        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-01710-COA

WAYNE COOPER AND EXLENA HORTON,                                          APPELLANTS
INDIVIDUALLY AND AS CO-
ADMINISTRATORS OF THE ESTATE OF
MARY HORTON COOPER, DECEASED, AND
ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF MARY HORTON
COOPER, VICTOR LONGINO, JR., KIZZY
HORTON, LAMAR HORTON, AND ANTHONY
HORTON

v.

SEA WEST MECHANICAL, INC.                                                    APPELLEE

DATE OF JUDGMENT:                         11/09/2015
TRIAL JUDGE:                              HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:                LAWRENCE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                  EDWARD D. MARKLE
ATTORNEYS FOR APPELLEE:                   L. CLARK HICKS JR.
                                          R. LANE DOSSETT
NATURE OF THE CASE:                       CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION:                  GRANTED APPELLEE’S MOTION FOR
                                          SUMMARY JUDGMENT
DISPOSITION:                              AFFIRMED - 05/09/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    In this appeal concerning a wrongful death, we must determine whether the trial court

erred in granting Sea West Mechanical Inc.’s motion for summary judgment. Finding no

error, we affirm.

                              PROCEDURAL HISTORY
¶2.        On August 7, 2014, Mary Horton Cooper stopped her vehicle on Highway 84 in

Lawrence County, Mississippi.1 She was standing at the rear of her vehicle when she was

struck by Zachary Savoie. Cooper died at the scene. Her wrongful-death beneficiaries

(collectively “Cooper”) filed suit in the Lawrence County Circuit Court against Savoie;

Fleisha Sanford, Savoie’s mother; and Sea West, Savoie’s employer.

¶3.        Cooper eventually settled with Savoie, and the suit against him was dismissed. The

trial court granted summary judgment in favor of both Sanford and Sea West. Since Sanford

was dismissed as a party to this appeal, the only issue is whether the trial court erred by

granting summary judgment for Sea West.

                                            FACTS

¶4.        Savoie began working for Sea West in December 2013. One condition of employment

was passing a drug test. Zachary Hughes, Sea West’s safety representative, administered

Savoie’s preemployment drug test. In his deposition, Hughes noted that this particular drug

test screened for six different drugs, including marijuana, and Savoie’s test was negative for

all six.

¶5.        Savoie admitted to drug use, most frequently marijuana and whippets—small canisters

containing pressurized nitrous oxide. On August 6, 2014, the night before the accident,

Savoie smoked marijuana between 9 p.m. and midnight. Savoie also admitted to smoking



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         Cooper contends that Mary’s vehicle was parked on the side of the highway. But
the police report indicates Mary’s car was “in the right lane of U.S. [Highway] 84
Westbound.” The section in the report titled “[c]ontributing circumstances” contains an “x”
in the box “[l]ying and/or illegally in roadway.” Also, “roadway” is marked under the
section in the report titled “[c]rash location.”

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marijuana at 5 a.m. the day of the accident. During his deposition, Savoie stated he could not

remember the accident—only that he was driving on Highway 84 around 11:30 a.m. during

his lunch break. He then woke up, and his truck and Mary’s vehicle were both in a ditch.

Savoie could not say whether Mary’s vehicle was parked in the road or on the side of the

road when he struck it. Testing of Savoie’s blood revealed the presence of marijuana.

¶6.    At the time of the accident, Savoie had been living with his mother, Sanford. Savoie

stated that he did not use drugs in the house or keep drug paraphernalia there. Savoie further

stated that he only smoked marijuana outside the house and only if his mother was absent.

Although Sanford had found marijuana in Savoie’s room in the past, she was not aware of

his current drug use. And she did not see him the night prior to or the morning of the

accident.

¶7.    Chase Westbrooks, the owner of Sea West, stated the company had a safety manual

that included the drug policy. This manual was shown to all new employees, including

Savoie. According to Westbrooks, he had no reason to suspect Savoie of any drug use. He

frequently observed his employees during work and had never seen Savoie act as if he was

under the influence of drugs.

                                STANDARD OF REVIEW

¶8.    The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. Am.

Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013). We view the evidence “in the light most

favorable to the party against whom the motion has been made.” Id.

