IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI. No 2013-CA COA. DAVID McKEAN, FRANCESCO MEDINA, DONALD ARRINGTON and WAYNE ROBERTSON

Transcription

1 E-Filed Document Sep :40: CA COA Pages: 21 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI No 2013-CA COA DAVID McKEAN, FRANCESCO MEDINA, DONALD ARRINGTON and WAYNE ROBERTSON APPELLANTS V. YATES ENGINEERING CORPORATION, ANDERSON REGIONAL MEDICAL CENTER f/k/a JEFF ANDERSON REGIONAL MEDICAL CENTER and FOIL WYATT ARCHITECTS & PLANNERS, PLLC formerly d/b/a WYATT FOIL ARCHITECTS & PLANNERS, PA and/or FOIL WYATT ARCHITECTS & PLANNERS, PA APPELLEES APPELLANTS MOTION FOR REHEARING ON APPEAL FROM THE CIRCUIT COURT OF LAUDERDALE COUNTY, MISSISSIPPI, CAUSE NO. 10-CV-133(W) Ken R. Adcock, MSB #1150 Mark D. Morrison, MSB #9005 William C. Ivison, MSB # ADCOCK & MORRISON, PLLC Post Office Box 3308 Ridgeland, Mississippi Telephone: (601) Facsimile: (601) ATTORNEYS FOR APPELLANTS

2 TABLE OF CONTENTS Table of Contents i Table of Authorities ii Introduction Argument I. YATES ENGINEERING A. Duty of Professionalism B. Duty to Inspect II. ANDERSON REGIONAL MEDICAL CENTER A. Owner s Duty to Warn or Protect B. Agency Relationship / Vicarious Liability III. IV. FOIL WYATT LIABILITY THROUGH CONDUCT UNDER THE DUTY TO SUPERVISE AND PROVIDE A SAFE WORKING ENVIRONMENT MEDINA S CLAIMS ARE NOT SUBJECT TO DISMISSAL BECAUSE OF HIS ALLEGED STATUS AS AN ILLEGAL ALIEN Conclusion Certificate of Service i

3 TABLE OF AUTHORITIES CASES Coho Resources Inc. v. McCarthy, 829 So. 2d 1 (Miss. 2002) Doe ex rel. Doe v. Wright Sec. Servs. Inc., 950 So. 2d 1076 (Miss. Ct. App. 2007) Hobbs v. Int'l Paper Co., 203 So. 2d 488 (Miss. 1967) Hobson v. Waggoner Eng'g, Inc., 878 So. 2d 68 (Miss. Ct. App. 2003) , 14 Index Drilling Co. v. Williams, 137 So. 2d 525 (Miss. 1962) J & J Timber Co. v. Broome, 932 So. 2d 1 (Miss. 2006) Jones v. James Reeves Contractors Inc., 701 So. 2d 774 (Miss. 1997) , 14 Magee v. Transcon. Gas Pipe Line Corp., 551 So. 2d 182 (Miss. 1989) , 10 McDaniel v. O'Reilly Auto. Stores, Inc., No. 3:14CV610 DPJ-FKB, 2015 WL (S.D. Miss. Aug. 24, 2015) McSwain v. Sys. Entergy Resources Inc., 97 So. 3d 102 (Miss. Ct. App. 2012) Powell v. Masonite Corp., 214 So. 2d 469, 470 (Miss. 1968) Richmond v. Benchmark Const. Corp., 692 So. 2d 60 (Miss. 1997) Thornton v. W.E. Blain & Sons, Inc., 878 So. 2d 1082 (Miss. Ct. App. 2004) STATUTES MISS. CODE ANN RULES MISS. R. APP. P , 4 ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No 2013-CA COA DAVID McKEAN, FRANCESCO MEDINA, DONALD ARRINGTON and WAYNE ROBERTSON APPELLANTS V. YATES ENGINEERING CORPORATION, ANDERSON REGIONAL MEDICAL CENTER f/k/a JEFF ANDERSON REGIONAL MEDICAL CENTER and FOIL WYATT ARCHITECTS & PLANNERS, PLLC formerly d/b/a WYATT FOIL ARCHITECTS & PLANNERS, PA and/or FOIL WYATT ARCHITECTS & PLANNERS, PA APPELLEES APPELLANTS MOTION FOR REHEARING COME NOW, Appellants, David McKean, et al., by and through counsel, pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure, and file this, their Motion for Rehearing as follows: INTRODUCTION In the underlying trial court, the Circuit Court of Lauderdale County, Mississippi, granted several Motions for Summary Judgment and dismissed Appellees, Foil Wyatt Architects & Planners, PLLC s ( Foil Wyatt ) on November 27, 2012, Yates Engineering Corporation ( Yates Engineering ) on August 28, 2013, and Anderson Regional Medical Center ( ARMC ) on October 21, 2013, and also dismissed the claims of Appellant, Francesco Medina ( Medina ) on February 20, On September 1, 2015, this Court issued its majority opinion in this matter, in which this Court affirmed the foregoing Appellees Motions for Summary Judgment, and failed to addressed the dismissal of Appellant, Medina s claims as being moot. All Appellants were injured when the support system for the elevated slab failed when concreted was poured due to defective design and 1

