IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI NO CA-00215

Transcription

1 E-Filed Document Jun :51: CA Pages: 24 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI NO CA CONNIE HAWKINS, Individually and on Behalf of the WRONGFUL DEATH BENEFICIARIES of GEORGE LEITH HAWKINS, III, DECEASED APPELLANT v. HECK YEA QUARTER HORSES, LLC WALLACE HECK ind. DBA HECK YEA QUARTER HORSES, LLC, BRUCE HORN, and JOHN DOES 1-5 APPELLEES ON APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI BRIEF OF THE APPELLANT ORAL ARGUMENT REQUESTED JOHN H. STEVENS (MSB No. 8528) GRENFELL & STEVENS 1535 Lelia Drive (39216) P. O. Box Jackson, MS Telephone: (601) Facsimile: (601) Attorney of record for Appellant

2 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI NO CA CONNIE HAWKINS, Individually and on Behalf of the WRONGFUL DEATH BENEFICIARIES of GEORGE LEITH HAWKINS, III, DECEASED APPELLANT V. HECK YEA QUARTER HORSES, LLC WALLACE HECK ind. DBA HECK YEA QUARTER HORSES, LLC, BRUCE HORN, and JOHN DOES 1-5 APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualifications or recusal. 1. Connie Hawkins, Appellant; 2. John Hunter Stevens, Esq., Grenfell & Stevens, Counsel for Appellant; 3. Wallace Heck d/b/a Heck Yea Quarter Horses, LLC, Appellee; 4. Bruce Horn, Appellee; 5. Robert P. Thompson, Esq., Copeland Cook Taylor & Bush, PA, Counsel for Appellee; 6. Paul Blake, Esq., Copeland Cook Taylor & Bush, PA, Counsel for Appellee; 7. The Honorable Jeff Weill, Sr., Circuit Court Judge; SO CERTIFIED this, the 13 th day of June, John H. Stevens, Esq. JOHN H. STEVENS (MSB No. 8528) i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES...1 STATEMENT OF THE CASE...2 SUMMARY OF THE ARGUMENT...5 STANDARD OF REVIEW...7 ARGUMENT...8 CONCLUSION...17 CERTIFICATE OF SERVICE...19 ii

4 FEDERAL CASES TABLE OF AUTHORITIES PAGE Glenn v. Imperial Palace of Mississippi, L.L.C., 575 F. App x. 475 (5th Cir. 2014) STATE CASES American Nat. Ins. Co. v. Hogue, 749 So.2d 1254 (Miss. Ct. App. 2000) Copiah Cty. v. Oliver, 51 So.3d 205 (Miss. 2011)... 7 Doe v. Wright Sec. Services., Inc., 950 So.2d 1076 (Miss. Ct. App. 2007) Donald v. Amoco Production Co., 735 So.2d 161 (Miss. 1999) Estate of White v. Rainbow Casino-Vicksburg Partnership, L.P., 910 So.2d 713, 719 (Miss. Ct. App. 2005) Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413 (Miss. 1988)... 10, 11, 13 Jamison v. Barnes, 8 So.3d 238 (Miss. Ct. App2008) Karpinski v. Am. Nat l Ins., 109 So.3d 84 (Miss. 2013)... 7 Ladner v. Holleman, 90 So.3d 655 (Miss. Ct. App. 2012)... 8, 9, 14, 15 O Gwin v. Isle of Capri Natchez, Inc., 139 So.3d 783 (Miss. Ct. App. 2014)... 10, 11 One S., Inc. v. Hollowell, 963 So.2d 1156 (Miss. 2007)... 7 Rein v. Benchmark Constr. Co., 865 So.2d 1134 (Miss. 2004) iii

5 Spotlight Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364 (Miss. 2008)... 10, 11 Summers v. St. Andrew s Episcopal Sch., 759 So.2d 1203, 1215 (Miss. 2000) STATE STATUTES Miss. Code Ann (1) (Rev. 2008)... 8, 9 STATE RULES Mississippi Rules Civil Procedure 56(c)... 7 OTHER AUTHORITIES Black s Law Dictionary, 138 (4th ed. 2011) Restatement (Second) of Torts 314A (1965).... 9, 10, 11 iv

