IN THE SUPREME COURT OF MISSISSIPPI
N O. 2013-CT-01807-SCT DAV ID McKEAN, FRANCESCO MEDINA, DONALD ARRINGTON AND WAY NE ROBERTSON

v. Y A TES ENGINEERING CORPORATION, ANDERSON REGIONAL MEDICAL CENTER, AND FOIL WY

ATT ARCHITECTS AND PLANNERS, PLLC ON WRIT OF CERTIORARI DATE OF JUDGMENT: 10/21/2013 TRIAL JUDGE: HON. LESTER F. W I LLIAMSON, JR. COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: KEN R. ADCOCK MARK D. MORRISON W I LLIAM CHRISTOPHER IVISON ATTORNEYS FOR APPELLEES: THURMAN LAVELLE BOYKIN, III JAMES D. HOLLAND ROMNEY HASTINGS ENTREKIN PEELER GRAYSON LACEY, JR. SHIRLEY M. MOORE ROBERT B. IRELAND, III RICHARD O. BURSON NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED IN PART AND VACATED IN PART - 09/15/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. KING, JUSTICE, FOR THE COURT: ¶1. During the c o n s t r u c t i o n o f J e f f Anderson Regional Medical Center’s (“ARMC”)“Medical Towers III” expansion in Meridian, scaf f olding built by W .G. Yat e s & Sons
C o n s t r u c t i o n C o m

p a n y ( “ Y a t e s C o n s t

r u c t i o n ” ) c o l l a

psed, i njuring David McKean, Fr a n c e s c o Medina, Donald Arrington, and W ay ne R obertson (collectively , the “plaintif f s”). The trial

court granted sum m ary judgm e nt and d ism issed the plaintif f s ’ claim s against all d ef

endants. The Court of Appeals af

f irm ed the decisions of the trial court. Although we agree with the
Court of A p p e a l s ’ d e c i sion t o af f irm the trial court, we now grant certiorari t o clarif y two issues: (1) w hether this C ourt h as adopted the seven-f actor t e s t u s e d i n Hanna v. Huer, Johns Neel, Rivers, & Webb , 6 62 P.2d 243 (Kan. 1983) superceded by statute , as recognized
in Edwards v. A nderson Engineering , I nc. , 166 P.3d 1047 (Kan. 2007), to determ ine whether an a rchitect’s s upervisory powers go bey ond the provisions of the contract; and (2)

to clarif y this Court’s position on the ef f ect of an “undocum e nted im m igrant” status on
recovery f or workplace injuries.

FACTS AND PROCEDURAL HISTORY ¶2. A R M C p l a nned the “Medical Towers III” expansion to be a m ulti-story build i n g located in Meridian. A RMC hired Foil W y att A rchitects and Planners PLLC (Foil W y att) to design the expa n s i o n a n d h i red Yates Construction to act a s the general contractor f or the project. Yates Construction then hired Spectrum II as the subcontractor f or c oncrete services. The p laintif

f s w ere em ploy ed by Spectrum II. Construction on the e xpansion began in 2008.
In order to com

plete the second f

loor of the b ui l d i n g , Yates Construction asked Yates Engineering Corporation (“YEC”) to provide design drawings f or a tem porary scaf f olding used to support the second f loor concrete slab during construction.

2¶3. The Court of Appeals stated:
As o f Septem

ber 2008, the f

irst-story reinf

orced c oncrete slab had been poured, and Yates Construction was p reparing to pour the concrete walls and colum ns that would help support the e l e vated second-story reinf o rced concrete slab. Yates Engineering becam e involved i n t h e construction project when Dan Perry , Yates Construction' s general s u perintendent, asked engineer Ted Pope to prepare design drawings of the scaf f olding and second-story

f orm w ork. During late Septem

ber 2008, Pope visited the construction site and m e t with Mike C lark, a con s truction supervisor f or Yates Construction. Pope noticed som e f orm work f

o r the f irst-story concrete colum ns and w alls, but he did not see any scaf f olding f or the second-story

