David McKean v. Yates Engineering Corporation ( 2016 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CT-01807-SCT
DAVID McKEAN, FRANCESCO MEDINA,
DONALD ARRINGTON AND WAYNE
ROBERTSON
v.
YATES ENGINEERING CORPORATION,
ANDERSON REGIONAL MEDICAL CENTER,
AND FOIL WYATT ARCHITECTS AND
PLANNERS, PLLC
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 10/21/2013
TRIAL JUDGE: HON. LESTER F. WILLIAMSON, JR.
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: KEN R. ADCOCK
MARK D. MORRISON
WILLIAM CHRISTOPHER IVISON
ATTORNEYS FOR APPELLEES: THURMAN LAVELLE BOYKIN, III
JAMES D. HOLLAND
ROMNEY HASTINGS ENTREKIN
PEELER GRAYSON LACEY, JR.
SHIRLEY M. MOORE
ROBERT B. IRELAND, III
RICHARD O. BURSON
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED IN PART AND VACATED IN
PART - 09/15/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
KING, JUSTICE, FOR THE COURT:
¶1. During the construction of Jeff Anderson Regional Medical Center’s (“ARMC”)
“Medical Towers III” expansion in Meridian, scaffolding built by W.G. Yates & Sons
Construction Company (“Yates Construction”) collapsed, injuring David McKean, Francesco
Medina, Donald Arrington, and Wayne Robertson (collectively, the “plaintiffs”). The trial
court granted summary judgment and dismissed the plaintiffs’ claims against all defendants.
The Court of Appeals affirmed the decisions of the trial court. Although we agree with the
Court of Appeals’ decision to affirm the trial court, we now grant certiorari to clarify two
issues: (1) whether this Court has adopted the seven-factor test used in Hanna v. Huer,
Johns Neel, Rivers, & Webb, 662 P.2d 243 (Kan. 1983) superceded by statute, as recognized
in Edwards v. Anderson Engineering, Inc., 166 P.3d 1047 (Kan. 2007), to determine
whether an architect’s supervisory powers go beyond the provisions of the contract; and (2)
to clarify this Court’s position on the effect of an “undocumented immigrant” status on
recovery for workplace injuries.
FACTS AND PROCEDURAL HISTORY
¶2. ARMC planned the “Medical Towers III” expansion to be a multi-story building
located in Meridian. ARMC hired Foil Wyatt Architects and Planners PLLC (Foil Wyatt) to
design the expansion and hired Yates Construction to act as the general contractor for the
project. Yates Construction then hired Spectrum II as the subcontractor for concrete services.
The plaintiffs were employed by Spectrum II. Construction on the expansion began in 2008.
In order to complete the second floor of the building, Yates Construction asked Yates
Engineering Corporation (“YEC”) to provide design drawings for a temporary scaffolding
used to support the second floor concrete slab during construction.
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¶3. The Court of Appeals stated:
As of September 2008, the first-story reinforced concrete slab had been
poured, and Yates Construction was preparing to pour the concrete walls and
columns that would help support the elevated second-story reinforced concrete
slab. Yates Engineering became involved in the construction project when Dan
Perry, Yates Construction's general superintendent, asked engineer Ted Pope
to prepare design drawings of the scaffolding and second-story formwork.
During late September 2008, Pope visited the construction site and met with
Mike Clark, a construction supervisor for Yates Construction. Pope noticed
some formwork for the first-story concrete columns and walls, but he did not
see any scaffolding for the second-story formwork.
During Pope's visit, he and Clark discussed some of the necessary features of
the scaffolding, such as the need for wooden 4"x4" posts and stringers, and
2"x4" joists. Pope prepared his preliminary design drawings, and submitted
them for comments to Yates Construction on October 3, 2008. Meanwhile,
Yates Construction had begun building the scaffolding before receiving Pope's
design drawings.
It is undisputed that Pope's plan was fundamentally flawed in one significant
way-it contemplated using twenty-four-foot posts. However, wooden 4"x4"
posts are not available in that length. Consequently, the posts would have to
be “tiered” by stacking them end to end and “spliced” for stability. Despite the
fact that Pope's plan was effectively impossible to follow, Yates Construction
had no comments about Pope's design. Yates Construction asked Pope to send
a final version of his design drawings. Pope complied on October 6, 20[08].
