IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01300-COA WILLIAM A. MCDANIEL AND KIM MCDANIEL APPELLANTS

v. WAYNE E. FERRELL JR. AND LAW OFFICES OF WAYNE E. FERRELL JR., PLLC APPELLEES

DATE OF JUDGMENT: 08/25/2016 TRIAL JUDGE: HON. HENRY L. LACKEY COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANTS: W I LLIAM LEE GUICE III MARIA MARTINEZ ATTORNEYS FOR APPELLEES: JAMES W ILLIAM MANUEL MICHAEL LELAND COW AN NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE DISPOSITION: AFFIRMED - 11/21/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., GREENLEE AND WESTBROOKS, JJ. LEE, C.J., FOR THE COURT: ¶1. In this legal-m alpractice appeal, W i lliam McDaniel retained attorney W ay ne Ferrell Jr. t o represent h im as a p laintif f i n t h e u n d erly ing personal-injury s uit af t er he was electrocuted during the c ourse of his em ploy m ent. T h e J o n es C ounty Circuit C ourt dism issed the unde r l y i ng action f

or f ailure to prosecute, and as a result, McDaniel brought a legalm alpractice claim against Ferrell f or prof essional negligence. Ferrell m oved f or sum m ary judgm ent, which the Hinds County Circuit Court granted, f inding that McDaniel was the sole proxim ate cause of his injury in the un d e r l y i n g a c tion, a nd thus could n ot succeed in thelegal-m alpractice suit. McDaniel now appeals. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. McDaniel was em

ploy ed with the F ederal Aviation Adm inistration (FAA) as an airtraf f i c-sy s tem specialist and was assigned to t he Jac k son International Airport. On Septem ber 1 8, 2006, McDaniel was electrocuted while repla c i n g a b lown f use at Runway 16L. As a result, he was p erm anently injured and disabled so that he could no longer engage in his em p loy m ent with the FAA. ¶3. McDaniel engaged t he legal services o f Ferrell t o represent him i n a lawsuit to recover dam ages f

or his injury

. On July 9, 2007, McDaniel m et with F errell and created a me m o d e t a iling the events and circum s tances leading u p to his e lectrocution. I n this m e mo , McDaniel described that f or several m onths l e a d i n g u p t o t he d ay of h is i njury , t he airport lost p o w er to the approach lights on the runway every tim e it rained. This required McDaniel, who was of

ten “on call,” to com e in and change the blown f use to re s t o r e t h e sy stem

. M cDaniel a ttributed t he blown f uses to the recent, f

aulty electrical work perf

orm ed

on the sy s tem

. McDaniel noted that he usually had help in changing the blown f use, and that he and his partner would “ double check to m ake s ure all power w as of f .” However, on the day of t he incident, his p artner was on vacation, and McDanie l restored the sy stem alone. He recounted that h e was u nder great pressure t o f i x t h e s y stem , and t he high-voltage transf orm e r was live with electricity and “went unnoticed” so that he did n ot power it of f

. As a result, when McDaniel attem pted to change the f

use, he cam e into contact with a live wire and was electrocuted.

2¶ 4. A c c o r d ing to McDaniel, he m et w ith Ferrell and d i s c u s s e d t h e s t r e n g t h s a n d

weaknesses of his case, and Ferrell told him that his case was a com parative-negligence case. In Septem

ber 2009, Ferrell f

iled suit on behalf of M cDaniel against Howard Industries Inc., Godf r ey S y s t e m s I n t e r

n a t i o n a l I nc., G.S.I. Inc., a n d The B.F. Goodrich Com pany (Goodrich). The com p laint a sserted that the electric a l s y s t e m s and services p rovided b y the nam ed def endants were d ef

ective and unreasonably dangerous, and were a contributing proxim ate

cause of the accident and McDaniel’s injuries. An am ended com p l a int was later f

iled to include McDaniel’s wif

e ’s com p l aint f or loss of c o nsortium

. ¶5. In February 2 010, Goodrich and Howard Industries f iled answers, and Goodrich also served d iscover

y r e q u e s t s . G o o d

r i c h o b t a ined the FAA A ccident Investigation Report, which conf irm ed that the particular f

use at issue had f

a iled twice i n the f

ew m onths prior t o the day of McDaniel’s electrocution. The report also identif ied an issue with the installation causing increased voltage and f

