OF JUDGMENT: 10/05/2016
COUNTY CIRCUIT COURT HON. LEE J. HOWARD, Judge
ATTORNEY FOR APPELLANT: P. NELSON SMITH JR.
ATTORNEY FOR APPELLEE: STEPHEN PIERCE SPENCER
GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
Andrew McConnell sued for injuries sustained when he dove
into the swimming pool at Carl Hogan's home. The Lowndes
County Circuit Court granted summary judgment to Hogan,
dismissing McConnell's lawsuit. McConnell appeals,
claiming summary judgment was improper because a genuine
issue of material fact exists as to Hogan's duty to warn
of a dangerous condition. Finding no genuine issue of
material fact, we affirm.
On June 15, 2013, McConnell visited Hogan's residence to
swim in his pool. While Hogan was away on vacation,
Hogan's caretaker, Dave Johnson, gave McConnell's
mother-in-law, Laurie Livingston, permission to use
Hogan's pool. Laurie invited several other family members
to join her at the pool, including her fourteen-year-old son
and stepson, Brian Tribble and Phillip Livingston, and her
daughter, Amber McConnell. Amber invited her husband,
McConnell, to join them.
Johnson opened the access-restrictive gates surrounding
Hogan's property to allow Laurie's guests in. Laurie,
Brian, and Phillip arrived an hour before Amber and
McConnell. Brian and Phillip began swimming in the pool.
Hogan's pool is designed to resemble a lagoon. The pool
has a deep portion in the middle, and two shallow sides on
either end. A large rock protrudes from the water on one side
of the pool, while another rock lays outside the pool's
middle. When McConnell arrived at Hogan's residence, he
went down to the pool. Brian showed McConnell the rock laying
outside the middle of the pool, and then, dove off it, into
the middle of the pool, while McConnell watched. Then
McConnell headed toward that same rock. He quickly slid off
his flip-flops and shirt; ran; and dove from the same rock,
but toward a shallow end. The other guests, realizing
McConnell was moments from diving into the shallow end,
yelled to warn him. However, McConnell was already in the
air, and it is unclear whether he heard them. McConnell,
after diving, was injured. He suffered a cracked skull and
broken neck/back. McConnell was able to exit the pool on his
own, stating, "I'm a d--- idiot." Thereafter,
he went to the local emergency room in Columbus, Mississippi,
and was transported to Jackson, Mississippi, for further
McConnell filed suit on November 7, 2014, alleging he
suffered injuries caused by Hogan's negligence. The
circuit court granted summary judgment in favor of Hogan.
McConnell has timely appealed to this Court.
The standard of review for summary judgment is de novo.
Hudson v. Courtesy Motors Inc., 794 So.2d 999, 1002
(¶7) (Miss. 2001). Summary judgment is proper only when
there are no genuine issues of material fact and the moving
party is entitled to a judgment as a matter of law. M.R.C.P.
56(c). All evidence is viewed in the light most favorable to
the nonmoving party. Travelers Prop. Casualty Corp. v.
Stokes, 838 So.2d 270, 273 (¶9) (Miss. 2003). In
reviewing the motion, the court considers "all
admissions, answers to interrogatories, depositions,