Woods v. Ramsey ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
Nos. 98-60396 & 98-60530
____________________
HOWARD DALE WOODS; GENEVA WOODS,
Plaintiffs-Appellants,
versus
CHARLES RAMSEY; BAY TECHNICAL ASSOCIATES, INC.,
a Mississippi Corporation,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Mississippi
(1:96-CV-562-GR)
October 13, 1999
Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The linchpin for this diversity action is whether an unsecured
rope grasped by Howard Dale Woods when he slipped descending a
scaffold ladder was a proximate contributing cause of his resulting
injury when he fell. Woods contests the summary judgments awarded
Charles Ramsey and Bay Technical Associates, Inc., against his
negligence and other claims; Geneva Woods, the judgment against her
loss of consortium claim. Because Woods did not produce sufficient
evidence to create a material fact issue on causation, we AFFIRM.
I.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
In October 1993, Woods, a painter employed by a subcontractor
on a construction job for Ramsey’s home in Mississippi, fell
approximately 20 feet to the ground while descending a scaffold
ladder. The subcontractor was employed by a general contractor
separate from Ramsey and Bay Technical.
Woods obtained workers’ compensation. For this third-party
action, he alleged that he missed a step while making the descent;
that, when he did so, he grasped a rope hanging near the ladder;
and that, because the rope was not secured, he fell and was
injured. Woods claimed, inter alia, that Ramsey, as homeowner, and
Ramsey’s closely-held corporation, Bay Technical, which owned and
erected the scaffold, had a duty to provide him with a safe
workplace; and that their failure to do so caused his injury.
Both defendants moved for summary judgment, supported, inter
alia, by the deposition testimony of Woods’ expert, Michael
Frenzel, who testified (1) that the scaffold’s construction did not
cause Woods’ injury; and (2) that he could not say with reasonable
probability that Woods’ injuries would have been different had the
rope, used by various workers as a materials hoist (he admitted
this was not uncommon), been secured. In response, as well as in
support of his cross-motion for summary judgment, Woods submitted,
inter alia, 40 exhibits, including 16 depositions.
Holding that neither Ramsey nor Bay Technical owed a duty to
Woods, the court granted summary judgment to each. For Ramsey, it
ruled that he “did not control the work at his residence”, and
therefore, could not incur liability as a homeowner; for Bay
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Technical, that, as “merely the owner and supplier of the
scaffolding”, it had no “duty to warn Woods of any possible danger
in using” it.
II.
A summary judgment, reviewed de novo, e.g., Tolson v. Avondale
Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998), is appropriate
when the summary judgment record “show[s] 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”. FED. R. CIV. P. 56(c); e.g.,
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc). If the movant shows there is no material fact issue, the
nonmovant must “set forth specific facts” as to each element of his
claim, “showing that there is a genuine issue for trial”. FED. R.
CIV. P. 56(e); e.g., Little, 37 F.3d at 1075 (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986)). Facts, and reasonable
inferences from them, are viewed in the light most favorable to the
nonmovant. E.g., Coleman v. Houston Indep. Sch. Dist., 113 F.3d
528, 533 (5th Cir. 1997).
Of course, we may affirm a summary judgment on any ground
raised in district court. E.g., Andrus v. AgrEvo USA Co., 178
F.3d 395, 398 (5th Cir. 1999); Johnson v. Sawyer, 120 F.3d 1307,
1316 (5th 1997). Although not addressed by the district court,
causation was one of several issues raised there (and here).
A.
To succeed under Mississippi law on a negligence claim, Woods
must prove (1) Ramsey and/or Bay Technical owed him a duty; “(2)
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breach of that duty; (3) damages; and (4) a causal connection
between the breach and the damages, such that the breach is the
proximate cause of the damages”. (Emphasis in original.) Grisham
v. John Q. Long V.F.W. Post, 519 So. 2d 413, 416 (Miss. 1988)
(citing Burnham v. Tabb, 508 So. 2d 1072 (Miss. 1987)). Proximate
cause “is that cause which in natural and continuous sequence
unbroken by any efficient intervening cause produces the injury,
and without which the result would not have occurred”. Id. at 417
(citing Thompson v. Mississippi Cent. R. Co., 166 So. 353 (Miss.