use f ailure during a l ightning storm a nd f o u n d t h a t t he electricals y s tem conf

iguration was in v iolation of the National Electrical C ode. Bey ond this, litt l e discovery or other action took place. ¶6. In May 2011, the Jones County Circuit Court issued a notice of dismi s s a l , a dvising that there had been n o action in t he case in the preceding twelve m onths. I n response, Ferrell f iled a m otion f

or a trial setting, but the m otion was never set f or a hearing. In June 2011, Goodrich m oved to dism i ss, stating that no action had taken place f or t h i r teen m onths, discovery had not been answered, and only t wo of the f our def endants had responded to the

com plaint. In May 2013, nearly f our y ears af

ter the com

plain t w a s f

i l e d , the circuit clerk

3issued a second n o t ice of dism issal. Goodrich then f iled a m otion to dism iss f or f ailure to prosecute, which w as joined by Howard Industries shortly af ter. A hearing was held on the

m otion to dism iss, a t which Ferrell adm itted he had n ot discovered any evidence to support the allegations in the com

plaint. Ultim ately , the circuit c ourt granted the m o tion, f inding that Ferre l l’s adm ission, in a ddition to the pattern of delay and t wo notices of dism issal, warranted dism issal with prejudice. Ferrell did not appeal the circuit court’s decision. ¶7. McDaniel a nd his son m et with Ferrell to discuss t he dism issal, and Ferrell explained that he was unable to identif y any def ective p iece o f equipm ent responsible f or McDaniel’s electrocution and subsequent injuries. ¶8. In May 2014, McDaniel f iled a legal-m alprac t i c e s u it against Ferrell in the Hinds County Circuit Court, alleging that F erre l l was negligent by f ailing to pursue the case and that h e f ailed to sue the c orrect p a rties. Ferrell m oved f or sum m ary judgm ent, arguing that McDaniel’s adm ission that he f ailed to de-energize the transf orm er b ef ore attem pting to change t he f

use precluded h im f

rom succeeding in the underly ing litigation. McDaniel

m oved f or additional tim e to conduct d iscovery regarding t he issue of causation, which was granted. Af

ter nearly a y ear of additional discovery , Ferrell f iled a second m otion f

or

sum m ary judgm ent. I n its o p inion, the circuit c ourt noted that McDaniel m ust s how that but f or Ferrell’s alleged negli g e n t r e p r esentation, he would have b een victorious in the underly ing litigation. The circuit court f ound, however, that M cDaniel could not succeed in the underly ing a ction b ecause it was undisputed that M cDaniel f ailed to de-en e rgize the
sy stem , and this was the sole a nd proxim ate cause of h i s i n j u r i es in t he underly i ng action.

4The cir cuit court granted Ferrell’s m otion f or sum m ary judgm ent, and McDaniel now appeals. STANDARD OF REVIEW ¶9. This Court r e views a trial court’s grant of sum m ary judgm ent de novo. Donovan v. Burwell , 1 99 So. 3d 7 25, 729 (¶10) (Miss. Ct. App. 2016) (citing Evans v
. Howell , 121 So. 3d 919, 922 (¶14) (Miss. Ct. App. 2013)). A sum m ary -judgm ent m o tion should be granted “if t he pleading s , d e p o s i tions, answers to interrogatories and adm issions on f ile, together with the a f

f idavits, if any , show that there is no genuine issue as to any m aterial f a ct and that the m oving p arty is entitled t o a judgm ent as a m atter of law.” M.R.C.P. 56(c). W e review the evidence in t he light m ost f a vorable t o the nonm o ving party

. D onovan , 199 So. 3d at 729 (¶10). However, the p a r t y o p p o sing sum m ary judgm ent “ m ay not rest upon the m ere allegations or denials of his pleadings, but his response, by af f idav i t s o r a s o therwise provided in this rule, m

ust set f o r th specif ic f a c t s showing that t here is a genuine issue f or trial.” M.R.C.P. 56(e). “ If he does not so respond, sum m ary judgm ent, if appropriate, shall be entered against him

. ” Id

. “A c om p lete f a ilure of p roof concerning an essential elem ent of the non[ ]m oving party ’s case necessarily renders all other f acts im m aterial.” Sanderson Farms Inc. v. McCullough , 212 So. 3d 69, 74 (¶12) (Miss. 2017) (citation om itted). DISCUSSION ¶10. McDaniel a rgues that the circuit court erred in f inding t hat he was the s ole proxim ate cause of his injury and that he could not have succeeded in the underly ing action, and thus erred by granting Ferrell’s m otion f or sum m ary judgm ent on M cDaniel’s legal-m a lpractice

5claim

.