6 STATEMENT OF THE ISSUES I. Is the Good Samaritans statute dispositive when the Supreme Court of Mississippi has consistently held a possessor of land who holds it open to the public is under a duty to project invitees from unreasonable risk of harm and to give them first aid after the possessor of the land knows or has reason to know of the invitee s distress? II. Whether the Circuit Court erred in granting Appellees Motion for Summary Judgment when there was sufficient evidence to establish a genuine issue of material fact as to Appellees breach of duty of care and failure to provide reasonable medical assistance to George Hawkins, Decedent. 1

7 STATEMENT OF THE CASE A. Nature of the Case This appeal proceeds from the First Judicial District Court of Hinds County, Mississippi where the Court entered an Order granting Appellees, Heck Yea Quarter Horses, LLC, Wallace Heck ind., d/b/a Heck Yea Quarter Horses, LLC, and Bruce Horn, Motion for Summary Judgment and dismissing Appellant, Connie Hawkins claims, brought on behalf of the wrongful death beneficiaries of George Leith Hawkins, III, deceased, with prejudice. This Court is being asked to reverse the Circuit Court s Order because Mr. Hawkins was an invitee on the premises of Appellees and therefore was owed a duty of care. Further, Mrs. Hawkins has provided ample evidence and testimony that is more than sufficient to establish the existence of a genuine issue of material fact. Moreover, Mr. Hawkins mental competency in refusing medical assistance after suffering an admitted severe injury is contested and pivotal in the determination of whether or not Appellees breached the duty to render aid and whether such negligence contributed to the death of Mr. Hawkins. B. Course of Proceedings and Disposition in the Court Below On May 5, 2014, the Complaint was filed in the First Judicial District of Hinds County, Mississippi. (R. at 6-11). On August 14, 2015, Appellees filed a Motion for Summary Judgment arguing Connie Hawkins testimony regarding the incident was double hearsay and neither Hawkins nor any other witness s testimony was admissible under any hearsay exception. (R. at 41). The Appellees argued there was no evidence to support the allegations of negligence to create a genuine issue of material fact concerning Appellees duties and whether or not there was a breach of said duties. (R. at 41). 2

8 The Circuit Court entered an Order granting Appellees Motion for Summary Judgment and dismissed Plaintiff s claims with prejudice on January 1, (R. at 176). The Circuit Court reasoned that Mr. Hawkins alleged refusal to Appellees offers of emergency care and Hawkins delay in calling an ambulance after she discovered George s state was not enough evidence to support a genuine issue of material fact. (R. at ). Plaintiff timely filed her Notice of Appeal on February 9, (R. at 179). C. Statement of the Facts On or about June 19, 2013, George Hawkins was hired by Bruce Horn as an employee of Heck Yea Quarter Horses, LLC to perform work on the farm which included pressure washing a fence that is owned by and controlled by the Defendant. (R. at 8). The first day that George Hawkins, who was 61 years of age at the time, came to perform work on the property was the first day that the farm manager, Bruce Horn, or any other individual with the company had met Mr. Hawkins. (R. at 151). Sometime around lunch that day, while working in the hot sun without adequate water, Mr. Hawkins was admittedly in some sort of medical distress and passed out. (R. at 101). At some point after the Plaintiff was found to be in medical distress, he was placed in the front-end loader or bucket of the tractor by the Defendant. (R. at 112). A front end loader is a device primarily used to carry dirt and animal feces. He was driven back to the barn where admittedly the Defendant, by and through Bruce Horn, its agent, gave assistance to Mr. Hawkins in the form of placing him in the shade and giving him water (R. at 112). There is also disputed evidence he was squirted with a hose by the Defendant in an effort to cool him off. (R. at 54). During this time, Mr. Hawkins, who was incoherent and unsteady, was offered some form of medical assistance and refused. (R. at 60). Mr. Hawkins was then instructed to leave the 3

