        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CA-00215-COA

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

v.

HECK YEA QUARTER HORSES, LLC,                                               APPELLEES
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.
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT,
                                           FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    JOHN HUNTER STEVENS
ATTORNEYS FOR APPELLEES:                   ROBERT P. THOMPSON
                                           PAUL PACIFIC BLAKE
NATURE OF THE CASE:                        CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION:                   GRANTED MOTION FOR SUMMARY
                                           JUDGMENT
DISPOSITION:                               AFFIRMED - 07/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.

       WESTBROOKS, J., FOR THE COURT:

¶1.    Connie Hawkins (“Hawkins”), the widow of George Leith Hawkins III (“George”),

filed a wrongful-death lawsuit in the Hinds County Circuit Court against Heck Yea Quarter

Horses LLC (“Heck Yea”), Wallace Heck, and Bruce Horn individually. Heck Yea moved

for summary judgment on the grounds that Hawkins failed to present a genuine issue of

material fact, since Heck Yea offered first aid to George, and he refused the assistance. The
trial court granted Heck Yea’s motion for summary judgment, finding that the good-

samaritan statute applied to the matter. Hawkins now appeals. On appeal, Hawkins asserts

that she presented a genuine issue of material fact that Heck Yea breached its duty of care

to George and that the general principles of negligence should control because George was

an invitee on Heck Yea’s premises. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On June 19, 2013, sixty-one-year-old George Hawkins was hired as a temporary

employee of Heck Yea to work on a fence-washing project. On his first day of work and,

around lunch time, George began experiencing a heat stroke. According to Horn, George

stated that he did not feel well. Horn asked George whether he wanted an ambulance called

and he stated, “No. I’ll be fine.”

¶3.    George was taken to a barn in a tractor bin, where Horn placed him in the shade, and

gave him a cold drink. According to Horn, he asked George a second time if he wanted an

ambulance called and he replied, “No. I’m going to be fine. I’m feeling better.” According

to Horn, he also offered to drive George home, and George declined.

¶4.    It is disputed whether George was offered a ride home or whether he was simply told

to leave the premises and go home. Nevertheless, George left the farm between 1:00 and

3:00 p.m. and was observed driving erratically thereafter. Hawkins arrived home around

4:50 p.m. and found George in distress. Hawkins stated that she attempted to soothe

George’s distress by rubbing his back, but he still remained ill. Hawkins went to retrieve

Tylenol for George, and upon her return she found him unresponsive and trembling.



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Hawkins called an ambulance around 6:50 p.m., and George was taken to the hospital while

unconscious, and subsequently died days later.

¶5.    Hawkins filed a wrongful-death lawsuit against Heck Yea. Horn and Hawkins were

deposed shortly thereafter. During Hawkins’s deposition, she testified that she spoke with

a former employee of Heck Yea, Danny Martin (“Martin”). Martin was bailing hay at the

time George began experiencing a heat stroke. According to Hawkins, Martin told her that

George was incoherent and unsteady when he became ill. As a result, he was placed in the

tractor bucket and hosed down and driven to the barn. Hawkins also submitted affidavits to

support her allegations against Heck Yea. All affidavits, except the medical professional’s,

were inadmissible, because they were deemed hearsay. The medical professional’s affidavit

stated that George would have exhibited signs of a stroke while on Heck Yea’s property, and

if treatment had been administered within four to four and a half hours of the symptoms, he

could have recovered.

¶6.    Heck Yea moved for summary judgment on the ground that Hawkins failed to present

a genuine issue of material fact. It argued that Horn’s recollection of events established that

George was coherent and stable when he was on Heck Yea’s premises. Further, Heck Yea

cited Hawkins’s deposition testimony as the only evidence contradicting Horn’s account.

Heck Yea posited that Hawkins’s deposition testimony was double hearsay and inadmissible,

since her deposition testimony was a recitation of statements from another employee. Heck

Yea argued that the good-samaritan statute immunized it from liability. The trial court found

that the good-samaritan statute was dispositive, and Heck Yea’s motion for summary



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judgment was granted. Finding no error, we affirm.

                                STANDARD OF REVIEW

¶7.    Under Mississippi Rule of Civil Procedure 56(c), the trial court should grant summary

judgment “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). The

moving party bears the burden of persuasion to establish that there is no genuine issue of

material fact. Stuckey v. The Provident Bank, 912 So. 2d 859, 866 (¶11) (Miss. 2005)

(quoting Shaw v. Burchfield, 481 So. 2d 247, 252 (Miss. 1985)). The party with the burden

of proof at trial bears the burden of production.

¶8.    “[S]ummary 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.” Karpinsky v. Am. Nat'l Ins., 109

So. 3d 84, 88-89 (¶11) (Miss. 2013) (quotation marks omitted). This Court applies de novo

review to the circuit court’s grant of summary judgment. Hayne v. The Doctors Co., 145 So.

3d 1175, 1180 (¶10) (Miss. 2014).

                                        DISCUSSION

       I.     Whether the good-samaritan statute is the dispositive law.

              A.      Duty Owed to Invitees Under the Good-Samaritan
                      Statute

¶9.    Hawkins asserts that the trial court erred in finding that the good-samaritan statute was

the only applicable legal theory, because her complaint alleged general principles of

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negligence. Hawkins maintains that Hawkins was owed a duty of care as an invitee on Heck

Yea’s property, because he went on Heck Yea’s property for business purposes. Hawkins

argues that the trial judge erred in granting Heck Yea’s motion for summary judgment

because she illustrated a genuine issue of material fact under the theory of negligence. We

disagree.

