Lumbley v. Ten Point Co.

556 So. 2d 1026, 1989 Miss. LEXIS 497, 1989 WL 154608
CourtMississippi Supreme Court
DecidedDecember 6, 1989
DocketNo. 07-CA-58940
StatusPublished
Cited by4 cases

This text of 556 So. 2d 1026 (Lumbley v. Ten Point Co.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lumbley v. Ten Point Co., 556 So. 2d 1026, 1989 Miss. LEXIS 497, 1989 WL 154608 (Mich. 1989).

Opinion

ROY NOBLE LEE, Chief Justice,

for the Court:

E.A. Lumbley and Lora Lumbley, husband and wife, filed suit in the Circuit Court of the First Judicial District, Hinds County, Mississippi, seeking damages for personal injuries sustained by Lora Lumb-ley when she fell through a stairway railing at the caretaker’s residence on Ten Point Hunting Club’s property, against the Ten Point Company and Harry D. Osborne, President of said company. E.A. Lumbley, the husband and club’s caretaker, sought damages for loss of consortium. The lower court entered an order granting summary judgment in favor of the Ten Point Company and Osborne, and the Lumbleys have appealed here, assigning four (4) errors in the trial below.

Facts

Ten Point is a Mississippi corporation organized on October 4, 1965, for the purpose of owning and operating a “members only” hunting and fishing club. The majority of its members live in Jackson. The club is located in a remote area of Issaque-na County on land owned by Anderson-Tully Co. and leased by Ten Point.

At the campsite is a dining hall, pump house, skinning shed, cooler, trailers, cabin, and a caretaker’s house. Ten Point employs a caretaker to look after the property. Between 1974 and 1976 the club moved a house onto the property to serve as the caretaker’s residence. The house sits fifteen (15) to twenty (20) feet off the ground on wooden poles. There are two sets of stairs, which provide access to the house. The stairs involved in this litigation were built in 1984 of treated lumber and are frequently used to access the house. They rise approximately four feet from the ground to a landing at which point the stairs take a ninety degree turn and ascend upward to a doorway situated at the end of the house.

In June or July of 1986 Ten Point’s caretaker left and the club was searching for a caretaker after the job became vacant. E.A. Lumbley heard ábout the job and approached James Carroll, Vice-President of Ten Point, for employment. On July 27, 1986, Carroll hired Lumbley. Ordinarily the President, Harry Osborne would handle such matters, but he was out of town at the time. There was some sense of urgency to get a caretaker quickly because Carroll had received reports from a game warden in Issaquena County and the Warren County Sherriff’s Department that one of the camps nearby was burglarized.

At the time Lumbley was hired, he and his wife Lora were separated. Lora was living with, and taking care of, Ethel P. Wessinger who lived in Cary, Mississippi, about 30 miles north of Vicksburg. Lumb-ley told Carroll that Lora had left him and that he was trying to get her back. Lumb-ley was 65 years old and had a fourth (4th) grade education. Because he had never been a caretaker before, Lumbley request[1028]*1028ed a list of duties that he was expected to perform. Osborne upon his return, provided him with the following list of duties:

1) keep out trespassers;
2) cut grass and pick up limbs;
3) maintain water well;
4) upon conclusion of the hunting season, wash and clean meat cooler and skinning racks;
5) store scales and other tools utilized in dressing deer in mess hall storage cabinet.

In addition, his duties were general about the camp.

In consideration for his services, Lumb-ley was given use of the caretaker’s residence and was paid a monthly salary plus part of the electrical bill on the house. Previously, the caretaker had always paid the phone bill except for long distance calls by the members. However, Lumbley had trouble with the phone company and he couldn’t get the service in his own name. Ten Point decided that it needed a phone at the camp and agreed to pay the regular monthly charges with Lumbley paying for personal long distance calls.

Lumbley moved into the caretaker’s house on or about July 27, 1986. Prior to moving, he observed that the house was in need of several repairs. Specifically, he requested, and was given, authorization to perform the following repairs:

1) repair water lines
2) repair hot water heater
3) replace water faucets in kitchen and bathroom
4) repair walls in bathroom
5) paint kitchen
6) replace hinges on cabinets in kitchen.

Around August 1, Lumbley and wife reconciled their differences and Lora decided she would again live with him after she gave one month’s notice to Ms. Wessinger. On September 4, 1986, Lora moved into the caretaker’s residence with Lumbley. Mr. Carroll stated in his deposition that he first learned that Lora was living with Lumbley when the members had a workday in September and stated that it didn’t matter to him one way or the other that she was there. Lumbley was hired to do the caretaker’s job but Carroll was glad to get Lora’s input.

On September 30, Lora was recovering from a fracture to her ankle, which was in a cast. The doctor had told her that the cast was not made for walking and that she should not walk on it. Nevertheless, she walked down the stairs to the landing and leaned over the rail to hand her husband something. The part of the landing over which she leaned did not have a top rail, as did both sides of the landing at the top of the stairs and the other side of that same lower landing. However, it did have a rail about one-third (⅛) of the way down from the top of the vertical sideposts.

When Lora leaned over the rail to hand the item to Lumbley, the board rail gave way and she fell about four feet onto a concrete surface. An ambulance transported Lora to Kuhn Memorial Hospital near Vicksburg. However, the hospital did not have the facilities for the operation she needed and Lora was taken to Mercy Regional Medical Center where she spent 28 days and was treated for broken bones and multiple injuries. Lora’s hospital stay required Lumbley to be at the hospital quite a bit and he was unable to perform his duties as caretaker.

There was much deposition testimony given with regard to the condition of the rail and the knowledge which Lumbley and Ten Point had of it. Lumbley stated that the rail was a one-by-four (1" x 4") which was nailed on the outside of the sideposts of the landing with three little nails. Apparently rain had seeped behind the board and caused the nail holes to rot. Lumbley testified that the rotted condition of the nail holes couldn’t have been discovered unless the board was taken off and looked at. The whole board was not rotten; to fix it would only require some larger nails. Lora Lumbley stated that the stairs and rails looked to be in good condition. She held onto the rails as she went up and down the stairs but she didn’t hold onto the rails when she was on the flat surface of the landing. She stated that with the naked eye, you couldn’t see anything that [1029]*1029was wrong with the rail. James Carroll testified that while he was president, which was about a year and a half prior to the accident, he regularly shook the specific railing and all railings to make sure they were safe.

In early December Harry Osborne gave Lumbley notice that he was being terminated. Osborne told Lumbley that they would pay him for December and he could have until the end of that month to find somewhere else to live.

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Cite This Page — Counsel Stack

Bluebook (online)
556 So. 2d 1026, 1989 Miss. LEXIS 497, 1989 WL 154608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumbley-v-ten-point-co-miss-1989.