f orm work. During Pope' s visit, he and Clark discussed s om e of the necessary f eatures of the scaf f olding, su c h a s the need f or wooden 4 "x4" posts and stringers, and 2"x4" joists. Pope prepared his prelim i nary d esign drawings, and subm itted them f or c o mme nts to Yates Construction on October 3, 2008. Meanwhile, Yates C o n struction had begun building the scaf f olding bef ore receiving Pope' s design drawings.
It is undisputed that Pope' s plan was f undam entally f

lawed in one signif

icant way -it contem

plated using twen t y - f

o ur-f oot posts. However, wooden 4"x4" posts are not available in th a t l e n g t h. Consequently , the posts would have to be “tiered” by stacking them end to end and “spliced” f or stability

. D espite the f act that P ope' s plan was ef f ectively im

possible to f

ollow, Yates Construction had no com m ents about Pope' s design. Y a t es C onstruction asked Pope to send a f i nal v e rsion of his design drawings. Pope com plied o n O c t o ber 6, 20[ 08]. However, Yates Construction ignored e ssential f eatures of Pope' s scaf

f olding design.
McKean v

. Y ates Engr. Corp. , No. 2013-CA-01807-COA, 2 015 W L 5118062, at *1 (Miss.
Ct. A pp. Sept. 1, 2015), reh' g denied (Mar. 1, 2016). On Novem ber 17, 2008, the plaintif

f s

were attem

pting to pour a n e levated concrete slab f or the second f

loor. As the concrete was being poured, the wooden s caf f olding col l a p sed a nd caused injury to the plaintif f s. It is undisputed that the scaf

f olding caused the collapse and not the f orm work. ¶4. The plaintif

f s f i led suit against Yates Construction on Septem ber 1, 2010, claim ing

3that Yates Construction negligently f ailed to construct the scaf f olding a nd related s tructures in a ccordance with plans and specif ications. In February 2011, the plaintif f s am ended their

com plaint to add Yates Engineering and Foil W y att as def endants. The plaintif

f s alleged that
Yates Engineering and Fo i l W y att negligently f ailed to f orm ulate plans and s pecif

ications
f or the scaf

f olding, negligently f

ailed to inspect the scaf

f olding, and f

ailed t o correct known def iciencies in the scaf

f olding. ¶5. Am erican Resources Insurance Com pany Inc. f

iled a d eclaratory

-

judgm ent action in the U nited States District Court f or the Southern District of M ississippi. In March 2012, the district court held that Yates Construction was Spectrum I I ’ s s t a t u t ory e m ploy er. Because
Yates Construction had secured workers’ c o m pensation insur a

n c e c o v e r a g e fo r the plaintif f s, the circuit court dism issed the plaintif f s ’ s u i t a g a i nst Y ates Construction pursuant to the exclusive rem e dy

provision of

the Mississippi W orkers’ Com pensation Act. In June 2012, the plaintif

f s f i led a second am ended com plaint, a dding ARMC as a def endant and claim ing that ARMC n egligently f ailed to require a written contract with Ya t e s Construction, negligently f

ailed to supervise and inspect Yates Construction’s work, and f ailed to m aintain the prem ises in a reasonably saf e condition and warn the plaintif f s of dangers. ¶6. Yates Engineering, joined by A RMC, f i led a m otion f

or sum m ary judgm ent against plaintif f Medina, claim ing that because M edina allegedly was not an Am erican citizen and

was theref

ore not l awf

ully em ploy ed, his claim s should be dism issed due to his activity at the tim e o f the accident. On February 20, 2013, the trial court dism issed Francesco Medina’s claim s. The circuit c ourt then granted sum m ary judgm ent in f avor of Foil W y att, f

