Howard v. City of Biloxi


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Docket Number: 2005-CA-00829-COA
Oral Argument: 09-14-2006
 

 

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Court of Appeals: Opinion Link
Opinion Date: 11-28-2006
Opinion Author: MYERS, P.J.
Holding: Affirmed

Additional Case Information: Topic: Personal injury - Tort Claims Act - Section 11-46-9(1)(v) - Dangerous condition - Open and obvious condition
Judge(s) Concurring: KING, C.J., LEE, P.J., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE, AND ROBERTS, JJ.
Concurs in Result Only: IRVING, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 04-12-2005
Appealed from: Harrison County Circuit Court
Judge: Jerry O. Terry, Sr.
Disposition: GRANT OF SUMMARY JUDGMENT IN FAVOR OF APPELLEE
Case Number: A2402-2004-29

  Party Name: Attorney Name:  
Appellant: NORMA HOWARD




VICTOR BOYD PRINGLE, CAREY R. VARNADO, TIMOTHY P. KOTTEMANN



 

Appellee: CITY OF BILOXI RONALD G. PERESICH, GINA BARDWELL TOMPKINS  

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Topic: Personal injury - Tort Claims Act - Section 11-46-9(1)(v) - Dangerous condition - Open and obvious condition

Summary of the Facts: Norma Howard tripped and fell over a crack in the sidewalk leading to the Lameuse Street entrance of the downtown Biloxi library. The library building and the realty on which the library sits are owned by the City of Biloxi and operated by the Harrison County Library System. Howard filed a complaint against the City of Biloxi. The City of Biloxi moved for summary judgment which the court granted. Howard appeals.

Summary of Opinion Analysis: In order for Howard to get beyond the statutory immunity provided by section 11-46-9(1)(v), she had to show that an injury was suffered; the injury was caused by a dangerous condition on the property of the Library caused by the negligent or other wrongful conduct of a City employee; the City had either actual or constructive notice of the defect; the City had an adequate opportunity to protect or warn of this defect; and the condition was not open and obvious to one exercising due care. Municipalities, such as the City of Biloxi, cannot be charged with the duty to maintain sidewalks in an absolutely perfect condition so as to render an accident impossible. Pedestrians are charged with their own responsibility to exercise ordinary care to avoid naturally caused sidewalk defects. Although Howard argues that the City of Biloxi was negligent because it failed to inspect the sidewalk, formal inspection programs are not necessarily required to find that a municipality has upheld its duty to maintain its sidewalks. Howard argues that the City of Biloxi had both actual and constructive notice of the dangerous condition; however, she presents no supporting evidence to attest to this fact. Because no evidence was presented to show the City’s actual or constructive notice of the defect in the sidewalk, it is illogical to charge the City with the duty to protect or warn of the defect. Howard argues that the fact that no one reported the unevenness in the sidewalk joints is evidence, in and of itself, that the condition was not open and obvious. A review of the photographs presented by Howard shows that the disparity in elevations of the adjoining sections of concrete was a condition that was open and obvious to one exercising due care. Because the condition of the sidewalk was open and obvious, and because there existed no duty for the City of Biloxi to warn of the condition, this finding operates as an absolute bar to recovery under the Tort Claims Act.


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