McGee v. Neel Schaffer Eng'rs & Planners Inc.

350 So.3d 236

Sheila Gayden MCGEE, Individually and on Behalf of the Wrongful Death Beneficiaries of Tony James Jr., Appellant

v.NEEL SCHAFFER ENGINEERS AND PLANNERS INC., Pike County, Mississippi, and Chad Toles, Appellees

NO. 2020-CA-01277-COA

Court of Appeals of Mississippi.

March 29, 2022

Rehearing Denied July 26, 2022

ATTORNEYS FOR APPELLANT: WILBUR O. COLOM, CHARLES TYRONE BRANT

ATTORNEYS FOR APPELLEES: JUDSON ROY JONES, Jackson, WILLIAM ROBERT ALLEN, Brookhaven, MICHAEL T. JAQUES, Ridgeland, DAVID WESLEY MOCKBEE, Jackson, KATELYN ADELE RILEY, Brookhaven

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Sheila Gayden McGee and the other heirs of Tony James Jr. (collectively referred to as "McGee") appeal from the Pike County Circuit Court's orders granting summary judgment and the final judgments as to Neel Schaffer Engineers and Planners Inc. ("Neel Schaffer"), Chad Toles ("Toles"), and Pike County, Mississippi ("Pike County") in McGee's lawsuit for damages from the wrongful death of James. Neel Schaffer and Toles individually filed motions to dismiss the appeal against them as untimely. Finding merit in the motions, we dismiss McGee's appeal from the final judgments in favor of Neel Schaffer and Toles, individually. Concerning McGee's appeal of the grant of summary judgment and final judgment in favor of Pike County and Toles, in his official capacity as county engineer, we affirm the circuit court's ruling that both parties were immune under the "dangerous condition" provision of the Mississippi Tort Claims Act ("MTCA"), Mississippi Code Annotated section 11-46-9(1)(v) (Rev. 2019).

Facts

¶2. To receive State-aid funds for road improvements, a board of supervisors is required under Mississippi Code Annotated section 65-9-13(b) (Rev. 2021) to employ a county engineer. Pike County had previously engaged Neel Schaffer as an engineering consulting firm, and Pike County selected Toles, one of Neel Schaffer's engineers, to serve as its State Aid County Engineer. An order of the board of supervisors approving this appointment was entered on September 28, 2012, and Toles and the board president signed a contract that same day. The State's rules and regulations setting out the requirements for engineering services were attached to the contract.

¶3. In 2016, Pike County identified a proposed State Aid Road Project to reinforce a concrete-box culvert.¹ If the project qualified for funds, Toles, as Pike County's State Aid Engineer, would furnish all construction engineering and inspection services on the project. He would ultimately get paid up to twelve percent of the final construction cost. As the evidence would later show, however, this payment was not made to Toles personally, but to his employer Neel Schaffer, who invoiced Pike County for Toles's work.

¶4. When the project was approved for the State funds, Toles prepared the specifications for bids. At the close of the bidding process, MAGCO Inc. ("MAGCO") was awarded the contract on February 15, 2017. All work on the project needed to be performed in accordance with the Mississippi Standard Specifications for State Aid Road and Bridges Construction, as approved by the Office of State Aid Road Construction of the Mississippi Department of Transportation (known as "the Green Book").

¶5. The Green Book outlined the necessary duties and tasks required for the construction of State-aid projects, including duties of the State Aid County Engineer. Among them was the duty to alert affected utility companies. "MSS-S-105.06 - Cooperation with Utilities" states:

The Engineer will notify all utility companies ... and endeavor to have a plan and agreement for all necessary adjustments of utilities ... which are within or adjacent to the limits of construction before bids are received.

¶6. Prior to receiving any bids, on November 8, 2016, Toles sent an email to Chuck Rushing at Magnolia Electric Power Association ("MEPA") notifying him of the project. Toles attached a copy of the project's drawings. In his email, Toles told Rushing that when the culvert previously had been replaced, there were no problems with the power lines.² Thus, Toles did not anticipate any conflict with the power lines in this project either. Rushing replied that he would look into whether there would be any problem with the power lines, and MEPA later acknowledged that they had received informal notice of the project through this email to Rushing. Rushing died before construction started, and Toles had no further contact with MEPA.

