BERTRAM HILL, INDIVIDUALLY, JENANNE MOONEYHAN AND RACHAEL PHILLIPS, AS WRONGFUL DEATH BENEFICIARIES OF DAVID MOONEYHAN
CITY OF HORN LAKE, MISSISSIPPI
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COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/04/2012. TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN.
FOR APPELLANTS: JOHN THOMAS LAMAR, III, JOHN THOMAS LAMAR, JR., JOSEPH HARLAND WEBSTER, RALPH EDWIN CHAPMAN.
FOR APPELLEE: ROY JEFFERSON ALLEN.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. LAMAR, J., NOT PARTICIPATING. KITCHENS, JUSTICE, DISSENTING.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
¶1. The City of Horn Lake (" the City" ) contracted with Phillips Construction Company and its owner Michael Phillips (collectively " Phillips" ) to work on a sewer project. Two employees of Phillips, Bertram Hill and David Mooneyhan, were working near the bottom of a trench that was seventeen feet deep when the walls of the trench suddenly collapsed. Mooneyhan was killed, and Hill was injured. Mooneyhan's beneficiaries and Hill (collectively " Plaintiffs" ) sued the City for Phillips's negligence under respondeat superior and also alleged that the City had negligently hired Phillips. The circuit court properly granted summary judgment in favor of the City, and we affirm.
Facts and Procedural History
¶2. On October 28, 2008, a trench being constructed in connection with the City's Chapel Hill Sewer Installation Project (" project" ) collapsed on itself, causing serious injury to Bertram Hill and death to David Mooneyhan. Two city employees who were at the site to deliver supplies witnessed the event. Hill and Mooneyhan had been performing work near the bottom of the trench as part of their employment with Phillips. Phillips did not have general liability insurance coverage at the time of the trench collapse. Since that time, OSHA has investigated Phillips for possibly violating federal regulations in connection with its work on the project.
¶3. Phillips and the City never reduced to writing the agreement for the project's completion, but the record provides ample information about the agreement. The project was to be completed on a cost-plus basis, and Phillips ultimately requested $9,678 for its work. Interrogatory responses from Phillips and depositions of Calvin Shields, the City's Director of Operations, shed additional light on the nature of the agreement. Via interrogatory responses, Phillips testified that his company was an independent contractor for the City and that the City did not participate in the construction or direct the manner or means by which the work was done. Shields testified that the City would inspect the site only if the contractor requested an inspection. Shields testified that city employees had visited the site only twice during the course of the project.
¶4. Plaintiffs filed a complaint against the City on August 4, 2009, alleging that the City was liable for Phillips's negligence on the basis of respondeat superior and also for its own negligence in maintaining the site. On February 9, 2012, the City moved for summary judgment on the following grounds: (1) Plaintiffs contended that Hill and Mooneyhan were employees of the City, thus rendering their claims subject to the exclusive remedy provision found in the Mississippi Workers' Compensation Act; (2) Phillips was an independent contractor, not an agent, so the City could
not be liable to Plaintiffs under respondeat superior ; and (3) the discretionary function exemption of the Mississippi Tort Claims Act (" MTCA" ) rendered the City immune from liability for maintenance of a sewer system.
¶5. In response to the City's motion for summary judgment, Plaintiffs admitted that Hill and Mooneyhan were not employees of the City, thus rendering the City's defense under the Mississippi Workers' Compensation Act moot. Plaintiffs argued that the City was not immune from liability under the discretionary function exemption because the City still had a duty to warn of dangerous conditions. Finally, they added that the City was liable under Mississippi Code Section 31-5-51(7), which requires any person entering into a formal contract with a city that exceeds $25,000 to furnish proof of general liability insurance coverage. Miss. Code Ann. § 31-5-51(7) (Rev. 2010). The City argued that the statute was inapplicable because the contract amount was only $9,678, well below the $25,000 threshold.
¶6. The circuit court granted the City's motion for summary judgment on all issues, holding that Plaintiffs had not established the City had more than a supervisory role over the project, that the City's maintenance of a sewer system is a discretionary function, and that the burden under Mississippi Code Section 31-5-51(7) is placed on the contractor, not the City. Plaintiffs appealed.
¶7. We requested supplemental briefing from the parties on the following issues: (1) whether the contract, if any, between Horn Lake and Phillips was void and unenforceable as a matter of public policy because it was formed in violation of Mississippi Code Section 31-7-13; (2) whether the existence of an enforceable contract is a prerequisite for the existence of independent-contractor status for the purposes of determining whether Horn Lake is vicariously liable for the negligence, if any, of Phillips; and (3) whether the Court's opinion in Little v. Mississippi Department of Transportation, 129 So.3d 132 (Miss. 2013), has any effect on whether Horn Lake enjoyed discretionary immunity.
Standard of Review
¶8. The standard of review for a grant or denial of summary judgment is de novo. Ladnier v. Hester, 98 So.3d 1025, 1027-28 (¶ 9) (Miss. 2012). Courts determine whether summary judgment is proper by considering whether " 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 the moving party is entitled to judgment as a matter of law." Miss. R. Civ. P. 56(c). A fact is material if it " tends to resolve any of the issues properly raised by the parties." Moss v. Batesville Casket Co., 935 So.2d 393, 398 (¶ 16) (Miss. 2006). Issues of fact exist when one can draw more than one reasonable inference from uncontradicted facts. Ladnier, 98 So.3d at 1029 (¶ 14). The moving party has the burden of demonstrating the absence of a genuine issue of material fact. Id. at 1028 (¶ 10). If there is any doubt as to the existence of a genuine issue of material fact, the benefit goes to the nonmoving party. Id. at 1028 (¶ 9). However, the nonmoving party may not rest on mere allegations or denials in the pleadings, but must set forth specific facts showing that there are genuine issues for trial. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (¶ 4) (Miss. 2008).
¶9. The DeSoto County Circuit Court granted the City's motion for summary judgment on ...