1936)). See also Rudd v. Montgomery Elevator Co., 618 So. 2d 68,
73 (Miss. 1993) (citing, inter alia, Palmer v. Biloxi Reg’l Med.
Ctr., Inc., 564 So. 2d 1346, 1354 (Miss. 1990) (“elementary” that
negligence must be “a proximate cause of the accident”).
As discussed, causation being one of the summary judgment
issues presented, Woods “had the burden of presenting evidence
sufficient to demonstrate the existence of a material fact issue”
on that point. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.
1994); FED. R. CIV. P. 56(e); Little, 37 F.3d at 1075. In so doing,
he was required to explain how “specific evidence in the record”
supported his claim. Forsyth, 19 F.3d at 1537 (citing Topalian v.
Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825
(1992) (emphasis added)). It is neither the duty of the district
court, nor this court, to “sift through the record in search of
evidence to support a party’s opposition to summary judgment”. Id.
(citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7
(5th Cir. 1992)).
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Besides failing for the most part to cite specific evidence
(Woods, instead, usually cites to an entire deposition), Woods’
contentions on appeal regarding causation are inconsistent — to say
the least. In his brief, he cites ten violations of the
scaffolding manufacturer’s safety regulations manual, lists the
rope as an “obstruction”, and maintains that these violations had
a “direct causal relation to the accident”. Yet, at oral argument,
he conceded that neither the construction of the scaffold nor the
claimed obstruction of the ladder caused him to fall.
Regarding causation, the summary judgment record is sparse
indeed. (As shown infra, this, in large part, is due to continuous
improper interruptions and coaching of witnesses by Woods’ counsel,
especially during Woods’ deposition.) To show causation, Woods’
response, in part, to the summary judgment motion was that the rope
was “unsecured” and “dangling down the vertical ladder way” of the
scaffold; but, he does not create a material fact issue concerning
causation — how the rope was the proximate cause, or a proximate
contributing cause, of his injury.
No one observed the accident. In his deposition, Woods
testified that, at “quitting time”, as he began descending the
ladder, the rope was “on the side of me”; that his “foot slipped”
on the ladder; that he “lost [his] footing”; and that he could not
“remember” whether it “was ... one foot or both feet at first”.
This extremely critical examination by Ramsey’s counsel, soon and
often improperly interrupted, as usual, by Woods’ counsel,
continued as follows:
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Q. All right. The ladder on the
scaffolding is straight up and down, isn’t it?
A. Right.
Q. So you are climbing down using two
hands and two feet, right?
A. Right.
Q. And you lost footing?
A. Right.
Q. Do you remember whether you were
stepping down a step and lost footing, or
whether your feet were on one rung?
A. Stepping down.
Q. So you lost your footing as you were
putting one of your feet down to the next rung
down, right?
A. Right.
Q. Did that foot slip off the
scaffolding?
A. Right.
Q. So at that point, it is one foot
that slipped?
A. Right.
Q. And you are still hanging on with
the other foot and the two hands?
A. I don’t understand what you are
talking about.
MR. BOONE [Ramsey’s counsel]: Please,
Derek [Wyatt, Woods’ counsel]. Let him tell
me the story.
MR. WYATT: Wait just a second, Walter
[Boone]. If the witness tells you, I don’t
understand, and you have been deposing this
man for a couple of hours, you have an idea of
what his capacity of understanding is. That’s
unfair. You are badgering him, and you are
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asking him really, really technical questions
about which hand, which foot, at what point,
how many steps for an event that happened four
years ago.
MR. BOONE: That’s going to the key issue
to this case, Derek, and I’m tired of you --
MR. WYATT: Key or not. I’ll tell you
what it won’t be the key about, that there was
a rope, it wasn’t tied, and he fell 20 feet
onto a concrete surface. If you can dispute
that, let’s go to a motion hearing right now
because you can’t. So all of this stuff
that’s designed to get him to say, it was my
left foot and later you are going to say it
was his right, and all that, is not going to
amount to anything. But if he tells you, I
don’t understand, in fairness to him, you have
a duty to explain to him what you are asking
him, and he just told you that. He said, I
don’t understand, and I don’t think he does
either.