9 premises and return home (R. at 60) where he was observed driving erratically shortly after he left the farm at approximately 1:00 p.m. (R. at 121). When Mr. Hawkins wife came home at approximately 5:00 p.m., he was found to be in severe distress, causing his wife, the Plaintiff, Connie Hawkins, to call 911 which necessitated an ambulance and transportation to the hospital. (R. at 127). It was determined that Mr. Hawkins had sustained a severe, heat related stroke, which caused his death on June 28, (R. at ). Mr. Hawkins never regained consciousness after the afternoon of June 19, 2013 (R. at ). Mr. Hawkins cause of death was a determined to be the effects of a heat stroke, which unattended, resulted in his death (R. at ). Although there is at least one other eyewitness to the events which resulted in the death of Mr. Hawkins, Mr. Horn was the only witness produced by the Appellees, and Appellees claim that the aforesaid witness disappeared and has moved out of state (R. at 108). The Appellee s lone witness alleged that, while acknowledging the decedent, Hawkins, was in medical distress and that medical assistance was reasonable under the circumstances inasmuch as he offered water and carried him back to shade, and alleged that Mr. Hawkins, who was obviously at this point starting to have symptoms of a fatal heat-related stroke, refused medical treatment (R. at ). Plaintiff produced Affidavit testimony of Kevin Thompson and Brad Goodman (R. at 121, 135). Specifically, Brad Goodman testified about certain admissions against interest made shortly after the incident by the lone witness of the events (R. at 135). Said admissions revealed contradictions and credibility issues regarding the Appellee s only witness, Bruce Horn. In fact, Horn admitted to Goodman that Plaintiff had passed out and he thought Mr. Hawkins was going to die (R. at 135). Nonetheless, he allowed the Claimant to drive home, where he was unknowingly found in distress by his wife (R. at 124). In addition, witness Thompson offered 4

10 evidence he saw the decedent s truck shortly after he left the Heck Yea farm and that he was driving erratically and looked to be in distress (R. at 121). Finally, Plaintiff produced contradictory evidence in the way of an Affidavit from a medical physician and neurologist, Dr. Tiffany Scarff (R. at ), for the problems that the facts and evidence provided to her, which included the testimony of the Appellant, testimony of Bruce Horn and the affidavits of Thompson and Goodman, taken together showed that Mr. Hawkins was undergoing severe heat related stroke at the time he was at Heck Yea Farms, and as a result, Horn failed to give reasonable care. (R. at ). Despite this overwhelming evidence contradicting the lone witness of the Appellee, the Circuit Court erroneously granted Summary Judgment. (R. at ). SUMMARY OF THE ARGUMENT The Circuit Court s granting of Appellees Motion for Summary Judgment should be reversed because the Court erroneously applied the Good Samaritan statute as the only dispositive authority, and the Court s application of the statute was in disregard to other applicable legal standards alleged in Plaintiff s Complaint thereby creating disputed issues of fact for the jury to decide. The Mississippi Supreme Court has consistently held that a possessor of land owes a duty to an invitee that comes onto its premises, and Plaintiff s allegations sufficiently support a claim against Appellees because Appellees owed a duty of care to decedent because they invited him onto their premises to perform manual labor, thus making him an invitee (is not disputed that Mr. Hawkins was an invitee). Appellees failure to protect decedent from unreasonable risk of harm and failure to give him reasonable aid after Appellees knew or should have known of his medical distress constitutes a breach of duty of care, which contributed 5