¶10.   The “good-samaritan statute,” Mississippi Code Annotated section 73-25-37(1) (Supp.

2016), provides:

       No duly licensed, practicing physician, physician assistant, dentist, registered
       nurse, licensed practical nurse, certified registered emergency medical
       technician, 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 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.

¶11.   Where owners and possessors of land voluntarily render aid to invitees, they have a

duty to exercise reasonable care when doing so. Ladner v. Holleman, 90 So. 3d 655, 658

(¶9) (Miss. Ct. App. 2012). This Court previously held in Ladner that the good-samaritan

statute is not dispositive where the principles of negligence may also apply. “The duty owed

to [the visitor] could have been the applicable standard of care under either [the good-

samaritan statute or premises-liability law],” where the visitor argued that the homeowner

voluntarily rendered aid by applying antibiotic ointment to her abrasions. Id. at (¶10). “An

invitee is defined as a person who goes upon the premises of another in answer to the express

or implied invitation of the owner or occupant for their mutual advantage.” Hudson v.


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Courtesy Motors Inc., 794 So. 2d 999, 1003 (¶9) (Miss. 2001) (citing Lucas v. Buddy Jones

Ford Lincoln Mercury Inc., 518 So. 2d 646, 647 (Miss. 1988)). “A landowner owes a

business invitee a duty of reasonable care for the invitee’s safety.” Id.

              B.     The Present Case

¶12.   While Ladner espoused the theory that the good-samaritan statute can coexist with

general negligence principles, that is not the case here. Hawkins asserts that Heck Yea had

a duty of reasonable care to render aid to George, because George was an employee of Heck

Yea. Hawkins contends that Heck Yea failed to meet that duty when it did not request an

ambulance for George. Hawkins maintains that an ambulance should have been requested

despite George’s refusal of the assistance, since Martin told her that George was incoherent

when he became medically distressed. Hawkins presented affidavits from purported Heck

Yea employees to support her contentions; however, the court determined that Hawkins’s

contradictory evidence was inadmissible hearsay. Hawkins asserts that the statement of

Martin supported a genuine issue of material fact. Nevertheless, his purported statements

were inadmissible double hearsay, since Hawkins merely repeated Martin’s recollection of

Horn’s statements. Martin was never deposed, and no additional evidence was proffered to

support Hawkins’s wrongful-death claim. Moreover, Hawkins never subpoenaed Martin to

substantiate her claims.

¶13.   Heck Yea hired George to perform fence-washing duties on its farm. Therefore, he

was an invitee for the mutual benefit of the parties. The evidence established that after

George became medically distressed, he was taken to a barn and placed in the shade. Horn



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asked George twice if he needed emergency medical assistance, yet George declined. Horn

also asked George if he needed assistance with driving home and George declined. George

was a business invitee and was offered aid when he became medically distressed, but he

refused assistance. The trial court found that the good-samaritan statute was dispositive of

Hawkins’s wrongful-death case. While we do not agree that the statute was dispositive,

Hawkins failed to establish that Heck Yea’s negligence was the proximate cause of George’s

death under either theory of liability. Accordingly, we find no error in the trial court’s

holding.

       II.    Whether the trial court erred in not applying the general principles
              of negligence to Hawkins’s case.

¶14. Hawkins argues that a general theory of negligence was the applicable standard, and

Heck Yea breached its duty of care to George. We find that even under the general

principles of negligence, Heck Yea did not breach its duty to George.

¶15.   “[A]ll negligence claims have four essential elements—(1) duty, (2) breach, (3)

causation, and (4) injury.” O’Gwin v. Isle of Capri Natchez Inc., 139 So. 3d 783, 787 (¶9)

(Miss. Ct. App. 2014) (citing Gulledge v. Shaw, 880 So. 2d 288, 292-93 (¶10) (Miss. 2004)).

“[A] property owner who holds its property open to the public is in a special relationship with

those who accept the invitation to come onto the property. And [the Mississippi Supreme

Court] has found this specific relationship prompts a specific duty.” Id. at (¶13).

¶16.   The Mississippi Supreme Court has previously held that owners of land who hold their

land open to the public have a duty to render reasonable first aid to invitees on their land.

Spotlite Skating Rink Inc. v. Barnes ex rel. Barnes, 988 So. 2d 364, 369 (¶18) (Miss. 2008).


                                              7
However, that duty abates when a competent patron refuses medical aid, and surrenders her

care to her own discretion and to the judgment of her spouse. Estate of White ex rel. White

v. Rainbow Casino-Vicksburg P’Ship, 910 So. 2d 713, 719 (¶18) (Miss. Ct. App. 2005).

Moreover, that duty ends when the care of the patron is assumed by someone else. O’Gwin,

139 So. 3d at 788 (¶14). The only admissible evidence presented to the circuit court

established that George was rendered reasonable first aid when he began experiencing a heat

stroke. He was taken to the barn, placed in the shade, and given a cool drink. He was asked

if he needed emergency medical services twice, and he declined both offers. Hawkins

maintains that since George was incoherent at the time aid was rendered, Heck Yea had a

duty to call an ambulance to its premises. Nevertheless, the admissible evidence presented

does not support her contention that George was incoherent. Moreover, the circuit-court

judge noted that Hawkins’s two-hour delay in calling an ambulance was problematic to her

case. We find that Heck Yea rendered reasonable first aid to George and that its duty ended

after George left its premises and Hawkins assumed his care. Finding no error, we affirm.

¶17.   AFFIRMED.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR AND
GREENLEE, JJ., CONCUR. GRIFFIS, P.J., AND WILSON, J., CONCUR IN
RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.




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