BARNES, J., for the Court:
¶ 1. On May 16, 2007, Jeffrey B. Hodges Jr. (Hodges) died when his vehicle crashed into a box culvert at a construction site on Attala County Road 3122 in Attala County, Mississippi. His survivors, Jeffrey B. Hodges, Avis H. Hodges, and Brittanie H. Burrell (hereafter "the Survivors") filed a complaint contending that warning signs/barriers were missing and that Ausbern Construction Company, Inc. (Ausbern) and Attala County (also referred to
¶ 2. On April 27, 2006, Attala County and Ausbern entered into a construction contract for State Aid Project No. SAP-04(53), which indicated that the parties would work as principal and independent contractor, respectively. A "Supplement to Traffic Control Plan" (Supplement) was incorporated by reference into the contract and referenced the duties of the County's engineer, Christian Gardner. The relevant portion of the Supplement states:
During the pendency of the contract, the County, under the direction of Gardner, conducted weekly inspections of the Traffic Control Devices and prepared weekly inspection reports. Under the "COMMENTS/ACTION RECOMMENDED" section of the inspection reports dated April 2, 12, 20, and 27, 2007, it was noted that the barricades were damaged and needed replacing. For the weeks of May 1, 7, and 15, 2007, the reports noted that barricades in the "APPROACH ZONE" and "WORK ZONE" of the construction site were "missing/damaged" and "improperly placed." The May reports state that the contractor was notified of these deficiencies. Gardner also attested in an affidavit that, in each of these instances, Ausbern was immediately notified and "took immediate corrective action in accordance with the Traffic Control Plan."
¶ 3. Ray Strahan and W.W. Steen, local area residents, submitted affidavits that stated that for some time prior to May 16, 2007, the barricades at the construction site had been moved from the right side of the road to the left side of the road. Additionally, the father of the deceased, Jeffrey B. Hodges, observed in his affidavit that, on at least one occasion, the barricades at the construction site had been moved to the left side of the road. The Uniform Crash Report noted that the construction barrier in the eastbound lane was down, and this was the lane in which Hodges had been traveling immediately before the accident.
¶ 4. Following Hodges's fatal accident, the Survivors filed a wrongful-death action against Attala County and Ausbern on March 17, 2008, seeking damages for failure to warn or to protect against a known dangerous condition on Attala County Road No. 3122. Attala County filed a motion for summary judgment on July 25, 2008, based on its defense under the independent-contractor rule and immunity from suit under Mississippi Code Annotated section 11-46-9 (Supp.2008). On February 6, 2009, the circuit court granted Attala County's motion for summary judgment and entered its certification of final judgment on April 15, 2009. As Attala County owed no duty to Hodges, we find no error in the circuit court's grant of summary judgment and affirm.
¶ 5. Mississippi Rule of Civil Procedure 56 governs motions for summary judgment. This Court reviews de novo a circuit court's grant of a motion for summary judgment. Riley v. F.A. Richard and Assocs., Inc., 16 So.3d 708, 715 (¶ 16) (Miss. Ct.App.2009) (citing Webb v. Braswell, 930 So.2d 387, 395 (¶ 12) (Miss.2006)). In conducting our review, we examine all evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. This evidence must be viewed "in the light most favorable to the non-moving party." Id. "The movant carries the burden of demonstrating that no genuine issue of material fact exists[.]" Id. at 716 (¶ 17). "If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party's favor." Id. at 715 (¶ 16) (quoting Webb, 930 So.2d at 395 (¶ 12)).
¶ 6. Ausbern was an independent contractor for Attala County, a fact that the Survivors do not contest. The Mississippi Supreme Court has defined an independent contractor as "a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." Richardson v. APAC-Miss., Inc., 631 So.2d 143, 148 (Miss.1994). Generally, a principal "has no vicarious liability for the torts committed by the independent contractor or its employees in the performance of the contract." Chisolm v. Miss. Dep't. of Transp., 942 So.2d 136, 141 (¶ 7) (Miss. 2006) (citing Heirs & Wrongful Death Beneficiaries of Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743 So.2d 311, 318 (¶ 36) (Miss.1999)). Furthermore, the Mississippi Tort Claims Act (MTCA) provides that governmental entities are immune to suits arising from the negligent acts of an independent contractor. Brown v. Delta Reg'l. Med. Ctr., 997 So.2d 195, 197 (¶ 11) (Miss.2008).
¶ 7. However, the Survivors argue that Attala County took on an independent duty in the Supplement to Traffic Control Plan, which states that Gardner is to "insure" that Ausbern adheres to the Traffic Control Plan. They contend that the County maintained control over the safety aspect of the work and, thus, is liable for the wrongful death of Hodges.
