IN THE SUPREME COURT OF MISSISSIPPI N O. 2016-CT-00215-SCT CONNIE HAWKINS, INDIV IDUALLY

AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF GEORGE LEITH HAWKINS, III, DECEASED

v. HECK Y EA QUARTER HORSES, LLC, WALLACE HECK d/b/a HECK Y

EA QUARTER HORSES, LLC AND BRUCE HORN

DATE OF JUDGMENT: 01/13/2016 TRIAL JUDGE: HON. JEFF W EILL, SR. TRIAL COURT ATTORNEYS: KEITH D. OBERT JOHN HUNTER STEVENS ROBERT P. THOMPSON PAUL PACIFIC BLAKE COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JOHN HUNTER STEVENS ATTORNEYS FOR APPELLEES: PAUL PACIFIC BLAKE ROBERT P. THOMPSON NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: AFFIRMED - 08/02/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC

. BEAM, JUSTICE, FOR THE COURT: ¶1. On June 19, 2 013, George “Leith” Hawkins (Hawkins ) , s u f f e r e d a s t r oke while working at Heck Y ea Quarter Horses, LLC (Heck Yea); h e died d ay s later. Connie Hawkins (Connie), George Hawkins ’ s w i d o w , sued H eck Yea and other def endants f or wrongf

ul death. The Circuit Court of the First Judicial District of Hinds County granted s u m m aryjudgm ent and the Mississippi C ourt of Appeals a f f irm ed. Ha w k i n s v

. Heck Y ea Quarter Horses, LLC

, 2016 W L 9402885 (Miss. Ct. A p p . J a n . 13, 2016). W e granted Connie’s petition f or a writ of c ertiorari to address whether the trial court and the Mississippi Court

o f A p p e a l s e r r ed in f

ailing to take into account af f idavits w hich c reate genuine issues of

m aterial f

act with regard to the care H awkins received at Heck Yea. Because we f ind

sum m ary judgm ent to have b een p roper, and the Mississippi Court o f A ppeals’ analy sis on the m atter to have been correct, we af f irm the judgm ent of t he Circuit Court of t h e First Judicial District of

Hinds County

and the ruling by t he Court of the Appeals. FACTS AND PROCEDURAL HISTORY ¶2. On June 19, 2013, Bruce Horn

– t h e ma n a g e r o f H e ck Yea Quarter Horses–hired Hawkins to wash a wooden f ence. Af ter lunch, Hawkins c om

plained of f

e eling ill. H o rn stated i n h is deposition that he of f ered to call an am

b ulance, but Hawkins declined. Horn said he then transported Hawkins to a barn on the property in the bucket of a tractor’s f ront-end loader a n d “[ s]at him down in the shade in the rocking chair on . . . the porch of the barn, and got h im a cold drink.” Horn stated that he then asked H awkins a secon d tim e w hether he wanted an am

bulan c e , b u t that Hawkins again ref used. A ccording to Horn, Hawkins also declined his of

f er to drive him

hom e, recounting that Hawkins said “he was f eeling better; he’d be f ine.” ¶3. Horn testif

ied in his deposition that H awkins l ef t Heck Yea between 3:00 p.m . and 3:3 0 p . m. However, in a signed af f idavit, W illiam “Kevin” Thom pson (a f

riend of Hawkins’s) said that “som etim e near the end o f the lunch hour” on June 19, 2013, he “was

2traveling north o n Interstate 55 near the Hinds/Copiah county line” and recognized Hawkins

and his veh i cle p roceeding “in the southbound lane a t approxim ately 10 m ph.” According

to Thom pson, “[ t]raf

f ic was backed up all around him a n d I thought at the tim e s om eone was going t o g et hurt.” Although he d id nothing to notif y p olice or Connie H awkins, or o therwise

attem pt to assist his f

riend, Thom

pson’ s af f i davit expressed that he “knew s om ething was terribly wrong with [ H awkins].” ¶4. Connie Hawkins stated in her deposition that she arrived hom e som e tim e be t w e e n 4:30 p.m . and 4:50 p.m . a nd f ound Hawkins’s soaking-wet clothes on the kitchen f loor. She then f ound Hawkins i n the bed w ith t he covers pulled o ver his head. Hawkins told his wif e that he had passed o ut at H eck Yea. Connie stated that she asked why nobody had c alled her, but “never got an answer to that.” Hawkins asked his wif e t o rub the back of his neck, which she did. Hawkins then requested a Ty lenol, f o r which his wif

e went to h is truck; when she returned, H awkins had “gotten to the couch” and w as “shaking and t rem bling and couldn’t
say any thing.” According t o Connie, Hawkins then “f e l l of f the couch, and f

rom t hen on he

never said another word and he was just shaking; all over his body was shaking a n d jerking.” ¶5. Connie reported her husband’s distress to E m e r gency Medical Services at 6:44 p.m

