IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-IA-00854-SCT SANDERSON FARMS, INC. AND GEORGE V ARNADO

v. D. D. McCULLOUGH

DATE OF JUDGMENT: 05/20/2015 TRIAL JUDGE: HON. DAVID H. STRONG, JR. COURT FROM W HICH APPEALED: LINCOLN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: RICHARD O. BURSON SHIRLEY M. MOORE ATTORNEY FOR APPELLEE: ORVIS A. SHIYOU, JR. NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 02/02/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. BEAM, JUSTICE, FOR THE COURT: ¶1. This case c om es to the Cour t on interlocutory appeal of the Lincoln County Circuit

c o u r t ’ s O r der Deny i ng the Def endant’s M otion f

or S um m ary Judgm ent. Although the plaintif f ’s overarching claim is f ram ed in negligence, it f

actually sounds in intentional tort

a n d is subsequently barred b y the one-y ear statute o f l im itations under Mississippi Code
Section 15-1-49. Theref

ore, this Court reverses t he trial court’s Order D eny ing S u mma r y Judgem ent and renders a verdict in f avor of the Def endant.
FACTS¶2. The f ollowing f

acts are disputed, though they have been sum m arized b ased on both party ’s brief

s, deposition transcripts, and trial court orders. 1 ¶3. On May 24, 2010, Plaintif f /Respondent D.D. M cCullough was injured when he was struck by a vehicle d

riven by Petitioner/Def

endant George Varnado. V arnado, an em ploy ee of Petitioner/Def

endant Sanderso n F a rm s, Inc., v isited McCullough’s chicken f arm that
af ternoon to inspect its chicken houses, as directed by his em ploy er. C onsistent with a Boiler
Production Agreem ent (BPA) M cCullough signed earlie r that y ear, 2 Varnado sought to conduct a routine e valuati on of the chicken-house conditions to ensure t hey m et the standards
under the contract. ¶4. Throughout his i nspection, Varnado d iscovered def i ciencies in violation of the BPA,
af ter which he returned to the cab o f h i s t r u c k a nd began to write a def iciency report. McCullough a

pproached Varnado’s vehicle a n d a s ked what he was d oing, to which Varnado responded, that he was “ writing def iciencies.” 3 Recog n i z i n g t h i s report would af f ect the

term s of the BPA and p o t e n t i a l ly term inate his contract, McCullough s tood at the closed
driver’s side window and shouted to Varnado,“y ou lied to m e, y ou g ave m e f o ur day s
. . . its

1 Wh e th er G e o rg e V arn ad o actu ally h it D .D . M cC u llo u g h , an d if so , w h eth er h e h it M cC u llo u g h in ten tio n ally , is u n d er d isp u te. M cC u llo u g h ’s co m p l ain t alleg es th at V arn ad o n eg lig en tly h it h im w ith h is t ru ck , w h ile V arn ad o d en ies an y claim s t h a t h e h it M cC u llo u g h w i th h is tru c k , n eg lig en tly o r o th erw ise.

2 M cC u llo u g h an d h is w if e b eg an th ei r e mp lo y

m en t w i th S an d e r so n in 1 9 9 8 w h en th ey sig n ed th e ir f

irst B P A . T h e co u p le en tered su b seq u en t B P A s w ith th e co m p an y o v er th e co u rse o f th e n ex t ten y ears, w ith th e m o st recen t ag reem en t sig n ed o n Jan u ary 4 , 2 0 1 0

.

3 U n less o th ew ise n o t ed , q u o ted lan g u ag e t h ro u g h o u t t h e f act sectio n w as d eriv ed f ro m ex cerp ts o f

M cC u llo u g h ’s d ep o sitio n tran s crip t

. 2[ sic] only been two!” He then m oved i n f ront of Varnado’s truck and y elled at him to get out
to talk about the report. Varnado rem ained in the truck, with the doors locked and window closed, ref

using to exit the vehicle. ¶5. McCullough continued to u rge V arnardo to “ get out and talk.” W ithout warning or a dis c e r n a b l e request to leave t he property , 4 Varnado then “m ashed the gas,” striking McCullogh with the vehicle. This contact f orced McCullough back roughly two f eet but did

not cause him to f

all. He again urged Varnado to get out and t alk, but V arnado ref used and
instead m oved his truck “straightf orward,” hitting McCullough a second tim e. McCullough again stum

bled backward, though he did not f a ll. ¶6. McCullough a

pproached the vehicle a third t im e and im plored Varnado to get out and talk, w hile Varnado continued t o y ell inaudible r esponses f rom the saf e ty of the truck cab.
Varnado then m oved the truck f orward and “went straight through,” knocking McCullough’s
“ass of f ,” causing him to f

all and hit h is h ead on t he truck’s b um per. T he i m

p act pushed McCullough t o the side of the truck, af ter which Varnado continued to drive o f f a nd exited the property

