Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.

Attempts by the plaintiff to re-characterize stands and racks did not get past the judge. However, in many cases, the way a plaintiff casts a product can later define how the jury sees the case.

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

State: Mississippi, Court of Appeals of Mississippi

Plaintiff: Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser

Defendant: Wal-Mart Stores, Inc.

Plaintiff Claims: Premises Liability

Defendant Defenses: No duty

Holding: For the Defendant Retailer

Year: 2015

This is a screwy little case, but worth the effort. A family, Step-Father, mother and two sons went into a Wal-Mart to buy a basketball. While there, the two sons walked over to the bicycle aisle and proceeded to ride two bicycles they found through the aisles.

One brother, in attempting to put a bicycle back in the rack, slowed down. The other brother was not used to hand breaks, maneuvered around the brother riding into a shelf where he suffered a cut on his leg.

They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches.

Of note was the statement that the employee assigned to the area was absent and there were no signs posted prohibiting the use of the bicycles.” (So bars now need to put up signs no drinking from the tap without paying for the product first?). The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.”

The defendant was ten at the time of the injury so whether or not signs were posted probably would not have made a difference. And it seems that allowing children to ride bikes through the aisles at Wal-Mart in Mississippi is a common practice, which sort of blows my mind.

The injured child’s mother filed a lawsuit on his behalf, since he was a minor, and sued Wal-Mart based on a premise’s liability theory. Wal-Mart filed a motion for summary judgment stating there was no genuine issue of material fact showing that there was a dangerous condition that Wal-Mart should have warned about.

The motion was granted, and the plaintiff appealed the decision.

Analysis: making sense of the law based on these facts.

The court first looked at the premises’ liability law that the plaintiff claimed had been breached by Wal-Mart. To prove his case the plaintiff must show that he was an invitee, the duty owed to him based on his status and whether Wal-Mart breached that duty.

Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured. 

Because the plaintiff was there with his parents to purchase a basketball, he was defined as an invitee. As such, the duty of a land owner (or retailer) was to keep the premises reasonably safe and when not reasonably safe, to warn of the hidden dangers. If the peril were in plain and open view, there is no duty to warn of them.

To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].”

Is a bicycle on display at a retailer a dangerous condition? The plaintiff argued the bicycle should have been locked up so the plaintiff could not ride it. The bicycle was not in a rack at the time the plaintiff found the bike.

He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.

The plaintiff then characterized the rack that the bike should have been in as a “safety rack.” However, the court caught on to that maneuver and reviewed the operation of the rack and the manufacturer’s description and found the rack was designed only to hold bikes, not to prevent them from being moved.

Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp

The plaintiff argued that since the bikes would be difficult to remove from the rack, an employee would need to be there to make sure the bikes were removed properly and only when allowed.

However, the entire argument failed. No employee was stationed at the rack to guard against removing bikes. Other children rode bikes in the aisle without incidence, which indicated there was no real danger and no evidence of a standard was presented indicating a requirement to lock up bikes on the show floor.

Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to.

The plaintiff then argued a higher duty was owed to the plaintiff because he was a minor. However, the duty owed under a premise’s liability act does not change due to the age of the invitee. The plaintiff also knew how to ride a bicycle and learned at the age of five. The plaintiff had also been involved in numerous bicycle accidents prior to the one that injured him at the retailers’ premises.

An unlocked bicycle was found not to present a dangerous condition such that a warning had to be posted by the retailer about the risk to the consumers.

So Now What?

The first issue which was handled quickly by the court was the attempt by the plaintiff to characterize something as different than it actually was. By calling the bike rack a safety rack the plaintiff could place in the juries mind a requirement that did not exist. It is important that these issues not be allowed to explode and create liability just because thclip_image002_thumb.jpge plaintiff miss-labels part of the case.

Another issue is the fact that parents allow their kids to ride bicycles through the aisles of stores, and the retailer does not put a stop to it. What if the plaintiff had hit another patron rather than a shelf?

As always, the issue of putting warning signs up so people who can’t read, can be protected always makes me wonder. Warning if you are unable to read this sign, please find someone to read it to you. Seriously the entire world is going to be nothing but signs if this continues.

Thankfully, the retailer was not liable for the actions of an inattentive parent for the injuries of their child riding a bike down a store aisle.

What do you think? Leave a comment.

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Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser, appellant v. Wal-Mart Stores, Inc., Appellee

NO. 2014-CA-00589-COA

Court of Appeals of Mississippi

161 So. 3d 1128; 2015 Miss. App. LEXIS 216

April 21, 2015, Decided

COUNSEL: FOR APPELLANT: D. BRIGGS SMITH JR.

FOR APPELLEE: THOMAS M. LOUIS, LEO JOSEPH CARMODY JR.

JUDGES: BEFORE LEE, C.J., BARNES AND MAXWELL, JJ. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

OPINION BY: LEE

OPINION

[*1129] NATURE OF THE CASE: CIVIL – PERSONAL INJURY

LEE, C.J., FOR THE COURT:

P1. In this premises-liability case, we must determine whether summary judgment was appropriately granted in favor of Wal-Mart Stores Inc. We find summary judgment was proper; thus, we affirm.

FACTS AND PROCEDURAL HISTORY

P2. On April 29, 2012, ten-year-old Seth Wilson, his brother, Wyatt Purser, and his stepfather, Jim Purser, went to a Wal-Mart [*1130] store in Batesville, Mississippi, to purchase a basketball. While Jim was paying for the basketball at a nearby register, Seth and his brother started looking at the bicycles. They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found [**2] it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches. The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.

P3. Suzette Purser, Seth’s mother, filed suit on his behalf on September 14, 2012, alleging negligence on the part of Wal-Mart in failing to keep the premises reasonably safe and warn of danger. After discovery was completed, Wal-Mart filed a motion for summary judgment. Seth filed a response, and Wal-Mart replied. After a hearing, the trial court granted Wal-Mart’s motion, finding that no genuine issue of material fact existed because Seth failed to show the existence of a dangerous condition. Seth filed a motion to reconsider, which was denied. Seth [**3] now appeals asserting the trial court erred in granting Wal-Mart’s motion for summary judgment.

STANDARD OF REVIEW

P4. [HN1] In considering a trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So. 2d 977, 979 (¶7) (Miss. 2001) (citation omitted). [HN2] The Mississippi Supreme Court recently clarified the summary-judgment standard, explaining that “[t]he movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law.” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶11) (Miss. 2013) (citation omitted). The supreme court further stated that “[t]he movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial.” Id. at 88-89 (¶11) (citations omitted). The supreme court again clarified that “while [d]efendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established [**4] facts, [the plaintiff] carries the burden of producing sufficient evidence of the essential elements of [his] claim at the summary-judgment stage, as [he] would carry the burden of production at trial.” Id. at 89 (¶13).

DISCUSSION

P5. [HN3] To determine whether Wal-Mart is entitled to summary judgment on Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured [*1131] party. Titus v. Williams, 844 So. 2d 459, 467 (¶28) (Miss. 2003).

P6. It is undisputed that Seth was a business invitee. [HN4] “A business owner/operator owes to invitees the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” Rod v. Home Depot USA Inc., 931 So. 2d 692, 694 (¶10) (Miss. Ct. App. 2006) (citation and internal quotation marks omitted). To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] [**5] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].” Byrne v. Wal-Mart Stores Inc., 877 So. 2d 462, 465 (¶5) (Miss. Ct. App. 2003) (citation omitted). A business owner, however, is not an insurer of an invitee’s injuries. Id. at (¶6).

P7. Whether Wal-Mart breached its duty to keep the premises reasonably safe or otherwise warn of a hidden danger necessarily depends on whether a dangerous condition existed. Seth argues that whether an unlocked or readily available bicycle on the sales floor constituted a dangerous condition was a genuine issue of material fact that should have been submitted to a jury. To avoid summary judgment, however, Seth must produce sufficient evidence of the essential elements of a claim of negligence – duty, breach, causation, and damages.

P8. Seth contends that leaving unlocked or readily accessible bicycles on the sales floor created a dangerous condition. He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart [**6] knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.

P9. Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp. While the bicycles are still accessible to patrons, Seth argues that the rack was designed to make it difficult for patrons to remove the bicycle from the rack, prompting a need for employee assistance, but fails to offer sufficient evidence of this assertion.

P10. Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same [**7] aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to return the bicycles to the rack immediately after each use. Because Wilson failed to produce sufficient evidence that unlocked or readily accessible [*1132] bicycles on the sales floor created a dangerous condition, this issue is without merit.

P11. Seth also argues that the trial court erred in finding that Seth’s age was immaterial. This appears to be an attack on the applicability of Orr v. Academy Louisiana Co., 157 So. 3d 44, 2013 WL 1809878 (La. Ct. App. 2013), an unpublished opinion the trial court cited in support of its conclusion that an unlocked or readily accessible bicycle does not constitute a dangerous condition. In Orr, a woman was injured when she was struck by an adult male riding a bicycle in Academy Sports and Outdoors. 157 So. 3d 44, Id. at *1.

