Mississippi Dept. of Transp. v. Cargile, 2002-CA-00202-SCT.

CourtUnited States State Supreme Court of Mississippi
Citation847 So.2d 258
Docket NumberNo. 2002-CA-00202-SCT.,2002-CA-00202-SCT.
Decision Date29 May 2003

847 So.2d 258

Kenneth Michael CARGILE

No. 2002-CA-00202-SCT.

Supreme Court of Mississippi.

May 29, 2003.

847 So.2d 260
James N. Bullock, Jackson, attorney for appellant

Bobby L. Shoemaker, Bay Springs, attorney for appellee.


SMITH, P.J., for the Court.

¶ 1. In this Tort Claims Act case arising from a one-car accident on a wet state-maintained highway, the Mississippi Department of Transportation appeals to this Court from a judgment of $38,151 in favor of Kenneth Michael Cargile awarded by the Circuit Court of the Second Judicial District of Jasper County. Finding no reversible error, we affirm.


¶ 2. On the night of February 10, 1998, Kenneth Cargile was traveling on Mississippi Highway 528 in a storm when his truck left the road and crashed. He claims that he lost control of his truck when it hydroplaned after running through a large pool of water which had collected on the road.

¶ 3. Cargile sued the State of Mississippi and the Mississippi Department of Transportation ("MDOT") under the Mississippi Tort Claims Act. He asserts that the State of Mississippi and MDOT negligently failed to inspect and maintain Highway 528 where the accident took place. Because of that alleged negligence, Cargile argues that there was a dangerous condition at the site of the accident which was the sole proximate cause of his injuries and damages.

¶ 4. During a non-jury trial, the State of Mississippi was dismissed pursuant to a motion for a "directed verdict," properly a M.R.C.P. 41(b) motion to dismiss but MDOT was not dismissed. The trial court entered its findings of act and conclusions of law apportioning 50% fault to Cargile and 50% fault to MDOT. Judgment was entered in favor of Cargile for $38,151. MDOT appeals that award.




¶ 5. Because these issues are closely related, this Court will discuss them concurrently.

847 So.2d 261
MDOT contends that the evidence shows that the accident was not caused by its negligence. Instead, MDOT counters that the causes were Cargile's failure to keep a proper lookout, his truck's speed which was excessive for the conditions, and his failure to keep his vehicle under control. Further, MDOT advances that Cargile never saw the water which he claims had accumulated. MDOT insists that the evidence fails to show any fault with the highway

¶ 6. Additionally, MDOT argues that the trial court erred in admitting as evidence the testimony of Randall Pittman, who lives on Highway 528 near the scene of the accident. Pittman testified to his opinion on the cause of Cargile's accident. The trial court also heard Pittman testify to his opinion of the causes of other accidents along the same stretch of highway which he either witnessed or heard about. MDOT states that his testimony is irrelevant and has no probative value because of remoteness. MDOT further asserts that since Pittman did not see the accidents along that same stretch of road about which he testified, he did not possess the requisite personal knowledge required for testimony by a lay witness. Additionally, MDOT contends that Pittman had no personal knowledge of the cause of any of those accidents including Cargile's. MDOT further contends that Pittman did not see any such water at the time of the accident.

¶ 7. Further, MDOT argues that there was no evidence of water accumulation at or near the site of the accident or that any such accumulation caused the accident. MDOT asserts that State Trooper Keith Murphy, the state trooper on the scene of Cargile's accident, did not see any accumulation of water. Finally, MDOT counters that its witnesses, Kenneth Thornton, the MDOT maintenance supervisor, John Lambert, who was Thornton's supervisor, and Trooper Keith Murphy all regularly traveled that road for many months before the accident and had never seen any accumulation of water in that location. They all testified that had they noticed such an accumulation of water, they would have reported it. As evidenced by MDOT maintenance records, MDOT insists that its agents conducted regular, scheduled inspections and maintenance of the highway including grading the shoulders to prevent drainage onto the highway. Thornton testified that if he had seen a shoulder that was higher than the highway, he would have considered that condition an "emergency situation" requiring immediate attention. Thornton and Lambert both testified that there was "pitting" on the pavement but that defect did not warrant repair and would not have caused the accumulation of water alleged by Cargile.