BY MR. BOONE:
Q. I will be happy to find out exactly
what you do understand and what you don’t.
All I want to know today is what you recall,
and what you are willing to testify as to the
truth because it’s very important.
A. Okay.
(OFF THE RECORD.)
BY MR. BOONE:
Q. Mr. Woods, I want to back up just a
minute so that I can understand exactly where
you were and what you were doing when you were
coming down the scaffolding.
A. Okay.
Q. As I understand it, each end of each
individual scaffolding had a ladder coming
down it, right?
A. That I know of, yes.
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Q. But certainly the one that you were
coming down had a ladder coming all the way
down the middle, right?
A. Yes, sir.
Q. And this ladder wasn’t on the end of
the scaffolding, it’s where two scaffoldings
were put together, right?
A. Right.
Q. So what you had, as you were coming
down, you looked through the ladder -- there
was a ladder just a short distance away from
the other piece of scaffolding; it that right?
A. Right.
Q. And you were telling me that at the
moment that your foot slipped, you were
stepping down one rung, right?
A. Right.
Q. Do you remember which foot it was
that slipped?
A. No, sir. I don’t remember.
Q. But at that point, you had two hands
on the ladder, and one foot, and then one foot
slipped off, right?
A. I don’t remember which foot.
Q. But one of them did; is that fair to
say?
A. I don’t know, sir.
Q. At what point did you grab the rope?
A. When I was about to fall.
Q. Before you grabbed the rope, had
your other foot slipped?
A. It could have, sir. I don’t
remember.
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Q. Do you know whether either of your
hands had slipped off?
A. I don’t remember that neither, sir.
Q. Tell me -- as you are sitting there,
picture in your mind, you are there with two
hands on the scaffolding, right?
A. Uh-huh (yes).
Q. And the moment your foot slipped,
were they on the same rung, or on different
rungs?
A. When I was coming down, and before I
grabbed that rope, I was getting ready to go
down on another level, and my hands was, like,
getting ready to reach for the other level,
and then my foot slipped, and I grabbed the
rope.
Q. Okay. Tell me what you mean by
another level.
A. The next level on the scaffolding.
MR. WYATT [Woods’ counsel]: Do you see
this picture of the scaffold? Of the end of
the scaffold?
THE WITNESS: Uh-huh (yes).
MR. WYATT: Does that look familiar to
you?
THE WITNESS: Uh-huh (yes).
MR. WYATT: This is the ladder on this
side, isn’t it?
THE WITNESS: Yes, sir.
MR. WYATT: I’m just adding. Maybe
this will assist in this.
BY MR. BOONE:
Q. Is this what you are talking about
one level?
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MR. WYATT: Would you ask that
question, please? What was your question to
him?
BY MR. BOONE:
Q. Is this a picture of what you are
talking about of one level?
MR. WYATT: I thought your question
was a minute ago -- what was your question
before that you asked him?
MR. BOONE: I don’t remember.
BY MR. BOONE:
Q. But I’m asking you now: Is this a
picture of one level?
A. Part of it.
Q. About half of one level, right?
A. A piece of it, yes.
Q. So you are testifying that you were
coming down to a new level?
A. Yes, sir.
Q. When your foot slipped?
A. Yes, sir.
Q. Were you all stretched out, or were
you crunched over?
A. I don’t remember, sir.
Q. Do you remember whether your hands
were on the same level, or a different level?
A. No, sir.
Q. Where was the rope in relation to
where you were?
A. The rope was right in front of me.
Q. Was it through the steps?
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A. It was on the same side I was on.
Q. So the rope was hanging on your side
of the steps?
A. Right.
Q. Was it hanging on the right side of
you, or the left side of you?
A. I don’t remember that.
Q. Do you know which hand you grabbed
it with?