P12. It is not disputed that Seth was an invitee at the time of his injury, and he acknowledges that the duty owed him was not in any way heightened due to his status as a minor. What Seth [**8] appears to be arguing is that the trial court incorrectly considered evidence of contributory negligence in determining whether a dangerous condition existed. Seth had learned how to ride a bicycle by the age of five and had been involved in other bicycle accidents prior to the one at Wal-Mart. Again, Seth’s argument necessarily depends on whether an unlocked or readily available bicycle constitutes a dangerous condition. If an unlocked or readily accessible bicycle does not constitute a dangerous condition, it does not matter whether a person of Seth’s age, experience, and intelligence could have perceived the danger because the danger did not exist. Because Seth failed to show how an unlocked or readily available bicycle constituted a dangerous condition, this issue is without merit.

P13. THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.

Based upon this Mississippi decision a greater burden is not placed upon groups taking minor’s out of the country. Those requirements are to research all the possible risks the student may face and to include those risks in the release.

Colyer v. First United Methodist Church of New Albany, 2016 Miss. App. LEXIS 160

State: Mississippi: Court of Appeals of Mississippi

Plaintiff: Deliah Colyer, as Natural Mother and Next Friend of Marshuan Braxton, Deceased, and on Behalf of all Wrongful Death Beneficiaries of Marshuan Braxton, Deceased

Defendant: First United Methodist Church of New Albany and John Does 1-15

Plaintiff Claims: negligence

Defendant Defenses: no negligence and release

Holding: for the plaintiff

Year: 2016

This case concerns a young man who died during a mission trip to Costa Rica. A mission trip is where US citizens, generally go to a third world (or in their mind’s third-world country and perform public service. In this case, the mission was to fly to Costa Rica and construct a sanctuary in Villa Briceno.

The trip was led by the associate pastor of the defendant church. The trip had nine adults and six minors, including the deceased. There were also another four adults and one minor from another church on the trip.

The participants or their parents had to sign a “New Albany First United Methodist Church Youth Medical / Parent Consent form and a Parental Consent form. Braxton also signed a document entitled “Int. Missionary Profile and Release of Claim.”

On the way to the site after landing, the group stopped to pick up lunch. The group then proceeded to a beach to have lunch. The group split up into several smaller groups and went different directions along the beach. The deceased and another boy and two adults when to a rock formation and climbed it. A large wave crashed over them and swept the deceased off the rock into the ocean. Two people were able to swim back to the rock and eventually get out of the ocean.

A lawsuit was filed by the deceased mother, who was not the guardian of the deceased. The trial court, in Mississippi called the circuit court, dismissed the case and the plaintiff’s filed this appeal.

Analysis: making sense of the law based on these facts.

The court reviewed what was required in Mississippi to prove a negligence claim. “The elements of a prima facie case of negligence are duty, breach, causation, and damages.”

The first issue was the duty owed by the church to the deceased. The defendants admitted that they owed a duty to the deceased; however, the defendant argued that duty was diminished due to the age of the deceased, 17. However, the court found under Mississippi law the age of the victim was not at issue. The duty was the same under the law to anyone who was not an adult. The issue was one for the jury to decide what constituted proper and adequate supervision over the deceased.

The court also gave credence to the idea that the church failed to supervise the deceased by not researching the ocean and rocks first.

Additionally, Colyer alleges other acts of negligence: (1) failure to research the dangers of the Pacific coast and (2) allowing the children, including Braxton, to go onto a dangerous rock structure on the coast of the Pacific Ocean without any knowledge of oceanic activities in Costa Rica.

The next issue was whether the documents signed by the deceased family were valid. The court determined the legal issue in a very scary way.

The deceased’s grandmother was his guardian and signed the documents. However, a guardian does acquire all the legal interests in a minor that a parent has. The guardian has legal control and responsibility of the minor but may not have any other valid interest. In this case, the mother still maintained a recognizable interest in the deceased, a consortium type of claim loss of love, future earnings in some states, etc. She is the plaintiff in the case, and thus the release was not written broadly enough, in fact, probably could not be written broadly enough, for the release to stop the mother’s lawsuit, when it was signed by the guardian. The guardian can sign for the minor but not the parents. One adult cannot sign away another adult’s right to sue.

It is undisputed that the parties in this appeal are not the same parties that executed the waivers. It appears that one of the waivers was signed by Howell, who was Braxton’s grandmother. She signed a “parental consent form,” but she is not a party to this action. Braxton, a seventeen-year-old minor at the time, appeared to have signed the release waiver.

The court then looked into this issue. First because the deceased was a minor, he could not, by law sign the contract (release).

The defendant argued that because the mother was a third party beneficiary of the contract to send the deceased on the trip, she was bound by the contract. However, the court referred to basic contract law that said there was no meeting of the minds. Because the mother did not sign the contract or was not mentioned in the contract she did not have the requirements necessary to be a party to the contract. Therefore, she was not bound by the contract.

The appellate court overruled the trial court find the release did not meet the necessary requirements to stop a lawsuit under Mississippi law.

There was a concurring opinion this decision. That means one of the judges agreed with the decision but wanted to emphasize some point of the law or agreed with the decision overall but for a different legal reasoning. The concurring decision put more emphasize the duties owed to the deceased.

In this case, a duty clearly arose from the relationship between Braxton, a seventeen-year-old minor, and Amanda, the associate pastor and leader of FUNA’s youth mission trip. At the very least, FUNA, by and through its employee, Amanda, bore a duty to use ordinary care to plan and supervise this international mission trip composed of church members to Costa Rica and its shores on the Pacific Ocean. As the facts of this case reflect, a duty also arose and existed to supervise Braxton on the rock formations of the Costa Rica Pacific coastline.

Consequently, the concurring decision believed there was a real issue as to whether the church through its employee, failed to warn against the risk of the beaches and Pacific Ocean. Then the judge seemed to have piled on for failing to check US State Department for travel advisories.

…but she admitted to failing to check with the United States State Department online travel advisory warnings, or any other travel advisories, as to any unsafe beach, tide, or surf conditions in Costa Rica.

(Since when as the state department issued warnings about beaches, the ocean or surf?)

In planning and supervising this trip, a duty existed to warn of the hidden dangers and perils not in plain view that FUNA and its mission trip leader, Amanda, knew, or should have known, existed. Additionally, once the tide rose and the large waves knocked the adults down, Amanda bore a duty to supervise and warn Braxton of the dangerous conditions.

The concurring opinion then addressed the releases in the case. The courts’ reasoning on why the releases where void is because they contained no language warning of the risks of the trip, specifically the risk of the ocean.

The waivers contained no language regarding the liability or risks of recreational activities such as hiking, swimming, or rock climbing on Costa Rica’s beaches on the Pacific Ocean or the risks of the dangerous riptides and dangerous ocean surf.

This requirement is occurring more frequently lately. The courts want to see a list of the risks that can cause injury to the plaintiff in the release. That means there must be more than the legalese necessary for the release to be valid under state law, there must be a list of the risks to the plaintiff. More importantly the risks must include the risk that caused injury to the plaintiff.

The concurring opinion also found that the requirements for a release under Mississippi law had not been met.

Public policy prohibits the use of preinjury waivers of liability for personal injury due to future acts of a defendant’s own negligence. (waiver unenforceable where it did not express intent of student to accept any heightened exposure to injury caused by malfeasance of instructor’s failure to follow safety guidelines); For a waiver to be valid and enforceable, it must not be ambiguous, and it must be specific in wording as to the liability. Waivers will be strictly construed against the defendant. When a waiver contains ambiguous language, it cannot be construed as a waiver of liability for injuries that result from the negligence of the defendant.

Here the lack of information in the release about the risks of the trip and the ocean would have made the release unenforceable according to the concurring judge.

So Now What?

The first issue of concern is the court gave the plaintiff’s a lot of room to bring in far-flung claims of negligence to the trial. Basically, if this stands, you will have to have gone to a site and researched the risks of the site and getting to and from a site before ever taking kids from Mississippi there.

Although this is considered normal when in the outdoors, it has not been the standard of care for travel in communities, cities or normal life. Even though the defendant worked with a local missionary before the trip, the court thought that might not have been enough. The employee of the defendant in charge of the trip had not been to the site and examined it where the deceased died.

The release issue is next and creates a nightmare for recreation providers. If a minor is under the court-ordered  control of a guardian, both the guardian and the minor’s parent, at least in Mississippi, must sign the release as both have an interest that can be used to sue for the minor’s injuries or as in this case, death.

Overall, the appellant decision is scary in the burdens it places upon people organizing trips for minors, which leave the country or possibly even go next door. The entire trip must be researched in advance, the risks researched and examined, and those risks must be provided to the minors and their parents traveling on the trip, or included in the release.

The overview of the case sums the issue up. A hazardous condition was sitting on a rock near the ocean.

It was an error to grant appellee church summary judgment in a wrongful-death suit filed by the appellant, a deceased minor’s mother, because there was a genuine issue of material fact as to whether the church adequately supervised the minor, whether the child should have been warned of a known hazardous condition, and whether the minor was negligently allowed to engage in dangerous activity….

