Campbell v. Harrison Cnty. Bd. of Supervisors

• Decision Date: 15 November 2018
• Docket Number: NO. 2017-CA-00961-COA,2017-CA-00961-COA
• Citation: 269 So.3d 1269
• Parties: John Tate CAMPBELL, Appellant v. HARRISON COUNTY BOARD OF SUPERVISORS, Harrison County Sand Beach Authority and Harrison County, Mississippi, Appellees
• Court: Mississippi Court of Appeals

269 So.3d 1269

John Tate CAMPBELL, Appellant

v.HARRISON COUNTY BOARD OF SUPERVISORS, Harrison County Sand Beach Authority and Harrison County, Mississippi, Appellees

NO. 2017-CA-00961-COA

Court of Appeals of Mississippi.

November 15, 2018

Rehearing Denied February 12, 2019

ATTORNEY FOR APPELLANT: OWEN J. BRADLEY

ATTORNEYS FOR APPELLEES: TIM C. HOLLEMAN, Gulfport, PATRICK TAYLOR GUILD

EN BANC.

WILSON, J., FOR THE COURT:

¶ 1. John Tate Campbell was seriously injured when he fell into an open drainage channel while walking on the beach late at night without a flashlight. The channel, which is sixteen to eighteen feet wide, is on the beach near the Courthouse Road Pier in Gulfport.

¶ 2. Campbell sued Harrison County under the Mississippi Tort Claims Act, alleging that the county negligently failed to protect him from and warn him of a dangerous condition. The circuit court granted summary judgment in favor of the county.

¶ 3. We hold that the wide drainage channel is an "open and obvious" condition and that Campbell's own negligence in walking straight into it was the sole proximate cause of his injury. Therefore, we affirm the circuit court's order granting summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 4. In the 1920s, a seawall was constructed south of Highway 90 on the Mississippi Gulf Coast to protect the highway from erosion. Subsequently, beaches south of the seawall disappeared due to the new wave patterns caused by the seawall and erosion. Then, in 1947, a severe hurricane destroyed a considerable part of the highway and seawall. In the early 1950s, sand was pumped in from the Mississippi Sound to create a sand beach south of the seawall to protect the seawall and the highway from future hurricanes.¹

¶ 5. Numerous drainage pipes were installed to drain surface water and rainwater from upland areas and the highway through the seawall to the Mississippi Sound. Most of the water drains through underground pipes that run under the sand beach to the Sound. However, there are eleven open drainage channels in areas where underground pipes are insufficient to handle the runoff.² The open channels have been on the beaches since the 1950s. Three of the channels are fenced or partially covered; the other eight are not. Post-Hurricane Katrina, in approximately 2008, the beaches were replenished, and pedestrian bridges were built over some of the channels, along with signs that state: "CAUTION[;] OPEN CHANNEL[;] CROSS AT SEAWALL OR PEDESTRIAN BRIDGE.

¶ 6. This case involves the open drainage channel near the Courthouse Road Pier in Gulfport. This channel is sixteen to eighteen feet wide. It runs from the seawall across the sand beach to the water of the Mississippi Sound. It has been there since the early 1950s. One-foot-square concrete "spreader beams" extend across the width of the channel every ten feet or so. A pedestrian bridge on the beach also crosses the channel. It appears that the channel is about eight to ten feet deep. The water level in the channel varies.

¶ 7. On August 27, 2014, around 11 p.m., Campbell and his fiancee, Angela Smith, were visiting a friend, Will Bradley, at his house in Gulfport. Bradley lived near Texas Avenue a few blocks north of Highway 90. Campbell, Smith, Bradley, and Bradley's date³ decided to go for a walk on the beach. No one in the group carried a flashlight or any other source of light.

¶ 8. The group walked south from Bradley's house, crossed over Highway 90 and the seawall, and walked onto the beach and down to the water's edge. At that point, according to Campbell, they "kind of broke up into couples," and "were having just a romantic stroll," "holding hands" and "making out." Campbell testified that he was wearing some nice shoes, and he noticed that the water was ruining them. Campbell also "wanted to go use the bathroom," which was close to a nearby parking lot. Campbell also testified that he was becoming "embarrassed" because he is "a big boy" and was "sweating" and "huffing and puffing" from the walk to the beach. So, after only a short stroll along the water's edge, Campbell "let go of [Smith's] hand" and "started walking in front of [her]" away from the water. Smith testified that, over a relatively short distance, Campbell walked far enough ahead of her that Bradley and his date were walking between them. Smith testified that the four of them "were scattered about" as they walked away from the water, so she was unsure whether the others took "the exact same path as [she did]."

