SANDERSON FARMS, INC. AND GEORGE VARNADO v. D. D. McCULLOUGH
NO. 2015-IA-00854-SCT
IN THE SUPREME COURT OF MISSISSIPPI
02/02/2017
HON. DAVID H. STRONG, JR.
DATE OF JUDGMENT: 05/20/2015; COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT; ATTORNEYS FOR APPELLANTS: RICHARD O. BURSON, SHIRLEY M. MOORE; ATTORNEY FOR APPELLEE: ORVIS A. SHIYOU, JR.; NATURE OF THE CASE: CIVIL - PERSONAL INJURY; DISPOSITION: REVERSED AND RENDERED - 02/02/2017
BEAM, JUSTICE, FOR THE COURT:
¶1. This case comes to the Court on interlocutory appeal of the Lincoln County Circuit court‘s Order Denying the Defendant‘s Motion for Summary Judgment. Although the plaintiff‘s overarching claim is framed in negligence, it factually sounds in intentional tort and is subsequently barred by the one-year statute of limitations under
FACTS
¶3. On May 24, 2010, Plaintiff/Respondent D.D. McCullough was injured when he was struck by a vehicle driven by Petitioner/Defendant George Varnado. Varnado, an employee of Petitioner/Defendant Sanderson Farms, Inc., visited McCullough‘s chicken farm that afternoon to inspect its chicken houses, as directed by his employer. Consistent with a Boiler Production Agreement (BPA) McCullough signed earlier that year,2 Varnado sought to conduct a routine evaluation of the chicken-house conditions to ensure they met the standards under the contract.
¶4. Throughout his inspection, Varnado discovered deficiencies in violation of the BPA, after which he returned to the cab of his truck and began to write a deficiency report. McCullough approached Varnado‘s vehicle and asked what he was doing, to which Varnado responded, that he was “writing deficiencies.”3 Recognizing this report would affect the terms of the BPA and potentially terminate his contract, McCullough stood at the closed driver‘s side window and shouted to Varnado, “you lied to me, you gave me four days . . . its
¶5. McCullough continued to urge Varnardo to “get out and talk.” Without warning or a discernable request to leave the property,4 Varnado then “mashed the gas,” striking McCullogh with the vehicle. This contact forced McCullough back roughly two feet but did not cause him to fall. He again urged Varnado to get out and talk, but Varnado refused and instead moved his truck “straightforward,” hitting McCullough a second time. McCullough again stumbled backward, though he did not fall.
¶6. McCullough approached the vehicle a third time and implored Varnado to get out and talk, while Varnado continued to yell inaudible responses from the safety of the truck cab. Varnado then moved the truck forward and “went straight through,” knocking McCullough‘s “ass off,” causing him to fall and hit his head on the truck‘s bumper. The impact pushed McCullough to the side of the truck, after which Varnado continued to drive off and exited the property.
¶7. Following the altercation, Varnado returned to McCullough‘s property, accompanied by several Sanderson officials and a deputy sheriff. The officials and the deputy approached McCullough‘s home in an effort to discuss the incident. They requested that McCullough go with them to the Sanderson office to discuss it further, but he refused and said that he was
¶8. On May 26, two days following the incident, McCullough received a letter from Sanderson, terminating the BPA. The termination letter cited the BPA and noted that McCullough had violated both the duty to not interfere with Sanderson employees in the execution of their duties and the duty to not use threatening language toward those same employees. That same day,5 Sanderson officials removed roughly 99,000 chickens and their supplies from McCullough‘s farm and severed the relationship.
¶9. McCullough subsequently filed two lawsuits; the first, which alleged Sanderson‘s breach of contract, was dismissed on summary judgment. The second—the case at hand—alleges that Varnado (and, as a result, Sanderson) breached the duty of reasonable care to operate a motor vehicle safely when Varnado failed to allow McCullough to move out of the truck‘s path prior to accelerating forward. Following a period of discovery, Sanderson and Varnado moved for summary judgment, claiming that McCullough‘s suit alleged a tort in negligence where, factually, the actions identified would constitute an intentional tort. Sanderson asserts that, sounding in intentional tort, McCullough‘s claims are time-barred and the suit should be dismissed.
