Pamela Hobson v. Waggoner Engineering, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-CA-00908-COA
PAMELA HOBSON, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF CHARLES
HOBSON, DECEASED
v.
WAGGONER ENGINEERING, INC. AND NATIONAL
SEAL COMPANY
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT/
CROSS-APPELLEE
APPELLEES/CROSSAPPELLANTS
4/16/2001
HON. V. R. COTTEN
SCOTT COUNTY CIRCUIT COURT
T. JACKSON LYONS
CLARENCE MCDONALD LELAND
ROBERT A. BIGGS
DAVID W. MOCKBEE
JULIE SNEED MULLER
CIVIL - WRONGFUL DEATH
DEFENDANTS MOTIONS FOR SUMMARY
JUDGMENT GRANTED.
AFFIRMED: 08/05/2003
BEFORE KING, P.J., MYERS AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Pamela Hobson, as the Administratrix of the Estate of Charles Hobson, filed a wrongful death
action against Waggoner Engineering, Inc. (“Waggoner Engineering”) and National Seal Company
(“National Seal”). Charles Hobson’s body was discovered in an aerated sewage lagoon under
construction. Mr. Hobson’s employer, Laird Electric, Inc. (“Laird”), was hired by the project general
contractor, Carter and Mullings, Inc. (“Carter and Mullings”), as the electrical subcontractor. Waggoner
Engineering was the engineering firm that had a contract with the City of Forest to design the lagoon.
National Seal manufactured the liner that was installed around the lagoon
¶2.
The trial court sustained the motions for summary judgment, filed by Waggoner Engineering and
National Seal, on the grounds that (1) Ms. Hobson failed to establish that Waggoner Engineering or
National Seal owed any duty to the decedent, and (2) that even if Waggoner Engineering or National Seal
owed a duty, Ms. Hobson failed to establish proximate cause. Finding no error, we affirm.
FACTS
¶3.
In July of 1991, the City of Forest entered an owner/engineer agreement with Waggoner
Engineering to design the expansion of the City’s wastewater treatment plant (the “Project”). The City of
Forest, after receiving several bids, entered an owner/contractor Agreement with Carter and Mullings to
serve as general contractor on the Project. Carter and Mullings hired Laird Electric as an electrical
subcontractor. Charles Hobson was an employee of Laird Electric who was working on the Project.
¶4.
On the morning of April 16, 1993, a hard hat and a pack of cigarettes were found floating in the
sewage lagoon. Charles Hobson’s body was found submerged in the lagoon. Apparently, Mr. Hobson
was working near the lagoon and somehow entered the lagoon, where he drowned. No one saw Mr.
Hobson enter the lagoon. There was no evidence presented to establish who or what caused Mr. Hobson
to enter the lagoon.
¶5.
Ms. Hobson filed a complaint for wrongful death in Scott County Circuit Court, on April 5, 1996,
and named Waggoner Engineering, Carter and Mullings, and a fictitious entity which had manufactured the
liner of the lagoon in which Mr. Hobson had drowned as defendants. Carter and Mullings was dismissed
as Hobson’s statutory employer. See Doubleday v. Boyd Construction Co., 418 So. 2d 823, 826 (Miss.
1982) (where prime contractor required subcontractor to secure policy of workmen's compensation
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insurance on its employees, prime contractor "secured" compensation insurance for benefit of
subcontractor's employee within meaning and purpose of workmen's compensation statute and, therefore,
was not "any other party" allowed by statute to be sued by employee or his dependents and was immune
from employee's common-law negligence action). Carter and Mullings required Laird to secure a policy
of workers' compensation insurance on its employees and was, therefore, immune from a separate
negligence action.
¶6.
In February of 1998, Ms. Hobson amended her complaint to add National Seal as a defendant.
National Seal filed a motion to dismiss arguing that the statute of limitations had expired and that Ms.
Hobson failed to demonstrate due diligence in identifying it as a defendant. The trial judge denied National
Seal’s motion.
¶7.
