Opinion
NO. 2019-CA-00525-COA
04-28-2020
Matthew P. DEMONEY, Appellant v. GATEWAY RESCUE MISSION, Appellee
ATTORNEY FOR APPELLANT: DAVID RANDALL WADE, Jackson ATTORNEYS FOR APPELLEE: JAMES GRADY WYLY III, SCOTT TIMOTHY ELLZEY, CHRISTINE BOCEK WHITMAN, Gulfport
ATTORNEY FOR APPELLANT: DAVID RANDALL WADE, Jackson
ATTORNEYS FOR APPELLEE: JAMES GRADY WYLY III, SCOTT TIMOTHY ELLZEY, CHRISTINE BOCEK WHITMAN, Gulfport
EN BANC.
McDONALD, J., FOR THE COURT:
¶1. Matthew Demoney appeals from the Hinds County Circuit Court's order granting summary judgment in favor of Gateway Rescue Mission in Demoney's suit for injuries he allegedly sustained while walking along Highway 149 in Simpson County, Mississippi. Demoney, a resident at Gateway's rehabilitation center, had left Gateway's grounds and was hit by a car as he walked along the highway. The circuit court granted Gateway's motion for summary judgment, finding Gateway statutorily immune and finding that Gateway was not culpable of any negligence that allegedly caused Demoney's injuries. Demoney argues on appeal that the circuit court erred in its decision. From our review of the law and relevant precedent, we find that the circuit court did not err in granting Gateway summary judgment because Gateway breached no duty owed to Demoney that caused his injuries. Accordingly, we affirm.
Facts and Procedural History
¶2. Gateway Rescue Mission is a non-profit, faith-based organization that renders various services to needy persons. Among those services is Gateway's drug and alcohol rehabilitation program, called the New Life Center for Men located in Simpson County, Mississippi. This is a residential program that helps people with alcohol and drug addictions at no cost to its residents. Participation is either ordered by a court, or people choose voluntarily to enroll.
Gateway has several properties and locations where they provide services. These include a shelter building in Jackson, Mississippi, the New Life Center facility in Magee, Mississippi, and a couple of thrift stores in Pearl, Mississippi.
¶3. Demoney initially participated in Gateway's rehabilitation program at the New Life Center in Magee, Mississippi, in 2015. At the time he entered in February 2015, he was required to sign certain documents, including a "Release from Liability Form" in which he agreed that in consideration for receiving services through Gateway, he accepted all risks that may result from such participation, including any injury or death. The form also stated that the signatory released Gateway, its governing board, office, employees, and representatives from liability that might result from Demoney's participation in the program.
¶4. During this first stay, Demoney, along with the other residents, was required to work every week at one of the thrift shops Gateway owned in Pearl, Mississippi. Additionally, Demoney stated in his deposition that he attended Bible study classes that were usually taught by Forea Ford, the program manager at the New Life Center. There was also a weight-room at the New Life Center facility, which residents were allowed to use after 3 p.m. on weekdays. On the weekends, the weight-room was accessible at any time. Demoney's initial stay lasted for four and a half months.
¶5. After a relapse in August 2016, Demoney was admitted to Merit Health Hospital in Jackson, Mississippi, where he detoxed for three days. Thereafter, he voluntarily enrolled back into Gateway's New Life Center in Magee. Demoney was once again required to work at one of Gateway's thrift shops in Pearl. However, this time he worked at the thrift shop for one week, and then he had the next week off. Demoney also participated in the same Bible study classes that Ford taught.
¶6. Gateway had established a set of procedures and policies that New Life Center residents were provided and expected to follow. Among these were guidelines related to walking outside the facility. Gateway is located on Highway 149, a two-lane highway, where the speed limit is 55 m.p.h. There are no sidewalks along the road. Gateway's policies required that when residents leave the grounds to walk, they must sign in and out with whomever is "on the desk at the time." Residents are instructed that walking close to dusk is prohibited. When residents sign out, the person at the desk can tell them where they can and cannot go. Residents must return within an hour of signing out. Additionally, the policies and procedures specifically prohibit residents from walking to Legion Lake just north of the facility for safety reasons because a resident would need to cross Highway 49, a four-lane highway, to get there. Nor were they allowed to walk the residential streets on the other side of the New Life Center facility. Thus, residents who left the facility for exercise could only walk along Highway 149. Ford testified this policy had been in place since before he began working at Gateway years before. He also said that no incident or accident involving residents walking along Highway 149 had ever happened, so they "never had a need to address the policy."
