Stephens v. City of Gulfport

379 So.3d 399

Arquette STEPHENS, Individually and on Behalf of the Heirs and Wrongful Death Beneficiaries of Anthony Lewellyn, Deceased, Appellant

v.CITY OF GULFPORT, Mississippi and Harrison County, Mississippi, Appellees

NO. 2022-CA-01008-COA

Court of Appeals of Mississippi.

01/30/2024

HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. RANDI PERESICH MUELLER, JUDGE

ATTORNEYS FOR APPELLANT: ROGEN CHHABRA, Jackson, KATHRYN CAROLINE BOYD

ATTORNEYS FOR APPELLEES: JEFFREY S. BRUNI, TIM C. HOLLEMAN, Gulfport

BEFORE CARLTON, P.J., McDONALD AND EMFINGER, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Anthony Lewellyn took his wife, Arquette Stephens, and their children to visit Dedeaux Park (Park) in Gulfport, Mississippi, on a Sunday afternoon. Lewellyn subsequently drowned in the Biloxi River while trying to rescue his sixteen-year-old stepdaughter from the river. The family accessed the liver from an area where it runs adjacent to a strip of sand abutting the Park. The Park is on property owned by Harrison County and was maintained and operated by the City of Gulfport when the accident happened.

¶2. Stephens, on behalf of herself and others, filed a wrongful death action against the County and the City under the Mississippi Tort Claims Act (MTCA), Mississippi Code Annotated sections 11-46-1 to -23 (Rev. 2019). Stephens asserted a premises liability claim against the Defendants for their allegedly negligent failure to protect Lewellyn from and warn him of "the dangerous condition" that existed at the Park (the Biloxi River) and that "creat[ed] a hazard for [Park visitors]." Later, in response to the summary judgment motions filed by the County and the City, Stephens acknowledged that the Biloxi River was not on the Park’s premises, but she asserted that the County and the City were still liable for Lewellyn’s death because the Park allowed access to the adjacent dangerous condition of the Biloxi River.

¶3. The Harrison County Circuit Court granted summary judgment in favor of the Defendants after finding that the Biloxi River was not "on property" of the Defendants; thus, the Defendants could not be held liable under the MTCA for an accident that occurred on the river. Miss. Code Ann. § 11-46-9(1)(v).¹ Further, the circuit court found that even assuming the Biloxi River could be considered under the ownership or control of either Defendant, the Defendants were exempt from liability because any dangers posed by the river were "obvious to one exercising due care." Id.

¶4. Stephens appeals, asserting that the County and the City were not entitled to immunity pursuant to section 11-46-9(1)(v) because (1) the County, as the Park’s owner, and the City, as the Park’s operator, breached the duty owed Lewellyn as either a Park invitee or licensee under Mississippi premises liability law by failing to protect him and warn him of the dangerous condition adjacent to the Park—the Biloxi River; and (2) the "dangerous condition" of the Biloxi River was not "obvious to one exercising due care" so as to allow immunity pursuant to the open-and-obvious-danger defense contained in section 11-46-9(1)(v).

¶5. Based upon our de novo review of the record, we affirm the circuit court’s granting of summary judgment in the County and the City’s favor for the reasons addressed below.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶6. On a Sunday afternoon on May 19, 2019, Lewellyn took his family to see the Park and the Biloxi River, which is a natural river flowing south to the Back Bay of Biloxi. The Park is located within a subdivision on property owned by the County, and the City maintained and operated the Park at that time.

¶7. Adjacent to the Park was a small beach that then abutted the Biloxi River. As shown by the subdivision plat and based on the description contained in the plat, the eastern boundary of the Park ends at the "meandering line of the high bank of the Biloxi River," so neither the beach nor the Biloxi River is within Park property.

¶8. As Stephens stated in her deposition, the family had no plans to swim that afternoon; they just intended to "hang out a little bit." But eventually the children began playing in the shallows of the Biloxi River. Stephens and Lewellyn also waded into the river, about waist-deep. Stephens said that the children were hot good swimmers. She further said that she knew about the danger of drowning and that she and Lewellyn told the children to stay in the shallow water for their protection.

¶9. As they were playing in the shallow water of the river, the children began tossing a beach ball they had found. At one point, the ball was tossed or floated farther out into the river, and sixteen-year-old Destinei went after it. The current carried her into deeper parts of the river, and she could hot return to the shallow water. Lewellyn swam out to the deeper part of the Biloxi River to try and rescue her. Destinei was able to get to safety. Tragically, however, Lewellyn was carried farther downriver and drowned.

