Luther, Collier, Hodges & Cash, LLP – Attorneys at Law

Mississippi Legal Updates February 2015


Hill, et al. v. City of Horn Lake, Mississippi, 2015 Miss. LEXIS 15 (Miss. 2015)

The Mississippi Supreme Court recently upheld summary judgment in favor of a city which had been sued under both a respondeat superior theory and for negligent hiring. See Hill, et al. v. City of Horn Lake, Mississippi, 2015 Miss. LEXIS 15 (Miss. 2015). The City of Horn Lake entered into an oral contract with Phillips Construction Company to work on a sewer project during which a trench in which two of Phillips’s employees were working in collapsed killing one employees and injuring the other. Id. Phillips did not carry general liability insurance coverage at the time of the trench collapse. Id.

Plaintiffs appealed after “The Circuit Court granted the City’s motion for summary judgment on all issues, holding that Plaintiffs had not established the City had more than a supervisory role over the project, that the City’s maintenance of a sewer system is a discretionary function, and that the burden under Mississippi Code Section 31-5-51(7) is placed on the contractor, not the city.” Id. In reviewing whether the City was responsible under respondeat superior, The Supreme Court noted that the workers on the project were Phillips’s employees, that Phillips was responsible for obtaining its own equipment, and that the City did not assist in construction. Id. Due to the foregoing, the Supreme Court sided with the City stating that “the amount of control demonstrated by Plaintiffs, standing alone, is insufficient to trigger the master-servant relationship.” Id.

As another point of contention, Plaintiffs asserted “that the City was per se negligent because it violated Mississippi Code 31-5-51(7)” which requires parties entering into a construction or public works contract with a municipality to furnish proof of general liability insurance coverage if the contract exceeds $25,000.00. Id. However, following its work, Phillips had submitted an invoice for its work on the project for only $9,678.00 – well below the applicable threshold. Id.

Additionally, “even if the statute applied to this agreement, the City would not be liable because the statute places the burden on the contractor to furnish the insurance, not the City to make sure that the insurer does so.” Id. Last, the Plaintiffs did not establish that there was a legislative intent to create a private cause of action under which they could sue the City under Section 31-5- 51(7). Id.



Herman Scott, individually and as administrator of the Estate of Stewart Scott, Jr., Deceased v. Anderson-Tully Company

The Court of Appeals of The State of Mississippi recently affirmed a trial court’s decision granting title to land to Anderson-Tully Company under a theory of adverse possession. At issue was 20 acres of land in Jefferson County, Mississippi. In 1925, brothers Stewart Scott, Jr. and Willie Scott inherited an undivided one-half interest in a 584.6 acre tract of land. Scott, administrator of Stewart Scott, Jr.’s estate, filed suit on behalf of the estate in March of 2010, alleging that the adjacent landowner to the east, Anderson-Tully, was trespassing on a portion of the estate’s property. Anderson-Tully argued that it had acquired title to the property by adverse possession through its possession and use of the land from 1969 to 2010. The trial court found that the evidence was sufficient to establish that Anderson-Tully had acquired title to the land through adverse possession.

On appeal, Scott argued that the evidence was insufficient to establish title by adverse possession. The Court noted that, under Mississippi law, “For possession to be adverse, it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” With regard to the first element, the Court noted that Anderson-Tully had marked its borders with its recognizable company blue paint to include the disputed twenty acres. Multiple witnesses had seen the blue paint lines between 1969 and 2010. The court also cited these markings in support of the “open, notorious, and visible requirement.” The court noted that the marking, management, and harvesting of timber on the land as well as the issuance of hunting licenses for the land constituted “actual or hostile” use during this time. With respect to the continuous 10-year possession requirement, the Court noted that the possession had begun in 1969 and that Anderson-Tully maintained the property, harvested timber, and issued hunting licenses, until an interruption in 2003. Next, with respect to the exclusivity requirement, the Court noted that no one had used the property other than Anderson-Tully since prior to 1969. Finally, the Court found that the adverse possession was peaceful because Anderson-Tully’s use of the land was not disputed by Scott until 2003, after the adverse-possession claim had already ripened. The Court ultimately found substantial evidence in the record to support the trial court’s finding that Anderson-Tully proved adverse possession by clear and convincing evidence.

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