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Cashwell v. Fincher11/22/2005
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED -11/22/2005
BEFORE KING, C.J., CHANDLER AND ISHEE, JJ.
. Julius Cashwell ("Cashwell") brought an action against Glen Fincher ("Fincher") in the Circuit Court of Harrison County for an injury received while assisting Fincher in lifting a large screen television. The trial court granted Fincher's motion for summary judgment. Aggrieved by this decision, Cashwell appeals. Finding no error, we affirm.
FACTS
. The facts in this case are uncomplicated and basically undisputed. On approximately February 17, 1999, Cashwell was working as a television repair person, at the time performing independent contractor work on a job -by-job basis for Fincher and Fincher Electronics. At the time of the incident at issue, Fincher, Cashwell, and a full-time employee of Fincher Electronics named Ron Hoffman ("Hoffman") were present. When Fincher was preparing to work on a large screen television set, he asked Cashwell, who worked only on conventional (not large screen) television sets, to assist him in raising the set to a table. Cashwell was aware that Fincher generally used three people to lift a large screen television set, with a fourth person assisting by sliding the table beneath the set while the other three had it raised. However, in this instance, only three people were present in the shop, so Fincher asked Cashwell and Hoffman to lift the set while he slid the table underneath it. Cashwell agreed, and he and Hoffman began to lift the television, but Cashwell noticed something was wrong and that his right biceps muscle had risen toward the top of his arm. Cashwell immediately stopped trying to lift the television.
. When Cashwell later sought medical attention, the physician notified him that his right biceps muscle was torn away from its connection near his elbow, and surgery was necessary to reattach it. Additionally, a previously existing back injury of Cashwell's was aggravated either by the incident or the subsequent physical therapy meant to relieve the biceps injury.
. Cashwell filed an action against Fincher in the Circuit Court of Harrison County, alleging that Fincher failed to provide "an adequate facility or proper equipment for lifting large TV's." When Fincher motioned for summary judgment, the trial judge granted his motion. Though the trial court noted that Cashwell was undisputedly an independent contractor, it did not apply the "independent contractor exception" to the general rules of premises liability. Rather, the trial court ruled that Fincher owed Cashwell a duty, as premises owner/occupier to business invitee, to keep the business premises in a reasonably safe condition. The trial judge reasoned that the large screen television was not a dangerous condition, and therefore summary judgment for Fincher was appropriate. Aggrieved by the decision, Cashwell appeals.
STANDARD OF REVIEW
. The standard by which this Court reviews a lower court's grant of summary judgment is de novo. McMillan v. Rodriguez, 823 So. 2d 1173, 1177 ( ) (Miss. 2002). If, examining all evidentiary matters, no genuine issue of material fact exists, then summary judgment is proper. Id. The evidence must be examined in the light most favorable to the non-movant. Id. The non-movant is to be given the benefit of every reasonable doubt in light of the evidence. Jones v. James Reeves Contractors, 701 So. 2d 774, 777 (Miss. 1997). "A motion for summary judgment will lie only where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law." Id.
ISSUES AND ANALYSIS
. Cashwell argues tha
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