                 IN THE SUPREME COURT OF MISSISSIPPI

                            NO. 2013-CT-01807-SCT

DAVID McKEAN, FRANCESCO MEDINA,
DONALD ARRINGTON AND WAYNE
ROBERTSON

v.

YATES ENGINEERING CORPORATION,
ANDERSON REGIONAL MEDICAL CENTER,
AND FOIL WYATT ARCHITECTS AND
PLANNERS, PLLC

                         ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                    10/21/2013
TRIAL JUDGE:                         HON. LESTER F. WILLIAMSON, JR.
COURT FROM WHICH APPEALED:           LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:            KEN R. ADCOCK
                                     MARK D. MORRISON
                                     WILLIAM CHRISTOPHER IVISON
ATTORNEYS FOR APPELLEES:             THURMAN LAVELLE BOYKIN, III
                                     JAMES D. HOLLAND
                                     ROMNEY HASTINGS ENTREKIN
                                     PEELER GRAYSON LACEY, JR.
                                     SHIRLEY M. MOORE
                                     ROBERT B. IRELAND, III
                                     RICHARD O. BURSON
NATURE OF THE CASE:                  CIVIL - PERSONAL INJURY
DISPOSITION:                         AFFIRMED IN PART AND VACATED IN
                                     PART - 09/15/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      KING, JUSTICE, FOR THE COURT:

¶1.   During the construction of Jeff Anderson Regional Medical Center’s (“ARMC”)
“Medical Towers III” expansion in Meridian, scaffolding built by W.G. Yates & Sons

Construction Company (“Yates Construction”) collapsed, injuring David McKean, Francesco

Medina, Donald Arrington, and Wayne Robertson (collectively, the “plaintiffs”). The trial

court granted summary judgment and dismissed the plaintiffs’ claims against all defendants.

The Court of Appeals affirmed the decisions of the trial court. Although we agree with the

Court of Appeals’ decision to affirm the trial court, we now grant certiorari to clarify two

issues: (1) whether this Court has adopted the seven-factor test used in Hanna v. Huer,

Johns Neel, Rivers, & Webb, 662 P.2d 243 (Kan. 1983) superceded by statute, as recognized

in Edwards v. Anderson Engineering, Inc., 166 P.3d 1047 (Kan. 2007), to determine

whether an architect’s supervisory powers go beyond the provisions of the contract; and (2)

to clarify this Court’s position on the effect of an “undocumented immigrant” status on

recovery for workplace injuries.

                       FACTS AND PROCEDURAL HISTORY

¶2.    ARMC planned the “Medical Towers III” expansion to be a multi-story building

located in Meridian. ARMC hired Foil Wyatt Architects and Planners PLLC (Foil Wyatt) to

design the expansion and hired Yates Construction to act as the general contractor for the

project. Yates Construction then hired Spectrum II as the subcontractor for concrete services.

The plaintiffs were employed by Spectrum II. Construction on the expansion began in 2008.

In order to complete the second floor of the building, Yates Construction asked Yates

Engineering Corporation (“YEC”) to provide design drawings for a temporary scaffolding

used to support the second floor concrete slab during construction.



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¶3.    The Court of Appeals stated:

       As of September 2008, the first-story reinforced concrete slab had been
       poured, and Yates Construction was preparing to pour the concrete walls and
       columns that would help support the elevated second-story reinforced concrete
       slab. Yates Engineering became involved in the construction project when Dan
       Perry, Yates Construction's general superintendent, asked engineer Ted Pope
       to prepare design drawings of the scaffolding and second-story formwork.
       During late September 2008, Pope visited the construction site and met with
       Mike Clark, a construction supervisor for Yates Construction. Pope noticed
       some formwork for the first-story concrete columns and walls, but he did not
       see any scaffolding for the second-story formwork.

       During Pope's visit, he and Clark discussed some of the necessary features of
       the scaffolding, such as the need for wooden 4"x4" posts and stringers, and
       2"x4" joists. Pope prepared his preliminary design drawings, and submitted
       them for comments to Yates Construction on October 3, 2008. Meanwhile,
       Yates Construction had begun building the scaffolding before receiving Pope's
       design drawings.