Thereafter, Waggoner Engineering and National Seal filed motions for summary judgment. The
trial judge granted the motions on two separate grounds. First, the trial court reviewed the various
contracts governing the duties and responsibilities owed by Waggoner Engineering, Carter and Mullings,
and National Seal and found that Carter and Mullings was responsible for the safety at the work site. The
trial court concluded that Waggoner Engineering and National Seal owed no duty to Mr. Hobson.
¶8.
Second, the trial court found that Ms. Hobson failed to establish proximate cause. The trial court
determined that there were no eyewitnesses to the incident, that it was mere speculation as to how Mr.
Hobson entered the lagoon, and that even if Mr. Hobson had slipped on the liner and fell in the lagoon, it
was the result of his own negligence.
¶9.
Ms. Hobson contends the trial court committed the following errors:
1.
Waggoner Engineering, with an on-site representative responsible for monitoring
compliance with plans and specifications, owed a duty to the decedent, Charles Hobson,
to take due care to design a safe facility and to warn him of any dangers.
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A.
The existence and scope of duties of due care owed to workers implicates public
policy which, given Waggoner’s extensive supervisory authority of the
construction, should not be set aside where Waggoner’s full-time project
representative was in a position to warn of hazards and knew or should have
known of the hazards presented by the slick liner and the aerated water in which
people cannot float.
B.
Waggoner had a duty to produce a safe design which was not defective as having
created a condition which was unreasonably hazardous to foreseeable persons
coming in contact with the construction based on design.
2.
3.
¶10.
National Seal owed similar duties to Charles Hobson: it designed a defective product and
failed to warn Hobson of dangers known to National Seal.
The Circuit Court erred in viewing the fact that no one saw Hobson enter the water as
determinative of the question of legal cause. Causation may be established by
circumstantial physical evidence and, generally, it is for the fact finder to determine cause
on that basis.
National Seal cross-appealed asserting that (1) the trial court erred in overruling its motion to
dismiss; (2) the trial court erred in its failure to find Ms. Hobson had not exercised due diligence in
substituting National Seal as a defendant in a timely fashion; and (3) the trial court erred by failing to find
that the statue of limitations had expired.
STANDARD OF REVIEW
¶11.
In Aetna Casualty and Surety Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996), the Mississippi
Supreme Court set forth the following standard of review for summary judgment:
This Court conducts de novo review of orders granting or denying summary judgment and
looks at all the evidentiary matters before it--admissions in 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, that is, the non-movant is
given the benefit of the doubt. If the moving party is entitled to judgment as a matter of law,
summary judgment should forthwith be entered in his favor. Otherwise, the motion should
be denied. Issues of fact sufficient to require denial of a motion for summary judgment
obviously are present where one party swears to one version of the matter and another
says the opposite. In addition, the burden of demonstrating that no genuine issue of fact
exists is on the moving party.
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Id. at 70 (citing Mantachie Nat. Gas v. Miss. Valley Gas Co., 594 So. 2d 1170, 1172 (Miss. 1992)).
Additionally, the movant bears the burden of persuading the trial judge that: (1) no genuine issue of material
fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law. Pargo
v. Elec. Furnace Co., 498 So. 2d 833, 835-36 (Miss. 1986); Smith v. Sanders, 485 So. 2d 1051, 1054
(Miss. 1986). Mere allegation or denial of material fact is insufficient to generate a triable issue of fact and
avoid an adverse rendering of summary judgment. Sanders, 485 So. 2d at 1054; Hill v. Consumer Nat'l
Bank, 482 So. 2d 1124, 1128 (Miss. 1986).
ANALYSIS AND DISCUSSION OF LAW
I.
Whether Waggoner Engineering had a duty to warn the Decedent of
any dangers or whether Waggoner Engineering’s design was
defective.
A.
¶12.
Duty to Warn
The first assignment of error raises a question which is relatively new in the realm of Mississippi tort
law. Mississippi has very little case law which addresses the duty of an engineer or architect to protect
construction workers from harm while on the job site. Traditionally, architects and engineers have been
shielded from liability, except in cases when due care was not exercised in the preparation of plans and
specifications. 11-AUG Construction Law. 11, 11. However, in the past few decades more and more
lawsuits have asserted that the project engineer or architect has a duty to supervise the construction site
to ensure safe operations. Id.