5 construction of the scaffolding or support system. As to Yates Engineering, this Court s majority held that Appellants claims under the duty of professionalism failed for lack of causation, because it found that the scaffolding designs were not used by the contractor, Yates Construction, for actual construction and as such, did not cause the Appellants injuries. See McKean v. Yates Engineering Corp., No CA COA ( 23) (Miss. Ct. App. 2015) (hereinafter McKean ). However, Appellants respectfully submit that this Court overlooked or failed to consider genuine issues of material facts concerning whether the absence of Yates Engineering s faulty scaffolding designs was a proximate cause of the collapse. This Court s majority also held that Yates Engineering did not have a duty to inspect the scaffolding and formwork because the conduct of Yates Engineering did not support that it undertook such a duty. Id. ( 28). Contrary to this learned Court s decision, Appellants would submit that Yates Engineering s conduct did, in fact, show that such a duty was undertaken, and whether this duty was breached is factually disputed and should be decided by a jury. As to ARMC, this Court s majority found that it did not have a duty to warn or protect because the facts in this case was insufficient to show that ARMC maintained any control over the work out of which the injuries arose. Id. ( 31-32). Appellants respectfully disagree due to the existence of several material facts from which a jury could find that ARMC did, in fact, maintain control over the work. This Court s majority further held that ARMC could not be vicariously liable under an agency theory because the Appellants claims against ARMC s agent, Yates Construction, were previously resolved. Id. ( 33). It is the position of Appellants that this Court s majority overlooked Mississippi case precedent establishing that property owners, such as ARMC, are not the type of statutory 2

6 employers capable of enjoying the benefits of the Mississippi Workers Compensation Act, and as such, are unable to assume immunity from this lawsuit. As to Foil Wyatt, the majority opinion held that the B141 Agreement and the Contract Documents did not impart to Foil Wyatt a contractual duty to inspect the scaffolding that supported the concrete forms, which the architect admitted was his responsibility. Id. ( 37-38). The majority ruling also found that Foil Wyatt s extra-contractual duty to supervise could not be established through its conduct, because the facts did not show that Foil Wyatt actually supervised or controlled the construction of the scaffolding supporting the architect s formwork for the concrete. Id. ( 40-41). Howev er, Appellants would respectfully submit that the majority failed to consider or give sufficient weight to certain material facts that demonstrate that Foil Wyatt undertook or should have undertaken the duty to supervise. Finally, the majority opinion did not address whether Appellant, Medina s claims were properly dismissed because its foregoing dispositive rulings rendered this issue moot. Id. ( 42). Respectfully, due to particular facts and/or law being overlooked or misapprehended, as provided herein, this issue is no longer moot and, pursuant to case precedent, the trial court s ruling dismissing Medina s claims should be reversed. Accordingly, Appellants urge this Court to reconsider the material facts in this case and of Mississippi case law concerning the various theories of liability stated herein, and reverse its opinion, thereby reversing the lower court s rulings dismissing the Appellees and claims at issue herein, and remanding this case to proceed to a jury trial. 3

