Colyer v. First United Methodist Church of New Albany

214 So.3d 1084

Deliah COLYER, as Natural Mother and Next Friend of Marshuan Braxton, Deceased, and on Behalf of all Wrongful Death Beneficiaries of Marshuan Braxton, Deceased, Appellant

v.FIRST UNITED METHODIST CHURCH OF NEW ALBANY and John Does 1–15, Appellees.

No. 2014–CA–01636–COA.

Court of Appeals of Mississippi.

March 29, 2016.

Rehearing Denied Aug. 23, 2016.

Certiorari Dismissed April 20, 2017.

Joshua A. Turner, Jackson, attorney for appellant.

Wilton V. Byars III, Oxford, Joseph Luke Benedict, attorneys for appellees.

Before IRVING, P.J., CARLTON and JAMES, JJ.

JAMES, J., for the Court:

¶ 1. This case arises out of a wrongful-death action filed by Deliah Colyer on behalf of her deceased son, Marshuan Braxton. The trial court granted summary judgment in favor of First United Methodist Church of New Albany. On appeal, Colyer argues that the trial court erred by granting summary judgment. Finding error, we reverse and remand this case for a trial.

FACTS

¶ 2. On June 20, 2009, Braxton, along with other minors and adult chaperones, flew from Memphis, Tennessee, to Costa Rica on a mission trip. Braxton, a seventeen-year-old, was expecting to begin his senior year at New Albany High School when classes resumed for the 2009–2010 school year. The purpose of the mission trip was to construct a sanctuary in Villa Briceno, Costa Rica, and conduct other mission activities. The trip was led by Amanda Gordon, associate pastor of First United Methodist Church of New Albany, Mississippi (FUNA). Amanda coordinated the trip with missionary Wil Bailey through the regional United Methodist missions group. There were fifteen members on the mission trip from FUNA, with nine adults and six minors. Five other individuals, four adults and one minor, from First United Methodist Church of Brandon, Mississippi, also joined.

¶ 3. Before leaving for the mission trip, Elnora Howell, Braxton's legal guardian and grandmother, signed two documents before a notary public as a condition of Braxton participating. These documents included a New Albany First United Methodist Church Youth Medical / Parent Consent form and a Parental Consent form. Braxton also signed a document entitled "Int. Missionary Profile and Release of Claim" that contained warnings about the dangers associated with participating in the mission trip.

¶ 4. The group arrived in San Isidro, Costa Rica, on June 20. On June 21, 2009, the group left San Isidro to travel to the worksite in Villa Briceno. Since they expected to ride on the bus for several hours, Bailey suggested they stop for lunch at a scenic site on their way to Villa Briceno.

The group stopped and ate at a roadside café. After leaving the café, they stopped at the Dominicalito, a beach, located near the Pacific Ocean. The weather was clear, and there were a few picnic tables in the area. A few locals were also there. The group intended to go on a brief excursion and take photographs. The bus driver suggested two or three areas on the beach for the group to visit.

¶ 5. The group separated into two or three smaller groups and headed to the suggested areas. Braxton, Mattie Carter, and Josh Creekmore, along with adult chaperones, Sam Creekmore and Mike Carter, went to a rock formation and climbed onto it to observe crabs. The adults eventually climbed down and walked behind the rock formation. Braxton, Mattie, and Josh stayed up top and continued to observe the crabs. While Braxton, Mattie, and Josh were still up top, a large wave crashed into the rock formation and knocked them into the ocean.

¶ 6. Mike and Sam immediately climbed back on the rock formation and saw Braxton, Mattie, and Josh swimming with their heads above water. The wave current, however, began to wash the minors away from the rock formation. Sam instructed them to swim around the rocks into an inlet area to reach safety on the beach. Mike climbed down closer to the water level. A second wave rose and knocked Mike into the ocean, and the current took him in the opposite direction of Braxton, Mattie, and Josh. Mike was eventually rescued by a local Costa Rican resident that had a life jacket and rope. Braxton, unfortunately, disappeared into the water before Mike was rescued. Mattie and Josh, however, were able to swim out onto the beach after being in the water for about five minutes.