inding that

4Foil W y att had no duty to inspect the scaf

f olding. The Court of

Appeals stated:
In August 2013, the circuit court granted sum m ary judgm ent i n f avor of Yates Engineering. The circuit court' s decision was based on its conclusion that “[ a]t no point in time d id Yates Engineering assum e the duty [ to] i nspect or supervise the construction and im plem e ntation o f its design drawings either by contract or c onduct.” T he ci r cuit court later g ranted ARMC' s m otion f or sum m ary judgm ent. According to the circuit c ourt, “ n o g e nuine issue of m aterial f act rem a ins with respect to Plain t i f f s ' c laim s a gainst [ ARMC], and theref ore, [ ARMC] is entitled t o sum m ary judgm ent on Plai n t i f f s' claim s against it.” The circuit court also entered a f inal judgm e nt on that date.
McKean , No. 2013-CA-01807-COA, 2015 W L 5118062, at *3. ¶7. The plaintif

f s ap p e a l e d a n d a r g u e d that the trial c ourt erred in granting sum m ary judgm ent to Foil W y a tt, Yates Engineering, and ARMC. In its Septem ber 1, 2015, opinion, the Court of

Appeals af

f i rm ed the trial court on all issues.

DISCUSSION
I. Supervisory Duty ¶8. It is undisputed in this case that def ects in the scaf

f o lding, n ot the f

orm work, caused the c ollapse that injured the plaintif f s a nd that p art of the scaf

f olding had been buit by Yates Construction b ef

ore Pope t urned in his d esign drawings. The plaintif f s argued that a genuine issue of ma t e r i a l f

act e xisted as t o w hether Pope breached his duty to design a suf f icient scaf f olding sy stem and a s to whether Pope breached his duty to inspect the scaf f olding that
Yates Construction built. T he plaintif f s also argued that Foil W y att had a duty through

contract and conduct to inspect the scaf f olding bef ore the concrete was poured. I n its analy sis

to determ ine whether an e ngineer had a supe r v i s o r y duty outside the provisions of the contract, the Court of Appeals q u oted a seven-f

actor test u sed in H

a n n a v . H uer, Johns

5Neel, Rivers, & Webb , 662 P.2d 243 (Kan. 1983):

There are “seven f

actors t o determ ine whether supervisory powers g o bey o nd the provisions of [ a] contract.” Hobson , 878 So.2d at 72 ( ¶ 15) (citations om itted). Those f

actors are:(1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) consta n t participation in ongoing activities at the construction site; (4) supervision a nd c oordination of subcontractors; (5) assum ption of responsibilities f o r saf ety pract i c es; (6) authority to issue change orders; and (7) the right to stop the work. Id.
McKean , No. 2 0 13-CA-01807-COA, 2015 W L 5118062, at * 5 (quoting H o b son v. Waggoner Eng’g Inc. , 878 So. 2d 68, 77 (Miss. Ct. App. 2003)). ¶9. This Court f

irst cit e d t h e s e v e n - f

a c t o r H a n n a t e s t in Jones v

. Jam es Reeves Contractors, Inc. , 701 So. 2d 774 (Miss. 1997). There, the Court was ta s k e d w i th determ ining, inter alia , whether a pr o j e c t ’ s architects h ad a d uty to warn workers of dangerous soil conditions based upon t h e i r prior knowledge. Id. at 784. Because it was an issue of f irst i m pression, the Court looked to other jurisdictions f or guidance and quoted in

a string c ite the Hanna f

actors. Id. at 784. The Jones Court later rejected the Hanna court’s holding that an a rchitect’s c ontractual duty t o m a intain actual supervision over the details of the construction project did n ot entail the duty to supervise saf ety , and stated that “[ i]t is the opinion of this Court that the holding of [ Y oung v. Eastern E

ngineering & Elevator Co.,
Inc. , 5 54 A.2d 77 (1989)] provides the clearest pronouncem ent on the issue bef ore the Court and m akes the m o st com m on sense under the circum stances.” The Y oung opinion stated:
W e theref

o re hold that absent an undertaking by an architect, b y contract or conduct, of the responsibilities of the supervision of construction and the ma intenance of saf

e conditions of a construction project, an architect is no t under a duty to notif

y w orkers or e m

ploy ees o f the contractor or subcontractors of hazardous conditions on the construction site.

