Rein v. Benchmark Const. Co., et al.
| Docket Number: | 2001-CA-01885-SCT Linked Case(s): 2001-CA-01885-SCT ; 2001-CA-01885-SCT ; 2001-CA-01885-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-12-2004 Opinion Author: Smith, P.J. Holding: Affirmed in Part; Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Wrongful death - Existence of duty - Foreseeability - Breach of contract - Third-party beneficiary Judge(s) Concurring: Pittman, C.J., Cobb, Easley, Carlson and Dickinson, JJ. Non Participating Judge(s): Waller, P.J., and Diaz, J. Concur in Part, Dissent in Part 1: Graves, J., Concurs in Part and Dissents in Part Without Separate Written Opinion Procedural History: Dismissal Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 08-03-2001 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Dismissed the negligence and breach of contract claims against Benchmark, Growin Green and Natural Accents. Case Number: 251-98-001134 |
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| Note: | Motion for Rehearing filed by appellee, William Schilling, Individually and d/b/a Natural Accents Nursery and Landscapers is denied. Easley and Graves, JJ, would grant. | |
| Party Name: | Attorney Name: | |||
| Appellant: | F. Joseph "Jerry" Rein, Sr. and F. Joseph "Joey" Rein, Jr., Individually and on behalf of all Wrongful Death Beneficiaries of Gatha Nell Rein, Deceased |
SHANE F. LANGSTON |
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| Appellee: | Benchmark Construction Company, Growin Green Landscape, Inc. and William Schilling, Individually and d/b/a Natural Accents Nursery and Landscapers | JASON HOOD STRONG ROBERT S. ADDISON CECELIA DENISE CAMERON RICHARD T. LAWRENCE CRAIG ROBERT SESSUMS |
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| Topic: | Wrongful death - Existence of duty - Foreseeability - Breach of contract - Third-party beneficiary |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. Gatha Rein, an elderly Alzheimer’s patient who was a resident of Silver Cross Nursing Home, died as a result of being attacked and bitten in her bed by fire ants at the Silver Cross facility. Her husband and son, F. Joseph Rein, Sr. and F. Joseph Rein, Jr., sued Silver Cross, Ace Pest Control, Benchmark Construction Company, and two landscaping companies, Growin Green Landscape, Inc. and William Schilling, individually and d/b/a Natural Accents Nursery and Landscapers for damages for her wrongful death. The Reins settled with Silver Cross and Ace Pest Control. The court dismissed the negligence and breach of contract claims against Benchmark, Growin Green and Natural Accents, and the Reins appeal. |
| Summary of Opinion Analysis: | In analyzing an actor’s alleged negligence, the question is whether a duty exists and whether it has been breached. The important component of the existence of the duty is that the injury is reasonably foreseeable. The ultimate question is whether Benchmark could reasonably foresee that failure to adequately provide for drainage around the building could likely lead to an insect infestation that would cause a death by fire ant bites to a resident of the nursing home. When the conduct of the actor is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. Under Mississippi law, a third party may maintain an action as a third-party beneficiary to enforce a promise made for their benefit, but may sue for a contract breach only when the alleged broken condition was placed in the contract for their direct benefit. Here, Benchmark may have reasonably foreseen an insect infestation as a result of improper construction techniques and poor planning of the drainage system. However, Benchmark could not have reasonably foreseen that Mrs. Rein would be attacked and killed by fire ants two years after construction of the Silver Cross Nursing Home. Summary judgment was also proper on the contract claim against Benchmark because Mrs. Rein was not a third-party beneficiary of the construction contract between Benchmark and Silver Cross. With regard to Growin Green, the company did not assume nor owe a duty to provide fire ant detection, control or eradication in a reasonable manner or any manner. It had a commitment only to maintain the lawn and shrubbery. In addition, there was no relationship between Growin Green and Mrs. Rein created by the contract between Silver Cross and Growin Green. Therefore, summary judgment was appropriate. With regard to Natural Accents, the court incorrectly dismissed Natural Accents because issues of material facts remain as to negligence by Natural Accents. The evidence shows that Natural Accents obligated itself, by its own express terms, to some duty to inspect and treat ant beds at Silver Cross. The scope of that duty, the foreseeability of Mrs. Rein’s injury and death, and the significance as related to causation of the failure by Natural Accents to comply with the terms of the contract are proper questions for the trier of fact. |
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