7 ARGUMENT As this Court is aware, M.R.A.P. 40(a) provides that it is appropriate to seek a rehearing of a matter in which the movant believes that the Court has either overlooked or misapprehended a particular point of law and/or fact. Appellants respectfully submit that the stated criteria is present in this case, and thus this Motion for Rehearing is respectfully filed. The following aspects of this case and of the opinion are provided for this Court s reconsideration: I. YATES ENGINEERING. In this Court s majority opinion, the Court upheld the dismissal of Yates Engineering because the duty of professionalism failed for lack of causation and because the duty to inspect was not undertaken by Y ates Engineering. McKean ( 23, 28). With all due respect, it is the position of the Appellants that this Court overlooked issues of material facts from which a jury could find Yates Engineering liable for the subject collapse. A. Duty of Professionalism. This Court correctly states in its majority opinion that Yates Engineering had a duty of professionalism to draft adequate scaffolding designs and specifications. Mississippi law imposes on design professionals, including architects and engineers, the duty to exercise ordinary professional skill and diligence. Hobson v. Waggoner Eng'g, Inc., 878 So. 2d 68, 77 (Miss. Ct. App. 2003) (citations omitted). In this case, Yates Engineering drew the plans and specifications for the collapsed scaffolding, and it was their duty to ensure that the design was adequate and being followed, and that the scaffolding was reasonably safe for use. This Court also correctly observed that Yates Engineering s design drawings were 4

8 fundamentally flawed because it included plans for 4"x4" posts at incorrect lengths that were too short, and should have included plans for tiered or stacked posts that were spliced or connected properly on top of each other. The majority also observed that Yates Construction ignored the design s bracing specification calling for 2"x4" diagonal and horizontal bracings, and instead used 1"x4" bracings in constructing the as-built scaffolding. Plaintiff s expert engineer, Dr. Sinno, opines that the incorrect splicing method and lack of adequate bracings in the as-built scaffolding resulted in the framing of the support sy stem to be unstable and caused the formwork to collapse. Yet, this Court s majority held that any breach by Yates Engineering of their duty of professionalism lacks causation, because the scaffolding designs submitted by Yates Engineering were not used for constructing the as-built scaffolding, and as such, the inadequate designs did not cause the collapse. McKean ( 23). In other words, it is acceptable that the plans were flawed and defective. However, Appellants respectfully submit that this Court failed to consider whether causation could be found had Yates Engineering not submitted flawed and inadequate design drawings which Yates Construction would follow to safely construct the scaffolding. In other words, but for Yates Engineering submitting flawed design drawings, the scaffolding would have been constructed safely pursuant to adequate design drawings for splicing the tiered 4"x4" posts and for proper bracing specifications, and the collapse would not have occurred. As to the foregoing theory of causation overlooked by this Court, there are genuine issues of material fact regarding whether or not Yates Construction would have followed adequate plans to construct proper tiered posts and scaffolding that could have prevented 5

9 the collapse. In this regard, there are genuine issues of material fact regarding the amount of construction of the scaffolding that was completed before the design drawings were received by Yates Construction. Indeed, the facts are unclear as to how much of the scaffolding had been built at the time that Yates Construction received the requested design drawings from Ted Pope, Yates Engineering s engineer. However, it is undisputed that the scaffolding was not complete when Pope visited the site and delivered the plans. After being requested to design the construction of the scaffolding, Pope visited the site and found that Yates Construction had already began constructing the scaffold, and stated that he observed only a partially-constructed scaffolding being built. Pope testified that he did not know whether Yates Construction erected the rest of the scaffolding before receiving his drawings that were requested by Dan Perry, Yates Construction s general superintendent pursuant to Yates construction manual. Further, the testimony shows that proper plans and specifications were important to building the scaffolding even after initial construction. Ted Pope testified I just don t see how you can erect [the scaffolding] without plans. After all, Yates Construction requested Yates Engineering to provide its design plans and specifications for the scaffold, and Yates Engineering is owned by Yates Construction and both are in the same building. Accordingly, there are genuine issues of material facts concerning whether adequate design drawings by Yates Engineering could have been submitted and followed by Yates Construction, even after initial construction, that would have provided correct specifications that would have prevented the collapse. This causation issue should be submitted to a jury, and as such summary judgment is not appropriate in this respect. 6