¶10. The trial judge reviewed the partys’ arguments and determined that, because Varnado denies having hit McCullough with his truck, much less intentionally doing so, a genuine
¶11. On interlocutory appeal, and in their motion for summary judgment, Sanderson and Varnado (collectively, Defendants) argue the following issues:
- Whether Plaintiff‘s sworn testimony demonstrates he alleges an intentional tort which is barred by the one-year statute of limitations.
- Whether Sanderson is liable for the intentional acts alleged by Plaintiff.
- Whether Plaintiff has abandoned any claim against Sanderson related to the May 24, 2010, incident for failing to comply with the party‘s contractual dispute-resolution procedure.
- Whether Plaintiff‘s claim of negligent supervision is properly before this Court and whether it demonstrates that he alleges an intentional tort, not negligence.
Because we find that McCullough‘s claims are grounded in intentional tort, rather than negligence, they are accordingly time-barred. As all other issues are now immaterial, we address only the petitioner‘s first issue.6
¶12. This Court employs the de novo standard when reviewing a lower court‘s grant or denial of summary judgment and examines all the evidentiary matters before it, including admissions in pleadings, answers to interrogatories, deposition testimony, affidavits, etc. McMillan v. Rodriguez, 823 So. 2d 1173, 1176-77 (Miss. 2002), citations omitted. Summary judgment is properly granted when the “pleadings, depositions, answers to interrogatories, and admissions on file . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
LAW AND ANALYSIS
Whether Plaintiff‘s sworn testimony demonstrates he alleges an intentional tort which is barred by the one-year statute of limitations.
¶13. While McCullough alleges negligence in his complaint, calling for the application of the three-year statute of limitations, this Court is not bound by the claims set forth in his petition.7 Instead, “[t]he law of the state is realistic. Substance prevails over form.”8 The question before this Court is whether the substance of McCullough‘s claim against Varnado and Sanderson sounds in intentional tort or negligence. The evidence presented to support the claim alleged in McCullough‘s complaint—while pleaded as an action in
¶14. Under
¶16. The intentional tort of assault “occurs where a person (1) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (2) the other is thereby put in such imminent apprehension.” Morgan v. Greenwaldt, 786 So. 2d 1037, 1043 (Miss. 2001) (citing Webb v. Jackson, 583 So. 2d 946, 951 (Miss. 1991)). However, an action done without the requisite intent “does not make the actor liable to the other” for the apprehension caused, “although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.” Restatement (Second) of Torts, § 21 (1965). “Intent is an emotional operation of the mind, and is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time. Defendant‘s intention is manifested largely by the things he does.” Mississippi State Bd. of Nursing v. Wilson, 624 So. 2d 485, 494 (Miss. 1993). While the question of intent generally is a question of fact reserved for the jury, “it is well settled that intent may be shown by circumstances.” Id. Further, “[a] battery goes one step beyond an assault in that
¶17. Alternatively, to prevail on a claim of negligence, the “plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury.” Miss. Dep‘t of Mental Health v. Hall, 936 So. 2d 917, 922 (Miss. 2006) (quoting Miss. Dep‘t of Transp. v. Cargile, 847 So. 2d 258, 262 (Miss. 2003), overruled on other grounds by Miss. Transp. Comm‘n v. Montgomery, 80 So. 3d 789 (Miss. 2012)). Further, the plaintiff must show “a causal connection between the breach and the [injury], such that the breach is the proximate cause of the [injury].” Double Quick v. Lymas, 50 So. 3d 292, 298 (Miss. 2010). The plaintiff must first prove the existence of a duty owed, then “[t]he elements of breach and proximate cause must be established . . . with supporting evidence. Duty and breach of duty, which both involve foreseeability, are essential to finding negligence and [therefore,] must be demonstrated first.” Griffith v. Entergy Miss., Inc., 203 So. 3d 579, 585 (Miss. 2016) (citations omitted). Generally, if a person of ordinary intelligence would not have “anticipated the dangers that his negligent act created for others,” then the injury would not be considered foreseeable. Ogburn v. City of Wiggins, 919 So. 2d 85, 92 (Miss. Ct. App. 2005) (citations omitted). Moreover, “[f]oreseeability does not require that a person anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence.” Id.
