City of Jackson v. Brown

• Decision Date: 31 December 1998
• Docket Number: No. 97-CA-00359-SCT.,97-CA-00359-SCT.
• Citation: 729 So.2d 1231
• Parties: The CITY OF JACKSON, Mississippi v. Phillip BROWN, Individually, and on Behalf of the Heirs of Willie Brown, Deceased.
• Court: Mississippi Supreme Court

729 So.2d 1231

The CITY OF JACKSON, Mississippi v. Phillip BROWN, Individually, and on Behalf of the Heirs of Willie Brown, Deceased.

No. 97-CA-00359-SCT.

Supreme Court of Mississippi.

December 31, 1998.

Rehearing Denied February 25, 1999.

Romaine L. Richards, Jackson, Attorney for Appellant.

William P. Featherston, Jr., Ridgeland, Suzanne Keys, Jackson, Attorneys for Appellee.

Before PRATHER, C.J., and JAMES L. ROBERTS, Jr. and MILLS, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Phillip Brown filed suit individually, and on behalf of the heirs of Willie Brown, deceased (hereinafter "Brown"), on March 16, 1994, against the City of Jackson (hereinafter "City"), Mississippi as a result of the death of his father, Willie Brown, by drowning in a tributary to a town creek located in the vicinity of Pleasant Avenue in the City of Jackson, Mississippi. The date of the decedent's death was May 1, 1993.

¶ 2. The City of Jackson filed its Motion for Dismissal or in the Alternative for Summary Judgment. The court entered its order granting partial summary judgment to the defendant for the negligence of the personnel of the City of Jackson Fire Department and Police Department for negligently failing to rescue the decedent, Willie Brown. The court further found that the maintenance of streets was a proprietary function and refused to dismiss as to the City of Jackson on the issue of street maintenance, including placement of guardrails. Thereafter, and prior to trial, the City reurged its Motion to Reconsider the Motion to Dismiss or in the Alternative for Summary Judgment once again raising the issue of sovereign immunity. The court overruled the Motion to Reconsider the sovereign immunity issue.

¶ 3. The case proceeded to be tried to a jury commencing January 6, 1997. At the close of Brown's case, the City's Motion for a Directed Verdict which re-urged the sovereign immunity issue was denied.

¶ 4. At the conclusion of the trial, the jury found in favor of Brown and returned its verdict with judgment entered thereon in the amount of $1,312,500.00. Thereafter, the City filed its Motion J.N.O.V. or for a new trial. The court denied said motions. The City then filed its Motion for Relief of Judgment which the court later denied. The City filed its Notice of Appeal raising the following issues:

I. WHETHER THE CITY OF JACKSON IS IMMUNE FROM THE PRESENT ACTION?

II. WHETHER THE JURY INSTRUCTIONS AS GIVEN WERE CONFUSING, DID NOT REFLECT THE LAW, AND WERE HIGHLY PREJUDICIAL TO THE CITY, THUS CAUSING AN INJUSTICE?

III. WHETHER THE COURT ERRED IN NOT ALLOWING THE CORONER'S REPORT TO BE INTRODUCED UNDER RULE 803 OF THE MISSISSIPPI RULES OF EVIDENCE?

IV. WHETHER THE COURT ERRED IN EXCLUDING THE TESTIMONY OF MIKE WEAVER, TOXICOLOGIST?

V. WHETHER THE COURT ERRED IN ALLOWING TESTIMONY REGARDING THE COST OF CONSTRUCTION OF A GUARDRAIL OVER THE OBJECTION OF THE CITY?

VI. WHETHER THE AMOUNT OF THE DAMAGE AWARD WAS SO EXCESSIVE AS TO SHOCK THE CONSCIENCE AND REFLECT A BIAS AND PREJUDICE ON THE PART OF THE JURY AGAINST THE CITY?

VII. WHETHER THE COURT ERRED IN ALLOWING A JUDGMENT IN EXCESS OF THE DEMAND TO BE ENTERED?

VIII. WHETHER THE COURT ERRED IN ALLOWING BROWN TO AMEND THEIR COMPLAINT AFTER THE JURY VERDICT

AND NOTICE OF APPEAL TO THE MISSISSIPPI SUPREME COURT HAD BEEN FILED AND THE TRANSCRIPT FORWARDED?

¶ 5. After the Notice of Appeal had been filed, Brown filed its Motion for Leave to Amend Complaint to Conform to the Evidence. The court granted the Motion to Amend Judgment. These motions were heard after the record had been prepared and filed with this court. The City filed its motion to supplement the record to include the orders overruling the Motion for Relief of Judgment as well as the order granting Brown's Motion to Amend the Pleadings to Conform with the Evidence.

