        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2014-CA-01506-COA

BENNIE TANNER AND KIMBERLY TANNER                                    APPELLANTS

v.

ROSEBURG FOREST PRODUCTS SOUTH,                                          APPELLEE
LIMITED PARTNERSHIP

DATE OF JUDGMENT:                       09/23/2014
TRIAL JUDGE:                            HON. ROBERT WILLIAM ELLIOTT
COURT FROM WHICH APPEALED:              LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                YANCY B. BURNS
ATTORNEY FOR APPELLEE:                  KENNETH HAROLD COGHLAN
NATURE OF THE CASE:                     CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                SUMMARY JUDGMENT GRANTED TO
                                        APPELLEE
DISPOSITION:                            AFFIRMED – 01/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      JAMES, J., FOR THE COURT:

                                       FACTS

¶1.   Roseburg Forest Products South, Limited Partnership, is a privately owned wood-

products company. Howard Transportation operates as a common-carrier truck line

transporting commodities and industrial goods. In 2009 Howard and Roseburg entered into

a written agreement where Howard agreed to transport wood product owned by Roseburg

between plants owned by Roseburg. The contract provided that Howard was an independent

contractor of Roseburg and that Howard’s employees were not employees of Roseburg.

¶2.   On January 24, 2011, Bennie Tanner, a Howard employee, arrived at Roseburg’s
Oxford plant and began unloading the wood product from his truck using a Hyster forklift

that was specifically provided by Roseburg for Howard employees. Tanner testified that he

had used this particular forklift numerous times before the accident. He also contended that

this forklift had always had small leaks prior to the accident.

¶3.     At some point that night, Tanner got off the forklift and descended the stairs to the

bay area to go back to his truck. According to Tanner, as he was descending the stairs at the

plant, he hurt himself when he slipped and fell on a stairwell at the Roseburg loading dock.

He testified that the steps that night were wet, dirty, and oily. According to Tanner, the steps

were “always dirty” and always had “something like grime” on them. Tanner alleged that

the steps were wet because rain water had blown into the dock. Tanner alleged that he fell

because of a combination of the water and dirt on the stairwell and the presence of hydraulic

or other fluid that leaked on his shoes from the forklift he used.

¶4.    Roseburg, by contrast, denied that the forklift in question was in a state of disrepair

before the accident. Several Roseburg employees testified that they had not seen any oil on

the floor or steps on the night the incident occurred. Furthermore, they testified that they had

no knowledge that the forklift in question had a hydraulic-fluid leak prior to the accident.

Roseburg’s lead mechanic also testified that he did not find anything during his investigation

that indicated the forklift had leaked on January 24, 2011.

                                PROCEDURAL HISTORY

¶5.    On November 21, 2011, Tanner filed his negligence action against Roseburg.

Tanner’s wife, Kimberly, filed a derivative claim for loss of consortium in the same pleading.



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On April 1, 2014 Roseburg filed its motion for summary judgment. The trial court entered

an order granting Roseburg’s motion for summary judgment on September 24, 2014. The

trial court found that Tanner “was aware prior to the accident of the hazards concerning the

forklift and stairs at issue at the time of the alleged injury.” The trial court as a matter of law

concluded that section 11-1-66 of the Mississippi Code Annotated (Rev. 2014) provides

statutory immunity for the Tanners’ claims of negligence. The trial court entered an order

denying the Tanners’ motion to reconsider on October 14, 2014. The Tanners now appeal.

                                 STANDARD OF REVIEW

¶6.      We review a trial court’s grant or denial of a motion for summary judgment de novo.

Young v. Smith, 67 So. 3d 732, 741 (¶18) (Miss. 2011). This Court “examines all the

evidentiary matters before it – admissions in pleadings, answers to interrogatories,

depositions, affidavits, etc.” Partin v. N. Miss. Med. Ctr. Inc., 929 So. 2d 924, 928 (¶13)

(Miss. Ct. App. 2005). Under Rule 56(c) of the Mississippi Rules of Civil Procedure,

summary judgment should be granted if there is no genuine issue of material fact after

viewing the evidence “in the light most favorable to the party against whom the motion has

been made.” Id. The moving party must demonstrate “that no genuine issue of material fact

exists, and the nonmoving party must be given the benefit of the doubt concerning the

existence of a material fact.” Austin v. State, 52 So. 3d 1257, 1259 (¶2) (Miss. Ct. App.

2011).

                                         DISCUSSION

¶7.      Tanner argues that the trial court’s order should be reversed because there are genuine



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disputed issues of material fact concerning the negligence of Roseburg. Tanner claims that

Roseburg was not entitled to summary judgment because (1) there is no competent evidence

to suggest Tanner knew or reasonably should have known about danger relating to the

forklift; (2) Roseburg’s violation of company policy constitutes negligence that caused or

contributed to the incident; and (3) Roseburg’s active negligence creates a question of

negligence under the Hoffman exception.

       I.     Section 11-1-66

¶8.    The trial court’s basis for granting summary judgment was section 11-1-66, which

states the following:

       No owner, occupant, lessee or managing agent of property shall be liable for
       the death or injury of an independent contractor or the independent
       contractor’s employees resulting from dangers of which the contractor knew
       or reasonably should have known.

Thus, Roseburg had the burden of proving that Tanner worked for an independent contractor

and knew or reasonably should have known of the danger that caused his injury. Tanner does

not dispute Howard’s independent-contractor status. Furthermore, the record before us

shows that Howard was an independent contractor and Tanner was Howard’s employee. The

contract between Roseburg and Howard clearly stated that Howard is an independent

contractor.   Moreover, the contract established that Howard’s employees were not

Roseburg’s employees.