However, Yates Construction ignored essential features of Pope's scaffolding
design.
McKean v. Yates Engr. Corp., No. 2013-CA-01807-COA, 2015 WL 5118062, at *1 (Miss.
Ct. App. Sept. 1, 2015), reh'g denied (Mar. 1, 2016). On November 17, 2008, the plaintiffs
were attempting to pour an elevated concrete slab for the second floor. As the concrete was
being poured, the wooden scaffolding collapsed and caused injury to the plaintiffs. It is
undisputed that the scaffolding caused the collapse and not the formwork.
¶4. The plaintiffs filed suit against Yates Construction on September 1, 2010, claiming
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that Yates Construction negligently failed to construct the scaffolding and related structures
in accordance with plans and specifications. In February 2011, the plaintiffs amended their
complaint to add Yates Engineering and Foil Wyatt as defendants. The plaintiffs alleged that
Yates Engineering and Foil Wyatt negligently failed to formulate plans and specifications
for the scaffolding, negligently failed to inspect the scaffolding, and failed to correct known
deficiencies in the scaffolding.
¶5. American Resources Insurance Company Inc. filed a declaratory-judgment action in
the United States District Court for the Southern District of Mississippi. In March 2012, the
district court held that Yates Construction was Spectrum II’s statutory employer. Because
Yates Construction had secured workers’ compensation insurance coverage for the plaintiffs,
the circuit court dismissed the plaintiffs’ suit against Yates Construction pursuant to the
exclusive remedy provision of the Mississippi Workers’ Compensation Act. In June 2012,
the plaintiffs filed a second amended complaint, adding ARMC as a defendant and claiming
that ARMC negligently failed to require a written contract with Yates Construction,
negligently failed to supervise and inspect Yates Construction’s work, and failed to maintain
the premises in a reasonably safe condition and warn the plaintiffs of dangers.
¶6. Yates Engineering, joined by ARMC, filed a motion for summary judgment against
plaintiff Medina, claiming that because Medina allegedly was not an American citizen and
was therefore not lawfully employed, his claims should be dismissed due to his activity at the
time of the accident. On February 20, 2013, the trial court dismissed Francesco Medina’s
claims. The circuit court then granted summary judgment in favor of Foil Wyatt, finding that
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Foil Wyatt had no duty to inspect the scaffolding. The Court of Appeals stated:
In August 2013, the circuit court granted summary judgment in favor of Yates
Engineering. The circuit court's decision was based on its conclusion that “[a]t
no point in time did Yates Engineering assume the duty [to] inspect or
supervise the construction and implementation of its design drawings either by
contract or conduct.” The circuit court later granted ARMC's motion for
summary judgment. According to the circuit court, “no genuine issue of
material fact remains with respect to Plaintiffs' claims against [ARMC], and
therefore, [ARMC] is entitled to summary judgment on Plaintiffs' claims
against it.” The circuit court also entered a final judgment on that date.
McKean, No. 2013-CA-01807-COA, 2015 WL 5118062, at *3.
¶7. The plaintiffs appealed and argued that the trial court erred in granting summary
judgment to Foil Wyatt, Yates Engineering, and ARMC. In its September 1, 2015, opinion,
the Court of Appeals affirmed the trial court on all issues.
DISCUSSION
I. Supervisory Duty
¶8. It is undisputed in this case that defects in the scaffolding, not the formwork, caused
the collapse that injured the plaintiffs and that part of the scaffolding had been buit by Yates
Construction before Pope turned in his design drawings. The plaintiffs argued that a genuine
issue of material fact existed as to whether Pope breached his duty to design a sufficient
scaffolding system and as to whether Pope breached his duty to inspect the scaffolding that
Yates Construction built. The plaintiffs also argued that Foil Wyatt had a duty through
contract and conduct to inspect the scaffolding before the concrete was poured. In its analysis
to determine whether an engineer had a supervisory duty outside the provisions of the
contract, the Court of Appeals quoted a seven-factor test used in Hanna v. Huer, Johns
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Neel, Rivers, & Webb, 662 P.2d 243 (Kan. 1983):
There are “seven factors to determine whether supervisory powers go beyond
the provisions of [a] contract.” Hobson, 878 So.2d at 72 (¶ 15) (citations
omitted). Those factors are:(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. Id.McKean, No. 2013-CA-01807-COA, 2015 WL 5118062, at *5 (quoting Hobson v.
