                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2016-CT-00215-SCT

CONNIE HAWKINS, INDIVIDUALLY AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF GEORGE LEITH
HAWKINS, III, DECEASED

v.

HECK YEA QUARTER HORSES, LLC, WALLACE
HECK d/b/a HECK YEA QUARTER HORSES, LLC
AND BRUCE HORN


DATE OF JUDGMENT:                       01/13/2016
TRIAL JUDGE:                            HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS:                  KEITH D. OBERT
                                        JOHN HUNTER STEVENS
                                        ROBERT P. THOMPSON
                                        PAUL PACIFIC BLAKE
COURT FROM WHICH APPEALED:              HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 JOHN HUNTER STEVENS
ATTORNEYS FOR APPELLEES:                PAUL PACIFIC BLAKE
                                        ROBERT P. THOMPSON
NATURE OF THE CASE:                     CIVIL - WRONGFUL DEATH
DISPOSITION:                            AFFIRMED - 08/02/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      BEAM, JUSTICE, FOR THE COURT:

¶1.   On June 19, 2013, George “Leith” Hawkins (Hawkins), suffered a stroke while

working at Heck Yea Quarter Horses, LLC (Heck Yea); he died days later. Connie Hawkins

(Connie), George Hawkins’s widow, sued Heck Yea and other defendants for wrongful

death. The Circuit Court of the First Judicial District of Hinds County granted summary
judgment and the Mississippi Court of Appeals affirmed. Hawkins v. Heck Yea Quarter

Horses, LLC, 2016 WL 9402885 (Miss. Ct. App. Jan. 13, 2016). We granted Connie’s

petition for a writ of certiorari to address whether the trial court and the Mississippi Court

of Appeals erred in failing to take into account affidavits which create genuine issues of

material fact with regard to the care Hawkins received at Heck Yea. Because we find

summary judgment to have been proper, and the Mississippi Court of Appeals’ analysis on

the matter to have been correct, we affirm the judgment of the Circuit Court of the First

Judicial District of Hinds County and the ruling by the Court of the Appeals.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On June 19, 2013, Bruce Horn–the manager of Heck Yea Quarter Horses–hired

Hawkins to wash a wooden fence. After lunch, Hawkins complained of feeling ill. Horn

stated in his deposition that he offered to call an ambulance, but Hawkins declined. Horn said

he then transported Hawkins to a barn on the property in the bucket of a tractor’s front-end

loader and “[s]at him down in the shade in the rocking chair on . . . the porch of the barn, and

got him a cold drink.” Horn stated that he then asked Hawkins a second time whether he

wanted an ambulance, but that Hawkins again refused. According to Horn, Hawkins also

declined his offer to drive him home, recounting that Hawkins said “he was feeling better;

he’d be fine.”

¶3.    Horn testified in his deposition that Hawkins left Heck Yea between 3:00 p.m. and

3:30 p.m. However, in a signed affidavit, William “Kevin” Thompson (a friend of

Hawkins’s) said that “sometime near the end of the lunch hour” on June 19, 2013, he “was



                                               2
traveling north on Interstate 55 near the Hinds/Copiah county line” and recognized Hawkins

and his vehicle proceeding “in the southbound lane at approximately 10 mph.” According

to Thompson, “[t]raffic was backed up all around him and I thought at the time someone was

going to get hurt.” Although he did nothing to notify police or Connie Hawkins, or otherwise

attempt to assist his friend, Thompson’s affidavit expressed that he “knew something was

terribly wrong with [Hawkins].”

¶4.     Connie Hawkins stated in her deposition that she arrived home some time between

4:30 p.m. and 4:50 p.m. and found Hawkins’s soaking-wet clothes on the kitchen floor. She

then found Hawkins in the bed with the covers pulled over his head. Hawkins told his wife

that he had passed out at Heck Yea. Connie stated that she asked why nobody had called her,

but “never got an answer to that.” Hawkins asked his wife to rub the back of his neck, which

she did. Hawkins then requested a Tylenol, for which his wife went to his truck; when she

returned, Hawkins had “gotten to the couch” and was “shaking and trembling and couldn’t

say anything.” According to Connie, Hawkins then “fell off the couch, and from then on he

never said another word and he was just shaking; all over his body was shaking and jerking.”

