Louis C. Matthews v. Horseshoe Casino
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00911-COA
LOUIS C. MATTHEWS AND ROOSEVELT JONES
APPELLANTS
v.
HORSESHOE CASINO
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
4/7/2004
HON. LARRY O. LEWIS
TUNICA COUNTY CIRCUIT COURT
D. L. JONES
WILLIAM O. LUCKETT
CIVIL - PERSONAL INJURY
TRIAL JUDGE GRANTED APPELLEE’S
MOTION FOR SUMMARY JUDGMENT.
AFFIRMED: 09/06/2005
BEFORE LEE, P.J., IRVING AND CHANDLER, JJ.
IRVING, J., FOR THE COURT:
¶1.
Louis Matthews and Roosevelt Jones (Appellants) filed an action against Horseshoe Casino,
alleging multiple damages as a result of injuries sustained while working on an electrical device which was
owned by Horseshoe. In response, Horseshoe filed a motion for summary judgment which was
subsequently granted by the trial court. Aggrieved, Appellants now appeal the trial court’s grant of
summary judgment in favor of Horseshoe.
¶2.
We have thoroughly reviewed the record and find no reversible error. Therefore, we affirm the
trial judge’s ruling.
FACTS
¶3.
In July 2000, appellants were injured while working on an electrical device at the Horseshoe
Casino in Tunica, Mississippi. At the time of the accident, Appellants were employees of A & B Electric,
a subcontractor of White Construction Company (White). White had been retained as an independent
contractor by Horseshoe to perform the particular project. After the accident, Appellants received
workers’ compensation benefits which were provided through their employment with A & B Electric.
¶4.
In December 2002, Appellants filed an action against Horseshoe and White seeking damages for
their injuries. In response, Horseshoe and White each filed summary judgment motions denying liability,
and White was subsequently dismissed from the suit due to the exclusivity provisions of the workers’
compensation statute.1 Appellants, however, continued to maintain that Horseshoe was responsible for
their injuries. A hearing was held on Horseshoe’s summary judgment motion, and the trial judge entered
an order finding that Appellants failed to prove that Horseshoe maintained control over the work project
that gave rise to their injuries
ANALYSIS AND DISCUSSION OF THE ISSUE
Standard of Review
¶5.
The law is well established with respect to the grant or denial of summary judgment motions. A
summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that
1
The trial court found that White was a statutory employee under the workers’ compensation
statute and was therefore entitled to immunity from Appellants’ suit. Appellants also conceded that White,
as a general contractor, received immunity under the statute.
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the moving party is entitled to a judgment as a matter of law.” M. R. C. P. Rule 56 (c). “All that is
required of an opposing party to survive a motion for summary judgment is to establish a genuine issue of
material fact by the means available under the rule.” Lowery v. Guaranty Bank and Trust Company,
592 So. 2d 79, 81 (Miss. 1991) (citing Galloway v. Traveler’s Insurance Co., 515 So. 2d 678, 682
(Miss. 1987)). “In determining whether the entry of summary judgment [is] appropriate, [appellate courts]
review the judgment de novo, making [their] own determination on the motion, separate and apart from
that of the trial court.” Lowery, 592 So. 2d at 81. “The evidentiary matters are viewed in the light most
favorable to the nonmoving party.” Id. “If after this examination, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law, summary judgment is affirmed, but if after
examining the evidentiary matters there is a genuine issue of material fact, the grant of summary judgment
is reversed.” Lowery, 592 So. 2d at 81(citing Newell v. Hinton, 556 So. 2d 1037, 1041 (Miss. 1990)).
¶6.
Appellants first contend that the trial court erred in striking the affidavit of Damon Wall, an associate
professor of electrical engineering at the University of Mississippi. They contend that Wall’s affidavit was
based upon his personal knowledge and provided a sufficient expert opinion as to the cause of the fire that
resulted in their injuries. Horseshoe, however, argues that Wall’s affidavit was insufficient because it failed
to address the central issues of liability and control.
¶7.
