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[W] Rein v. Benchmark Construction Company6/12/2003
DATE OF JUDGMENT: 8/3/2001
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART - 06/12/2003
EN BANC.
. Gatha Nell Rein, an elderly Alzheimer's patient, was a resident of Silver Cross Nursing Home ("Silver Cross"). She died on September 3, 1998, as a result of being attacked and bitten in her bed by fire ants on August 30, 1998, at the Silver Cross facility. Her husband and son, F. Joseph "Jerry" Rein, Sr., and F. Joseph "Joey" Rein, Jr., sued Silver Cross, Ace Pest Control ("Ace"), Benchmark Construction Company ("Benchmark"), and two landscaping companies, Growin Green Landscape, Inc. (Growin Green) and William Schilling, individually and d/b/a Natural Accents Nursery and Landscapers ("Natural Accents") for damages for her wrongful death. The Reins settled with Silver Cross and Ace Pest Control. The Hinds County Circuit Court dismissed the negligence and breach of contract claims against Benchmark, Growin Green and Natural Accents. The Reins ask that this Court overturn the trial court's decisions.
FACTS
. Mrs. Rein was attacked , bitten and gravely injured by fire ants while lying in her bed at Silver Cross. As a result, she died three days later. Apparently, the ants entered and infested her room by crawling through spaces in the walls. Immediately after the invasion and assault on Mrs. Rein, it was determined that the ants likely came from an ant bed immediately outside Mrs. Rein's room. The record indicates that this was not the first time fire ants invaded the nursing home as staff and patients previously saw fire ants in the facility. The record clearly indicates that the ants were strongly attracted to moisture which lingered around the exterior perimeter of the building. The reasons for that concentration of moisture are vigorously disputed. The length of time the ant bed was allowed to exist untreated and detected outside Mrs. Rein's room is also debated.
. First, the Reins argue that the errors and omissions of Benchmark were the cause of Mrs. Rein's death. They contend that Benchmark breached its contract with Silver Cross to build a safe facility for the benefit of Silver Cross as well as third-party beneficiaries including Mrs. Rein. They also contend that Benchmark's negligence in inadequate construction of Silver Cross was the proximate cause or a contributing cause of the attack on Mrs. Rein and her subsequent death.
. The Reins also allege breach of contract by Benchmark. They assert that Mrs. Rein was a third-party beneficiary of the construction contract between Benchmark and Silver Cross. They allege that Benchmark breached obligations owed to Silver Cross as well as the residents, who were the third-party beneficiaries of the contract, when it failed to construct the facility to allow adequate drainage.
. The Reins assert that Benchmark contracted to construct the nursing home in accordance with the agreed and applicable state and federal government and agency standards, plans and specifications. The Reins contend that the contract expressly or impliedly provided for Benchmark's construction of a safe facility for its elderly, disabled and confined residents. Benchmark's faulty construction and failure to follow specifications, an example of which was the inadequate site preparation, is blamed for the resulting continuous moisture outside of the building which was conducive to insect infestation. Benchmark is also blamed for not ensuring the safety of the fill dirt that was used in the construction. It is also suggested that Benchmark improperly failed to treat the building and site for fire ants.
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