Montedonico v. Mt. Gillon Baptist Church
| Docket Number: | 2009-CA-01904-COA Linked Case(s): 2009-CA-01904-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-15-2011 Opinion Author: Griffis, P.J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Personal injury - Independent contractor - Instrumentality - Assumption of risk Judge(s) Concurring: Lee, C.J., Myers, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Dissenting Author : Irving, P.J. With Separate Written Opinion Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 11-10-2009 Appealed from: Panola County Circuit Court Judge: James McClure, III Disposition: Summary Judgment for Defendant Case Number: CV2008-316MP2 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Edward L. Montedonico, Trustee for the Bankruptcy Estate of Michael Jefferies |
D. REID WAMBLE |
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| Appellee: | Mt. Gillion Baptist Church | GOODLOE TANKERSLEY LEWIS, JOSIAH DENNIS COLEMAN | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Independent contractor - Instrumentality - Assumption of risk |
| Summary of the Facts: | Edward Montedonico, trustee for Michael Jefferies’s bankruptcy estate, filed suit against Mount Gillion Baptist Church, alleging that the church had negligently provided Jefferies, an independent contractor, with a defective ladder that caused Jefferies’s injuries. The circuit court granted summary judgment in favor of the church, and the trustee appeals. |
| Summary of Opinion Analysis: | The circuit court found that Jefferies, an independent contractor, had no right to recover from the church. Specifically, the court found that the danger of falling while on a ladder was inherent Jefferies’s work of installing security alarms. The court also found that Jefferies had assumed the risk of falling while on the ladder. Where an employer undertakes or agrees to furnish an independent contractor any of the instrumentalities with which the work is to be carried on, the employer owes to the contractor and the contractor’s employees the duty of exercising reasonable care with respect to such instrumentalities. The danger of being provided a defective ladder by the church was not inherent to Jefferies’s work of installing security alarms. Therefore, summary judgment on this basis was improper. The defense of assumption of risk is available to property owners/employers in suits by their hired independent contractors. The owner/employer is not liable for death or injury of an independent contractor or one of the independent contractor’s employees resulting from dangers which the contractor, as an expert, has known, or as to which he and his employees assumed the risk. Where the doctrine is applicable, a plaintiff is said to have assumed the risk and is, therefore, barred from recovering when the defendant proves the following elements: knowledge on the part of the injured party of a condition inconsistent with his safety; appreciation by the injured party of the danger in the condition; and a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition. In this case, Jefferies testified that he did not notice the ladder was missing one of its rubber grips until after the fall. The church offered nothing to contradict that statement. As the proof currently stands, Jefferies did not assume the risk. No person can assume a risk that he does not know exists. The church is free to argue and attempt to prove assumption of the risk at trial, but it was not a ground for summary judgment. |
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