STATEMENT OF THE FACTS

¶ 6. May 1, 1993, the decedent, Willie Brown fell into a creek in the 1400 block of Pleasant Avenue in the City of Jackson, Mississippi. The decedent had been visiting at a local grocery store on that day and had consumed some beer. The decedent proceeded to leave the store with a box of trash to throw into a creek on the opposite side of Pleasant Avenue from the store. As the decedent was throwing the trash into the creek he fell in the water course which was filled to near capacity as a result of a large amount of rainfall on that date.

¶ 7. There was conflicting evidence as to whether the decedent was intoxicated on the day of the incident. The body of Willie Brown had been in the water of Town Creek from May 1st until May 3rd, 1993. Mike Weaver, a toxicologist employed by the Mississippi Crime Lab, testified that he performed a blood alcohol test on a blood sample extracted from the decedent which contained.29% ethyl alcohol. Mike Weaver also testified that a human body can produce ethyl alcohol as a result of decomposition in the range of .05% to .08%. Therefore, there was a factual dispute as to the true blood alcohol level of the decedent. The court excluded any testimony that Weaver would make as to what effect a .29% blood alcohol level would have on the decedent's motor functions and/or ability to make rational decision. This exclusion was due to the City's failure to designate Weaver as an expert in response to interrogatories propounded by Brown. In addition, the City withdrew the offer of Weaver as an expert and the court allowed him to testify as a fact witness on the blood alcohol test only.

¶ 8. There was testimony that Willie Brown had consumed a quantity of beer between 8:00 a.m. and 11:30 a.m., but there was no testimony from anyone that the decedent had consumed any alcohol between 11:30 a.m. and 7:00 p.m. when he fell into the creek. An eyewitness to Willie Brown's actions moments before he fell into the creek testified that the decedent's speech and balance were not impaired and that he was not drunk.

¶ 9. The City contended that Brown's argument that the placement of a guardrail is a government function was argumentative and not factual. Although a witness for the City testified that the AASHTO standards only applied to new construction and not street maintenance and repair, this testimony was disputed and contradicted and apparently the jury resolved the conflict in favor of Brown's case.

¶ 10. The Court also excluded the official Coroner's Report due to the fact that the report contained hearsay and was not within the exception to hearsay provided by the rules of evidence, and for the reason that the report was signed by the Hinds County Coroner rather than the witness who conducted the investigation.

¶ 11. The jury returned its verdict in the amount of $1, 312,500.00 after having found the decedent twenty-five percent (25%) contributorily negligent. A judgment was entered on this amount.

DISCUSSION OF THE ISSUES

I. WHETHER THE CITY OF JACKSON IS IMMUNE FROM THE PRESENT ACTION?

¶ 12. The City asserts that the circuit court erred in denying its motions and in finding that the City was not entitled to immunity according to the Mississippi Tort Claims Act, and specifically, Miss.Code Ann. § 11-46-3, which was effective April 1, 1993, one month prior to the accident that is the subject of this litigation. Miss.Code Ann. reads as follows:

(1) The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare, provide, enact and reenact that the "state" and its "political subdivision," as such terms are defined in Section 11-46-1, are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract, including but not limited to libel, slander or defamation, by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act, omission or breach may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefor.

Miss.Code Ann. § 11-46-3(1) (Supp.1998). Thus, the City believes that the legislature exempted all state entities from liability from April 1, 1993, until its waiver of sovereign immunity as to the State on July 1, 1993, and Municipalities on October 1, 1993.

¶ 13. The City is incorrect as to the applicable statute on sovereign immunity in effect at the time the present cause of action arose. The City quoted Subsection (1) of Miss.Code Ann. § 11-46-3. However, the City has failed to quote a very important part of the statute which was contained in Subsection (3) which read as follows:

(3) The immunity recognized and reenacted unto this section shall not be applicable to an incorporated municipality for any wrongful or tortious act or omission by such municipality or any employee of such municipality that arises out of the exercise or failure to exercise any duty, obligation or function of a proprietary nature.

The above quoted Subsection (3) which exempted municipalities from sovereign immunity for actions or inactions of a proprietary nature was effective until October 1, 1993, and went into effect from and after passage on April 1, 1993. The present cause of action arose on May 1, 1993, when the decedent fell into a drainage ditch in the city of Jackson and drowned. Thus, the City is not automatically immune from liability, and it must be determined into which Subsection the City is categorized.

¶ 14. The City cites the case of Gressett v. Newton Separate Municipal School...