11 to his death. Disputed factual issues as to whether the aid was reasonable under the circumstances require reversal. Appellees Motion for Summary Judgment was improperly granted because Hawkins provided evidence and testimony that is more than sufficient to establish issues of fact. The decedent s medical distress is pivotal in determining whether his purported refusal of assistance discharged the Appellees of the duty to provide care, and the evidence produced by Hawkins directly contradicts Appellees assertion that such a discharge existed. Thus, a genuine issue of material fact is apparent from the evidence produced by Hawkins, and the Circuit Court s finding Appellees did not owe the Decedent a duty to seek medical assistance is against the weight of the evidence. Hawkins presented significant evidence, raising genuine issues of material facts to not only question the credibility of Appellee s lone witness, but also provided significant evidence with which a jury could find the Appellee had a duty to exercise reasonable care despite its admitted offer of assistance to decedent. This included actions after determining that Claimant passed out as a result of the extreme heat, was provided assistance by placing him in the front of a front end loader of a tractor, squirting him off with a hose and providing him water, but then allowing him to leave in an automobile without providing him additional medical assistance or even contacting the decedent s wife, which may have provided additional precious time to seek medical attention. These facts are confirmed by the testimony of the Plaintiff, Connie Hawkins, by the medical expert opinions provided by Dr. Tiffany Scarff, as well as the affidavit testimony of Thompson and Brad Goodman, wherein Goodman provided admissible contradictory statements made by the Appellee s lone witness, Bruce Horn, unequivocally acknowledging that he felt the Decedent was going to die and admitted that he passed out as a result of the extreme 6

12 heat (R. at 135). The lone witness of the Appellees admitted in deposition testimony that had Mr. Hawkins passed out, he would have immediately treated him like he would his other farm animals in his custody and control and would have called an ambulance or contacted a medical doctor. (R. at 117). All of which, according to the testimony of Dr. Scarff, would have more likely than not prevented the severity of his injuries and ultimately his death (R. at ). As a result of the contradictory facts, there are triable issues which a reasonable fact finder should hear to determine whether or not such actions and/or inactions by the Appellees constitute a breach of duty to exercise reasonable care and render aid, proximately causing the death of Mr. Hawkins. As such, Summary Judgment is improper. STANDARD OF REVIEW The Mississippi Supreme Court has held an appellate court reviews a trial court s grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard. Copiah Cty. v. Oliver, 51 So.3d 205, 207 (Miss. 2011) (citations omitted). Summary judgment is only appropriate when the pleadings, depositions, answers to Interrogatories and Admissions on file, together with Affidavits, ensures there is no genuine issue of any material fact and that the moving party is entitled to a Judgment as a matter of law. M.R.C.P. 56(c). When evidence is provided in response to a motion for summary judgment by affidavit, deposition, or otherwise setting forth specific facts showing there is a genuine issue of material fact for the fact finder to determine at trial, summary judgment is improper. Karpinsky v. Am. Nat l Ins., 109 So.3d 84, 88 (Miss. 2013). When considering a motion for summary judgment, evidence must be viewed in the light most favorable to the party against whom the motion has been made. One S., Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss. 2007). In this case, affidavits and depositions reveal disputed and contradicted facts and issues which make Motion for Summary Judgment improper. 7

13 ARGUMENT I. The Circuit Court s Order granting Appellees Motion for Summary Judgment should be reversed because the standard correctly governing the duty to render aid creates an additional genuine issue of material fact which should be decided by a jury. A. The Good Samaritan statute was erroneously applied as the only dispositive law because a relationship and duty existed between Appellees and decedent, George Hawkins. The Circuit Court s Judgment should be reversed because a relationship and duty existed between Appellees as the owner of land and Mr. Hawkins as an invitee, and the Court erroneously applied only Mississippi Code Annotated Section , the statute protecting Good Samaritans, as dispositive, instead of also applying general negligence theories. The Mississippi Supreme Court s holding in Ladner v. Holleman, 90 So.3d 655, 662 (Miss. Ct. App. 2012) provides some guidance and authority to prove liability under facts somewhat similar to those involved in the instant case. Connie alleged in her Complaint that the Appellees in the instant case had a duty to exercise reasonable care when rendering aid to an individual on his premises in the position of the decedent, George Hawkins. In this case, that duty was breached by the inadequate aid rendered, ultimately causing injury and death. As discussed in Ladner, a duty of care owed is the good faith and reasonable care standard under either the Good Samaritan Statute or duty of care as an invitee, which is a duty to exercise reasonable care to individuals in a premises liability action. Id. at 657. Also in Ladner, the Court discussed the duty owed to a person in the position of Mr. Hawkins could have been the applicable standard of care under either theory of liability. The Court stated, [t]herefore, 8

