FAIRLEY CONSTRUCTION SERVICES, INC. APPELLANT
JAMES SAVAGE APPELLEE
OF JUDGMENT: 06/16/2017
FORREST COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JON MARK
ATTORNEYS FOR APPELLANT: ROBERT P. THOMPSON CARYN L. MILNER
ATTORNEYS FOR APPELLEE: LAWRENCE C. GUNN JR. ANN L. GRIFFIN
Fairley Construction Services Inc. appeals from a judgment
entered on a jury verdict in a personal injury action in
favor of James Savage. The jury found that Savage suffered
total damages of $460, 000, that Fairley was 80% at fault,
and that Savage was 20% at fault. We find no error and
AND PROCEDURAL HISTORY
Fairley was hired to construct a quick-lube automobile
service facility. The facility was divided into four separate
sections or "bays." The first bay was on the south
end of the building and was used as an office and customer
waiting area. The other three bays were used as a garage area
for vehicle maintenance. The facility also included a
basement with three openings to the main floor of the
facility. Two of the openings were "oil pits" that
allow the facility's mechanics to access the underside of
vehicles for an oil change. The oil pits were approximately
Fairley ordered construction materials, including sheetrock,
from ProBuild. ProBuild was a distributor of lumber and
construction materials. Savage was a delivery driver for
On May 14, 2013, Savage delivered sheetrock to Fairley's
construction site. When Savage arrived, none of Fairley's
employees were present. Savage inspected the construction
site and determined the best and safest location for him to
place the sheetrock. Savage determined that the first bay -
the office area - appeared to be too cramped to unload the
sheetrock. He also determined that the second and fourth bays
were blocked by machinery. As a result, Savage decided to
unload the sheetrock in the third bay. While he was unloading
the sheetrock, Savage fell into the oil pit.
At the time of the delivery, each oil pit was covered by a
4-foot by 8-foot sheet of plywood. Savage claimed that the
oil pits were concealed and unable to be seen. The plywood
was not fastened or attached to the floor. And there were no
warning signs, cones, or any other type of warning that
advised or alerted Savage of the presence of the oil pits or
openings into the basement.
Savage explained his accident as follows:
[W]hen I pulled up to the door where I was going to put the
[s]heetrock in, the [s]heetrock is 4 feet by 12 feet, and
when I pulled up to the door, I determined that the door was
not wide enough to slide it in straight because there was not
enough clearance; so the way we do things like that is you
turn it sideways. You put the 4 foot side in . . . and you
set it down, and you try to - on our forklifts, we have a
side shift, and you can side shift it. You will set it down
and side shift it as far as you can, and then you would go.
You would set it down, come out from under it, and you would
go to the other end. Pick the other end up. Level it and
slide it in the building.
[However, ] when I - when I looked in, I saw the plywood on
the floor, and I determined that it was not enough room to -
not enough - at least 12 to 13 feet to where you can safely
slide the [s]heetrock in; so I went in to move the . . .
plywood forward so the [s]heetrock would not hit it, and so
it wouldn't damage the [s]heetrock, and when I picked the
plywood up to slide it forward, I took one step and fell into
the [oil] pit.
testified that he picked up the piece of plywood "[t]o
about [his] knees" and "was going to slide it
forward far enough to where [he] could safely get the
[s]heetrock in without hitting the plywood."
Savage commenced this action against Fairley. Savage alleged
that "the premises controlled by Fairley . . . contained
a hazardous condition in the form of the [oil] pit that was
hidden or concealed by the plywood." Savage further
alleged that Fairley "failed to eliminate this dangerous
condition and further failed to warn [him] of its existence .
. . ." After a trial, the jury returned a verdict that
found that Savage had suffered $460, 000 in total damages.
The jury verdict also allocated fault with 20% assigned to
Savage and 80% to Fairley.