¶18. These rules make clear that the principal difference between an intentional tort and negligence is that “an intentional tort is an act of intentional behavior designed to bring about
¶19. Looking to the deposition transcripts, McCullough‘s account of the event implies that he perceived Varnado‘s actions as intentional. Specifically, McCoullough stated that, with less than one foot between himself and the truck, he looked “straight into the windshield” as “Mr. Varnado mashed the gas . . . . Period. Point blank.” McCullough stated that he then told Varnado to “get his A out of the truck,” at which point “[Varnado] decided he wanted to leave.” The first two times Varnado hit McCullough with his truck, Plaintiff stumbled backward but approached the truck again after regaining his balance. McCullough testified
¶20. Alternatively, Varnado contends that, while there was a dispute between McCullough and himself on May 24, at no point did he hit the grower with his truck; much less did he do so intentionally. He claims that there was neither an intentional act nor a negligent one, because the incident never happened. While Varnado‘s deposition transcript was not presented to the trial court and is not properly before this court, attorneys for both parties described the provided testimony to the trial judge at the hearing on the defendant‘s motion for summary judgment. There, counsel for the plaintiff discussed the content of Varnado‘s testimony, noting that “part of his deposition said, I never intended to run over the man.” Defense counsel also summarized this portion of the deposition, stating that “he never intended to run over [McCullough]. In fact, he denies that he ever did run over him. His testimony is completely the opposite of what Mr. McCullough has testified to with respect to the contact of his vehicle with Mr. McCullough.” The defense attorney further noted that, throughout Vanardo‘s testimony, “the whole point is that [the incident] never happened.” The trial court reviewed this summary together with McCullough‘s testimony and ruled that,
¶21. As the Supreme Court of the United States has held (and this Court steadfastly has followed),
the plain language of [Rule 56] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party‘s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party‘s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Galloway v. Travelers Ins. Co., 515 So. 2d 678, 683 (Miss. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) (emphasis added)). Here, the only “proof concerning an essential element of the non-moving party‘s
Q: And it is your testimony that Mr. Varnado did not give you enough time to get out of the way of his vehicle?
A: That‘s obvious.
¶22. McCullough asserts that this testimony shows that Varnado‘s act was one of negligence, and not intent, as his failure to allow a person time to move from in front of his vehicle before proceeding forward, thereby striking the individual, can be perceived only as a breach of his owed duty of care. We find that this excerpt does not, in fact, show negligence, but instead furthers Sanderson‘s claim that the act was intentional. Without more, this testimony merely addresses the fact that Varnado willingly and without hesitation accelerated his truck forward, doing nothing to advance Plaintiff‘s claim of negligence.
¶23. In its ruling, the trial court proposed that “the defendant, George Varnado, testified that he either did not intent [sic] to strike the plaintiff with his vehicle or that he did not in fact strike the plaintiff with this vehicle.” However, the court‘s ruling—seemingly based completely on Varnado‘s deposition excerpt—again misinterprets the provided testimony.