10 B. Duty to Inspect. This Court s majority held that Yates Engineering did not undertake a duty to inspect the scaffolding and formwork. McKean ( 28). Contrary to this learned Court, Appellants would submit that Yates Engineering s conduct did, in fact, show that such a duty was undertaken, and whether this duty was breached is factually disputed and should be decided by a jury. Unless the [engineer] has undertaken by conduct or contract to supervise a construction project, he is under no duty to notify or warn workers or employees of the contractor or subcontractor of hazardous conditions on the construction site. Jones v. James Reeves Contractors Inc., 701 So. 2d 774, 786 (Miss. 1997). In Mississippi, a duty exists where a party assumes a duty. Doe ex rel. Doe v. Wright Sec. Servs. Inc., 950 So. 2d 1076, 1080 ( 12) (Miss. Ct. App. 2007). The issue, thus, is whether Yates Engineering assumed a duty to inspect or supervise the construction of the scaffolding by its conduct. In this case, the facts demonstrate that Yates Engineering undertook the duty by its conduct to inspect the scaffolding before the collapse to ensure that it was reasonably safe. Dan Perry, Yates Construction s general superintendent, testified that he saw Ted Pope, Y ates Engineering s engineer, about a week before the collapse a block away from the collapse area at the construction-site office. Perry was under the impression that Pope performed an inspection of the scaffolding and formwork in accordance with the Y ates Safety Manual, and gave OSHA a written statement stating that the erected scaffolding was inspected by a licensed engineer qualified in structural design before the concrete was poured. Notably, this inspection was required by Yates Construction s written construction manual. Further, Pope could not recall whether he inspected the scaffolding during his 7

11 initial site visit, but stated that the construction had begun, not that it was completed. Accordingly, these facts are sufficient to infer that Yates Engineering undertook a duty to inspect and represented to OSHA that the support system was inspected by a licensed structural engineer before the concrete was poured. Respectfully, there are genuine issues of material facts that should be submitted to a jury to decide whether liability should be placed upon Yates Engineering for breaching their duty to inspect. Specifically, there are genuine issues of material fact regarding whether Pope's initial site visit was an inspection in compliance with the Yates Safety Manual, and whether Pope conducted additional inspections thereafter when he was at the construction-site office before concrete was poured (as represented by Yates Construction to OSHA). Further, with all due respect, this Court s majority incorrectly relies on Dan Perry s testimony, after being pressed further, conceding his original answer on a prior OSHA form stating Pope had inspected the scaffolding. It should be noted by this Court that Perry s deposition testimony was taken after Yates Construction had been dismissed as the statutory employer. It is within the province of the jury to decide whether the representations made on the prior OSHA form hold more weight over the subsequent and contradictory representations of Perry that Yates Construction did not have an engineer inspect the scaffolding (given by Perry after Yates Construction had been dismissed from this lawsuit). Due to the foregoing issues of material fact concerning whether Yates Engineering is liable for the collapse, the summary judgment should be found to have been improperly granted. 8

12 II. ANDERSON REGIONAL MEDICAL CENTER. With all due respect, the next issue that Appellants submit to be in error is this Court s affirming the lower court s dismissal of ARMC because the facts demonstrate that ARMC maintained control over the scaffolding work, and Mississippi case law holds that ARMC can be held vicariously liable under a principal/agency theory without assuming the tort immunity solely enjoyed by Yates Construction. A. Owner s Duty to Warn or Protect. As to whether ARMC undertook a duty to warn or protect, this Court s majority, respectfully, incorrectly found that ARMC did not have such a duty because it relied on certain facts from which it could conclude that ARMC did not maintain any control over the work out of which the injuries arose. McKean ( 31-32). However, Appellants respectfully submit that this Court overlooked or failed to consider several material facts that, when taken as a whole, establish that ARMC did, in fact, maintain control over the work. As an exception to the general rule protecting business owners, an employer is under a duty to provide an independent contractor with a reasonably safe working environment or give warning of danger. McSwain v. Sys. Entergy Resources Inc., 97 So. 3d 102, 108 ( 19) (Miss. Ct. App. 2012). While the general rule is that the owner of the premises does not have a duty to protect an independent contractor against risks arising from or intimately connected with the work, there is an exception where the owner maintains substantial de jure or de facto control over the work to be performed. Coho Resources Inc. v. McCarthy, 829 So. 2d 1, 13 ( 30) (Miss. 2002). What is critical is whether the project owner maintains any right of control over the performance of that aspect of the work that has given rise to the injury. Magee v. Transcon. Gas Pipe Line 9

