Clark v. Song Health & Rehab of Columbia, LLC et al

Filing 76

ORDER granting 73 Motion for Partial Summary Judgment Signed by District Judge Keith Starrett on 7/19/2017 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
VICTOR E. CLARK, JR.
VS.

PLAINTIFF
Civil Action No. 2:16-cv-00121-KS-MTP

SONG HEALTH & REHAB OF COLUMBIA, LLC,
COVENANT DOVE, LLC, and COVENANT DOVE
HOLDING COMPANY, LLC

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Partial Summary Judgment [73] filed by
Defendants Song Health & Rehab of Columbia, LLC, Covenant Dove, LLC, and Covenant Dove
Holding Company, LLC. After reviewing the submissions of the parties, the record, and the
applicable law, the Court finds that this motion is well taken and should be granted.
I. BACKGROUND
On January 2, 2015, Plaintiff Victor Clark (“Plaintiff”), a resident of Song Health & Rehab
of Columbia (“Song Health”), fell in his room while trying to walk to the bathroom by himself.
Defendants Song Health & Rehab of Columbia, LLC, Covenant Dove, LLC, and Covenant Dove
Holding Company, LLC (“Defendants”) owned, operated and/or controlled Song Health. (See
Amended Complaint [30] at p. 3.) Defendants’ facility engages in the custodial care of elderly,
helpless individuals who are in need of nursing care. (See Amended Complaint [30] at p. 2.)
Plaintiff was alone when the injury occurred and fractured his hip when he fell. (See Nurse’s Note
[73-1] at p. 1.) Plaintiff stated that he was trying to walk to the bathroom when he fell and that he
always walked by himself. (See Incident Witness Account [73-2] at p. 1.) Plaintiff “had alert able
[sic] to make needs known,” but there is no evidence that Plaintiff attempted to call for assistance
before attempting to walk to the bathroom. (See Nurse’s Note [73-1] at p. 1.) There has been no

testimony provided as to the cause of the fall. Plaintiff filed his Amended Complaint [30] on
January 26, 2017, claiming negligence against Defendants in Count I.
Defendants filed their Motion for Partial Summary Judgment on Plaintiff’s Corporate
Negligence Claims [73] on June 19, 2017. The Court gave Plaintiff until July 3, 2017, to respond
to the motion. Plaintiff has not filed a response.
II. DISCUSSION
A.

Standard of Review

Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Where the burden of production
at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of
evidentiary support in the record for the nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist.,
626 F.3d 808, 812 (5th Cir. 2010) (citation and internal quotation marks omitted). The nonmovant
must then “come forward with specific facts showing that there is a genuine issue for trial.” Id.
“An issue is material if its resolution could affect the outcome of the action.” Sierra Club, Inc. v.
Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of
Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine’ if the evidence is
sufficient for a reasonable [fact-finder] to return a verdict for the nonmoving party.” Cuadra, 626
F.3d at 812 (citation omitted).
The Court is not permitted to make credibility determinations or weigh the evidence.
Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, “the
court must view the facts and the inferences to be drawn therefrom in the light most favorable to

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the nonmoving party.” Sierra Club, 627 F.3d at 138. However, “[c]onclusional allegations and
denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue for trial.”
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is
mandatory “against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
B.

Corporate Negligence Claim

In his complaint, Plaintiff asserts a claim for negligence under multiple theories including
corporate negligence. Plaintiff claims Defendants were negligent in failing to provide the
minimum number of staff to assist residents, failing to properly monitor the staff, failing to
properly train the staff, and failing to maintain sufficient records on residents. (See Amended
Complaint [30] at p. 5-7.) Defendants argue that Plaintiff lacks the necessary evidence to establish
the standard of care owed to him by the Defendants, a necessary element of a corporate negligence
claim.
Mississippi law provides “[p]laintiffs must, in order to recover on a negligence claim,
demonstrate that the defendant breached a particular duty owed to the plaintiff, and that the breach
of duty proximately caused damages.” Mitchell v. Ridgewood E. Apartments, LLC, 205 So.3d
1069, 1074 (Miss. 2016) (internal quotation marks omitted). To succeed on a corporate negligence
claim, Plaintiff must produce “evidence in the record regarding the Defendants' duty and the
standard of care as to hiring, supervision of staff, training of staff, and documentation procedures.”
Estate of Guillotte ex rel. Jordan v. Delta Health Group, Inc., 5 So. 3d 393, 410 (Miss. 2009).

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When a plaintiff fails to provide sufficient evidence on the standard of care and duty, the defendant
is entitled to summary judgement against a plaintiff’s claim for corporate negligence. Id. at 411.
Regarding the fall on January 2, 2015, Plaintiff’s failure to present factual evidence in
support of his corporate negligence claim dictates that there is no genuine issue for trial. Plaintiff
has failed to “come forward with specific facts showing” Defendants’ duty and standard of care as
to the minimum number of staff, monitoring their staff, training their staff, or maintaining
sufficient records. Cuadra, 626 F.3d at 812 (5th Cir. 2010). Plaintiff has also failed to establish
that Defendants have breached the applicable standard of care. Defendants have demonstrated the
absence of evidentiary support in the record to Plaintiff’s claim of corporate negligence regarding
the fall which occurred on January 2, 2015, and Plaintiff has failed to come forward with specific
facts showing there is a genuine issue for trial. Therefore, Defendants are entitled to partial
summary judgment on Plaintiff’s claims of corporate negligence regarding the January 2, 2015,
fall.
III. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion for Partial Summary
Judgment [73] is granted.
SO ORDERED AND ADJUDGED, on this, the __19th___ day of July, 2017.

_s/Keith Starrett_____
__
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

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