City of Jackson v. Internal Engine Parts Group, Inc.

• Decision Date: 31 March 2005
• Docket Number: No. 2003-CA-02772-SCT.,2003-CA-02772-SCT.
• Citation: 903 So.2d 60
• Parties: The CITY OF JACKSON v. The INTERNAL ENGINE PARTS GROUP, INC. a/k/a Engine Parts Warehouse Jackson and Clearbrook Holdings, LLC.
• Court: Mississippi Supreme Court

903 So.2d 60

The CITY OF JACKSON v. The INTERNAL ENGINE PARTS GROUP, INC. a/k/a Engine Parts Warehouse Jackson and Clearbrook Holdings, LLC.

No. 2003-CA-02772-SCT.

Supreme Court of Mississippi.

March 31, 2005.

Rehearing Denied June 2, 2005.

Barbara A. Bluntson, Jackson, attorney for appellant.

Joseph E. Lotterhos, Charles Frank Fair Barbour, Jackson, attorneys for appellees. Before COBB, P.J., DICKINSON and RANDOLPH, JJ.

RANDOLPH, Justice, for the Court.

¶ 1. The Internal Engine Parts Group, Inc. a/k/a Engine Parts Warehouse Jackson, and Clearbrook Holdings, LLC (collectively referred to as "Engine Parts") filed a complaint against the City of Jackson, on January 23, 2002, in the Hinds County Circuit Court. The complaint sought to recover damages for alleged acts of negligence and breach of contract against the City of Jackson for property damage sustained during a period of heavy rainfall and flooding. On November 24, 2003, the circuit court entered its verdict and judgment awarding $369,480.32 in favor of Engine Parts. On December 4, 2003, the City of Jackson filed its Post-Trial Motion for Amendment or Reconsideration of Findings and Judgment and/or in the alternative Motion for New Trial. On December 17, 2003, the circuit court entered its Order Denying the City of Jackson's Post Trial Motion. This appeal followed.

FACTS

¶ 2. Engine Parts owns and operates a business located at 811 South Gallatin Street, Jackson, Hinds County, Mississippi. On the morning of August 12, 2001, the metro area of Jackson received a large amount of rainfall. Many areas around Jackson flooded, including the area of Gallatin Street where Engine Parts is located. Engine Parts alleged that the flooding of its property was caused by a nearby drainage ditch that was filled with pre-existing debris and materials which obstructed the flow of water. This drainage ditch runs under Gallatin Street near the intersection of Gallatin Street and Hiawatha. The City of Jackson maintains the city's drainage ditches.

¶ 3. Al Campbell, who owns a building near Engine Parts, testified that prior to the flood he contacted the City five to six times to tell them that the drainage ditch was filled with debris. The debris consisted of furniture, mattresses, logs, and brush. He also testified that about thirty days prior to the flood, Carlos Bean,¹ the manager of Engine Parts, had called the City to inform them about the drainage ditch. The City did not respond to these calls and failed to clean out the debris from the ditch until after the flood. Prior to this date, the Engine Parts building had never flooded, even during the Jackson Easter Flood of 1979 and was not located within a flood zone.

¶ 4. As a result of the obstructions to the flow of water, up to 34 inches of water flooded Engine Part's building. The building incurred substantial damage and the inventory stored therein was destroyed. It was stipulated that Engine Parts suffered $369,480.32 in damages.

¶ 5. Engine Parts submitted its Notice of Claim pursuant to the Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2004), and, subsequently, filed its complaint against the City of Jackson on January 23, 2002. Following a bench trial, the court awarded Engine Parts $369,480.32.

ANALYSIS

¶ 6. The City of Jackson raises the following issues on appeal:

I. Whether the trial court erred by failing to find that the City of Jackson was exempt or immune from liability pursuant to the Mississippi Tort Claims Act.

II. Whether the trial court erred by failing to allow testimony of two of the City of Jackson's fact witnesses.

III. Whether the judgment of the trial court was against the overwhelming weight of the evidence.

IV. Whether the trial court erred in denying the City of Jackson's post-trial motion for amendment or reconsideration or in the alternative motion for new trial.

V. Whether the trial court erred in failing to make a findings of fact and conclusions of law pursuant to Rule 52(a) of the Mississippi Rules of Civil Procedure.