¶7. Demoney testified he walked along Highway 149 "everyday [he] could." He testified, "[T]he week I was off, at three o'clock, as soon as class was over, I would walk." Sometimes he would walk with someone, but "it depended." He also stated that he walked along Highway 149 during his stay in 2015 as well. Demoney testified he had never been injured while walking along Highway 149, and he did not think walking along Highway 149 was dangerous because he always felt like he was in a position to avoid any cars when he saw them.
¶8. On September 26, 2016, Demoney was off work and had just finished a Bible study class led by Ford around three o'clock. Demoney signed out to go on a walk along Highway 149. Demoney described the weather that day as a "beautiful! beautiful day! not a cloud in the sky!" He said he had not taken any drugs, nor did he drink any alcohol, so he was not impaired in any way.
¶9. After Demoney had been walking for about fifteen or twenty minutes, Ford left Gateway, driving along Highway 149. Ford testified he saw Demoney walking shirtless, in the middle of the road. Demoney would later testify that there was nowhere to walk on the side of the road at this particular spot due to ditches and high grass. Ford said at this spot on the highway, there is an elevation, but he still managed to see Demoney. Ford said he slowed down, blew his horn, and Demoney moved over to the side of the road. As Ford passed Demoney, both men waved at each other. Ford thought it was odd that Demoney was walking in the middle of the road, and he continued to watch Demoney through his rearview mirror after he had passed. In the mirror, Ford observed Demoney once again move back into the middle of the highway, where he was then struck by a van driven by Angelica Easterling. Easterling's vehicle was traveling at a "high rate of speed" when it hit Demoney. Easterling also admitted that she had seen Demoney before hitting him.
¶10. Ford immediately turned around to assist Demoney, who was ultimately airlifted to the University of Mississippi Medical Center. Demoney received multiple emergency surgeries, wound debridement, and physical therapy. Demoney sustained permanent injuries.
¶11. Demoney filed a complaint in the Hinds County Circuit Court, First Judicial District, naming Angelica Easterling, Gateway Rescue Mission, and John Does 1-10 as defendants. Specifically, Demoney pleaded claims of negligence against Easterling and Gateway and a claim of gross negligence against Easterling, Gateway, and John Does 1-10, seeking compensatory and punitive damages.
¶12. After discovery, Gateway filed a motion for summary judgment, asserting that it owed no duty to Demoney and that Gateway qualified for immunity as a volunteer agency under Mississippi Code Annotated section 95-9-1 (Rev. 2013). Gateway also sought dismissal of the punitive damage claim. The circuit court granted Gateway's motion for summary judgment, finding that no genuine issue of material fact existed and that Gateway was entitled to judgment as a matter of law. The court found that Gateway did not owe or breach any duty to Demoney. Further, the court found that Gateway was protected under Mississippi's volunteer immunity statute. Demoney now appeals from the circuit court's judgment.
Standard of Review
¶13. The appellate review of a trial court's grant or denial of a motion for summary judgment is de novo. Adams v. Graceland Care Ctr. of Oxford LLC , 208 So. 3d 575, 579 (¶9) (Miss. 2017). "There must be no genuine issue of material fact when viewed in the light most favorable to the nonmoving party to sustain an order of summary judgment according to Mississippi Rule of Civil Procedure 56(c)." Todd v. First Baptist Church of W. Point , 993 So. 2d 827, 829 (¶9) (Miss. 2008).
Discussion
¶14. Demoney does not claim that there were genuine issues of material fact that would preclude summary judgment. Instead, Demoney claims that Gateway was not entitled to judgment as a matter of law because Gateway was negligent (i.e., breached a duty owed and caused injury). Moreover, Demoney argues that Gateway has no statutory immunity that precludes lawsuits against it. We affirm the circuit court's ruling that, as a matter of law, Gateway breached no duty owed to Demoney that caused him injury in this case. We find it is unnecessary to address the immunity issue.
