Borries v. Grand Casino of Miss., Inc.

• Decision Date: 31 March 2016
• Docket Number: No. 2013–CA–01274–SCT.,2013–CA–01274–SCT.
• Citation: 187 So.3d 1042
• Parties: K.R. BORRIES, Individually, d/b/a K.R. Borries Construction Company v. GRAND CASINO OF MISSISSIPPI, INC. BILOXI.
• Court: Mississippi Supreme Court

187 So.3d 1042

K.R. BORRIES, Individually, d/b/a K.R. Borries Construction Company

v.GRAND CASINO OF MISSISSIPPI, INC. BILOXI.

No. 2013–CA–01274–SCT.

Supreme Court of Mississippi.

March 31, 2016.

Christopher Hailey Corkern, Ridgeland, Alan M. Purdie, Grenada, attorneys for appellant.

Kasee Sparks Heisterhagen, John P. Kavanagh, Jr., attorneys for appellee.

EN BANC.

BEAM, Justice, for the Court:

¶ 1. This case arises from property damage suffered by Borries Construction when Grand Casino's gambling barges broke loose from their moorings and collided with the Schooner Pier and surrounding structures during Hurricane Katrina. Following Hurricane Katrina, K.R. Borries filed suit on behalf of himself and his construction company against Grand Casino. Grand Casino filed a motion for summary judgment, which the circuit court granted.

¶ 2. Borries now appeals, alleging that Grand Casino breached its duty of care to Borries by negligently mooring its casino and failing to take precautions to prevent foreseeable harm to nearby property owners. This Court reverses the trial court's grant of summary judgment because there was a battle of the experts, and the issue should have been presented to a jury.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 1994, Grand Casino opened and operated a floating barge casino on the Mississippi Gulf Coast. Grand Casino was licensed by the Mississippi Gaming Commission in accordance with the commission's hurricane preparedness policy. The policy required that "cruise vessels utilized for gaming on the Mississippi Gulf Coast, in the Biloxi Bay[,] or in the Bay of St. Louis, that are not self propelled, are to be moored to withstand a Category 4 Hurricane with 155 mile per hour winds and fifteen-foot tidal surge." Mississippi Gaming Commission Regulation § II(B)(10). The Gaming Commission originally set forth the policy in 1994, and amended it in 1995 and 1997 to reduce the wind-speed requirements, but left intact its requirements that barges be moored to withstand a fifteen-foot storm surge. The Gaming Commission issued a license to the Grand Casino barge for operation as compliant with the Commission's hurricane policy.

¶ 4. In 1999, Grand Casino moored an additional eight-million-pound barge, the Lady Luck, to the Grand Casino barge. The Lady Luck was not separately licensed. On August 29, 2005, Hurricane Katrina tore the Grand Casino and the Lady Luck from their moorings. After being cast adrift, the Grand Casino barge was separated from the Lady Luck. Allegedly, either the Grand Casino or the Lady Luck addition collided with its neighbor, the Schooner Pier. Prior and up to the impact of Hurricane Katrina, the Schooner Pier had been under construction by K.R. Borries, doing business as Borries Construction.

¶ 5. Borries subsequently filed a complaint against Grand Casino for negligence and gross negligence arising out of the property damage he sustained. Grand Casino filed a motion for summary judgment, arguing that the barge was moored in accordance with the requirements of the Mississippi Gaming Commission, and that it owed no duty because Hurricane Katrina was an Act of God and unforeseeable. To support its motion for summary judgment, Grand Casino submitted three supporting affidavits from Gordon Reigstad, David Mitchell, and Clifford Green. Reigstad, a licensed Mississippi engineer, attested that Grand Casino's mooring system met and exceeded the fifteen-foot, storm-surge Gaming Commission requirement and was designed to accommodate a seventeen-foot storm surge. Mitchell, a consulting forensic meteorologist, testified that the maximum storm surge at the location of the Grand Casino was over twenty-one feet, and that wave action would have added an additional three to four feet. Green, past president of a consulting firm, testified that Grand Casino's mooring system complied with the Gaming Commission's guidelines and was able to withstand fifteen-foot storm surge.

