Mississippi Dept. of Transp. v. Trosclair

• Decision Date: 29 July 2003
• Docket Number: No. 2002-CA-00263-COA.,2002-CA-00263-COA.
• Citation: 851 So.2d 408
• Parties: MISSISSIPPI DEPARTMENT OF TRANSPORTATION, State of Mississippi, Appellant, v. Susan TROSCLAIR and Bridget Trosclair (Bailes), Appellees.
• Court: Mississippi Court of Appeals

851 So.2d 408

MISSISSIPPI DEPARTMENT OF TRANSPORTATION, State of Mississippi, Appellant, v. Susan TROSCLAIR and Bridget Trosclair (Bailes), Appellees.

No. 2002-CA-00263-COA.

Court of Appeals of Mississippi.

July 29, 2003.

Patrick R. Buchanan, Biloxi, attorney for appellant.

Joseph H. Montgomery, Lampton O. Williams, Poplarville, attorneys for appellee.

BRIDGES, J., for the Court as to sections A, B, C, and D.

¶ 1. Susan Trosclair and Bridget Trosclair Bailes filed a lawsuit on March 2, 1995, against the Mississippi Department of Transportation (The Department). The lawsuit arose when Susan and Bridget were injured in a one-car accident that occurred on December 3, 1993. The Department filed a motion to dismiss for failure to give timely notice and failing to file within one year of the date of injury. The Department also filed a summary judgment motion addressing the issues of notice, estoppel, limitations and the constitutionality of the Mississippi Tort Claims Act. Bridget and Susan filed a motion for partial summary judgment, requesting the court to find that the notice of claim and complaint were timely filed. The trial court denied the Department's motion to dismiss and their summary judgment motion and granted Bridget and Susan's partial summary judgment motion. The Department filed a second motion for summary judgment which was later granted by the trial court. On appeal, the Mississippi Supreme Court reversed the trial court's decision and remanded the case. Trosclair v. Mississippi Dep't of Transp., 757 So.2d 178 (Miss.2000)

¶ 2. On the morning of trial, the parties verbally stipulated that there were no longer any issues in this litigation pertaining to whether or not the Department received proper and/or timely notice of the claims and/or whether or not this litigation was timely commenced. On September 24, 2001, as required by the Mississippi Tort Claims Act, this case was tried as a bench trial before the Honorable Kosta N. Vlahos. On October 23, 2001, the judge found in favor of Bridget and Susan and awarded Susan $47,250 and Bridget $2,750. It is from that judgment that the Department now appeals to this Court. The issues on appeal are as follows:

STATEMENT OF THE ISSUES

I. DID THE TRIAL COURT ERR WHEN IT DETERMINED THAT THE DEFENDANT WAS NEGLIGENT?

II. DID THE TRIAL COURT ERR WHEN IT RETURNED A VERDICT AGAINST THE DEFENDANT FOR FAILURE TO PLACE WARNING SIGNS?

III. DID THE TRIAL COURT ERR WHEN IT RETURNED A VERDICT AGAINST THE DEFENDANT FOR FAILURE TO PLACE ADEQUATE WARNING SIGNS?

IV. DID THE TRIAL COURT ERR WHEN IT RETURNED A VERDICT AGAINST THE DEFENDANT WHEN THE DANGEROUS CONDITION WAS OPEN AND OBVIOUS?

V. DID THE TRIAL COURT ERR WHEN IT FAILED TO FIND THE PLAINTIFF BRIDGET TROSCLAIR BAILES, NEGLIGENT?

VI. DID THE TRIAL COURT ERR BY FAILING TO APPORTION A PERCENTAGE OF FAULT TO THE PLAINTIFF?

VII. DID THE TRIAL COURT ERR WHEN IT FAILED TO ENTER FINDINGS OF FACT AND CONCLUSIONS OF LAW?

VIII. DID THE TRIAL COURT ERR IN FINDING IN FAVOR OF THE PLAINTIFF WHEN THERE WAS SPOLIATION OF EVIDENCE?

FACTS

¶ 3. On December 3, 1993, Bridget was driving in a southerly direction on Highway 49 in Harrison County, Mississippi. Bridget was accompanied by Susan, her aunt by marriage. Bridget and Susan were en route to Alabama to pick up Susan's daughter-in-law and this was Bridget's first time driving on Highway 49.

