OF JUDGMENT: 10/12/2017
COVINGTON COUNTY CIRCUIT COURT HON. EDDIE H. BOWEN JUDGE
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
RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
RANDOLPH, CHIEF JUSTICE
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
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.
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.
The only issue before the Court is whether the trial court
erred in denying Mar-Jac's motion for summary judgment
"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)).
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).
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
(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)).
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)).
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
Q. Had anybody at Mar-Jac asked you to bring those two ladies
A. Yes. Leo - Leo did.
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?
Q. Were you paid to bring the ladies -
. . . .
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?
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 -
Q. Nobody said that, did they?
A. No. All he done, just told me to bring -
. . . .
Carter again testified about this same conversation during
the deposition taken in this case. Carter testified as
Q. Your testimony has been that somebody, Leo you said, asked
you to bring Mr. And Ms. Wilks [sic] to Mar-Jac. Is that
. . . ...