¶13.
The Mississippi Supreme Court recognized this trend in Jones v. James Reeves Contractors, Inc.,
701 So. 2d 774 (Miss. 1997). In James Reeves Contractors, Inc., an employee of a plumbing contractor
was killed when the walls of an excavated manhole caved in and suffocated him. Id. at 776-77. His heirs
sued numerous parties, including the project architect. Id. at 777. The trial court granted a summary
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judgment to the architect on the grounds that it owed no duty to the decedent. Id. at 783. The plaintiffs
asserted the trial court erred because the architect knew that the subsurface soil conditions were wet, sandy
and silty clay and failed to inform the general contractor of this danger. Id.
¶14.
The supreme court held that the sole issue was whether there was a "common law duty to warn
on the part of the architects based upon their prior knowledge of the dangerous soil conditions." Id. at 784.
Recognizing the dearth of Mississippi case law on this subject, the supreme court examined the decisions
other states applied. After a careful analysis, the supreme court relied on the decision in Young v. Eastern
Engineering & Elevator Co., Inc., 381 Pa. Super. 428, 554 A. 2d 77 (1989). In James Reeves
Contractors, Inc., the supreme court held that “unless an architect has undertaken by conduct or contract
to supervise a construction project, he is under no duty to notify or warn workers or employees of the
contractor or subcontractor of hazardous conditions on the construction site” and affirmed the summary
judgment. James Reeves Contractors, Inc., 701 So. 2d at 786.
¶15.
The supreme court also cited Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 662
P. 2d 243 (1983). In Hanna, an architect agreed to supervise the project; however, he did not agree to
supervise safety issues. Hanna, 223 Kan. at 206, 662 P. 2d at 244. The court established seven factors
to determine whether supervisory powers go beyond the provisions of the contract:
(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. at 219, 662 P. 2d at 253-54. The Kansas court held that the architect did not have a contractual duty
to provide for the safety of the plaintiffs and nothing in the record supported a finding that the architect by
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its actions undertook or could have impliedly assumed responsibility for safety procedures on the job site.
Id. at 220-21, 662 P. 2d at 253.
¶16.
Additionally, inJames Reeves Contractors, Inc., the supreme court cited Walker v. Wittenburg,
Deloney & Davidson, 241 Ark. 525, 412 S.W. 2d 621 (1976). In Walker, the architect agreed to
supervise construction but the general contractor had agreed to provide a safety coordinator. Id. The
Arkansas court held that an architect must make an express agreement to supervise the construction site
to incur liability. Id. at 532, 412 S.W. 2d at 631.
¶17.
In citing Hanna and Walker, the Mississippi Supreme Court noted:
[W]e philosophically disagree with the holdings of Hanna and Walker to the extent that
they hold that a contractual duty to maintain actual supervision over the details of the
construction project does not entail the duty to supervise safety. It would seem natural that
the supervision of safety is encompassed in the duty to supervise, and no separate
agreement to supervise safety is necessary where the architect is supervising the details of
every other aspect of the project.
James Reeves Contractors, Inc., 701 So. 2d at 785.
¶18.
Ms. Hobson contends the quoted language supports her claim that Waggoner owed a duty to the
decedent regarding safety. While we interpret this language to mean that if the engineer has contracted to
supervise every other aspect of the project besides safety, then liability, with regard to safety, may then be
extended to the engineer in some circumstances, regardless of contractual obligations, we find this case is
not one of those circumstances.
¶19.
To begin our examination, we look to the various contracts among the parties. We first review the
owner/engineer agreement between Waggoner Engineering and the City of Forest and then turn to the
owner/contractor agreement between Carter and Mullings and the City of Forest. There was no separate
agreement between Waggoner Engineering and Carter and Mullings.
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¶20.
According to the owner/engineer agreement, Waggoner had the following duties and
responsibilities:
ARTICLE 1.1.2.1
Act as the OWNER's representative with duties and
responsibilities and limitations of authority as described in the general conditions to the
Construction Documents.
