Mississippi Dept. of Wildlife v. Brannon, 2004-CA-00246-COA.

• Citation: 943 So.2d 53
• Decision Date: 28 March 2006
• Docket Number: No. 2004-CA-00246-COA.,2004-CA-00246-COA.
• Parties: MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS, Appellant v. Alice BRANNON, Appellee.
• Court: Court of Appeals of Mississippi

943 So.2d 53

MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS, Appellant v. Alice BRANNON, Appellee.

No. 2004-CA-00246-COA.

Court of Appeals of Mississippi.

March 28, 2006.

Rehearing Denied August 1 and 22, 2006.

COPYRIGHT MATERIAL OMITTED

John Gordon Roach, Jr., McComb, attorney for appellant.

Ronald L. Whittington, McComb, attorney for appellee.

EN BANC.

GRIFFIS, J., for the Court.

¶ 1. Alice Brannon brought her claim for personal injuries, under the Mississippi Tort Claims Act, against the Mississippi Department of Wildlife, Fisheries and Parks (the "Department"). After a bench trial, the circuit judge rendered a judgment in favor of Mrs. Brannon and awarded damages of $240,000, which was reduced to $180,000 after Mrs. Brannon was assessed to be twenty-five percent at fault. Finding error, we reverse and render.

FACTS

¶ 2. The Department is responsible for the operation of Percy Quin State Park in Pike County, Mississippi. Miss.Code Ann. § 55-3-33(1)(a) (Rev.2003). Percy Quin and other state parks provide outdoor recreational activities. Examples of the activities available, include camping, hiking, boating, fishing, swimming, tennis, archery and golf. Visitors may stay in cabins or camp in primitive areas or in campgrounds with roads, camper pads and bathhouses.

¶ 3. Alice and Aubrey Brannon were frequent visitors to Percy Quin, having visited at various times over six years. On March 7, 2000, they were camping at Percy Quin with their grandchildren. Around 9:00 p.m., Mrs. Brannon was carrying her four-year-old granddaughter from the bathhouse back to their campsite when she fell and was injured.

¶ 4. On October 26, 2000, Mrs. Brannon filed an initial accident report. In the report, she stated:

Ms. Alice Brannon was carrying her grandchild from the Bathhouse to Site 28 when she slipped off the road and fell breaking her hip. Her husband took her home to the doctor. Not sure about the date this happened. Will put date down when we find out when it was.

¶ 5. On June 7, 2001, Mrs. Brannon filed her complaint against the Department. She asserted negligence, i.e., premises liability, against the Department and claimed that the Department created the hazardous condition which caused her fall and had actual knowledge of the condition prior to her fall. She asked for damages in the amount of $250,000.

¶ 6. In her testimony, Mrs. Brannon claimed that she had taken her grandchildren to the bathhouse to take a shower. She then testified:

Q. Tell us what happened whenever you prepared to leave the bathhouse, what did and who was with you.

A. I had both the girls. I was going to take — McKenzie was finished. They were playing in the shower. You know how kids do. But I was going to take McKenzie back, and so I picked her up. We started down towards the path coming down, and as I walked, all of a sudden I couldn't see in front of me.

. . . . Q. What happened as you walked onto and down the roadway?

A. As I came down — and all of a sudden it was like I could not see. And the minute I couldn't, I did feel panic that I couldn't see. And the next minute that was it. I was gone.

Q. What happened?

A. I took one, two maybe, little baby steps when I couldn't see, and my foot went across —

Q. Which foot, ma'am?

A. It was my right foot.

Q. And what happened? What did you do?

A. My foot like hit, and when it hit, it just went down. I kind of — my foot was — I felt middle ways. I remember the feeling at the time. And I remember kind of struggling trying to hold my balance, and then I went back.

Mrs. Brannon claimed that she could not see because of the dark. She did not carry her flashlight. At trial, she identified a photograph of the area where she fell. The photograph included a tape measure, but the markings on the tape measure cannot be seen in the picture. Mrs. Brannon testified that the area was four to four and a half inches deep, where she stepped off the road. She described it as a "drop-off" where her foot went to the edge and then went down. She stated that she would not describe it as a hole. She claimed that the drop-off was covered by leaves and pine straw.

¶ 7. When she fell, Mrs. Brannon landed on her right elbow and hip, breaking her right hip. Mrs. Brannon could not move, so she sent McKenzie to get Mr. Brannon to help her. She tried to continue working for three and a half days after the accident. However, she eventually learned she had a broken hip, had to undergo surgery, and was confined to a wheelchair and then a walker for sixteen weeks.