What is not brought up in this decision is whether or not the release, if valid, would have stopped the suit.

clip_image002What do you think? Leave a comment.

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Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants.

Dissent slams the majority and rightly so for ignoring the fact the plaintiff was drunk before his scuba accident and signed the release fraudulently.

Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375

State: Mississippi

Plaintiff: Michael Turnbough

Defendant: Janet Ladner

Plaintiff Claims: negligence in planning and supervising dives

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 1999

This is a simple case with disastrous results for providers of recreation activities in Mississippi.

The plaintiff was  certified as a scuba diving in the 80’s.  He wanted to start diving again so he took another scuba course from the defendant. Before taking the course the plaintiff was given a release to sign.

The plaintiff leaned over to another student in the class who was an attorney and asked the attorney if the release was enforceable. The attorney said no.

Upon learning from Ladner that all the participants would be required to execute a release in favor of her and the Gulfport Yacht Club in order to participate in the class, Turnbough questioned a fellow student who also happened to be an attorney. After Turnbough’s classmate informed him that such releases were unenforceable, Turnbough then executed the document entitled “Liability Release and Express Assumption of Risk.”

The class was over six weeks. At the end of the six weeks, there were four open water dives. The first two dives were from a beach. The plaintiff’s first beach dive was cut short because his tank was leaking. The plaintiff had no problems on the second dive.

The next day the open-water  dives were from a boat. The dives were supposed to be to a depth of 60’. However, boat had problems so the first dive was only to 48’. The second dive went to 60′, and the dive instructor calculated the dive was to last 38 minutes.

On the way home that night the plaintiff started to experience the bends. The plaintiff spent five days attempting to get in touch with the dive instructor who when reached on Friday, told him to call a dive hotline. The hotline told him to get to a dive hospital, in New Orleans. The plaintiff got to the hospital and seems to have recovered from the bends but was told he could never dive again.

The plaintiff sued. The trial court dismissed the complaint based upon a motion for summary judgment filed by the defendant based upon the release. The appellate court upheld that decision, and the plaintiff appealed the decision to the Mississippi Supreme Court which issued this opinion.

Analysis: making sense of the law based on these facts.

The court first looked at the law of releases in Mississippi. The first statement, laws are looked upon with disfavor in Mississippi, was actually a true statement in this case by this court. (A first.) “The law does not look with favor on contracts intended to exculpate a party from the liability of his or her own negligence, although, with some exceptions, they are enforceable.”

The court then continued and laid out the requirements for a release to be valid, which at best are lost enough to make any release difficult to determine if it might even be valid.

However, such agreements are subject to close judicial scrutiny and are not upheld unless the intention of the parties is expressed in clear and unmistakable language. “Clauses limiting liability are given rigid scrutiny by the courts, and will not be enforced unless the limitation is fairly and honestly negotiated and understandingly entered into.

The wording of an exculpatory agreement should express as clearly and precisely as possible the extent to which a party intends to be absolved from liability. Failing that, we do not sanction broad, general “waiver of negligence” provisions, and strictly construe them against the party asserting them as a defense.

Deciphering the Supreme Court statements, a release in Mississippi must:

·        The intention must be expressed in clear and unmistakable language.

·        The limitation in the release is fair and honestly negotiated.

·        The language must be clear and precisely written that absolves a party of liability.

Meaning you must use the term negligence in a release in Mississippi, and that negligence must refer specifically to the actions of the defendant that are intended to be precluded. Those actions must specifically include the actions the plaintiff is complaining of. The language stating the defendant is not liable must be clear and precisely written.

The court then muddied the waters further with this statement: “In further determining the extent of exemption from liability in releases, this Court has looked to the intention of the parties in light of the circumstances existing at the time of the instrument’s execution.

The court then justified its reasoning with this equally confusing and muddled statement.

Assuming Turnbough was aware of the inherent risks in scuba diving, it does not reasonably follow that he, a student, intended to waive his right to recover from Ladner for failing to follow even the most basic industry safety standards.

The court then went back to explain what was required in a release in Mississippi.

We have held in Quinn that contracts attempting to limit the liabilities of one of the parties would not “be enforced unless the limitation is fairly and honestly negotiated and understood by both parties.”

As we saw in Oregon (See Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.) the requirements for negotiation are almost fatal. The guest must have the opportunity to change the terms or the release or negotiate a way to avoid the release by paying more money or other such opportunity.

Then the court reinforced the requirements that the release be negotiated.

In this case, Turnbough signed a pre-printed contract, the terms of which were not negotiated. Since the contract was not negotiated and contained a broad waiver of negligence provision, the terms of the contract should be strictly construed against the party seeking to enforce such a provision.

The court concluded:

Although waivers are commonly used and necessary for some activities and the attendant risks and hazards associated with them, those who wish to relieve themselves from responsibility associated with a lack of due care or negligence should do so in specific and unmistakable terms. The agreement in this case fails to do that.

There was a dissent in this case, which brought out several factual issues seemingly ignored by the rest of the Supreme Court and looked at the legal issues in a different way.

The first was a brilliant analysis of the facts from the stand point of contract law. The plaintiff signed a contract with no intention of fulfilling the contract.

Turnbough then proceeded to sign the release but he now seeks to have the release invalidated on the basis that such releases are unenforceable. Turnbough’s conduct in this matter shows that he entered into a binding contract with no intention of honoring it and every intention of breaking it at a later time should it become convenient.

Signing a contract without the intention of fulfilling the contract is fraud and subjects the fraudulent party with being forced to uphold the contract and in some cases pay damages for the fraudulent acts.

The dissent then went through the release and pointed out the places in the release that the requirements the majority insist upon were in the release.

The final issue was the plaintiff had consumed several alcoholic beverages right before his dive contrary to the instruction of the dive instructor.

Finally, the record in this case indicates that Turnbough, after signing a release he did not intend to honor, admittedly consumed several alcoholic beverages at a local cabaret just hours before his dive in violation of clear warnings given to him by Ladner.

Finally, the dissent sort of let the majority have it.

Today’s majority opinion favors those who recklessly ignore sober warnings, intentionally sign agreements that they have no intention of fulfilling and then throw themselves upon the mercy of the Courts to reward their dishonest and reckless behavior. This Court should not reward such conduct. I would therefore affirm the trial court’s grant of summary judgment in favor of Ladner.

So Now What?

As much as you may want to cheer the dissent in this opinion both for the clarity of the decision and the truthfulness that he brings to the opinion, the majority rules and releases, if at all possible, to write in Mississippi will be difficult to enforce.

First releases in Mississippi must have a long list of the risks which the release might cover to be valid. The release must contain more than the legalese needed in most other states. The injuries the plaintiff might complain of, must be something the plaintiff read about in the release.

The secret handshake that basically removes Mississippi from a state supporting release law is the “fair and honest negotiation” clause. That means the parties must negotiate for the release to be valid. Explained another way, the plaintiff must be presented with the opportunity to take the class or do the activity without signing a release.

So if you offer the opportunity to take the scuba class in this case for $500 by signing a release, you can take the class without signing a release for $1000.00.

However, most insurance policies for outdoor recreation activities and all for scuba lessons require the scuba instructor to use a release. So in Scuba and most other recreational activities the defendant is caught between a rock and a hard place. Make the release valid under Mississippi law and do so without insurance or maintain insurance, temporarily until your insurer finds out your release is invalid.

This requirement is almost doomed to stop releases in Mississippi.

One option, which probably won’t work in Mississippi, that you could write into a release, which I have used for several years, is a breach of contract clause. If you sign the contract and then attempt to breach the contract you are subject to greater damages. However, this is a tricky clause. Doing so without it appearing to be indemnification, which is not allowed by most states, and enforceable requires understanding the law and the language.

However, that still pales in front of the requirement to negotiate the release.

Another issue in this case that the dissent argued that in other cases might go differently is signing the release having no intention of fulfilling the contract. Meaning signing the release and intending to sue if you were injured. Although the dissent felt this was a fraudulent act which should void the release. In many other states, this might be ignored unless the language of the release was specific in stating that the parties or signor intended to fulfill the contract and understood that failure to enforce the agreement would create damages.

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Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375

Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375

Michael Turnbough v. Janet Ladner

NO. 97-CT-01179-SCT

SUPREME COURT OF MISSISSIPPI

754 So. 2d 467; 1999 Miss. LEXIS 375

December 9, 1999, Decided

PRIOR HISTORY: [**1] COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/04/1997. TRIAL JUDGE: HON. KOSTA N. VLAHOS.

Original Opinion of December 18, 1998, Reported at: 1998 Miss. App. LEXIS 1011.

DISPOSITION: REVERSED AND REMANDED.

CASE SUMMARY:

COUNSEL: ATTORNEYS FOR APPELLANT: JOE SAM OWEN, ROBERT P. MYERS, JR.

ATTORNEYS FOR APPELLEE: ROBERT M. FREY, MICHAEL E. McWILLIAMS.

JUDGES: McRAE, JUSTICE. SULLIVAN AND PITTMAN, P.JJ., BANKS AND WALLER, JJ., CONCUR. MILLS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J., SMITH AND COBB, JJ.

