Sanders v. Isle of Capri Casino


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Docket Number: 2003-CA-00645-COA
Oral Argument: 11-10-2004
 

 

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Court of Appeals: Opinion Date: 04-19-2005
Opinion Author: GRIFFIS, J.,
Holding: AFFIRMED:

Additional Case Information: Topic: Wrongful death - Legal standard for dismissal - Tort Claims Act - Immunity - Discretionary duty - Negligence - Combined negligence
Judge(s) Concurring: KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, BARNES AND ISHEE, JJ.
Concurs in Result Only: IRVING, J.,
Procedural History: Dismissal
Nature of the Case: CIVIL - WRONGFUL DEATH

Trial Court: Date of Trial Judgment: 10-17-2002
Appealed from: WARREN COUNTY CIRCUIT COURT
Judge: Frank G. Vollor
Disposition: MOTION TO DISMISS GRANTED IN FAVOR OF CITY OF VICKSBURG AND RIVERBOAT CORPORATION OF MISSISSIPPI, D/B/A ISLE OF CAPRI CASINO

  Party Name: Attorney Name:  
Appellant: SHERRI SANDERS, A WRONGFUL DEATH HEIR AND BENEFICIARY ON BEHALF OF JOSHUA SANDERS, A MINOR, AND THE ESTATE OF JOSHUA SANDERS, DECEASED




CARROLL RHODES



 

Appellee: RIVERBOAT CORPORATION OF MISSISSIPPIVICKSBURG D/B/A ISLE OF CAPRI CASINO AND THE CITY OF VICKSBURG, MISSISSIPPI VICTORIA HARDY RUNDLETT B. STEVENS HAZARD GERALD E. BRADDOCK  

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Topic: Wrongful death - Legal standard for dismissal - Tort Claims Act - Immunity - Discretionary duty - Negligence - Combined negligence

Summary of the Facts: Sherri Sanders, a wrongful death heir and beneficiary on behalf of Joshua Sanders, a minor, and the estate of Joshua Sanders, deceased, filed a wrongful death action against the Riverboat Corporation of Mississippi-Vicksburg d/b/a Isle of Capri Casino and the City of Vicksburg. At the end of the plaintiff’s case-in-chief, the court granted the Isle of Capri Casino and the City’s motion to dismiss. Sanders appeals.

Summary of Opinion Analysis: Issue 1: Legal standard Sanders argues that the court was obliged to find for her given that only her evidence had been presented and that it was error to grant a dismissal when the City had yet to present any evidence. The correct standard of review required the court to dismiss Sanders’ claim if the court would have found for the City with only Sanders' evidence offered. The court was required to consider the evidence fairly rather than in the light most favorable to Sanders. The court applied the correct standard and its ruling was supported by substantial evidence. Issue 2: Immunity Sanders argues that the court erred in finding the City’s employees’ conduct to be discretionary and thereby protected by the Torts Claim Act. A duty is discretionary if it requires the official to use their judgment and discretion in the performance thereof. When conduct is found to be discretionary, a determination of ordinary care must then be made before the statutory bar is raised. In contrast, an act is ministerial if it is positively imposed by law and if the performance of the conditions imposed are not dependent on an officer's judgment or discretion. Here, protocol was followed and none of the classic symptoms were present. Sanders did not complain of severe pain, nor did the EMT or paramedic observe massive bleeding. Whether Sanders' condition necessitated a "load and go" approach involved the emergency team’s judgment. Therefore, the decision was not ministerial, but instead discretionary. Issue 3: Negligence Sanders argues that the court erred in considering whether to dismiss her negligence claim against the Isle of Capri, because the Isle of Capri’s failure to maintain and repair the elevator caused the malfunction that led to an additional ten minute delay in her arrival at the hospital. The judge stated that to establish liability, Sanders would have to prove that the Isle of Capri was somehow negligent in its maintenance and repair of the elevator. Additionally, Sanders would have to prove that their negligence caused the elevator to malfunction on the day of the incident. In an effort to prove the negligence, Sanders points to previous incidents of the same elevator’s malfunction. However, the judge found no evidence that proved that Isle of Capri maintained the elevator. Rather, the evidence proved that the elevators were maintained and repaired by ThyssenKrupp. Even if the elevator operated properly, Sanders arrival at the hospital would have been ten minutes earlier. Thus her arrival, without the delay of the elevator, was approximately one hour and twenty minutes after the onset of the abruption. The physician testified that it was pure speculation as to whether Sanders’ baby would have lived even if the delivery occurred within thirty minutes of the onset of the abruption. Therefore, the court was within its discretion to find that Sanders failed to show a causal connection between the negligence of Isle of Capri and the death of her baby. Issue 4: Combined negligence Sanders argues that the combined negligence of the City’s employees and Isle of Capri were the proximate cause of her baby's death. Given Sanders’ failure to establish negligence on either the City of Vicksburg or the Isle of Capri, there can be no concurrent negligence as Sanders alleges.


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