¶ 7. Adam Gordon and his wife, Amanda, went to a different area of the beach, but because of the distance and obstructions blocking their view they were unable to see the minors. Adam testified that he was knocked down by a wave at the same time that the wave reached the area where Braxton, Josh, and Mattie were located. Amanda was standing nearby and saw the wave approaching Adam. Amanda yelled to her husband and then saw the wave knock him down. According to the Gordons, only one or two minutes passed before they had turned the corner of the taller rock formation and could see the rock where Braxton had been located. And it was at that time that they saw Mattie and Josh getting out of the water and Mike being rescued. However, according to Josh, fifteen to twenty minutes passed between Adam being knocked down by the large wave and the minors being swept into the water by another large wave.

¶ 8. The mission-trip members immediately began to seek help after seeing people on the beach reacting and in the water. The locals contacted emergency services by telephone, and residents in the area helped. The ambulance and local authorities arrived. Thereafter, everyone at the beach began to look for Braxton. The mission-trip group stayed on the beach for over three hours after the incident until darkness ended their search. Regrettably, Braxton's body was found the next day and identified by Amanda, Adam, and Sam.

PROCEDURAL HISTORY

¶ 9. The complaint was filed on November 10, 2011, in the Circuit Court of Union County, Mississippi. FUNA filed its answer and defenses on March 16, 2012, and, after conducting discovery, filed it motion for summary judgment on March 5, 2014.

A hearing was held on April 28, 2014, and resulted in the circuit court granting Colyer's request for additional time to conduct discovery. Colyer conducted additional discovery and depositions followed by the parties providing supplemental briefing. Another hearing was held on September 16, 2014. After considering all of the sworn evidence and the arguments of counsel, the circuit court found that no genuine issue of material fact existed to support Colyer's claims of negligence. The circuit court entered an order granting FUNA's motion for summary judgment on September 23, 2014.

STANDARD OF REVIEW

¶ 10. We review the trial court's grant or denial of summary judgment under a de novo standard. Moss Point Sch. Dist. v. Stennis, 132 So.3d 1047, 1049–50 (¶ 10) (Miss.2014).

Summary judgment is appropriate and shall be rendered 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 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 this rule, 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.

Karpinsky v. Am. Nat'l Ins., 109 So.3d 84, 88 (¶ 10) (Miss.2013) (internal citations and quotation marks omitted). "[T]he evidence must be viewed in the light most favorable to the party against whom the motion has been made." One S., Inc. v. Hollowell, 963 So.2d 1156, 1160 (¶ 6) (Miss.2007).

I. The trial court erred by granting summary judgment, as genuine issues of material fact existed.

¶ 11. Colyer alleges that FUNA was negligent and FUNA owed a duty to supervise Braxton while the group was on the mission trip. FUNA's position is that no negligence existed and that summary judgment was proper. The elements of a prima facie case of negligence are duty, breach, causation, and damages. Grisham v. John Q. Long V.F.W. Post, No. 4057 Inc., 519 So.2d 413, 416 (Miss.1988) ; Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987). Colyer contends that FUNA owed a duty to Braxton to provide ordinary care while supervising him during this trip. Colyer alleges that the duty was breached, and that the negligent acts or omissions of FUNA caused the death of Braxton.

¶ 12. FUNA agrees that a duty was owed to supervise Braxton, but FUNA contends that Braxton's age at the time of his death diminishes that duty. Nevertheless, our supreme court has held that adequacy of supervision is a question for the jury. Summers v. St. Andrew's Episcopal Sch., 759 So.2d 1203, 1215 (¶¶ 48–50) (Miss.2000) ; see also James v. Gloversville Enlarged Sch. Dist., 155 A.D.2d 811, 548 N.Y.S.2d 87, 88–89 (N.Y.App.Div.1989). Therefore, regardless of Braxton's age, a jury must decide what constitutes proper and adequate supervision. See Todd v. First Baptist Church of W. Point, 993 So.2d 827, 829 (¶ 12) (Miss.2008).

¶ 13. There are also disputed facts regarding whether it was reasonable to expect Amanda to give Braxton warning after she witnessed her husband being knocked down by a wave. And we have determined that "[c]ontradictory statements by a witness go to the weight and credibility of that witness['s] testimony, not its sufficiency, and a summary judgment motion does not place the trial court in the role of weighing testimony and determining the credibility of witnesses." Jamison v. Barnes, 8 So.3d 238, 245 (¶ 17) (Miss.Ct.App.2008) (citation omitted).

¶ 14. Additionally, Colyer alleges other acts of negligence: (1) failure to research the dangers of the Pacific coast and (2) allowing the children, including Braxton, to go onto a dangerous rock structure on the coast of the Pacific Ocean without any knowledge of oceanic activities in Costa Rica.

¶ 15. W...