. ¶7. Following the altercation, Varnado returned t o McCullough’s property , accom panied by several Sanderson of

f icials and a deputy sherif

f

. The of f icials and the deputy approached McCullough’s h om e in an ef f o rt to d iscuss the incident. They requested that M cCullough
go with them t o t he Sanderson of f ice to discuss i t f

urther, b ut he ref

used and said t hat he was

4 M cC u llo u g h ’s d ep o siti o n t e s t im o n y n o tes th at w h i le V arn ad o w as s h o u tin g in h is tru ck , h e c o u ld n o t m a k e o u t w h a t w a s b ein g said b ecau se th e d o o rs w ere clo s ed an d th e w i n d o w s w ere ro lled u p
. Wh en ask ed if it w as p o ssib le th at V arn ad o w as req u estin g to leav e, M cC u llo u g h said n o
. 3going to the em ergency r oom instead. The of f icials, Varnado, and the deputy t hen lef t the property

. ¶8. On May 26, two day s f o llowing t he i ncident, M c C u l l o u g h r e c e ived a letter f rom Sanderson, term inating the BPA. The term i nation letter cited t he BPA and n oted that
McCul l o ugh had violated both the duty to n ot interf ere with Sanderson em

ploy e es in the
execution of t heir duties and t h e duty to not u se t hreatening language toward t hose sam e

em ploy e es. That sam e day , 5 Sanderson of f icials rem oved roughly 99,000 c hickens and their supplies f rom McCullough’s f

arm and severed the relationship. ¶9. M c Cullough s ubsequently f iled two lawsuits; the f

irst, which alleged Sa n d e r s o n ’ s breach of contract, was dism issed on sum m ary judgm ent. The second–the case at hand

– a lleges t hat V arnado (and, as a result, Sanderson) breached the duty of reasonable care
to o perate a m otor vehicle saf ely when Varnado f

ailed to allow McCullough to m ove out of
the truck’s path prior t o accelerating f orward. Followi n g a p eriod of d iscovery , Sanderson
and Varnado m o ved f

or s um m ary judgm ent, claim ing that McCullough’s suit alleged a tort
in negligen c e w h e re, f

actually , the actions identif ied would constitute an intentional tort. Sanderson asserts that, soun d i n g i n i n t e n t i o n a l tort, McCullough’s c l aim s a re tim e-barred and
the suit should be dism issed. ¶10. The trial j udge reviewed the party s’ argum ents and determ ined that, because Varnado
denies having h i t M c C u l l o ugh with his truck, m uch less intentionally doing so, a genuine

5 T h e term in atio n letter in d icates th at th e d ay t h e l e t t e r w as receiv ed , t h e ch ick en s w o u l d b e r e mo v ed f

ro m th e p ro p erty , th o u g h M cC u llo u g h stated h e th o u g h t th e ch ick en s w e re rem o v ed o n th e tw en ty -f if th , th e d ay b ef

o re th e l etter w a s receiv ed

. T h is d iscrep an cy is o f n o co n seq u en ce. 4i s s u e o f m aterial f act exists surrounding the claim s. The court d enied the def endant ’ s

m otion, and Sanderson f

iled this appeal. ¶11. On interlocutory

appeal, and in their m o tion f or sum m ary

judgm e nt, Sanderson and Varnado (collectively , Def endants) argue the f

ollowing issues:
I. W hether Plaintiff’s sworn testimo n y d e monstrates he alleges an intentional tort which is barred by the one-year statute of limitations.
II. W hether Sanderson is liable for the intentional acts a lleged by Plaintiff.
III

. W hether Plaintiff has abandoned any claim a gainst Sanderson related to the May 24, 2010, in c i d e n t f or failing to c omply with the party’s contractual dispute-resolution procedure.
IV. W hether Plaintiff’s claim of n e gligent supervision is properly before t h is Court and w hether it demonstrates t hat he alleges an intention a l tort, not negligence

. Because we f

i nd that McCullough’s c l a im s are grounded in i ntentional tort, rather than negligence, they are a ccordingly tim e-barred. As all other issu e s a re now im m aterial, we address only

the petitioner’s f

irst issue. 6

6 If p ro p erly su b m itted to th e C o u rt, w e w o u ld ad d ress Issu e IV an d a f f irm th e trial co u rt’s d ecisio n to d en y su m m ary j u d g m en t o n th at issu e alo n e. H o w ev er, th e o n ly m en tio n o f S a n d erso n ’s n eg lig en t su p erv isio n is asserted in M cC u llo u g h ’s resp o n s e to th e d ef en d a n t ’s m o tio n f

o r su m m ary j u d g m en t. T h erein , M cC u l lo u g h asserts t h at, w it h i n h i s co m p lain t, h e in itially alleg ed th at S an d erso n is “liab le f o r th e in j u ries an d d am ag es h e su stain ed as a resu lt o f acts an d o m iss i o n s ” b y th e d ef e n d an ts. T h ese acts an d o m issio n s m ad e S an d erso n “at least, n eg lig en t in its su p erv i sio n o f V a rn ad o
. Wh at co m p an y w o u ld g ran t an e mp l o y ee th e au t h o rity to i n ten tio n a lly in j u re an o th er[ ? ] T h u s, S a n d erso n w as n eg li g e n t in its su p e rv isio n o f V arn ad o b y n o t e n su r in g h e w o u ld n o t in ten tio n a lly in j u re p eo p le w ith w h o m

it h ad co n tracted .” In h is co m

p lain t , M cC u llo u g h n o tes th at th e “n eg lig e n t acts a n d o m i s s i o n s o f th e D e f e n d an ts p ro x im ately c au sed d am ag es to P lain tif f

