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Mar-Jac Poultry MS, LLC v. Love

Supreme Court of Mississippi

June 13, 2019

MAR-JAC POULTRY MS, LLC
v.
PATRICIA LOVE, INDIVIDUALLY, AND AS NEXT BEST FRIEND, AND PERSONAL REPRESENTATIVE OF KEANNIE LOVE, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF KEANNIE LOVE AND LASHAWN MILLER, INDIVIDUALLY, AND AS NEXT BEST FRIEND, AND PERSONAL REPRESENTATIVE OF LISHANAY WILKS, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF LISHANAY WILKS

          DATE OF JUDGMENT: 10/12/2017

          COVINGTON COUNTY CIRCUIT COURT HON. EDDIE H. BOWEN JUDGE

          TRIAL COURT ATTORNEYS: CORY NATHAN FERRAEZ PAUL MANION ANDERSON RANCE N. ULMER DAVID M. OTT KRIS A. POWELL

          ATTORNEYS FOR APPELLANT: DAVID M. OTT

          ATTORNEYS FOR APPELLEES: P. MANION ANDERSON SAMUEL S. McHARD RANCE N. ULMER

          BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.

          RANDOLPH, CHIEF JUSTICE

         ¶1. Mar-Jac Poultry MS, LLC (Mar-Jac), appeals the denial of its motion for summary judgment on the Plaintiffs' claims for negligence, negligence per se, and wrongful death under the theory of respondeat superior after a Mar-Jac employee's vehicle collided with a school bus on the way to work, killing his two passengers, who were also Mar-Jac employees. Based on the evidence presented, we find that the trial court erred in denying Mar-Jac's motion for summary judgment, for it is undisputed that the driver was not acting in the course and scope of his employment with Mar-Jac when the accident occurred. Thus, we reverse, and we render summary judgment in favor of Mar-Jac.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Beginning in June 2015, Senah Carter was employed at Mar-Jac as a "jack driver." He was responsible for bringing chicken in and out for the employees on the line and throwing away wet pallets and empty boxes. Carter was not assigned any other job responsibilities. In September 2015, Carter asked his supervisor, Launis Cameron, if Mar-Jac had any job openings for Lishanay Wilks, who lived in his home, and Keannie Love, who was Wilks's friend. Cameron did not have any job openings, so he told Carter to ask Leo Barnes, another Mar-Jac supervisor, if he had any openings. Barnes responded that he had two spots available and asked Carter if the two women would be able to show up for work. Carter told Barnes that he would "bring 'em to work." Barnes responded that if the women could be there the next morning, Carter could "bring them on down here," so they could start work. Carter testified that he was never told that he was expected or required by Mar-Jac to bring Love and Wilks to work.

         ¶3. Carter drove Wilks and Love to work almost every day for approximately three weeks. Wilks and Love gave Carter a few dollars for gas. On September 22, 2015, Carter was driving to Mar-Jac with Wilks and Love when he drove his vehicle into the back of a school bus. Wilks and Love both were killed.

         ¶4. On March 29, 2016, Patricia Love and Lawshawn Miller, on behalf of Love and Wilks, filed a complaint in Covington County Circuit Court, asserting claims for negligence, negligence per se, and wrongful death against Carter and against Mar-Jac under the theory of respondeat superior. Attached to the complaint was an affidavit signed by Carter, which stated that Carter believed driving Wilks and Love was part of his normal work assignment. An affidavit signed by Patricia Love also was attached, stating that Carter had told her that he provided transportation for Wilks and Love because Mar-Jac told him to do it as part of his job duties.

         ¶5. The Plaintiffs then filed a combined motion and memorandum for partial summary judgment on the respondeat superior claims against Mar-Jac. Citing inapplicable workers' compensation cases and cases from other jurisdictions, the Plaintiffs alleged that Carter was on a "special mission" for Mar-Jac at the time of the car accident and, thus, was acting in the course and scope of his employment. The Plaintiffs attached the following to their motion: (1) the Mississippi Highway Patrol's crash reports from the car accident; (2) Carter's affidavit; (3) Carter's deposition from his workers' compensation claim; (4) Mar-Jac's answer and affirmative defenses; (5) Patricia Love's affidavit; (6) Leo Barnes's deposition; and (7) Carter's workers' compensation petition to controvert.

         ¶6. On September 12, 2017, Mar-Jac filed its motion for summary judgment and a response to the Plaintiffs' motion for partial summary judgment, arguing that Carter was not acting within the course and scope of his employment with Mar-Jac at the time of the car accident and that Mar-Jac was not liable for Carter's negligence. Mar-Jac primarily relied on Carter's deposition testimony to support its motion. Mar-Jac attached the crash reports and Carter's petition to controvert, as well as Carter's deposition.

         ¶7. The Plaintiffs filed their response to Mar-Jac's motion. Shortly thereafter, the trial court heard arguments on both parties' motions. The Plaintiffs argued that Carter "was told by his supervisors and his superiors at work that he was in charge of making sure these women got to work on time. That was his job." Counsel for Plaintiffs further argued that the deposition testimony reflected that Mar-Jac had told Carter, "You're in charge of bringing these girls to work." Mar-Jac responded that Carter had testified that he was not expected or required by Mar-Jac to bring Love and Wilks to work. The trial court ruled from the bench that he was going to deny both Mar-Jac's motion for summary judgment and the Plaintiffs' motion for partial summary judgment.

