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Pippen v. Tronox, LLC

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

January 14, 2019

SHAQUANDA RICE PIPPEN, and ANGELIA RICE PLAINTIFFS
v.
TRONOX, LLC, and ALLEN BLASTING AND COATING, INC. DEFENDANTS

          ORDER AND MEMORANDUM OPINION

          SHARION AYCOCK UNITED STATES DISTRICT JUDGE.

         On 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 [1]. Now before the Court is Defendant Tronox, LLC's Motion for Summary Judgment [57].[1]

         Factual and Procedural Background

         The 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).

         Defendant 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.

         During 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.

         On June 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.

         The 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.[2] 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.

         Standard of Review

         Federal 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).

         In 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).

         The 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. 2009)).

         Independent Contractor

         The 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. § 11-1-66.

         This is 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.”).

         Tronox 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. § 11-1-66.

         It is 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 ...

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