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Shed v. Johnny Coleman Builders, Inc.

United States District Court, N.D. Mississippi, Oxford Division

August 23, 2017

CLARENCE SHED PLAINTIFF
v.
JOHNNY COLEMAN BUILDERS, INC.; JOHNNY COLEMAN d/b/a JOHNNY COLEMAN COMPANIES, LLC; SHERRY MAGGIO FLYNN, and JOHN DOES 1-10 DEFENDANTS

          MEMORANDUM OPINION

          NEAL B. BIGGERS, JR., UNITED STATES DISTRICT JUDGE

         This cause comes before the court upon the defendants' motion for summary judgment. Upon due consideration of the motion, response, exhibits, and applicable authority, the court is ready to rule.

         Factual and Procedural Background

         Plaintiff Clarence Shed filed this diversity jurisdiction action on July 29, 2016, asserting various negligence, fraud, and breach of contract claims against the defendants arising from an alleged toxic mold infiltration of the home he briefly rented from defendant Johnny Coleman Companies, LLC. Shed had entered into a Mississippi residential lease agreement with said defendant on December 4, 2013, for a property located in the Alex Cove subdivision of Southaven, Mississippi.

         The plaintiff alleges that in January 2014 he discovered that his shoes were covered with a green substance, but he apparently did not report the issue to the defendants until March 25, 2014, when he contacted defendant Sherry Flynn, an agent of the Coleman defendants, to inform her that an alleged mold problem had manifested in his master closet and that he was being treated by a physician because he had allegedly developed symptoms that could be related to mold exposure. Flynn inspected the residence on the following day. She pulled back the carpet in the closet and noticed “a little swirl of something green, ” a “circular area in the carpet, ” water stains and wet, dark nail tacks underneath the carpet, and a “musty smell” in the bedroom adjacent to the closet. Noticing wet areas on an exterior wall of the house, Flynn concluded that the house must have a roof leak caused by hard rain and rainwater coming into the attic. Flynn scheduled Albert Brooks, a roofer, to inspect the roof the following day. The roofer confirmed that a water leak was present at the water heater vent in the roof.

         The plaintiff arranged for ACCU Check Home Inspection to evaluate the house for mold on March 28, 2014, and the inspection confirmed an elevated level of mold spores in the master closet. On April 2, 2014, the plaintiff informed Flynn that he had received the results of the mold inspection and delivered a copy of the report to her. He later informed Flynn that he could no longer stay in the house. The lease was terminated on April 6, 2014, and the plaintiff moved out of the residence.

         On April 11, 2014, the plaintiff was treated for a skin rash by Dr. Cheryl D. Winfrey, who noted a “rash and nonspecific skin eruption” and “exposure to mold.” On April 25, 2014, the plaintiff was treated by Dr. Joy Carol Burbeck, who diagnosed him with shortness of breath most likely caused by heavy black mold exposure. The plaintiff was also treated by Dr. Noorain Akhtar on April 27, 2015. His examination revealed that the plaintiff suffered from a rash on his lower legs and arms consistent with an allergic reaction to mold.

         The plaintiff subsequently filed his complaint asserting claims for breach of contract, bad faith breach of contract, negligence and gross negligence, fraud and/or negligent misrepresentation, tortious breach of implied warranty of habitability, and negligence per se. The defendants have moved for summary judgment on all claims.

         Standard of Review

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant makes such a showing, the burden then shifts to the non-movant to “go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue for trial.” Id. at 324. Before finding that no genuine issue for trial exists, the court must first be satisfied that no rational trier of fact could find for the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment, although a useful device, must be employed cautiously because it is a final adjudication on the merits.” Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989).

         Analysis The defendants argue that the plaintiff has failed to meet his burden of directing the court to admissible evidence to support the elements of his claims. First, regarding the mold claims, the defendants note that the plaintiff has not offered any expert opinion attributing the mold spread to any negligence on the part of the defendants. The defendants contend that without expert testimony establishing causation, the plaintiff's claims cannot survive summary judgment. Second, assuming arguendo the plaintiff could establish causation, the defendants argue that the plaintiff's property damage claim is limited by the terms of the contractual agreement he entered into with defendant Johnny Coleman Companies, LLC, which contains a liability provision excluding damages to personal property. The agreement further states that the plaintiff takes the premises in “as-is” condition.

         It is axiomatic that a successful negligence claim requires proof of proximate causation. “Proximate cause of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.” Delahoussaye v. Mary Mahoney's, Inc., 783 So.2d 666, 671 (Miss. 2001). An essential element of causation is foreseeability. Id. For a defendant to be liable for an act which causes an injury, “the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom.” Gulledge v. Shaw, 880 So.2d 288, 293 (Miss. 2004) (quoting Mauney v. Gulf Refining Co., 9 So.2d 780, 780-81 (Miss. 1942)). In the absence of an affirmative causal connection between an alleged act of negligence and an injury complained of, a negligence claim necessarily fails. Myrick v. Holifield, 126 So.2d 508, 511 (Miss. 1961).

         In the present case, the defendants are correct in noting that the plaintiff has offered no expert opinion linking any alleged negligent acts of the defendants to the spread of mold in his former rental home. The defendants insist that, in a toxic mold case, “the essential proof of causation must come from plaintiff's scientific and medical experts.” Daniel J. Penofsky, Litigating Toxic Mold Cases, 92 Am. Jur. Trials 113 § 101 (2004) (emphasis in original). The plaintiff acknowledges that he did not identify any experts during discovery but asserts that his treating physicians can offer expert opinion on causation pursuant to Local Rule 26(a)(2)(D), which permits physicians and other lay witnesses to do so if the subject matter on which the witness is expected to testify has been properly disclosed.

         While the cited Local Rule does provide that a treating physician may be called to offer expert opinions at trial, the plaintiff here has shown only that his treating physicians found his symptoms consistent with mold exposure. The physicians offer no opinion that the plaintiff's alleged injuries were caused by the mold found in the rental home; nor do they offer an opinion linking a negligent act of the defendants with the presence of the mold or as to whether the levels of mold found in the home were sufficient to cause the plaintiff's injuries. Further, the reliability of a specific causation opinion requires the proffered expert to consider and rule out other likely causes of the plaintiff's alleged ailments - in other words, the expert must perform, and the plaintiff must present to the court, a proper differential diagnosis. See Jenkins v. Slidella, LLC, 2008 WL 2659510, at *4 (E.D. La. June 27, 2008), aff'd, 318 F. App'x 270 (5th Cir. 2009). A ...


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