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King v. King

Court of Appeals of Mississippi

March 21, 2017

DELOIS KING APPELLANT
v.
WILLIE B. KING APPELLEE

          DATE OF JUDGMENT: 08/26/2015

         COURT 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

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          WILSON, J.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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 injuries.[1]

         ¶4. 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."

         ¶5. 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.

         ¶6. 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 party.

         ¶7. 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, ...


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