. Hawkins died in the hospital on June 28, 2013, f r om a stroke. ¶6. Connie sued Heck Yea, W allace Heck, Bruce Horn (Heck Yea Def e n dants) and f

ive John Does f

or wrongf ul death. She alleged that Hawkins had been lef t alone “to tend to the f ence, at which tim e he, due to the extrem e h eat, passed out in the f i eld.” She continued that Hawkins’s coworkers “loaded his body into the f r ont b ucket of a tractor and drove him back

3to the barn, where they attem pted to wake h im b y hosing him d own with a gar den hose.” According to the com

plaint, Hawkins regained c o n sciousness “but was i ncoherent and unsteady .” A ccording to the com p laint, Heck Yea e m

ploy ee s t o ld Hawkins “to get in his vehicle and drive hom e,” which he did. ¶7. In her deposition, Connie adm itted to r eceiving the inf orm ation about what happened

to her husband at Heck Yea f rom D anny Martin, who “is a f arm er and he cuts and bales hay f or dif f ere n t p e ople.” M artin had n ot witnessed t he events o f the June 19, 2013. According to Connie, “Bruce Horn and his crew” had told Martin about Hawkins’s incident. ¶8. Heck Yea m ove d f o r s u mma r y j u d g me n t , a r g u i n g t h at Connie’s allegations were “based entirely on inadm i ssible h earsay and were unsupported by any adm issible evidence.” Heck Yea argued that Horn’s deposition testim ony proved it had not been negligent. ¶9. C o n n i e H a w k i n s r e s p o n d e d that Horn’s deposition testim ony had been ref uted by adm i ssible evidence in the f orm o f an af

f i davit f rom Brad Goodm an. Goodm an stated in the f ollowing in an af

f idavit:
I had previously done tree service work f or He c k Y ea . . . . I was aware t hat G e o r g e Hawkins was doing som e work f or B ruce Horn and Heck Y ea a n d became a w a r e t hat George Hawkins had been adm itted t o the hospital on or about June 19, 2013, and was in serious condition.
W ithin a d ay of this occurrence, I called Bruce Horn and told h im that George Hawkins was in the hospi t a l in bad shape and f urther asked him what had happened. Bruce Horn responded, “ i nitially , I thought he was going to d ie out there.” H e f

u r ther stated, “I guess ‘Leith’ got t oo hot and passed out. W e gave him som e water and assistance, but I s ure thought he was going to leave here today .”
I have personal knowledge of this conversation and know that this was Bruce Horn, as he identif

ied him self o n t he telephone and I have h is n u mb e r i n m y

4telephone and recognized his voi c e . O n a t least two occasions, Bruce Horn

stated that he knew “ L e i t h ” w as i n a serious m edical state and h e t hought he was going to die. He n e v er m ade a ny m e ntion o f contacting or calling f or m e dic a l a s s istance, 911, or even calling G eorge Hawkins’[ s] wif e, C onnie Hawkins, about what h ad occurred on June 19, 2013, while George Leith Hawkins, III, was doing work f or Heck Yea and Bruce Horn. Connie argued that “[ t ]his adm issible evidence, adm ission aga i n s t interest, f rom Mr. Goodm an creates a f

a ctual dispute, m a king sum m ary judgm e nt i m proper.” See Miss. R. Evid. 801(d)(2). In response, Horn denied ever having spoken to Goodm a n, say i ng h e had “never heard of him .” ¶10. Connie also of

f ered a n a f f idavit f rom Dr. Tif

f any Scarf f , a neurologist, in response to Heck Yea’s m otion f

or sum m ary judgm ent

. I n D r . Scarf f ’s o pinion, H eck Yea h ad acted unreasonably by f

ailing t o obtain im m ediate m edical care i n r e s p o n s e t o H a w k i n s’s sy

m ptom s. Dr. Scarf f provided that, “ had Mr. Hawkins obtained a d equate m edical treatm ent wi t h i n at least 4.5 h ours bef

ore he exhibited signs of signif icant m edical distress a t Heck Yea Farm , I believe he woul d h a v e h a d a reasonable or m uch higher chance of survival with l ess injury f rom the stroke.” S he concluded that “the f ailure of Mr. Horn t o give appropriate aid was a contributing and causative f actor in the death of George Hawkins.” ¶11. The Circuit Court o f the First Ju d i c i a l D i s t r i ct of Hinds County g ranted sum m ary judgm ent, f

inding the g ood-sam aritan statute, Mississippi Code Section 73-25-37(1), 1 to have