       It is undisputed that Pope's plan was fundamentally flawed in one significant
       way-it contemplated using twenty-four-foot posts. However, wooden 4"x4"
       posts are not available in that length. Consequently, the posts would have to
       be “tiered” by stacking them end to end and “spliced” for stability. Despite the
       fact that Pope's plan was effectively impossible to follow, Yates Construction
       had no comments about Pope's design. Yates Construction asked Pope to send
       a final version of his design drawings. Pope complied on October 6, 20[08].
       However, Yates Construction ignored essential features of Pope's scaffolding
       design.

McKean v. Yates Engr. Corp., No. 2013-CA-01807-COA, 2015 WL 5118062, at *1 (Miss.

Ct. App. Sept. 1, 2015), reh'g denied (Mar. 1, 2016). On November 17, 2008, the plaintiffs

were attempting to pour an elevated concrete slab for the second floor. As the concrete was

being poured, the wooden scaffolding collapsed and caused injury to the plaintiffs. It is

undisputed that the scaffolding caused the collapse and not the formwork.

¶4.    The plaintiffs filed suit against Yates Construction on September 1, 2010, claiming



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that Yates Construction negligently failed to construct the scaffolding and related structures

in accordance with plans and specifications. In February 2011, the plaintiffs amended their

complaint to add Yates Engineering and Foil Wyatt as defendants. The plaintiffs alleged that

Yates Engineering and Foil Wyatt negligently failed to formulate plans and specifications

for the scaffolding, negligently failed to inspect the scaffolding, and failed to correct known

deficiencies in the scaffolding.

¶5.    American Resources Insurance Company Inc. filed a declaratory-judgment action in

the United States District Court for the Southern District of Mississippi. In March 2012, the

district court held that Yates Construction was Spectrum II’s statutory employer. Because

Yates Construction had secured workers’ compensation insurance coverage for the plaintiffs,

the circuit court dismissed the plaintiffs’ suit against Yates Construction pursuant to the

exclusive remedy provision of the Mississippi Workers’ Compensation Act. In June 2012,

the plaintiffs filed a second amended complaint, adding ARMC as a defendant and claiming

that ARMC negligently failed to require a written contract with Yates Construction,

negligently failed to supervise and inspect Yates Construction’s work, and failed to maintain

the premises in a reasonably safe condition and warn the plaintiffs of dangers.

¶6.    Yates Engineering, joined by ARMC, filed a motion for summary judgment against

plaintiff Medina, claiming that because Medina allegedly was not an American citizen and

was therefore not lawfully employed, his claims should be dismissed due to his activity at the

time of the accident. On February 20, 2013, the trial court dismissed Francesco Medina’s

claims. The circuit court then granted summary judgment in favor of Foil Wyatt, finding that



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Foil Wyatt had no duty to inspect the scaffolding. The Court of Appeals stated:

       In August 2013, the circuit court granted summary judgment in favor of Yates
       Engineering. The circuit court's decision was based on its conclusion that “[a]t
       no point in time did Yates Engineering assume the duty [to] inspect or
       supervise the construction and implementation of its design drawings either by
       contract or conduct.” The circuit court later granted ARMC's motion for
       summary judgment. According to the circuit court, “no genuine issue of
       material fact remains with respect to Plaintiffs' claims against [ARMC], and
       therefore, [ARMC] is entitled to summary judgment on Plaintiffs' claims
       against it.” The circuit court also entered a final judgment on that date.

McKean, No. 2013-CA-01807-COA, 2015 WL 5118062, at *3.

¶7.    The plaintiffs appealed and argued that the trial court erred in granting summary

judgment to Foil Wyatt, Yates Engineering, and ARMC. In its September 1, 2015, opinion,

the Court of Appeals affirmed the trial court on all issues.

                                       DISCUSSION

I.     Supervisory Duty

¶8.    It is undisputed in this case that defects in the scaffolding, not the formwork, caused

the collapse that injured the plaintiffs and that part of the scaffolding had been buit by Yates

Construction before Pope turned in his design drawings. The plaintiffs argued that a genuine

issue of material fact existed as to whether Pope breached his duty to design a sufficient

scaffolding system and as to whether Pope breached his duty to inspect the scaffolding that

Yates Construction built. The plaintiffs also argued that Foil Wyatt had a duty through

contract and conduct to inspect the scaffolding before the concrete was poured. In its analysis

to determine whether an engineer had a supervisory duty outside the provisions of the

contract, the Court of Appeals quoted a seven-factor test used in Hanna v. Huer, Johns



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Neel, Rivers, & Webb, 662 P.2d 243 (Kan. 1983):

       There are “seven factors to determine whether supervisory powers go beyond
       the provisions of [a] contract.” Hobson, 878 So.2d at 72 (¶ 15) (citations
       omitted). Those factors are:(1) actual supervision and control of the work; (2)
       retention of the right to supervise and control; (3) constant participation in
       ongoing activities at the construction site; (4) supervision and coordination of
       subcontractors; (5) assumption of responsibilities for safety practices; (6)
       authority to issue change orders; and (7) the right to stop the work. Id.