OPINION BY: MCRAE

OPINION

[*468] ON WRIT OF CERTIORARI

NATURE OF THE CASE: CIVIL – PERSONAL INJURY

EN BANC.

McRAE, JUSTICE, FOR THE COURT:

P1. Michael Turnbough suffered decompression sickness after participating in a certification scuba dive led by Janet Ladner. Turnbough subsequently filed suit against Ladner alleging she was negligent in planning and supervising the dive. Ladner filed a motion for summary judgment, which the Circuit Court of Harrison County granted based on an anticipatory release that Turnbough had signed in favor of Ladner. Turnbough appealed, the Court of Appeals affirmed, and we granted certiorari. We [**2] reverse the Court of Appeals, as well as the trial court, and remand for further proceedings consistent with this opinion. We hold that the release executed by Turnbough did not exclude from liability the type of negligence which forms the basis for Turnbough’s complaint; and therefore, the trial court’s grant of summary judgment was error.

FACTS

P2. Michael Turnbough decided in 1994 that he wanted to obtain his open-water certification as a scuba diver. He had previously been certified as a scuba diver, but his certification had expired back in the 1980’s. Turnbough enrolled in a scuba diving class offered by Gulfport Yacht Club and taught by Janet Ladner. Upon learning from Ladner that all of the participants would be required to execute a release in favor of her and the Gulfport Yacht Club in order to participate in the class, Turnbough questioned a fellow student who also happened to be an attorney. After Turnbough’s classmate informed him that such releases were unenforceable, Turnbough then executed the document entitled “Liability Release and Express Assumption of Risk.” The release, in pertinent part, stated

Further, I understand that diving with compressed [**3] air involves certain inherent risks: decompression sickness [and others]. . . .

P3. At the conclusion of the six- week course, the class convened in Panama City, Florida to perform the first of their “check-out dives” in order to receive certification. On Saturday, July 23, 1994, the class performed two dives from the beach. However, Turnbough’s participation in the first dive was cut short by a leaking tank. He completed the second dive with no apparent problems. The next morning, Sunday, July 24, 1994, the class performed two dives from a dive boat. Two dives of sixty feet each were scheduled, but because the dive boat had engine problems, the first dive site was only forty-six to forty-eight feet deep. The second dive descended to sixty feet, and Ladner calculated the maximum time allowable for the second dive as thirty-eight minutes.

P4. Turnbough began to feel the first effects of decompression sickness, commonly known as “the bends,” on his way back to Gulfport that evening. The next day Turnbough began experiencing a pain that he described as “arthritic” in his joints. On Tuesday, Turnbough began attempting to contact Ladner to inform her of his symptoms. He continued [**4] to make attempts to contact her throughout the week, finally reaching her on Friday. Ladner advised Turnbough to call a diver’s hotline, which in turn instructed him to seek medical attention at a dive hospital. Turnbough received treatment for decompression sickness at the Jo Ellen Smith Hospital in New Orleans. Turnbough states that he was told by the doctors at the hospital who ran the dive profile that the dive was too long, and there should have been a decompression stop before the [*469] divers surfaced. He further states that he was told that he could never dive again. Tom Ebro, an expert in water safety and scuba diving, opined that Ladner was negligent in planning the depths of the dives as well as in failing to make safety stops and that these errors significantly increased the risk that her students might suffer decompression illness.

P5. On February 10, 1995, Turnbough filed suit against Ladner. In his complaint, Turnbough alleged that Ladner was negligent in her supervision of the dive and in exposing him to decompression injury. Ladner filed a motion for summary judgment on October 27, 1995, based on the release Turnbough had signed. The circuit court granted the motion, [**5] and dismissed the case.

P6. Turnbough appealed, asserting that the release should be declared void as against public policy, and the case was assigned to the Court of Appeals. The Court of Appeals found that the release was a contract of a purely personal nature and did not violate Mississippi public policy because scuba diving does not implicate a public concern. We subsequently granted certiorari.

DISCUSSION

P7. [HN1] The law does not look with favor on contracts intended to exculpate a party from the liability of his or her own negligence although, with some exceptions, they are enforceable. However, such agreements are subject to close judicial scrutiny and are not upheld unless the intention of the parties is expressed in clear and unmistakable language. 57A Am. Jur. 2d Negligence § 65, at 124 (1989); see also Willard Van Dyke Prods., Inc. v. Eastman Kodak Co., 12 N.Y.2d 301, 189 N.E.2d 693, 695, 239 N.Y.S.2d 337 (N.Y. 1963) (“clear and unequivocal terms”). “Clauses [HN2] limiting liability are given rigid scrutiny by the courts, and will not be enforced unless the limitation is fairly and honestly negotiated and understandingly entered into. [**6] ” Farragut v. Massey, 612 So. 2d 325, 330 (Miss. 1992) (quoting 17 Am. Jur. 2d Contracts § 297, at 298 n.74 (1991).

P8. [HN3] The wording of an exculpatory agreement should express as clearly and precisely as possible the extent to which a party intends to be absolved from liability. Bradley Realty Corp. v. New York, 54 A.D.2d 1104, 389 N.Y.S.2d 198, 199-200 (N.Y. App. Div. 1976); Hertzog v. Harrison Island Shores, Inc., 21 A.D.2d 859, 251 N.Y.S.2d 164, 165 (N.Y. App. Div. 1964). Failing that, we do not sanction broad, general “waiver of negligence” provisions, and strictly construe them against the party asserting them as a defense. See Leach v. Tingle, 586 So. 2d 799, 801 (Miss. 1991); State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So. 2d 1371, 1372 (Miss. 1981).

P9. [HN4] In further determining the extent of exemption from liability in releases, this Court has looked to the intention of the parties in light of the circumstances existing at the time of the instrument’s execution. Farragut, 612 So. 2d at 330. The affidavit of [**7] Tom Ebro, an expert in water safety and scuba diving, shows that the alleged negligent acts on which Turnbough’s claim is based could not have been contemplated by the parties. Ebro stated that Ladner’s instruction fell “woefully short” of minimally acceptable standards of scuba instruction. Specifically, he averred that Ladner negligently planned the depths of the dives and failed to make safety stops which significantly increased the risk of decompression illness, especially with a student class. Assuming Turnbough was aware of the inherent risks in scuba diving, it does not reasonably follow that he, a student, intended to waive his right to recover from Ladner for failing to follow even the most basic industry safety standards. This is especially true since Ladner, who held herself out as an expert scuba instructor and is presumed to have superior knowledge, is the very one on whom Turnbough depended for safety. In this case it appears that Ladner may have miscalculated the amount of time for the dive or may have failed to take into account [*470] previous dives. This is important because nitrogen builds up in the body while underwater and, with too much nitrogen, the “bends” and permanent [**8] damage including loss of life may occur. Surely it cannot be said from the language of the agreement that Turnbough intended to accept any heightened exposure to injury caused by the malfeasance of an expert instructor. Turnbough, by executing the release, did not knowingly waive his right to seek recovery for injuries caused by Ladner’s failure to follow basic safety guidelines that should be common knowledge to any instructor of novice students.

P10. We have held in Quinn that [HN5] contracts attempting to limit the liabilities of one of the parties would not “be enforced unless the limitation is fairly and honestly negotiated and understood by both parties.” Quinn v. Mississippi State Univ., 720 So. 2d 843, 851 (Miss. 1998) (citation omitted). In this case, Turnbough signed a pre-printed contract, the terms of which were not negotiated. Since the contract was not negotiated and contained a broad waiver of negligence provision, the terms of the contract should be strictly construed against the party seeking to enforce such a provision. See Leach v. Tingle, 586 So. 2d at 801; State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So. 2d at 1372. [**9]

P11. Although waivers are commonly used and necessary for some activities and the attendant risks and hazards associated with them, those who wish to relieve themselves from responsibility associated with a lack of due care or negligence should do so in specific and unmistakable terms. The agreement in this case fails to do that.

CONCLUSION

P12. We therefore reverse the judgment of the Court of Appeals and the trial court’s summary judgment and we remand this case to the trial court for further proceedings consistent with this opinion.

P13. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

SULLIVAN AND PITTMAN, P.JJ., BANKS AND WALLER, JJ., CONCUR. MILLS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J., SMITH AND COBB, JJ.

DISSENT BY: MILLS

DISSENT

MILLS, JUSTICE, DISSENTING:

P14. The majority finds that summary judgment was not appropriate in this case, and therefore reverses and remands for a trial. Because the trial court was correct in granting summary judgment, I respectfully dissent.

P15. We must determine the validity of an unambiguous release dealing with admittedly hazardous activities signed [**10] with full awareness of all the risks and dangers by Turnbough in favor of Ladner. The record shows that Turnbough consulted a fellow classmate who also happened to be an attorney. Turnbough’s classmate gratuitously informed him that such releases were unenforceable. Turnbough then proceeded to sign the release but he now seeks to have the release invalidated on the basis that such releases are unenforceable. Turnbough’s conduct in this matter shows that he entered into a binding contract with no intention of honoring it and every intention of breaking it at a later time should it become convenient.