¶11. “For legal-m alpractice claim s predicated on negligence, the plaintif f ‘m ust prove by

a preponderance o f t h e e vidence: (a) the existence of an attorney -client relationship; (2)

n e g l i g e nce on the part of the lawy er in handling the af f airs of the client w hich have been
entru s t e d to the lawy e r; and ( 3 ) proxim ate c ause of the injury .’” Gibson v. W illiams , W illiams & Montgomery P.A. , 186 S o . 3 d 8 3 6 , 848 (¶34) (Miss. 2016) (quoting Pierce v. Cook , 992 So. 2d 612, 617 (¶11) ( Miss. 2008)). In this m a l practice appeal, the issue centers on the third elem e nt—proxim ate cause. ¶12. I n a n e g ligence-based m alpractice action, as is the case here, the p lai n t i f f “ mu s t establish proxim ate cause by the so-called ‘trial-within-a-trial’ t est,” a n d “m ust s how that, but f o r his attorney ’s negligence, he would have been successf ul in the prosecu t i o n or def ense of the underly ing action.” Id. at 850 ( ¶45). “Because attorney s are af f orded a degree of prof e ssional autonom y , proof o f success in the underly i ng c ase is an appropriate test f or proxim ate cause in a negligence-based action because it ensures that attorney s are only held prof essionally liable w here their f ailures to adhere to t he standard of care actually im pacted the plaintif

f ’s interests in t he case.” Crist v
. L oyacono , 65 So. 3d 837, 843 (¶16) (Miss. 2011). Thus, the t est f

or proxim ate cause in the legal-m alpractice suit i s proof of success in the underly ing negligence suit. Id

. ¶13. “The elem e nts of negligence are well-established: duty or standard of care, breach of that duty or standard, proxim ate causation, and dam ages or injury .” Porter v. Grand Casino of Miss. Inc

. , 181 So. 3d 980, 985 (¶12) (Miss. 2016). “To succeed in a n egligence claim ,

6the plaintif

f m ust prove b oth causation a nd proxim ate cause.” Dillon v. Greenbriar Digging Serv. Ltd ., 919 So. 2d 172, 177 ( ¶12) (Miss. Ct. App. 2005). “Proxim ate cause requires: (1)

cause in f act; and (2) f

oreseeability .” Johnson v. Alcorn State Univ ., 929 So. 2d 398 , 4 1 1 (¶48) (Miss. Ct. App. 2006) (quoting Ogburn v. City of W iggins , 919 So

. 2 d 85, 91 (¶21) (Miss. Ct. App. 2005)). “[ C ]ause in f act m eans that the act o r om ission w as a s u b stantial f actor in b ringing about t he injury , and without it the harm would not h ave occurred.” Davis v. Christian Bhd. Homes of Jackson, Miss. Inc ., 957 So. 2d 390, 406 (¶38) (Miss. Ct. App. 2007) (quoting Johnson, 929 So. 2d at 4 11 (¶48)). “Stated dif f erently , c ause in f

a ct requires proof that, but f

or t he alleged negligent act or o m i ssion, the i njury would n ot have occurred.” Id

. “Foreseeability m eans that a person of ordinary intelligence should have anticipated the dangers that his negligent act c reated f o r o t h e r s . ” I

d

. at 404 (¶32). A plaintif f m ay not

recover dam ages f

ro m a d e f

e n dant where the plaintif f ’s own negligence was the sole proxim ate cause o f his injuries. Evans v. Journeay, 4 88 So. 2d 797, 799-800 (Miss. 1986). ¶14. In the i nst a n t c a s e , i t i s undisputed that M cDaniel f ailed to de-energize the sy stem bef ore attem pting to change the blown f use. I n the m em o M cDaniel created at his m eeting with F errell, he acknowledged that he f ailed to disconnect t he high-voltage t ransf orm er. In his deposition, McDaniel adm itted that he did not d e-energize the sy stem on the day he was electrocuted. He acknowledged that he was t r ained on the sy stem and that he knew the im p ortance o f de-energizing it. He also adm itted he had perf orm ed the sam e task on m

ultiple occasions prior to the d ay of the incident, and did not suf f e r any injuries. O n those occasions, he or h i s partner de-e n e r g i z e d t h e sy stem

