Vaughn v. Ambrosino

883 So. 2d 1167, 2004 WL 2303493
CourtMississippi Supreme Court
DecidedOctober 14, 2004
Docket2002-CT-00927-SCT
StatusPublished
Cited by10 cases

This text of 883 So. 2d 1167 (Vaughn v. Ambrosino) 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
Vaughn v. Ambrosino, 883 So. 2d 1167, 2004 WL 2303493 (Mich. 2004).

Opinion

883 So.2d 1167 (2004)

Rece VAUGHN
v.
Richard AMBROSINO and Ellen Ambrosino.

No. 2002-CT-00927-SCT.

Supreme Court of Mississippi.

October 14, 2004.

*1168 James L. Powell, Richard A. Courtney, Jackson, Matthew Ivan Hetzel, attorneys for appellant.

James William Manuel, Margaret Oertling Cupples, Stephen L. Thomas, Danielle Daigle Ireland, Jackson, attorneys for appellees.

EN BANC.

ON WRIT OF CERTIORARI

DICKINSON, Justice, for the Court.

¶ 1. This is a suit brought against Richard and Ellen Ambrosino by their former live-in housekeeper, Rece Vaughn, who claims the Ambrosinos' dog, Anabelle, ran into a ladder, causing her to fall and sustain serious injuries. Vaughn claims the Ambrosinos should have either restrained Annabelle or warned her that the dog might run into the ladder.

¶ 2. At the conclusion of a three-day trial, the jury returned a verdict for the Ambrosinos, and the circuit court entered judgment in accordance with that verdict. Vaughn's subsequent appeal was assigned to the Court of Appeals, which affirmed. Vaughn v. Ambrosino, 881 So.2d 847 (Miss.Ct.App.2003) Unhappy with the decision of the Court of Appeals, Vaughn filed her petition to this Court for a writ of certiorari. Finding the Court of Appeals reached the correct conclusion, but for the wrong reason, we granted the writ.

¶ 3. A proper evaluation of the case requires a brief review of the facts, which we borrow from the opinion rendered by the Court of Appeals:

Vaughn was a full-time housekeeper at the Ambrosinos' residence. As part of her employment, she lived in a furnished apartment above the garage. She was also paid $125 a week salary. The Ambrosinos were not required to have workers' compensation coverage because they did not employ the requisite number of employees.
On June 26, 1999, Vaughn was seriously injured when she fell from a ladder while cleaning the twelve foot high kitchen cabinets. She was using the ladder to reach the upper cabinets. She was standing midway up the ladder, when the Ambrosinos' dog ran under the ladder. Vaughn did not see the dog hit *1169 the ladder, she felt the dog impact the ladder. The ladder and Vaughn fell. Vaughn suffered a wound to her head and crushed heel bone in her foot, which required surgery. There was conflicting testimony whether the Ambrosinos instructed Vaughn to clean the cabinets that day and whether or not they allowed her to block off any area of the house from the dog. Vaughn alleged that the Ambrosinos specifically instructed her to clean the cabinets that day, that they told her that she would just need to be careful when cleaning the cabinets, and that she was not to shut the dog out of any part of the house. The Ambrosinos alleged that they did not tell Vaughn to clean the cabinets on her own and that it was her prerogative to close off the dog.

Id. at (¶¶ 2-3).

¶ 4. The case is now before us for final disposition of two assignments of error asserted by Vaughn which relate to jury instruction numbers 15, and 16. Because the arguments regarding the two instructions are interrelated, we shall consider them together.

Jury instruction number 16

¶ 5. At the conclusion of the evidence, the trial judge met with counsel to discuss jury instructions. Much time was spent debating whether Vaughn's relationship to the Ambrosinos was that of "master/servant," or "invitee." Still more time was invested in evaluating the "open and obvious" defense in premises liability law. The trial judge, dissatisfied with the instructions submitted by counsel, attempted to fashion its own instruction setting forth the necessary elements for a finding of liability. This instruction—which ultimately found its way into the record as Jury Instruction 16—provided:

If you find from a preponderance of the evidence in this case that
1. The plaintiff was an invitee of the defendants and
2. the defendants owned the property or premises and
3. the defendants not restraining their dog while plaintiff was working created a dangerous condition which was not readily apparent upon the defendants' property, and
4. the defendants failed to keep their property or premises in a reasonably safe condition or warn the plaintiff of a dangerous condition, not readily apparent, of which the defendant had knowledge and
5. the defendants' failure to keep their property or premises in a reasonably safe condition or warn the plaintiff of a dangerous condition, not readily apparent, was a proximate contributing cause of plaintiff's injuries.
then you shall find for the plaintiff and against the defendants.
However, if you believe that the plaintiff has failed to show any of these elements by a preponderance of the evidence in this case, then your verdict shall be for the defendants.

¶ 6. The court's instruction was prepared during a break in the jury instruction conference. When counsel returned from the break, the trial judge apparently provided them with a copy of the court's instruction. Although the instruction was mentioned, it was never discussed during the remainder of the conference. No objection to it was raised, and it was ultimately read to the jury. Vaughn could be said to have waived objection. However, because the trial court refused Vaughn's proposed instruction 15, which raised the same issues, we will address them.

¶ 7. Vaughn asserts the instructions were flawed because they prevented recovery unless the jury found (1) that she was *1170 an "invitee," and (2) that the alleged dangerous condition was not open and obvious. We begin by analyzing Vaughn's somewhat puzzling argument concerning "invitee" status, as opposed to "master/servant" status.

Invitee status

¶ 8. Vaughn attempts to classify this case as a "master/servant matter," rather than a premises liability case involving an "invitee." Citing Cherry v. Hawkins, 243 Miss. 392, 137 So.2d 815 (1962), for the proposition that a master has the duty to provide his or her servant a reasonably safe workplace, Vaughn concludes that a master will be liable for the "failure to exercise due, ordinary, reasonable care." In this, we agree. However, we fail to discern any difference in the master's duty, and that of an owner or occupier of a premises to an invitee (as will be discussed infra). Accordingly, we find no merit to this assignment of error.

¶ 9. It appears that Vaughn urges us to decide this case under "master/servant" law, because she fears if she is classified as an "invitee," she will not be allowed to recover damages caused by open and obvious dangers.[1] Vaughn is incorrect, and she is not alone.

Open and obvious

¶ 10. This same position taken by Vaughn was passionately argued by defense counsel, accepted by the trial court, and affirmed by the Court of Appeals.[2]

¶ 11. We find clear, controlling authority in Tharp v. Bunge Corp., 641 So.2d 20 (Miss.1994), wherein this Court stated:

Mississippi ... until today, still employs the complete defense of a danger being open and obvious. Previously, this Court has found that:
(t)he owner or occupant then is not an insurer against all injuries. (citations omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
883 So. 2d 1167, 2004 WL 2303493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vaughn-v-ambrosino-miss-2004.