. . . .” Wh ile M ississip p i em p lo y s a l i b e r a l p lead in g stan d ard t h ro u g h R u le 8 o f th e M ississip p i R u les o f C iv il P ro ced u re, th is “sh o rt an d p l a i n s t a tem en t ” f ails to s et f

o rth a claim in clu d in g “f actu al alleg atio n s, eith er d ire c t o r in f

eren tial, resp ectin g each m aterial elem en t n ecessary t o su stain reco v ery u n d er 5STANDARD OF REVIEW

¶12. This Court e m

ploy s t he de novo standard when reviewing a l o w e r court’s grant or denial of sum m ary judgm ent and exam ines all the evide n t i a r y m a t ters bef ore it, including
adm issions in pleadings, a nswers to interrogatories, d eposition tes t i m ony , af f idavits, etc.
McMil l a n v. Rodriguez

, 823 So. 2d 1173, 1176-77 (Miss. 2002), citations om itted.
Sum m ary judgm ent is properly granted when the “pleadings, depositions, a nswers to interrogatories, a n d a d m issions on f ile

. . . s h ow t hat there is no genuine issue as to any

ma t e r i a l f

act and that the m o v ing p arty is entitled to a judgm ent as a m atter of la w
. ”
M.R.C.P. (56)(c). T he evidence m ust be viewed in the light m ost f avorable to the

n o n mo v i n g p a rty

. Sim

pson , 880 So. 2d at 1 050. However, that p arty ’s c l aim m ust be

so m e actio n ab le leg al t h eo ry .” C a rter v. R ed

d ix , 1 1 5 S o
. 3 d 8 5 1 (M iss. 2 0 1 2 )

. S ee a lso P e n n . N a t’l G a m in g

, In c . v. R a tliff

, 9 5 4 S o
. 2 d 4 2 7 , 4 3 2 (M iss. 2 0 0 5 ). “ E v e n u n d er [ th ese] lib eral p lead in g req u irem en ts, a p lain tif f m u st set f o rth f actu al alleg atio n s
. . . resp ectin g each m aterial elem en t n e cess a r y t o s u stain reco v ery u n d er so m e actio n ab le leg al th eo ry ; h o w e v e r, th e p lead in g s n eed o n ly p ro v id e su f f i cien t n o t i c e to th e d e f

e n d an t o f th e claim s an d g ro u n d s u p o n w h ich relief is so u g h t.” S co tt v. C ity o f G o o d m a n , 9 9 7 S o
. 2 d 2 7 0 (M iss. 2 0 0 8 ) ( citin g M

. R

. C .P

. 8 (a)). T o t h at en d , th e M ississip p i C o u rt o f A p p eals h as h eld th at, w ith o u t w arn in g o r reaso n to k n o w o r an t icip ate t h at an em p lo y ee w o u ld b eh av e in a v io len t m an n er, an em p lo y er can n o t b e h eld to b e liab le o n an im p ro p e r t r a i n i n g o r su p erv i sio n t h eo ry o f liab ility

. H

o l m es v . C a m p b ell P r o p s . , I n c
. , 4 7 S o
. 3 d 7 2 1 , 7 2 9 (M iss. C t. A p p
. 2 0 1 0 ). Wh en th ere is “n o co n t rad ictin g ev id en ce o f p rio r a ctu al o r co n stru ctiv e k n o w led g e o f

. . . v io len t n a tu re[ , o r] an y in d icatio n o f an y actu al o r co n st r u c t i v e k n o w l ed g e th at an atm o s p h e r e o f v io len ce ex isted [ at em p lo y ee’s w o rk site] ,” a n em p lo y er can n o t b e h eld to h av e acted u n reaso n ab l y
. Id

. T h is C o u rt h as rep eated ly su p p o rted t h is v i ew in v ario u s n eg lig en ce cases a g ain st em p lo y ers. S

ee S im p so n v . B o y d , 8 8 0 S o
. 2 d 1 0 4 7 (M iss. 2 0 0 4 ); C o u n t r y C lu b o f J a ck so n v. T u r n er , 1 9 2 M iss. 5 1 0 , 4 S o
. 2 d 7 1 8 , 7 2 1 (1 9 4 1 ). B ecau se M cC u llo u g h d o e s n o t f

o rm ally p lead k n o w led g e o r p resen ce o f v io len t ten d en c i es an d o n ly b rief ly alleg es n eg lig e n t s u p erv isio n in h is r esp o n s e t o a m o tio n b y th e d ef en se, t h e issu e o f w h eth er S an d erso n w as n eg lig en t in its su p e rv isio n o f V arn ad o is n o t p ro p erly b ef o re th is C o u rt. 6s upported by m o re than a m e re scintilla of colorable evidence; i t m u st b e e vidence up o n which a f air-m inded jury could r eturn a f avorable verdict. Anderson v. Liberty Lobby, Inc. , 477 U .S. 242, 248, 106 S. Ct. 2505, 2510, 9 1 L. Ed. 2 d 202 (1986). “[ A] com p lete f ailure
of proof concerning an essential elem ent of the non-m oving party ’s case necessarily renders
all other f acts i m m aterial.” Galloway e t al. v . The Travelers Ins. C