¶5.     Connie reported her husband’s distress to Emergency Medical Services at 6:44 p.m.

Hawkins died in the hospital on June 28, 2013, from a stroke.

¶6.    Connie sued Heck Yea, Wallace Heck, Bruce Horn (Heck Yea Defendants) and five

John Does for wrongful death. She alleged that Hawkins had been left alone “to tend to the

fence, at which time he, due to the extreme heat, passed out in the field.” She continued that

Hawkins’s coworkers “loaded his body into the front bucket of a tractor and drove him back



                                              3
to the barn, where they attempted to wake him by hosing him down with a garden hose.”

According to the complaint, Hawkins regained consciousness “but was incoherent and

unsteady.” According to the complaint, Heck Yea employees told Hawkins “to get in his

vehicle and drive home,” which he did.

¶7.    In her deposition, Connie admitted to receiving the information about what happened

to her husband at Heck Yea from Danny Martin, who “is a farmer and he cuts and bales hay

for different people.” Martin had not witnessed the events of the June 19, 2013. According

to Connie, “Bruce Horn and his crew” had told Martin about Hawkins’s incident.

¶8.    Heck Yea moved for summary judgment, arguing that Connie’s allegations were

“based entirely on inadmissible hearsay and were unsupported by any admissible evidence.”

Heck Yea argued that Horn’s deposition testimony proved it had not been negligent.

¶9.    Connie Hawkins responded that Horn’s deposition testimony had been refuted by

admissible evidence in the form of an affidavit from Brad Goodman. Goodman stated in the

following in an affidavit:

       I had previously done tree service work for Heck Yea . . . . I was aware that
       George Hawkins was doing some work for Bruce Horn and Heck Yea and
       became aware that George Hawkins had been admitted to the hospital on or
       about June 19, 2013, and was in serious condition.

       Within a day of this occurrence, I called Bruce Horn and told him that George
       Hawkins was in the hospital in bad shape and further asked him what had
       happened. Bruce Horn responded, “initially, I thought he was going to die out
       there.” He further stated, “I guess ‘Leith’ got too hot and passed out. We gave
       him some water and assistance, but I sure thought he was going to leave here
       today.”

       I have personal knowledge of this conversation and know that this was Bruce
       Horn, as he identified himself on the telephone and I have his number in my

                                             4
       telephone and recognized his voice. On at least two occasions, Bruce Horn
       stated that he knew “Leith” was in a serious medical state and he thought he
       was going to die. He never made any mention of contacting or calling for
       medical assistance, 911, or even calling George Hawkins’[s] wife, Connie
       Hawkins, about what had occurred on June 19, 2013, while George Leith
       Hawkins, III, was doing work for Heck Yea and Bruce Horn.

Connie argued that “[t]his admissible evidence, admission against interest, from Mr.

Goodman creates a factual dispute, making summary judgment improper.” See Miss. R. Evid.

801(d)(2). In response, Horn denied ever having spoken to Goodman, saying he had “never

heard of him.”

¶10.   Connie also offered an affidavit from Dr. Tiffany Scarff, a neurologist, in response to

Heck Yea’s motion for summary judgment. In Dr. Scarff’s opinion, Heck Yea had acted

unreasonably by failing to obtain immediate medical care in response to Hawkins’s symptoms.

Dr. Scarff provided that, “had Mr. Hawkins obtained adequate medical treatment within at

least 4.5 hours before he exhibited signs of significant medical distress at Heck Yea Farm, I

believe he would have had a reasonable or much higher chance of survival with less injury

from the stroke.” She concluded that “the failure of Mr. Horn to give appropriate aid was a

contributing and causative factor in the death of George Hawkins.”