¶ 6. Borries submitted affidavits from two experts, Dr. William Dally and Edward Geoffrey Webster. Both experts testified that the Grand Casino mooring system was designed to accommodate a fifteen-foot storm surge but because of prior storm history, Grand Casino's mooring system should have been based on the known maximum surge heights of Hurricane Camille, which struck the Gulf Coast in 1969. The trial court granted Grand Casino's motion for three reasons.

First, Plaintiff's argument that Defendant breached its duty fails because Plaintiff does not present anything other than generic references about Hurricane Camille's storm surge at the location of the Grand Casino. Second, the Mississippi Gaming Commission had knowledge of Camille's storm surge and still set the standard for moorings at 15 feet and Grand Casino followed the Gaming Commission's regulation. Finally, even if Plaintiff had presented adequate facts showing Camille's storm surge reached certain heights at the location of the Grand Casino, the one-time occurrence, without more, does not set the applicable standard of care that must be exercised for every building project thereafter.

¶ 7. Borries filed a motion to reconsider and/or to alter or amend the judgment. The motion was denied. Borries appealed to this Court raising the following two issues:

1. Whether the circuit court erred in finding that Grand Casino did not breach its duty to take reasonable precautions to protect those in close proximity of its barges because it complied with the Mississippi Gaming Commission's regulations.

2. Whether the circuit court erred by applying the Act of God defense to Grand Casino.

STANDARD OF REVIEW

¶ 8. A trial court's grant of summary judgment is reviewed de novo. Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). "Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite." Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001) (citing Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000) ). The moving party has the burden of demonstrating that no genuine issue of fact exists, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). "The nonmoving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial." Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997). "If any triable issues of fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise the decision is affirmed." Id.

ANALYSIS

1. Whether the circuit court erred in holding that no genuine issue of material fact existed regarding Grand Casino's breach of its duty to take reasonable precautions to protect those in close proximity to the Grand Casino.

¶ 9. To prove a negligence claim, Borries must show that (1) Grand Casino owed it a duty; (2) Grand Casino breached that duty; (3) there was a causal connection between the breach of duty and the alleged injury to Borries; and (4) Borries suffered damages. See Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (Miss.2004) ("Duty and breach of duty are essential to finding negligence and must be demonstrated first.") It is undisputed that Grand Casino owed a duty to property owners in close proximity to take reasonable measures to prevent foreseeable injuries in the event of a hurricane. See Eli Inv., LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151 (Miss.2013). This Court must determine whether Borries presented sufficient evidence to create a material fact as to whether Grand Casino breached its duty.

¶ 10. On appeal, Borries claims that this case is identical to Eli, where this Court reversed summary judgment because both parties presented affidavits from experts, establishing a battle of the experts. In Eli, Silver Slipper Casino was torn from its mooring during Hurricane Katrina and collided with a hotel owned by Eli. Id. at 153. Eli alleged that Silver Slipper had breached its duty to take reasonable steps to prevent foreseeable harm to property owners during Hurricane Katrina. Id. at 155. Eli's expert opined that, because of prior storm history, Hurricane Katrina's storm surge was foreseeable, but that Silver Slipper had failed to consider what would happen if its barge encountered a significant storm surge in light of three other hurricanes at that casino's location. Id. This affidavit was supported by statistics from the National Oceanic and Atmospheric Administration (NOAA) citing at least three hurricanes with storm surges of greater than fifteen feet in the Mississippi Gulf Coast prior to Hurricane Katrina. Id. Further, Eli's expert attested that "the moorings used to restrain a vessel in position along a dock in a marina were not sufficient to restrain the President Casino if it encountered a significant storm surge, as experienced along the Mississippi Gulf Coast during prior hurricanes." Id.

¶ 11. Silver Slipper's expert opined that it did not breach its duty because the casino was moored in compliance with the Mississippi Gaming Commission's regulations "to withstand a Category 4 hurricane with 155 mile per hour winds and 15 foot tidal surge." Id. Further, the casino did not float free of its moorings until the storm surge exceeded the fifteen-foot tidal surge required by the Gaming Commission. Id. This Court found that the "differing opinions established a ‘battle of the experts' on the issue of whether Silver Slipper took reasonable steps to secure the President Casino to prevent foreseeable harm to nearby property...