P16. Directly addressing the facts of this case, the release in question states in pertinent part:

I, Michael Turnbough, hereby affirm that I have been advised and thoroughly informed of the inherent dangers of skin diving and scuba diving.

Further, I understand that diving with compressed air involves certain inherent risks: decompression sickness [and others]. . . .

I understand and agree that neither my instructor(s) Janet Ladner [nor the Yacht Cub or other participants] may [*471] be held liable or responsible in any way for any injury, death, or other damages to me or my family, [**11] heirs, or assigns that may occur as a result of my participation in this diving class or as a result of the negligence of any party, including the Released Parties, whether passive or active.

P17. In my opinion such unambiguous releases comport with the public policy of the State of Mississippi and should be enforced. The failure to enforce such releases when dealing with obviously risky activities, such as scuba diving, will have a chilling effect on the numerous sporting activities and other events of obvious danger. We should allow reasonable adults to assume such risks when they choose to engage in activities of greater than usual danger.

P18. Releases are not only meant to save the party in whose favor it is executed from being held ultimately liable, but are also intended to allow such a party to avoid the costs and anxiety of having to fully litigate the matter. Summary judgment is the appropriate mechanism to do just that. Summary judgment may be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled [**12] to a judgment as a matter of law.” M.R.C.P. 56(c). “A ‘material’ fact tends to resolve any of the issues, properly raised by the parties.” Mississippi Road Supply Company, Inc. v. Zurich-American Insurance Company, 501 So. 2d 412, 414 (Miss. 1987) (quoting Pearl River County Board of Supervisors v. South East Collections Agency, Inc., 459 So. 2d 783, 785 (Miss.1984)).

P19. Finally, the record in this case indicates that Turnbough, after signing a release he did not intend to honor, admittedly consumed several alcoholic beverages at a local cabaret just hours before his dive in violation of clear warnings given to him by Ladner. Today’s majority opinion favors those who recklessly ignore sober warnings, intentionally sign agreements that they have no intention of fulfilling and then throw themselves upon the mercy of the Courts to reward their dishonest and reckless behavior. This Court should not reward such conduct. I would therefore affirm the trial court’s grant of summary judgment in favor of Ladner.

P20. I respectfully dissent.

PRATHER, C.J., SMITH AND COBB, JJ., JOIN THIS OPINION.


Colyer v. First United Methodist Church of New Albany, 2016 Miss. App. LEXIS 160

Colyer v. First United Methodist Church of New Albany, 2016 Miss. App. LEXIS 160

Deliah Colyer, as Natural Mother and Next Friend of Marshuan Braxton, Deceased, and on Behalf of all Wrongful Death Beneficiaries of Marshuan Braxton, Deceased, Appellant v. First United Methodist Church of New Albany and John Does 1-15, APPELLEES

NO. 2014-CA-01636-COA

COURT OF APPEALS OF MISSISSIPPI

2016 Miss. App. LEXIS 160

March 29, 2016, Decided

PRIOR HISTORY: [*1] COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/22/2014. TRIAL JUDGE: HON. ROBERT WILLIAM ELLIOTT. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO APPELLEES.

DISPOSITION: REVERSED AND REMANDED.

COUNSEL: FOR APPELLANT: JOSHUA A. TURNER.

FOR APPELLEES: WILTON V. BYARS III, JOSEPH LUKE BENEDICT.

JUDGES: BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. LEE, C.J., BARNES AND FAIR, JJ., JOIN THIS OPINION. WILSON, J., JOINS THIS OPINION IN PART. CARLTON, J., SPECIALLY CONCURRING.

OPINION BY: JAMES

OPINION

NATURE OF THE CASE: CIVIL – WRONGFUL DEATH

BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.

JAMES, J., FOR THE COURT:

P1. This case arises out of a wrongful-death action filed by Deliah Colyer on behalf of her deceased son, Marshuan Braxton. The trial court granted summary judgment in favor of First United Methodist Church of New Albany. On appeal, Colyer argues that the trial court erred by granting summary judgment. Finding error, we reverse and remand this case for a trial.

FACTS

P2. On June 20, 2009, Braxton, along with other minors and adult chaperones, flew from Memphis, Tennessee, to Costa Rica on a mission trip. Braxton, a seventeen-year-old, was expecting to begin his senior year at New Albany High School when classes [*2] resumed for the 2009-2010 school year. The purpose of the mission trip was to construct a sanctuary in Villa Briceno, Costa Rica, and conduct other mission activities. The trip was led by Amanda Gordon, associate pastor of First United Methodist Church of New Albany, Mississippi (FUNA). Amanda coordinated the trip with missionary Wil Bailey through the regional United Methodist missions group. There were fifteen members on the mission trip from FUNA, with nine adults and six minors. Five other individuals, four adults and one minor, from First United Methodist Church of Brandon, Mississippi, also joined.

P3. Before leaving for the mission trip, Elnora Howell, Braxton’s legal guardian and grandmother, signed two documents before a notary public as a condition of Braxton participating. These documents included a New Albany First United Methodist Church Youth Medical / Parent Consent form and a Parental Consent form. Braxton also signed a document entitled “Int. Missionary Profile and Release of Claim” that contained warnings about the dangers associated with participating in the mission trip.

P4. The group arrived in San Isidro, Costa Rica, on June 20. On June 21, 2009, the group left [*3] San Isidro to travel to the worksite in Villa Briceno. Since they expected to ride on the bus for several hours, Bailey suggested they stop for lunch at a scenic site on their way to Villa Briceno. The group stopped and ate at a roadside café. After leaving the café, they stopped at the Dominicalito, a beach, located near the Pacific Ocean. The weather was clear, and there were a few picnic tables in the area. A few locals were also there. The group intended to go on a brief excursion and take photographs. The bus driver suggested two or three areas on the beach for the group to visit.

P5. The group separated into two or three smaller groups and headed to the suggested areas. Braxton, Mattie Carter, and Josh Creekmore, along with adult chaperones, Sam Creekmore and Mike Carter, went to a rock formation and climbed onto it to observe crabs. The adults eventually climbed down and walked behind the rock formation. Braxton, Mattie, and Josh stayed up top and continued to observe the crabs. While Braxton, Mattie, and Josh were still up top, a large wave crashed into the rock formation and knocked them into the ocean.

P6. Mike and Sam immediately climbed back on the rock formation and saw [*4] Braxton, Mattie, and Josh swimming with their heads above water. The wave current, however, began to wash the minors away from the rock formation. Sam instructed them to swim around the rocks into an inlet area to reach safety on the beach. Mike climbed down closer to the water level. A second wave rose and knocked Mike into the ocean, and the current took him in the opposite direction of Braxton, Mattie, and Josh. Mike was eventually rescued by a local Costa Rican resident that had a life jacket and rope. Braxton, unfortunately, disappeared into the water before Mike was rescued. Mattie and Josh, however, were able to swim out onto the beach after being in the water for about five minutes.

P7. Adam Gordon and his wife, Amanda, went to a different area of the beach, but because of the distance and obstructions blocking their view they were unable to see the minors. Adam testified that he was knocked down by a wave at the same time that the wave reached the area where Braxton, Josh, and Mattie were located. Amanda was standing nearby and saw the wave approaching Adam. Amanda yelled to her husband and then saw the wave knock him down. According to the Gordons, only one or two minutes [*5] passed before they had turned the corner of the taller rock formation and could see the rock where Braxton had been located. And it was at that time that they saw Mattie and Josh getting out of the water and Mike being rescued. However, according to Josh, fifteen to twenty minutes passed between Adam being knocked down by the large wave and the minors being swept into the water by another large wave.

P8. The mission-trip members immediately began to seek help after seeing people on the beach reacting and in the water. The locals contacted emergency services by telephone, and residents in the area helped. The ambulance and local authorities arrived. Thereafter, everyone at the beach began to look for Braxton. The mission-trip group stayed on the beach for over three hours after the incident until darkness ended their search. Regrettably, Braxton’s body was found the next day and identified by Amanda, Adam, and Sam.

PROCEDURAL HISTORY

P9. The complaint was filed on November 10, 2011, in the Circuit Court of Union County, Mississippi. FUNA filed its answer and defenses on March 16, 2012, and, after conducting discovery, filed it motion for summary judgment on March 5, 2014. A hearing was [*6] held on April 28, 2014, and resulted in the circuit court granting Colyer’s request for additional time to conduct discovery. Colyer conducted additional discovery and depositions followed by the parties providing supplemental briefing. Another hearing was held on September 16, 2014. After considering all of the sworn evidence and the arguments of counsel, the circuit court found that no genuine issue of material fact existed to support Colyer’s claims of negligence. The circuit court entered an order granting FUNA’s motion for summary judgment on September 23, 2014.

STANDARD OF REVIEW

P10. [HN1] We review the trial court’s grant or denial of summary judgment under a de novo standard. Moss Point Sch. Dist. v. Stennis, 132 So. 3d 1047, 1049-50 (P10) (Miss. 2014).

[HN2] Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific [*7] facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.

Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 88 (P10) (Miss. 2013) (internal citations and quotation marks omitted). “[T]he 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 (P6) (Miss. 2007).

I. The trial court erred by granting summary judgment, as genuine issues of material fact existed.

P11. Colyer alleges that FUNA was negligent and FUNA owed a duty to supervise Braxton while the group was on the mission trip. FUNA’s position is that no negligence existed and that summary judgment was proper. [HN3] The elements of a prima facie case of negligence are duty, breach, causation, and damages. Grisham v. John Q. Long V.F.W. Post, No. 4057 Inc., 519 So. 2d 413, 416 (Miss. 1988); Burnham v. Tabb, 508 So. 2d 1072, 1074 (Miss. 1987). Colyer contends that FUNA owed a duty to Braxton to provide ordinary care while supervising him during this trip. Colyer alleges that the duty was breached, and that the negligent acts or omissions of FUNA caused the death of Braxton.

P12. FUNA agrees that a duty was owed to supervise Braxton, but FUNA contends that Braxton’s age at the time of his death diminishes that duty. Nevertheless, our supreme court has held that [HN4] adequacy of supervision is a question for the jury. Summers v. St. Andrew’s Episcopal Sch., 759 So. 2d 1203, 1215 (PP48-50) (Miss. 2000); see also James v. Gloversville Enlarged Sch. Dist., 155 A.D.2d 811, 548 N.Y.S.2d 87, 88-89 (N.Y. App. Div. 1989). Therefore, [*8] regardless of Braxton’s age, a jury must decide what constitutes proper and adequate supervision. See Todd v. First Baptist Church of W. Point, 993 So. 2d 827, 829 (P12) (Miss. 2008).

P13. There are also disputed facts regarding whether it was reasonable to expect Amanda to give Braxton warning after she witnessed her husband being knocked down by a wave. And we have determined that [HN5] “[c]ontradictory statements by a witness go to the weight and credibility of that witness[‘s] 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.” Jamison v. Barnes, 8 So. 3d 238, 245 (P17) (Miss. Ct. App. 2008) (citation omitted).

P14. Additionally, Colyer alleges other acts of negligence: (1) failure to research the dangers of the Pacific coast and (2) allowing the children, including Braxton, to go onto a dangerous rock structure on the coast of the Pacific Ocean without any knowledge of oceanic activities in Costa Rica.

P15. We conclude that there are genuine issues of material fact as to whether FUNA provided ordinary care while supervising Braxton during this trip, and so we reverse the grant of summary judgment.

II. The trial court erred in granting summary judgment by considering the waivers of Howell and Braxton.

P16. Even though Colyer [*9] raised this issue, it does not appear that the judge considered the waiver. In his opinion, the judge stated:

[The plaintiff] claims that the defendant is liable for the wrongful death of Marshuan Braxton, who die[d] from drowning during a mission trip to Costa Rica on June 21, 2009. Viewing the facts in a light most favorable to the plaintiff, the court finds no genuine issues of material fact exist[ ] to support [the] plaintiff’s claim of negligence against the defendant. Therefore, this Court finds as a matter of law [the] defendant’s motion to dismiss shall be granted.

P17. FUNA admits that it does not appear that the court relied on the release. However, FUNA states that the waivers are valid and bar recovery. It is undisputed that the parties in this appeal are not the same parties that executed the waivers. It appears that one of the waivers was signed by Howell, who was Braxton’s grandmother. She signed a “parental consent form,” but she is not a party to this action. Braxton, a seventeen-year-old minor at the time, appeared to have signed the release waiver.

P18. [HN6] Pursuant to Mississippi Code Annotated section 93-19-13 (Rev. 2013), Braxton could not legally sign a contract of this nature to waive liability.1 Braxton’s contract [*10] was not legally binding because of his age and the nature of the contract. FUNA also alleges that the wrongful-death beneficiaries are bound by the contract of Braxton since they are third-party beneficiaries of Braxton’s contract. [HN7] “[O]rdinary contract principals require a meeting of the minds between the parties in order for agreements to be valid.” Am. Heritage Life Ins. v. Lang, 321 F.3d 533, 538 (5th Cir. 2003) (internal quotations and citations omitted). A contract cannot bind a nonparty. E.E.O.C. v. Waffle House Inc., 534 U.S. 279, 308, 122 S. Ct. 754, 151 L. Ed. 2d 755 (2002).

1 [HN8] “All persons eighteen (18) years of age or older, if not otherwise disqualified, or prohibited by law, shall have the capacity to enter into binding contractual relationships affecting personal property. Nothing in this section shall be construed to affect any contracts entered into prior to July 1, 1976. In any legal action founded on a contract entered into by a person eighteen (18) years of age or older, the said person may sue in his own name as an adult and be sued in his own name as an adult and be served with process as an adult.” See also Garrett v. Gay, 394 So. 2d 321, 322 (Miss. 1981).

P19. The two waivers executed in this case are not binding on Colyer and the trial court was correct in not giving any effect to these two waivers in its opinion.

CONCLUSION

P20. There is sufficient evidence before this Court [*11] to show that genuine issues of material fact exist as to whether FUNA’s supervision was negligent. Therefore, the trial court’s grant of summary judgment is reversed, and this case is remanded for a trial.

P21. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE, C.J., IRVING, P.J., BARNES AND FAIR, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., BARNES AND FAIR, JJ.; WILSON, J., JOINS IN PART. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ISHEE AND GREENLEE, JJ., NOT PARTICIPATING.

CONCUR BY: CARLTON

CONCUR

CARLTON, J., SPECIALLY CONCURRING:

P22. I specially concur with the majority’s opinion in this case, and I write specially to address the material questions of fact raised herein. With respect to the negligence claims raised, the question as to whether a duty to warn arose from the relationship between the parties constitutes a question of law. See Pritchard v. Von Houten, 960 So. 2d 568, 579 (P27) (Miss. Ct. App. 2007). Questions of law are reviewed de novo. Id. at 576 (P20). However, the questions as to causation and foreseeability include material [*12] questions of fact. P23. In this case, a duty clearly arose from the relationship between Braxton, a seventeen-year-old minor, and Amanda, the associate pastor and leader of FUNA’s youth mission trip. At the very least, FUNA, by and through its employee, Amanda, bore a duty to use ordinary care to plan and supervise this international mission trip composed of church members to Costa Rica and its shores on the Pacific Ocean. As the facts of this case reflect, a duty also arose and existed to supervise Braxton on the rock formations of the Costa Rica Pacific coastline. Accordingly, I find that genuine issues of material fact exist as to whether FUNA, through its employee, Amanda, negligently failed to warn of dangerous conditions that she knew or should have known existed on the beaches of Costa Rica’s Pacific Ocean edge, and whether Amanda, as the mission-trip leader, negligently planned and supervised this international mission trip. See Garrett v. Nw. Miss. Junior Coll., 674 So. 2d 1, 3 (Miss. 1996).2

2 In Garrett, 674 So. 2d at 3, the Mississippi Supreme Court relied upon Roberts v. Robertson County Board of Education, 692 S.W.2d 863, 870 (Tenn. Ct. App. 1985), where the Tennessee Court of Appeals imposed a duty of care upon a high-school vocational teacher “to take those precautions that any ordinarily reasonable and prudent person would take to protect his [*13] shop students from the unreasonable risk of injury.”

P24. In Pritchard, 960 So. 2d at 579 (P27),3 we recognized that “[a]n important component of the existence of a duty is that the injury is reasonably foreseeable.” The Pritchard court further explained:

A defendant charged with a duty to exercise ordinary care must only take reasonable measures to remove or protect against foreseeable hazards that he knows about or should know about in the exercise of due care. Such a defendant must safeguard against reasonable probabilities, and is not charged with foreseeing all occurrences, even though such occurrences are within the range of possibility. A defendant whose conduct is reasonable in light of the foreseeable risks will not be found liable for negligence.

Id. at (P29) (internal citations and quotation marks omitted); see also Donald v. Amoco Prod. Co., 735 So. 2d 161, 175 (P48) (Miss. 1999). While duty constitutes an issue of law, causation is generally a question of fact for the jury. Brown v. State Farm Fire & Cas. Co., No. 06-CV-199, 2007 U.S. Dist. LEXIS 40816, 2007 WL 1657417, at *4 (S.D. Miss. June 4, 2007).

3 The court in Pritchard, 960 So. 2d at 579 (P27), found that a vocational teacher “has the duty to take those precautions that any ordinary reasonable and prudent person would take to protect his shop students from the unreasonable risk of injury.”

P25. In Foster ex rel. Foster v. Bass, 575 So. 2d 967, 972 (Miss. 1990), the supreme court stated that “in order to recover for an injury to a [*14] person or property, by reason of negligence or want of due care, there must be shown to exist some obligation or duty toward the plaintiff which the defendant has left undischarged or unfulfilled.” Issues of fact as to foreseeability and breach of duty preclude summary judgment. See Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch. Inc., 759 So. 2d 1203, 1214 (PP48-51) (Miss. 2000) (reversing summary judgment on negligent-supervision claim because issues of fact as to foreseeability existed).