¶15. Demoney claims that Gateway's walking policy was inadequate and that because of this, he walked along Highway 149 unaccompanied and was injured. Demoney alleges Gateway should have prohibited walking along Highway 149 altogether, or should not have allowed Demoney to walk unaccompanied. We disagree.
Gateway did not really have a "walking program" as Demoney claimed. Gateway had other recreational facilities on its property (a weight-room, et cetera). Recognizing that residents may want to leave the premises and walk, Gateway established some guidelines for walkers, such as signing in and out at the desk when one leaves and comes back in, and prohibiting residents from walking to certain areas for safety reasons.
It is noted that Demoney had no mental or physical impairments.
¶16. Negligence is established by showing four elements: duty, breach, causation, and damages. Patterson v. Liberty Assocs. L.P. , 910 So. 2d 1014, 1019 (¶14) (Miss. 2004). In a claim of negligence, a plaintiff must establish a duty owed to it by a defendant. Id . "Whether a duty is owed is a question of law." Doe ex rel. Doe v. Wright Sec. Servs. Inc ., 950 So. 2d 1076, 1079 (¶12) (Miss. Ct. App. 2007).
¶17. In this action, Demoney does not claim a statutory basis, such as a traffic violation, to establish that Gateway owed him any duty. Instead Demoney alleges that there is a common-law duty imposed on everyone to conform his voluntary actions to a standard of reasonable care:
The law imposes upon every person who undertakes the performance of an act which, it is apparent, if not done carefully, will be dangerous to other persons—the duty to exercise his senses and intelligence to avoid injury, and he may be held accountable at law for an injury to person or property which is directly attributable to a breach of such duty.
Dr. Pepper Bottling Co. v. Bruner , 245 Miss. 276, 282, 148 So. 2d 199, 201 (1962). In that case, Bruner was injured when an employee of Dr. Pepper Bottling Company rushed around the corner of a vestibule to a building and struck Bruner with his cart laden with cases of Dr. Pepper. Id. at 280-81, 148 So. 2d at 200. In discussing the facts, the supreme court pointed out that the deliveryman was familiar with the area and knew that employees in the building would be entering and exiting at a fast pace. Id. at 281-82, 148 So. 2d at 201. There was also no question that Bruner's injuries were caused by the collision with the deliveryman. Id . at 283-84, 148 So. 2d at 202. The supreme court affirmed the trial court's submission of the case to a jury.
¶18. "In the context of an ordinary negligence action the duty of care is the requirement ‘to conform to a specific standard for the protection of others against the unreasonable risk of injury.’ " Clausell v. Bourque , 158 So. 3d 384, 391 (¶22) (Miss. Ct. App. 2015) (quoting Laurel Yamaha Inc. v. Freeman , 956 So. 2d 897, 904 (¶24) (Miss. 2007) ). Demoney argues that by allowing its residents to walk outside its premises, Gateway undertook a duty to fashion policies that adequately protected them on these walks and that the policies Gateway wrote did not. But Demoney can point to no clear precedent that establishes such a duty under circumstances such as these. Demoney presented no evidence to show that Gateway's policies were deficient or failed to meet any national minimum standards. No expert testified to the deficiencies in Gateway's guidelines, and there was no testimony that the failure to promulgate adequate guidelines caused Demoney's injury.
It is noted that Demoney designated an expert in the administration and operation of residential substance-abuse facilities, but Demoney did not supply any affidavit from that expert in opposition to Gateway's motion for summary judgment.
¶19. "Duty and breach of duty, which both involve foreseeability, are essential to finding negligence and must be demonstrated first." Duckworth v. Warren , 10 So. 3d 433, 440 (¶23) (Miss. 2009). Mississippi law requires that "actionable fault [on the part of a defendant] must be predicated on action or inaction, prompted by knowledge, actual or implied, of fact which make the result of the defendant's conduct not only the probable result but also a result which the defendant should, in view of the facts, have reason to anticipate." Touche Ross & Co. v. Commercial Union Ins. Co. , 514 So. 2d 315, 323 (Miss. 1987) (citing Sprayberry v. Blount , 336 So. 2d 1289, 1294 (Miss. 1976) ); see also Cadillac Corp. v. Moore , 320 So. 2d 361, 365 (Miss. 1975). In this case, Gateway's guidelines for walking off-premises did not result in Demoney's accident. The guidelines did not require any resident to walk along Highway 149, but merely established some parameters if a resident chose to do so. In the years Gateway has allowed residents to walk along Highway 149, no one had ever been hurt as a result. Because there had been no other accidents of this type, Gateway could reasonably conclude that walking along Highway 149 did not pose a danger to it residents. Therefore, there was no reason for Gateway to reasonably anticipate some injury would result.
