Ladner v. Stone County, 2004-CA-00999-COA.

• Decision Date: 17 January 2006
• Docket Number: No. 2004-CA-00999-COA.,2004-CA-00999-COA.
• Citation: 938 So.2d 270
• Parties: Carrie LADNER, Appellant v. STONE COUNTY, Mississippi, Mississippi State Aid Road Construction and Mississippi State Aid Engineer Floyd Kirk, Appellees.
• Court: Mississippi Court of Appeals

938 So.2d 270

Carrie LADNER, Appellant v. STONE COUNTY, Mississippi, Mississippi State Aid Road Construction and Mississippi State Aid Engineer Floyd Kirk, Appellees.

No. 2004-CA-00999-COA.

Court of Appeals of Mississippi.

January 17, 2006.

Rehearing Denied June 6, 2006.

COPYRIGHT MATERIAL OMITTED

Albert Lionel Necaise, Gulfport, attorney for appellant.

Robert O. Allen, Brookhaven, William L. McDonough, Jr., Gulfport, attorneys for appellees.

EN BANC.

GRIFFIS, J., for the Court.

¶ 1. The Kirby Creek Bridge over Old Highway 26 in Stone County collapsed. Carrie Ladner suffered severe injuries when she drove over the bridge, because she could not see the collapsed portion and stop her vehicle in time. Ladner sued Stone County, State Aid Road Construction, and State Aid Engineer Floyd Kirk for her injuries. She alleged negligence, failure to properly maintain the bridge, failure to inspect, and failure to warn. Circuit Judge Jerry O. Terry, Sr., presided over the bench trial. After Ladner put on her case-in-chief, the defendants moved for a directed verdict. Judge Terry granted the motion.

¶ 2. Ladner appeals claiming the court erred in holding the defendants immune and finding that the defendants were not negligent. We find no evidence that either State Aid Road Construction or the State Aid Engineer was negligent, and we affirm the dismissal as to these defendants. However, we find that Stone County was not immune and that Ladner satisfied her prima facie case against Stone County. Accordingly, we reverse and remand for trial on the merits against Stone County.

FACTS

¶ 3. Kirby Creek Bridge, on Old Highway 26, is a concrete roadway supported by wooden beams. Old Highway 26 is a State Aid road. Thus, Old Highway 26 qualifies for funding from the State Aid division of the Mississippi State Highway Commission, now known as the Mississippi Department of Transportation.

¶ 4. Since at least 1995, Stone County, State Aid and the State Aid Engineer were all aware that the bridge's wooden beams were rotting and deteriorating. At least twice a year, from 1995 through 1999, the County was made aware of the bridge's deteriorating condition, either through the engineer's report or through the Board's on site inspection of the bridge. With each inspection, the engineer's report noted that the deterioration was advancing. Despite these reports, the Stone County road manager never inspected this bridge. Indeed, each of the defendants were aware that a majority of the wooden support beams were rotten and that some were being crushed by the weight of the roadway.

¶ 5. In 1998, Stone County posted a sign that lowered the weight limit of the bridge from 10,000 pounds to 6,000 pounds. The lower weight sign notwithstanding, the County was aware that school buses, weighing approximately 30,000 pounds, and logging trucks, weighing approximately 80,000 pounds, continued to travel over the bridge. The traffic count over the bridge was 585 cars daily.

¶ 6. In February of 1999, the State Aid Engineer told Stone County and State Aid that failure of the bridge was imminent. Although other bridges in the county needed various repairs, this bridge was the only one which the State Aid Engineer listed as in danger of imminent failure. He recommended, as he had in years previous, to replace the bridge with a concrete bridge.

¶ 7. None of the defendants ever recommended that the bridge be closed. On May 26, 1999, one of the rotten pilings finally collapsed and caused the middle of the bridge to collapse into a deep "V" shape.

¶ 8. Carrie Ladner lives in Steep Hollow, Pearl River County, Mississippi. On May 26, 1999, Ladner was traveling Old Highway 26 on her way to work at Stone County Hospital in Wiggins. A little before seven that morning, Ladner passed a school bus as both were traveling in the same direction, toward the bridge. When Ladner arrived at the bridge, she did not see the collapsed portion and began to cross over the bridge. It was too late. Her car went airborne and crashed on the opposite side of the bridge on Old Highway 26.

STANDARD OF REVIEW

¶ 9. We begin by noting that the proper motion was not one for a directed verdict. Instead, in a bench trial, the proper motion to make at the close of plaintiff's case-in-chief is a motion for involuntary dismissal under Rule 41(b) of the Mississippi Rules of Civil Procedure. Partlow v. McDonald, 877 So.2d 414, 416(¶ 7) (Miss.Ct.App.2003). Rule 50(a) directed verdicts are reserved only for jury trials. Id. This distinction must be understood, because the standard of review for a dismissal is different than that for a directed verdict. Id.