o., et al., 515 So. 2d 678,
683 (Miss. 1987). If

, in this view, there is no genuine i ssue o f m aterial f act and the m oving party is e ntitled to judgm ent as a m atter of law, sum m ary j udgm ent should be granted in his
or her f avor. Anderson , 477 U.S. 242, 248.
LAW AND ANALYSIS
Whether Plainti f

f ’ s sw orn testim ony d em onstrates he alleges an intentional tort w hich is barred by the one-y e ar statute of lim itations. ¶13. W h ile M cCullough alleges negligence in his com plaint, c alling f

or t he application of
the three-y ear statute of lim i tations, this Court is not bound b y t he claim s set f orth in his petition. 7 Instead, “‘[ t]he law of the state is realistic. Substance prevails over f orm .’” 8 The question bef

ore this Court i s whether the s ubstance of McCullough’s claim against Varnado
and S anderson sounds in intentional tort or negligence. The evidence presented t o support the c l aim alleg e d i n M cCullough’s com plaint–while p leaded as an action in

7 “[ T h is C o u rt] is n o t b o u n d , as it u su ally is w h en m ak in g a d e term in atio n b ased so lely o n t h e p lead in g s, t o accep t w ith o u t q u estio n th e t ru th o f th e p l ain t if f ’s alleg a t i o n s
. W e th eref o re rej ect th e n o tio n th at a co u rt m u st accep t as ‘h av in g an a rg u ab le b asis in f act,’ all alleg atio n s th at can n o t b e r eb u tted b y j u d icially n o ticeab le f acts.” B ilb o v. T

h ig p en , 6 4 7 S o
. 2 d 6 7 8 , 6 8 9 (M iss. 1 9 9 4 ) (q u o t i n g D e n to n v. H ern a n d ez , 5 0 4 U .S

. 2 4 , 1 1 2 S

. C t. 1 7 2 8 , 1 7 3 3 , 1 1 8 L . E d . 2 d 3 4 0 (1 9 9 2 )).

8 K o z a n v. C o m sto ck , 2 7 0 F .2 d 8 3 9 , 8 4 6 (5 th C ir. 1 9 5 9 ) ( q u o tin g T ra vis v . B ish o ff , 1 4 3 K an . 2 8 3 , 5 4 P .2 d 9 5 5 , 9 5 6 (1 9 3 6 ). 7negligence–supports a claim generically aki n t o a c o m m on-law assault and b attery : an

intentional tort. ¶14. Under Section 1 5

- 1

- 3 5 o f t h e M i s s i s s i p p i C o d e , c i vil actions f or enum erated
intentional torts–including assault, battery , and recently , intentional inf liction of em otional
distress 9 –m

ust be f i led wit h i n o n e y e a r of the injury alleged. 10 W hile this Court “will not
squeeze all i ntentional w rongs i nto the actions enum erated,

. . . [ if ] . . . the conduct alleged

m ay be f airly categorized as one of the enum erated tort s, the one-y ear s tatute applies. Otherwise, i t does not.” Nichols v. Tri State Brick & T ile Co. , 608 So. 2d 324, 333 (Miss. 1992). Here, the f

act that McCullough did not a llege an intentional tort “is of no m om ent,

as [ t]here can be no escape f r om t he b ar of the statute of lim itations a pplicable to i ntentional

torts b y the m ere ref

usal to s ty le the ca u s e b r o u g h t in a recognized statutory category and thereby circum vent prohibition of the statute.” City o f Mound Bayou v. Johnson , 562 So.
2d 1 212, 1215 (Miss. 1990) (citing Dennis v. Travelers Ins. Co. , 2 34 S o. 2d 624, 626 (Miss.1970)). The c onduct alleged–thou g h f r a m ed in negligence–is n otably like the
intentional torts of

assault and battery

and should be treated as such.

9 “In ten tio n al in f

lictio n o f em o tio n al d istress is o f like kin d o r cla s s i

f i c a tio n a s th e to rts e n u merated in M ississip p i C o d e S ectio n 1 5 -1 -3 5 , an d i s th eref o re b arred b y a o n e-y e a r statu te o f lim itatio n s.” J

o n es v. F l u o r D a n iel S ervs. C

o rp ., 3 2 S o
. 3 d 4 1 7 , 4 2 5 (M iss. 2 0 1 0 ).

1 0 “ Al l a c tio n s f

o r assau lt, assau l t an d b attery , m aim i n g , f als e i m pr i s onm e nt , m a l i c i ous arrest, o r m en ace, an d all actio n s f o r slan d ero u s w o rd s co n cern in g th e p ers o n o r title, f o r f ailu re to e m

p lo y , an d f

o r lib els, sh all b e co m m e n ced w ith in o n e (1 ) y ear n ex t af ter th e cau se o f su c h actio n accru ed , an d n o t af ter.” M iss. C o d e A n n . § 1 5 -1 -3 5 (R ev . 2 0 1 3 ).