A. My left hand, I believe, sir. I
don’t remember.
MR. BOONE [Ramsey’s counsel]: He’s
telling me what he remembers.
MR. WYATT [Woods’ counsel]: I understand.
Was the answer: “The left hand, I believe,
sir. I don’t remember.” Was that the answer?
MR. BOONE: I object to coaching the
witness.
MR. WYATT: I’m asking Ms. Court Reporter
if she could please tell me was that the
answer.
(Answer read.)
BY MR. BOONE:
Q. Do you understand my question? I’m
asking you which hand you grabbed the rope
with.
A. Yes, sir.
Q. Do you remember which hand you
grabbed the rope with?
A. No, sir.
Q. What did you mean when you were
testifying about your left hand?
A. It could have been my left hand, or
both hands, sir. I don’t remember.
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Q. Could it have been your right hand
that you grabbed it with?
A. Like I said, sir, I don’t remember
what hand it was.
Q. How far away was the rope from you?
A. I don’t remember how far neither,
sir.
Q. Presumably, it was within your
reach, though, right?
A. Possibly, sir.
Q. What do you remember next after you
grabbed the rope?
A. When I grabbed the rope? I remember
for a split second that I looked up and I
thought the rope was secured, and it wasn’t,
and I went down.
Q. Did you see what was happening at
the top of the rope?
A. Just like a flash.
Q. What did you see?
A. I seen the rope come untwirled.
Q. Was it wrapped around a bar?
A. Sir, I can’t tell you that. I don’t
know. All I can remember, like I said, that
it come unraveled, and I went down as quick as
possible. I don’t remember.
Q. Is that same stairway that you went
down the same one that you used to go up?
A. No, sir.
Q. You used a different one?
A. Yes, sir.
Q. Why did you come down on that one
that you came down on?
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A. Like I said, sir, when you go up and
down the scaffolding, there’s different places
you can do down, and I don’t know why I went
down that side, sir.
Q. How far up were you when you fell?
A. I don’t know how far. I don’t know,
sir, how far it was. It could have been 20
feet or more.
(Emphasis added.)
No summarization of this testimony can do justice to showing
the inadequate record to preclude summary judgment, caused in
considerable part by the improper tactics of Woods’ counsel. This
line of questioning by Ramsey’s counsel resumed at the end of
Woods’ deposition:
Q. Would you character yourself as
pretty strong?
A. Yes, sir.
Q. When you were coming down the
ladder, did you have a pretty good grip on the
bars?
A. On the bars?
Q. As you were coming down the ladder.
A. It’s possible, sir.
Q. It’s possible that you had a good
grip?
A. Yes, sir.
Q. When your foot slipped, do you
remember you telling me both of your arms were
still on there?
A. Yes, sir.
Q. Probably at that time, you had a
pretty good grip on there, didn’t you?
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A. Yes, sir.
Q. And a man of your strength wanted to
grab on the rope as opposed to hanging onto
the bars?
A. I don’t know, sir.
Q. If you hadn’t grabbed the rope, you
would be okay today, wouldn’t you?
MR. WYATT [Woods’ counsel]: That’s a
speculative question. Go ahead and answer, if
you know.
A. I don’t know, sir.
MR. BOONE [Ramsey’s counsel]: No further
questions.
(Emphasis added.)
Concerning causation these are the operative facts in the
summary judgment record. As discussed, they are viewed in the
light most favorable to Woods, the nonmovant; but, that cannot
alter his being required, as also discussed, to identify specific
facts creating a material fact issue. For example, as emphasized
supra, Woods could not state positively that the rope was within
his reach, or why it was even necessary to grasp it when his foot
slipped. The testimony by his expert, Frenzel, bears on this
question.
Frenzel, on whom Ramsey and Bay Technical also rely, testified
that the rope “possibly” could have prevented Woods’ fall:
Q: If the rope had been tied, would
that have prevented Mr. Woods’ fall in your
opinion?
A: It possibly could have prevented Mr.
Woods’ fall or it may have arrested the fall.
It may have lessened the significance of the
fall.
