OF JUDGMENT: 08/26/2015
FROM WHICH APPEALED: KEMPER COUNTY CIRCUIT COURT, HON. LESTER
F. WILLIAMSON JR. JUDGE
ATTORNEYS FOR APPELLANT: WILLIAM T. MAY K. DUSTIN MARKHAM
ATTORNEYS FOR APPELLEE: JOE S. DEATON III R. JASON CANTERBURY
IRVING, P.J., FAIR AND WILSON, JJ.
Delois King was injured when a tractor turned over on her
while she was on the property of her mother, Willie King.
Delois sued her mother on a theory of premises liability. The
circuit court granted summary judgment for Willie because
Delois failed to present any evidence that Willie's
property was unsafe or that Willie breached any duty to warn
or duty of care. The circuit court correctly determined that
Willie was entitled to judgment as a matter of law.
Therefore, we affirm.
AND PROCEDURAL HISTORY
Willie was 101 years old in November 2009, when the incident
that gave rise to this lawsuit occurred. She passed away on
or about March 17, 2014.
Delois's affidavit, which she submitted in response to
Willie's motion for summary judgment, provides the
following version of the incident on which her lawsuit is
based: On November 3, 2009, Delois went to Willie's house
in De Kalb in response to Willie's "request that
[she] remove abandoned junk cars from [Willie's]
property." Willie "directed" Delois "to
use the tractor on the premises . . . to accomplish her
requested task." Willie owned and "was familiar
with the tractor and its uses." Willie's
instructions "worried" and "concerned"
Delois, but Willie "insisted" that Delois
"work towards completion" of the task. The
tractor turned over on Delois, causing severe
Sherman Fox and Cedric Adams were also present when Delois
was injured. Their affidavits, which were attached to
Willie's motion for summary judgment, provide a
substantially different version of the incident: Adams first
attempted to load an abandoned junk car onto a trailer using
a "come-along" winch. "When that didn't
work, Delois . . . insisted on using a small yard tractor to
load the car." Fox and Adams told Delois that using the
tractor in that manner would be "dangerous and tried to
dissuade her, " but Delois "attempted to load the
car using the tractor" anyway. When she did, "[t]he
tractor flipped over on top of [her]." Fox and Adams say
that Willie was not present at the time and gave no
instructions regarding the tractor. Indeed, Fox and Adams
state that, as far as they know, "no one ever used the
tractor other than Delois."
On April 6, 2012, Delois sued Willie in the Kemper County
Circuit Court. Delois's complaint alleged that Willie
provided her with an unsafe tractor and failed to warn her of
dangerous conditions on the premises. On September 27, 2012,
the circuit court appointed a guardian ad litem for Willie
after "having made an independent inquiry as to [her]
current mental and physical condition." On November 15,
2012, Willie filed a motion for summary judgment.
On April 22, 2014, Delois filed a suggestion of death
pursuant to Mississippi Rule of Civil Procedure 25(a),
informing the court that Willie had passed away. Defense
counsel subsequently filed a motion to dismiss the case
because Delois failed to file a motion to substitute the
proper party within ninety days, as required by Rule
25(a)(1). On March 5, 2015, the court denied the motion to
dismiss but ordered Delois to open an estate for Willie
within thirty days. However, there is nothing in the record
to show that an estate was ever opened or substituted as a
On August 7, 2015, the circuit court granted summary judgment
for Willie. The court concluded that Willie was entitled to
judgment as a matter of law because regardless of whether
Delois was an invitee or licensee, there was no evidence that
the tractor was dangerous or defective, that Willie's
property was in any way unsafe, ...