Miss. Dep't. of Transp. V. Trosclair
| Docket Number: | 2002-CA-00263-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-29-2003 Opinion Author: Bridges, J. and Southwick, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Section 11-46-9 (1) (v) & (w) - Findings of fact - Spoliation of evidence - Proximate causation - Comparative negligence - Section 85-5-7 Judge(s) Concurring: Lee and Irving, JJ., concur in toto. Section C: All judges concur. Section E: Southwick, P.J., writing for the Court joined by McMillin, C.J., Chandler and Griffis, JJ. Dissenting Author : Southwick, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 10-22-2001 Appealed from: Harrison County Circuit Court Judge: Kosta N. Vlahos Disposition: VERDICT AND DAMAGES FOR THE PLAINTIFF |
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| Party Name: | Attorney Name: | |||
| Appellant: | MISSISSIPPI DEPARTMENT OF
TRANSPORTATION, STATE OF MISSISSIPPI |
PATRICK R. BUCHANAN |
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| Appellee: | SUSAN TROSCLAIR AND BRIDGET TROSCLAIR (BAILES) | JOSEPH H. MONTGOMERY LAMPTON O. WILLIAMS |
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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: | Personal injury - Tort Claims Act - Section 11-46-9 (1) (v) & (w) - Findings of fact - Spoliation of evidence - Proximate causation - Comparative negligence - Section 85-5-7 |
| Summary of the Facts: | After being injured in a one-car accident, Susan Trosclair and Bridget Trosclair Bailes filed a lawsuit against the Mississippi Department of Transportation. The Department filed a motion to dismiss for failure to give timely notice and failing to file within one year of the date of injury and also filed a summary judgment motion. Bridget and Susan filed a motion for partial summary judgment. The court denied the Department's motion to dismiss and their summary judgment motion and granted Bridget and Susan's partial summary judgment motion. The Department filed a second motion for summary judgment which was granted. On appeal, the Mississippi Supreme Court reversed the decision and remanded the case. The parties verbally stipulated that there were no longer any issues pertaining to whether the Department received proper and/or timely notice and/or whether the litigation was timely commenced. The judge found in favor of Bridget and Susan and awarded Susan $47,250 and Bridget $2,750. The Department appeals. |
| Summary of Opinion Analysis: | Issue 1: Governmental immunity Section 11-46-9 (1) (v) of the Tort Claims Act provides that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care while section 11-46-9 (1) (w) provides that a governmental entity shall not be liable for any claims arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, etc., is not corrected by the governmental entity within a reasonable time after notice. The evidence in this case established that there was a dangerous 3-5 inch drop-off along the irregular edge of the pavement that extended over 500 feet; the hazardous condition was created by the negligence and wrongful conduct of the Department employees; the Department through its employees, either knew or should have known that this dangerous drop-off and irregular edge existed prior to the accident; since the final paving in this area had been completed, the Department had adequate opportunity to protect or warn against the hazard created by the drop-off and irregular pavement area; and the Department is liable for failing to warn of this dangerous condition since, as shown by the testimony, the hazard was not obvious to anyone. Based on evidence that the condition was not obvious and lacked adequate warning signs or devices, the judge made reasonable fact findings. Issue 2: Findings and conclusions The Department argues that the court erred in failing to make findings of fact and conclusions of law. In cases of any significant complexity, the court generally should find the facts specially and state separately its conclusions of law. When a party requests specific findings of fact and conclusions of law, it is error for the court to fail to make such findings. This case is not only far from complex, but the Department failed to request specific findings of fact and conclusions of law. Issue 3: Spoliation of evidence The Department argues that the plaintiffs and their attorney failed to preserve critical evidence, i.e., the tire that they allege sustained a blowout. Not only did the Department fail to raise this issue in the lower court, but it is clear that there was no intent to destroy the tire or to deprive the Department of the opportunity to inspect it. Issue 4: Proximate causation The Department argues that the court erred in finding the Department negligent. However, the evidence fully supported the court's findings that a proximate cause of the accident and the plaintiffs' injuries was the negligence of the Department in creating the dangerous condition and failing to protect or warn against the hazard. Issue 5: Comparative negligence The Department argues that Bridget, the driver, was negligent. Section 85-5-7 provides that those who are negligent and proximately contribute to an injury should be allocated a percentage of fault. The record contains evidence that it was daytime and the weather was clear; the plaintiffs realized that they had entered an stretch of road being repaved; a drop-off from the fresh pavement to the unpaved shoulder was obvious, though the degree of elevation change was not clear; and the edge of the pavement was clearly observable. Because of the importance of highways, the balance that has been struck is largely to leave roads open and make other adjustments such as slower speeds and occasional detours. The balance also requires that a driver upon entering a road she knows is undergoing repair to exercise vigilant caution. A motorist on a freshly paved highway on which additional work is obviously remaining, cannot be found faultless when she in good weather, on a straight stretch of road, and without other explanation runs off the new pavement onto the unpaved and lower shoulder. Bridget did not meet the "vigilant caution" standard for drivers on roads under construction. Therefore, she must be allocated some fault, and the case is reversed and remanded. |
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