ARTICLE 1.1.2.3.
Make periodic visits to the site of the construction to observe the
progress and the quality of the construction work and to determine in general if the results
of the construction work are in accordance with the drawings and the specifications. On
the basis of his on-site observations as an ENGINEER, he shall endeavor to guard the
Owner against apparent defects and deficiencies in the permanent work constructed by the
Contractor but does not guarantee the performance of the Contractor. The ENGINEER
shall not be required to make exhaustive or continuous on-site observations to check the
quality or quantity of the construction Work. The ENGINEER is not responsible for
construction means, methods, techniques, sequences or procedures, time of performance,
programs, or for any safety precautions in connection with the construction Work. The
ENGINEER is not responsible for the Contractor's failure to execute the work in
accordance with the Construction Contract.
ARTICLE 1.1.2.5
The ENGINEER shall provide one or more full time resident
project representatives.... By means of the more extensive on-site observations of the
work in progress, the ENGINEER will endeavor to provide further protection for the
OWNER against defects and deficiencies in the Contractor's work, but the furnishing of
such services shall not include construction review of the Contractor's construction means,
methods, techniques, sequences or procedures, or of any safety precautions or
programs in connection with the work, and the ENGINEER shall not be responsible for
the CONTRACTOR's failure to carry out the work in accordance with the Construction
Contract.
ARTICLE 1.1.2.7
Notify the OWNER of permanent work which does not conform
to the result required in the Construction Contract, prepare a written report describing any
apparent nonconforming permanent work and make recommendations to the OWNER for
its correction and, at the request of the OWNER, have recommendations implemented by
the CONTRACTOR.
ARTICLE 1.1.2.11. The ENGINEER shall not be responsible for the defects or
omissions in the work result of the CONTRACTOR(s) or any subcontractor(s), or any of
the CONTRACTOR's or subcontractor's employees or that of any other persons or
entities responsible for performing any of the work result as contained in the Construction
Contract.
8
ARTICLE 6.6.4.
The ENGINEER has not been retained or compensated to provide
design and construction review services relating to the CONTRACTOR's safety
precautions or to means, methods, techniques, sequences, or procedures required for the
CONTRACTOR to perform his work but not related to the final or completed structure,
omitted services include but are not limited to shoring, scaffolding, underpinning, temporary
retainment of excavations and any erection methods and temporary bracing.
(emphasis added).
¶21.
Further, Attachment "C" to the owner/engineer agreement further provided, in pertinent part,
that:
the furnishing of [the Resident Project Representative] services will not make ENGINEER
responsible for or give ENGINEER control over construction means, techniques,
sequences, or procedures or for safety precautions or programs, or responsibility for
CONTRACTOR's failure to perform the work in accordance with the Contract
Documents . . . .
(emphasis added). Paragraph C.5 of Attachment "C" provided that the Engineer “[s]hall not advise or issue
directions regarding or assume control over safety precautions and programs in connection with the Work.”
¶22.
Therefore, according to the express terms of the owner/engineer agreement, Waggoner Engineering
had no duty or responsibility for the supervision of the construction work or project safety. While Ms.
Hobson believes that James Reeves Contractors, Inc. supports her case, we find that it does not. We
find nothing in the contract to indicate that Waggoner agreed to supervise the construction of the project
or safety. Instead, the owner/contractor agreement between Carter and Mullings and the City of Forest
imposed all such duties and responsibility for project supervision and safety on the general contractor,
Carter and Mullings.
¶23.
In the general conditions section of the owner/contractor agreement, Carter and Mullings accepted
the following duties and responsibilities:
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ARTICLE 6.1.
The CONTRACTOR will supervise and direct the work.
He will be solely responsible for the means, methods, techniques, sequences, and
procedures of construction.
ARTICLE 6.8.
The CONTRACTOR shall be fully responsible for all acts
and omissions of its subcontractors and of persons and organizations either directly or
indirectly employed by them and of persons and organizations for whose acts any of them
may be liable to the same extent that he is responsible for the acts and omissions of
persons directly employed by him.
ARTICLE 6.8.18.