13 Corp., 551 So. 2d 182, 186 (Miss. 1989). Again, the issue in this regard is whether the conduct of the parties establish control. With all due respect, this Court s majority opinion overlooks or fails to give proper weight to several key facts which show that ARMC had a right of control over the construction being performed. According to the testimony of Denton Farr, ARMC s V.P. of Operations, ARMC had the ultimate authority and ability control the work on its premises, which importantly includes stopping work and construction efforts on the Medical Towers III project for safety or quality reasons. The only limitation on this right to control the work was an understanding that ARMC gain permission or notify Yates Construction prior to entering the work zone. Contrary to this Court s reasoning, this unwritten formality is not sufficient to determine that ARMC surrendered the premises to Yates Construction. In fact, Yates Construction had office space within the ARMC premises during the Medical Towers III construction project. Although this was a thirty million dollar ($30,000,000.00) project, ARMC had no written contract with Yates Construction wherein control of the premises and work was contractually surrendered and assigned to Yates Construction, and therefore did not contract away any duties of safe construction and protection in the premises. Further, several other facts show that ARMC maintained an ultimate right to control, as opposed to periodic control, over the construction and scaffolding work giving rise to the injuries at issue. For instance, there were ARMC documents setting a time line for completion of the project, and an ARMC representative presided and participated at monthly progress meetings for its construction. Also, Denton Farr would be regularly contacted by Yates Construction outside of these progress meetings for Farr s input in order 10

14 to address certain matters about the construction project. Accordingly, when considering the facts as a whole, ARMC held the right for de facto control over the work to be performed, and as such, undertook the duty to warn or protect against the collapse (which were not assigned to Yates Construction by contract). B. Agency Relationship / Vicarious Liability. Respectfully, this Court s majority incorrectly found that ARMC could not be vicariously liable under an agency theory because the Appellants claims against ARMC s agent, Yates Construction, were previously resolved because it was a statutory employer under the Mississippi Workers Compensation Act. McKean ( 33). However, it is the position of Appellants that this Court s majority overlooked Mississippi case law establishing that ARMC, as the property owner, is not a statutory employer that is capable of enjoying the benefits of the Mississippi Workers Compensation Act. This is especially true in light of the handshake agreement without a contract between ARMC and Yates Construction. An agency relationship may be shown by circumstantial evidence. Powell v. Masonite Corp., 214 So. 2d 469, 470 (Miss. 1968) (citing Hobbs v. Int'l Paper Co., 203 So. 2d 488 (Miss. 1967)). [T]he long continued employment of an entity that may be terminated at will is a strong indicator that the entity is no longer an independent contractor, but has assumed the status of an employee[.] Id. In this case, ARMC (as the principal) had a significantly lengthy course of business with Yates Construction (as the agent). Denton Farr, ARMC s V.P. of Operations, stated that Yates Construction had a physical presence at ARMC for over twenty (20) years. As such, there are genuine issues of material fact as to whether an agency relationship existed. 11

15 Contrary to this Court s reasoning, the fact that Yates Construction s liability had been cut off because it was a statutory employer under the Mississippi Workers Compensation Act (hereinafter the Act ) does not allow ARMC (as the principal) to also be cut off under the Act. This Court fails to consider Mississippi case law holding that ARMC is not the type of contractor or statutory employer contemplated by the Act. Where defendant property owners had no responsibility under the Act, they enjoy none of the benefits of the Act and may not assume the position of the contractor to gain tort immunity. Richmond v. Benchmark Const. Corp., 692 So. 2d 60, 63 (Miss. 1997) (citing cases). Tort immunity given to statutory employers under the Act does not preclude the injured party from bringing a negligence action against any other party. Thornton v. W.E. Blain & Sons, Inc., 878 So. 2d 1082, 1084 (Miss. Ct. App. 2004) (citing MISS. CODE ANN ). As shown by the foregoing precedent, Appellants respectfully submit that the correct interpretation of Mississippi law is that tort immunity under the Act for a statutory employer is not imputed upon, enjoyed or assumed by any other entity that is not the actual entity that is the statutory employer. 1 Importantly, the case relied upon by this Court s majority to extinguish vicarious 1 The Mississippi Supreme Court has rejected a similar argument to expand tort immunity to entities that are closely associated with, but distinct from, the actual statutory employer under the Act. In Index Drilling Co. v. Williams, 137 So. 2d 525 (Miss. 1962), the statutory employer of the plaintiff was Production, Inc., but the employee brought a negligence action for workplace injuries against Index Drilling, another company owned by the same owners of Production, Inc. Id., at 526. In an attempt to gain immunity from the lawsuit, Index Drilling made a reverse piercing of the corporate veil argument by claiming that it was not a third party under the Act. Id., at 528. Index Drilling argued that it was instead a part of a joint enterprise with Production, Inc., who collectively was the single employing entity and the statutory employer. Id. The Court rejected this argument, finding that the only statutory employer entitled to immunity was Production, Inc., and held that its sister corporation/alter ego, Index Drilling could not enjoy tort immunity under the Act despite their legal relationship. Id. The Court stated that [t]he limitation of liability and immunity from tort liability applies only to an employer[,] and its relationship and position with other entities does not warrant disregard of their separate corporate entities, particularly in view of the provisions of the workers' compensation act. Id. 12