¶ 4. On or about November 2, 1993, the Department had started a maintenance asphalt paving project on the southbound lanes of Highway 49. The project was to be a 1.5 inch overlay over nine miles of the highway. The main overlay work was completed on approximately November 29, 1993. As Bridget and Susan headed south, they suddenly came upon the newly asphalted highway which did not have any yellow side stripe on the left or median margin of the highway, no white edge stripe on the right or shoulder margin of the highway, and only intermittent three to six inch small white marks placed near the approximate center of the twenty-four foot wide pavement at indeterminate lengths. There was also no temporary center striping of four foot lengths on the highway.

¶ 5. Bridget testified that she was driving on the newly paved highway for a little over a mile when she felt her right tire fall off the road. When Bridget tried to correct the situation, by steering her vehicle back onto the highway, her right front tire blew, causing her to lose control, and ultimately causing her vehicle to overturn.

¶ 6. Ruby Lynn Morris, who lived approximately five and a half miles from the scene of the accident and traversed Highway 49 daily, testified that she had observed Bridget's vehicle go off the road, come back on, and then off again, only to then flip and land in a tree. After seeing the accident, Morris pulled over to the side of the road to offer assistance and when she ran down off the pavement, she realized she had to get down off the pavement; it was in fact a step-off. She had to step down five to six and a half inches. Morris also stated that she did not recall seeing any traffic control signs on the day of the accident.

¶ 7. Michael A. Trosclair, Bridget's father, went to the scene on the night of the collision and inspected the entire area and observed that there were no markings or warnings in the project area. He also went back to the project site the next day in daylight and confirmed that there were no warning signs in the area. Michael testified that for at least 500 feet along the site of the accident there was a shoulder drop-off of three inches or more. Michael documented the drop-off where Bridget's tire left the road with a photograph, which showed the distance from the ground to the top of the asphalt to be the same distance as the length of a Cross pen, approximately 5.5 inches.

ANALYSIS

¶ 8. In discussing these eight issues, it is more intelligible to combine certain issues. In addition, because of the division of this Court on the questions involving the Department's and Bridget's negligence, those issues are discussed last.

¶ 9. I begin with the discussion of issues II, III, and IV which present the question:

Section A.

DID THE TRIAL COURT ERR WHEN IT HELD THAT THE MDOT'S ACTIONS DID NOT FALL UNDER A GOVERNMENTAL IMMUNITY EXEMPTION PROVIDED BY THE MISSISSIPPI TORT CLAIMS ACT?

¶ 10. This case was brought under the Mississippi Tort Claims Act, which allows negligence actions against state agencies under certain circumstances. Simpson v. City of Pickens, 761 So.2d 855, 860 (¶ 15) (Miss.2000). There is also a requirement that, if the matter comes to trial, it will be conducted as a bench trial. Id. In this situation, "the trial court sits as finder of fact and, when the court's factual determinations are challenged on appeal, the reviewing court must consider the entire record and is obligated to affirm where there is substantial evidence in the record to support the trial court's findings." City of Newton v. Lofton, 840 So.2d 833, 835 (¶ 6) (Miss.2003); Ezell v. Williams, 724 So.2d 396, 397 (¶ 4) (Miss. 1998); Mississippi State Hosp. v. Wood, 823 So.2d 598, 601 (¶ 7) (Miss.Ct.App. 2002). "The findings of the trial judge will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." City of Newton,840 So.2d at 835-36 (¶ 6); Stanton v. Delta Reg'l Med. Ctr., 802 So.2d 142, 145 (¶ 6) (Miss.Ct.App.2001).

¶ 11. "The standard of review for a judgment entered following a bench trial is well settled. `A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.'" City of Newton, 840 So.2d at 836 (¶ 7); City of Jackson v. Perry, 764 So.2d 373, 376 (¶ 9) (Miss.2000) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993); Sweet Home Water & Sewer Ass'n v. Lexington Estates, Ltd., 613 So.2d 864, 872 (Miss.1993); Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992)). "This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo." City of Newton, 840 So.2d at 836 (¶ 7).

¶ 12. The principal Mississippi Code Annotated section relevant to this issue is Mississippi Code Annotated section 11-46-9(1)(a-x) (Rev.2002). This section is used to determine liability exemptions of governmental entities and their employees acting within the scope of their duties. Further, the pertinent subsections that apply include sections 11-46-9(1)(v) and (w). These sections state:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claims:

(v) Arising out of an injury caused by a dangerous condition on the 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; (w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.

Miss.Code Ann. § 11-46-9(1)(v) and (w) (Rev.2002).

¶ 13. After reviewing all of the evidence, the trial judge determined that Bridget and Susan's injuries were caused by the negligence of the Department. The following facts and circumstances were established by the evidence: (A) there was a dangerous 3-5...