        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-01300-COA

WILLIAM A. MCDANIEL AND KIM                                             APPELLANTS
MCDANIEL

v.

WAYNE E. FERRELL JR. AND LAW OFFICES                                      APPELLEES
OF WAYNE E. FERRELL JR., PLLC

DATE OF JUDGMENT:                        08/25/2016
TRIAL JUDGE:                             HON. HENRY L. LACKEY
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT,
                                         FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS:                WILLIAM LEE GUICE III
                                         MARIA MARTINEZ
ATTORNEYS FOR APPELLEES:                 JAMES WILLIAM MANUEL
                                         MICHAEL LELAND COWAN
NATURE OF THE CASE:                      CIVIL - LEGAL MALPRACTICE
DISPOSITION:                             AFFIRMED - 11/21/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      LEE, C.J., FOR THE COURT:

¶1.   In this legal-malpractice appeal, William McDaniel retained attorney Wayne Ferrell

Jr. to represent him as a plaintiff in the underlying personal-injury suit after he was

electrocuted during the course of his employment. The Jones County Circuit Court dismissed

the underlying action for failure to prosecute, and as a result, McDaniel brought a legal-

malpractice claim against Ferrell for professional negligence. Ferrell moved for summary

judgment, which the Hinds County Circuit Court granted, finding that McDaniel was the sole

proximate cause of his injury in the underlying action, and thus could not succeed in the
legal-malpractice suit. McDaniel now appeals. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    McDaniel was employed with the Federal Aviation Administration (FAA) as an air-

traffic-system specialist and was assigned to the Jackson International Airport.          On

September 18, 2006, McDaniel was electrocuted while replacing a blown fuse at Runway

16L. As a result, he was permanently injured and disabled so that he could no longer engage

in his employment with the FAA.

¶3.    McDaniel engaged the legal services of Ferrell to represent him in a lawsuit to recover

damages for his injury. On July 9, 2007, McDaniel met with Ferrell and created a memo

detailing the events and circumstances leading up to his electrocution. In this memo,

McDaniel described that for several months leading up to the day of his injury, the airport

lost power to the approach lights on the runway every time it rained. This required

McDaniel, who was often “on call,” to come in and change the blown fuse to restore the

system. McDaniel attributed the blown fuses to the recent, faulty electrical work performed

on the system. McDaniel noted that he usually had help in changing the blown fuse, and that

he and his partner would “double check to make sure all power was off.” However, on the

day of the incident, his partner was on vacation, and McDaniel restored the system alone.

He recounted that he was under great pressure to fix the system, and the high-voltage

transformer was live with electricity and “went unnoticed” so that he did not power it off.

As a result, when McDaniel attempted to change the fuse, he came into contact with a live

wire and was electrocuted.



                                              2
¶4.    According to McDaniel, he met with Ferrell and discussed the strengths and

weaknesses of his case, and Ferrell told him that his case was a comparative-negligence case.

In September 2009, Ferrell filed suit on behalf of McDaniel against Howard Industries Inc.,

Godfrey Systems International Inc., G.S.I. Inc., and The B.F. Goodrich Company (Goodrich).

The complaint asserted that the electrical systems and services provided by the named

defendants were defective and unreasonably dangerous, and were a contributing proximate

cause of the accident and McDaniel’s injuries. An amended complaint was later filed to

include McDaniel’s wife’s complaint for loss of consortium.

¶5.    In February 2010, Goodrich and Howard Industries filed answers, and Goodrich also

served discovery requests. Goodrich obtained the FAA Accident Investigation Report, which

confirmed that the particular fuse at issue had failed twice in the few months prior to the day

of McDaniel’s electrocution. The report also identified an issue with the installation causing

increased voltage and fuse failure during a lightning storm and found that the electrical-

system configuration was in violation of the National Electrical Code. Beyond this, little

discovery or other action took place.

¶6.    In May 2011, the Jones County Circuit Court issued a notice of dismissal, advising

that there had been no action in the case in the preceding twelve months. In response, Ferrell

filed a motion for a trial setting, but the motion was never set for a hearing. In June 2011,

Goodrich moved to dismiss, stating that no action had taken place for thirteen months,

discovery had not been answered, and only two of the four defendants had responded to the

complaint. In May 2013, nearly four years after the complaint was filed, the circuit clerk



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issued a second notice of dismissal. Goodrich then filed a motion to dismiss for failure to

prosecute, which was joined by Howard Industries shortly after. A hearing was held on the

motion to dismiss, at which Ferrell admitted he had not discovered any evidence to support

the allegations in the complaint. Ultimately, the circuit court granted the motion, finding that

Ferrell’s admission, in addition to the pattern of delay and two notices of dismissal,

warranted dismissal with prejudice. Ferrell did not appeal the circuit court’s decision.