¶11.   The Circuit Court of the First Judicial District of Hinds County granted summary

judgment, finding the good-samaritan statute, Mississippi Code Section 73-25-37(1),1 to have

       1
           Mississippi Code Section 73-25-37(1) states:

       No duly licensed, practicing physician . . . or any other person who, in good
       faith and in the exercise of reasonable care, renders emergency care to any
       injured person at the scene of an emergency, or in transporting the injured
       person to a point where medical assistance can be reasonably expected, shall
       be liable for any civil damages to the injured person as a result of any acts

                                              5
been dispositive. The court held that “no admissible evidence has been presented to create

a genuine issue of material fact concerning the exercise of reasonable care (or alleged lack

thereof) offered by Defendants to the decedent when he fell ill” and that the only “admissible

evidence consistently provides that the decedent refused” the offer of an ambulance.

¶12.   The Mississippi Court of Appeals affirmed. Hawkins, 2016 WL 9402885, at *2. It

agreed with the circuit court that Martin’s statements, to which Connie referred in her

deposition, “constituted inadmissible double hearsay, since Hawkins merely repeated Martin’s

recollection of Horn’s statements.” Id. at *3. Connie did not depose or subpoena Martin to

substantiate her claims. Id. The appeals court held that the “good-samaritan statute is not

dispositive where the principles of negligence may also apply.” Id. at *2 (citing Ladner v.

Holleman, 90 So. 3d 655, 658 (Miss. Ct. App. 2012)). However, it held that Connie did not

support her claim because she “failed to establish that Heck Yea’s negligence was the

proximate cause of George’s death . . . .” Hawkins, 2016 WL 9402885, at *3. “[E]ven under

the general principles of negligence,” according to the Court of Appeals, “Heck Yea did not

breach its duty to George [Hawkins].” Id.

¶13.   Connie petitioned this Court for a writ of certioriari, arguing that the trial court and

the Court of Appeals overlooked Goodman’s affidavit. She claims that Goodman’s affidavit,

along with Dr. Scarff’s affidavit, created a genuine issue of material fact with regard to Heck



        committed in good faith and in the exercise of reasonable care or omissions
        in good faith and in the exercise of reasonable care by such persons in
        rendering the emergency care to the injured person.

Miss. Code Ann. § 73-25-37(1) (Rev. 2017).

                                              6
Yea’s care of Hawkins following his stroke. With this evidence, Connie asserts that a jury

question exists as to the standard of care the defendants provided. After due consideration,

we granted her petition to address this sole issue.

                                STANDARD OF REVIEW

¶14.   “When reviewing a trial court’s grant or denial of motion for summary judgment, this

court applies a de novo standard of review.” Whitaker v. Limeco Corp., 32 So. 3d 429, 433-

34 (Miss. 2010).

¶15.   “The evidence must be viewed in the light most favorable to the party against whom

the motion has been made. If, in this view, there is no genuine issue of material fact and, the

moving party is entitled to judgment as a matter of law, summary judgment should forthwith

be entered in his favor. Otherwise, the motion should be denied.” Leslie v. City of Biloxi, 758

So. 2d 430, 431-32 (Miss. 2000) (quotations omitted).

                                        ANALYSIS

¶16.   Connie requested this Court grant certiorari to reverse the Court of Appeals’ decision,

which she claims is in direct conflict with Mississippi law and the overwhelming weight of

the evidence. We granted her petition and agreed to examine whether the trial court failed to

consider the Goodman affidavit, and whether the affidavit revealed issues of material fact

which should have prevented the trial court from granting summary judgment. After a

thorough review, we find that the Court of Appeals and the trial court properly concluded that

the affidavit does nothing to support an inference of negligence, making summary judgment

on the matter appropriate. Therefore, we affirm the decisions of both courts.



                                              7
       Whether the trial court erred in its failure to consider issues of fact
       presented by the plaintiff’s affidavits, making summary judgment
       improper.

¶17.   Connie focuses her petition on the trial court’s and the Court of Appeals’ failure to rely

upon the sworn affidavit of Brad Goodman in their rulings. She claims that Goodman’s

testimony includes statements admissible at trial that create a factual dispute as to whether

Bruce Horn provided Hawkins reasonable care at the Heck Yea ranch. Noting that Horn’s

deposition supported the argument that the defendants did not breach a duty on general

negligence principles, Connie claims that the Goodman affidavit indicates that Horn was

aware of the severity of Hawkins’s injuries and the likelihood that he was not capable of

refusing treatment. As a result, the affidavit serves to contradict Horn’s testimony, creating

a genuine dispute to be evaluated by the factfinder.