1 M i ssissip p i C o d e S ectio n 7 3 -2 5 -3 7 (1 ) states:
N o d u l y licen sed , p racticin g p h y sician . . . o r an y o th er p erso n w h o , in g o o d f aith an d in th e ex e rcise o f reaso n ab l e c a r e , r en d ers e m erg en cy care t o an y in j u red p erso n a t t h e s c e n e o f an em erg en c y , o r in tran sp o rtin g th e in j u red p erso n t o a p o in t w h ere m e d ical assistan ce can b e reaso n ab l y ex p ected , sh all b e liab le f

o r an y c i v i l d a m ag es to th e in j u r ed p erso n as a resu l t o f an y acts 5been d ispositive. The court held that “no adm issible evidence has b een presented t o create

a g enuine issue of m aterial f a ct concerning the e x ercise of reasonable care (or alleged lack thereof ) o f f ered by Def

endants to the decedent when he f ell ill” a n d that the only “ adm issible evidence consistently

provides that the decedent ref used” the of

f er of an am

b ulance. ¶12. The Mississippi Court of Ap p e a l s a f f i r med. Hawkins , 2016 W L 9402885, at *2. It agreed with the circui t c ourt that Martin’s statem e n ts, to w hich Connie ref erred in her deposition, “constituted inadm issible dou b l e h e a r s a y , s i n c e H a

w k i n s m e r e l y r e p e a t e d Martin’s recollection of Horn’s statem ents.” Id. at * 3. Connie did not depose or subpoena Martin to substantiate her c laim s. Id. T he appe a l s c o u r t h eld that the “good-sam aritan statute is not dispositive where th e p r i n c i p l es of negligence m ay a lso apply

. ” Id. a t *2 (citing Ladner v. Hollem an , 90 So. 3d 655, 658 (Miss. Ct. App. 2012)). However, it held that Connie did not

s u p p o r t h e r claim b ecause she “f ailed to establish that Heck Yea’s negligence was the proxim ate cause of George’s death

. . . .” Hawkins , 2016 W L 9402885, at *3. “[ E]ven under the general principles of negligence,” a ccording to the Court of Appeals, “Heck Yea did not breach its duty

to George [ Hawkins].” Id. ¶13. C o n n i e p e titioned this Court f or a writ of certioriari, arguing that the trial court and the Court of Appeals overlooked Goodm an’s af f idavit. S he claim s that Goodm an’s af f idavit, along with Dr. S carf

f ’s af f idavit, created a genuine issue of m aterial f act with regard to Heck

co m m itted i n g o o d f

aith an d in th e e x e rcise o f reaso n ab l e ca r e o r o m issio n s in g o o d f

a ith an d in th e ex erci s e o f reaso n ab l e care b y su ch p erso n s in ren d erin g th e em erg en c y

care to th e in

j u r ed p erso n . M iss. C o d e A n n . § 7 3 -2 5 -3 7 (1 ) (R ev . 2 0 1 7 ). 6Yea’s c a r e o f Hawkins f ollowing his s troke. W ith this evidence, Connie asserts that a jury question exists as t o the standard of care the def endants provided. Af

ter due consideration, we granted her petition to address this sole issue. STANDARD OF REVIEW ¶14. “W hen reviewing a trial court’s grant or d enial of m otion f or sum m ary

judgm ent, this

court applies a de novo standard of review.” Whitaker v. L im eco Corp. , 32 S o. 3d 429, 433- 34 (Miss. 2010). ¶15. “The evidence m

ust be viewed i n the light m ost f avorable to the party

against whom the m otion has b e en m ade. If , in this view, there i s no genuine issue o f m aterial f act and, the

m o ving party is entitled to judgm ent as a m a tter o f law, sum m ary judgm ent should f orthwith be entered i n his f

avor. Otherwise, the m o tion should be denied.” Leslie v. C ity of Biloxi , 758 So. 2d 430, 431-32 (Miss. 2000) (quotations om itted). ANALYSIS ¶16. Connie requested this Court grant certiorari to r everse the Court of Appeals’ decision, which she claim s is i n direct conf lict with Mississippi law and the overwhelm ing weight of the evidence. W e granted her petition and agreed t o exam ine whether the trial court f ailed to consider the Goodm an af f idavit, and whether the a f f idavit revealed issues of m aterial f act which should have prevented the trial court f r om g ranting sum m ary judgme n t