16 liability against ARMC (as the principal), J & J Timber Co. v. Broome, 932 So. 2d 1 (Miss. 2006), is materially distinguishable from this case. In J & J Timber, vicarious liability was precluded against an employer in a negligence action based solely on the negligence of the employee, where the employee and plaintiff had previously entered into a settlement and release with an indemnity provision, which would ultimately lead to damages being unrecovered due to indemnification. In far contradiction to J & J Timber, this case concerns workers compensation benefits being paid which precludes liability by statute, not by a negotiated and voluntary settlement agreement and release, against a specific statutory employer. Mississippi cases have generally limited the application of J & J Timber to factual scenarios involving a settlement and release. The restricted holding in J & J Timber was recently analyzed by the Southern District of Mississippi, which declined to extend its progeny to voluntary dismissals without prejudice. McDaniel v. O'Reilly Auto. Stores, Inc., No. 3:14CV610 DPJ-FKB, 2015 WL (S.D. Miss. Aug. 24, 2015). The McDaniel decision observed that [t]he release was central to the J & J Timber analysis, and noted that it did not appear that a Mississippi court has ever applied J & J Timber in the absence of a release. Id., 2015 WL , at *2. Likewise, the court found that the State would [not] apply J & J Timber to a standard Rule 41(a)(1)(A)(I) dismissal without prejudice. Id. Accordingly, Mississippi law allows the Appellants to recover under an agency theory against any other party including ARMC in light of the limiting provisions of the Act which restricts tort immunity solely with the statutory employer, Yates Construction. Respectfully, applying J & J Timber to this particular situation to cut off vicarious liability and allow ARMC statutory immunity (without having entered into any contract or bearing 13

17 any responsibility over the workers compensation) would be an unprecedented expansion of its reach that is contrary to Mississippi law. III. FOIL WYATT LIABILITY THROUGH CONDUCT UNDER THE DUTY TO SUPERVISE AND PROVIDE A SAFE WORKING ENVIRONMENT. Respectfully, this Court s majority ruling found that Foil Wyatt, the architect, did not assume a duty by its conduct to supervise and provide a safe working environment, and determined that Foil Wyatt did not supervise or control the construction of the scaffolding. McKean ( 40-41). However, Appellants would respectfully submit that the majority failed to consider or overlooked several facts that demonstrate that Foil Wyatt, the architectural firm that provided specifications for the formwork and rebar, also undertook the duty to supervise and inspect the support mechanism for the formwork, the scaffolding, as the formwork for concrete can not function without an adequate support system. As stated previously [u]nless the [architect] has undertaken by conduct or contract to supervise a construction project, he is under no duty to notify or warn workers or employees of the contractor or subcontractor of hazardous conditions on the construction site. Jones, 701 So.2d at 786. However, pursuant to the contract, Foil Wyatt had the right to stop work and have the work redone if the construction appeared unsafe or visibly flawed. Further, the conduct of Foil Wyatt may also establish this duty, and its determination is factually sensitive. 2 2 The following factors are considered to determine whether the conduct of an architect/engineer gives rise to liability: (1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) assumption of responsibilities for safety practices; (6) authority to issue change orders; and (7) the right to stop the work. Hobson, 878 So. 2d at 72 ( 15). 14