The CONTRACTOR will . . . comply with all laws, ordinances,
rules and regulations applicable to the Work.
ARTICLE 6.19.
The CONTRACTOR will be responsible for initiating, maintaining
and supervising all safety precautions and programs in connection with the Work. He
will take all necessary precautions for the safety of, and will provide the necessary
protection to prevent damage, injury or loss to
6.19.1 All employees on the Work and other persons who may be
affected thereby . . . .
ARTICLE 6.20
The CONTRACTOR will designate a responsible member of its
organization at the site whose duty shall be the prevention of accidents. This person shall
be the CONTRACTOR's superintendent unless otherwise designated in writing to the
CONTRACTOR to the OWNER.
(emphasis added).
¶24.
The general conditions section of to the owner/contractor agreement also established the extent of
Waggoner Engineering’s duties and responsibilities during construction:
ARTICLE 9.5
The ENGINEER [Waggoner Engineering] will have authority to
disapprove or reject work which is "defective" (which term is hereinafter used to describe
Work that is unsatisfactory, faulty or defective or does not conform to the requirement of
the Contract Documents or does not meet the requirements of any inspection, test or
approval referred to in the Special Conditions or has been damaged prior to final
acceptance).
ARTICLE 9.13
The ENGINEER will not be responsible for the construction
means, methods techniques, sequences, or procedures; or the safety precautions or
programs incident thereto and he will not be responsible for the CONTRACTOR's
failure to perform the Work in accordance with the Contract Documents.
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ARTICLE 9.14
The ENGINEER will not be responsible for the acts or omissions
of the CONTRACTOR or any subcontractor or any of his or their agents or theirs
employees, or any other persons performing any of the work.
(emphasis added).
¶25.
Finally, the special conditions section of the owner/contractor agreement specifically addressed
project safety:
Section 1-01.F. CONSTRUCTION SAFETY is a project requirement. The
CONTRACTOR shall be responsible for providing any and all safety equipment and/or
methods necessary for the precautions of the work by his personnel and the personnel
of any sub-contractors, as well as providing safe access and site conditions to all
elements of the Project for the OWNER, ENGINEER and their representatives. Such
safety requirements shall meet guidelines as contained in OSHA and U.S. Department of
Health and Human Services (National Institute for Occupational Safety and Health
(NIOSH) publication sections relative to the work contemplated herein.
Section 1-02.A.
The CONTRACTOR . . . shall take all necessary precautions to
guard against damage to property and injury to persons.
Section 1-02.B.
The CONTRACTOR shall put up and maintain in good condition,
sufficient red or warning lights at night, suitable barricades and other devices necessary to
protect the public.
(emphasis added)(bold in original).
¶26.
Carter and Mullings, in turn, entered into a subcontract with Laird Electric, to perform certain
electrical work on the Project. There was no separate agreement between Laird Electric and either
Waggoner Engineering or the City of Forest.
¶27.
Based on the owner/engineer agreement and the owner/contractor agreement, Waggoner
Engineering had no duties or responsibilities for supervision of the work or project safety. Indeed, as in
most construction projects, the general contractor alone had full and absolute control over the work site
and the means and methods of construction. The general contractor decided who would be hired as
subcontractors and material suppliers. The general contractor decided when the various subcontractors
11
and material suppliers would perform their tasks. The general contractor was responsible for the
supervision and coordination of the work between subcontractors and material suppliers. As a result, the
general contractor was also responsible for the work performed by subcontractors and the materials
installed in the Project. Likewise, the general contractor was responsible for the actions of subcontractors,
including their employees, in the performance of their construction discipline or function.
¶28.
As the Project engineer, Waggoner Engineering’s primary responsibility was to make sure that the
general contractor delivered a finished product that was constructed consistent with the Project’s plans and
specifications. Both the owner/engineer agreement and owner/contractor agreement establish that any and
all responsibility for construction means or methods and Project safety rests solely with the general
contractor, Carter and Mullings, and not with the Project engineer, Waggoner Engineering.
¶29.
