Avent v. Miss. Power & Light Co.


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Docket Number: 2010-CA-00865-COA
Linked Case(s): 2010-CA-00865-COA ; 2010-CT-00865-SCT

Court of Appeals: Opinion Link
Opinion Date: 12-06-2011
Opinion Author: Griffis, P.J.
Holding: Affirmed.

Additional Case Information: Topic: Personal injury - Dismissal for failure to prosecute - M.R.C.P. 41(b) - Summary judgment - Responsibility for site condition
Judge(s) Concurring: Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Non Participating Judge(s): Lee, C.J., and Myers, J.
Dissenting Author : Irving, P.J.
Dissent Joined By : Russell, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 04-30-2010
Appealed from: Tunica County Circuit Court
Judge: Kenneth L. Thomas
Disposition: GRANTED SUMMARY JUDGMENT IN FAVOR OF SHERATON CASINO AND DISMISSED ENTERGY FOR FAILURE TO PROSECUTE
Case Number: 96-0246

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Glen Avent




DANA J. SWAN



 
  • Appellant #1 Brief

  • Appellee: Mississippi Power & Light Company (Entergy Mississippi, Inc.) JOHN H. DUNBAR, KATE MAULDIN EMBRY  

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    Topic: Personal injury - Dismissal for failure to prosecute - M.R.C.P. 41(b) - Summary judgment - Responsibility for site condition

    Summary of the Facts: Glen Avent was employed by Andy Bland Construction Company. While operating a man-lift that became stuck in wet sand, the lift came into contact with an overhead electrical line. As a result, Avent was injured. Sheraton Tunica Corporation owned the property that was the construction work site. Sheraton contracted with W.G. Yates and Son Construction Co., as the general contractor. Entergy Mississippi, Inc. had installed the electrical line. Andy Bland was a subcontractor of Yates. Avent filed a complaint naming several defendants, including Mississippi Power & Light (now known as Entergy Mississippi, Inc.) Yates, Sheraton, and several John Does. After the defendants were served, they responded to the complaint, and the parties engaged in discovery. The circuit court entered an “Agreed Scheduling Order” on April 18, 1997, requiring all discovery completed by August 30, 1997; plaintiff’s experts to be designated by June 15, 1997; defendant’s experts by July 30, 1997; and all motions filed by September 30, 1997. On August 28, 1997, the circuit court entered an “Agreed Amended Scheduling Order,” requiring all discovery completed by November 30, 1997; plaintiff’s experts designated by August 30, 1997; defendant’s experts by September 30, 1997; and all motions filed by December 30, 1997. Sheraton filed a motion for summary judgment on May 21, 1997. On November 13, 1997, the circuit court entered another “Agreed Amended Scheduling Order,” requiring all discovery completed by March 30, 1998; plaintiff’s experts designated by December 30, 1997; defendant’s experts designated by January 30, 1998; and all motions filed by April 30, 1998. Yates filed a motion for summary judgment on May 1, 1998. The court granted Sheraton’s motion and dismissed Sheraton as a party. A week later, the circuit court granted Yates’s motion for summary judgment and dismissed Yates as a party. Several filings were entered on the docket from the time of the final judgment through August 10, 1999, when the clerk filed a letter from Entergy’s counsel that gave notice that the name of his law firm had changed. The clerk’s docket sheet does not indicate that any further pleadings were filed or action taken until February 14, 2005, when the plaintiff’s attorney filed a designation of experts. Almost another year passed with no action on this case. On January 11, 2006, Avent filed a supplemental response to Entergy’s interrogatories. Entergy eventually filed a motion to dismiss which the court granted in 2010. Avent appeals.

    Summary of Opinion Analysis: Issue 1: Dismissal for failure to prosecute The circuit court relied on M.R.C.P. 41(b) to dismiss Avent’s claims against Entergy for failure to prosecute. The circuit court was within its discretion, and the dismissal was proper. Avent was injured in an accident that occurred on July 2, 1994. Avent filed his lawsuit on November 8, 1996. The last “agreed” scheduling order required experts to be designated by January 30, 1998, and discovery to end by March 30, 1998. No significant action was taken from 1999 until 2006. Then, after Entergy’s motion to dismiss was filed on June 6, 2006, another three years lapsed before Avent filed a motion for a pretrial conference on February 9, 2009. Very little occurred from then until the circuit court dismissed Entergy as a party on April 30, 2010, almost sixteen years after the accident. Entergy’s motion to dismiss was not based solely on the passage of time. Entergy provided credible evidence that its ability to defend Avent’s claims had been prejudiced by the delay. Entergy claimed that available witnesses’ memories had faded over time. Entergy established that a significant number of witnesses were no longer available. To make matters worse, even though Avent responded to Entergy’s motion to dismiss on June 18, 2006, Avent took no further action to move this case to judgment for another two years. The circuit judge considered the clear record of delay by the plaintiff and determined lesser sanctions would not serve the best interest of justice. Issue 2: Summary judgment Avent argues that the summary judgment was improperly granted as to Sheraton. Although Sheraton owned the construction site, where it was in the process of constructing a casino, it was not the general contractor on the site. Toby Arnheim, Sheraton’s project manager responsible for the site, provided an affidavit that was considered by the circuit court. In it, Arnheim stated that he and Carl Bosworth, Sheraton’s facilities director, were the only Sheraton employees who were ever at the site. Arnheim stated that he was there simply to “ensure that the work complied with the [c]ontract [d]ocuments.” Bosworth also supplied an affidavit; he stated that he was not responsible for any of the work that was performed outside the building. Bosworth further stated that no Sheraton employee was responsible for the safety procedures in place at the site. Avent acknowledges the above, but claims that Mississippi law prohibits an entity from delegating its duty to provide a safe work environment. However, this argument is undermined by numerous cases. Sheraton contracted its responsibility for the site condition to Yates, its general contractor. Therefore, Sheraton has no liability for any injuries that Avent suffered as a result of the conditions on the construction site. Accordingly, summary judgment was properly granted on Sheraton’s behalf.


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