¶ 8. Cargile states that there is no evidence that he failed to keep a proper look out. He asserts that there was no evidence that he was driving too fast. He claims to have been driving between 40 and 45 miles per hour which he says was a safe speed for the conditions. Cargile points to the lack of evidence that he failed to keep his vehicle under control.

¶ 9. Further, Cargile asserts that the trial court properly admitted testimony by Pittman as to the cause of the accident. He argues that Pittman was qualified to testify because he traveled the road several times a day and lived near the scene of the crash. Cargile cites Pittman's testimony of his actions and attempts to notify MDOT of the condition of the road and the previous accidents. Since there were numerous accidents at this location during or immediately after rainfall and since Cargile and Pittman both testified that it was raining at the time of the accident, Cargile argues that a reasonable inference can be

847 So.2d 262
drawn that accumulated rainwater was the cause of the accident

¶ 10. In an action under the Tort Claims Act, the trial court sits as the finder of fact. When the court's factual determinations are challenged on appeal, the reviewing court considers the entire record and has an obligation to affirm when the record contains substantial evidence in support of the trial court's findings. Ezell v. Williams, 724 So.2d 396, 397 (Miss.1998); Miss. State Hosp. v. Wood, 823 So.2d 598, 601 (Miss.Ct.App. 2002).

¶ 11. To prevail on a negligence claim, the plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury. Leflore County v. Givens, 754 So.2d 1223, 1230 (Miss.2000) (citing Lovett v. Bradford, 676 So.2d 893, 896 (Miss.1996)). In Mississippi, a plaintiff may espouse one of three theories in support of a claim of negligence such as this: (1) that the defendant's own negligence created a dangerous condition which caused plaintiff's injury; (2) that the defendant had actual knowledge of the danger she faced as an invitee or (3) that based upon the passage of time, the defendant should have known about the dangerous condition caused by another party and if defendant had acted reasonably, i.e., constructive knowledge of that condition should be imputed to that defendant. K-Mart Corp. v. Hardy ex rel. Hardy, 735 So.2d 975, 980 (Miss.1999) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss.1995); Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)). The plaintiff bears the burden of presenting significant probative evidence that the defendant was not only negligent, but also that such negligence was the proximate cause of the dangerous condition that resulted in the plaintiff's injury. Id.

¶ 12. If proof of a causal connection is to be established by circumstantial evidence, it must be sufficient to make the plaintiff's asserted theory reasonably probable, not merely possible, and it is generally for the trier of fact to say whether circumstantial evidence meets this test. Id. (citing Miss. Valley Gas Co. v. Estate of Walker, 725 So.2d 139, 145 (Miss.1998)).

¶ 13. In Givens, the plaintiffs maintained that the injuries that they sustained were such that they could not remember the circumstances surrounding the accident nor the accident. Givens, 754 So.2d at 1230. The plaintiffs further argued that the county's negligent failure to warn of the dangerous curve was the proximate cause of the accident. Id. at 1224. They alleged that the county designed and maintained that part of the road in a negligent manner and that the county knew of the dangerous condition. Id. As in the present case, the county failed to take steps to correct the condition despite the fact that it knew or should of known of the numerous accidents occurring at this curve. Id. at 1225.

¶ 14. This case is similar to Givens. After consideration of the entire record, this Court affirms the ruling of the trial court. The trial court, as finder of fact, had the opportunity to listen to the testimony of the witnesses and evaluate the negligence claim on a first-hand basis. The trial court chose to accept the testimony of Randall Pittman as to the numerous accidents occurring in the area of Cargile's accident. MDOT either knew or should have known about other accidents occurring on the roads it had responsibility for maintaining. The trial court properly apportioned 50% fault to Cargile for his own negligence.

¶ 15. The next evidence to consider is the testimony of both Kenneth Cargile and

847 So.2d 263
Randall Pittman. Neither actually saw the accumulation of water on the night of the accident. Neither knew positively the cause of the accident. However, the trial court allowed the testimony as circumstantial evidence of the events on the night of the accident.

¶ 16. Admission or exclusion of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion. Hardy, 735 So.2d at 983 (citing Broadhead v. Bonita Lakes Mall, Ltd. P'ship, 702 So.2d 92, 102 (Miss.1997)(quoting Sumrall v. Miss. Power Co. 693 So.2d 359, 365 (Miss.1997); Gen. Motors Corp. v. Jackson, 636 So.2d 310, 314 (Miss.1992); Walker v....

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