. Af ter a thorough review, we f

i nd that the Court of Appeals and the trial court p roperly concluded that the af f idavit does n othing to s upport an i nf erence of negligence, m aking sum m ary j udgm ent on the m a tter appropriate. Theref ore, we af f irm the decisions of

both courts.

7Whether the trial court erred in its failure to consider iss u es o f fact

presented by the plaintiff’s a f f i davits, m aking sum m a ry judgm e nt im proper. ¶17. Connie f

ocuses her petition on the trial court’s and the Court of Appeals’ f ailure to rely
upon the sworn af

f idavit of Brad Goodm an in their rulings. She claim s tha t G o o d ma n ’ s testim ony i ncludes statem ents adm issible at trial t ha t create a f a ctual dispute as t o whether
Bruce Horn provided Hawkins reasonable care at the Heck Y e a ranch. N oting that Horn’s deposition supported the argum ent that the def endants did not breach a d uty on general negligen c e p rinciples, Connie claim s that the Goodm an af f idavit i ndicates that Horn was

aware of t he sev e r i t y o f H a w k i ns’s injuries and the likelihood t hat he was not capable of ref using treatm ent. A s a r esult, the af f idavit serves to c o ntradict Horn’s t estim ony , creating a genuine dispute to be evaluated by the f a c tf inder. ¶18. T h e d e f

e n d a n t s d i s a gree. W ithout addressing the applicability of the Goo d ma n af f idavit, the def

e ndants argue that the Court of Appeals correctly f o und that Connie f

ailed

t o e stablish the two essential elem ents of her negligence claim : b reach of a duty o wed an d proxim ate cause of the i njury endured. W ithout these e lem ents, Connie’s claim could not survive sum m ary

judgm ent. ¶19. The trial court and the Court of Appeals reviewed this issue in their respective rulings, f inding that Connie f

ailed to carry her burden to prove that t h e d e f e n d a nts w ere negligent.
T h e trial c o urt explained that, through M ississippi C ode Section 73-25-37, the def en d a n t s acted reasonably in r endering em ergency care to H awkins and could not b e h eld liable f or the f atal result of his i njuries. Noting that Connie waited t o r equest m edical s upport until two

8hours af

t er she arrived hom e, the trial court d e t erm ined t hat Horn’s decision to accept Hawkins’s ref

usal of an am bulance or m edical assistance was not unreasonable and did not create an issue of

f act suf f icient to survive sum m ary judgm ent. ¶20. On appeal, the C ourt of Appeals agreed, holding that the def endants f ulf illed their duty by rendering f

irst aid to Hawkins, and that such a duty ended when Hawkins lef t the ranch and C o n n i e assum ed care f

or her husband. Hawkins , 2 016 W L 9 402885, at *3 (Miss. Jan

. 1 3 , 2016). Citing E

state of White ex rel. White v . R ainbow Casino-V

i cksburg P

a rtnership , the

court recognized that the def endants had a duty to render reasonable care, though “that duty abates when a com

petent patron ref

uses m edical aid, and surrenders [ his] c a r e t o [ his] own discretion and to the judgm ent of [ h i s] spouse.” Id. ( citing E state o f White ex rel. White v. R a inbow Casino-V

icksburg P’ship , 910 S o . 2d 713, 719 (Miss. Ct. App. 2005)). W ith no

a dm i ssible evidence indicating that Hawkins was incom petent or incoherent, the C o u r t o f Appeals determ ined that the def endants acted reasonably in providing Hawkins aid and then allowing him to drive hom e. Apply ing the general principles of negligence, the court held that “Heck Yea did not breach its duty to George.” Id. ¶21. On certiorari , Connie s e e k s t o e s tablish that the def endant’s negligence–through a breach of the def

e ndant’s duty of care–was the proxim ate cause of Haw kins’s death. Applied to the f

acts at i ssue, C onnie m

ust show that the def

endant’s choice t o accept Hawkins’s ref

usals o f an a m

b ulance were both unreasonable and resulted in Hawkins’s f atal injuries. See Ladner v. Hollem an , 90 So. 3d 655 (Miss. Ct. App. 2012) (holding that when

