Higginbotham v. Hill Brothers Constr. Co., Inc., et al.
| Docket Number: | 2005-CA-00289-COA Linked Case(s): 2005-CA-00289-COA ; 2005-CT-00289-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-12-2006 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Notice of acceptance - Failure to warn Judge(s) Concurring: MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): KING, C.J. Dissenting Author : LEE, P.J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 01-05-2005 Appealed from: TUNICA COUNTY CIRCUIT COURT Judge: Al Smith Disposition: SUMMARY JUDGMENT AWARDED TO DEFENDANTS Case Number: 2002-0204 |
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| Party Name: | Attorney Name: | |||
| Appellant: | RITA M. HIGGINBOTHAM, INDIVIDUALLY, AND
AS MOTHER AND PERSONAL REPRESENTATIVE
OF THE WRONGFUL DEATH BENEFICIARIES OF
HEATHER DAWN HIGGINBOTHAM, DECEASED |
C. KENT HANEY, DANA J. SWAN |
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| Appellee: | HILL BROTHERS CONSTRUCTION CO., INC., HILL BROTHERS CONSTRUCTION & ENGINEERING CO., INC., AND ENDEVCO, INC. | THOMAS W. SOUTHERLAND, MICHAEL N. WATTS, TODD BRITTON MURRAH |
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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 - Notice of acceptance - Failure to warn |
| Summary of the Facts: | Rita Higginbotham, the administratrix of Heather Higginbotham’s estate, filed an amended complaint for the wrongful death of her daughter against multiple defendants, including Hill Brothers Construction Co., Inc., Hill Brothers Construction & Engineering Co., Inc., and Endevco, Inc. Higginbotham alleged that the defendants were negligent in many respects including: failure to properly drain the temporary connector, failure to properly construct the temporary connector so as to prevent rainwater from ponding, and failure to warn the traveling public about an extremely hazardous condition about which they had actual knowledge. Hill Brothers and Endevco filed motions for summary judgment, which were granted. Higginbotham appeals. |
| Summary of Opinion Analysis: | Issue 1: Notice of acceptance Endevco argues that the “Final Maintenance Release” and official notice of acceptance given to it by MDOT prior to the accident shields it from liability to third parties and that if ponding occurred on the connector it built, then MDOT should be held liable for negligently designing the connector. The test of whether the contractor satisfactorily complied with the specifications is answered solely by the opinion of the government entity that provided it, evinced by its release. Logic would dictate that the government entity that sponsored the project, drew up and approved the specifications, inspected the completed work, fulfilled its pecuniary obligations, and provided the contractor with a full and final release of all further liability would stand in the best position to determine whether its own specifications were met. Justice would also dictate that once a contractor receives a full and final release absolving it from future liability arising from the project, and placing the liability with the government entity that commissioned the work, some finality is deserving. Therefore, the issue of whether Endevco complied with MDOT’s specifications is a decided, and thus a moot, point under the facts presented. However, there is an exception in cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons. In this case, the record shows that over the two days previous and the day of the accident, there had been three and a half inches of rainfall, two of which occurred the day Heather’s accident occurred. With that much precipitation some amount of pooling or ponding must reasonably be expected by the motoring public. Rainwater ponding on the roadway is only dangerous at an unreasonably high rate of speed under the then existing conditions. Given the multiple days of rain and the corresponding surface conditions of the connector, an accident and subsequent injury can hardly be said to be unreasonable. Also, the ponding of rainwater does not lend itself to classification as a public nuisance per se. Issue 2: Failure to warn With respect to Hill Brothers, Higginbotham argues that the company was negligent by failing to take affirmative action either to remedy or warn of the allegedly defective condition. According to testimony, Hill Brothers was responsible only for drainage on the subgrade of the second temporary connector. Thus, there is not a genuine factual issue. Higginbotham also argues that there was considerable construction by Hill Brothers in the very same area requiring them to take remedial action. Higginbotham has produced no authority which would place an affirmative duty upon Hill Brothers under the facts of this case. A finding that Hill Brothers had no responsibility for the first temporary connector precludes a finding that Hill Brothers had a duty to warn of or remedy any dangerous condition–even assuming Hill Brothers knew of the condition. Even assuming that Hill Brothers had an affirmative duty with respect to the first temporary connector, the record does not contain sufficient evidence to demonstrate that Hill Brothers had actual or constructive notice of the allegedly dangerous condition. |
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