Wall’s affidavit, which was presented by Appellants in response to Horseshoe’s motion for
summary judgment, states:
My name is Damon Wall. I am the [sic] Associate Professor Emeritus of Electrical
Engineering at the University of Mississippi. I am familiar with the switchgear fire in Tunica
Mississippi at Horshoe Casino that happened in July 2000. I have read the relevant
materials in regards to said fire and examined the switchgear involved in said fire. It is my
professional opinion that fault lies in allowing installation of equipment under live (“hot”)
electrical conditions.
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The trial judge found that Wall’s affidavit was conclusory in nature and failed to meet the requirements set
forth in Rule 56 (e) of Mississippi Rules of Civil Procedure.
¶8.
We agree. Rule 56(e), which addresses the use of affidavit testimony in summary judgment
motions, provides in pertinent part that “[s]upporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matter stated therein.” Here, although Wall opined as to the
possible cause of the accident, he failed to address certain central issues that were essential to the resolution
of the case, such as which party was responsible for Appellants’ injuries and which party maintained control
over the work site. As a result, Wall’s affidavit was wholly insufficient to create a genuine issue of fact for
consideration by the jury. Therefore, the affidavit was properly stricken by the trial court.
(2) Control Over Work site
¶9.
Appellants next argue that a genuine issue of fact existed as to whether Horshoe relinquished
unfettered control of the work site. In support of their argument, Appellants rely on the deposition
testimony of Samuel A. Marshall, Horseshoe’s Vice President of Design and Construction.
¶10.
Marshall, who served as the liaison between Horseshoe and White, testified that he regularly
communicated with Guy White and Billy Waxter, White’s vice president and job site superintendent,
respectively. Marshall also stated that he periodically discussed the job’s progress with Waxter, but did
not act as his supervisor, nor did Waxter consult him for permission in carrying out the duties of the project.
Marshall further testified that Horseshoe and White generally coordinated on issues such as shutting down
the power and water supply and allowing ingress and egress from the work site.
¶11.
Appellants maintain that Marshall’s testimony clearly reveals that a decision to turn off the power
supply which subsequently led to their injuries would have first required Horseshoe’s approval. They
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properly contend that the critical question in determining Horseshoe’s liability is whether it maintained any
right of control over the performance of the work giving rise to their injuries.
See Magee v.
Transcontinental Gas Pipe Line, Corp., 551 So. 2d 182, 186 (Miss. 1989). ¶12.
However, we find
that Marshall’s testimony was insufficient to create a genuine issue of fact as to whether Horseshoe
maintained control over the work site. Although Marshall periodically discussed the job’s progress and
coordinated certain issues with White, the record clearly indicates that White, nevertheless, maintained
control over the manner and method by which the job was to be performed. Marshall testified that he did
not act as a supervisor over the project, nor was he consulted for permission in carrying out the duties of
the project.
¶13.
Similarly, the contract between White and Horseshoe further supports this contention. The contract
specifically provided in pertinent part that:
The Contractor acknowledges that it is the Contractor’s responsibility to hire all personnel
for the proper and diligent prosecution of the work, and the Contractor shall use its best
efforts to maintain labor peace for the duration of the Project. In the event of a labor
dispute, the Contractor shall not be entitled to any increase in the Cost of the Work.
Article 2, No. 15
The contract also stated that:
It is not incumbent upon the owner to notify the Contractor when to begin, to cease or
resume work, nor in any way to superintend so as to relieve the Contractor of
responsibility or of any consequence of neglect or carelessness by it or its subordinates.
All material and labor shall be furnished at such time as shall be for the best interest of all
contractors concerned, to the end that the combined work of all may be properly and fully
completed in accordance with the approved schedule. Article 2, No. 26
¶14.
Under the terms of the contract, White assumed full responsibility for the hiring of its employees
and for the work to be performed pursuant to the contract. Thus, complete responsibility over the work
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project was delegated to White. Furthermore, we note that there is nothing in the record to suggest that
a request was ever made by White for Horseshoe to terminate the power to the
work site and that Horseshoe refused that request. As such, we find that the trial court’s grant of summary
judgment in favor of Horseshoe was proper.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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