9a lay

m an renders aid to an injured person, that lay m an has a duty to render the aid by using reasonable care.) ¶22. To c arry this b u r d e n a t t h e t r i a l court and at the Court of Appeals, Connie used the testim ony of several witnesses who were not at the scene of Hawkins’s injury and were not present to observe the care rendered by Horn. Here, Connie again presents the af f idavits of
Bra d G o o d ma n and Dr. Tif f any Scarf f as i m peachm ent testim ony and expert testim ony , respectively

. Connie claim s that, when read together in light of Horn’s d e p o s i t ion, the af f idavits show that there is a g enuine issue of m a ter i a l f act as to the degree of distress Hawkins w as in when the def e ndants rendered care. W hile Horn described Hawkins as “f ine

. . . f eeling better,” Connie claim s his deposition testim o ny is c ontradicted by Goodm an’s

account o f a conversation in which Horn l ater adm itted Hawkins “was in a serious m edical

state and he thought he was g oing to die.” F urther, Connie presents Dr. Scarf f ’s af f idavit to
prove that such a n adm ission against interest raises questions about the adequacy of the care rendered and Hawkins’s com petence to ref

use such care. ¶23. W e disagree. W hen a property owner voluntarily renders care to an injured party on his prem ises, he owes her a duty of reasonable care in that treatm ent. L adner , 9 0 So. 3 d at 660. Reasonableness is a que s t i o n o f f a c t, and a lthough t he reasonableness of the aid rendered generally is a question f or the j ury , th e t r i a l court properly granted sum m ary judgm ent. Apply ing the good sam aritan s tatute, t he trial c ourt f o und that H orn’s of

f ers of

m e dical assistance and his acceptance of Hawkins’s ref u sal o f those of

f ers f ulf illed any duties owed to the decedent. L ikewise, the Court of Appeals properly d eter mi n e d that the

1 0def

e ndants’ d

uty to render care abated when Hawkins coherentl y r e f u sed the m edical aid of f ered and surrendered his care to his spouse and him self

. Hawkins , 2016 W L 9402885, at *3 (Miss. Jan. 1 3, 2016) (citing Estate o f W hite ex rel. White , 910 So. 2 d 713, 719 (Miss. Ct. App. 2005)). ¶24. Using the af

f idavits f or s upport, Connie argues that H orn w as aware t hat Hawkins was
not c apable of ref

using treatm ent, and theref ore it was unreasonable f

or him to send Hawkins hom e w ithout m edical assistance. Citing Dr. Scarf f ’s af f idavit, Connie claim s t hat had Horn instead called an a m

bulance, Hawkins’s injuries w ould have b een reduced, and he likely would have survived. But any uncertainty

regarding Hawkins’s capacity to ref use of f ers of reasonabl e care does n ot render sum m ary judgm ent inappropriate; this is n ot evidence that
Horn f ailed to exercise r easonable care in rendering aid. Horn treated Hawkins by ushering him into the shade, providing him a seat, water, and an opportunity to rest. He twice of f ered hi m m e d i c al transport, and a third tim e of f ered him an alternative m eans t o get hom e. Hawkins r ef

used, s aid he was f

ine, and opted to drive him self h om e. Notably , Connie waited

two hours af

ter arriving hom e and t ending Hawkins bef ore she determ ined an am

b ulance was necessary . Both the Court of Appeals and the trial court f ound this problem atic. W e f ind that, considering the totality of the circum stances, including Connie’s lack of urgency as it related

to Hawkins ’ s condition, the d ef endants did not unreasonably provide treatm ent and did not breach any duty owed to Hawkins. As a result, Connie f ailed to provide this c rucial elem ent of negligence, and theref

ore, we need not discuss causation.