18 In this case, Foil Wyatt s conduct should have been found to be sufficient to establish a duty to inspect and supervise, and summary judgment should have been precluded. Skip Wyatt, the Architect for Foil Wyatt, testified that he regularly visited the construction site (about once a week), participated in project meetings, and would walk about the construction site to note the completion of work to certify payments to Yates Construction. Further, Foil Wyatt had the right to reject work and could request that certain work (such as concrete work) be redone that did not conform to the specifications and contract documents or appeared unsafe. If analogizing the formwork as a table-top, and the scaffolding as the legs of a table, it is impossible for the whole table to work without adequate legs and support. It make sense that any inspections of the formwork (table-top) by Foil Wyatt to ensure that the concrete was properly poured would necessarily include an inspection of the underlying scaffolding (table legs and support). Just a few days before the concrete was poured, Foil Wyatt rode a bucket from the ground to the second (2 nd ) floor to inspect the formwork, and had to have seen the obviously defective and unsafe scaffolding, but did nothing. Testimony given by Telly Walsworth, owner of Spectrum II, established that the subject scaffolding was obviously poorly done and visibly unsafe when he arrived at the job on the day of the accident, and was told by Yates Construction to do his job. It was easy to observe that the homemade scaffolding readily appeared inadequate to support the subsequent concrete pour, during which the collapse occurred, and should have been easily detected by the skilled architect who should have stopped work and taken immediate action. Accordingly, there are sufficient facts to determine that Foil Wyatt undertook a duty to supervise and provide a safe working place, and there exists genuine issues of material 15

19 fact as to whether the duty was breached. As such, summary judgment was, respectfully, incorrectly affirmed by this Court. IV. MEDINA S CLAIMS ARE NOT SUBJECT TO DISMISSAL BECAUSE OF HIS ALLEGED STATUS AS AN ILLEGAL ALIEN. Assuming, arguendo, that this Court reconsiders and reverses its majority opinion with respect to the foregoing Appellees, then the issue concerning whether or not the lower court erred by dismissing Appellant, Medina s claims for his alleged illegal immigrant status no longer becomes moot. If so, then for the sake of brevity, Appellants hereby adopt and incorporate the reasons given in this Court s dissenting opinion that it was error to dismiss Medina s personal-injury claims due to his alleged illegal-immigrant status. See McKean ( 69-72) (James J., Dissenting). CONCLUSION As a result of the foregoing factual disputes and legal precedent, Appellants respectfully ask and move this Court to correct the errors in its initial majority opinion. It would seem that the points referred to herein were not considered by this Court, or if considered, they were misapprehended. Just because perhaps the most guilty party, Yates Construction, has exited this case due to statutory immunity should not allow the other guilty parties to benefit and escape liability by deflecting sole responsibility on Yates Construction. There was obvious fault and gross neglect here by professionals that almost caused the deaths of numerous men, for which this Court must hold those, in the best place with the most knowledge to prevent harm, fully accountable. Thus, with sincere respect and regard, Appellants move this Court to rectify these errors and grant the relief requested herein. 16

20 RESPECTFULLY SUBMITTED, this the 29 th day of September, 2015 DAVID McKEAN, et al., Appellants OF COUNSEL: ADCOCK & MORRISON, PLLC Post Office Box 3308 Ridgeland, Mississippi Telephone: (601) Facsimile: (601) EUGENE C. TULLOS, ESQ. P.O. Box 74 Raleigh, MS By: /s/ Ken R. Adcock KEN R. ADCOCK (MSB #1150) 17

21 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing with the Clerk of the Court using the MEC system which sent notification of such filing to the following: James D. Holland, Esq. jholland@pagekruger.com P.O. Box 1163 Jackson, MS Richard O. Burson, Esq. Burson@gbeolaw.com P.O. Box 1289 Laurel, MS Robert B. Ireland, III, Esq. rireland@watkinseager.com P.O. Box 650 Jackson, MS Douglas Bagwell, Esq. dbagwell@carrallison.com Seaway Rd., Suite 2001 Gulfport, MS and I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Hon. Lester F. Williamson, Jr. Circuit Court Judge P.O. Box 96 Meridian, MS SO CERTIFIED, this the 29 th day of September, /s/ Ken R. Adcock KEN R. ADCOCK 18