P26. In this case, the record reflects that Amanda served as both the associate minister and youth minister at FUNA. Amanda testified that she was responsible for planning the trip to Costa Rica and that she recruited others to participate in this international mission trip. She provided that she had led youth mission trips before and had traveled with youth groups internationally before. Amanda testified that she had consulted with team leaders from another church who had traveled to Costa Rica on youth mission trips, but she admitted to failing to check with the United States State Department online travel advisory warnings, or any other travel advisories, as to any unsafe beach, tide, or surf conditions in Costa Rica. She also admitted to not instructing or warning Braxton or any other youth [*15] about beach safety or about the dangerous surf or riptides of Coast Rica’s Pacific Coast.4

4 Compare Rygg v. Cnty. of Maui, 98 F. Supp. 2d 1129, 1132-33 (D. Haw. 1999).

P27. Geographically, Costa Rica sits between the Carribean Sea and the Pacific Ocean. The record reflects that the youth group was on the Pacific Ocean side of Costa Rica, and that Braxton and other members of the mission team began climbing on volcanic-rock formations that were separated from the shore by shallow water. Braxton and Josh climbed on and over the rock formation to the Pacific Ocean side, and then they climbed down by the Pacific Ocean’s edge, where they saw some crabs. While watching the crabs, waves from the Pacific Ocean knocked Braxton and Josh off of the rock formation, into the ocean, and into the current of the dangerous riptides. Josh explained that the waves knocked them into different currents.

P28. Regarding the traumatic events, Josh testified that he was standing on the rock formation with Braxton when a wave knocked them off of the rock and into the water. Josh testified that two more waves hit them as they tried to climb back onto the rock. Josh recalled getting pushed back under water after the second wave hit. When he came back [*16] to the surface, Braxton was grabbing his back, and the water had pushed the two of them close enough to the rock that they had fallen off of that they could try to climb back up. When the water from the wave subsided, they slid back down into the water, and Josh and Braxton then became separated by different currents. Josh testified that he was pushed into a current separate from Braxton, taking them in different directions. Josh recalled looking back and watching Braxton climb onto a smaller rock. When a third wave hit them, he and Braxton went under water again, and when he came back up, he could no longer see Braxton. Josh testified that prior to the trip, no one warned him of unsafe tide, surf, waves, or other conditions existing on the Pacific Ocean coast of Costa Rica. He also testified that he brought a swim suit with him on the trip.

P29. The record contains pictures of the location where Braxton was knocked off of the volcanic-rock formation and into the Pacific Ocean. Josh described the top of the rock that he and Braxton climbed on as twenty feet high above the water, and stated that he and Braxton were on the ocean side of the formation, ten feet from the top, when the wave [*17] swept them off. Josh provided that water completely surrounded the rock on all sides, separating the rock from dry sand by approximately thirty to forty feet of ankle-deep water on one side. Josh explained that the water was deeper on the ocean side of the rock where he and Braxton were knocked in the water.

P30. Josh testified that he recalled Adam, a grown man who weighed approximately 340 pounds, slipping into the water before the wave hit him and Braxton. Adam testified that he was knocked down by a seven-to-eight-foot wave. Josh recalled that Adam was swept into the water about fifteen to twenty minutes before a different wave swept him and Braxton into the ocean.

P31. The record reflects existing material questions of fact as to whether the church, through its mission-trip leader and employee, Amanda, negligently breached its duty to Braxton, a minor, to plan and supervise this international mission trip and to warn Braxton of the dangerous beach and surf conditions on Costa Rica’s Pacific coast. Therefore, the trial court erred in granting summary judgment since triable issues of material fact exist in this case. In planning and supervising this trip, a duty existed to warn of [*18] the hidden dangers and perils not in plain view that FUNA and its mission trip leader, Amanda, knew, or should have known, existed. Additionally, once the tide rose and the large waves knocked the adults down, Amanda bore a duty to supervise and warn Braxton of the dangerous conditions.

P32. The trial court’s decision failed to address the Youth Medical/Parental Consent form waivers or their applicability in this case. However, the enforceability of the waivers was argued on appeal, and I write briefly to address this issue. Jurisprudence reflects that the preinjury waivers herein are unenforceable with respect to the negligence claims for wrongful death raised in this case against the church for its negligence in planning, supervising, and failing to warn of the dangerous beach and ocean conditions on this mission trip to Costa Rica. See Ghane v. Mid-S. Inst. of Self Def. Shooting Inc., 137 So. 3d 212, 221-22 (P23) (Miss. 2014). The language in the waivers in this case applied to church-mission-related activities and related risks. The waivers contained no language regarding the liability or risks of recreational activities such as hiking, swimming, or rock climbing on Costa Rica’s beaches on the Pacific Ocean or the risks of the dangerous riptides and dangerous ocean surf. [*19] Public policy prohibits the use of preinjury waivers of liability for personal injury due to future acts of a defendant’s own negligence. See Turnbough v. Ladner, 754 So. 2d 467, 469 (P8) (Miss. 1999) (waiver unenforceable where it did not express intent of student to accept any heightened exposure to injury caused by malfeasance of instructor’s failure to follow safety guidelines); Rice v. Am. Skiing Co., No. CIV.A.CV-99-06, 2000 Me. Super. LEXIS 90, 2000 WL 33677027, at *2 (Me. Super. Ct. May 8, 2000). For a waiver to be valid and enforceable, it must not be ambiguous and it must be specific in wording as to the liability. See Turnbough, 754 So. 2d at 469 (P8). Waivers will be strictly construed against the defendant. Id. When a waiver contains ambiguous language, it cannot be construed as a waiver of liability for injuries that result from the negligence of the defendant. Id. at 470 (P9).

P33. As stated, the evidence in the record reflects material questions of fact exist as to foreseeability and breach of duty for negligent failure to plan and supervise the mission trip and failure to warn of the dangerous beach and surf conditions of Costa Rica’s Pacific coast.5 Therefore, summary judgment must be reversed and the case remanded.

5 Compare Diamond Crystal Salt Co. v. Thielman, 395 F.2d 62, 65 (5th Cir. 1968) (plaintiff was injured on a guided tour of a mine where “the danger was not obvious, and if the dangerous condition [*20] had in fact been observed it would not have been appreciated by persons of ordinary understanding”); see also Martinez v. United States, 780 F.2d 525, 527 (5th Cir. 1986) (duty to warn at shallow swimming area of federal park); Wyatt v. Rosewood Hotels & Resorts LLC, 47 V.I. 551, 2005 WL 1706134, at *4-5 (D.V.I. 2005).

LEE, C.J., BARNES AND FAIR, JJ., JOIN THIS OPINION. WILSON, J., JOINS THIS OPINION IN PART.


The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837

The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837

The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, La Quinta Properties, Inc., La Quinta Development Partners, LP, Securitas Security Services Usa, Inc., Harry J. Burnham, Jeanette Ollie, Individually and d/b/a Shaw Athletic Youth Association, and John Does 1 through 5, Defendants

CASE NO. 2:06CV56

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI, DELTA DIVISION

2007 U.S. Dist. LEXIS 16837

March 8, 2007, Decided

COUNSEL: [*1] For The Wrongful Death Beneficiaris of Christopher Elliott, Deceased, Plaintiff: Dana J. Swan, LEAD ATTORNEY, CHAPMAN, LEWIS & SWAN, Clarksdale, MS; David Randall Wade, LEAD ATTORNEY, DAVID R. WADE, ATTORNEY, Florence, MS.

For LaQuinta Corporation, LaQuinta Properties, Inc., LaQuinta Development Partners, LP, Defendants: Monte L. Barton, Jr., LEAD ATTORNEY, COPELAND, COOK, TAYLOR & BUSH, Ridgeland, MS; Philip J. Chapman, COPELAND, COOK, TAYLOR & BUSH – Ridgeland, Ridgeland, MS.

For Securitas Security Services USA, Inc., Harry J. Burnham, Defendants: Dorrance Aultman, LEAD ATTORNEY, AULTMAN, TYNER & RUFFIN, LTD., Hattiesburg, MS; William Heath Hillman, LEAD ATTORNEY, AULTMAN, TYNER, MCNEESE & RUFFIN, Hattiesburg, MS.

JUDGES: Michael P. Mills, UNITED STATES DISTRICT JUDGE.

OPINION BY: Michael P. Mills

OPINION

MEMORANDUM OPINION

This cause comes before the court on the plaintiffs’ motion to remand [14] as well as the plaintiffs’ motion [24] to amend to add non-diverse defendants. The court has reviewed the briefs and submissions and is prepared to rule.

This is an action for the wrongful death of sixteen year old minor Christopher Elliot. Christopher drowned at the La Quinta [*2] Inn while on a trip with a community youth basketball team. This case was removed to federal court on March 31, 2006 from the Circuit Court of Bolivar County based on diversity of citizenship and federal question jurisdiction. Defendant Jeanette Ollie did not join in the removal and the other defendants have alleged that Ms. Ollie has been fraudulently joined in this action. The defendants also assert that any stated cause of action against Ms. Ollie is preempted by the Federal Volunteer Protection Act, giving rise to federal jurisdiction. The plaintiffs assert that they have stated claims against Ms. Ollie upon which relief can be granted, and further contend that there is no federal question in this lawsuit.

