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

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

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.

Page 752

COPYRIGHT MATERIAL OMITTED

Page 753

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

Page 754

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...