Waggoner Eng’g Inc., 878 So. 2d 68, 77 (Miss. Ct. App. 2003)).
¶9. This Court first cited the seven-factor Hanna test in Jones v. James Reeves
Contractors, Inc., 701 So. 2d 774 (Miss. 1997). There, the Court was tasked with
determining, inter alia, whether a project’s architects had a duty to warn workers of
dangerous soil conditions based upon their prior knowledge. Id. at 784. Because it was an
issue of first impression, the Court looked to other jurisdictions for guidance and quoted in
a string cite the Hanna factors. Id. at 784. The Jones Court later rejected the Hanna court’s
holding that an architect’s contractual duty to maintain actual supervision over the details of
the construction project did not entail the duty to supervise safety, and stated that “[i]t is the
opinion of this Court that the holding of [Young v. Eastern Engineering & Elevator Co.,
Inc., 554 A.2d 77 (1989)] provides the clearest pronouncement on the issue before the Court
and makes the most common sense under the circumstances.” The Young opinion stated:
We therefore hold that absent an undertaking by an architect, by contract or
conduct, of the responsibilities of the supervision of construction and the
maintenance of safe conditions of a construction project, an architect is not
under a duty to notify workers or employees of the contractor or subcontractors
of hazardous conditions on the construction site.
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Jones, 701 So. 2d at 785-86 (quoting Young, 554 A.2d at 80).
¶10. In a later case, Hobson v. Waggoner Engineering, Inc., 878 So. 2d 68 (Miss. Ct.
App. 2003), the Court of Appeals cited Jones in its analysis of whether engineers or
architects had a duty to protect construction workers from harm while on the job site, and
stated:
As in James Reeves Contractors, Inc., we review the seven factors in Hanna
to determine whether the engineer's supervisory powers extended beyond the
contract provisions. Based on the undisputed facts before the trial court, we
agree with the trial court that Waggoner Engineering's duties and
responsibilities did not.
Hobson v. Waggoner Engr., Inc., 878 So. 2d 68, 76 (Miss. Ct. App. 2003).
¶11. We now clarify our position on the supervisory duty of architects and adopt the seven-
factor test used in Hanna, to determine whether an architect’s supervisory powers go beyond
the specific provisions of the contract. These Hanna factors are to be used as guidance and
are not exhaustive. We also reaffirm our previous holding that for an architect to have an
affirmative duty to warn of dangerous conditions, the architect must “by contract or conduct”
take on the responsibility to maintain the safety of the construction project. Jones v. James
Reeves Contractors, Inc., 701 So. 2d 774, 785 (Miss. 1997). If the architect does take on a
duty to supervise, “the supervision of safety is encompassed in the duty to supervise, and no
separate agreement to supervise safety is necessary where the architect is supervising the
details of every other aspect of the project.” Id.
¶12. We affirm the holding of the circuit court and Court of Appeals that summary
judgment in favor of Foil Wyatt was appropriate and that Pope had no duty based on contract
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or conduct to inspect the scaffolding or warn of defects.
II. Undocumented Immigrant
¶13. Before granting summary judgment to all defendants the trial court dismissed
Francesco Medina’s claims, holding that, based on this Court’s decision in Price v. Purdue
Pharma Co., 920 So. 2d 479, 484 (Miss. 2006), even if Yates Engineering and ARMC were
found to have been negligent, Medina’s alleged undocumented immigrant status barred him
from recovery. The Court of Appeals affirmed the trial court’s summary judgments in favor
of Yates Engineering, Foil Wyatt, and ARMC and held that “[b]ecause these conclusions are
dispositive, Medina’s claim that the circuit court erred in dismissing his claim due to his
immigration status is moot; this opinion should not be construed as implicit agreement with
the circuit court’s ruling in this regard.” McKean, No. 2013-CA-01807-COA, 2015 WL
5118062, at *9.
