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Toney v. Southern Crane & Rigging, Inc.

Court of Appeals of Mississippi

August 1, 2017

AMBER TONEY, ADMINISTRATRIX FOR THE ESTATE OF LARRY DONNELL TONEY, AND AMBER TONEY, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF LARRY DONNELL TONEY, DECEASED APPELLANT
v.
SOUTHERN CRANE & RIGGING, INC. APPELLEE

          DATE OF JUDGMENT: 07/18/2016

         WAYNE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR. TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: ORVIS A. SHIYOU JR.

          ATTORNEYS FOR APPELLEE: MICHAEL J. WOLF GEORGE MARTIN STREET JR.

          BEFORE LEE, C.J., BARNES AND CARLTON, JJ.

          LEE, C.J.

         ¶1. In this wrongful-death case, we must determine whether the trial court erred by granting Southern Crane and Rigging's motion for summary judgment. Finding no error, we affirm.

         PROCEDURAL HISTORY

         ¶2. On April 25, 2011, Larry Donnell Toney (Larry) was killed while dismantling oil-field equipment on a site in Wayne County, Mississippi. At the time, Larry was employed by T.K. Stanley Inc. (TKS). Southern Crane had been hired to assist TKS's employees. On March 11, 2013, the administrator of Larry's estate, Amber Toney (Toney), filed suit in the Wayne County Circuit Court against Southern Crane alleging negligence, gross negligence, failure to supervise, and failure to warn.

         ¶3. In February 2016, Southern Crane filed a motion to dismiss or, in the alternative, a motion for summary judgment. In response, Toney filed a motion to amend the complaint. After a hearing on both motions, the trial court granted Southern Crane's motion for summary judgment. The trial court did not explicitly deny Toney's motion to amend the complaint.

         FACTS

         ¶4. On the day in question, Larry arrived on the construction site to assist in dismantling a "flare stack." A flare stack is a tower used in the oil-production process to burn off natural gases. They are sometimes welded to a concrete slab, and additional support can be provided by "guy wires" connecting the flare stack to the ground.

         ¶5. TKS hired Southern Crane to assist in dismantling the flare stack. Frankie Harrison, the owner of Southern Crane, arrived to the site with the crane. According to Harrison, his job was to maneuver the crane in position and, once the crane's hoist line was attached to the flare stack, lower the flare stack onto a truck. Harrison stated that one of TKS's employees was supposed to attach the crane's hoist line to the flare stack. Before the hoist line was attached to the flare stack, Harrison saw TKS's employees removing the guy wires and told TKS's foreman, Robert Lofton. Lofton, who had instructed his crew to remove the three guy wires, told Harrison not to worry, that the flare stack was welded to a concrete slab. After the guy wires were disconnected, a TKS employee proceeded to climb a ladder that had been placed against the flare stack. This employee was to attach the crane's hoist line to the flare stack, but before he could do so, the flare stack fell and struck Larry, killing him.

         ¶6. The report issued by the Occupational Safety and Health Administration (OSHA) stated that the investigation into the accident revealed that the flare stack was not welded to a concrete slab. The report stated: "After the guy wires were disconnected, the [TKS] employee on the ladder started climbing, which caused the flare stack to fall over and strike the deceased on his back." The report noted that "[t]he flare stack's base had not been anchored into cement as originally thought by [Lofton.]" The OSHA investigator noted that he and Harrison "dug in the ...


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