Howard v. City of Biloxi, No. 2005-CA-00829-COA.

• Decision Date: 28 November 2006
• Docket Number: No. 2005-CA-00829-COA.
• Citation: 943 So.2d 751
• Parties: Norma HOWARD, Appellant v. CITY OF BILOXI, Appellee.
• Court: Mississippi Court of Appeals

943 So.2d 751

Norma HOWARD, Appellant v. CITY OF BILOXI, Appellee.

No. 2005-CA-00829-COA.

Court of Appeals of Mississippi.

November 28, 2006.

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Victor Boyd Pringle, Biloxi, Carey R. Varnado, Hattiesburg, Timothy P. Kottemann, Biloxi, attorneys for appellant.

Ronald G. Peresich, Gina Bardwell Tompkins, Biloxi, attorneys for appellee.

Before MYERS, P.J., GRIFFIS, and BARNES, JJ.

MYERS, P.J., for the Court.

¶ 1. Ms. Norma Howard appeals from an order of the Circuit Court of Harrison County, Mississippi, Honorable Jerry O. Terry, Sr. presiding, which granted the motion of the City of Biloxi, Mississippi, for summary judgment. This case involves a determination as to whether Ms. Howard has provided any evidence which would create a genuine issue of material fact that would allow her to recover for her injuries sustained on City of Biloxi property, notwithstanding the immunity provided to the City under the Mississippi Tort Claims Act section 11-46-1 (Rev.2004).

STATEMENT OF FACTS

¶ 2. On March 27, 2003, Howard tripped and fell over a crack in the sidewalk, which has been described by the parties and the lower court as a ½" to 1½" unevenness, leading to the Lameuse Street entrance of the downtown Biloxi library. The library building and the realty on which the library sits are owned by the City of Biloxi and operated by the Harrison County Library System.

¶ 3. Howard filed her complaint against the City of Biloxi, alleging that the City negligently maintained the premises of the library by: (1) placing and/or allowing the uneven concrete which was not in compliance with relevant safety standards; (2) failing to inspect the premises for dangerous conditions, such as the presence of the uneven sidewalk; and (3) failing to warn the Howard of the uneven concrete. Howard alleged that the City had both actual and constructive knowledge of the uneven concrete, but failed to fix the concrete. Further alleged was that the City of Biloxi was on "notice" of the uneven concrete by employees of the library. Following the discovery period, the City of Biloxi moved for summary judgment and Howard timely responded. The trial court granted the City's motion for summary judgment, holding that Howard failed to show evidence that the City acted outside of its immunity provided by the Mississippi Tort Claims Act.

STANDARD OF REVIEW

¶ 4. In order to reverse the trial judge's grant of a motion for summary judgment, this Court conducts a de novo review and "examines all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc." City of Jackson v. Sutton, 797 So.2d 977, 979(¶ 7) (Miss.2001). The moving party has the burden of demonstrating that no genuine issue of material facts exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact. Id. "If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party's favor." Monsanto Co. v. Hall, 912 So.2d 134, 136(¶ 5) (Miss.2005). While Howard cites multiple issues in her appeal, these issues are combined and discussed under the general issue of whether the trial court erred in granting the City's motion for summary judgment.

DISCUSSION

¶ 5. The Mississippi Tort Claims Act provides the exclusive civil tort remedy against a governmental entity, and as such, dictates the elements a plaintiff must satisfy to recover against the City of Biloxi. The Act, as it relates to the present case, provides immunity to the City in pertinent part:

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) (Rev. 2004). In order for Howard to get beyond the statutory immunity provided by the Act, Howard had to show that:

(1) an injury was suffered;

(2) the injury was caused by a dangerous condition on the property of the Library caused by the negligent or other wrongful conduct of a City employee;

(3) the City had either actual or constructive notice of the defect;

(4) the City had an adequate opportunity to protect or warn of this defect; and

(5) the condition was not open and obvious to one exercising due care.

¶ 6. It is conceded by the parties that Howard fell and suffered an injury. However, in order to recover for this injury, Howard would have to show that she suffered an injury due to a dangerous condition existing because of negligence or other wrongful conduct of a City employee. Except in a case where a defect occurred because of negligence or wrongful conduct, "[s]uch a defect [is] not in itself sufficient proof to render the city liable for the failure to maintain its sidewalks in a reasonably safe condition for the use of persons exercising ordinary care and caution." City of Biloxi v. Schambach, 247 Miss. 644, 654, 157 So.2d 386, 390 (1963).

¶ 7. Admittedly, a municipality has a non-delegable duty to exercise ordinary care to keep and maintain its sidewalks and other public ways in a reasonably safe condition for the use of persons exercising ordinary care and caution. City of Tupelo v. Vaughn, 246 So.2d 88, 89 (Miss.1971); Schambach, 247 Miss. at 655, 157 So.2d at 391. In the case at bar, Howard argues that the City delegated the responsibility of maintaining the sidewalks of the library to the head librarian and urges this Court to find that the librarian was negligent in failing to maintain the sidewalks surrounding the library. However, a "municipality cannot be expected to maintain its sidewalks and street crossings in a perfectly level condition, and where the defect consists of some slight variation between the elevation of adjoining paving blocks, flagstones, or curbstones, or irregularity in the junction of the sidewalk and curb, no liability is imposed." Schambach, 247 Miss. at 655, 157 So.2d at 391.

¶ 8. We follow the lead of the Schambach court that dealt with a sidewalk located in the City of Biloxi and take judicial notice that "it is almost, if not quite, impossible for municipalities to prevent crevices in the streets and sidewalks as the one involved, which as a rule are the result of expansion and contraction from heat and cold." Id. at 392 (also discussing the trial testimony and exhibits showing that the "sandy soil of the Gulf Coast on which [the] sidewalk was laid [ ] contracts and expands and sinks causing the sidewalk to be uneven and wavy"). Municipalities, such as the City of Biloxi, cannot be charged with the duty to maintain sidewalks in "an absolutely perfect condition so as to render an accident impossible." Id. at 391. Pedestrians are charged with their own responsibility to exercise ordinary care to avoid naturally caused sidewalk defects. Id.

¶ 9. Although Howard argues that the City of Biloxi was negligent because it failed to inspect the sidewalk, formal inspection programs are not necessarily required to find that a municipality has upheld its duty to maintain its sidewalks. Bond v. City of Long Beach, 908 So.2d 879, 882(¶ 8) (Miss.Ct.App.2005). While this Court has recognized that the implementation of an inspection program is "certainly prudent," we also have stated that "[n]o municipality is laden with the burden of making its sidewalks perfectly level or in a condition which eliminates the possibility of an accident." Id.

¶ 10. Howard was "required to show evidence of circumstances from which it could reasonably be concluded that the city had notice of the defect." Burton v. Philadelphia, 595 So.2d 1279, 1281 (Miss.1991). Howard argues that the City of Biloxi had both actual and constructive notice of the dangerous condition; however, she presents no supporting evidence to attest to this fact. Instead, in support of her argument that the City had actual or constructive notice of the defect in the sidewalk leading to the Lameuse Street entrance of the library, Howard attaches two affidavits of bystanders who either witnessed her fall or noticed her lying on the ground shortly thereafter.

¶ 11. Howard also points out that on two previous occasions the sidewalk was in need of repair and that the repairs were made. Howard reasons that these occasions provided the City with notice that the sidewalks were in disrepair at...