ESTATE OF HAZELTON EX REL. HESTER v. Cain

950 So. 2d 231, 2007 WL 585846
CourtCourt of Appeals of Mississippi
DecidedFebruary 27, 2007
Docket2005-CA-01484-COA
StatusPublished
Cited by2 cases

This text of 950 So. 2d 231 (ESTATE OF HAZELTON EX REL. HESTER v. Cain) 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
ESTATE OF HAZELTON EX REL. HESTER v. Cain, 950 So. 2d 231, 2007 WL 585846 (Mich. Ct. App. 2007).

Opinion

950 So.2d 231 (2007)

The ESTATE OF Maggie HAZELTON by and through Darlene HESTER, Administratrix of the Estate of Maggie Hazelton, for the Use and Benefit of The Estate of Maggie Hazelton, and for the Use and Benefit of the Wrongful Death Beneficiaries of Maggie Hazelton, Appellant
v.
H. Conner CAIN and Richard L. Smith, Appellees.

No. 2005-CA-01484-COA.

Court of Appeals of Mississippi.

February 27, 2007.

*232 F.M. Turner, attorney for appellant.

Walter William Dukes, Gulfport, attorney for appellees.

Before MYERS, P.J., CHANDLER and ROBERTS, JJ.

*233 CHANDLER, J., for the Court.

¶ 1. Darlene Hester, Maggie Hazelton's representative, appeals from a summary judgment granted in favor of the defendants in a civil action for personal injuries and wrongful death allegedly resulting from negligent care and treatment rendered to the decedent, Hazelton, while she was a resident at Driftwood Nursing Center in Gulfport, Mississippi.

¶ 2. Hester brought suit against Connor Cain, president and controlling shareholder of Driftwood, and Richard Smith, former administrator of Driftwood, alleging negligence, medical malpractice, fraud, and wrongful death. Cain and Smith each filed motions for summary judgment. The Harrison County Circuit Court granted both motions, finding that no genuine issue of material fact existed and that the defendants were entitled to a judgment as a matter of law. Hester appeals, arguing:

I. WHETHER A GENUINE ISSUE OF MATERIAL FACT EXISTS TO RENDER SUMMARY JUDGMENT IMPROPER.

¶ 3. Finding no error in the lower court's decision, we affirm.

FACTS

¶ 4. Maggie Hazelton was admitted to Driftwood Nursing Center in Gulfport, Mississippi on April 9, 1999, at the age of eighty-three. She remained a resident of Driftwood until May 30, 1999, when she was discharged. In June of 1999, Hazelton was readmitted and then discharged again on August 11, 1999. Hazelton passed away the next day, on August 12th, while a patient at Memorial Hospital in Gulfport.

¶ 5. On July 27, 2001, Darlene Hester filed a civil action against Driftwood Nursing Center, H. Conner Cain and Richard L. Smith for personal injuries and the wrongful death of Hazelton resulting from alleged negligent care and treatment she received while a resident of Driftwood. Cain was sued in his capacity as the licensee and president of Driftwood and Smith as the administrator of the nursing home. Smith was employed as administrator of the facility upon Hazelton's initial admission, but he resigned as administrator on June 15, 1999. Smith was not the administrator during the last two months of Hazelton's residency.

¶ 6. Hester claims that Hazelton was the victim of a pattern and practice of neglect. As a result, Hazelton suffered pneumonia, falls, unexplained injuries, bone fractures, urinary and kidney infections, weight loss, pressure sores, poor hygiene, sepsis and ultimately death. Hester asserts that Driftwood's negligent conduct caused Hazelton to lose her personal dignity and caused her death to be preceded by extreme and unnecessary pain, degradation, anguish, unnecessary hospitalizations, disfigurement and emotional trauma.

¶ 7. In her initial complaint, Hester alleged that Smith and Cain breached their duty of reasonable care by failing to provide a minimum number of staff necessary to assist the residents, to provide adequate supervision, to respond to serious symptoms Hazelton exhibited, to develop and implement an appropriate residential care plan, and to maintain current records of the residents, and other forms of negligent care. Hester also maintained that Cain and Smith committed fraud by misrepresenting to her that the home was able to provide twenty-four hour a day supervision and care, and that Driftwood employed an adequate amount of staff who were properly trained.

¶ 8. On appeal, Hester raises a more generalized allegation, claiming that Cain and Smith had a legal duty of care pursuant *234 to the guidelines established for nursing homes in the state statutes and legislative regulations. Further, Hester asserts that Cain and Smith are liable because they either knew or should have known of the alleged tortious conduct exhibited against Hazleton, and should have taken steps to prevent it.

¶ 9. On March 24, 2003, Cain and Smith filed their respective motions for summary judgment, arguing that Hester failed to provide sufficient evidence to prove a genuine issue of material fact pertaining to the elements of negligence and that they were entitled to a judgment as a matter of law.

¶ 10. On November 7, 2005, the lower court granted both summary judgment orders, and thereafter entered final judgments of dismissal for both Smith and Cain, as well as a dismissal without prejudice in favor of Driftwood. In the order, Driftwood agreed to waive any statute of limitation defense should Hester bring a subsequent action relating to the same claims asserted in the present action. Hester, therefore, perfected her appeal solely as to Cain and Smith.

STANDARD OF REVIEW

¶ 11. This Court reviews the record de novo to determine whether a motion for summary judgment was properly granted. Lowery v. Guaranty Bank and Trust Co., 592 So.2d 79, 81 (Miss.1991). A motion for summary judgment should be granted if it can be shown by the evidence that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). On a motion for summary judgment, a court does not try issues of fact; it can only determine whether there are issues to be tried. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209-10(¶ 6) (Miss.2001). All evidence must be viewed in the light most favorable to the non-movant, and the court should presume that all evidence in the non-movant's favor is true. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993).

LAW AND ANALYSIS

¶ 12. The question before us is whether a genuine issue of fact exists to establish personal liability against Driftwood's licensee and administrator. We hold that summary judgment was proper because the record demonstrates insufficient evidence to withstand the motion.

¶ 13. In a negligence action, the plaintiff bears the burden of producing sufficient evidence to establish the existence of the conventional tort elements of duty, breach of duty, proximate causation, and injury. Bailey v. Wheatley Estates Corp., 829 So.2d 1278, 1282(¶ 17) (Miss.Ct. App.2002). Hester argues that a genuine issue of material fact exists as to whether Cain and Smith had a legal duty pursuant to the statutes and regulations for nursing homes, and also as to whether Cain and Smith breached that alleged duty. Hester maintains that Cain, as licensee for Driftwood, and Smith, as administrator, either knew or should have known of the alleged negligence against Hazelton, and that both men should have objected to the conduct or taken steps to prevent it. Cain and Smith argue that because they did not have direct involvement in any alleged tort, they are not liable. Miss. Printing Co. v. Maris, West & Baker, Inc., 492 So.2d 977, 978 (Miss.1986).

A. Duty

¶ 14. Hester asserts that Cain and Smith owed a legal duty to Hazelton under Mississippi Code Annotated Sections 43-11-1 to -13 (Rev.2004) and the State's internal nursing home regulations. Section 43-11-13 authorizes the Mississippi State Department of Health to grant and *235 revoke licenses for institutions assisting the aged and infirm. Miss.Code Ann.

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Bluebook (online)
950 So. 2d 231, 2007 WL 585846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-hazelton-ex-rel-hester-v-cain-missctapp-2007.