¶ 7. The standard of review for a judgment following a bench trial is as follows: "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence." City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000). Questions of law, which include the proper allocation of the Mississippi Tort Claims Act, are reviewed de novo. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000).

I. Whether the trial court erred by failing to find that the City of Jackson was exempt or immune from liability pursuant to the Mississippi Tort Claims Act.

¶ 8. This case was brought under the Mississippi Tort Claims Act, which permits negligence actions against state agencies under certain circumstances. Simpson v. City of Pickens, 761 So.2d 855, 860 (Miss.2000). The City of Jackson argues that the circumstances of the instant action fall under one of the exemptions, i.e., § 11-46-9(1)(v). This section reads in pertinent part:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

* * *

(v) Arising 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.

Miss.Code Ann. § 11-46-9(1)(v).

¶ 9. After reviewing all of the evidence, the trial judge determined that the flooding of Engine Parts was caused by the City's negligence. The following facts and circumstances were established by the evidence: (A) there was a drainage ditch filled with debris which the City inspected and maintained; (B) the hazardous condition, in combination with the flood, was caused or contributed to by the negligence and wrongful conduct of the City employees in failing to regularly inspect and maintain the subject drainage ditch; (C) the evidence clearly established that the City through its employees, either knew or should have known that this condition existed prior to the flood; as testimony revealed that its employees were notified five or six times in the year prior to the flood, and were notified again a month before the flood that the debris obstruction existed, and (D) because the City was notified of the debris in the drainage ditch well before the flood, it had adequate opportunity to remove or clean up the hazard created by the debris. This Court finds that the trial court's findings were supported by substantial, credible, and reasonable evidence.

¶ 10. First, the City of Jackson argues that the flash flood that occurred on August 12, 2001, was the dangerous condition and that it had no notice of this dangerous condition until after it had happened. This argument is flawed. The City of Jackson, by its negligent failure to inspect and maintain the drainage ditch, created a separate dangerous condition; i.e. an obstructed drainage ditch through which water could not properly flow, which proximately caused or contributed to the flooding of Engine Parts' building. There was substantial credible evidence to support the trial court's finding that the City had either actual or constructive notice of the debris obstructions.

¶ 11. The City of Jackson also contends that, even if notice had been provided, it should not be held liable for a failure to warn of a dangerous condition which is obvious to one exercising due care, citing City of Clinton v. Smith, 861 So.2d 323 (Miss.2003). In Smith, the plaintiff slipped and fell on snow and ice while leaving a municipal court building. The circuit court ruled that there was no immunity available to the City of Clinton because the city had either actual or constructive knowledge of the dangerous condition. Id. at 326. However, this Court reversed and found that the trial court erred when failing to look at the entire language of Miss.Code Ann. § 11-46-9(1), and found that the city was not liable for failure to warn of the dangerous condition because the condition was open and obvious in that Smith knew that the steps were covered with ice and snow and that he wasn't paying attention. Id. at 327. However, the case before the Court today is not a failure to warn case. The issue here is not whether the City was negligent for failing to warn of a dangerous condition, but rather whether the City was negligent for failing to inspect and maintain the drainage ditch, and consequently allowing a dangerous condition to continue to exist.

¶ 12. The City argues that the trial court's decision regarding immunity was based upon Miss.Code Ann. § 11-46-3(3), cited in the verdict as § 11-46-3(c), regarding immunity based upon a proprietary obligation or function, which is no longer valid. The trial court was presented with arguments regarding § 11-46-9 during the City of Jackson's motion for directed verdict which was denied. Section 11-46-9 is the applicable statute to determine the immunity of the City, and § 11-46-9 fails to establish such immunity. This issue is without merit.

II. Whether the trial court erred by failing to allow testimony of two of the City of Jackson's fact witnesses.

¶ 13. On February 27, 2002, Engine Parts submitted its First Set of Interrogatories to the City of Jackson. Engine Parts filed a Motion to Compel Discovery, and the City of Jackson submitted its Response to the interrogatories on June 17, 2002. Engine Parts' Interrogatory Numbers 2 and 3 and the City of Jackson's respective responses were as follows:

Interrogatory No. 2:

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