8¶15. T h e i n c i d e nt at McCullough’s f arm occurred on May 24, 2010, though the c l a i ms against Sanderson a nd Varnado were not f iled until June 17, 2011–roughly one m onth bey ond t he running of t he statute of lim itations f o r intentional t orts. All issues presented in
this appeal depend on the substantive basis of McCullough’s claim s a n d w h ether Varnado
acted intentionally or negligently when he hit McCullough w ith his t ruck. If he acted intentionally , McCullough’s c laim s are tim e-barred; i f he acted negligently , t hen the claim s are tim ely under Mississippi Code Section 15-1-49 and its three-y ear lim i tations period. ¶16. T h e intentional tort of assault “occurs where a person (1) acts intendi n g t o c a u s e a harm f ul or of f ensive contact with the person of the other or a third person, or an im m inent apprehension o f such contact, and (2) the other is t h e reby put in such im m inent apprehension.” Morgan v. G reenwaldt , 786 S o. 2 d 1037, 1043 (Miss. 2001) (citing Webb

v. Jackson , 583 S o. 2d 946, 951 (Miss. 1991)). H owever, a n a c tion done without the requisite i ntent “does not m ake the actor liable to the other” f o r the apprehension caused, “although the act involves an unreasonable r isk of causing i t and, theref ore, w ould be negligent or reckless if

the risk threatened bodily harm .” Restatement (

Second) of Torts , §
21 (1965). “Intent is an e m o tional operation of the m i nd, and is usually shown by acts and
declarations of the def

e ndant coupled with f

a c ts and circum stances surrounding him at the
tim e. Def endant’s intention i s m anif ested largely by the things he does.” Mississippi State
Bd. of Nursing v. Wilson , 624 S o. 2d 485, 494 (Miss. 1993). W hile the question of intent generally is a question of f act reserve d f

or the jury , “it is well settled that intent m ay be
shown by circum stances.” Id

. Further, “ [ a ] battery goes one step bey o nd a n assault in that

9a harm f

ul contact actually o ccurs.” Greenwaldt, 7 86 So. 2d at 1043 ( citing Restatement ( Second) of Torts , § 18 (1965)). ¶17. Alternati v e l y , t o prevail on a claim of negligence, t he “plaintif f m ust establish by

a preponderance of

the evidence each of the elem ents of negligence: duty , breach, causation
and i njury .” M

iss. Dep’t of Mental Health v. Hall , 936 So. 2 d 9 17, 922 (Miss. 2006) (quoting Miss. Dep’t of Transp. v. Cargile , 847 So. 2d 2 58, 2 62 (Miss. 2003), overruled on othe r g rounds by Miss. T ransp. Com m ’n v. Montgom ery , 80 So. 3d 7 89 (Miss. 2012)). Further, t he plaintif

f m ust show “a causal connection betwe e n t h e breach and the [ injury ],
such that the breach is the p roxim ate cause of the [ injury ].” Double Quick v. Lym as , 50 So.
3d 292, 298 (Miss. 2010). The plaintif f m ust f irst prove the e x istence of a duty owed, then “[ t]he elem ents of breach and proxi ma t e c a use m ust be established

. . . with s u pporting
evidence. Duty a nd breach of d u ty , which both involve f

orseeability , are e ssential to f inding negligence and [ theref

o re,] m ust be dem onstrated f

irst.” Griffith v. Entergy Miss., Inc. , No.
203 So. 3d 579,585 (Miss. 2 0 16) (citations om i tted). G e n e r a l l y , if a person of ordinary intelligence would not have “anticipated t he dangers t hat his n egligent act created f or o t h e r s , ”
then the injury would not be c onsidered f o reseeable. Ogburn v

. City o f W iggins , 919 So. 2d 85, 9 2 ( M i s s
. Ct. App. 2005) (citations om itted). Moreover, “[ f ]oreseeability does not require that a person anticipate the precise m a n ner in which injury will oc c u r once he has created a dangerous situation through his negligence.” Id

. ¶18. These rules m ake clear that the pri n c i p a l dif f erence between an i ntentional tort and negligence is that “an intentional tort is an act of intentional b ehavior designed to b ring about

1 0the injury ,” 11 while a c laim f or negligence sim

p ly requires that the def

endant f ailed to act as

a reasonable person would under the sam e or sim i lar circum stances, thereby breaching the applicable standard of c are. Davis v. Christian Bhd. Hom es of Jackson, Miss., Inc ., 957 So.
2d 390, 4 04 (Miss. C t

