Hardin v. Town of Leakesville, 2020-CA-01164-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBEAM, JUSTICE
PartiesJEAN S. HARDIN v. TOWN OF LEAKESVILLE, MISSISSIPPI
Decision Date09 June 2022
Docket Number2020-CA-01164-SCT

JEAN S. HARDIN
v.

TOWN OF LEAKESVILLE, MISSISSIPPI

No. 2020-CA-01164-SCT

Supreme Court of Mississippi

June 9, 2022


DATE OF JUDGMENT: 09/22/2020

COURT FROM WHICH APPEALED: GREENE COUNTY CIRCUIT COURT TRIAL JUDGE: HON. STEPHEN B. SIMPSON

ATTORNEY FOR APPELLANT: A. MALCOLM N. MURPHY

ATTORNEY FOR APPELLEE: L. GRANT BENNETT, SR.

BEFORE KING, P.J., COLEMAN AND BEAM, JJ.

BEAM, JUSTICE

¶1. Jean Hardin appeals from the Greene County Circuit Court's grant of summary judgment in favor of Town of Leakesville on her claim that Leakesville negligently failed to maintain its drainage ditches around her home, resulting in personal and property damages. We agree that Hardin failed to present sufficient evidence that the water accumulated underneath her house was caused by any act or omission attributable to Leakesville; accordingly, we affirm the trial court's grant of summary judgment in favor of Leakesville.

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FACTS AND PROCEDURAL HISTORY

¶2. Hardin sued Leakesville in September 2015 claiming the town "wrongfully filled/closed" existing drainage ditches near her home located at 1817 Center Street, causing water to seep into the crawlspace underneath her home during heavy rains, and resulting "in mold/rot damage to her home." According to the complaint, Hardin initially "believed the flooding problem commenced sometime between the year 1995/2000 but later learned the problem commenced shortly after the city passed an ordinance closing a street on July 6, 1993." She claimed that her "damages are solely caused by the water not being properly drained away from her home." Attached to the complaint were the minutes of a town board meeting held on July 6, 1993.

¶3. Leakesville responded denying any negligence on its part and denying that the minutes from the July 6 board meeting contained any ordinance closing a street.

¶4. After the close of discovery, Leakesville filed a motion to strike Hardin's designated experts, along with a motion for summary judgment asserting that Hardin could not establish proximate cause and damages attributable to Leakesville. Following a hearing, the trial court granted both motions, concluding that Hardin provided no competent summary judgment evidence that the water underneath her house was caused by any act or omission attributable to Leakesville.

¶5. Specifically, the trial court held that because neither Hardin nor her witnesses ever observed water seep or flow into the crawlspace, the claim would require specialized

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knowledge within the scope of Rule 702 of the Mississippi Rules of Evidence to establish proximate cause. Having granted Leakesville's motion to strike Hardin's designated experts on Daubert[1] grounds, the trial court found that Hardin's deposition testimony and the deposition testimonies from her witnesses was insufficient to prove causation. The trial court further found that the sworn affidavit of Leakesville's expert, Jason Grover, had provided that the water accumulated underneath Hardin's house was not caused by any acts or omissions by Leakesville.

¶6. The evidence presented in support of Hardin's causation claim includes a photograph showing rainwater in a ditch located on the southside of Hardin's property, along with a photograph showing standing water in the yards of two of Hardin's neighbors, Nell Grey and Don O'Neal. Hardin's property fronts Center Street, and Grey's and O'Neal's properties front Grand Avenue, which intersects Center Street to the north of Hardin's location; Grand Avenue runs east and west, and Center Street runs north and south. Hardin's property sits directly south of Grey's property and southeast of O'Neal's property, and it fronts Center Street.

¶7. Three photographs were also submitted that show some standing water inside the crawlspace underneath Hardin's house. The causation evidence also consists of Hardin's

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testimony and testimony from Eldridge Arnold and Charlie Martin, both of whom Hardin designated as expert and fact witnesses in the case.

¶8. Hardin stated in her deposition that she did not know when water began to accumulate underneath her house. She never saw any water intrude into the crawlspace. She said Martin was the one who first told her that the water was coming from the ditch near her property. She could not recall exactly when Martin told her but said it was probably in 2014 or 2015. Hardin said she believed the seepage was due to a lack of adequate drainage from the ditches around her property. Hardin said that when her adult children (who were in their forties at the time of Hardin's deposition) were young, they frequently played in the yard around the house and that there was never a problem with standing water in the yard during that time.