14 premises liability as a law is only applicable when the injury is a result of conditions or activities on the premises, not based on the fact that the injuries simply occurred on the premises. Id. Under Mississippi law, in order for a person to be liable for another person s injury, the cause of an injury must be of such a character and done in such a situation, that the actor should have reasonable anticipated some injury or probable result. Id. at 657. The applicable law under either general liability or the Good Samaritan Statute sets forth a duty to exercise reasonable care when aid is given. Miss. Code Ann (1) (Rev. 2008). Additionally, although Hawkins urged Ladner as authority in her Response to Defendant s Motion for Summary Judgment, the Circuit Court s ruling that the Good Samaritan statute, which was the only applied standard in Ladner, was the only applicable standard in the case sub judice was erroneous because the theories of liability pled in Connie s Complaint are also in line with general principles of negligence, which includes Section 314 of the Restatement (Second) of Torts. Section 314A of the Restatement Second of Torts provides: (1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. (2) An innkeeper is under a similar duty to his guests. (3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation. (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other. Restatement (Second) of Torts 314A. In addressing the duty to render aid under Section 314A, recent case law has established four key things: 1) it applies not just to common carriers, but also to any proprietor, or owner of land who holds it open to the public ; 2) it requires reasonable 9

15 first aid; 3) it begins when the proprietor knows or should know that a patron/invitee is ill or injured and in need of assistance; and 4) it ends when the care of the patron/invitee is assumed by someone else. O Gwin v. Isle of Capri Natchez, Inc., 139 So.3d 783, (Miss. Ct. App. 2014) (citing Spotlight Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 369, 369 (Miss. 2008). Thus, a property owner is in a special relationship with those who accept the invitation to come onto the property, i.e. invitees such as Mr. Hawkins, and the Supreme Court has found this specific relationship prompts a specific duty. Id. at 787 (citing Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 417 (Miss. 1988). In addition to the Mississippi case law citing to 314A in recent years when addressing the duty to render aid, the Fifth Circuit has also stated that while the Supreme Court of Mississippi may not have explicitly adopted 314A, Mississippi premises liability law seems to track the provision, and Mississippi would very likely apply 314A in determining a proprietor s duty to render aid. Glenn v. Imperial Palace of Mississippi, L.L.C., 575 F. App x. 475, 484 (5th Cir. 2014). And Appellees as proprietors of Heck Yea and owners of the land in which Mr. Hawkins was an invitee on should have thereby owed Mr. Hawkins a similar duty to render aid. Appellees, as admittedly the proprietor or owner of the land on which decedent was admittedly a business invitee; therefore, a relationship and thereby a special duty existed between Appellees and decedent as provided in Section 314A of the Restatement (Second) of Torts. Hawkins Complaint specifically pled facts necessary for a proper claim of negligence and negligent failure to render aid. Therefore, because a duty admittedly existed between Appellees and decedent the Complaint adequately pled theories of general liability for negligent duty and breach of duty in Appellees failure to render adequate aid, the Circuit Court erred in applying only the Good 10

16 Samaritan statute as dispositive, rather than the standard provided in Section 314A of the Restatement Second of Torts and standard negligence law. Thus, the Circuit Court Order stating that the Good Samaritan Statute was dispositive was thereby erroneous as to the applicable law. B. Mr. Hawkins mental competency at the time of the incident creates a genuine issue of material fact that warrants a reversal of the Circuit Court s order granting Summary Judgment. Under Section 314A of the Second Restatement of Torts, the Appellees had a duty to render aid to Mr. Hawkins when it became apparent that he was in need of help and to care for him until he could be cared for by others, and Appellees breached that duty by failing to reasonably do so because Mr. Hawkins was not competent to refuse aid, which is supported by the affidavits of Dr. Tiffany Scarff and Brad Goodman. Further, Appellee does not dispute he was in medical distress, only argues that the aid provided was adequate. The Mississippi Supreme Court expounded on this duty and found the duty of a landowner requires reasonable action to give invitees first aid after the owner knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others, which is a [s]tandard of care consistent with [this court s previous] holding in Grisham[.] Spotlight Skating Rink, 988 So.2d at 369 (citing Grisham, 519 So.2d at 417). The duty otherwise would end only when a patron, who is competent to do so, refuses further aid. O Gwin, 139 So.3d at 788 (emphasis added) (citing Estate of White v. Rainbow Casino- Vicksburg P ship, 910 So.2d 713, 719 (Miss. Ct. App. 2005). Black s Law Dictionary defines competency as having the mental ability to understand problems and make decisions. Black s Law Dictionary, pg. 138 (4th ed. 2011). The Circuit Court Order erroneously found that no genuine issue of material fact existed as to the reasonableness of the Appellees duty to render aid because Mr. Hawkins allegedly 11