. A p p
. 2 007). Here, McCullough c l aim s not that Varnado acted intentionally t o i njure him , but that both def endants breached their duty of r easonable care to pedestrians to operate a vehicle in a saf e m anner. In other words, when Varnado struck McCullough h e violated that duty and this breach r e s u l t e d i n injuries, p ain and suf f ering,

m edical expenses, incom e a n d w a ge loss, m ental distress, and consequential dam ages. McCullo u g h claim s the d ef endants owed the duty o f reasonable care at a l l t im es and their negligent breach of this duty was the f oreseeable proxim ate cause of all injuries. However,

t he only evidence of Varnado’s breach–outside of t he claim s registered i n the r e c o r d ’ s pleadings and m otions–is f o u nd in transcript excerpts of McCullough’s deposition testim ony and other lim ited discovery m aterials. ¶19. Looking t o the deposition t ranscripts, McCullough’s account o f t he e vent i m plies that
he perceived Varnado’s a ctions as intentional. S pecif ically , McCoullough s tated that, with
less than one f

oot between him self and the truck, he looked “straight into t he windshield” as “Mr. Varnado m ashed the gas
. . . . Period. Point blank.” McCullough stated t hat he then told
V a r n a d o t o “ g e t his A out of the truck,” at which point “[ Varnado] decided h e wanted to leave.” T he f

irst two t im e s Varnado hit McCull o u g h with his truck, Plaintif f stum bled
backward but approached the truck again af ter regaining his balance. McCullough testif ied

11 P ea ster v. D a vid N

ew D rillin g C

o . , 6 4 2 S o
. 2 d 3 4 4 , 3 4 9 ( M i s s. 1 9 9 4 ) (citin g M u llin s v. B ig la n e O

p era tin g C o ., 7 7 8 F .2 d 2 7 7 , 2 7 9 (5 th C i r.1 9 8 5 )).

1 1that “[ t]he third tim e he hit m e , he knocked m y ass of f

. . . . He m eant to hit m e. He m eant
to take m e down, period.” The attorney conduct i n g t h e deposition a sked if , at this point,
Varnado f

ailed to give him e nough tim e to get out of the way of the vehicle. McCullough responded, “[ t ]hat’s obvious

. . . . He did not give m e any t im e at a l l

. ” McCullough noted
that h e d id not m ove away f rom the path of the truck because h e “didn’t think [ Varnado] was stupid enough to run [ him ] down,” although he also did not “ t hink [ Varnado] ever intended to give [ him ] a chance to get out f rom in f ront of the vehicle.” ¶20. Alternatively , Varnado contends that, while there was a dispute between M cCullough
and him self on M a y 24, at no point did he hit the grower with his truck; m u ch less did he do

so intentionally

. He claim s that there was n either an int e n t ional act nor a negligent one, because the i n cident n e ver happened. W hile V arnado’s d eposition transcript was not presented to the trial court and is not properly bef ore this c o urt, attorney s f o r b o t h p a rties
described the provided testim ony to the trial judge at the hearing on the def endant’s m otion
f or sum m a ry judgm ent. There, counsel f or the plaintif

f discussed the content of Varnado’s
testim o ny , noting that “part of his deposition said, I never int e n d ed t o run o ver the m an.”
Def ense counsel also sum m arized this portion o f t he deposition, s tati n g t hat “he never intended to run over [ McCulloug h ]

. I n f act, he d enies that he ever did run over him

. His
testim o ny is com pletely the opposite of

what Mr. McCullough has testif i ed to with respect

t o t h e contact of his vehicle with Mr. McCullough.” The def ense a ttorney f

u rther n o t e d that,throughout Vanardo’s tes t i m o n y , “ t h e w h o l e p o i n t is t hat [ the incident] n ever happened.”
The trial court reviewed this sum m ary together with McCullough’s testim ony and ruled that,

1 2in l ight of Varnado’s account, a genuine issue of m ateria l f a c t existed as to whether his
actions that day

were intentional or whether the accident even occurred. This ruling seem s
to consider only the attorney s ’ sum m aries of Varnado’s testim ony and f ails to account f

or all
other testim ony presented. I n its order–which opted f or brevity over d etail–the court f ailed

to address the lack of evidence presented b y P lainti f f to support the claim t hat Def endants
acted negligently

. Rather, the cou r t f o c u s e d its ruling o n t estim o ny taken out of context, understanding only that Varnado did not intend to h it McCullough, but ignoring the f act that
intent was m entioned only to support the f act that he d enied the inci dent entirely

. W hen
viewed i n light of McCullough’s deposition an d h i s description of the e vents, Varnado’s
claim that he did not h it McCullough and (as a result) did not intend to hit him , does not rise
to the level of

the m aterial f

a ctual dispute needed to deny sum m ary judgm ent. ¶21. As the Suprem e Cour t o f t h e U n ited States has held (and this Court steadf astly has
f ollowed),
the plain language of [ Rule 56] m andates the entry of sum m ary judgm ent, af ter adequate tim e f

or disc o v ery and upon m otion, against a party who f a i ls to m ake a showing suf

f i cient to establish the existence of an elem e n t essential to that p arty ’s case, and on which that party w ill bear t he burden of proof at trial. In such a situation, there can be no genuine issue as to any m aterial f a ct, since a complete f

ailure of p roof concerning an e ssential element of the nonmoving party’s case necessarily renders all other facts immaterial

. The m oving p arty is “entitled to judgm ent as a m atter of law” because the nonm oving party h as f ailed to m ake a suf

f icient s h o wing o n an essential elem ent of her c a se with respect to which she has the burden of proof

. Galloway v. Travelers I

n s. Co. , 515 So. 2d 678, 683 (Miss. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S

. C t. 2 548, 2552, 91 L. Ed. 2 d 2 65 (1986) (em phasis added)). Here, the only “proof concerning an essential elem e nt of the non-m oving party ’s