As in James Reeves Contractors, Inc., we review the seven factors in Hanna to determine
whether the engineer’s supervisory powers extended beyond the contract provisions. Based on the
undisputed facts before the trial court, we agree with the trial court that Waggoner Engineering’s duties and
responsibilities did not. Waggoner Engineering did not have actual supervision or control of the work.
Waggoner Engineering did not retain the right to supervise and control. The record contains minimal facts
to determine Waggoner Engineering’s level of participation at the construction site, but the contractual
agreements are clear that its participation was to be kept to a minimum. There was no evidence presented
to establish that Waggoner Engineering’s participation went further than or beyond the requirements of the
contractual agreements. Waggoner Engineering did not coordinate or supervise the subcontractors.
Waggoner Engineering neither assumed responsibilities for safety practices nor could it issue change orders
or stop work without first going through the City of Forest.
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¶30.
Under the standard established in James Reeves Contractors, Inc., no responsibility for the
supervision of construction at the site was contracted for or assumed by Waggoner Engineering. Therefore,
we find that Waggoner Engineering had no duty to warn Mr. Hobson, or any of the general contractor's
workers or its subcontractors, of any dangers or to protect them from any harm. Accordingly, we affirm
the trial judge’s summary judgment on this issue.
B.
¶31.
Defective Design
Ms. Hobson next asserts that Waggoner Engineering’s design for the sewage lagoon was defective
because Waggoner Engineering should have known that the lagoon’s slope was too steep and the liner was
too slick for a person to climb out of the lagoon. Ms. Hobson claims that since Waggoner Engineering
created a dangerous condition then it has a duty to a foreseeable person, who may encounter the condition,
to make the design safe or to warn of the dangerous condition.
¶32.
The trial judge did not specifically address this issue in granting the motion for summary judgment
and only ruled that Waggoner Engineering owed no duty to Mr. Hobson. From our de novo review of the
record, we conclude that there is an absence of evidence presented to support this issue. Indeed, the
plaintiffs offered no evidence of industry standards or practices concerning the proper design of an aerated
sewage lagoons or any deviation therefrom by Waggoner Engineering in the preparation of the Project’s
plans and specifications. No expert testimony was offered to establish any available alternate design.
¶33.
The only evidence of the lagoon’s design was the deposition of Kirk Rosenhan. Mr. Rosenhan,
an engineer and professor of engineering mechanics and industrial engineering at Mississippi State
University, testified as to the coefficient of friction for the “wet plastic liner.” Mr. Rosenhan testified that
on a slope of nearly twenty degrees, the coefficient of friction of this plastic liner would be under 0.3
degrees. He concluded that this meant that the liner and the slope produced insufficient traction for a
13
person to get out of the lagoon. Mr. Rosenhan did not testify or opine as to whether this type of design was
common or if this design deviated from an industry standard.
¶34.
Ms. Hobson offered no evidence to establish that there was a material fact in dispute on this issue.
Mr. Rosenhan’s testimony was simply not sufficient. If the design and construction of the liner and its slope
had allowed sufficient traction for someone to get out of the lagoon, it is possible that such change would
defeat the intended purpose of the lagoon. Indeed, the plaintiffs offered no evidence to establish that
Waggoner Engineering’s design of the lagoon was defective.
¶35.
Mississippi law imposes on design professionals, including architects and engineers, the duty to
"exercise ordinary professional skill and diligence." Dickerson Construction Co., Inc. v. Process
Engineering Co., Inc., 341 So. 2d 646, 652 (Miss. 1977); Board of Trustees Utica Junior College v.
Lee Electric Co., 198 So. 2d 231, 234 (Miss. 1967). Neither Mr. Rosenhan’s testimony nor any other
evidence indicated that Waggoner Engineering failed to meet this duty. Accordingly, we affirm the summary
judgment on this issue.
II.
Whether National Seal Company had a duty to warn the Decedent of
any dangers or whether National Seal's liner design was defective.
A.
¶36.
Duty to Warn
Ms. Hobson asserts that National Seal was negligent in that it failed to warn workers about the slick
nature of the liner. Ms. Hobson cites O'Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526, 535 (Miss.