17 refused further aid; however, a genuine issue of fact nevertheless remains not only as to the reasonableness of the aid, but also as to George s competency since he was undisputedly having a stroke. Evidence has been proffered which establishes the existence of such a dispute where conflicting testimony and Affidavits exist between the parties calling into question Mr. Hawkins condition and competency at the time of the event; he had been exposed to severe heat without water, was unstable and passed out. (R. at 133). He was having a stroke. Evidence suggests he was not competent at the time he refused aid is substantiated by the Affidavit of Dr. Tiffany Scarff, wherein she states that based on her experience, the decedent was exhibiting significant symptoms of a stroke after being exposed to heat while out in the sun, including loss of consciousness or passing out (R. at 131). The Affidavit and testimony of Brad Goodman which is admissible as an admission against interest further proves Bruce Horn further acknowledged Mr. Hawkins got too hot and likely passed out, and that he thought he was going to die. M.R.E. 801(d); (R. at 135). Moreover, as opined by Dr. Scarff, the Appellees should have recognized the symptoms and effects of a severe heat stroke, being that s the type of business and work that was facilitated on the property. Also, where Mr. Hawkins was incompetent in his ability to acknowledge his need for medical assistance after suffering an ultimately life ending heat-stroke, the actions in either failing to properly recognize such severe and obvious symptoms of heat-stroke which would be more than common in the type of work being done on the property or in failing to recognize the severe and unstable condition of Mr. Hawkins, and then failing to render reasonable assistance constitutes a breach in the duty owed to Mr. Hawkins and was the proximate cause of the his untimely death. 12

18 Therefore, disputed evidence as to whether or not Mr. Horn viewed symptoms on the part of Mr. Hawkins, which would have included a loss of consciousness or passing out, and whether or not his actions or inactions were negligent in contributing to Mr. Hawkins death are questions for a jury. The disputed facts are for the jury to determine and include whether or not Mr. Horn s lone testimony is credible in comparison to the admissions against interest he made immediately after, admitting that Mr. Hawkins did in fact lose consciousness, and then later admitting in deposition testimony that had an animal on the farm passed out he would have immediately called for medical assistance. In addition, all other evidence indicates genuine triable issues of factual disputes to be submitted to a jury such as the competency of Mr. Hawkins, after suffering a severely debilitating heat-stroke, in refusing medical assistance. Accordingly, based on the unequivocal, undisputed facts and evidence viewed in a light most favorable to the Appellant, the granting of Appellees Motion for Summary Judgment was improper, and the Circuit Court s Judgment should be reversed. II. The Circuit Court s Order granting Appellees Motion for Summary Judgment should be reversed because Connie presented sufficient evidence creating genuine issues of material fact as to the causation of George s death. Appellees owed a duty to provide reasonable care and render aid to Mr. Hawkins when he was found in an unconscious state after being exposed to extreme heat with little water, and these duties were breached by the negligent acts or omissions of the Appellees in failing to render proper care which ultimately caused his death. The elements that must be proven are duty, breach, causation, and damages. Grisham v. John Q. Long V.F.W. Post, No Inc., 519 So.2d 413, 416 (Miss. 1988). According to the standard by the Mississippi Supreme Court, questions of adequacy of supervision and/or care, such as those alleged to be negligent in this case, are proper questions for the jury. Id. (citing Summers v. St. Andrew s Episcopal Sch.,