¶ 10. Our consideration of this appeal will be based on the correct Rule 41(b) standard of review. Id. In considering a motion for involuntary dismissal under Rule 41(b), the trial court should consider "the evidence fairly, as distinguished from in the light most favorable to the plaintiff," and the judge should dismiss the case if it would find for the defendant. Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992). We must apply the substantial evidence/manifest error standard to an appeal of a grant or denial of a motion to dismiss pursuant to M.R.C.P. 41(b). Id. Where there arguably is evidence that a party might be entitled to a judgment, the court errs in dismissing the case. Aronson v. Univ. of Miss., 828 So.2d 752, 756(¶ 14) (Miss.2002). We defer to findings of fact and review legal conclusions de novo. Id. at 755(¶ 12).

ANALYSIS

¶ 11. The trial court held that Ladner did suffer personal injuries as a direct result of the collapse of the Kirby Creek Bridge. However, the court held all defendants were protected by discretionary function immunity set out in Mississippi Code Annotated Section 11-46-9(d)(1972). Alternatively, the court held that the defendants were not negligent in the bridge's collapse, because there was no evidence to show what the defendants should have done differently.

¶ 12. Ladner argues discretionary function immunity does not apply when the duty is imposed by law. She also claims that someone must first make a decision and exercise judgment for the discretionary function immunity to apply. Ladner also contends that the defendants were negligent in that they failed to properly maintain Kirby Creek Bridge in a safe condition, they negligently repaired the bridge, they failed to properly inspect the bridge, and they failed to warn her of a dangerous condition.

I. Did the trial court err in dismissing the State Aid defendants?

¶ 13. The duty to maintain State Aid roads and bridges is delegated to the boards of supervisors in their respective counties. Miss.Code Ann. § 65-9-25 (Rev. 2001). While the State Aid office has the authority to maintain and repair roads, it is not duty bound to do so. Jenkins v. Miss. Dep't of Transportation, 904 So.2d 1207, 1211(¶ 8) (Miss.Ct.App.2004). To maintain a negligence cause of action, plaintiff must prove duty, breach, causation and damages. Since the State Aid defendants did not have a duty to repair or maintain the bridge, Ladner could not maintain a negligence action against them for breach of this duty. Accordingly, the trial court was correct to dismiss the failure to maintain and negligent repair counts against the State Aid defendants.

¶ 14. The State Aid defendants did have an affirmative duty to inspect State Aid bridges, such as the Kirby Creek Bridge. Id. However, Ladner put on no evidence that proved that the State Aid defendants negligently performed this function. Therefore, we affirm the dismissal of Ladner's claim for failure to inspect the bridge against the State Aid defendants.

¶ 15. Ladner's final claim was that the State Aid defendants had a duty to warn or otherwise protect her against the danger of Kirby Creek Bridge's collapse, because it was a dangerous condition of which it had actual notice. To state a cause of action under the dangerous condition exemption of the Mississippi Tort Claims Act ("MTCA"), a plaintiff must show: (1) a dangerous condition, (2) on the government entity's property, (3) which the government entity caused, or of which it had notice and time to protect or warn against, and (4) the condition was not open and obvious. Miss.Code Ann. § 11-46-9(v) (Rev.2002). See Lowery v. Harrison County Bd. of Supervisors, 891 So.2d 264, 267(¶ 12) (Miss.Ct.App.2004). Ladner's claim fails on the second element. There was no dispute that Kirby Creek Bridge was a county road, not a state highway. Therefore, she cannot maintain a dangerous condition cause of action against the State Aid defendants.

¶ 16. Because Ladner failed to prove that the State Aid defendants were negligent, it is not necessary for us to determine whether the State Aid defendants were immune. Therefore, we affirm the trial court's dismissal of the State Aid defendants under Rule 41(b) of the Mississippi Rules of Civil Procedure.

II. Did the trial court err in dismissing Stone County?

A. Is Stone County protected by discretionary function immunity?

¶ 17. The MTCA provides that a governmental entity is immune from a tort suit "[b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused." Miss.Code Ann. § 11-46-9(d) (Rev.2002). "Governmental entity" includes counties within the State. Miss. Code Ann. § 11-46-1(g) and (i) (Supp. 2004). To be immune, the discretionary act must involve an element of choice or judgment, and the choice must involve social, economic or political policy. Jones v. Miss. Dep't of Transportation, 744 So.2d 256, 260(¶ 10) (Miss.1999).

¶ 18. Furthermore, Mississippi has adopted federal courts' interpretation of discretionary function immunity. L.W. v. McComb Sep. Mun. Sch. Dist., 754 So.2d 1136, 1143(¶ 28) (Miss.1999); Jones, 744 So.2d at 263-64(¶ 23); Miss. Dep't of...