Houston v. York

755 So. 2d 495, 1999 WL 308816
CourtCourt of Appeals of Mississippi
DecidedMay 18, 1999
Docket97-CA-01415-COA
StatusPublished
Cited by14 cases

This text of 755 So. 2d 495 (Houston v. York) 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
Houston v. York, 755 So. 2d 495, 1999 WL 308816 (Mich. Ct. App. 1999).

Opinion

755 So.2d 495 (1999)

Marilyn HOUSTON, Appellant,
v.
Bennett V. YORK and M & N Builders, Inc., Appellees.

No. 97-CA-01415-COA.

Court of Appeals of Mississippi.

May 18, 1999.
Rehearing Denied January 18, 2000.
Certiorari Denied April 27, 2000.

*496 David G. Hill, David L. Minyard, Maurie L. White, Oxford, Attorneys for Appellant.

Paul M. Moore, Jr., Calhoun City, T. Swayze Alford, Oxford, Attorneys for Appellees.

BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.

THOMAS, P.J., for the Court:

¶ 1. Marilyn Houston appeals from the Lafayette County Circuit Court upon grant of directed verdict for Bennett V. York and M & N Builders, Inc. at the conclusion of the her case. Three days of trial, which began on September 15, 1997, had been held. Houston's complaint, filed on September 9, 1992, asserted several claims against York and M & N Builders, two of which were the negligent design and construction of a fireplace mantle and breach of the implied warranty of habitability, both of which, as alleged in the complaint, resulted in personal injury to her person when the mantle fell and struck her in the head on March 8, 1989. From the circuit court's grant of a directed verdict in favor of York and M & N, Houston assigns the following assignment of error:

I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING A MOTION FOR DIRECTED VERDICT FOR THE DEFENDANTS.

Finding error, we reverse and remand for a new trial.

FACTS

¶ 2. In January 1989, Marilyn Houston leased an apartment in a duplex unit owned by Bennett York and located in Oxford, Mississippi. Houston, at the time *497 of the lease and the injury, was a graduate student at the University of Mississippi pursuing a masters degree in southern studies and was employed as a project coordinator with the African-American studies program. On March 8, 1989, Marilyn Houston was struck in the head by an unsecured fireplace mantle after it fell from its rest atop protruding bricks at both ends of the fireplace while she and her son, Kevin, were attempting to start a fire. Houston was unable to lift a large log alone, so she asked Kevin for assistance. As Kevin bent down to lift one end of the log while Houston readied at the other end, Kevin placed his left hand on the mantle as a brace. The mantle then fell and struck Houston on the head. The mantle was constructed of laminated two by fours nailed together to form a single beam and was not attached in any manner to the fireplace itself.

¶ 3. After the mantle beam fell and struck Houston on the head, Kevin assisted his mother to the couch and called an ambulance. Houston was taken to Lafayette County Hospital, where she was hospitalized for two and a half days as a result of the closed head injury she received. In the weeks that followed her accident, Houston continued to complain of headaches and vision problems as well as difficulty in verbal communication and object identification. Houston eventually returned to work and her academic studies at the University of Mississippi but continued to experience headaches and communication difficulties.

¶ 4. After her studies at the University of Mississippi were completed, Houston moved to New York City to pursue a Ph.D. in anthropology at New York University after receiving a scholarship from the National Science Foundation. While pursuing her Ph.D. at N.Y.U. Houston continued to experience learning difficulties and sought help through the Student Disability Services Office, who provided her with note takers and mechanical readers to help aid in her studies. Houston later contacted a head trauma specialist, Dr. David Kay, to inquire about treatment for her learning difficulties. Doctor Kay referred Houston to VESID, a state funded vocational rehabilitation program in New York. Houston's condition was confirmed under VESID's disability guidelines, and she was referred to Dr. Owen Kieran, M.D. of the New York University Medical Center. VESID funded her treatment with Dr. Kieran at the Rusk Institute of Rehabilitation Medicine.

¶ 5. Dr. Kieran opined that Houston's learning difficulties were attributable to the minor closed head injury she suffered on March 8, 1989. Dr. Kieran testified that the blow the Houston's head caused microscopic changes in her brain including the stretching and tearing of axons and neurofibril. Dr. Kieran also opined that Houston suffers from permanent cognitive brain injury which adversely affects her higher brain functions. Dr. Kieran attributes Houston's learning disabilities to the March 8, 1989 injury. In an effort to combat her learning deficits, Houston, with the aid of the Rusk Institute, was able to develop learning strategies which have increased her ability to function in her academic profession. With the aid of the newly learned strategies, Houston eventually received her Ph.D. from New York University in May 1997 and was shortly hired thereafter as a professor at South Carolina State University and then later, in her current position, at the University of South Carolina as a professor as well. Despite Houston's apparent success, she alleges that as a result of the closed head injury she received in March 1989, she will never attain her previous potential as an academician in her chosen profession. Houston alleges that she will always function on a reduced level of academic proficiency in her field. Houston attributes her diminished capacity to the March 1989 closed head injury.

¶ 6. Houston filed her complaint on September 9, 1992, alleging negligence in the design and construction of the fireplace *498 mantle which fell and struck her in the head on in March 1989. Following discovery, Houston filed to amend her complaint to reflect suit only against York and M & N Builders on September 16, 1994, and an order was entered to reflect the same on October 25, 1994.

¶ 7. Bennett York is a dentist in Hattiesburg, Mississippi and a commercial and residential real estate developer. In 1983, York planned to expand his real estate developments into Oxford, Mississippi. York's son would soon be attending the University of Mississippi, so York decided to build several duplexes in Oxford to provide housing for his son and to generate income. York was referred to Rex Marshall, a building contractor and owner of M & N Builders, by a man named Stanton Howard whom York had known for several years. Howard advised York that he had worked for Marshall on several jobs and considered Marshall an experienced contractor. Based on Howard's recommendation, York hired Marshall to construct the duplexes.

¶ 8. Marshall traveled to Hattiesburg to meet with York and to inspect some of York's existing duplexes to get an idea of how York wanted the Oxford duplexes built. Marshall was also provided a basic floor plan from which to construct the duplexes as well as a list of the specifications for their construction. In essence, Marshall was to construct the Oxford duplexes along a similar design as those owned by York in Hattiesburg without the aid of any detailed architectural plans. Marshall was to construct the duplexes based on his experience and knowledge as a contractor provided they met the general floor plan and the specifications provided by York. The specifications for the construction of the fireplace mantle were not included in the specifications provided by York; its construction and design were left to Marshall's discretion with the exception of the actual location of the fireplace.

¶ 9.

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Bluebook (online)
755 So. 2d 495, 1999 WL 308816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-v-york-missctapp-1999.