19 So.2d 1203, 1215 (Miss. 2000)). Moreover, this Court has held that contradictory statements by a witness go to the weight and credibility of that witness testimony, not its sufficiency, and a summary judgment motion does not place the trial court in the role of weighing testimony and determining the credibility of witnesses. Id. (citing Jamison v. Barnes, 8 So.3d 238, 245 (Miss. Ct. App. 2008) (citations omitted)). Mississippi courts have previously held disputed factual issues of negligence, contributory negligence, and proximate causation are for the jury. Ladner, 90 So.3d at 661 (Russell, J., dissenting) (quoting [Am.] [Nat l]. Ins. Co. v. Hogue, 749 So.2d 1254, 1259 (Miss. Ct. App. 2000)). In this case, a reasonable juror could easily find that Mr. Horn, as an agent of Heck Yea, breached his duty because his failure to call an ambulance, take Mr. Hawkins to a medical facility, or even to call his wife was thereby a breach of the Appellees duty. Moreover, the credibility of Appellees lone witness has been questionable as to the circumstances surrounding the alleged negligence that caused Mr. Hawkins death. This is substantiated by contradicted admissions made to an independent witness and the uncontested medical expert testimony of Dr. Scarff. The aforementioned is likewise supported by the lack of any other evidence to refute it other than the disputed and contradicted testimony of Bruce Horn. Unquestionably, with these facts, a reasonable juror could determine that the duty existed and was breached. Dr. Tiffany Scarff s affidavit states Mr. Horn s inaction and negligence contributed to and worsened the injuries and death of Mr. Hawkins because of the failure to exercise reasonable care when confronted with his physical distress and loss of consciousness. (R. at ). The general duty is to act as a reasonable prudent person would under the circumstances. Doe v. Wright Security Servs., Inc., 950 So.2d 1076, 1079 (Miss. Ct. App. 2007) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 175 (Miss. 1999)). Furthermore, [w]hen the conduct of the 14

20 actor is a substantial factor in bringing about the harm to another then[,] the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. Ladner, 90 So.3d at 661 (Russell, J., dissenting) (quoting Doe, 950 So.2d at 1079) (citing Rein v. Benchmark Constr. Co., 865 So.2d 1134, (Miss. 2004)). Appellees cannot escape liability because a particular injury could not be foreseen, if some injury ought to have been reasonable anticipated. Id. (emphasis added) (quoting Rein, 865 So.2d at 1145). However, in this instance, the fatal injuries of Mr. Hawkins was obviously foreseen by Appellees only witness, Bruce Horn, when he made admissions against interest to Brad Goodman that Mr. Hawkins passed out and he thought he was going to die. This testimony coupled with the other overwhelming evidence of the circumstances in and there existing reveal questions with which a jury should determine by weighing the weight and credibility of the evidence, specifically the evidence provided by Bruce Horn. In an atmosphere of heat and limited amounts of water, and where Mr. Hawkins passed out, a reasonable juror could easily determine that a reasonable person should have called an ambulance, 911, or sought immediate medical attention instead of offering him limited assistance and sending him home. Moreover, if a jury finds Mr. Horn in fact did observe Mr. Hawkins lose consciousness or other significant signs of distress, failure to call an ambulance or seek medical treatment could prove a duty and breach of that duty by his actions or inactions ( misfeasance ) and he could be found to be negligent by a jury. And Mr. Horn admitted that such observations would necessitate a duty to immediately call for and seek medical attention just as he would in the case of one of his farm animals. (R. at 118.) Mr. Horn testified had the decedent passed out, the proper and reasonable action would be to call an ambulance. (R. at 118.) 15

