Smith v. Pike Cnty.

312 So.3d 731

Melissa SMITH, Appellant

v.PIKE COUNTY, MISSISSIPPI, Appellee

NO. 2019-CA-01446-COA

Court of Appeals of Mississippi.

February 9, 2021

ATTORNEY FOR APPELLANT: EDWIN L. BEAN JR., McComb

ATTORNEY FOR APPELLEE: WILLIAM ROBERT ALLEN, Brookhaven

EN BANC.

LAWRENCE, J., FOR THE COURT:

¶1. Melissa Smith appeals the Pike County Circuit Court's grant of summary judgment in favor of Pike County, Mississippi ("County"). In March 2016, Smith drove her vehicle across a washout on a County road and sustained injuries. As a result, she brought a negligence action against the County. The County filed a motion for summary judgment, claiming immunity under the Mississippi Tort Claims Act ("MTCA"). The circuit court ultimately granted the County's motion. Smith filed a motion for reconsideration. The court denied Smith's motion, and she appealed. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On the evening of March 12, 2016, Smith was driving eastbound on Magnolia-Holmesville Road in the County when she drove her vehicle over a washout. The washout was a result of a "significant rain event" that occurred on the evening of March 10 and early morning of March 11. According to Smith, there were no signs on the eastbound lane warning motorists of the washout.

¶3. On September 1, 2016, Smith filed a complaint against the County for negligence per se and/or negligence. Specifically, she claimed that the County failed to place proper warnings in advance of the washout, failed to act with ordinary and reasonable care, failed to comply with the regulations set forth in the Manual on Uniform Traffic Control Devices, failed to comply with Mississippi Code Annotated sections 11-46-9-(1)(v) and (1)(w) (Rev. 2019) of the MTCA, and allowed an unreasonably dangerous and hazardous condition to exist in the road. On October 4, 2016, the County filed its answer and affirmative defenses. The County admitted that a washout occurred on Magnolia-Holmesville Road the date of the accident but claimed immunity under the MTCA. On February 27, 2017, the circuit court entered an agreed order limiting discovery.¹

¶4. On October 10, 2017, the County filed a motion for summary judgment. In relevant part, the County argued that Smith's claims were barred by Mississippi Code Annotated section 11-46-9-(1)(q) (Rev. 2019), otherwise known as the "weather exception." That section states "[a] governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... arising out of an injury caused solely by the effect of weather conditions on the use of streets and highways." Miss. Code. Ann. § 11-46-9-(1)(q) (emphasis added). On June 8, 2018, Smith filed a response and argued, among other things, that section 11-46-9(1)(q) was inapplicable because "the condition that caused the washout that plaintiff's vehicle entered on the night of March 12 ... had long passed." The court held a hearing on February 8, 2018. On June 28, 2018, the circuit court denied the County's motion.

¶5. The County filed its motion for reconsideration on July 13, 2018. The County also filed a petition for interlocutory appeal, which the Supreme Court denied. Following a hearing, on February 28, 2019, the circuit court granted the County's motion for summary judgment, which had been previously denied. In its order, the court held that the County was immune under section 11-46-9(1)(q).

¶6. On March 7, 2019, Smith filed a motion for reconsideration, which the circuit court denied. Smith appealed.

STANDARD OF REVIEW

¶7. We review a trial court's grant or denial of summary judgment de novo.

Miss. Dep't of Revenue v. Hotel & Rest. Supply , 192 So. 3d 942, 945 (¶5) (Miss. 2016). A party is entitled to summary judgment if the record shows that there is no genuine issue of material fact and that the party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). We review the summary judgment record in the light most favorable to the nonmoving party. Thomas v. Chevron U.S.A. Inc ., 212 So. 3d 58, 60 (¶7) (Miss. 2017). However, the nonmoving party "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [ Mississippi Rule of Civil Procedure 56 ], must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). "To withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim." Sharrieff v. DBA Auto. Two LLC , 242 So. 3d 944, 947 (¶9) (Miss. Ct. App. 2018).

ANALYSIS

¶8. Smith's argument on appeal is two-fold. First, she argues that section 11-46-9(1)(q) is inapplicable because the dangerous condition was not solely caused by the weather conditions but rather in conjunction with the County's failure to warn. Second, she argues that the section is inapplicable because the accident did not occur simultaneously with the weather that caused the washout.

