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Fairley Construction Services, Inc. v. Savage

Court of Appeals of Mississippi

January 31, 2019


          DATE OF JUDGMENT: 06/16/2017




         EN BANC.

          GRIFFIS, C.J.

         ¶1. 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 affirm.


         ¶2. 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 eight-feet deep.

         ¶3. Fairley ordered construction materials, including sheetrock, from ProBuild. ProBuild was a distributor of lumber and construction materials. Savage was a delivery driver for ProBuild.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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.

         Savage 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."

         ¶7. 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.

         ¶8. 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 evidence.


         I. Sufficiency of the Evidence

         ¶9. 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).

         A. Savage's Status

         ¶10. 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).

         ¶11. 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." Id.

         ¶12. 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).

         ¶13. 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 independent contractor:

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).

         ¶14. 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 ...

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