¶18.   The defendants disagree. Without addressing the applicability of the Goodman

affidavit, the defendants argue that the Court of Appeals correctly found that Connie failed

to establish the two essential elements of her negligence claim: breach of a duty owed and

proximate cause of the injury endured. Without these elements, Connie’s claim could not

survive summary judgment.

¶19.   The trial court and the Court of Appeals reviewed this issue in their respective rulings,

finding that Connie failed to carry her burden to prove that the defendants were negligent.

The trial court explained that, through Mississippi Code Section 73-25-37, the defendants

acted reasonably in rendering emergency care to Hawkins and could not be held liable for the

fatal result of his injuries. Noting that Connie waited to request medical support until two



                                               8
hours after she arrived home, the trial court determined that Horn’s decision to accept

Hawkins’s refusal of an ambulance or medical assistance was not unreasonable and did not

create an issue of fact sufficient to survive summary judgment.

¶20.   On appeal, the Court of Appeals agreed, holding that the defendants fulfilled their duty

by rendering first aid to Hawkins, and that such a duty ended when Hawkins left the ranch and

Connie assumed care for her husband. Hawkins, 2016 WL 9402885, at *3 (Miss. Jan. 13,

2016). Citing Estate of White ex rel. White v. Rainbow Casino-Vicksburg Partnership, the

court recognized that the defendants had a duty to render reasonable care, though “that duty

abates when a competent patron refuses medical aid, and surrenders [his] care to [his] own

discretion and to the judgment of [his] spouse.” Id. (citing Estate of White ex rel. White v.

Rainbow Casino-Vicksburg P’ship, 910 So. 2d 713, 719 (Miss. Ct. App. 2005)). With no

admissible evidence indicating that Hawkins was incompetent or incoherent, the Court of

Appeals determined that the defendants acted reasonably in providing Hawkins aid and then

allowing him to drive home. Applying the general principles of negligence, the court held that

“Heck Yea did not breach its duty to George.” Id.

¶21.   On certiorari, Connie seeks to establish that the defendant’s negligence–through a

breach of the defendant’s duty of care–was the proximate cause of Hawkins’s death.

Applied to the facts at issue, Connie must show that the defendant’s choice to accept

Hawkins’s refusals of an ambulance were both unreasonable and resulted in Hawkins’s fatal

injuries. See Ladner v. Holleman, 90 So. 3d 655 (Miss. Ct. App. 2012) (holding that when




                                              9
a layman renders aid to an injured person, that layman has a duty to render the aid by using

reasonable care.)

¶22.   To carry this burden at the trial court and at the Court of Appeals, Connie used the

testimony of several witnesses who were not at the scene of Hawkins’s injury and were not

present to observe the care rendered by Horn. Here, Connie again presents the affidavits of

Brad Goodman and Dr. Tiffany Scarff as impeachment testimony and expert testimony,

respectively. Connie claims that, when read together in light of Horn’s deposition, the

affidavits show that there is a genuine issue of material fact as to the degree of distress

Hawkins was in when the defendants rendered care. While Horn described Hawkins as “fine

. . . feeling better,” Connie claims his deposition testimony is contradicted by Goodman’s

account of a conversation in which Horn later admitted Hawkins “was in a serious medical

state and he thought he was going to die.” Further, Connie presents Dr. Scarff’s affidavit to

prove that such an admission against interest raises questions about the adequacy of the care

rendered and Hawkins’s competence to refuse such care.

¶23.   We disagree. When a property owner voluntarily renders care to an injured party on

his premises, he owes her a duty of reasonable care in that treatment. Ladner, 90 So. 3d at

660. Reasonableness is a question of fact, and although the reasonableness of the aid

rendered generally is a question for the jury, the trial court properly granted summary

judgment. Applying the good samaritan statute, the trial court found that Horn’s offers of

medical assistance and his acceptance of Hawkins’s refusal of those offers fulfilled any duties

owed to the decedent. Likewise, the Court of Appeals properly determined that the



                                              10
defendants’ duty to render care abated when Hawkins coherently refused the medical aid

offered and surrendered his care to his spouse and himself. Hawkins, 2016 WL 9402885, at

*3 (Miss. Jan. 13, 2016) (citing Estate of White ex rel. White, 910 So. 2d 713, 719 (Miss. Ct.