¶7.    McDaniel and his son met with Ferrell to discuss the dismissal, and Ferrell explained

that he was unable to identify any defective piece of equipment responsible for McDaniel’s

electrocution and subsequent injuries.

¶8.    In May 2014, McDaniel filed a legal-malpractice suit against Ferrell in the Hinds

County Circuit Court, alleging that Ferrell was negligent by failing to pursue the case and

that he failed to sue the correct parties. Ferrell moved for summary judgment, arguing that

McDaniel’s admission that he failed to de-energize the transformer before attempting to

change the fuse precluded him from succeeding in the underlying litigation. McDaniel

moved for additional time to conduct discovery regarding the issue of causation, which was

granted. After nearly a year of additional discovery, Ferrell filed a second motion for

summary judgment. In its opinion, the circuit court noted that McDaniel must show that but

for Ferrell’s alleged negligent representation, he would have been victorious in the

underlying litigation. The circuit court found, however, that McDaniel could not succeed in

the underlying action because it was undisputed that McDaniel failed to de-energize the

system, and this was the sole and proximate cause of his injuries in the underlying action.



                                               4
The circuit court granted Ferrell’s motion for summary judgment, and McDaniel now

appeals.

                                STANDARD OF REVIEW

¶9.    This Court reviews a trial court’s grant of summary judgment de novo. Donovan v.

Burwell, 199 So. 3d 725, 729 (¶10) (Miss. Ct. App. 2016) (citing Evans v. Howell, 121 So.

3d 919, 922 (¶14) (Miss. Ct. App. 2013)). A summary-judgment motion should be granted

“if the pleadings, depositions, answers to interrogatories and admissions on file, together

with 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.” M.R.C.P. 56(c). We review

the evidence in the light most favorable to the nonmoving party. Donovan, 199 So. 3d at 729

(¶10). However, the party opposing summary judgment “may not rest upon the mere

allegations or denials of his pleadings, but his response, by affidavits or as otherwise

provided in this rule, must set forth specific facts showing that there is a genuine issue for

trial.” M.R.C.P. 56(e). “If he does not so respond, summary judgment, if appropriate, shall

be entered against him.” Id. “A complete failure of proof concerning an essential element

of the non[]moving party’s case necessarily renders all other facts immaterial.” Sanderson

Farms Inc. v. McCullough, 212 So. 3d 69, 74 (¶12) (Miss. 2017) (citation omitted).

                                        DISCUSSION

¶10.   McDaniel argues that the circuit court erred in finding that he was the sole proximate

cause of his injury and that he could not have succeeded in the underlying action, and thus

erred by granting Ferrell’s motion for summary judgment on McDaniel’s legal-malpractice



                                               5
claim.

¶11.     “For legal-malpractice claims predicated on negligence, the plaintiff ‘must prove by

a preponderance of the evidence: (a) the existence of an attorney-client relationship; (2)

negligence on the part of the lawyer in handling the affairs of the client which have been

entrusted to the lawyer; and (3) proximate cause of the injury.’” Gibson v. Williams,

Williams & Montgomery P.A., 186 So. 3d 836, 848 (¶34) (Miss. 2016) (quoting Pierce v.

Cook, 992 So. 2d 612, 617 (¶11) (Miss. 2008)). In this malpractice appeal, the issue centers

on the third element—proximate cause.

¶12.     In a negligence-based malpractice action, as is the case here, the plaintiff “must

establish proximate cause by the so-called ‘trial-within-a-trial’ test,” and “must show that,

but for his attorney’s negligence, he would have been successful in the prosecution or

defense of the underlying action.” Id. at 850 (¶45). “Because attorneys are afforded a degree

of professional autonomy, proof of success in the underlying case is an appropriate test for

proximate cause in a negligence-based action because it ensures that attorneys are only held

professionally liable where their failures to adhere to the standard of care actually impacted

the plaintiff’s interests in the case.” Crist v. Loyacono, 65 So. 3d 837, 843 (¶16) (Miss.

2011). Thus, the test for proximate cause in the legal-malpractice suit is proof of success in

the underlying negligence suit. Id.

¶13.     “The elements of negligence are well-established: duty or standard of care, breach of

that duty or standard, proximate causation, and damages or injury.” Porter v. Grand Casino

of Miss. Inc., 181 So. 3d 980, 985 (¶12) (Miss. 2016). “To succeed in a negligence claim,



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the plaintiff must prove both causation and proximate cause.” Dillon v. Greenbriar Digging

Serv. Ltd., 919 So. 2d 172, 177 (¶12) (Miss. Ct. App. 2005). “Proximate cause requires: (1)

cause in fact; and (2) foreseeability.” Johnson v. Alcorn State Univ., 929 So. 2d 398, 411

(¶48) (Miss. Ct. App. 2006) (quoting Ogburn v. City of Wiggins, 919 So. 2d 85, 91 (¶21)

(Miss. Ct. App. 2005)). “[C]ause in fact means that the act or omission was a substantial

factor in bringing about the injury, and without it the harm would not have occurred.” Davis

v. Christian Bhd. Homes of Jackson, Miss. Inc., 957 So. 2d 390, 406 (¶38) (Miss. Ct. App.

