97 So. 3d 102
Miss. Ct. App.2012Background
- McSwain was injured when he fell 32 feet inside a Grand Gulf Nuclear Station condenser during a refueling outage in Mississippi.
- He was employed by Stone & Webster Construction (S&W), a contractor that provides workers to nuclear plants, including Grand Gulf.
- Entergy Operations Inc. (EOI) supervised Grand Gulf operations and held the license for nuclear-plant operation; SMEPA and System Energy Resources were owners/affiliates.
- All maintenance workers in the condenser were hired through contractors; outages occur about every eighteen months and last several months.
- McSwain, an experienced journeyman carpenter, wore a scissor-type fall-protection device which failed to stop his fall.
- McSwain sued System Energy and SMEPA, asserting failure to provide a safe environment; the trial court granted summary judgment in favor of Grand Gulf based on immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EOI had substantial de facto control over S&W's work | McSwain contends control over work undermines independent-contractor status. | EOI retained only general, not control-level authority; contract labels S&W as independent contractor. | Independent-contractor status upheld; no EOI duty. |
| Whether EOI owed a warning or safety duty | EOI failed to provide a reasonably safe environment and to warn of dangers. | If independent contractor knew of dangers, owner has no duty to warn. | Moot; no duty owed by EOI. |
| Whether immunity under Miss. Code Ann. § 11-1-66 applies | Immunity should not bar claims because contract/control makes EOI quasi-owner. | Immunity applies to injuries to independent contractors and their employees. | Immunity applies; summary judgment affirmed. |
Key Cases Cited
- Nelson v. Sanderson Farms, Inc., 969 So.2d 45 (Miss. Ct. App. 2006) (de facto control can revive premises-owner duty to an independent contractor)
- Magee v. Transcon. Gas Pipe Line Corp., 551 So.2d 182 (Miss. 1989) (defines independent contractor and control factors)
- Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (Miss. 1931) (historic criteria for contractor status)
- Miss. Chem. Corp. v. Rogers, 368 So.2d 220 (Miss. 1979) (premises-owner immunity to contractor's employees; duty narrowing)
- Grammar v. Dollar, 911 So.2d 619 (Miss. Ct. App. 2005) (exception to duty to warn when contractor knows dangers)
- Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267 (Miss. 1970) (premises duty related to defect remedies)
- Tharp v. Bunge Corp., 641 So.2d 20 (Miss. 1994) (policy favoring assigning dangerous-condition duties to those who can eliminate them)
- Tucker v. [Mississippi case mentioned in context], 743 So.2d 315 (Miss. 2001) (duty to employer-employee/contractor relationships)
- Heirs & Wrongful Death Beneficiaries of Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743 So.2d 311 (Miss. 1999) (contractor knowledge attributed to contractor's employees)