¶ 8. The trial was held on October 3, 2003. After the parties submitted proposed findings of fact and conclusions of law, the trial judge entered a final judgment on November 19, 2003. The trial judge found that the Department was negligent and was not entitled to immunity under the Mississippi Tort Claims Act.

ANALYSIS

1. The appropriate standard of review.

¶ 9. In a claim based on the Mississippi Tort Claims Act, the trial judge sits as the finder of fact. Miss.Code Ann. § 11-46-13(1) (Rev.2002). "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence." Donaldson v. Covington County, 846 So.2d 219, 222 (¶ 11) (Miss. 2003). The circuit judge's findings of fact and conclusions of law will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Miss. Dep't of Transp. v. Trosclair, 851 So.2d 408, 413 (¶ 11) (Miss.Ct. App.2003).

¶ 10. The Department challenges the applicability of this standard of review in this case. It argues that the trial judge adopted Mrs. Brannon's proposed findings of facts and conclusions of law almost verbatim and simply "filled in the blanks" for percentages of fault apportionment. The Department cites us to Miss. Dep't of Transp. v. Johnson, 873 So.2d 108, 111 (¶ 8) (Miss.2004), where the supreme court held:

"A trial judge's finding is entitled to the same deference as a jury and will not be reversed unless manifestly wrong. A reviewing court cannot set aside a verdict unless it is clear that the verdict is a result of prejudice, bias, or fraud, or is manifestly against the weight of credible evidence." . . . However, we have also stated that when the trial judge is sitting as the finder of fact, and chooses to adopt in toto a party's proposed findings of fact and conclusions of law, we will conduct a de novo review of the record. . . .

This Court will not set aside such findings [of the trial judge] on appeal unless they are manifestly wrong. . . . Where the [trial judge] has failed to make his own findings of fact and conclusions of law, this Court will "review the record de novo." Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995) (chancellor did not make his own findings, rather adopted litigant's findings and applied wrong legal standard). . . .

Here the proposed findings of fact and conclusions of law which Johnson's lawyer mailed to the judge are identical to the findings of fact and conclusions of law which the judge signed on November 12, 2002. There can be no doubt that the trial judge adopted and entered verbatim Johnson's proposed findings of fact and conclusions of law. The only difference is that in the version signed by the trial judge, he "filled in the blanks" for the percentages of fault apportioned to Crump, Mauney and MDOT. Additionally, our standard of review is de novo on questions of law. . . . Thus, consistent with Holden, we today conduct a de novo review not only of the law, but also the trial judge's findings of fact.

(citations omitted)

¶ 11. We are of the opinion that the Department's argument has merit and the normal deferential standard of review is not applicable. Nevertheless, we reject the Department's claim that a de novo review is appropriate.

¶ 12. There are at least three cases in which this de novo standard was applied. See Miss. Dep't of Transp. v. Johnson, 873 So.2d 108, 111 (¶ 8) (Miss.2004); Holden v. Frasher-Holden, 680 So.2d 795, 798 (Miss. 1996); Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995). We believe that there was an inaccurate statement of law in Brooks that needs to be addressed and clarified, to ensure the proper appellate review. We explain.

¶ 13. In Brooks, the supreme court held:

Where the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care, Omni Bank v. United Southern Bank, 607 So.2d 76, 83 (Miss. 1992), and the evidence is subjected to heightened scrutiny, Matter of Estate of Ford, 552 So.2d 1065, 1068 (Miss.1989). Because the chancellor erred in adopting the litigant's findings of facts and conclusions of law in the case sub judice, the deference normally afforded a chancellor's findings of fact is lessened. Omni Bank v. United Southern Bank, 607 So.2d 76, 83 (Miss.1992); Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1266 (Miss.1987).

The chancellor erred by applying an incorrect legal standard, and also by adopting a litigant's findings of fact and conclusions of law. Hence, we do not give deference to the findings of fact and conclusions of law of the lower court. Instead, we review the record de novo. Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). See also Omni Bank v. United Southern Bank, 607 So.2d 76 (Miss.1992); Bean v. Broussard, 587 So.2d 908 (Miss.1991); Matter of Estate of Ford, 552 So.2d 1065 (Miss.1989); Rice Researchers, Inc. v. Hiter, 512 So.2d 1259 (Miss.1987).

Brooks, 652 So.2d at 1118. The cases cited in the last paragraph simply do not stand for the proposition asserted. Indeed, none of these cases find that de novo review is appropriate. Bean has no language applicable. The remaining cases cited confirm that the...