¶9. Under section 11-46-9(1)(q), a governmental entity cannot be held liable for an injury if that injury was caused solely by a weather condition. "Questions concerning the application of the MTCA are reviewed de novo." Miss. Dep't of Pub. Safety v. Durn , 861 So. 2d 990, 994 (¶7) (Miss. 2003) (citing Donaldson v. Covington County , 846 So. 2d 219, 222 (¶11) (Miss. 2003) ). Immunity is a question of law. See Mitchell v. City of Greenville , 846 So. 2d 1028, 1029 (¶8) (Miss. 2003).

¶10. Smith first argues that the rain event did not solely cause the accident because, had the County placed proper warnings on the road, she would not have driven over the washout. In several cases, this Court and the Mississippi Supreme Court have addressed government immunity under section 11-46-9(1)(q).

¶11. In Schepens v. City of Long Beach , 924 So. 2d 620, 622 (¶4) (Miss. Ct. App. 2006), the property owner lived at the end of a dirt road, which "deteriorated after rain storms." To repair the road, the city would either fill the potholes each time with gravel and sand or remove the sand and add more gravel. Id . Ultimately, the property owner sued the city for negligently failing to maintain a road that caused damage to his vehicles. Id . at (¶5). During trial, the city filed a motion to dismiss. Id . at (¶6). The court granted the city's motion based on the weather exception, and the property owner appealed. Id .

¶12. On appeal, this Court affirmed the circuit court's dismissal under several MTCA provisions, including the weather exception of section 11-46-9(1)(q). Id . at 623 (¶12). In doing so, this Court specifically referred to the property owner's testimony that the rain caused the potholes and held that "[his] claim arose from an injury which resulted solely from the effect rain had on [the road]." Id .

¶13. In Willing v. Estate of Benz , 958 So. 2d 1240, 1243-44 (¶3) (Miss. Ct. App. 2007), a woman drove over a patch of ice and hit and killed a man who was repairing a construction sign. That sign was damaged earlier in the day when another driver hit the same patch of ice. Id . at 1244 (¶3). The Greenwood Police Department had dispatched an officer to the first accident, who notified the Mississippi Department of Transportation (MDOT) of ice on the road. Id . The officer did not place any warning signs on the road, and MDOT did not remove or repair the icy patch until after the second accident. Id . As a result, the decedent's family brought a wrongful-death action against the City of Greenwood, claiming that the city negligently failed to warn of the patch of ice. Id . at (¶4). The city filed a motion for summary judgment, claiming immunity under Section 11-46-9(1)(q). Id . at 1245 (¶7). The circuit court granted the city's motion, and the decedent's family appealed. Id .

¶14. On appeal, this Court agreed that summary judgment was proper because the accident was caused solely by the icy patch on the road. Id . at 1254 (¶38). Notably, this Court was not persuaded by the family's argument that the city's alleged failure to warn of the icy patch rendered Section 11-46-9(1)(q) inapplicable. Id . To be sure, this Court did not hold that the city had no duty to warn of the icy patch. Rather, this Court held that "the city [was] immune from any alleged breach of that duty because the ice was caused solely by the ‘effect of the weather on the use of streets and highways.’ " Id. (citing Horan v. State , 212 N.J.Super. 132, 514 A.2d 78, 79 (N.J. Super. Ct. App. Div. 1986) ) (other citation omitted).

¶15. In Ostrowski v. City of D'Iberville , 269 So. 3d 418, 419 (¶2) (Miss. Ct. App. 2018), the driver was injured on a city road when his vehicle struck a displaced manhole cover during a heavy rainstorm. The driver sued the city, alleging the city sewer system's design deficiencies caused the manhole's displacement. Id . at (¶3). Similar to the present case, the driver argued that section 11-46-9(1)(q) was inapplicable because the "the rain was not the sole cause of the accident" because the city's negligence contributed to the accident. Id . at 421 (¶7). The driver, however, failed to provide any evidence that the sewer system actually contained deficiencies or that the city knew or should have known rising water would displace the manhole cover. Id . at 419 (¶4). The circuit court ultimately affirmed the county court's grant of summary judgment under the weather exception. Id . at (¶1). This Court affirmed, stating that "both [the driver] and the [c]ity agreed the manhole cover was displaced by rising water." Id . at 421 (¶12). We explained that although the driver claimed the city sewer system's design deficiencies caused the manhole cover's displacement, he failed to create a genuine issue of material fact that the rain was not solely responsible. Id .

¶16. Most recently, in Robinson v. Holmes County , 284 So. 3d 730 (Miss. 2019) (plurality opinion), the plaintiff sued the county for negligence after his vehicle collided with a...