Ladner v. Stone County, et al.
| Docket Number: | 2004-CA-00999-COA Linked Case(s): 2004-CT-00999-SCT ; 2004-CA-00999-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-17-2006 Opinion Author: GRIFFIS, J. Holding: Affirmed in Part, Reversed & Remanded in Part |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Discretionary function - Negligence - Dangerous condition - M.R.C.P. 41(b) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, JJ. Non Participating Judge(s): ROBERTS, J. Procedural History: Bench Trial where Directed Verdict granted Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 02-17-2004 Appealed from: STONE COUNTY CIRCUIT COURT Judge: Jerry O. Terry, Sr. Disposition: DIRECTED VERDICT GRANTED AGAINST PLAINTIFF. MOTION TO RECONSIDER DENIED. MOTION FOR NEW TRIAL DENIED. Case Number: 99-0134 |
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| Party Name: | Attorney Name: | |||
| Appellant: | CARRIE LADNER |
ALBERT LIONEL NECAISE |
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| Appellee: | STONE COUNTY, MISSISSIPPI, MISSISSIPPI STATE AID ROAD CONSTRUCTION AND MISSISSIPPI STATE AID ENGINEER FLOYD KIRK | ROBERT O. ALLEN, WILLIAM L. MCDONOUGH, JR. |
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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 - Discretionary function - Negligence - Dangerous condition - M.R.C.P. 41(b) |
| Summary of the Facts: | After suffering severe injuries when she drove over a collapsed bridge, Carrie Ladner sued Stone County, State Aid Road Construction, and State Aid Engineer Floyd Kirk, alleging negligence, failure to properly maintain the bridge, failure to inspect, and failure to warn. After Ladner put on her case-in-chief, the defendants moved for a directed verdict. The judge granted the motion, and Ladner appeals. |
| Summary of Opinion Analysis: | Ladner argues discretionary function immunity does not apply when the duty is imposed by law. She also argues that the defendants were negligent in that they failed to properly maintain Kirby Creek Bridge in a safe condition, they negligently repaired the bridge, they failed to properly inspect the bridge, and they failed to warn her of a dangerous condition. The duty to maintain State Aid roads and bridges is delegated to the boards of supervisors in their respective counties. Since the State Aid defendants did not have a duty to repair or maintain the bridge, Ladner could not maintain a negligence action against them for breach of this duty. Accordingly, the trial court was correct to dismiss the failure to maintain and negligent repair counts against the State Aid defendants. While the State Aid defendants did have an affirmative duty to inspect State Aid bridges, Ladner put on no evidence that proved that the State Aid defendants negligently performed this function. Because there was no dispute that Kirby Creek Bridge was a county road, not a state highway, Ladner cannot maintain a dangerous condition cause of action against the State Aid defendants. With regard to Ladner’s claim against Stone County, she argues that Stone County knew Kirby Creek Bridge was defective and dangerous, but the failure to correct the problem caused the bridge to collapse and injure her. Ladner further put on evidence that the steps needed to protect her against this dangerous condition were feasible with respect to money and time. For example, there was evidence that it only took the county one month to repair the bridge after it collapsed. The county had been on notice for five years that the bridge needed repair. Additionally, the county was aware, in February of 1999, that the bridge was in danger of imminent collapse. The bridge did not collapse until May 19, 1999, giving the county adequate time to have repaired the bridge before the collapse. Therefore, Stone County is not immune from its duty to properly maintain and repair Kirby Creek Bridge and its duty to warn of a dangerous condition. Stone County was under the statutory duty to properly maintain and to inspect State Aid roads such as Kirby Creek Bridge and the constitutional duty to perform such other duties as may be required by law. The statutory duty trumps the discretionary function immunity. Therefore, Stone County is not immune from its duty to properly maintain, inspect, and perform such other duties as may be required by law, with respect to Kirby Creek Bridge, and the trial court’s finding of discretionary function immunity is reversed. For years the county did nothing except post a lowered weight limit sign on the bridge and splice the pilings. Stone County cannot be said to have exercised ordinary care when it in fact failed to perform its statutory duty to properly maintain the bridge. To state a cause of action under the dangerous condition exemption of the Tort Claims Act, a plaintiff must show a dangerous condition, on the government entity’s property, which the government entity caused, or of which it had notice and time to protect or warn against, and the condition was not open and obvious. Here, the plaintiff satisfied her prima facie case of failure to properly maintain and repair the bridge, or in the alternative to warn against its dangers. It was error for the trial court to hold that Stone County was not negligent. By raising a M.R.C.P. 41(b) motion to dismiss, a defendant does not waive its right to put on its case-in-chief, should the motion be denied. Therefore the proper remedy is to remand the case so the trial may continue. |
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