Chris Clausell v. Jeffrey Bourque
158 So. 3d 384
Miss. Ct. App.2015Background
- Clausell bought shower doors from Lowe’s; Lowe’s arranged third-party measurement and installation by independent contractors (Maguzzu). The doors repeatedly fell out of track after installation.
- After an inner door fell and injured Clausell’s foot, Lowe’s hired Bourque to inspect the installation; Bourque performed a $35 “detail” inspection, concluded the doors were damaged and needed replacement, and said he expected to be hired to replace them.
- Bourque did not replace the doors; Lowe’s never arranged replacement. Clausell continued using the doors despite recurring failures and was seriously injured months later when he slipped avoiding a falling door.
- Clausell sued Lowe’s, the installer, and Bourque alleging various negligence theories; summary judgment was granted for Bourque and affirmed on appeal.
- The appellate court considered claims that Bourque negligently failed to warn, failed to repair or replace, negligently altered the doors (removed a part), and that a promise to return created liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn | Bourque failed to warn Clausell the doors were dangerous | Clausell already knew the doors were dangerous before and after inspection | No duty to warn where plaintiff knew and appreciated the peril; claim fails |
| Failure to repair | Bourque negligently failed to repair the doors after inspection | Bourque was hired only to inspect (a "detail"); work order and payment show inspection only; doors were damaged beyond repair | No tort: no evidence Bourque undertook repair obligation; doors required replacement, not repair |
| Negligent alteration (removing part) | Bourque removed a part causing worse performance and took it | Bourque attempted to secure a loose/stripped part and removed it because it could not function; denies taking it | Plaintiff failed to identify the part, show it was reattachable, or that removal proximately caused injury; claim fails |
| Failure to replace / promissory estoppel / duty to act | Bourque promised to return and replace doors; that promise generated liability/tort duty | Any promise was gratuitous or at most contractual; no consideration or detrimental reliance; no independent duty of care to replace | No tort duty to perform replacement; promise was not a basis for negligence liability and promissory estoppel fails (no detrimental reliance) |
Key Cases Cited
- Davis v. Hoss, 869 So. 2d 397 (Miss. 2004) (standard of review for summary judgment)
- Galloway v. Travelers Ins. Co., 515 So. 2d 678 (Miss. 1987) (burden when opposing summary judgment and establishing essential elements)
- State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 736 So. 2d 384 (Miss. Ct. App. 1999) (trial by consent / raising unpled claims through litigation conduct)
- Ill. Cent. R.R. v. Crawford, 143 So. 2d 427 (Miss. 1962) (no duty to warn when plaintiff appreciated the danger)
- Teche Lines, Inc. v. Danforth, 12 So. 2d 784 (Miss. 1943) (law does not require performing the impossible)
- Palmer v. Biloxi Reg'l Med. Ctr., 564 So. 2d 1346 (Miss. 1990) (plaintiff bears burden to establish duty, breach, proximate cause, injury)
- Hazell Mach. Co. v. Shahan, 161 So. 2d 618 (Miss. 1964) (distinguishing contract nonperformance from tort duty; duty must be independent of contract)
- Hill v. Carroll County, 17 So. 3d 1081 (Miss. 2009) (res judicata and related procedural considerations)