. It i s readily apparent that but f or

7McDaniel’s f a ilure to de-energize the sy stem , he w ould not h ave been electrocuted. It is also f oreseeable that such f

ailure to disconnect t he transf orm er and e n gage the live sy stem would result i n electrocution. Thus, McDaniel’s o wn negligent act was the proxim ate cause of his injury

. ¶15. Mc D a n i e l a r g u e s t h a t t h e l a w a n d t h e f acts in t he underly ing suit support a

com parative-negligence analy sis a nd should h ave been subm itted to t he jury

. He states that the “negligent design and construction of the runway

lighting sy stem

was the cause in f

act in bringing about the injury , without which the harm would not have occurred.” ¶16. “Mississippi is a pure com parative-negligence state.” M eka v
. Grant Plumbing & Air Conditioning Co. , 67 So. 3d 18, 23 (¶15) (Miss. Ct. A pp. 2011) (citing Miss. Code Ann. § 11-7-15 ( R e v . 2004)). “Under the com p arative[ -]negligence doctrine, n egligence is

m easured in term s of percentage, a nd a ny dam ages allowed shall be dim inished i n proportion
to [ t he] am ount of negligence a ttributable to the person f or whose injury , dam age[ ,] or death
recovery i s sought.” Id

. (quoting Coho Res. I nc. v
. Chapman , 913 So. 2d 899, 911 (¶36) (Miss. 2005)). “W here n egl i g e n c e b y b oth parties is concurrent and contributes to injury , recovery is not barred under s uch doctrine, but the plaintif f ’ s dam ages are dim inished proportionately .” Id

. (quotin g B u r t o n e x r el. B r adford v. Barnett , 615 So. 2d 580, 582 (Miss. 1993)). “Thus, even though the plaintif f was negligent, the plaintif f m ay recover f

rom

a def endant whose n e gligence contributed to the plaintif f ’s injury .” Id

. However,

com parative negligence only applies w here there i s m ore than one proxim ate cause. Breaux

v. Grand Casinos of

Miss. Inc.-Gulfport , 854 S o. 2d 1093, 1097 (¶11) (Miss. C t. A pp. 2003)

8(citing King v. Dudley , 286 So. 2 d 814, 817 (Miss. 1 973)). Com parative negligence “is not applicable if

the negligence of

the injured party

is the sole cause of

the injuries . . . .” Id

. ¶17. In the instant case, a com parative-negligence analy s i s is im proper b ecause McDaniel

was the sole proxim ate cause of his electrocution. Ass u mi n g that a def endant in the underly ing suit was negligent in the design or construction of the r unway lig h t i n g sy stem , th a t alleged negligence w as not a cause in f act of McDaniel’s electrocution. Rather, the

a l l e g e d n e gligence caused a b lown f u se, m e rely f

urnishing the o ccasion f

or McDaniel to
restore the sy stem

. The M ississippi Suprem e Court has held t hat “negligence which m erely f urnished the condition or occasion upon which injuries a r e r e c e i v e d, but does not put in

m otion the agency by or through w hich the injuries are inf licted, i s not the proxim ate cause thereof .” Causey v. Sanders , 998 So. 2 d 393, 4 0 5

- 0 6 ( ¶ 3 9 ) (Miss. 2008). T hus, the def e n d a n t s ’ alleged n e gligence i n the underly ing action was not a proxim a te cause of McDaniel’s injuries, and a com p arative-negligence analy sis was not appropriate. ¶18. It is undisputed that M cDaniel f ailed to de-energize the s y stem bef ore a ttem pting to change the blown f

use. This was the sole proxim ate cause of McDaniel’s e l e c t rocution. Thus, M cDaniel could n o t succeed in the underly ing litigation and, in turn, c ould not prevail against Ferrell in his legal-m alpractice suit. W e af f irm the t r i a l c o urt’s grant of sum m ary judgm ent. ¶19. AFFIRMED.
I R V I N G A N D G R I F F I S , P . J J . , B A R N E S , C A R L T O N , F AIR, GREENLEE A N D WESTBROOKS, JJ., CONCUR. WILSON AND TINDELL, JJ., NOT PARTICIPATING.

9