¶14. In Price, this Court held “[i]If a plaintiff cannot open his case without showing that
he has broken the law, a court will not aid him.” Price v. Purdue Pharma Co., 920 So. 2d
479, 484 (Miss. 2006). There, the plaintiff sued multiple defendants, claiming that he
sustained injuries, including addiction, from ingesting OxyContin. Id. at 482. Because the
plaintiff had been simultaneously seeing multiple doctors and using different pharmacies to
acquire OxyContin, a controlled substance, this Court found that summary judgment was
appropriate and held that “[h]is violation of the law is not merely a condition, but instead an
integral and essential part of his case and the contributing cause of his alleged injury.” Id. at
485.
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¶15. However, unlike in Price, Medina’s conduct here was not the contributing cause of
his alleged injury, nor would the same public policy be advanced here as in that case. The
Mississippi Constitution states, “All court shall be open; and every person for an injury done
him in his lands, goods, person, or reputation, shall have remedy by due course of law, and
right and justice shall be administered without sale, denial, or delay.” Miss. Const. Art. 3, §
24 (emphasis added). Section 25 states, “No person shall be debarred from prosecuting or
defending any civil cause for or against him or herself, before any tribunal in the state, by
him or herself, or counsel, or both.” Miss. Const. Art. 3, § 25 (emphasis added). Thus, the
Mississippi Constitution does not limit access to our courts and leaves open for every person
a remedy for injury done to his person.
¶16. Other jurisdictions also have found that undocumented immigrants have a right of
access to the court system. “[A] well established body of law holds that illegal aliens have
rights of access to the courts and are eligible to sue therein to enforce contracts and redress
civil wrongs such as negligently inflicted personal injuries.” Rosa v. Partners in Progress,
Inc., 868 A.2d 994, 997 (N.H. 2005) (quoting Mendoza v. Monmouth Recycling Corp., 672
A.2d 221, 225 (N.J. 1996); see also Mendoza, 672 A.2d at 224 (“Surely, the effect on the
worker of his injury has nothing to do with his citizenship or immigration status. If his
capacity to work has been diminished, that disability will continue whether his future
employment is in this country or elsewhere.”); Arteaga v. Literski, 265 N.W.2d 148, 150
(Wis. 1978) (“It cannot be seriously argued that people enter this country illegally so they can
recover for an injury that will be inflicted upon them later.”). In fact, if an undocumented
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alien were prevented from bringing an action against his employer for negligence, it would
even encourage employers to hire undocumented aliens. See Montoya v. Gateway Ins. Co.,
401 A.2d 1102, 1104 (N.J. Super. App. Div. 1979) (“Potential employers may well be
encouraged to employ such aliens if they become aware of the alien's inability to lodge
claims against them for wages or on account of injuries sustained.”).
¶17. Medina could very well have proven his claims against the defendants without
presenting evidence of his status as an immigrant. And if Medina’s claims of negligence
were barred solely because he presumably was an undocumented immigrant, the same logic
could be applied to any tortious or unlawful conduct towards Medina based on the conclusion
that he was not lawfully in the country. Such reasoning would effectively strip Medina of all
rights. See Feldman v. Murray, 12 N.Y.S.2d 533, 534–35 (N.Y. Sup. Ct. 1939) (“[E]ven the
most hopeless outcast is entitled to protection against unlawful injury to his person.”). We
clarify that this Court’s decision in Price does not prevent an undocumented immigrant from
bringing a negligence claim against his employer.
CONCLUSION
¶18. Although we affirm the decisions of the Court of Appeals and trial court regarding
summary judgments in favor of the defendants, we clarify this Court’s position that an
architect has no affirmative duty to supervise safety absent contract or conduct. Additionally,
because our courts are open to every person, an alleged undocumented immigrant is not
barred from tort recovery solely based on his alleged undocumented status, and we vacate
the decision of the trial court on this issue. Because summary judgment was appropriate as
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to all defendants, this error was harmless.
¶19. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED
IN PART AND VACATED IN PART.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
COLEMAN AND BEAM, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN
RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT
PARTICIPATING.
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