¶ 9. Campbell walked away from the water in a northeasterly direction, toward a parking lot near the pier. Campbell testified that he saw the one-foot-square "spreader beams" that extend across the open drainage channel every teen feet or so. Indeed, he testified that he saw the beams when he was still thirty or forty yards away from the channel. However, Campbell testified that, in the dark, he thought that the concrete spreader beams were actually "parking lot bumpers" in the parking lot. Campbell testified that after he saw the concrete beams from a distance of thirty or forty yards, he "paid no attention to [the beams]" and just continued "walking forward" and "looking forward" until he suddenly fell into the channel. Campbell claimed that he never actually saw the channel before he fell into it. He testified that the channel was not "visible" in the darkness. Smith similarly testified that the beach was dark enough that she could not tell what the channel was until she got down on her knees, crawled up to the channel, and touched it with her hands.

¶ 10. When Campbell fell into the channel, the water was only knee-deep or waist-deep. Campbell suffered severe compound/open fractures to his left tibia and fibula and other severe injuries to his leg. Campbell was unable to pull himself out of the channel, and Smith and Bradley were also unable to pull him out. Smith eventually climbed into the channel with Campbell to try to help him. A few minutes later an ambulance and the fire department arrived, and they were able to remove Campbell from the channel. Campbell was taken to the hospital. He required extensive treatment and multiple surgeries to repair his leg and to treat infections to his leg.

¶ 11. In November 2015, having previously filed a notice of claim pursuant to Mississippi Tort Claims Act (MTCA), see Miss. Code Ann. § 11-46-11 (Rev. 2012), Campbell filed suit against Harrison County⁴ in the Harrison County Circuit Court. The county answered, denied liability, and asserted various defenses, including immunities and exemptions from liability under the MTCA. Following discovery, the county filed a motion for summary judgment, arguing that it was exempt from liability pursuant to Mississippi Code Annotated section 11-46-9(1)(v) (Rev. 2012) and had "committed no act of negligence which proximately caused or contributed to [Campbell's] accident and injuries."

¶ 12. Following a hearing on the county's motion, the circuit court granted summary judgment in favor of the county. The court held that the exemption in section 11-46-9(1)(v) applied because the drainage channel was an "open and obvious" condition. The court also concluded that Campbell's injuries were attributable to his decision to proceed through an unfamiliar area in the dark. Campbell filed a timely notice of appeal.

ANALYSIS

¶ 13. "We review the grant ... of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made." Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88 (¶ 9) (Miss. 2013) (quotation marks omitted). The circuit court's rulings on questions of law and statutory interpretation are also reviewed de novo. City of Jackson v. Harris , 44 So.3d 927, 931 (¶ 19) (Miss. 2010). We will affirm if an order granting summary judgment if the record "show[s] 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." M.R.C.P. 56(c) ; see Stroud v. Progressive Gulf Ins. Co. , 239 So.3d 516, 526 (¶ 31) (Miss. Ct. App. 2017).

¶ 14. The MTCA waives "the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment." Miss. Code Ann. § 11-46-5(1) (Rev. 2012). However, the MTCA also provides that a governmental entity "shall not be liable" in a variety of contexts and circumstances. Miss. Code Ann. § 11-46-9(1). As relevant in this case,

A governmental entity ... shall not be liable for any claim ... [a]rising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care ....

Id. at (v) (emphasis added).

¶ 15. This Court has recognized that the italicized "provided" clause "is a complete bar in a Tort Claims Act case for the failure to warn of a dangerous condition." City of Natchez v. Jackson , 941 So.2d 865, 876 (¶ 33) (Miss. Ct. App. 2006). Thus, a governmental entity shall not be held liable for the failure to warn of an "open and obvious" condition. Id.⁵ However, the open-and-obvious defense is not a complete bar to recovery for every premises liability claim against a governmental entity. Calonkey v. Amory Sch. Dist. , 163 So.3d 940, 943 (¶ 14) (Miss. Ct. App. 2014). Rather, "as the statute clearly states, the fact that a dangerous condition is obvious only exempts the [governmental entity] from liability for the failure to warn of the condition." Id. "It is not a bar to recovery when the issue is the...