App. 2005)).

¶24.   Using the affidavits for support, Connie argues that Horn was aware that Hawkins was

not capable of refusing treatment, and therefore it was unreasonable for him to send Hawkins

home without medical assistance. Citing Dr. Scarff’s affidavit, Connie claims that had Horn

instead called an ambulance, Hawkins’s injuries would have been reduced, and he likely

would have survived. But any uncertainty regarding Hawkins’s capacity to refuse offers of

reasonable care does not render summary judgment inappropriate; this is not evidence that

Horn failed to exercise reasonable care in rendering aid. Horn treated Hawkins by ushering

him into the shade, providing him a seat, water, and an opportunity to rest. He twice offered

him medical transport, and a third time offered him an alternative means to get home.

Hawkins refused, said he was fine, and opted to drive himself home. Notably, Connie waited

two hours after arriving home and tending Hawkins before she determined an ambulance was

necessary. Both the Court of Appeals and the trial court found this problematic. We find that,

considering the totality of the circumstances, including Connie’s lack of urgency as it related

to Hawkins’s condition, the defendants did not unreasonably provide treatment and did not

breach any duty owed to Hawkins. As a result, Connie failed to provide this crucial element

of negligence, and therefore, we need not discuss causation.

                                      CONCLUSION



                                              11
¶25.   Connie Hawkins has failed to establish that the defendants’ actions in rendering aid to

her husband were both negligent and unreasonable, and that such negligence was the

proximate cause of his fatal injuries. As a result, we affirm the decision of the Mississippi

Court of Appeals as well as the judgment of the Circuit Court of the First Judicial District of

Hinds County.

¶26.   AFFIRMED.

     RANDOLPH, P.J., COLEMAN, MAXWELL AND CHAMBERLIN, JJ.,
CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY WALLER, C.J., AND KING, J. ISHEE, J., NOT PARTICIPATING.

       KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶27.   The Circuit Court of the First Judicial District of Hinds County and the Mississippi

Court of Appeals erred in failing to take into account affidavits which create genuine issues

of material fact with regard to the care George “Leith” Hawkins received at Heck Yea Quarter

Horses, LLC, in the aftermath of his stroke. Accordingly, summary judgment was improper.

Because I would reverse the judgment of the circuit court as well as the judgment of the

appeals court and remand the case to the circuit court for further proceedings, I respectfully

dissent.

¶28.   As the majority recognizes, “[t]he evidence must be viewed in the light most favorable

to the party against whom the motion has been made.” Leslie v. City of Biloxi, 758 So. 2d

430, 431-32 (Miss. 2000) (quoting Miss. Dep’t of Wildlife, Fisheries, & Parks v. Miss.

Wildlife Enf’t Officers’ Ass’n, Inc., 740 So. 2d 925, 930 (Miss. 1999)).

¶29.   Rule 56 of the Mississippi Rules of Civil Procedure, in relevant part, provides:



                                              12
       The judgment sought shall be rendered forthwith 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). Rule 801(d)(2)(A) of the Mississippi Rules of Evidence states, in relevant

part: “ [a] statement . . . is not hearsay . . .” if “[t]he statement is offered against an opposing

party and . . . was made by the party in an individual or representative capacity . . . .” Miss.

R. Evid. 801(d)(2)(A).2

¶30.   Both the circuit court and the Court of Appeals found that no admissible evidence

created a genuine issue of material fact concerning the care given Hawkins at Heck Yea. But

Goodman’s affidavit contains statements allegedly made by Horn to Goodman, which were

offered by Connie Hawkins in response to the opposing party’s motion for summary

judgment. Horn’s statement is not hearsay under Mississippi Rule of Evidence 801(d)(2)(A).