CONCLUSION

1 1¶25. Connie Hawkins has f ailed to establish that the def endants’ actions in rendering aid to her husband were both n egligent and unreasona b l e , a n d t hat such negligence was the
p r o x im ate cause of his f

atal injuries. As a result, we af f irm the decision of the Mi s s i s s i p p i Court of Appeals as well as the judgm ent of the Circuit Court of the First Judicial District of Hinds County

. ¶26. AFFIRMED. RAND O L PH, P .J., C OLEMAN, MAX WELL AND CHAMBERLIN, JJ., CONCUR. KITCHENS, P.J., DISSENTS W I T H S E P ARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND KING, J. ISHEE, J., NOT PARTICIPATING. KITCHENS, PRESIDING JUSTICE, DISSENTING: ¶27. The Circuit C ourt of the First Judicial Dist r i c t o f H i n ds County a nd the Mississippi Court of Appeals erred in f a iling to take into a c count af f idavits which create genuine issues of m a terial f

act with regard to the care George “Leith” Hawkins received at Heck Yea Quarter Horses, LLC, in the af

term a th of his stroke. Accordingly , sum m ary j udgm ent was im proper. Because I would reve r s e t h e j u d gm ent of the circuit court as well as the judgm ent of the appeals court and rem and the case to the circuit court f or f urther proceedings, I respectf ully dissent. ¶28. As t he m ajority recognizes, “[ t]he evidence m ust be viewed in the light m ost f avorable

to the party against whom the m otion has b een m ade.” Leslie v. City o f B i l oxi , 758 So. 2d 430, 4 31-32 (Miss. 2000) (qu o t i n g M i ss. Dep’t o

f Wildlife, Fisheries, & P arks v. Miss. Wildlife Enf’t Officers’ Ass’n, Inc. , 740 So. 2d 925, 930 (Miss. 1999)). ¶29. Rule 56 of

the Mississippi Rules of

Civil Procedure, in relevant part, provides:

1 2The judgm ent sought s hall b e rendered f orthwith if the p leadings, d epositions, answers to i nterrogatories and adm issions on f ile, together with t he af

f idavits, if any , s how that there is no genuine issue a s to any m ateria l f a c t and t hat the m o ving party

is entitled to a judgm ent as a m atter of law. M.R.C.P. 56(c). R u l e 801(d)(2)(A) of the Mississippi R ules of Evidence states, in relevant part: “ [ a ] statem ent

. . . is n ot hearsay

. . .” if “[ t]he s tatem ent i s of f ered against an opposing party and

. . . was m ade b y the party in a n individual or representative capacity

. . . .” Miss. R. Evid. 801(d)(2)(A). 2 ¶30. Both the circ u i t c o u r t a n d t he Court of Appeals f ound that no adm i ssible evidence created a genuine issue of m aterial f act concerning the care given Hawkins at Heck Yea. But Goodm an’s af

f idavit contains s tatem ents allegedly m ade by Horn to Goodm an, which were of f ered by Connie H a w k i n s i n response to the opposing party ’s m otion f or sum m ary judgm ent. Horn’s statem ent is n ot hearsay under Mississippi Rule of Evidence 801(d)(2)(A). ¶31. Horn claim ed in his own deposition to have sat Hawkins down in the shade, brought him a c old drink, and of

f ered to call an am

bulance. According to Horn, Hawkins ref used the

2 T h e A d v i so ry C o m m ittee N o t es to M ississip p i R u le o f E v id en ce 8 0 1 (d )(2 ) ex p l ain th at t h e term “ad m i ssio n s ag ain st in terest,” as ref eren ced in C o n n ie H aw k i n s’s p ap ers, h as b een rem o v ed f

ro m th e cu rren t v e rsio n o f

th e ru le: S tatem en ts f

a llin g u n d e r th e h earsay ex clu sio n p ro v id ed b y R u le 8 0 1 (d )(2 ) are n o lo n g er ref

erred to as “ad m issio n s ” in th e title t o th e s u b d iv isio n . T h e term “ad m issio n s” i s co n f

u sin g b ecau se n o t all statem e n ts co v e r ed b y th e ex clu s io n are ad m issio n s in th e co llo q u ial sen s e— a statem en t can b e w ith in th e ex clu sio n ev en if it “ad m itted ” n o th in g an d w as n o t ag ain st t h e p arty ’s in terest w h en m ad e. T h e t erm “ad m issio n s” also raises co n f u s io n in co m

p a r iso n w ith th e R u le 8 0 4 (b )(3 ) ex cep tio n f o r d eclaratio n s ag ain s t in terest. N o ch an g e in ap p licatio n o f th e ex clu sio n is in ten d ed

. M iss. R

. E v id . 8 0 1 (d )(2 ) cm t. 1 3latter. Goodm an’s account is consistent in that H o r n t o ld h im t hat h e had g iven Hawkins

“water and assistance.” But Goodm an, whom Horn claim ed not to know, also related in his af f idavit that Horn had told him that Hawkins “was in a serious m edical state,” that Hawkins had “pa s s e d o u t ” a nd that he “ ‘thought he was g oing to die out there.’” According to Goodm an, Horn c ontinued that he “‘sure thought [ Hawkins] was going t o l eave here today .’