¶9. Hardin said the ditch south of her property used to be deeper and ran the whole length of the alley west of her property. Then Leakesville "came in and filled it up with sand and dirt or whatever so . . . my neighbors behind me could drive in the back . . . through that alley instead of his front yard." Hardin said, "Although that's alley, that's all town property. But they did stop at my line, and I think that's when it started."

¶10. Attached to Hardin's complaint were the minutes from a board meeting held by Leakesville's mayor and alderman on July 6, 1993, which contains the following:

The next item on the agenda was the request form Mr. Melrose O'Neal, a resident of Leakesville residing on Grand Avenue. At a prior meeting, Mr. O'Neal had requested that the alley behind his house, adjacent to Lackey Street, be cleaned of trees and debris in order for him to be able to get to the rear of his property. Superintendent Byrd was instructed to locate the alley and report back to this Board at this meeting. Superintendent Byrd informed the
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Town Board that the alley had been located and that the fence that the Church of Christ had put up is not in the alley. After a thorough discussion, a motion was made by Alderman Daniels and seconded by Alderman Bullard to open the part of the alley from west of Lackey Street to the backyard of Melroe O'Neal under the conditions that this alley be kept cleaned.

¶11. Martin testified that he is a licensed plumber. He briefly inspected the plumbing underneath Hardin's house on one occasion; he could not recall the date. He remembered seeing some standing water underneath the house and did not see any plumbing leaks. He could not say where the water originated from, and he could not rule out the possibility that it came from unknown plumbing issues in the past. Martin also could not remember whether it had recently rained when he inspected the plumbing. He recalled seeing a ditch on the south side of Hardin's property, but he could not recall whether he saw water in the ditch or which way the water would have flowed in the ditch.

¶12. When asked if he ever determined whether water actually seeped out from the ground underneath Hardin's house, Martin replied, "No." Martin added, "I mean, basically other than the water table. Water is holding here, it's going to find its level, so if it's not draining here, then it's going to be the same level over here. If that level is the same level under there, common sense tells you that it's leveled out." Martin said he never did any testing or performed a "perc test," to measure the soil's water absorption.

¶13. Arnold testified that he is a former section manager for Chevron in Pascagoula, Mississippi, having retired in 1998. He said that he has no formal engineering background and holds no special licenses or certificates dealing with plumbing, hydrology, and surveying.

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Arnold is a friend of Hardin's and has been to Hardin's house several times. He said he has observed standing water around the property and underneath her house. On one occasion, he observed no standing water underneath the house, only mud.

¶14. Arnold took a number of measurements around Hardin's property and the perimeter of her home using a laser level tripod he had previously purchased from a hardware store. In his opinion, the standing water he observed underneath the house "came in from the bottom and seeped in" from the soil due to a high water table. Arnold said he reached this conclusion because when "looking down there when it was gully-washers coming, the water was not disturbed, so it had to be coming from underneath."

¶15. Arnold could not say how long the water he observed under the house had been there or exactly where it came from. But he believed the water flow originates from the "Dollar Store" located on the north side of Grand Avenue. Arnold said he observed heavy rain water falling from the Dollar Store's rooftop and flowing down the one acre lot behind the store, where some of the water then splits and crosses over Grand Avenue onto Grey's and O'Neal's properties.[2] Arnold did not say whether he actually observed water flow from Grey's and O'Neal's properties onto the northside of Hardin's property. He indicated, however, as follows: "What I saw from the pattern of the leaves - - the leaves and things is

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the water comes in under the west end of the fence down about 10 or 15 feet and goes into the yard and cuts back and goes running back there. That would be my summation." ¶16. Arnold indicated that he never performed any soil test, and he did not know what the water level is for the type of soil on Hardin's property. Arnold said he did observe where someone had performed a "perc test" in Hardin's yard. He said there was a hole dug in the yard that had water in it. He did not know who dug the hole or whether anyone could have poured water into it. He said the yard was saturated with water at the time, so he assumed that was why water was in the hole.

¶17. Through Arnold's deposition testimony, Hardin submitted, over Leakesville's objection, a photograph of the south ditch taken by Hardin's...

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