McKean, No. 2013-CA-01807-COA, 2015 WL 5118062, at *5 (quoting Hobson v.

Waggoner Eng’g Inc., 878 So. 2d 68, 77 (Miss. Ct. App. 2003)).

¶9.    This Court first cited the seven-factor Hanna test in Jones v. James Reeves

Contractors, Inc., 701 So. 2d 774 (Miss. 1997). There, the Court was tasked with

determining, inter alia, whether a project’s architects had a duty to warn workers of

dangerous soil conditions based upon their prior knowledge. Id. at 784. Because it was an

issue of first impression, the Court looked to other jurisdictions for guidance and quoted in

a string cite the Hanna factors. Id. at 784. The Jones Court later rejected the Hanna court’s

holding that an architect’s contractual duty to maintain actual supervision over the details of

the construction project did not entail the duty to supervise safety, and stated that “[i]t is the

opinion of this Court that the holding of [Young v. Eastern Engineering & Elevator Co.,

Inc., 554 A.2d 77 (1989)] provides the clearest pronouncement on the issue before the Court

and makes the most common sense under the circumstances.” The Young opinion stated:

       We therefore hold that absent an undertaking by an architect, by contract or
       conduct, of the responsibilities of the supervision of construction and the
       maintenance of safe conditions of a construction project, an architect is not
       under a duty to notify workers or employees of the contractor or subcontractors
       of hazardous conditions on the construction site.



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Jones, 701 So. 2d at 785-86 (quoting Young, 554 A.2d at 80).

¶10.      In a later case, Hobson v. Waggoner Engineering, Inc., 878 So. 2d 68 (Miss. Ct.

App. 2003), the Court of Appeals cited Jones in its analysis of whether engineers or

architects had a duty to protect construction workers from harm while on the job site, and

stated:

          As in James Reeves Contractors, Inc., we review the seven factors in Hanna
          to determine whether the engineer's supervisory powers extended beyond the
          contract provisions. Based on the undisputed facts before the trial court, we
          agree with the trial court that Waggoner Engineering's duties and
          responsibilities did not.

Hobson v. Waggoner Engr., Inc., 878 So. 2d 68, 76 (Miss. Ct. App. 2003).

¶11.      We now clarify our position on the supervisory duty of architects and adopt the seven-

factor test used in Hanna, to determine whether an architect’s supervisory powers go beyond

the specific provisions of the contract. These Hanna factors are to be used as guidance and

are not exhaustive. We also reaffirm our previous holding that for an architect to have an

affirmative duty to warn of dangerous conditions, the architect must “by contract or conduct”

take on the responsibility to maintain the safety of the construction project. Jones v. James

Reeves Contractors, Inc., 701 So. 2d 774, 785 (Miss. 1997). If the architect does take on a

duty to supervise, “the supervision of safety is encompassed in the duty to supervise, and no

separate agreement to supervise safety is necessary where the architect is supervising the

details of every other aspect of the project.” Id.

¶12.      We affirm the holding of the circuit court and Court of Appeals that summary

judgment in favor of Foil Wyatt was appropriate and that Pope had no duty based on contract



                                                7
or conduct to inspect the scaffolding or warn of defects.

II.    Undocumented Immigrant

¶13.   Before granting summary judgment to all defendants the trial court dismissed

Francesco Medina’s claims, holding that, based on this Court’s decision in Price v. Purdue

Pharma Co., 920 So. 2d 479, 484 (Miss. 2006), even if Yates Engineering and ARMC were

found to have been negligent, Medina’s alleged undocumented immigrant status barred him

from recovery. The Court of Appeals affirmed the trial court’s summary judgments in favor

of Yates Engineering, Foil Wyatt, and ARMC and held that “[b]ecause these conclusions are

dispositive, Medina’s claim that the circuit court erred in dismissing his claim due to his

immigration status is moot; this opinion should not be construed as implicit agreement with

the circuit court’s ruling in this regard.” McKean, No. 2013-CA-01807-COA, 2015 WL

5118062, at *9.