21 Question: Answer: Question: Answer: Question: Answer: Question: Answer: If he would have passed out, would you have called an ambulance? Yes. That s just like one of your horses, right? Yes. And if you find a horse that is passed out in distress, you would immediately call? Yes. A medical expert? Yes. (R. at ) Unequivocally, the dispute is whether or not Mr. Hawkins passed out while on the Defendant s farm and his position as an invitee. That question and issue is pivotal to determine whether or not the Defendant s actions constituted negligence proximately contributing to his death. The evidence is disputed based on the totality of the circumstances and facts, in addition to the admissions by Mr. Horn as to whether or not the Claimant, in fact passed out. Looking at these facts in a light most favorable to the non-movant, the disputed fact issues as to whether or not he in fact, passed out, should be determined by the jury. Facts pertaining to the occurrences that day are also somewhat disputed, as the Appellees claim the only other surviving eyewitness to the incident is no longer available. Appellees claim the actions were reasonable; however, admissions indicate there was reason to believe Mr. Hawkins passed out and was in significant mental and physical distress (R. at 135), which should have caused Appellees to take some reasonable action that would have likely saved Mr. Hawkins life or at least could have minimized his injuries. (R. at ). Horn also testified that had George actually passed out, he most definitely would have immediately contacted or sought medical treatment as he would in a similar manner for the horses for which he is a caretaker of on the property in question (R. at 117). 16

22 In support of the existence of a genuine issue of material fact, Bruce Horn s testimony is contradicted by the affidavit statement of Brad Goodman showing Horn s admissions that he thought Mr. Hawkins was going to die (R. at 135). Likewise, Connie has offered significant medical expert testimony by Dr. Tiffany Scarff indicating that a person in the position of the decedent, at the time the symptoms of the heat-related stroke began, could have been saved had he received the proper medical treatment (R. at ). Considering the disputed facts whether or not George passed out, contributing to his incoherent and incompetent mental state, before he was rendered any type of aid; whether or not Appellee, Appellee, based on admissions by and through its manager, recognized and appreciated the possibility that George was possibly going to die on the property; and whether or not Appellees failed to adequately care for George in that the failure to render proper aid and turn George over to the care of someone else could have possibly saved his life there are significant issues to be properly decided by the jury at trial. All of the evidence taken together reveal contradictory facts that go to the weight and credibility of witnesses. As such, the aforesaid genuine issues of material fact should be viewed in a light most favorable to the Connie and determined by the fact finder at trial, therefore, the grant of summary judgment by the Circuit Court is not proper and should be reversed. CONCLUSION The Circuit Court s Summary Judgment was improper. Appellees had a duty to exercise reasonable care to George as an invitee, and the Court failed to consider the relevant duties owed to George under Mississippi law. However, it is well established that the Appellees, as owner of the land, owed Mr. Hawkins, as an invitee, a duty to render reasonable aid when they knew or should have known that he was ill and in need of assistance, and that duty did not end until Mr. Hawkins care was assumed by someone else, which was never completed and thereby 17

23 sufficiently establishes a breach. Moreover, the Affidavits of Kevin Thompson, Brad Goodman, Tiffany Scarff and the testimony of Mrs. Hawkins reveal disputed facts, and a reasonable juror could assume a reasonable person should have taken some further reasonable action to secure Mr. Hawkins well-being under these circumstances. Thus, the facts show the proximate contributing cause of Mr. Hawkins death was the negligent breach of duty by Appellees in the failure to render proper and reasonable aid and to care for him until he could be cared for by someone else; therefore, summary judgment was improper. Respectfully submitted, this the 13 th day of June, CONNIE HAWKINS, APPELLANT BY: /s/ John H. Stevens JOHN HUNTER STEVENS John H. Stevens, Esq./ MS Bar No jstevens91@aol.com GRENFELL & STEVENS 1535 Lelia Drive (39216) P. O. Box Jackson, MS Telephone: (601) Facsimile: (601)

24 CERTIFICATE OF SERVICE I, John H. Stevens, attorney for Appellant, do hereby certify that I have this day electronically filed the foregoing BRIEF OF THE APPELLANT via the MEC/ECF system and also sent via United States mail, postage prepaid, a true and correct copy of the above and foregoing BRIEF OF THE APPELLANT to: Robert P. Thompson, Esq. Paul Blake, Esq. COPELAND, COOK, TAYLOR & BUSH P. O. Box 6020 Ridgeland, MS Attorneys for Appellee The Honorable Jeff Weill, Sr. Hinds County Circuit Judge P. O. Box 327 Jackson, MS Cause No THIS, the 13 th day of June, /s/ John H. Stevens John H. Stevens 19