Ct. App. 2000) for the proposition that manufacturers bear a common law duty to warn foreseeable
persons about hazards. She asserts that the decedent was a foreseeable person, National Seal knew of
the risk because of the warning contained in its contract, and they failed to warn of the dangers. She asserts
that it was for a jury to decide if National Seal's actions were reasonable. We disagree.
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¶37.
National Seal was a subcontractor to Carter and Mullings. It manufactured and installed the liner
for the sewage lagoon. By the express terms of its subcontract with Carter and Mullings, National Seal
was to complete its work on the Project in twenty-one days and thereafter have no control or supervision
of the work site. National Seal’s work was completed almost one year before Mr. Hobson's death.
¶38.
National Seal's contract with Carter Mullings stated:
[o]verall safety of the job site, and the safety of individuals not employed by NSC will be
the responsibility of the owner/general contractor. The owner or general contractor should
be aware that the liner is slippery, particularly when wet. Care must be exercised when
walking on the liner.
(emphasis added).
¶39.
In determining whether Ms. Hobson has a cause of action against National Seal, we must first
examine Mississippi products liability law. The Mississippi Products Liability Act, Miss. Code Ann. § 111-63 (Rev. 2002), lays out the elements necessary to succeed on a claim for failure to adequately warn.
The pertinent part of this statute reads:
(a)
The manufacturer or seller of the product shall not be liable if the claimant does not
prove by the preponderance of the evidence that at the time the product left the
control of the manufacturer or seller:
(i) 2.
(ii)
The defective condition rendered the product unreasonably dangerous to
the user or consumer; and
(iii)
(c)
The product was defective because it failed to contain adequate warnings
or instructions,
The defective and unreasonably dangerous condition of the product
proximately caused the damages for which recovery is sought.
(i)
In any action alleging that a product is defective because it failed to contain
adequate warnings or instructions pursuant to paragraph (a)(i)2 of this
section, the manufacturer or seller shall not be liable if the claimant does
not prove by the preponderance of the evidence that at the time the
product left the control of the manufacturer or seller, the manufacturer or
15
seller knew or in light of reasonably available knowledge should have
known about the danger that caused the damage for which recovery is
sought and that the ordinary user or consumer would not realize its
dangerous condition.
(ii)
(e)
¶40.
An adequate product warning or instruction is one that a reasonably
prudent person in the same or similar circumstances would have provided
with respect to the danger and that communicates sufficient information on
the dangers and safe use of the product, taking into account the
characteristics of, and the ordinary knowledge common to an ordinary
consumer who purchases the product; or in the case of a prescription
drug, medical device or other product that is intended to be used only
under the supervision of a physician or other licensed professional person,
taking into account the characteristics of, and the ordinary knowledge
common to, a physician or other licensed professional who prescribes the
drug, device or other product.
In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of
this section, the manufacturer or seller shall not be liable if the danger posed by the
product is known or is open and obvious to the user or consumer of the product,
or should have been known or open and obvious to the user or consumer of the
product, taking into account the characteristics of, and the ordinary knowledge
common to, the persons who ordinarily use or consume the product.
"A plaintiff has the burden of showing that the defect that allegedly was the proximate cause of
injury existed at the time that the product left the hands of the manufacturer, and that the defect rendered
the product unreasonably dangerous." Wolf v. Stanley Works, 757 So. 2d 316, 319 (¶10) (Miss. Ct.
App. 2000). "Accordingly, the proof must support that no material change in that product occurred after
leaving the manufacturer's control." Id.
¶41.
In this case, we find that National Seal’s warning, contained in its contract with Carter and
Mullings, was sufficient. Additionally, we find that the dangerous nature of this product, in that it becomes
slippery when wet, would be known to the ordinary user. Further, we hold that the liner's slippery nature
is open and obvious.
16
¶42.
We also agree with the trial judge's reliance on McGill v. City of Laurel, 173 So. 2d 892 (Miss.
1965), in determining National Seal owed no duty to Mr. Hobson. The judge quoted McGill, saying that,
“[p]its and excavations on land embody no dangers that are not readily apparent to everyone, even very
young children,” and that, “[a]s a general rule, liability for injuries caused by dangerous instrumentalities
terminates with a cessation of control thereover.” McGill, 173 So. 2d at 898, 900.
