Lowery, et al. v. Harrison County
| Docket Number: | 2003-CA-01538-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-26-2004 Opinion Author: King, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Expert report - M.R.C.P. 56(e) - Dangerous condition - Section 11-46-9(1)(v) Judge(s) Concurring: Bridges and Lee, P.JJ., Irving, Myers, Chandler, Griffis, Barnes and Ishee, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 07-07-2003 Appealed from: Harrison County Circuit Court Judge: Stephen Simpson Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF HARRISON COUNTY BOARD OF SUPERVISORS Case Number: A2401-2001-0081 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Judson Clark Lowery, Jordan Hiatt Lowery and Charlie Jade Lowery, Minors, as Wrongful Death Beneficiaries of Robin Rebekah Clark Irby, Deceased, by and through John Mark Irby, Administrator of the Estate of Robin Rebekah Clark Irby, and John Mark Irby Individually |
WILLIAM LEE GUICE
MARIA M. COBB |
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| Appellee: | Harrison County Board of Supervisors | KAREN J. YOUNG |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - Expert report - M.R.C.P. 56(e) - Dangerous condition - Section 11-46-9(1)(v) |
| Summary of the Facts: | After Robin Irby lost control of her 1994 Pontiac Grand Am as she rounded a curve, her beneficiaries filed a wrongful death claim against General Motors Corporation, the Harrison County Board of Supervisors, the Mississippi Department of Transportation, and Coast Electric Power Association. All defendants, with the exception of the Harrison County Board of Supervisors, were subsequently dismissed. Irby’s beneficiaries claimed that gravel deposited on the shoulder of Allen Drive was dislodged by vehicles and accumulated on the east edge of Fire Tower Road in the curve on Allen Drive. Harrison County’s motion for summary judgment was granted, and the beneficiaries appeal. |
| Summary of Opinion Analysis: | Issue 1: Expert report Lowery argues that the court erred in not considering Olin Dart’s unsworn expert report as a defense to Harrison County’s motion for summary judgment. Where affidavits are offered, M.R.C.P. 56(e) requires that they be based upon personal knowledge, and set forth such facts as would be admissible in evidence. An issue of fact is present to overcome a motion for summary judgment where the parties swear to their version with facts that must be admissible in evidence. Therefore, the judge did not have to consider the unsworn report. In addition, the record shows that the judge nevertheless considered the report when rendering his opinion. Issue 2: Dangerous condition Lowery argues that since Mississippi case law does not define a “dangerous condition,” the case should have been submitted to a jury to determine whether the loose gravel constituted a dangerous condition. Pursuant to section 11-46-9(1)(v), Lowery was required to prove the existence of a dangerous condition, on Harrison County's property which was either, created by negligent or wrongful conduct of Harrison County, or existing with actual or constructive notice to the County and an adequate opportunity to protect from or warn of the condition. Although the expert in accident re-construction indicated that gravel on a surface, especially on an asphalt surface, reduces the amount of friction available to an automobile, which affects the automobile’s ability to negotiate a curve, he also testified that it was not his opinion that the gravel caused the accident and that Harrison County had not violated any standard, or regulation, by the gravel being on the road. Therefore, the judge properly granted summary judgment. |
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