¶9.    Tanner, however, contends that he did not know and should not have reasonably

known of the dangers related to the forklift. To avoid dismissal under the statutory immunity

provided to Roseburg, Tanner must show that he was not aware of the dangerous condition


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of the forklift.

¶10.   Tanner cites two cases in support of his argument: Calonkey v. Amory School District,

163 So. 3d 940 (Miss. Ct. App. 2014), and Montedonico v. Mount Gillian Baptist Church,

64 So. 3d 1012 (Miss. Ct. App. 2011). In Calonkey, 163 So. 3d at 942 (¶6), the plaintiff’s

injury occurred after he fell through a hole in a catwalk above a stage. The plaintiff had

never been on the catwalk before the accident. Id. We found summary judgment improper

because there was an issue of fact as to whether plaintiff knew or should have known of the

hole in the catwalk. Id. at 943 (¶15). In Montedonico, 64 So. 3d at 1014 (¶3), the defendant

provided the plaintiff with a ladder to use for work.1 Unbeknownst to both the plaintiff and

the defendant, the ladder was missing a grip on one of the legs, which led to the ladder

slipping while the plaintiff was on it. Id. at (¶4). The trial court found that the danger of

falling while on a ladder was inherent to the plaintiff’s work. Id. at 1015 (¶8). We found

that summary judgment was improper because the danger of being provided a defective

ladder by the defendant was not inherent to the plaintiff’s work. Id. at (¶13). Moreover, the

record before us indicated that the plaintiff was unaware that the rubber grip was missing

from the ladder before he climbed it. Id. at 1017 (¶18). The plaintiff, accordingly, could not

assume a risk he did not know existed. Id.

¶11.   The difference between Calonkey and Montedonico and the case at hand is that

Tanner had used this particular forklift for more than a year before his fall. Tanner, by his

own testimony, established he was aware that the forklift had leaked several times before the



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           The defendant hired the plaintiff to install a security alarm at the church.

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day of the incident. Tanner also testified that he knew the stairs were wet, grimy, and dirty

before he fell on them. Even if Tanner had no knowledge of the specific leak at issue, as he

claims, that does not outweigh the fact that he had knowledge of an ongoing issue with leaks

on the forklift in question. Tanner, in sum, knew of the allegedly dangerous conditions or

reasonably should have known of them. Consequently, section 11-1-66 is applicable and

does provide immunity. This issue is without merit.

       II.    Roseburg’s Active Negligence

¶12.   Tanner, alternatively, argues that Roseburg is not immune from liability because the

company violated internal company policies concerning maintenance checks of the forklift

in question. Tanner specifically contends that this violation is evidence of active negligence

and renders Roseburg liable. It is true that our courts have found that evidence of company

policy or routine practice is relevant when establishing the standard of care or a basis for

liability. See Crane Co. v. Kitzinger, 860 So. 2d 1196, 1200-01 (¶¶14-19) (Miss. 2003)

(holding that a company’s handbook concerning safety policies was relevant to determine the

reasonableness of the employee’s actions). In this case, however, Roseburg’s company

policy is irrelevant because Tanner was an independent contractor and not a Roseburg

employee. Under section 11-1-66, since Tanner, an independent contractor, knew of the

danger, then Roseburg, the premises owner, was relieved of any duty to Tanner. See

Saranthus v. Health Mgmt. Assocs., 56 So. 3d 1274, 1277 (¶¶12-13) (Miss. Ct. App. 2011).

This issue is without merit.

       III.   Negligence Under the Hoffman Exception



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¶13.   Finally, Tanner argues that Roseburg’s active negligence creates a question of

negligence under the Hoffman exception. Tanner, in essence, urges us to hold that the

Hoffman exception is an exception to the immunity provided by section 11-1-66. In Hoffman

v. Planters Gin Co., 358 So. 2d 1008, 1012 (Miss. 1978), the court concluded that

landowners have an obligation “to exercise reasonable care for the protection of a licensee

‘as to any active operation which the occupier carries on.’” Howze v. Garner, 928 So. 2d

900, 903 (¶11) (Miss. Ct. App. 2005) (quoting Hoffman, 358 So. 2d at 1012).

¶14.   The Mississippi Supreme Court subsequently acknowledged that the Hoffman holding

was a very limited exception. Little v. Bell, 719 So. 2d 757, 761 (¶22) (Miss. 1998).

       In order to fall within the Hoffman exception, the landowner must be aware of
       the licensee's presence upon the premises, the landowner must engage in
       affirmative or active negligence in the operation or control of a business, the
       landowner[’s] conduct in regards thereto must subject the licensee or invitee
       to unusual danger, or increase the hazard to him, and the landowner's active or
       affirmative negligence must have proximately caused the plaintiff's injury.

Id. at 762 (¶22). Tanner offers no caselaw that supports his contention that Hoffman should

be applied in cases involving independent contractors. Also, the testimony and the record

before the Court do not show that Tanner was exposed to unusual dangers or that the active

negligence of Roseburg proximately caused injury to Tanner. Under Mississippi common

law, as well as section 11-1-66, premises owners are relieved of their duty to independent

contractors if the independent contractor is aware of the danger. Saranthus, 56 So. 3d at

1277 (¶13). Based on the record and proof that was provided in this case, Hoffman is not

an exception to the immunity provided by section 11-1-66, and we decline to extend this

limited exception to section 11-1-66.

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                                      CONCLUSION

¶15.   In viewing the evidence most favorably to Tanner, we find that under section 11-1-66,

Roseburg is immune from liability, and there is no genuine issue of material facts.

Therefore, the decision of the trial court is affirmed.

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

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND WILSON, JJ., CONCUR.




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