6Jones , 701 So. 2d at 785-86 (quoting Y oung , 554 A.2d at 80). ¶10. In a later case, Hobson v. Waggoner Engineering, Inc. , 8 78 S o . 2 d 6 8 (Miss. Ct. App. 2003), the Court of Appeals cited Jones i n its a n a l y s i s o f whether engineers or

a r c h i t e c t s had a d

uty to p rotect construction w orkers f rom harm w hile on the job site, and stated:
As in Jam es Reeves Contractors, I nc. , we review the seven f actors in H

anna to determ ine w hether the engineer' s supervisory powers extended b ey ond the contract p r ovisions. Based on the undisputed f acts b ef ore t h e trial court, we agree w ith the tr i a l court that W aggoner Engineering' s d uties and responsibilities did not. Hobson v. Waggoner Engr., Inc. , 878 So. 2d 68, 76 (Miss. Ct. App. 2003). ¶11. W e now c larif

y o ur position on the supervisory duty of architects and adopt the sevenf actor test used in Hanna , to determ ine whether an a r chitect’s supervisory powers go bey ond the specif ic provisions of the contract. These Hanna f actors are to be used as g uidance and

are not exhaustive. W e also reaf f irm our previous holdi n g t h a t f o r a n architect to have an af f irm ative duty to w arn of dangerous conditions, the a rchitect m ust “by contract or conduct” take on the responsibility to m aintain the s af ety of the construction project. Jones v. Jam es Reeves C ontractors, Inc. , 701 So. 2d 774, 785 (Miss. 1 997). If the architect d oes take on a duty to supervise, “the s upervision of saf ety is encom

passed in the d

uty to supervise, and no separate agreem ent to s upervise saf ety is necessary where the architect i s s u p e r vising the details of every other aspect of

the project.” Id. ¶12. W e af

f irm t h e h o l d i n g o f t h e c i r c u it court and Court of Appeals that sum m ary judgm ent in f

avor of Foil W y att was appropriate and that Pope had no duty based on contract

7or conduct to inspect the scaf f olding or warn of def

ects.
II. Undocum ented Im m igrant ¶13. B e f

o r e g r a n t i n g s u mma r

y judgm ent to all def

endants the trial cour t d i s mi s s e d
Francesco Medina’s claim s, holding that, based on this Court’s d ecision in P rice v. Purdue
Pharm a Co. , 9 20 So. 2d 4 79, 484 (Miss. 2006), even if Yates Engineering and ARMC were f ound to h ave been negligent, Medina’s alleged undocum ented im m igrant status barred h im
f rom recovery . The Court of Appeals af f irm ed the trial court’s sum m ary judgm e nts in f avor of Yates E ngineering, Foil W y att, and ARMC and held that “ [ b ]ecause these conclusions are dispositive, Medina’s c laim that the circuit court erred in dism issing hi s c l a im due to his im m igration status is m oot; this opinion should not be construed as im plicit agreem ent with the cir cuit court’s ruling in this regard.” McKean , No. 2013-CA-01807-COA, 2015 W L 5118062, at *9. ¶14. In Price , this Court held “[ i]If a plaintif f cannot open his case without showing that he has broken the law, a court will not aid him .” Price v. Purdue Pharm a Co. , 920 So. 2d 479, 484 (Miss. 2006). There, the plaintif f s ued m ultiple def

endants, claim ing that he sustained i n

j u r i e s , i ncluding addiction, f rom ingesting Oxy Contin. Id. at 482. B e cause the plaintif f h ad been sim

ultaneously seeing m

ultiple doctors and using dif f erent pharm acies to acquire Oxy Contin, a controlled substance, t h i s Court f ound that sum m ary judgm ent was appropriate and held that “[ h]is violation of the l aw is not m erely a condition, but instead an integral and essential part of his case and the c o ntributing cause o f his alleged injury .” Id. at 485.