¶20. In addition, if any actions by Gateway in allowing residents to walk along Highway 149 could be somehow construed as negligent, this negligence was not the cause of Demoney's injuries.
Although one may be negligent, yet if another, acting independently and voluntarily, puts in motion another and intervening cause which efficiently thence leads in unbroken sequence to the injury, the latter is the proximate cause and the original negligence is relegated to the position of a remote and, therefore, a non-actionable cause. Negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are
inflicted, is not the proximate cause thereof. The question is, did the facts constitute a succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the alleged wrong and the injury?
Miss. City Lines v. Bullock , 194 Miss. 630, 13 So. 2d 34, 36 (1943). Putting a person in a particular place at a particular time does not "cause" injury when another person puts into motion an intervening cause. Ready v. RWI Transportation LLC , 203 So. 3d 590, 594 (¶10) (Miss. 2016). In Bullock , the court held that although a bus had violated a statute by blocking part of the highway during one of its stops, that action was not the "proximate cause" of the resulting accident. Bullock , 13 So. 2d at 36. Rather, it was remote from the injuries sustained by a boy who had just gotten off the bus and was then hit by a car as he tried to cross the highway. Id . at 36-37. Similarly, the intervening causes of Demoney's injuries was his own action of walking in the middle of the highway, combined with Easterling's negligent driving and her failure to avoid Demoney.
¶21. Demoney further argues that Gateway breached its own internal policies in allowing Demoney to walk unaccompanied. However, there is no written policy requiring that residents be accompanied; there is only a mention in Ford's testimony that the "house manager" usually walked with residents. Even if there were, while the breach of an internal policy may provide some proof of negligence, it does not create a statutory duty in the first place. Boyd Tunica Ins. v. Premier Transp. Servs. Inc ., 30 So. 3d 1242 (¶19) (Miss. Ct. App. 2010). Demoney fails to provide any evidence to show that any failure of Gateway to enforce its policies caused Demoney's injuries. Demoney was an adult who was familiar with the New Life Center and the environment and who walked along Highway 149 numerous times. He stated that he had walked alone along the highway before, that he had not experienced any incidents before, and that he felt confident he could move in time when cars approached. He himself stated that he chose to walk along the median. No one and no policy from Gateway required Demoney to walk along Highway 149 in this manner.
¶22. Here the circuit court did not err in finding that Gateway owed no duty to Demoney on these facts, nor was any duty breached by Gateway that caused Demoney's injuries. Accordingly, the circuit court properly granted Gateway's motion for summary judgment on Demoney's negligence claims. Because we affirm on the issue of negligence, it is not necessary for us to discuss statutory immunity.
We disagree with Gateway that this is a premises liability case. If this accident happened on Gateway's premises, most likely there would be a duty placed upon Gateway; however, this accident did not take place on Gateway's premises, and Demoney never alleged premises liability. See Albert v. Scott's Truck Plaza Inc. , 978 So. 2d 1264, 1267 (¶11) (Miss. 2008) (no duty owed to Albert after she left their premises and entered the public roadway, where she was fatally injured).
Conclusion
¶23. Because Demoney failed to establish any duty that Gateway owed him or breached that caused his damages, we hold that the circuit court was correct in granting summary judgment in favor of Gateway.
¶24. AFFIRMED.
GREENLEE, WESTBROOKS, TINDELL, LAWRENCE AND McCARTY, JJ., CONCUR. CARLTON, P.J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, C.J., J. WILSON, P.J., AND C. WILSON, J.
CARLTON, P.J., CONCURRING IN PART AND IN RESULT: ¶25. I concur with the majority's finding that the circuit court did not err in granting summary judgment in favor of Gateway. The majority finds that Gateway owed no duty to Demoney and then expands its discussion even further to find that "Gateway breached no duty owed to Demoney that caused him injury in this case." Maj. Op. at (¶14). I write separately to state that our discussion and analysis should end upon our finding that Gateway owed no duty to Demoney.
