Smith v. City of Gulfport
| Docket Number: | 2005-CA-01153-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-13-2007 Opinion Author: LEE, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Failure to maintain drainage ditch - Expert deposition - M.R.C.P. 32(a)(3) - Causation - Legal standard - Finding by court Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial; Directed Verdict Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 05-17-2005 Appealed from: Harrison County Circuit Court Judge: Kosta N. Vlahos Disposition: DIRECTED VERDICT IN FAVOR OF APPELLEE. Case Number: A2401-2001-00464 |
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| Party Name: | Attorney Name: | |||
| Appellant: | BRENDA SMITH, VICTOR SMITH, LINDA
WILSON, OKIMO WILLIAMS, RANDY ENGE AND
SHERRI ENGE |
BEN F. GALLOWAY |
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| Appellee: | CITY OF GULFPORT, MISSISSIPPI | JEFFREY S. BRUNI |
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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: | Failure to maintain drainage ditch - Expert deposition - M.R.C.P. 32(a)(3) - Causation - Legal standard - Finding by court |
| Summary of the Facts: | In 2001, several homes in the Faust Drive subdivision in Gulfport were flooded. The cause of this flooding, according to the residents, was overflow from a drainage ditch that runs along the northern and western edge of the Faust Drive subdivision. Fifteen residents filed suit against the City of Gulfport alleging that the City’s failure to properly maintain the drainage ditch directly and proximately caused their property to flood. The City responded arguing that it had contracted out all maintenance of the ditch to Operations Technologies, Inc., and, thus, Optech was a necessary party. The plaintiffs amended their complaint to include Optech as a defendant. The trial judge later granted summary judgment in favor of Optech. Before trial, the City moved for summary judgment which the court denied. At the conclusion of the trial, the residents sought to introduce the deposition testimony of their sole expert witness. The City renewed its previously filed motion to strike the deposition which was granted by the trial judge. The trial court then granted the City’s motion for directed verdict. Six residents appeal. |
| Summary of Opinion Analysis: | Issue 1: Expert deposition When this matter came to trial, the residents’ expert, a civil engineer, was not available to testify as he was a defendant in a federal trial taking place simultaneously in Gulfport. The trial judge excluded the expert’s deposition as not complying with M.R.C.P. 32. Where the deposition of an absent witness is sought to be introduced pursuant to M.R.C.P. 32(a)(3), the party offering the deposition must show that it fits into one of the stated exceptions. The only feasible subsection that applies in this case is Rule 32(a)(3)(F), that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be so used. The first notice of record given to the City and the trial court of the expert’s unavailability was approximately a week before trial. The residents’ attorney did not ask for the trial to be rescheduled. The admission of deposition testimony is within the sound discretion of the trial court. The trial court did not abuse its discretion in excluding the deposition. The residents also argue that the trial court erred by holding, in part, that the expert’s deposition should be excluded for his failure to give opinions based on scientific certainty. While no specific language, such as “with a reasonable degree of scientific certainty,” is required, an expert witness must still form his or her opinion with scientific certainty. The expert’s opinion cannot be mere speculation. Although the trial judge erred in his ruling requiring the specific language “with a reasonable degree of scientific certainty” to be used, the exclusion of the deposition is not erroneous since the judge gave valid reasons for excluding the testimony. Issue 2: Causation The residents argue that the lay testimony of the residents and photographs of the ditch were enough to find the City liable for negligence in failing to properly maintain the ditch. The trial court did not find that expert testimony was required to prove causation in all cases regarding failure to maintain a city ditch. The trial court instead found that the testimony of the lay witnesses was not helpful or determinative and that an expert was needed in this case because all that could be gathered from the lay witnesses’ testimony was guesswork, speculation or conjecture as to what caused the ditch to overflow. Thus, this argument is without merit. Issue 3: Legal standard The residents argue that the trial court erred by suggesting that proof of the extent of flooding caused by the City’s negligence was required. The trial court did not apply the wrong legal standard. Although the trial judge stated that there were multiple reasons that may exist as to why the ditch overflowed, his ruling was that the residents failed to prove that the City’s negligence was one of the reasons. Issue 4: Finding by court The residents argue that the trial court found there was no testimony that the residents actually observed any obstruction in the ditch. The trial court recognized that testimony existed that debris impeded the flow of water in the ditch. This is consistent with the residents’ testimony that vegetation, silt, appliances, and other debris impeded the flow of water. The testimony regarding these obstructions was not sufficient to reach a conclusion that the City’s failure to remove the debris caused the neighborhood to flood. |
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