Bevis v. Linkous Const. Co., Inc.

856 So. 2d 535, 2003 WL 21058531
CourtCourt of Appeals of Mississippi
DecidedMay 13, 2003
Docket2002-CA-00134-COA
StatusPublished
Cited by18 cases

This text of 856 So. 2d 535 (Bevis v. Linkous Const. Co., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bevis v. Linkous Const. Co., Inc., 856 So. 2d 535, 2003 WL 21058531 (Mich. Ct. App. 2003).

Opinion

856 So.2d 535 (2003)

Edith BEVIS, Individually, and as Widow of Eddie Ray Bevis, Deceased, for and on behalf of all Wrongful Death Beneficiaries, Appellant,
v.
LINKOUS CONSTRUCTION COMPANY, INC. and Westinghouse Electric Corporation, Inc., Appellees.

No. 2002-CA-00134-COA.

Court of Appeals of Mississippi.

May 13, 2003.
Rehearing Denied August 12, 2003.
Certiorari Denied December 11, 2003.

*537 Timothy Taylor, Bobby Floyd Martin, Memphis, TN, attorneys for appellant.

Louis G. Baine, Jan F. Gadow, Ridgeland, Todd Britton Murrah, Memphis, TN, attorneys for appellee.

Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.

McMILLIN, C.J., for the court.

¶ 1. Eddie Ray Bevis, an ironworker employed by Fischer Steel Company, was killed in a construction accident at a job site in Marshall County. At the time of the fatal accident, Fischer Steel was serving as a subcontractor to Linkous Construction Company, Inc., the primary contractor. *538 The project was the construction of a distribution center for Westinghouse Electric Corporation, Inc., the owner of the real property.

¶ 2. Bevis's surviving widow filed suit in Marshall County Circuit Court seeking damages for herself based largely on a loss of consortium claim. She also asserted a wrongful death claim on behalf of those beneficiaries identified in Mississippi's wrongful death statute. Her suit was brought against Linkous and Westinghouse and Allen & Hoshall, Inc. and claimed that negligence on the part of these defendants proximately caused her husband's death. The circuit court granted a motion by Linkous for summary judgment on a finding that, as to Linkous, a claim for benefits under Mississippi's workers' compensation was the exclusive remedy. Westinghouse successfully pursued a motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) contending that the complaint failed to state a claim upon which relief could be granted. The trial court, in resolving the claims against these two entities, made the appropriate certifications under Mississippi Rule of Civil Procedure 54(b) to permit an interlocutory appeal. The claim against Allen & Hoshall, Inc., the design engineers for the project, is not before us. Ms. Bevis filed her notice of appeal as to both Westinghouse and Linkous and the two decisions are now before this Court for resolution. For reasons we will proceed to set out, we affirm the trial court.

I.

The Claim Against Westinghouse

¶ 3. The complaint alleges that Bevis, while in the course of his duties at the Westinghouse construction site, was working on a steel beam some thirty-five feet in the air when the beam collapsed and he fell to the ground, suffering injuries that ultimately led to his death a short time later.

¶ 4. The complaint alleges that the corporation "contracted for the construction of a distribution center ... in Marshall County, Mississippi." The next paragraph of the complaint alleges that Linkous was the contractor for the project. After those preliminary allegations, the sole remaining information relating to Westinghouse is paragraph 18 of the complaint, which we quote in full:

18. Your Plaintiff would aver that Defendant Westinghouse was negligent in that it failed to properly inspect and properly provide a reasonably safe workplace; use reasonable care to prevent bodily injury or death to those persons working in areas where they might reasonably be expected to work; that it had a duty to safeguard against injuries arising from construction operations and to correct and remove reasonably foreseeable causes of danger and adequately warn of dangerous conditions existing on the job site premises and to ensure that the construction site was safe and proceeding according to proper design specifications. That this failure to inspect and warn was the proximate cause of Plaintiff's severe injuries, death and damages.

¶ 5. Westinghouse, relying on established Mississippi case law generally absolving a property owner from liability for the negligent acts of an independent contractor involved in a construction or improvement project on the property, moved for judgment on the pleadings. In the alternative, Westinghouse asked that Ms. Bevis be required to offer a more definite statement of the facts relied upon to support her claim as permitted by Mississippi Rule of Civil Procedure 12(e). In a response to that motion, Ms. Bevis declared *539 her position that the complaint provided adequate notice of the nature of her claim and "therefore a more definite statement is unnecessary." It was with the case in that posture that the circuit court granted Westinghouse's motion to dismiss for failure to state a claim upon which relief could be granted.

¶ 6. Our review of such action is de novo. Arnona v. Smith, 749 So.2d 63(¶ 6) (Miss.1999). We must accept as true all well-pled allegations in the complaint. Id. A motion to dismiss under Rule 12(b)(6) should be granted (and affirmed on appeal) only when, based on a review of the complaint, it appears beyond doubt that the plaintiff would be unable to prove any set of facts that would support a right of recovery. Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990).

¶ 7. The well-pled facts in this case, insofar as a claim against Westinghouse is concerned, are that Westinghouse owned a parcel of real property, that it contracted with Linkous to construct a warehouse on the property, that Bevis was working as an employee of one of Linkous's subcontractors when he was killed in a fall occasioned by the collapse of a structure on which Bevis was working, and that the structure collapsed because the general contractor, Linkous, improperly installed replacement anchor bolts intended to secure the steel beam that collapsed when the bolts subsequently failed. The remaining allegations relating to Westinghouse consist of general allegations of the existence of various duties allegedly owed by Westinghouse to Bevis without any attendant explanation of the facts that would give rise to these duties.

¶ 8. Looking solely at the facts set out in the complaint, therefore, we must consider whether a recognized theory exists in Mississippi negligence law that would permit recovery by Ms. Bevis and the remaining wrongful death beneficiaries against Westinghouse. We conclude that such a theory does not exist and that the trial court did not err in dismissing Westinghouse.

¶ 9. We begin our analysis with a recognition of the general principle of law that a property owner who contracts for repairs or improvements to the property is not liable for injuries to workers on the premises arising out of the acts or omissions of the contractor. Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 185 (Miss.1989). As to the premises owner in circumstances such as are alleged to have existed in this case, the duty is to surrender to the contractor a reasonably safe working environment, which would include a duty to warn of hidden hazards or defects on the property that existed prior to the commencement of the work. Mississippi Power Co. v. Brooks, 309 So.2d 863, 866 (Miss.1975). Any duty to warn of hazards arising out of the construction itself—assuming such duty could be shown to exist—is deemed satisfied by a showing that the contractor had actual knowledge of the hazardous condition. Jones v. James Reeves Contractors, Inc., 701 So.2d 774, 783 (Miss. 1997).

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Cite This Page — Counsel Stack

Bluebook (online)
856 So. 2d 535, 2003 WL 21058531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bevis-v-linkous-const-co-inc-missctapp-2003.