1 3case,” was provided by M cCullough through his deposition t r a nscripts. T o prove his

allegation of

negligence has m erit, he cites the f o llowing dialogue: Q: And it i s y our t estim ony that Mr. V arnado did not give y ou enough tim e to get out of the way

of his vehicle?
A: That’s obvious. ¶22. McCullough as s e r t s t h a t t h i s t e s t i mo n y s h o w s t h a t Varnado’s act w as one of negligence, and not intent, as his f ailure to allow a person tim e to m ove f r om in f ront of his
vehicle bef

ore proceeding f

orward, thereby striking the i ndividual, can be perceived only as

a breach of his owed duty of care. W e f ind that this excerpt d oes not, in f ac t , s h o w negligen c e , b u t instead f urthers Sanderson’s claim that the act was i ntentional. W ithout

m ore, this testim ony m e rely addresses the f act that Varnado willingly a n d without h esitation
accelerated his truck f

o rward, doing nothing to advance Plaintif f ’s claim of negligence. ¶23. In its ruling, the trial court pr o posed that “the def endant, George Varnado, testif ied
that he e ither did not intent [ sic] t o strike the plaintif f with his vehicle or that he did not in
f act strike the p laintif

f with t his vehicle.” However, the court’s ruling–seemi n g l y based

com pletely on Varnado’s deposition excerpt–again m isinterprets the provided testim ony
. ¶24. W h ile the q

u estion of whether the i ncident o c c u r r ed rem ains in d ispute, it does not
af f e c t the question o f whether t he act–if it in f act occurred–sounds in n egligence or intentional tort. For our purposes, if Varnado did not hit McCullough, a s he asserts, then the
claim i s baseless a nd thus should be dism issed. Alternatively , if he did h it McCullough, he
did so intentionally , which, i n turn, bars Plaintif f ’s action. In either scenario, the case presents no genuine issue of m aterial f act f or review. A ccordingly , because the court’s ruling

1 4on this i ssue was based solely on a m isinterpretation of testim ony

provided, it was in error and m erits reversal. ¶25. The court’s application of Varnado’s testim ony is not the only basis f o r this Court’s reversal, however. I n addition to the deposition testim ony , t he record includes an item ization
of undisputed f

acts provided by b oth p laintif f and d e f e n d a n t s. Def

endants f iled their list
f irst, with Plaintif

f responding in t

urn, and both p arties agreed that (1) there was an incident

on May 24, 2010, ( 2 ) a f

t e r a verbal altercation regarding a def iciency report, (3) In which
Plaintif f was standing in f

ront of Def e ndant’s truck, (4) during which Plaintif f alleges that
Varnado struck h im three t im e s w i t h t h e vehicle. McCullough did not rebut any of
Def endant’s undisputed f

acts, nor did he seek t o am e n d the s tatem ents he m ade t hrough his deposition by which he described an intentional act by Varnado, indicating an assault under
Section 15-1-35. 12 ¶26. Previously , this Court has held that a plaintif f who testif

ies “in his own behalf as an
ey e-witness to a ll of the f acts and circu ms t a n c es im m ediately prior to, at t he tim e of and
f ollowing the [ incident] . . . is bound by h is own t estim ony
. ” S eedkem S., Inc. v. Lee

, 391
So. 2d 990, 994 (Miss. 1 980). “The general rule is that when a party testif ies to p ositive and
def inite f a cts which, if true, would def eat his right to re c o v e r or conclusively show his liability , and such statem ents are not subsequently m odif ied or explained b y him to show that
he was m istaken although testif y ing in good f

aith, he is conclu s i v e l y b o und by his own testim o n y , a n d c annot successf ully com plain if the court directs a verdict against him .”

12 M cC u llo u g h d o es d isp u te th e an aly sis o f d ep o s i t i o n testim o n y p ro v id ed b y th e d ef en se in its Item izatio n o f

U n d isp u ted F acts, th o u g h th is d iscrep an cy is n eg lig ib le. 1 5Bradshaw v. Stieffel , 230 Miss. 361, 367, 92 S o. 2 d 565, 567 (1957) (citations om itted). “To apply the rule the [ and preclude a party f rom testif y ing to c ertain f

ac t s d i r ectly within his knowledge , a n d then o f

f ering testim ony to contradict his own s tatem ents of f acts], the
f ollowing prerequisites m

ust appear in the record: (1) T h e party m

ust be in a position to testif y positiv e l y t o t h e f

a c t s s o testif ied; i.e., what he testif

i es to m ust be in his own plain view, or he [ m ust] be otherwise situated so th at there can be no m istake in his observation. (2) He m

ust testif y to f acts which if

true would def

eat recovery

. Bratschi v. Ray , 393 So. 2d 1 356, 1359–60 (Miss. 1981). Through his deposition testim ony , McCullough has m e t both prongs of the Bratschi test: f irst, Varnado was in the truck, in f ront

o f M cCullough, in plain view a nd within earshot of his pleas to exit the vehicle to talk. Second, he testif

ied m ultiple tim es, in various way s, that Varnado “m eant” to hit him with
his truck. This am ounts to def initiv e , u n c o n t e sted evidence that serves t o def eat his requested recovery