¶14.   In Price, this Court held “[i]If a plaintiff cannot open his case without showing that

he has broken the law, a court will not aid him.” Price v. Purdue Pharma Co., 920 So. 2d

479, 484 (Miss. 2006). There, the plaintiff sued multiple defendants, claiming that he

sustained injuries, including addiction, from ingesting OxyContin. Id. at 482. Because the

plaintiff had been simultaneously seeing multiple doctors and using different pharmacies to

acquire OxyContin, a controlled substance, this Court found that summary judgment was

appropriate and held that “[h]is violation of the law is not merely a condition, but instead an

integral and essential part of his case and the contributing cause of his alleged injury.” Id. at

485.



                                               8
¶15.   However, unlike in Price, Medina’s conduct here was not the contributing cause of

his alleged injury, nor would the same public policy be advanced here as in that case. The

Mississippi Constitution states, “All court shall be open; and every person for an injury done

him in his lands, goods, person, or reputation, shall have remedy by due course of law, and

right and justice shall be administered without sale, denial, or delay.” Miss. Const. Art. 3, §

24 (emphasis added). Section 25 states, “No person shall be debarred from prosecuting or

defending any civil cause for or against him or herself, before any tribunal in the state, by

him or herself, or counsel, or both.” Miss. Const. Art. 3, § 25 (emphasis added). Thus, the

Mississippi Constitution does not limit access to our courts and leaves open for every person

a remedy for injury done to his person.

¶16.   Other jurisdictions also have found that undocumented immigrants have a right of

access to the court system. “[A] well established body of law holds that illegal aliens have

rights of access to the courts and are eligible to sue therein to enforce contracts and redress

civil wrongs such as negligently inflicted personal injuries.” Rosa v. Partners in Progress,

Inc., 868 A.2d 994, 997 (N.H. 2005) (quoting Mendoza v. Monmouth Recycling Corp., 672

A.2d 221, 225 (N.J. 1996); see also Mendoza, 672 A.2d at 224 (“Surely, the effect on the

worker of his injury has nothing to do with his citizenship or immigration status. If his

capacity to work has been diminished, that disability will continue whether his future

employment is in this country or elsewhere.”); Arteaga v. Literski, 265 N.W.2d 148, 150

(Wis. 1978) (“It cannot be seriously argued that people enter this country illegally so they can

recover for an injury that will be inflicted upon them later.”). In fact, if an undocumented



                                               9
alien were prevented from bringing an action against his employer for negligence, it would

even encourage employers to hire undocumented aliens. See Montoya v. Gateway Ins. Co.,

401 A.2d 1102, 1104 (N.J. Super. App. Div. 1979) (“Potential employers may well be

encouraged to employ such aliens if they become aware of the alien's inability to lodge

claims against them for wages or on account of injuries sustained.”).

¶17.   Medina could very well have proven his claims against the defendants without

presenting evidence of his status as an immigrant. And if Medina’s claims of negligence

were barred solely because he presumably was an undocumented immigrant, the same logic

could be applied to any tortious or unlawful conduct towards Medina based on the conclusion

that he was not lawfully in the country. Such reasoning would effectively strip Medina of all

rights. See Feldman v. Murray, 12 N.Y.S.2d 533, 534–35 (N.Y. Sup. Ct. 1939) (“[E]ven the

most hopeless outcast is entitled to protection against unlawful injury to his person.”). We

clarify that this Court’s decision in Price does not prevent an undocumented immigrant from

bringing a negligence claim against his employer.

                                      CONCLUSION

¶18.   Although we affirm the decisions of the Court of Appeals and trial court regarding

summary judgments in favor of the defendants, we clarify this Court’s position that an

architect has no affirmative duty to supervise safety absent contract or conduct. Additionally,

because our courts are open to every person, an alleged undocumented immigrant is not

barred from tort recovery solely based on his alleged undocumented status, and we vacate

the decision of the trial court on this issue. Because summary judgment was appropriate as



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to all defendants, this error was harmless.

¶19. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED
IN PART AND VACATED IN PART.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
COLEMAN AND BEAM, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN
RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT
PARTICIPATING.




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