¶7. The Green Book also required that the contractor follow State law concerning anticipated work near a power line and give notice to the power company. MSS-S-105.6.1 required that the contractor perform no activities within ten feet of any high voltage overhead line, stating:

The Contractor shall comply with the State of Mississippi law concerning work within the proximity of overhead powerlines.... If any person desires to carry on any function ... in closer proximity to any high voltage overhead line than permitted by this chapter, the person responsible for performing the work shall promptly notify the electric utility ... in writing, on a form to be provided by such electric utility, and shall not perform the work until mutually satisfactory arrangements have been made between such electric utility and the person or business entity responsible for performing the work.^{[3 ]}

This Green Book section also includes a form notice that the contractor was required to complete, sign, and submit with other contract documents. The form notice includes language that the contractor, in this case MAGCO, intended to bring equipment within ten feet of the high-voltage line and that it wanted to confer with MEPA about possible additional safety measures needed. MSS-S-105.6.1 further required that the County Engineer submit a copy of the signed document to each utility company that may be affected by the project.

¶8. MAGCO signed the form notice on February 13, 2017, when it signed the contract, but it failed to provide any notice directly to MEPA. Toles later admitted that he only sent the notice form to MEPA on April 10, 2017, six days after the incident, after a post-accident meeting with MEPA. Toles felt that he had given MEPA notice of the project through his email to Rushing and that MAGCO had an independent responsibility to contact MEPA, which MEPA acknowledged. MEPA said that normally it receives notice from the company actually performing the contract because that company would know what equipment it would be using. MAGCO said it did not notify MEPA because MAGCO's plan was not to be near the power line at all.

¶9. Toles designated two other employees of Neel Schaffer (James Fenn and Billy Amos) as his authorized representatives to serve as inspectors on the project. Fenn completed daily reports of the work-site conditions and what was accomplished. These two representatives were authorized to interact directly with the contractor if they observed something out of compliance, but they had no authority to stop the work. Fenn had received on-the-job training from a previous engineering firm and had worked in the field for forty years (twenty years as an inspector). Fenn visited the site twice a day, once in the morning and in the afternoon around 3 p.m. He would observe the work and stay about an hour.

¶10. On April 4, 2017, MAGCO workers, including James, used a pump to remove water from the creek bottom. In the morning, they moved the water pump by hand. Later in the day, when the crew was shutting down, the pump needed to be moved to higher ground. Instead of carrying it as before, they decided to use an on-site crane.

¶11. During his morning visit, Fenn saw the crane parked on the paved road with the boom pointed downstream and up in the air over the power line. According to Fenn, the boom was "in some limbs of some trees to get to where they needed to be, which it didn't obstruct anything." Fenn had not seen the crane in this position over the power line before. He mentioned it to Amos and said that although the position was unusual, "there was no eminent danger that I could see." Amos agreed and said, "[I]f that's what they [(MAGCO)] want to do, [let them] do it." Fenn did not report any of this to Toles. When Fenn made his afternoon visit, the crane was in the same position and not in use.

¶12. After Fenn had left the site, when the water pump needed to be moved, the crew unilaterally decided to use the crane. The operator maneuvered the boom so the cables would be over the pump. He then lowered the boom down because the cables were not long enough to reach the pump. When the boom was lowered, it came into contact with the power line, which electrified the boom and the cables. When James grabbed the cable, he was instantly electrocuted.

¶13. The United States Department of Labor, Occupational Safety and Health Administration ("OSHA") inspected the site on the day after the accident. OSHA cited MAGCO for the serious violations of operating the crane within twenty feet of an overhead power line without taking precautions, as well as for failing to train employees about the appropriate safe-work practices applicable.

Procedural History

¶14. On April 20, 2017, Shelia Gayden McGee, James's mother, representing herself and the heirs of James (collectively "McGee"), filed a wrongful death suit in the Pike County Circuit Court against MEPA and unknown defendants. On June 15, 2017, McGee amended the complaint and added Tim Hall (president of MAGCO), Neel Schaffer, and MAGCO. McGee's complaint alleged claims of strict liability, negligence, and gross negligence. The complaint further alleged that MAGCO had willfully and falsely reported that all utilities with power lines in close proximity to the construction site were properly notified at the start of construction, thereby removing MAGCO from the protection of the Mississippi Workers' Compensation Act.

¶15. On ...