¶26. To survive Gateway's motion for summary judgment, Demoney bore the burden of providing sufficient evidence establishing the elements of negligence: (1) duty, (2) breach, (3) causation, and (4) damages. Spann v. Shuqualak Lumber Co. , 990 So. 2d 186, 189 (¶7) (Miss. 2008). The supreme court has established that in order "[t]o prevail on a negligence claim, a plaintiff must prove by a preponderance of the evidence each element of negligence ...." McIntosh v. Victoria Corp ., 877 So. 2d 519, 522 (¶9) (Miss. Ct. App. 2004) (quoting K-Mart Corp. v. Hardy ex rel. Hardy , 735 So. 2d 975, 981 (¶14) (Miss. 1999). "When a plaintiff fails to prove that a duty is owed, there can be no claim for negligence." Horton ex rel. Estate of Erves v. City of Vicksburg , 268 So. 3d 504, 510 (¶18) (Miss. 2018).
¶27. In the present case, the circuit court found that Demoney "has offered the Court little or no competent evidence or credible claims of negligence against Gateway" and "that Gateway did not owe or breach its duty to ... Demoney by allowing him to voluntarily walk alongside Highway 149 where [he] was injured." Notably, the circuit court acknowledged that "[a]t the time of the incident in the herein case, Demoney's residency at the Gateway facility was not court ordered and he was free to go and come as he pleased, to include walking near and along the side of the highway." The circuit court further found that Gateway was protected under Mississippi's volunteer immunity statute.
¶28. On appeal, Demoney submits that a common-law duty is "imposed on everyone to conform his voluntary actions to a standard of reasonable care." Demoney argues that by voluntarily choosing to create and provide a walking program for its residents, Gateway undertook the common-law duty to use reasonable care in providing its walking program. Demoney states that this duty required Gateway to use reasonable care in selecting the residents’ walking route. Demoney maintains that Gateway could have chosen a different walking route with traffic controls for pedestrian safety, or simply not provided a walking program.
¶29. Gateway asserts, however, that the record "clearly indicates" that Demoney was not on Gateway's premises, but rather he was walking on a public roadway when he was struck by the vehicle driven by Easterling. Gateway argues that Mississippi does not recognize an individual who is injured off-premises as an invitee, licensee, or trespasser and maintains that there can be no duty owed by a landowner for an injury suffered off and away from the landowner's premises. Gateway further asserts that Mississippi law contains no requirement for a premises owner to proactively prevent an individual on its premises from leaving and encountering an off-premises peril.
¶30. As stated, the record reflects, and the circuit court found, that at the time of Demoney's injury, Demoney's residency at Gateway was not court-ordered, and he was free to go and come as he pleased, as well as to walk near and along the side of the highway. In Albert v. Scott's Truck Plaza Inc ., 978 So. 2d 1264, 1267 (¶10) (Miss. 2008), the Mississippi Supreme Court held that a truck stop owner owed no duty to the truck driver's deceased wife at the moment that she left the truck stop and entered the public highway. In Gammel v. Tate Cty. Sch. Dist. , 995 So. 2d 853, 859 (¶17) (Miss. Ct. App. 2008), this Court held that a school district did not owe a duty to a motorist who left a school parking lot and was struck by a vehicle on a public roadway. This Court explained that "[w]hile the decedent enjoyed the status of trespasser at the time he parked his vehicle, when he stepped off the bus parking lot onto [the public roadway,] he lost this status." Id .
¶31. As found by the majority, "Demoney presented no evidence to show that Gateway's policies were deficient or failed to meet any national minimum standards. No expert testified to the deficiencies in Gateway's guidelines, and there was no testimony that the failure to promulgate adequate guidelines caused Demoney's injury." Maj. Op. at (¶18). Furthermore, "Demoney can point to no clear precedent that establishes such a duty under circumstances such as these." Id . Therefore, Demoney failed to meet his burden of proving that Gateway owed him a duty. As a result, his claim for negligence must fail. See Horton ex rel. Estate of Erves , 268 So. 3d at 510 (¶18). I therefore decline to address whether Demoney met his burden of proving the remaining elements of negligence.
BARNES, C.J., J. WILSON, P.J., AND C. WILSON, J., JOIN THIS OPINION.