Hobson, et al. v. Waggoner Engineering, Inc., et al.


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Docket Number: 2001-CA-00908-COA
Linked Case(s): 2001-CA-00908-SCT ; 2001-CT-00908-SCT ; 2001-CT-00908-SCT ; 2001-CT-00908-SCT ; 2001-CA-00908-COA

Court of Appeals: Opinion Link
Opinion Date: 08-05-2003
Opinion Author: Griffis, J.
Holding: Affirmed

Additional Case Information: Topic: Wrongful death - Duty to warn - Defective design - Section 11-1-63
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Myers and Chandler, JJ.
Concurs in Result Only: Irving, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - WRONGFUL DEATH

Trial Court: Date of Trial Judgment: 04-16-2001
Appealed from: SCOTT COUNTY CIRCUIT COURT
Judge: Vernon Cotten
Disposition: DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT GRANTED.
Case Number: 96-0063

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Pamela Hobson, Individually and as Administratrix of the Estate of Charles Hobson, Deceased




T. JACKSON LYONS CLARENCE MCDONALD LELAND



 

Appellee: Waggoner Engineering, Inc. and National Seal Company ROBERT A. BIGGS DAVID W. MOCKBEE JULIE SNEED MULLER  

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Topic: Wrongful death - Duty to warn - Defective design - Section 11-1-63

Summary of the Facts: Pamela Hobson, as the Administratrix of the Estate of Charles Hobson, filed a wrongful death action against Waggoner Engineering, Inc. and National Seal Company. Charles Hobson’s body was discovered in an aerated sewage lagoon under construction. Waggoner Engineering was the engineering firm that had a contract with the City of Forest to design the lagoon, and National Seal manufactured the liner that was installed around the lagoon. Waggoner Engineering and National Seal filed motions for summary judgment which the court sustained. Hobson appeals.

Summary of Opinion Analysis: Issue 1: Duty to warn Hobson argues that Waggoner Engineering had a duty to warn the decedent of any dangers. In Jones v. James Reeves Contractors, Inc., 701 So. 2d 774 (Miss. 1997), the Mississippi Supreme Court held that unless an architect has undertaken by conduct or contract to supervise a construction project, he is under no duty to notify or warn workers or employees of the contractor or subcontractor of hazardous conditions on the construction site. According to the express terms of the owner/engineer agreement in this case, Waggoner Engineering had no duty or responsibility for the supervision of the construction work or project safety. Instead, the owner/contractor agreement imposed all such duties and responsibility for project supervision and safety on the general contractor. The engineer’s supervisory powers did not extend beyond the contract provisions. Waggoner Engineering did not have actual supervision or control of the work. Waggoner Engineering did not retain the right to supervise and control. The record contains minimal facts to determine Waggoner Engineering’s level of participation at the construction site, but the contractual agreements are clear that its participation was to be kept to a minimum. Waggoner Engineering neither assumed responsibilities for safety practices nor could it issue change orders or stop work without first going through the City of Forest. Therefore, Waggoner Engineering had no duty to warn Mr. Hobson, or any of the general contractor's workers or its subcontractors, of any dangers or to protect them from any harm. Hobson also argues that National Seal was negligent in that it failed to warn workers about the slick nature of the liner. A plaintiff has the burden of showing that the defect that allegedly was the proximate cause of injury existed at the time that the product left the hands of the manufacturer, and that the defect rendered the product unreasonably dangerous. Not only was National Seal’s warning, contained in its contract, sufficient, but the dangerous nature of this product, in that it becomes slippery when wet, would be known to the ordinary user, and the liner's slippery nature is open and obvious. Issue 2: Defective design Hobson argues that Waggoner Engineering’s design for the sewage lagoon was defective because Waggoner Engineering should have known that the lagoon’s slope was too steep and the liner was too slick for a person to climb out of the lagoon. Mississippi law imposes on design professionals, including architects and engineers, the duty to exercise ordinary professional skill and diligence. Hobson offered no evidence of industry standards or practices concerning the proper design of an aerated sewage lagoons or any deviation therefrom by Waggoner Engineering in the preparation of the Project’s plans and specifications, and no expert testimony was offered to establish any available alternate design. Hobson also argues that National Seal's liner design was so slick as to present an unreasonable hazard to workers. To recover under section 11-1-63, Hobson must demonstrate that a dispute of a material fact existed that at the time the product left National Seal's hands, there was a feasible alternative design available that would have prevented the harm without impairing the usefulness of the product. Hobson offered no evidence of industry standards or customs, no affidavits or deposition of any expert which would show that an alternate design is available which would have prevented the alleged harm, without impairing the usefulness of the product.


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