The defendant’s claim that the Federal Volunteer Protection Act, 42 U.S.C. 14501 et seq., gives rise to a federal question is incorrect. In Richardson v. United Steelworkers of America, the Fifth Circuit stated:

One clear feature of the “arising under” requirement, however, is the well-pleaded complaint rule: whether a claim arises under federal law must be determined from the allegations in the well-pleaded complaint. See generally [*3] Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3566 (2d ed.1984). In removal cases removed, the plaintiff’s well-pleaded complaint, not the removal petition, must establish that the case arises under federal law. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229, 3232, 92 L. Ed. 2d 650 (1986); Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S. Ct. 2841, 2847, 77 L. Ed. 2d 420 (1983). This requires the court to determine federal jurisdiction only from those allegations necessary to state a claim or, stated alternatively, a federal court does not have jurisdiction over a state law claim because of a defense that raises a federal issue. Franchise Tax Bd., 103 S. Ct. at 2846; Gully v. First Nat’l Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Under the well-pleaded complaint rule, federal preemption is generally a defensive issue that does not authorize removal of a case to federal court. See Powers, 719 F.2d at 764-65. [*4]

864 F.2d 1162, 1168 (5th Cir. 1989).

While it is true that when a federal cause of action completely preempts a state cause of action, any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law, that is not the case in the instant matter. See Richardson at 1169. The language of 42 U.S.C. 14502(a) states that “this chapter preempts the laws of any State to the extent that such laws are inconsistent with this chapter, except that this chapter shall not preempt any State law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit or governmental entity.” As such, the Volunteer Protection Act does not completely preempt state law and does not give rise to a federal question.

The removing party, which is urging jurisdiction on the court, also bears the burden of demonstrating that jurisdiction is proper due to fraudulent/improper joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992). The Fifth Circuit has stated:

The burden [*5] of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff’s pleadings of jurisdictional facts.

B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The Fifth Circuit has reaffirmed that it “is insufficient that there be a mere theoretical possibility” of recovery; to the contrary, there must “at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003)(citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th Cir. 2000)).

The defendants’ task is made considerably more difficult by the Fifth Circuit’s decisions in Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir. 2004) and McKee v. Kansas City Southern Ry. Co., 358 F.3d 329, 336 n.2 (5th Cir. 2004). [*6] A majority of the en banc Fifth Circuit in Smallwood observed that:

Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry. … Discovery by the parties should not be allowed except on a tight judicial tether, sharply tailored to the question at hand, and only after a showing of its necessity.

Smallwood, 385 F.3d at 573. The Fifth Circuit in McKee similarly emphasized that the fraudulent joinder standard is more akin to a 12(b)(6) standard than the quasi-summary judgment standard which had previously been applied by many district judges in this circuit. It is accordingly plain, in light of McKee and Smallwood, that the improper/fraudulent joinder standard is far more deferential to a plaintiff’s allegations than had commonly been assumed.

With regard to defendant Ollie, the plaintiffs [*7] have alleged:

“That the Defendant, Jeanette Ollie d/b/a Shaw Athletic Youth Association, (“Ollie”), undertook and assumed a duty to supervise the minors in the group while in Jackson, Mississippi, but negligently failed to do so.”

The plaintiffs clearly allege negligent supervision against Ms. Ollie. However, under the Volunteer Protection Act, volunteers cannot be liable for simple negligence. The plaintiffs maintain that the Volunteer Protection Act does not apply to Ollie or the Shaw Athletic Youth Association because the organization has not received any federal designation as a qualifying exempt organization under 26 U.S.C. § 501(c)(3). Ms. Ollie has submitted an affidavit that avers that the “Shaw Athletic Youth Association” is a fictitious name created for the single purpose of ascribing a name to the group that would be traveling to Jackson, but that the group has not been formally organized or incorporated. The defendants contend that the Volunteer Protection Act does not require formal organization or articles of incorporation and presents competing affidavits regarding Ms. Ollie’s status as a volunteer for an amateur youth [*8] basketball team.

The term “nonprofit organization” is defined by the statute as a) any organization which is described in section 501(c)(3) of such title and is exempt from tax under section 501(a) of Title 26 and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534); or b) any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act. The legislative history of the act reflects that the bill covers not only “501(c)(3) organizations, but it also covers volunteers of the organizations which do good work, but do not have a tax exemption under 501(c)(3).” 143 Cong. Rec. S4915-05. The legislative history also indicates that the bill also “covers volunteers of local charities, volunteer fire departments, little leagues, veterans groups, trade associations, chambers of commerce, [*9] and other nonprofit entities that exist for charitable, religious, educational, and civic purposes.” Id.

Given the extremely broad definition of “organization” under the Volunteer Protection Act as well as the fact that the youths traveled to Jackson together as a team to engage in recreational sport, this court finds that the group constitutes an organization for the purposes of the Volunteer Protection Act. Under the Volunteer Protection Act a volunteer is not liable for simple negligence. The plaintiffs have only alleged simple negligence against defendant Ollie. Accordingly, the plaintiffs have no possibility of recovery against Ms. Ollie and the defendant has been improperly joined in the action.

The plaintiffs have also requested to amend their complaint to include Mississippi defendants Andrew Williams and Kerlin Janiver. Fed. R. Civ. Pro. 15 provides that motions to amend a complaint “shall be freely given when justice so requires.” However, when an amendment will destroy diversity jurisdiction the court must consider:(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether the plaintiff has been dilatory in asking [*10] for an amendment; (3) whether the plaintiff will be significantly injured if amendment is not allowed; and (4) any other factors bearing on the equities. Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987). The Fifth Circuit has rejected the rigid distinction between the post-removal joinder of indispensable parties under Fed. R. Civ. Pro. 19 and post-removal joinder of permissive parties under Rule 20. Rosa v. Aqualine Res., Inc., 2004 U.S. Dist. LEXIS 22130, 2004 WL 247990 *1 (N.D. Tex. 2004).

The state court complaint filed on March 16, 2006, in Bolivar County, Mississippi states: “at this time, Plaintiffs do not know the identity of John Does 1 through 5, but that said unnamed known defendants may include a person named “Johnny Murray,” and/or other agents, employees, servants or subsidiaries of La Quinta Development Partner, LP, and/or independent contractors of La Quinta Development Partners, LP.” The complaint also states: “by information and belief, the Defendants Securitas Security Services USA, Inc., (“Securitas”), and Harry J. Burnham, (“Burnham”) and a person named “Javarius” employed by Securitas, (sometimes referred to collectively herein as the [*11] “Securitas Defendants”), undertook and assumed the duties to provide security, surveillance, monitoring, and supervision for the safety and security of the guests at the La Quinta Inn.” While the plaintiffs have moved to remand, it seems unlikely that the sole purpose the plaintiffs have moved to amend their complaint is to defeat federal jurisdiction. The plaintiffs did, in fact, make allegations against unknown plaintiffs while the case was in state court. More telling, the complaint asserts allegations against an unknown “Javarius,” and the name of one of the persons they seek to add is actually Janiver.

The plaintiffs moved to amend on June 13, 2006, roughly three months after commencing this action. Three months is not an unduly dilatory amount of time to discover the names of unknown parties, particularly as discovery has not commenced in this matter.

The court must also consider whether the plaintiffs will be significantly injured if amendment is not allowed. The defendants argue that amendment is not necessary because the proposed parties were employees of Securitas at the time of Christopher’s drowning, and that they were within the scope of their employment [*12] which means that Securitas would be vicariously liable for any tortious acts committed by the proposed defendants. The plaintiffs counter by alleging that it is unknown if proposed defendants Williams and Janiver remained within the scope of employment during the time that they should have been guarding the pool area. In Hayes v. Illinois Cent. R.R., 2000 U.S. Dist. LEXIS 2405, 2000 WL 33907691 *2 (N.D. Miss. 2000), the Judge Biggers rejected the defendants’ argument that an employee was an unnecessary party since the corporation would be responsible under the doctrine of respondeat superior. The court found that the plaintiff had a right to seek recovery from the individual as well as the corporation. Id. This court also finds that the doctrine of respondeat superior does not preclude the plaintiffs from seeking recovery from the defendants individually.

As neither party has alleged any additional factors bearing on the equity of amendment, this court finds that an examination of the Hensgens factors demonstrates that amendment is proper in this instance.

Accordingly, the plaintiffs’ motion [14] to remand is GRANTED. The plaintiffs’ motion [24] to amend is also GRANTED. [*13] Defendant Ollie has been improperly joined; however, the plaintiffs are hereby granted leave to file an amended complaint naming Andrew Williams and Keith Janiver as defendants. The amended complaint must be filed within ten days of entry of this order. This case is now remanded back to the Circuit Court of Bolivar County, Mississippi.

This the 8<th> day of March, 2007.

/s/ Michael P. Mills

UNITED STATES DISTRICT JUDGE