¶31.   Horn claimed in his own deposition to have sat Hawkins down in the shade, brought

him a cold drink, and offered to call an ambulance. According to Horn, Hawkins refused the



        2
         The Advisory Committee Notes to Mississippi Rule of Evidence 801(d)(2) explain
that the term “admissions against interest,” as referenced in Connie Hawkins’s papers, has
been removed from the current version of the rule:

        Statements falling under the hearsay exclusion provided by Rule 801(d)(2) are
        no longer referred to as “admissions” in the title to the subdivision. The term
        “admissions” is confusing because not all statements covered by the exclusion
        are admissions in the colloquial sense—a statement can be within the
        exclusion even if it “admitted” nothing and was not against the party’s interest
        when made. The term “admissions” also raises confusion in comparison with
        the Rule 804(b)(3) exception for declarations against interest. No change in
        application of the exclusion is intended.

Miss. R. Evid. 801(d)(2) cmt.

                                                13
latter. Goodman’s account is consistent in that Horn told him that he had given Hawkins

“water and assistance.” But Goodman, whom Horn claimed not to know, also related in his

affidavit that Horn had told him that Hawkins “was in a serious medical state,” that Hawkins

had “passed out” and that he “‘thought he was going to die out there.’” According to

Goodman, Horn continued that he “‘sure thought [Hawkins] was going to leave here today.’

. . . On at least two occasions, Bruce Horn stated that he knew ‘Leith’ was in a serious medical

state and he thought he was going to die.”

¶32.   In addition to Horn’s statements to Goodman, Connie Hawkins responded to Heck

Yea’s motion for summary judgment with an affidavit from Dr. Tiffany Scarff, in which she

opined that, “had Mr. Hawkins obtained adequate medical treatment within at least 4.5 hours

before he exhibited signs of significant medical distress at Heck Yea Farm, I believe he would

have had a reasonable or much higher chance of survival with less injury from the stroke.”

Connie Hawkins also presented the affidavit from her deceased husband’s friend, William

“Kevin” Thompson, who stated that, “sometime near the end of the lunch hour” on June 19,

2013, he (Thompson) had been “traveling north on Interstate 55 near the Hinds/Copiah

[C]ounty line.” Thompson recognized Hawkins and his vehicle proceeding “in the southbound

lane at approximately 10 mph.” According to Thompson, “[t]raffic was backed up all around

[Hawkins] and I thought at the time someone was going to get hurt.” Thompson “knew

something was terribly wrong with [Hawkins].”

¶33.   Horn’s statements to Goodman, Dr. Scarff’s affidavit, and Thompson’s affidavit create

genuine issues of material fact, specifically with regard to Hawkins’s ability to refuse medical



                                              14
care on June 19, 2013. The Mississippi Court of Appeals has held that a casino was not liable

to the estate of a patron who, after having fainted and struck her head at the casino, died at

home later that evening “as a result of aspirating on her own vomit.” Estate of White ex rel.

White v Rainbow Casino-Vicksburg P’ship, L.P., 910 So. 2d 713, 719, 714 (Miss Ct. App.

2005). The court observed that casino staff had provided first aid services and that the patron

had refused their offer to summon an ambulance. Id. at 719.

¶34.   In a case in which a patron of a V.F.W. post was assaulted and injured on the premises

and V.F.W. officials refused to help because they claimed to have been “‘too tied up’” at the

time, this Court observed that premises owners have an affirmative duty to aid an injured

patron once the premises owners learn that the patron was injured on the premises. Grisham

v. John Q. Long VFW Post, No. 4057, Inc., 519 So. 2d 413, 417 (Miss. 1988) (“We are of

the opinion that the V.F.W. officials had an affirmative duty to aid Mabeline once they

learned she had been injured on V.F.W. premises.”). Ultimately, the Court affirmed the grant

of summary judgment in favor of the V.F.W. because, while the patron claimed “that the

V.F.W. should have provided better lighting, hired security guards, and maintained a less

violent atmosphere, [the patron] ha[d] made absolutely no showing that any of these

omissions was the proximate cause of the attack.” Id.