2007) (quoting Johnson, 929 So. 2d at 411 (¶48)). “Stated differently, cause in fact requires

proof that, but for the alleged negligent act or omission, the injury would not have occurred.”

Id. “Foreseeability means that a person of ordinary intelligence should have anticipated the

dangers that his negligent act created for others.” Id. at 404 (¶32). A plaintiff may not

recover damages from a defendant where the plaintiff’s own negligence was the sole

proximate cause of his injuries. Evans v. Journeay, 488 So. 2d 797, 799-800 (Miss. 1986).

¶14.   In the instant case, it is undisputed that McDaniel failed to de-energize the system

before attempting to change the blown fuse. In the memo McDaniel created at his meeting

with Ferrell, he acknowledged that he failed to disconnect the high-voltage transformer. In

his deposition, McDaniel admitted that he did not de-energize the system on the day he was

electrocuted. He acknowledged that he was trained on the system and that he knew the

importance of de-energizing it. He also admitted he had performed the same task on multiple

occasions prior to the day of the incident, and did not suffer any injuries. On those

occasions, he or his partner de-energized the system. It is readily apparent that but for



                                              7
McDaniel’s failure to de-energize the system, he would not have been electrocuted. It is also

foreseeable that such failure to disconnect the transformer and engage the live system would

result in electrocution. Thus, McDaniel’s own negligent act was the proximate cause of his

injury.

¶15.      McDaniel argues that the law and the facts in the underlying suit support a

comparative-negligence analysis and should have been submitted to the jury. He states that

the “negligent design and construction of the runway lighting system was the cause in fact

in bringing about the injury, without which the harm would not have occurred.”

¶16.      “Mississippi is a pure comparative-negligence state.” Meka v. Grant Plumbing & Air

Conditioning Co., 67 So. 3d 18, 23 (¶15) (Miss. Ct. App. 2011) (citing Miss. Code Ann. §

11-7-15 (Rev. 2004)).       “Under the comparative[-]negligence doctrine, negligence is

measured in terms of percentage, and any damages allowed shall be diminished in proportion

to [the] amount of negligence attributable to the person for whose injury, damage[,] or death

recovery is sought.” Id. (quoting Coho Res. Inc. v. Chapman, 913 So. 2d 899, 911 (¶36)

(Miss. 2005)). “Where negligence by both parties is concurrent and contributes to injury,

recovery is not barred under such doctrine, but the plaintiff’s damages are diminished

proportionately.” Id. (quoting Burton ex rel. Bradford v. Barnett, 615 So. 2d 580, 582

(Miss. 1993)). “Thus, even though the plaintiff was negligent, the plaintiff may recover from

a defendant whose negligence contributed to the plaintiff’s injury.”         Id.   However,

comparative negligence only applies where there is more than one proximate cause. Breaux

v. Grand Casinos of Miss. Inc.-Gulfport, 854 So. 2d 1093, 1097 (¶11) (Miss. Ct. App. 2003)



                                              8
(citing King v. Dudley, 286 So. 2d 814, 817 (Miss. 1973)). Comparative negligence “is not

applicable if the negligence of the injured party is the sole cause of the injuries . . . .” Id.

¶17.   In the instant case, a comparative-negligence analysis is improper because McDaniel

was the sole proximate cause of his electrocution. Assuming that a defendant in the

underlying suit was negligent in the design or construction of the runway lighting system,

that alleged negligence was not a cause in fact of McDaniel’s electrocution. Rather, the

alleged negligence caused a blown fuse, merely furnishing the occasion for McDaniel to

restore the system. The Mississippi Supreme Court has held that “negligence which merely

furnished the condition or occasion upon which injuries are received, but does not put in

motion the agency by or through which the injuries are inflicted, is not the proximate cause

thereof.” Causey v. Sanders, 998 So. 2d 393, 405-06 (¶39) (Miss. 2008). Thus, the

defendants’ alleged negligence in the underlying action was not a proximate cause of

McDaniel’s injuries, and a comparative-negligence analysis was not appropriate.

¶18.   It is undisputed that McDaniel failed to de-energize the system before attempting to

change the blown fuse. This was the sole proximate cause of McDaniel’s electrocution.

Thus, McDaniel could not succeed in the underlying litigation and, in turn, could not prevail

against Ferrell in his legal-malpractice suit. We affirm the trial court’s grant of summary

judgment.

¶19.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND
WESTBROOKS, JJ., CONCUR.          WILSON AND TINDELL, JJ., NOT
PARTICIPATING.



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