8¶15. However, unlike in Price , Medina’s conduct here was not the contributing cause of

his alleged injury , nor would the sam e public policy be advanced here as in that case. The Mississippi Constitution states, “ All court shall be open; and every person f or an injury done him in his lands, goods, person, or reputation, s hall have rem edy by due course o f law, and right a nd justice s hall be adm inistered without sale, denial, o r delay .” Miss. Const. Art. 3, §
24 (em p hasis a dded). Section 25 states, “ No person shall be d ebarred f rom prosecuting or def ending any civil c ause f

or o r a gainst him or h e r s elf , bef ore any tribunal in the state, by h i m o r herself

, o r counsel, or b o th.” Miss. Const. Art. 3, § 25 (em phasis added). Thus, the Mississippi Constitution does not lim it access to our courts and leaves open f or every person

a rem edy f

or injury done to his person. ¶16. Other j u risdictions als o h a v e f ound that undocum ented im m igrants have a right of

access t o the court s y stem . “[ A] well established body of law holds that i llegal aliens have rights of access to the c ourts and are eligible to sue therein to enf orce contracts and redress civil w rongs such as negligently inf licted p ersonal injuries.” Rosa v. Partners in Progress,
Inc. , 8 68 A.2d 994, 997 (N.H. 2 0 05) (quoting Mendoza v. M onm o uth Recycling Corp. , 672 A.2d 221, 225 (N.J. 1996); see also Mendoza , 672 A.2d at 224 ( “Surely , the ef f e ct on the worker of his injury has nothing to do with his citizenship o r i m m i gration status. If his capacity to work has been dim inished, that disability will contin u e w h e t h er his f uture

e mp l oy m ent is in this country o r elsewhere.”); Arteaga v. Literski , 265 N.W .2d 148 , 1 5 0 (W is. 1978) (“It c annot be s eriously argued that people e nter this country illegally so they can

recover f or an injury that will be inf licted upon them later.”). I n f act, i f a n undocum ented

9alien were prevented f r om bringing an action against h is em ploy er f or negligence, it would

even encourage em

ploy ers to hire undocum ented aliens. See Montoya v. Gateway Ins. Co. , 401 A.2d 11 0 2 , 1 104 (N.J. Super. App. D iv. 1979) (“Potential em p loy ers m ay well be encouraged to em

ploy such aliens if they becom e aware o f the alien' s i n a b i l i t y t o lodge claim s against them

f or wages or on account of injuries sustained.”). ¶17. M e d i n a c o u l d v e r y w ell have proven his claim s against the def endants withou t presenting evidence of his status as an im m igrant. A nd i f M e dina’s claim s of negligence

were barred solely b ecause he presum ably was an undocum ented im m igrant, the sam e logic could b e applied to any tortious o r u nlawf ul conduct towards Medina based on the conclusion that he was not lawf

ully in the c ountry

. Such reasoning would ef f ectively strip M edina of all rights. S ee Feldm a n v

. M urray , 12 N.Y.S.2d 533, 534–35 (N.Y. Sup. Ct. 1939) (“[ E]ven the

m ost hopeless outcast i s entitled to protection against unlawf ul injury to his person.”). W e clarif y that this Court’s decision in Price does not p revent an undocum ented im m igrant f rom bringing a negligence claim against his em

ploy er. CONCLUSION ¶18. Although we af

f irm the d e cisions of the Court of Appeals a n d t rial court regarding

sum m ary judgm ents in f avor of the def

endants, we clarif

y this Cou r t ’ s position that an architect has no af

f irm ative duty to supervise s af ety absent contract or conduct. A dditionally , because our courts are open to every person, a n a l l e g ed undocum e nted im m igrant is not barre d f r o m t o r t r ecovery solely based on his alleged undocum ented status, and we vacate the decision of the trial court on this issue. Because s um m a r y judgm ent was a

ppropriate as

1 0to all def

endants, this error was harm less. ¶19. THE JUDGMENT OF THE COUR T O F A P P E A L S I S A F F IRMED. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND VACATED IN PART. WALLER, C .J., D IC K I NSON AND RANDOLPH, P.JJ., KITCHENS, COLEMAN AND B EAM, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE W RITTEN OPINION. M AX WELL, J., NOT PARTICIPATING.

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