United States District Court, N.D. Mississippi, Aberdeen Division
ORDER AND MEMORANDUM OPINION
SHARION AYCOCK UNITED STATES DISTRICT JUDGE.
August 14, 2014 George Rice died in a work-related accident
in Hamilton, Mississippi. George Rice's daughters
Shaquanda Rice Pippen and Angelia Rice are the
co-administrators of George Rice's estate and they filed
this wrongful death suit on August 10, 2017. See
Complaint . Now before the Court is Defendant Tronox,
LLC's Motion for Summary Judgment .
and Procedural Background
following facts are taken directly from the summary judgment
record in this case. The Court resolves factual controversies
in the non-movant Plaintiffs' favor. Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Tronox operates a plant in Hamilton, Mississippi that
manufactures titanium dioxide. At the time of his death,
George Rice worked for Jimco Integrated Services, Inc. Jimco
is an independent contractor that provides dredging and
de-watering services at Tronox's plant pursuant to a
Master Work Agreement. Tronox uses a series of large waste
ponds to manage solid wastes generated by its production
processes. Dredges are used to remove the solid waste from
the waste ponds. A dredge is a floating vessel used for an
excavation activity that is carried out at least partially or
fully submerged under water, with the purpose of gathering up
bottom sediments and disposing of them or transferring them
to a different location.
the early morning hours of August 12, 2014, Rice was
operating a dredge on a waste pond at the Tronox plant. This
particular dredge is a large piece of equipment, weighing in
excess of 20, 000 pounds, that floats on two large parallel
pontoons. Water infiltrated at least one of the pontoons on
the dredge causing it to lose stability and capsize. When the
dredge capsized, Rice drowned.
18, 2014, less than two months prior to Rice's death,
Jimco removed the dredge from the waste pond with a crane and
contracted with Allen Blasting and Coatings, Inc. to perform
repairs to the dredge, including sandblasting and recoating
of the pontoons. A new diesel engine was also installed in
the dredge. According to Jimco employee Kenneth Conn, the
dredge was listing to one side and was taken out of service
for that reason. After a little over a month, the dredge was
put back into service on July 26, 2014.
Plaintiffs seek compensation for Rice's death and allege
claims under Mississippi law for negligence and negligent
misrepresentation against Tronox. Tronox now requests summary
judgment in its favor on all of the Plaintiffs'
claims. Tronox argues that it is immune from
responsibility under Mississippi Code § 11-1-66, that
the Plaintiffs cannot establish the elements of negligence,
and that the Plaintiffs failed to bring forth any competent
evidence to support their negligent misrepresentation claims.
Briefing is complete and this Motion is ripe for review.
Rule of Civil Procedure 56 governs summary judgment. Summary
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
reviewing the evidence, factual controversies are to be
resolved in favor of the non-movant, “but only when . .
. both parties have submitted evidence of contradictory
facts.” Little, 37 F.3d at 1075. 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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
moving party “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.” Celotex, 477 U.S. at 323, 106 S.Ct.
2548. 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, 106 S.Ct. 2548 (citation omitted). Mere
“conclusory allegations, speculation, [or]
unsubstantiated assertions are inadequate to satisfy the
nonmovant's burden.” Pree v. Washington Cty.
Bd. of Supervisors, No. 4:16-CV-122-SA, 2018 WL 522776,
at *6 (N.D. Miss. Jan. 23, 2018) (citing Douglass v.
United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th
Cir. 1996)). Mississippi substantive law applies in this
diversity case. See Cox v. Wal-Mart Stores E., L.P.,
755 F.3d 231, 233 (5th Cir. 2014) (citing Wood v. RIH
Acquisitions MS II, LLC, 556 F.3d 274, 275 (5th Cir.
Parties agree that under Mississippi law, the general rule is
that an owner has a duty to furnish the employees of an
independent contractor with a “reasonably safe place to
work or give warning of danger.” Ratcliff v.
Georgia Pac. Corp., 916 So.2d 546, 549 (Miss. Ct. App.
2005) (citing Mississippi Chemical Corp. v. Rogers,
368 So.2d 220, 222 (Miss. 1979); Mississippi Power Co. v.
Brooks, 309 So.2d 863 (Miss. 1975)). The Mississippi
legislature has, however, limited this duty in certain
respects relative to independent contractors. “No
owner, occupant, lessee or managing agent of property shall
be liable for the death or injury of an independent
contractor or the independent contractor's employees
resulting from dangers of which the contractor knew or
reasonably should have known.” Miss. Code. Ann. §
consistent with Mississippi common law. See
Ratcliff, 916 So. at 549 (citing Jackson Ready-Mix
Concrete v. Sexton, 235 So.2d 267, 270 (Miss. 1970)
(stating “however, the owner is relieved of his duty to
give warning to the independent contractor or his employees
if the independent contractor is aware of the
danger.”); see also Coho Resources Inc. v.
McCarthy, 829 So.2d 1, 11(¶ 21) (Miss. 2002)
(citing Magee v. Trans Continental Pipeline Corp.,
551 So.2d 182, 185 (Miss. 1989)) (stating
“moreover, the owner has no duty to protect the
independent contractor or his employees from dangers arising
out of or intimately connected with the work to be performed
by the independent contractor.”).
argues that Rice was an independent subcontractor, and that
the Plaintiffs have admitted that he knew or should have
known of the danger. The questions the Court must answer are
whether any genuine disputes of material fact exist as to
whether Rice was the employee of an independent contractor,
and whether he knew or reasonably should have known of the
danger which caused his death. See Miss. Code. Ann.
undisputed that Jimco was operating as an independent
contractor performing work under a Master Work Agreement,
that Rice was a Jimco employee, and that Jimco owned the
dredge that capsized killing Rice. Indeed, the Master Work
Agreement executed by Tronox and Jimco contains the following
clause, the validity of which is undisputed:
28. INDEPENDENT CONTRACTOR. la performance of the Work under
a Work Order, Contractor shall act safety as an independent
contractor in performing the "Work contemplated by this
Agreement, and nothing herein shall, under any circumstances,
constitute Contactor or its employees or subcontractors, the
agent or employee of the Company for tax purposes (FICA,
income and the like}, for purposes of claiming entitlement to
any benefits offered, paid or provided by the Company tn toe
Company's employees including, but not limited to,
medical, retirement, stock ownership or savings plans, or for
any other purpose. Contactor agrees to defend, indemnify and
hold the Company free and harmless frcin and against any and
all claims, demands and causes of action brought by or on
behalf of Contractor's employees or subcontractors which
are based on a claimed ...