Fairley filed a motion for a judgment notwithstanding the
verdict (JNOV) or, in the alternative, a new trial. And, the
circuit court denied the motion. It is from this judgment
that Fairley now appeals and argues: (1) the circuit court
erroneously denied its motion for a JNOV, (2) the circuit
court erred in allowing testimony regarding OSHA and the
American National Standards Institute (ANSI), (3) the circuit
court failed to properly instruct the jury, and (4) the jury
verdict is contrary to the overwhelming weight of the
Sufficiency of the Evidence
Fairley argues the circuit court erroneously denied its
motion for a JNOV. A motion for a JNOV challenges the legal
sufficiency of the evidence. Johnson v. St.
Dominics-Jackson Memorial Hosp., 967 So.2d 20, 22
(¶3) (Miss. 2007). In reviewing the denial of a motion
for a JNOV, "[t]his Court will consider the evidence in
the light most favorable to the appellee, giving the appellee
the benefit of all favorable inferences that may be
reasonably drawn from the evidence." Anderson v.
McRae's Inc., 931 So.2d 674, 678 (¶13) (Miss.
Ct. App. 2006). "If the facts are so overwhelmingly in
favor of the appellant that … reasonable jurors could
not have arrived at a contrary verdict, this Court must
reverse and render." Id. "On the other
hand, if substantial evidence exists in support of the
verdict, that is, evidence of such quality and weight that
reasonable and fair-minded jurors in the exercise of
impartial judgment might have reached different conclusions,
then this Court must affirm." Id. (internal
quotation marks omitted).
Savage brought a premises-liability action against Fairley.
"[P]remises liability is a theory of negligence that
establishes the duty owed to someone injured on a
landowners's premises as a result of 'conditions or
activities' on the land . . . ." Doe v. Jameson
Inn Inc., 56 So.3d 549, 553 (¶11) (Miss. 2011).
The duty owed by a business owner is determined based on the
status of the injured party. The injured party should be
classified as an invitee, licensee, or trespasser.
Leffler v. Sharp, 891 So.2d 152, 153
(¶10) (Miss. 2004). An invitee is a person who enters
the premises of another in response to an "express or
implied invitation of the owner or occupant for their mutual
advantage." Id. at 153 (¶11). A licensee
enters the premises "for his own convenience, pleasure,
or benefit pursuant to the license or implied permission . .
. ." Id. A trespasser enters the premises
"without license, invitation, or other right."
The general rule is that a property owner is not the insurer
of an invitee's safety. Instead, the property owner owes
a duty to the invitee to keep the premises reasonably safe
and, when not reasonably safe, to warn only of hidden dangers
not in plain and open view. Corley, 835 So.2d at 37
(¶2). The property owner owes a duty to a licensee or
trespasser to not willfully or wantonly injure them.
Leffler, 891 So.2d at 157 (¶12).
Fairley asserts that Savage was an independent contractor. In
Ratliff v. Georgia Pacific Corp., 916 So.2d
546, 549 (¶9) (Miss. Ct. App. 2005), this Court examined
the slight difference between a business invitee and an
A business invitee is defined as one who enters the premises
at the owner's invitation to pursue a matter of mutual
advantage. On the other hand, an independent contractor is
defined as a person who contracts with another to do
something for him but who is not controlled by the other nor
subject to the other's right to control with respect to
his physical conduct in the performance of the undertaking.
(Citations and internal quotation marks omitted). Ratcliff
was also a truck driver, but he was injured while loading his
truck. Id. at 547 (¶¶2-3). Ratcliff
claimed that his injuries were the result of the
landowner's negligence. Id. The Court ruled that
Ratcliff was the employee of an independent contractor and
not a business invitee. Id. at 549 (¶9).
Here, the record shows that Savage was properly considered to
be an independent contractor. The jury was instructed that
"Fairley had a duty to independent contractors such as
ProBuild and/or Savage." Accordingly, we find that
Fairley's claim regarding Savage's status as an
independent contractor is moot.
B.ProBuild's Knowledge of ...