to the present case. In Moore,
the mother of a child who was born with deformities as the result of medication taken by the mother
during pregnancy sued the pharmacy which filled the prescription. The woman argued that the
pharmacy was negligent by selling a drug which was contraindicated for pregnant women. She
claimed that the state Board of Pharmacy’s regulations created a legal duty for the pharmacy. Upon
review of the state board’s regulations, the court did not find any language which established a legal
duty of care to be applied in a civil action. Id.
¶19.
Similar to Moore, we find no language in the nursing homes statutes or regulations to
expressly create a legal duty for licensees or administrators. As stated above, Sections 43-11-1 to
-13 sets forth statutory requirements for nursing homes in Mississippi. No language is included
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which creates a specific legal duty for either a licensee or an administrator. According to the
Minimum Standards, receiving a license for the nursing home makes the licensee “responsible for
the operation of the home in compliance with these regulations,” and gives an administrator,
“authority and responsibility for the operation of the institution in all its administrative and
professional functions.” Minimum Standards, Rule 402.1 and 403.1.
¶20.
Therefore, we must look at relevant case law to determine if a legal duty exists for a nursing
home licensee or its administrator. It is well established that a nursing home or its owner may be
held liable under general tort law principles for negligence regarding the care of a resident. Lagrone
v. Helman, 233 Miss. 654, 662, 103 So. 2d 365, 368 (1958) (jury was properly instructed that nursing
home had a duty to use reasonable care for the safety of the plaintiff). However, we decline to
extend this same duty to a licensee or administrator.
¶21.
In Turner v. Wilson, 620 So. 2d 545, 548 (Miss. 1993), our supreme court held that
“Mississippi follows the general rule that individual liability of corporate officers or directors may
not be predicated merely on their connection to the corporation but must have as their foundation
individual wrongdoing.” The officer or director must have some sort of direct participation, such
as being the “guiding spirit behind the wrongful conduct or the central figure in the challenged
corporate activity.” Id. Turner further recognized:
A director, officer, or agent is liable for the torts of the corporation or of other
directors, officers, or agents when, and only when, he has participated in the tortious
act, or has authorized or directed it, or has acted in his own behalf, or has had any
knowledge of, or given any consent to, the act or transaction, or has acquiesced in it
when he either knew or by the exercise of reasonable care should have known of it
and should have objected and taken steps to prevent it.
Id. at 548-49 (citing 19 C.J.S. Corporations Section 544, p. 175 (1990)). Thus it follows that a
corporate director is not personally liable to a third party merely by reason of his corporate status for
the torts committed by other personnel. Some showing of direct personal involvement by the
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corporate officer in a decision or action which is causally related to the plaintiff’s injury is required.
Id.
¶22.
Hester fails to provide evidence to show that Cain or Smith directed or authorized any of the
alleged conduct towards Hazelton. Cain stated that he was not active in the day to day management
of the nursing home and did not directly supervise or control the activities of any employees. Smith
also stated that he did not supervise or control the activities of any Driftwood employees or agents
whom Hester claims to have harmed Hazelton. Hester did not offer any evidence or testimony to
rebut these assertions. Therefore, we find Hester’s argument to be without merit.
B. Breach of Duty
¶23.
Notwithstanding our finding that no separate legal duty exists for Cain or Smith, we will
address Hester’s assertion of breach of duty. Hester maintains that Cain, as licensee for Driftwood,
and Smith, as administrator, were negligent because they either knew or should have known of the
alleged negligence against Hazelton, and should have objected to the conduct or taken steps to
prevent it. Cain and Smith argue that because they did not have direct involvement in any alleged
tort, they are not liable. Miss. Printing Co., 492 So. 2d at 978.
¶24.
In order to withstand summary judgment, the non-moving party may not rely on general
allegations or denials in the pleadings, but “must rebut by producing significant probative evidence
showing that there are indeed genuine issues for trial." Foster v. Noel, 715 So. 2d 174, 180 (¶35)
(Miss. 1998). As noted above, Hester did not offer such evidence.
¶25.
Cain testified that he conducted almost daily “walk-throughs” of the facility and regularly
spoke with either Smith or the head of the nursing staff. Cain inquired about dietary concerns and
patients who were reported to have pressure sores. No records indicate that Cain was ever made
aware of Hazelton’s specific condition or that any complaints were filed on Hazelton’s behalf.
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Likewise, Smith asserted that he did not directly supervise or control the activities of any Driftwood
employees whom Hester alleges caused Hazelton harm. Smith noted that he was the administrator
of Driftwood for only a few months of Hazelton’s residency. He resigned as administrator
approximately two months before Hazelton passed away. Yet Hester asserts that a corporate officer
or agent may be liable for the torts of the corporation or of other directors, officers or agents when
he either knew or in the exercise of reasonable care should have known of the tortious conduct and
should have taken steps to prevent it. Turner v. Wilson, 620 So. 2d 545, 548-49 (Miss. 1993).
¶26.
Hester relies on surveys and inspections conducted by the Mississippi Department of Health
to prove that Cain and Smith should have been aware of the deficiencies, and that the existence of
these reports created a sufficient issue of material fact as to Cain’s and Smith’s neglect of their legal
duties. While these reports show that Driftwood was cited in July 1998 and April 1999 as needing
to improve a variety of areas, the reports do not establish a causal connection between Cain and
Smith and Hazelton’s personal care, or that the men negligently handled their duties, or that any
perceived problems were not readily corrected by the nursing home. While the surveys include the
date on which the violations occurred, they do not include patients’ or employees’ names involved
in the alleged violations.
¶27.
Further, Hester does not offer any evidence linking the surveys to Hazelton. One of the
surveys was conducted almost a year before Hazelton even became a resident of Driftwood. The
second survey was conducted in the first few weeks of Hazelton’s stay at Driftwood, but does not
establish any connection to Hazelton’s care. As we stated above, mere allegations of a breach of
internal regulations do not establish a cause of action. Therefore, Hester’s argument is without merit.
¶28.
We find the evidence was insufficient to establish a genuine issue of material fact as to a
licensee’s or administrator’s legal duty or that Cain and Smith breached any such duty. Therefore,
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we find it unnecessary to discuss the remaining elements of proximate cause and damages.
Accordingly, we affirm the lower court’s granting of the motion for summary judgment.
¶29. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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