¶35.   In White, a competent patron refused medical care. White, 910 So. 2d at 715. And in

Grisham, this Court observed that the V.F.W. officials had an affirmative duty to provide

assistance to the patron assaulted and injured on their premises. Grisham, 519 So. 2d at 417.

Here, affidavits from Goodman and Dr. Scarff present genuine issues of material fact with



                                              15
regard to the adequacy of the care Horn purportedly provided Hawkins and whether, if

Hawkins did refuse medical care, he was capable of doing so.

¶36.   The majority finds nothing in the record to a create a genuine issue of material fact

with regard to Hawkins’s ability to refuse medical care. Yet Dr. Scarff said in her affidavit

that Hawkins would have had a significantly higher chance of surviving had he received

medical care within 4.5 hours of suffering the heat stroke. And Goodman stated that Horn had

told him that he (Horn) knew that Hawkins was in a serious medical state:

       I called Bruce Horn and told him that George Hawkins was in the hospital in
       bad shape and further asked him what had happened. Bruce Horn responded,
       “initially, I thought he was going to die out there.” He further stated, “I guess
       ‘Leith’ got too hot and passed out. We gave him some water and assistance, but
       I sure thought he was going to leave here today.”

Goodman’s statement about what Horn had told him conflicted with Horn’s deposition

testimony that Hawkins had not passed out. Horn had provided deposition testimony that, had

Hawkins passed out, he would have called an ambulance.

¶37.   Moreover, the existence of genuine issues of material fact is even more apparent in

light of Thompson’s affidavit. Thompson, a friend of Hawkins’s, said that he observed

Hawkins driving in an apparent state of distress at ten miles-per-hour on Interstate 55 on June

19, 2013, the day of Hawkins’s heat stroke. Thompson said also that “[t]raffic was backed up

all around [Hawkins’s vehicle] and I thought at the time someone was going to get hurt.”

Thompson “knew something was terribly wrong with [Hawkins].” Thompson’s observations

differed from Horn’s deposition testimony, which emphasized Hawkins’s purported lucidity.

Furthermore, Thompson said that he had observed Hawkins on Interstate 55 “sometime near



                                              16
the end of the lunch hour,” a significant departure from Horn’s deposition testimony that

Hawkins had left Heck Yea between 3:00 p.m. and 3:30 p.m. on June 19, 2013.

¶38.   The majority, as did the circuit court and the appeals court, ignores the contrary

testimony and, instead, accepts Horn’s statements as true and lauds the treatment Horn claims

to have provided Hawkins: “Horn treated Hawkins by ushering him into shade, providing him

a seat, water, and an opportunity to rest. He twice offered him medical transport, and a third

time offered him an alternative means to get home. Hawkins refused, said he was fine, and

opted to drive himself home.” Maj. Op. ¶ 24. I do not fault Horn for having provided “water

and assistance” to Hawkins, and, if his version of events is worthy of belief, for offering

Hawkins an ambulance or a means of transportation home. But the veracity of Horn’s

statement is lessened significantly by Horn’s own deposition testimony that, had Hawkins

passed out, he would have called an ambulance. Accordingly to Goodman, Horn told him,

contrary to his (Horn’s) deposition testimony, that Hawkins had passed out, that he had

“thought [Hawkins] was going to die out there,” and that he had thought Hawkins was “going

to leave here today.” The disparity in Horn’s deposition testimony and in Goodman’s account

of what Horn told him altogether calls into question Horn’s account, as does Thompson’s

observation of Hawkins’s hazardous driving on Interstate 55 on June 19, 2013. Had the

necessary medical attention been provided in a timely manner, according to Dr. Scarff’s

affidavit, Hawkins would have had a significantly higher chance of survival.

¶39.   Horn’s deposition testimony and what Goodman said Horn told him—and, indeed,

Thompson’s and Dr. Scarff’s affidavits—could not be more indicative of the existence of



                                             17
genuine issues of material fact which should be resolved, not by this Court, but by the

factfinder. I therefore decline to join my learned colleagues in the majority in affirming the

decisions of the Circuit Court of the First Judicial District of Hinds County and the

Mississippi Court of Appeals.

       WALLER, C.J., AND KING, J., JOIN THIS OPINION.




                                             18
