United States District Court, S.D. Mississippi, Northern Division
MICHAEL FRAZIER AND JESSICA FRAZIER, ON BEHALF OF THEIR MINOR CHILD, J.L.F. PLAINTIFFS
UNIVERSITY OF MISSISSIPPI MEDICAL CENTER D/B/A BATSON CHILDREN'S HOSPITAL, ET AL. DEFENDANTS
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
medical-negligence case, the defendants affiliated with
Sta-Home Health and Hospice, Inc., seek dismissal of, or
summary judgment on, the negligence per se claims asserted
against them, as well as the claims against Sta-Home's
officers and directors. Mot. . For the reasons that
follow, the motion is denied without prejudice as to the
claims against the officers and directors; granted as to the
negligence per se claims based on federal regulations; and
granted in part as to the negligence per se claims based on
Facts and Procedural History
J.L.F., the minor daughter of Michael and Jessica Frazier,
was a preterm infant born on April 17, 2004, with
hydrocephalus (a buildup of excess cerebrospinal fluid in the
brain). The Fraziers reside in Meridian, Mississippi.
relevant treatment history began in Mississippi on January
21, 2009, when she received a ventricular shunt implant to
drain cerebrospinal fluid from her brain into her abdomen.
Seven years later, she developed complications and was
eventually transferred by ambulance to Children's
Hospital in New Orleans, where pediatric neurosurgeon Dr.
Lori McBride performed surgery to change the valve in her
to the Amended Complaint, on March 8, 2016, discharge
planners at Children's Hospital arranged for J.L.F.'s
discharge to Sta-Home Health and Hospice, Inc. The contract
for home-health services in Mississippi showed Dr. McBride, a
Louisiana-licensed doctor, as the admitting physician.
continued to suffer various symptoms and was readmitted for
several months of inpatient hospital care at Children's
Hospital in New Orleans and a hospital in Jackson,
Mississippi. She was ultimately “discharged home with
permanent brain injuries requiring tube feedings and nursing
care in the home 16 hours per day.” Am. Compl. 
Fraziers filed this lawsuit on behalf of J.L.F. on December
21, 2016, asserting claims for medical malpractice against a
slew of medical providers. Among the Defendants are Sta-Home
Health and Hospice, Inc.; Sta-Home Health Agency of Carthage,
Inc.; Sta-Home Health Agency of Carthage, LLC; Sta-Home
nurses Candace Hoffer, RN, Katrina Trosper, RN, and Kasonya
Boyd, RN; and Sta-Home corporate officers Vincent Caracci,
Rhonda Hamilton, and Barry Davis (referred to collectively as
the “Sta-Home Defendants”).
II through V of the Amended Complaint are aimed at the
Sta-Home Defendants. Count II asserts a claim for
“negligence per se[, ] corporate negligence[,
] and/or breach of contract” against the three Sta-Home
entities “and their officers and directors in their
respective individual and official capacities.”
Id. at 23 (capitalization altered). Count III
alleges negligence and gross negligence on the part of the
three Sta-Home entities. And Counts IV and V assert claims
for negligence per se, negligence, and gross negligence
against the three Sta-Home nurses-Hoffer, Trosper, and Boyd.
their motion , the Sta-Home Defendants seek dismissal
of, or summary judgment on, claims premised on “alleged
violations [of] federal and/or state regulations/law”
as well as the claims against Caracci, Hamilton, and
Davis. Defs.' Mem.  at 8, 9. The matters
raised in the Sta-Home Defendants' motion have been fully
Sta-Home Defendants style their motion as one under either
Rule 12(b)(6) or Rule 56. But their motion comes roughly 10
months after they answered Plaintiffs' Amended Complaint,
so any relief under Rule 12 would fall under Rule 12(c).
See Fed. R. Civ. P. 12(c) (providing for motion for
judgment on the pleadings that may be filed “[a]fter
the pleadings are closed-but early enough not to delay
trial”). But in ruling on a motion under Rule 12(c),
“the district court is confined to the pleadings and
must accept all allegations contained therein as true.”
Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420
(5th Cir. 2001). In this case, both sides submitted evidence
on the Sta-Home Defendants' motion, which is styled
alternatively as one for summary judgment. And Plaintiffs did
not object to treating the motion as a summary-judgment
motion; instead, they submitted evidence they say supports
their claims. See Fed. R. Civ. P. 12(d) (“If,
on a motion under Rule . . . 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.”). The Sta-Home Defendants' motion is therefore
properly considered under Rule 56.
judgment is warranted under Federal Rule of Civil Procedure
56(a) when evidence reveals no genuine dispute regarding any
material fact and that the moving party is entitled to
judgment as a matter of law. The rule “mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
party moving for summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Id. at 323.
The nonmoving party must then “go beyond the
pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.'”
Id. at 324 (citation omitted). In reviewing the
evidence, factual controversies are to be resolved in favor
of the nonmovant, “but only when . . . both parties
have submitted evidence of contradictory facts.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). When such contradictory facts exist,
the court may “not make credibility determinations or
weigh the evidence.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). Conclusory
allegations, speculation, unsubstantiated assertions, and
legalistic arguments have never constituted an adequate
substitute for specific facts showing a genuine issue for
trial. TIG Ins. Co. v. Sedgwick James of Wash., 276
F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at
1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
Negligence Per Se Claims
recognizes the doctrine of negligence per se, which
essentially provides that a breach of a statute or ordinance
may render the offender liable in tort without proof of lack
of due care.” Dallas v. Premier Vehicle Transp.,
Inc., No. 1:16-CV-358-LG-RHW, 2017 WL 3389793, at *2
(S.D.Miss. Aug. 7, 2017).
[T]he negligence per se doctrine does not create a new cause
of action. Rather, it is a form of ordinary negligence, that
enables the courts to use a penal statute to define a
reasonably prudent person's standard of care. . . .
[. . . .]
The effect of declaring conduct negligent per se is to render
the conduct negligent as a matter of law. Thus, a person
whose conduct is negligent per se cannot escape liability by
attempting to prove that he or she acted reasonably under the
circumstances. However, a finding of negligence per se is
not equivalent to a finding of liability per se. Plaintiffs
in negligence per se cases must still establish causation in
fact, legal cause, and damages.
Williams ex rel. Raymond v. Wal-Mart Stores East,
L.P., 99 So.3d 112, 116 (Miss. 2012) (quoting Rains
v. Bend of the River, 124 S.W.3d 580, 589-90 (Tenn.App.
2003)) (emphasis in original). “Violation of a statute
or ordinance constitutes negligence per se and will support a
cause of action in tort where (1) the plaintiff is within the
class protected by the statute, and (2) the harm sustained is
the type sought to be prevented by the statute.”
Dallas, 2017 WL 3389793, at *2. Here, the Sta-Home
Defendants say the Fraziers' negligence per se claims
fail as a matter of law because the defendants violated no
federal or state laws or regulations in their care for J.L.F.
with federal law, the ...