. . . On a t least two o ccasions, Bruce Horn s tated that he k new ‘ Leith’ was i n a serious m edical state and he thought he was going to die.” ¶32. In addition to H orn’s statem ents to Goodm an, Connie Ha w k i n s r e s ponded to Heck Yea’s m o tion f

o r sum m ary judgm ent with an af f idavit f rom Dr. Tif

f any Scarf f , in which she opined that, “had Mr. H awkins obtained adequate m edical treatm ent w ithin at least 4.5 hours bef o re he exhibited signs of signif icant m edical d istress at Heck Yea F arm , I believe he would have had a reasonable or m uch h i g h e r c h a n c e of survival with less i njury f rom the stroke.” Connie H awkins also presented the af f idavit f rom her deceased h u s b a n d ’ s f riend, W illiam “Kevin” Thom

pson, who stated that, “som etim e near the end of t he lunch h our” on June 19, 2013, he (Thom

pson) had been “traveling north on Interstate 55 near the Hinds/Copiah [C ] o u n t y l i n e . ” T hom

pson recognized Hawkins and h is vehicle p roceeding “in the s o u t h b o u n d lane at a pproxim ately 10 m

p h.” According to T hom

pson, “[ t]raf

f ic was backed up all around [ Hawkins] and I thought at t h e t i m e som eone was going to get hurt.” T hom pson “knew

som e t hing was terribly

wrong with [ Hawkins].” ¶33. Horn’s s t a t e m e nt s t o G o o dm an, Dr. Scarf f ’s af f i davit, and Thom

pson’s af f i davit create genuine issues of m aterial f act, s pecif ically with regard to Hawkins’s ability to ref use m edical

1 4care on J une 19, 2 013. The Mississippi Court o f Appeals has h eld t hat a casino was not liable

to the estate of a p a t r o n w ho, a f t er having f

ainted and struck h er head at the casino, died at hom e later that evening “as a result of aspirating o n her own vom it.” Estate of White ex rel. White v R ainbow Casino-V icksburg P’ship, L.P. , 9 10 S o. 2d 713, 719, 714 (Miss Ct. App. 2005). T he court observed that casino staf f had provided f

irst aid s e rvices and that the patron had ref used their of

f er to sum m on an am

bulance. Id. at 719. ¶34. In a case in which a patron of a V.F.W

. post was a ssaulted and injured on the prem ises and V .F.W

. o f

f icials ref used to help because they c laim e d to have been “‘too t ied up’” at the tim e, this Court obs e r v e d t h at prem ises owners have an af f irm ative d

uty to aid an injured patron once the prem ises owners learn that the p atron w as injured on the prem ises. Grisham v. John Q. Long V

FW Post, No. 4057, Inc. , 519 S o. 2d 413, 417 (Miss. 1988) (“W e are of the opinion that the V.F.W

. of f icials had a n af

f irm ative duty to aid Mabeline o n c e t h ey learned she had been injured on V.F.W

. prem ises.”). Ultim ately , the Court af f irm ed the grant of sum m ary judgm e n t i n f a v o r o f the V.F.W

. because, while the patron claim ed “that the
V.F.W

. should have provided better lighting , h ired security guards, and m aintained a less violent atm osphere, [ the patron] ha[ d] m a d e a bsolutely n o showing that a ny of these

om issions was the proxim ate cause of the attack.” Id. ¶35. In White , a com

petent patron r ef

used m edical care. White , 910 So. 2 d a t 7 15. And in G r i s h a m , t h is Court observed that the V.F.W

. of f i cials h ad a n af

f irm ative duty to provid e assistance to the patron a ssaulted and injured o n their p rem i ses. G risham , 519 So. 2 d at 417. Here, af f idavits f rom Goodm an and Dr. Scarf f present genuine issue s o f m a terial f act with

1 5regar d to the adequacy of the care Horn purportedly provided Hawkins and whether, if