       Summary judgment is appropriate and shall be rendered if the pleadings,
       depositions, answers to interrogatories and admissions on file, together with


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       the affidavits, if any, 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.
       Importantly, the party opposing summary judgment may not rest upon the mere
       allegations or denials of his pleadings, but his response, by affidavit or as
       otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth
       specific facts showing that there is a genuine issue for trial. If he does not so
       respond, summary judgment, if appropriate, will be entered against him.

       [The Mississippi Supreme] Court has explained that in a summary judgment
       hearing, the burden of producing evidence in support of, or in opposition to,
       the motion is a function of Mississippi rules regarding the burden of proof at
       trial on the issues in question. The movant bears the burden of persuading the
       trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis
       of the facts established, he is entitled to [a] judgment as a matter of law. The
       movant bears the burden of production if, at trial, he would bear the burden of
       proof on the issue raised. In other words, the movant only bears the burden of
       production where [the movant] would bear the burden of proof at trial.
       Furthermore, summary judgment is appropriate when the non-moving party
       has failed to make a showing sufficient to establish the existence of an element
       essential to the party’s case, and on which that party will bear the burden of
       proof at trial.

Id. at 88-89 (¶¶10-11) (internal quotation marks, emphasis, and citations omitted).

                                        DISCUSSION

¶9.    In the only issue on appeal, we must determine whether the trial court properly granted

summary judgment for Sea West.

¶10.   Cooper first contends that the trial court addressed an issue in its order granting

summary judgment that Sea West did not raise in its motion for summary judgment—namely,

that Sea West was not negligent regarding its drug testing and policies. This particular issue

was not raised in Sea West’s motion or amended motion for summary judgment, but both

parties discussed it during the summary-judgment hearing. The trial court did note that “Sea

West satisfied its own policies regarding drug testing, but, even if it had not, there is no



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proximate causal connection between the employer’s actions in drug testing and the accident

in this case.” Regardless, the trial court’s main reason for granting summary judgment for

Sea West was that Sea West was not vicariously liable for Savoie’s actions. The trial court

found the following:

       At the time of the accident, Savoie was off the clock, in his personal vehicle,
       and he was not paid for his lunch break. He was on a personal errand that was
       not in furtherance of his employer’s interest. The undisputed record evidence
       shows that Savoie was not within the course and scope of his employment at
       the time of the accident . . . . Sea West is not vicariously liable for Savoie’s
       actions as a matter of law.

¶11.   “[T]he doctrine of respondeat superior, from which vicarious liability is derived, . .

. specifically applies to an employer-employee relationship and holds employers liable in tort

for the negligent actions of their employees, taken on behalf of the employer while in the

course and scope of their employment.” Thomas v. Cook, 170 So. 3d 1254, 1259 (¶21)

(Miss. Ct. App. 2015). In determining whether an employee is acting within the scope of his

employment, the proper question to ask is “was he at the time doing any act in furtherance

of his master[’s] business?” Holliday v. Pizza Inn Inc., 659 So. 2d 860, 864 (Miss. 1995).

We agree with the trial court that Sea West was not vicariously liable for Savoie’s actions.

At the time of the accident, Savoie was on his unpaid lunch break and driving his personal

vehicle. There is no evidence that Savoie was acting in furtherance of Sea West’s business.

See also Miss. Power & Light Co. v. Laney, 247 Miss. 71, 81-86, 154 So. 2d 128, 132-34

(1963). Savoie did receive a per diem on the days he had to travel for work, but on the day

in question, he was working at Sea West.

¶12.   Cooper also contends that genuine issues of fact exist regarding Sea West’s

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knowledge of Savoie’s drug use and its inadequate drug screening—facts that Cooper

previously argued were improperly raised during the summary-judgment hearing. However,

Westbrooks stated in his deposition that he frequently observed his employees during work

and had never seen Savoie act as if he was under the influence of drugs. Westbrooks stated

that he had suspected two previous employees were using drugs and fired them after they

refused to take a drug test. Although Savoie tested positive for marijuana on the day of the

accident, there was no expert evidence regarding the test results or how the level of

marijuana present might affect someone. There was simply no evidence that Sea West knew

or should have known that Savoie was under the influence of marijuana on the day of the

accident.

¶13. THE JUDGMENT OF THE LAWRENCE COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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