¶24. While the question of whether the incident occurred remains in dispute, it does not affect the question of whether the act—if it in fact occurred—sounds in negligence or intentional tort. For our purposes, if Varnado did not hit McCullough, as he asserts, then the claim is baseless and thus should be dismissed. Alternatively, if he did hit McCullough, he did so intentionally, which, in turn, bars Plaintiff‘s action. In either scenario, the case presents no genuine issue of material fact for review. Accordingly, because the court‘s ruling
¶25. The court‘s application of Varnado‘s testimony is not the only basis for this Court‘s reversal, however. In addition to the deposition testimony, the record includes an itemization of undisputed facts provided by both plaintiff and defendants. Defendants filed their list first, with Plaintiff responding in turn, and both parties agreed that (1) there was an incident on May 24, 2010, (2) after a verbal altercation regarding a deficiency report, (3) In which Plaintiff was standing in front of Defendant‘s truck, (4) during which Plaintiff alleges that Varnado struck him three times with the vehicle. McCullough did not rebut any of Defendant‘s undisputed facts, nor did he seek to amend the statements he made through his deposition by which he described an intentional act by Varnado, indicating an assault under
¶26. Previously, this Court has held that a plaintiff who testifies “in his own behalf as an eye-witness to all of the facts and circumstances immediately prior to, at the time of and following the [incident] . . . is bound by his own testimony.” Seedkem S., Inc. v. Lee, 391 So. 2d 990, 994 (Miss. 1980). “The general rule is that when a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him to show that he was mistaken although testifying in good faith, he is conclusively bound by his own testimony, and cannot successfully complain if the court directs a verdict against him.”
- The party must be in a position to testify positively to the facts so testified; i.e., what he testifies to must be in his own plain view, or he [must] be otherwise situated so that there can be no mistake in his observation.
- He must testify to facts which if true would defeat recovery.
Bratschi v. Ray, 393 So. 2d 1356, 1359–60 (Miss. 1981). Through his deposition testimony, McCullough has met both prongs of the Bratschi test: first, Varnado was in the truck, in front of McCullough, in plain view and within earshot of his pleas to exit the vehicle to talk. Second, he testified multiple times, in various ways, that Varnado “meant” to hit him with his truck. This amounts to definitive, uncontested evidence that serves to defeat his requested recovery and bar his claims under
¶27. Finally, the complaint and McCullough‘s responses provide no indication of negligence other than bald assertions and a perversion of the provided testimony. Most notably, the complaint states that the negligence occurred through Varnado‘s failure to operate his vehicle in a safe manner, breaching his duty of reasonable care to pedestrians. It further shows that when he struck McCullough, Varnado caused physical injuries and other consequential damages. While serving as a “short plain statement,” these claims failed to be supported by the testimonial evidence and limited items in discovery, as discussed above. Without alleging additional evidence of negligence, McCullough has failed to “make a
¶28. In his response to Defendant‘s motion for summary judgment, McCullough elaborates on his negligence theory by noting that “Varnado had a duty not to strike the Plaintiff with his vehicle,” and because the “evidence clearly shows that Varnado struck the Plaintiff with his vehicle [and] [t]he Plaintiff‘s testimony . . . sets forth that he was injured as a result [of the collision],” Plaintiff is entitled to damages. Not unlike every other motorist, Varnado owed McCullough a high duty of care in operating his vehicle; however, by definition, “there is no such thing as a negligent assault.” Webb v. Jackson, 583 So. 2d 946, 951 (Miss. 1991) (citations omitted). Therefore, even if he breached his duty to operate the truck safely, in acting with intent to cause McCullough either apprehension or harm, Varnado committed civil assault—and subsequently battery—which cannot be considered negligence.
¶29. According to McCullough, there is no question that Varnado was (or should have been) aware that moving his vehicle forward would result in an injury. After requesting Varnado to exit the vehicle, McCullough positioned himself in front of the truck, on the driver‘s side, directly in line with the steering wheel. Varnado claims that, at this point, McCullough began to curse and pound on the hood of the truck, while McCullough asserts that he stood at the front of the truck and shouted to Varnado to “get out and talk.” Varnado acknowledged that McCullough was in front of the truck, within an arm‘s length of the hood. McCullough acknowledged that Varnado saw him. Both accounts indicate that one thing
CONCLUSION
¶30. It is well-settled in this state that claims for intentional torts of assault and battery fall under the restrictions of
¶31. REVERSED AND RENDERED.
WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN AND MAXWELL, JJ., CONCUR. CHAMBERLIN, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, P.J., NOT PARTICIPATING.