Handy v. Nejam
| Docket Number: | 2010-CA-01513-COA Linked Case(s): 2010-CA-01513-COA ; 2010-CT-01513-SCT ; 2010-CT-01513-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-28-2012 Opinion Author: Lee, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Negligence - Duty to invitee - Lack of safety features - Failure to warn of hidden dangers Judge(s) Concurring: Griffis, P.J., Barnes, Ishee, Carlton, Maxwell, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Irving, P.J., and Roberts, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 08-25-2010 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEE Case Number: 251-07-754CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Melissa Handy, as Administratrix of the Estate of Ricco Handy and on Behalf of the Wrongful Death Beneficiaries of Ricco Handy |
JOE N. TATUM
LATRICE WESTBROOK |
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| Appellee: | A. Waddell Nejam d/b/a Bellevue Place Apartments | THOMAS Y. PAGE H. GRAY LAIRD III JAN F. GADOW | ||
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| Topic: | Wrongful death - Negligence - Duty to invitee - Lack of safety features - Failure to warn of hidden dangers |
| Summary of the Facts: | Ricco Handy drowned while swimming in the pool at the Bellevue Place Apartments. Ricco’s mother, Melissa Handy, filed a wrongful death suit against the owner of Bellevue Place, A. Waddell Nejam d/b/a Bellevue Apartments. The trial court granted summary judgment in favor of Nejam. Melissa appeals. |
| Summary of Opinion Analysis: | Melissa argues the trial court erred in granting summary judgment in favor of Nejam. In support of her theory of negligence, Handy offered the affidavit of an aquatic safety specialist who stated that Nejam breached his duty to Ricco by failing to provide certain pool equipment, including a floating safety rope. In order to prevail under her theory of negligence, Handy was required to prove duty, a breach of that duty, causation, and damages. An invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Here, Ricco entered the premises as his uncle’s guest; therefore, Ricco is presumed to be an invitee under the law. As such, Nejam owed Ricco the duty to keep the premises reasonably safe and, when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view. The risk of drowning in a pool is obvious. The evidence produced showed the following: the water was clean and clear; there were depth markers; Heard routinely inspected the pool and surrounding area; a sign indicated the lack of a lifeguard; and this sign also warned swimmers to swim at their own risk. Although the expert stated that the lack of the aforementioned safety features was “more probably than not the proximate cause of Ricco’s death, the trial court determined this was pure speculation. The trial court found the evidence reflected that Ricco would have entered the deep end of the pool regardless of any additional safety features. The trial court did not err in so finding. Melissa also contended Nejam had a duty to equip the pool with these safety features. However, Handy has offered no law to support this contention. In addition, there is no evidence Nejam failed to warn of a hidden danger or peril that was not in plain and open view. Melissa has not met her burden of proving the pool was not reasonably safe. |
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