         ¶8. On October 12, 2017, the trial court issued a written order finding that a genuine dispute of material fact existed and that both parties' motions should be denied. This Court granted Mar-Jac's petition for permission to appeal on April 19, 2018. Both parties filed briefs. An amicus curiae brief in support of Mar-Jac's position also was filed by the Business & Industry Political Education Committee, which was joined by thirty-six other companies.

         ISSUE

         ¶9. The only issue before the Court is whether the trial court erred in denying Mar-Jac's motion for summary judgment

         STANDARD OF REVIEW

         ¶10. "This Court reviews de novo a trial court's grant or denial of summary judgment." Commercial Bank v. Hearn, 923 So.2d 202, 204 (Miss. 2006) (citing Brooks v. Roberts, 882 So.2d 229, 231 (Miss. 2004)). "The evidence must be viewed in the light most favorable to the nonmoving party." Sanderson Farms, Inc. v. McCullough, 212 So.3d 69, 74 (Miss. 2017) (citing Simpson v. Boyd, 880 So.2d 1047, 1050 (Miss. 2004)). "However, that party's claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict." Id. (citing Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).

         DISCUSSION

         ¶11. The Plaintiffs' claims against Mar-Jac are based solely on the theory of respondeat superior. "Since the mid-19th century, this Court has recognized the doctrine of respondeat superior[, ] which imputes an employee's negligence to the employer." Hearn, 923 So.2d at 204. "However, for just as long, this Court has limited this vicarious liability to acts of the employee 'performed within the scope of the authority conferred.'" Id. (quoting Steamboat General Worth v. Hopkins, 30 Miss. 703, 711 (Miss. 1856).

The doctrine of respondeat superior has its basis in the fact that the employer has the right to supervise and direct the performance of the work by his employe[e] in all its details, and this right carries with it the correlative obligation to see to it that no torts shall be committed by the employe[e] in the course of the performance of the character of work which the employe[e] was appointed to do.

White's Lumber & Supply Co. v. Collins, 186 Miss. 659, 191 So. 105, 107 (Miss. 1939).

         ¶12. This Court has cited with approval the Second Restatement of Agency, which provides,

(1) Conduct of a servant is within the scope of employment if, but only if:
(a) It is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Marter v. Scott, 514 So.2d 1240, 1242-43 (Miss. 1987) (emphasis added) (quoting Restatement (Second) of Agency § 228 (Am. Law Inst. 1958)).

         ¶13. Mar-Jac argues that Carter was not acting in the course and scope of his employment at the time of the accident. Mar-Jac asserts that Carter's act of transporting Wilks and Love was not "of the kind" that he was employed to perform, was not done in the "authorized time and space limits," and was not "to serve" Mar-Jac. Marter, 514 So.2d at 1242-43 (quoting Restatement (Second) of Agency § 228 (Am. Law Inst. 1958)).

         ¶14. Based on the evidence presented, one conversation between Carter and Leo Barnes, a Mar-Jac supervisor, forms the basis of the Plaintiffs' claims against Mar-Jac. The Plaintiffs assert that Mar-Jac, through Barnes, instructed Carter to provide transportation to Wilks and Love as part of his job duties, relying on isolated portions of Carter's and Barnes's testimony to support their claims. However, taken as a whole, the testimony is clear that Carter was not required to drive Wilks and Love to work. Carter repeatedly testified that he was not expected to bring the women to work as part of his job responsibilities at Mar-Jac. During the deposition taken in Carter's workers' compensation case, Carter testified about his conversation with Barnes as follows:

Q. Had anybody at Mar-Jac asked you to bring those two ladies to work?
A. Yes. Leo - Leo did.
Q. Leo?
A. Leo. Leo Barnes.
Q. Tell me about that conversation.
A. Well, I asked did he have an opening. He said, Yes. And I said - he said, Who you got? I said, I got two young ladies that need a job. He said, Will they work? I said, Yeah, they'll work. I said, I'm gonna bring 'em to work. Bring 'em up - he said, Bring 'em up here, and I'll talk to them, and I'll hire them.
Q. Did he tell you to bring the ladies to work?
A. Yes.
Q. Were you paid to bring the ladies -
A. No.
. . . .
Q. Did Mar-Jac pay you for bringing them to work?
A. No. They didn't - I paid my own self to go in to work. No. Didn't nobody pay me nothing.
A. Did they pay your gas for bringing them to work?
A. Paid - no. I paid my own gas.
. . . .
Q. All right. You just told me what - part of what Leo Barnes said. Did he say anything else?
A. No. That's all - all he said to me. Bring them up there, he'll hire them. He said, Will they work? I said, Yeah, they'll work. Just bring them up there and hire - interview them, and hire them. And that's what I done.
. . . .
Q. And nobody had told you that you had to bring them as a condition of your employment?
A. No.
Q. No -
A. He didn't - he didn't tell me to bring them. I asked him if he'd hire them, he said, Yes. Bring them down. Then he asked me will they work? I said, Yes, they'll work. And I brought them to work.
. . . .
Q. Did Mr. Barnes or anyone else say that you had to provide transportation to these ladies -
A. No.
Q. Nobody said that, did they?
A. No. All he done, just told me to bring -
. . . .

(Emphasis added.)

         ¶15. Carter again testified about this same conversation during the deposition taken in this case. Carter testified as follows:

Q. Your testimony has been that somebody, Leo you said, asked you to bring Mr. And Ms. Wilks [sic] to Mar-Jac. Is that right?
A. Yes.
. . . ...

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