¶43.
This Court finds that National Seal owed no duty to warn of dangers on the construction site to Mr.
Hobson. The judgment of the trial court is therefore affirmed.
B.
¶44.
Defective Design
Ms. Hobson also alleges that National Seal's liner design was so slick as to present an unreasonable
hazard to workers. She seems to claim that National Seal should have erected guard rails or a fence
around the lagoon in order to correct this defect. She also seems to assert that the liner could have been
manufactured with a more textured surface in the event someone contacted the liner.
¶45.
To consider this issue, we again look to the pertinent portions of Mississippi Code Annotated § 11-
1-63. The elements of a claim for defective design are as follows:
(a)
The manufacturer or seller of the product shall not be liable if the claimant does not
prove by the preponderance of the evidence that at the time the product left the
control of the manufacturer or seller:
(1) 3. The product was designed in a defective manner,
(ii)
(iii)
(b)
The defective condition rendered the product unreasonably
dangerous to the user or consumer; and
The defective and unreasonably dangerous condition of the product
proximately caused the damages for which recovery is sought.
A product is not defective in design or formulation if the harm for which the
claimant seeks to recover compensatory damages was caused by an inherent
characteristic of the product which is a generic aspect of the product that cannot
17
be eliminated without substantially compromising the product's usefulness or
desirability and which is recognized by the ordinary person with the ordinary
knowledge common to the community.
(d)
In any action alleging that a product is defective pursuant to paragraph (a) of this
section, the manufacturer or seller shall not be liable if the claimant (i) had
knowledge of a condition of the product that was inconsistent with his safety; (ii)
appreciated the danger in the condition; and (iii) deliberately and voluntarily chose
to expose himself to the danger in such a manner to register assent on the
continuance of the dangerous condition.
(f)
In any action alleging that a product is defective because of its design pursuant to
paragraph (a)(i)3 of this section, the manufacturer or product seller shall not be
liable if the claimant does not prove by the preponderance of the evidence that at
the time the product left the control of the manufacturer or seller:
(i)
The manufacturer or seller knew, or in light of reasonably available
knowledge or in the exercise of reasonable care should have known,
about the danger that caused the damage for which recovery is sought;
and
(ii)
The product failed to function as expected and there existed a feasible
design alternative that would have to a reasonable probability prevented
the harm. A feasible design alternative is a design that would have to a
reasonable probability prevented the harm without impairing the utility,
usefulness, practicality or desirability of the product to users or consumers.
To recover under this statute, Ms. Hobson must demonstrate that a dispute of a material fact existed that
at the time the product left National Seal's hands, there was a feasible alternative design available that
would have prevented the harm without impairing the usefulness of the product. Wolf, 757 So. 2d at 320
(¶11). We find that Ms. Hobson has failed to do so.
¶46.
Here again, the trial court did not address this issue with specificity in its order granting summary
judgment. As in the case with Waggoner, Ms. Hobson offered no evidence of industry standards or
customs, no affidavits or deposition of any expert which would show that an alternate design is available
which would have prevented the alleged harm, without impairing the usefulness of the product. She only
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suggests possible alternate designs in her brief and nothing in the record supports any factual or evidentiary
basis for the suggested alternative designs. This Court also finds that the inherent nature of the liner, it
slickness when wet, is something that cannot be changed without compromising its usefulness and this is
a characteristic which would be obvious to a person with ordinary knowledge. We hold that there is no
evidence in the record to establish that National Seal's liner was defectively designed. Therefore, we affirm
the trial court’s summary judgment.
¶47.
Since there was no duty owed to Mr. Hobson by Waggoner Engineering or National Seal, we find
this is dispositive of any issue regarding proximate cause. Likewise, since we affirm the trial court’s
summary judgment, the cross-appeal of National Seal is moot. Therefore, we decline to consider these
issues.
¶48. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY IS AFFIRMED
AS TO DIRECT AND CROSS APPEALS. COSTS ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS AND CHANDLER, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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