Hawkins did ref

u se m edical care, he was capable of doing so. ¶36. The m ajority f

inds n othing in the record to a c reate a genuine issue o f m ater i a l f act with r egard to Hawkins’s ability to ref use m e dical c are. Yet Dr. Scarf f said in h e r a f

f idavit that Hawkins would have h ad a s ignif icantly higher ch a n c e o f surviving had he received

m e dical care within 4 .5 hours of suf f ering the heat stroke. And Goodm an stated that Horn had told him that he (Horn) knew that Hawkins was in a serious m edical state:
I c alled Bru c e H o r n and t old him t hat George H awkins w as in the hospital in bad shape and f

urther asked h i m w h at had happened. B ruce H orn responded, “initially , I thought he was going to die out there.” He f urther stated, “I guess ‘Leith’ got too hot and passed out. W e gave him som e water and assistance, but I sure thought he was going to leave here today .” Goodm an’s s tatem e nt about what Horn had told him conf licted with Horn’s deposition testim ony that Hawkins had not passed out. Horn had provided deposition testim ony that, had Hawkins passed out, he would have called an am bulance. ¶37. Moreover, the existence o f g e n u i n e i s s u e s of m aterial f act is even m ore apparent in ligh t o f T h om

pson’s af f i davit. Thom

p son, a f riend of Hawkins’s, said that he observed Hawkins d

r iving in a n apparent s tate of distress at ten m iles-per-hour on Interstate 55 on June 19, 2013, the day of H awkins’s heat stroke. Thom pson said also that “[ t]raf

f ic was backed up all around [ Hawkins’s vehicle] and I thought at the tim e som eone was goin g to get hurt.” Thom pson “knew som ething was t erribly wrong w ith [ H awkins].” Thom pson’s observations dif f e red f rom Horn’s deposition testim o ny , which em phasized Hawkins’s purported lucidity

. Furtherm ore, Thom

pson said that h e had observed Hawkins on I nterstate 5 5 “ som etim e near

1 6the end o f the lunch hour,” a signif icant departure f

rom Horn’s deposition testi mony that Hawkins had lef

t Heck Yea between 3:00 p.m . and 3:30 p.m . on June 19, 2013. ¶38. The m ajority , a s did the circuit court and the appeals c o u r t , i g n o r e s t h e c o n t rary testim ony and, instead, a ccepts Horn’s statem ents as true and lauds the treatm e nt Horn claim s
to have provided Hawkins: “Horn treated H awkins by ushering him i nto shade, providing h im

a seat, water, and an opportunity to rest. He twice of f ered him m edical t ransport, and a third tim e of f ered him an alternative m eans to g e t h o m e. Hawkins ref u sed, s aid he was f

ine, and opted to d rive h im s elf hom e.” Maj. Op. ¶ 24. I d o not f ault Horn f

or having provided “water and assistance” to Hawkins, and, if his version of event s i s worthy of belief , f or of f ering Hawkins an am

b ulance or a m eans of transpor t a t i o n hom e. But the veracity of Horn’s

statem ent i s lessened signif icantly by Ho r n ’ s own deposition testim ony that, had Hawkins
p a s s e d o ut, he w ould h a ve called an am bulance. Accordingly to Goodm an, Horn told him , contrary to his (Horn’s) deposition testim ony , that Hawkins had passed out , t h a t h e h ad “thought [ Hawkins] was going to die o ut there,” and that he had t hought Hawkins w as “going

to leave here today .” The disparity in Horn’s deposition testim ony and in Goodm an’s account of what Horn told him altogether calls into question Horn’s a c c o u n t , as does Thom pson’s observ a t i o n o f Hawkins’s hazardous driving on Interstate 55 on J une 19, 2013. Had the
necessary m edical attention been provided in a ti me l y ma n ner, a ccording t o D r . Scarf f ’s af f idavit, Hawkins would have had a signif icantly higher chance of

survival. ¶39. Horn’s deposition testim ony and what Goodm an said H o r n t o l d h i m —and, indeed, Thom pson’s and Dr. Scarf

f ’s af f ida vits—could not be m ore indicative of the existence of

1 7genuine issues of m aterial f act which should be r e s o l ved, not b y this Court, but by the f actf inder. I theref

ore decline to join m y

learned colleagues in the m ajority in af f irm ing the decisions of the Circuit Court of the First Judicial District of Hinds County a n d the Mississippi Court of

Appeals. WALLER, C.J., AND KING, J., JOIN THIS OPINION.

1 8