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Q: In what way would it have lessened
the significance of the fall?
A: It may have reduced the energy at
impact or it may have changed the angles of
impact. In other words, if the rope had been
secured and Mr. Woods grabbed hold of the
rope, he may have hit on his feet with brush
burns on his hands.
He was a big fellow with lots of upper
body strength. He may have been able to stop.
But even if he had not stopped it may have
caused him to land in a more erect position
which would have minimized the injury or the
impact.
....
Q: And it’s possible it could have been
at a worse angle, you just don’t know?
A: I guess that’s possible.
....
Q: Is it speculative to say what would
have happened had the rope been tied with
regard to the extent of his injury?
A: To some degree that’s correct....
But to say that it would lessen the injury or
alter the fall, I think I can say that. To be
able to prove or to offer medical testimony
that would support that, I cannot.
Q: So it would be fair to say that you
can’t state to a reasonable probability that
his injuries would have been lessened had the
rope been tied off?
A: I cannot say that with medical
certainty, that’s correct.
(Emphasis added.)
Again, no one observed the accident. The foregoing evidence
provided by the expert’s testimony, especially when linked to that
provided (or, more accurately, not provided) in Woods’ deposition,
15
is plainly insufficient to overcome a summary judgment motion.
See, e.g., Marshall v. East Carroll Parish Hosp., 134 F.3d 319,
324 (5th Cir. 1998) (“conclusory, unsupported statements” are
insufficient summary judgment evidence). In sum, Woods has failed
to show a “reasonable connection between” the rope and his injury.
See Burnham, 508 So. 2d at 1074; see also Herrington v. Leaf River
Forest Prods., Inc., 733 So. 2d 774, 779 (Miss. 1999) (quoting
Kramer Serv., Inc. v. Wilkins, 186 So. 625, 627 (Miss. 1939)
(coexistence of “negligence of one person and injury to another” is
not enough to show causation); Mississippi Valley Gas Co. v. Estate
of Walker, 725 So. 2d 139, 145-46 (Miss. 1998) (defendant’s
negligence may not be inferred as proximate cause unless plaintiff
has eliminated other probable causes).
B.
As detailed in the district court’s two opinions granting
summary judgment to each defendant, it was also proper for the
other claims.
1.
Ramsey’s and Bay Technical’s failure to comply with various
safety standards is equated with negligence per se. But, Woods has
not shown a connection between the alleged violations and his
injury. See Snapp v. Harrison, 699 So. 2d 567, 571 (Miss. 1997)
(for negligence per se, plaintiff must show (1) membership in class
protected by statute, (2) injury of type sought to be prevented,
and (3) violation of statute proximately caused injury).
2.
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Woods presented a strict liability and several breach of
warranty claims. But, he did not produce evidence that either
defendant (1) manufactured or sold the scaffolding (he admits they
did not do so), or (2) made an express warranty. See, e.g.,
Scordino v. Hopeman Bros., Inc., 662 So. 2d 640, 643 (Miss. 1995)
(seller must be more than “occasional seller” of product); Hargett
v. Midas Int’l Corp., 508 So. 2d 663, 664 (Miss. 1987) (implied
warranty of merchantability applies where seller is “merchant” with
respect to goods sold). And, he conceded at oral argument that the
scaffold did not cause his injury. See Scordino, 662 So. 2d at
642-43 (for strict liability, plaintiff must prove “injury resulted
from” product defect).
3.
Obviously, in that summary judgment was proper against Woods’
negligence claim, that for gross negligence cannot survive. See
West Cash & Carry Bldg. Materials of McComb, Inc. v. Palumbo, 371
So. 2d 873, 877 (Miss. 1979) (gross negligence requires showing
reckless indifference) (quoting Teche Lines, Inc. v. Pope, 166 So.
539, 540 (Miss. 1936)).
4.
Finally, because Geneva Woods’ loss of consortium claim is
derivative of her husband’s, see Alldread v. Bailey, 626 So. 2d 99,
101 (Miss. 1993), her claim fails as well.
III.
For the foregoing reasons, the judgments are
AFFIRMED.
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