¶10. After the accident, Stephens, on behalf of herself and wrongful-death beneficiaries, filed a wrongful death lawsuit against the County and the City under the MTCA, alleging that the Defendants failed to protect Lewellyn from or warn him about a "dangerous condition" allegedly existing "in the Park" and "present on the property of Defendants." The County and the City answered, asserting various defenses, including immunities and exemptions from liability pursuant to the MTCA. The parties exchanged written discovery, and Stephens and some of her children, including Destinei, were deposed.

¶11. Following discovery, both the County and the City filed motions for summary judgment, asserting that they were not liable for Lewellyn’s drowning death in the Biloxi River because the river was not on property owned, operated, or controlled by the Defendants. They asserted that because no genuine issue of material fact existed on this fundamental issue, the Defendants were entitled to judgment as a matter of law. The Defendants also asserted that even if the Biloxi River could be considered under the ownership or control of the Defendants, they were exempt from liability pursuant to section 11-46-9(1)(v) because any alleged dangerous condition was "obvious to one exercising due care." Miss. Code Ann. § 11-46-9(1)(v).

¶12. In response, Stephens no longer asserted that the Biloxi River was on property owned or controlled by the Defendants. Rather, acknowledging that this was not the case, Stephens asserted that the Defendants were liable for Lewellyn’s death because Lewellyn and his family accessed the beach and the Biloxi River from the Park; "and but for this access," they would not have been present, and Lewellyn would not have drowned. Stephens asserted that the County and the City therefore owed Lewellyn a duty as an invitee or licensee and breached that duty by failing to protect him from or warn him of the dangerous conditions relating to the Biloxi River. Stephens also asserted that the risk of drowning in the river was not open and obvious to Lewellyn; thus, the Defendants were not entitled to immunity pursuant to section 11-46-9(1)(v).

¶13. After conducting a hearing and considering the parties’ arguments, the evidence, and the applicable law, the circuit court granted summary judgment in the Defendants’ favor.

¶14. Stephens appeals.

STANDARD OF REVIEW

[1] ¶15. "We review the grant of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made." Campbell v. Harrison Cnty. Bd. of Supervisors, 269 So. 3d 1269, 1273 (¶13) (Miss. Ct. App. 2018) (internal quotation marks omitted) (quoting Karpinsky v. Am, Nat’l Ins. Co., 109 So. 3d 84, 88 (¶9) (Miss. 2013)). Additionally, "[i]mmunity is a question of law[,]" and, therefore, we also "conduct[ ] a de novo review of the application of the MTCA." City of Jackson v. Harris, 44 So. 3d 927, 931 (¶19) (Miss. 2010) (internal quotation marks omitted).

[2] ¶16. "The party requesting summary judgment bears the burden of demonstrating that no genuine issue of material fact exists." Wood v. Reynolds, 316 So. 3d 208, 211 (¶17) (Miss. Ct. App. 2021). In rebuttal, the "opponent to the summary judgment motion must … produc[e] significant probative evidence showing that there are indeed genuine issues for trial." Id. (internal quotation marks omitted). "We will affirm … an order granting summary judgment if the record ‘show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " Campbell, 269 So. 3d at 1273 (¶13) (quoting M.R.C.P. 56(c)).

DISCUSSION

I. Dangerous Condition Adjacent to Property Owned, Operated, or Maintained by a Governmental Entity

[3, 4] ¶17. Stephens acknowledges that the Biloxi River is not on property owned, operated, or maintained by the County or the City but asserts that "but for" the family having access through the Park to the Biloxi River (the alleged "dangerous condition"), Lewellyn would not have drowned. Stephens relies on general Mississippi premises liability law to argue that the County and the City owed a duty to Lewellyn as a Park invitee or licensee to protect him from or warn him about this dangerous condition existing adjacent to the Park and accessible through the Park, According to Stephens, the Defendants breached this duty and therefore are liable for Lewellyn’s death.² In short, Stephens proposes an expanded form of premises liability law imposing liability on a land-owner or operator for an alleged "dangerous condition" existing on adjacent property.

¶18. We reject this contention because we find no Mississippi caselaw or statute supporting it. That is, we find no Mississippi law expanding Mississippi premises liability law to impose a duty on a governmental entity to protect or warn against alleged dangerous conditions on property adjacent to property owned or operated...