and bar his claim s under Section 15-1-49. ¶27. Finally , t he c om

plaint and M c C u l l o u g h ’ s r e s p o n s e s p r o v i d e n o i n d i cation of negligence other than bald assertions and a perversion of th e p r o vided testim ony
. Most notably , the com

plaint s tates t hat the negligence occur r e d through Varnado’s f ailure to operate his v ehicle in a saf e m anner, breaching his duty of reasonable c a r e t o p edestrians.
It f u rther shows that when he struck McCullough, Varnado caused phy sical i njuries and other consequential dam ages. W hile serving a s a “short plain statem ent,” these claim s f ailed to be supported by the t estim onial evidence and lim ited item s in discovery , a s discussed above.
W i t h o u t a lleging additional evidence of negligence, McCullough has f ailed to “m ake a

1 6showing suf f icient t o establish the existence of an elem ent essential t o the case.
. . ,” m aking
it ideal f or sum m ary judgm ent. Karpinsky v. Am . Nat’l Ins. Co. , 1 09 So. 3d 84, 8 9 (Miss. 2013) (quoting Buckel v. Chaney , 47 So. 3d 148, 153 (Miss. 2010)). ¶28. In his response to Def endant’s m otion f

or sum m a ry judg m e n t , M c C u l l o u gh elaborates

on his negligence theory by noting that “Varnado had a duty not to strike the Plaintif

f with
his v ehicle,” and because the “evidence clearly shows that Varnado struck the P laintif f with his vehicle [ and] [ t]he P laintif f ’ s testim ony
. . . sets f

orth that he was injured as a result [ of
the collision],” Plaintif

f is entitled to dam a ges. Not unlike ever y o t h er m otorist, Varnado
owed M cCullough a high duty of c are in operating his vehicle; however, by def inition, “there
is n o such thing as a negligent assault.” W ebb v. Jackson , 5 83 So. 2 d 946, 951 ( Miss. 1991) (citations om itted). T heref ore, even if he breached his d uty t o operate the truck saf ely , in acting with intent to cause McCullough either a p p r e h ension or harm , Varnado com m itted civil assault–and subsequently battery –which cannot be considered negligence. ¶29. According to McCullough, there is no q u e s t i o n t h a t Varnado was (or s hould have been) aware that m oving h is vehicle f orward would resul t i n a n i n jury

. Af ter requesting
Varnado to exit the vehicle, M cCullough p ositio n e d h i mself in f ront of the t ruck, on the
driver’s side , d irectly in line with the steering wheel. V arnado claim s that, at this point, McCullough began to curse and p ound on the hood of the truck, while McCullough asserts that he stood at t he f

ront o f t he truck and shouted to Varnado to “get out and talk.” Varnado acknowledged that McCullough was in f ront o f the truck, within an arm ’s length of the hood. McCullough acknowledged that Varnado saw him

. B o t h accounts indicate that one thing

1 7was certain: McCullough was situated in a position in f ront of the vehi c l e , s u c h that if
Varnado m oved f

orward, h e did so knowing that M cCullough undoubtedly would be in the
truck’s im m ediate p a th. W hile M cCullough claim s that a c celerating t he vehicle f orward
without allowing him to m ove indicates negligence o n Varnado’s p art, doing s o three times
and m a king contact w ith M c Cullo ugh each t im e dem onstrates som ething m ore than m ere negligence, rising t o the level of an intentional act. Because McCullough f ailed to of

f er proof t o support the essential elem ents of negligence in this case, he a ccordin g l y f a i l e d to

m ake a suf

f icient showing to survive sum m ary judgm ent. See C

eletox , 477 U.S. 317, 322-
323.
CONCLUSION ¶30. It is well-settled in this state that claim s f or intentional torts of assault and battery f all
under t he restrictions of Mississippi Code Section 15-1-35. Moreover, just as this C ourt does

not recognize claim s of “negligent assault,” it a c cordingly does not r ecognize claim s f or intentional torts veiled in a cloak of negligence. Jordan , 5 So. 3 d 442, 447. McCullough’s

c l a i m s , t h o u g h caref

ully presented through the e lem ents o f duty , breach, causation, and inj u r y do not conf

orm to the State’s prima facie requirem ents f or negligence. Rather, t he evidence presented through the testim ony provided indicates an “intentional behavior designed to bring about the injur y
. ” Peaster v. David New Drilling Co. , 642 S o. 2d 344, 349 (Miss. 1994) (citations om itted). Because there are no triable issues of m aterial f

act in the record
f or the case a t hand, and McCullough’s claim s are barred by the applicable statute of

1 8lim itations, w e r e v e r se the t rial court’s d ecision to deny sum m ary j udgm ent, granting

Sanderson’s m otion and rendering the case dism i ssed. ¶31. REVERSED AND RENDERED.
W A LLER, C.J., DICKINSON, P.J., K ITCHENS, KING, COLEMAN AND MAX W ELL, J J . , CONCUR. C HAMBERLIN, J., CONCURS IN RESULT ONLY WITHOUT S E PARATE WRITTEN OPINION. RANDOLPH, P.J., NOT PARTICIPATING.

1 9