¶ 8. In granting summary judgment, the circuit court relied on Chisolm, 942 So.2d 136, which involved a one-car accident caused by a vehicle striking a bolt lying on the road at a construction site. The construction was performed by a private company contracted through the Mississippi Department of Transportation (MDOT). The complainants claimed that MDOT was liable for the wrongful death of Priscilla Chisolm. Id. at 139 (¶ 2). Specifically, they asserted that MDOT was negligent per se as it had violated several provisions of the Manual on Uniform Traffic Control Devices (MUTCD), namely those which placed the responsibility for the placement and maintenance of traffic control devices with the governmental body. Id. at 142 (¶ 13). However, the supreme court found that the use of the MUTCD may be used as "a tool for assessing a breach of duty only after a legal duty has already been established. It cannot be used to create a legal obligation under Mississippi law." Id. at 143 (¶ 15). Here, the circuit court held that Attala County had no legal duty as it was apparent from the contract, the Supplement, and Gardner's affidavit, that
¶ 9. The standardized contract language in Chisolm is very similar to the contract language in the present case. Section 105.10 of the contract in this case states:
Section 107.10 of the contract also states that "[t]he Contractor shall provide, erect, and maintain all necessary barricades, suitable and sufficient lights, danger signals, signs and other traffic control devices[.]" It is undisputed that the standardized contract between Attala County and Ausbern placed the responsibility to maintain all traffic barriers and warnings on Ausbern. The Survivors assert that the circuit court's analysis of Chisolm was incomplete as it failed to consider the supplemental language to the contract requiring Gardner "to insure the Contractor constructs, installs, and maintains the devices called for on the Traffic Control Plan." (Emphasis added). To paraphrase language used by counsel for the Survivors before this Court, Attala County had a duty that "paralleled" that of Ausbern.
¶ 10. Reading Section 105.10 and the Supplement together, Section 105.10 explicitly states that the inspector is not to act as a foreman for the contractor. The Supplement says that Gardner is merely to "insure" that Ausbern maintains the traffic controls. There was no evidence that Gardner failed to carry out his duties outlined in the Supplement. Attala County conducted weekly inspections at the construction site, and according to the reports and Gardner's affidavit, any problems with the construction signs/barricades were immediately reported to Ausbern. The additional oversight responsibilities imposed by the Supplement did not create a legal duty in Attala County to maintain the safety barriers.
¶ 11. Although we could find no Mississippi cases on point as to whether a general contractor obtains liability through the oversight of safety standards, other jurisdictions have addressed this issue. In Ross v. Dae Julie, Inc., 341 Ill.App.3d 1065, 275 Ill.Dec. 588, 793 N.E.2d 68, 72 (2003), the Appellate Court of Illinois held that "a general right to ensure that safety precautions are observed and that work is done in a safe manner will not impose liability on the general contractor unless the evidence shows that the general contractor retained control over the means and methods of the independent contractor's work." Determining if "a right to control has been retained depends on the parties' contract, the parties' conduct, and other relevant factors." Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wn.App. 741, 875 P.2d 1228, 1235 (1994). The mere exercise or retention of the "general right to recommend a safe manner for the independent contractor's employees to perform their work is not enough to subject a premises owner to liability[.]" Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999) (citation omitted); see also LaChance v. Michael Baker Corp., 869 A.2d 1054, 1058 (Pa.2005) ("mere supervision over the work of a subcontractor, up to and including the right to stop a project, is not control sufficient to impose liability").
¶ 12. The following unpublished case is factually similar and very instructive to our analysis. In Jevons v. State, 2003 WL 1986977, 116 Wn.App. 1056 (Wash.Ct.App.2003), an employee of an independent contractor sued the state's department
Id. at *3. (emphasis added). The appellate court concluded that the state did not owe a duty "simply because it retained the right to inspect for contract compliance." Id. at *4. Accordingly, based on our review of the record and analysis of the issue, we find that Attala County had no additional duty imposed by the Supplement to the contract.
¶ 13. The Mississippi Supreme Court has stated that, in some cases, it "can look beyond the contract to determine whether public policy requires recharacterization of the relationship to allow the injured party to recover." Chisolm, 942 So.2d at 142 (¶ 10). However, before doing so, it must be determined that the injured party be adversely affected and denied any adequate legal remedy. Id. (citing Richardson, 631 So.2d at 150). Attala County represented to this Court at oral argument that the Survivors' claim against Ausbern was still pending.
¶ 14. Furthermore, it would be unsound public policy to punish Attala County for including these additional safety measures in the Supplement. In LaChance, the Commonwealth Court of Pennsylvania found that the Pennsylvania Department of Transportation (PennDOT) did not exercise the necessary control over the worksite by including in its contract a provision retaining the right of inspection and the authority to suspend work. It went on to hold that:
LaChance, 869 A.2d at 1064 (emphasis added). We find no public-policy argument that would warrant the imposition of liability on Attala County.
¶ 15. Accordingly, we find that there was no genuine issue of material fact as to whether Attala County owed a duty or liability to warn of a dangerous condition and affirm the circuit court's grant of summary judgment.
¶ 16.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.