Miss. Dep’t of Transp. v. Cargile
| Docket Number: | 2002-CA-00202-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-29-2003 Opinion Author: Smith, P.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Causation - Lay testimony - M.R.E. 602 - M.R.E. 701 - Immunity - Ordinary care - Section 11-46-7(1)(b) - Section 11-46-9(1)(q) - Failure to warn Judge(s) Concurring: Pittman, C.J., McRae, P.J., Easley, Carlson and Graves, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : WALLER, J., DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. Dissent Joined By : WALLER, J., DISSENTS IN PART Concur in Part, Dissent in Part 1: Waller, J., Dissents in Part Without Separate Written Opinion Concurs in Result Only: Cobb, J. Procedural History: Bench Trial Nature of the Case: CIVIL - PERSONAL INJURY |
|
| Trial Court: |
Date of Trial Judgment: 11-26-2001 Appealed from: Jasper County Circuit Court Judge: Robert G. Evans Disposition: Awarded the Appellee $38,151.00. Case Number: 99-0030 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Mississippi Department of Transportation |
JAMES N. BULLOCK |
||
| Appellee: | Kenneth Michael Cargile | BOBBY L. SHOEMAKER |
|
|
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. |
|
| Topic: | Personal injury - Tort Claims Act - Causation - Lay testimony - M.R.E. 602 - M.R.E. 701 - Immunity - Ordinary care - Section 11-46-7(1)(b) - Section 11-46-9(1)(q) - Failure to warn |
| Summary of the Facts: | Kenneth Cargile sued the State of Mississippi and the Mississippi Department of Transportation, claiming he lost control of his truck when it hydroplaned after running through a large pool of water which had collected on the road. The State of Mississippi was dismissed. The court apportioned 50% fault to Cargile and 50% fault to MDOT and entered judgment in favor of Cargile for $38,151. MDOT appeals. |
| Summary of Opinion Analysis: | Issue 1: Causation MDOT argues that the evidence shows that the accident was not caused by its negligence but was caused by Cargile’s failure to keep a proper lookout, his truck’s speed which was excessive for the conditions, and his failure to keep his vehicle under control. MDOT also argues that the court erred in admitting as evidence the testimony of a witness who lives near the scene of the accident as to his opinion about the cause of Cargile’s accident. To prevail on a negligence claim, the plaintiff must establish by a preponderance of the evidence the elements of duty, breach, causation and injury. If proof of a causal connection is to be established by circumstantial evidence, it must be sufficient to make the plaintiff’s asserted theory reasonably probable, not merely possible. In this case, the court chose to accept the testimony the witness as to the numerous accidents occurring in the area of Cargile’s accident. MDOT either knew or should have known about other accidents occurring on the roads it had responsibility for maintaining. A layperson is qualified to give an opinion if he has firsthand knowledge which other laypeople , i.e., the jury, do not have. M.R.E. 602 prohibits a witness from testifying to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. M.R.E. 701 limits testimony in the form of an opinion or inference to those which are rationally based on the perception of the witness and helpful to the clear understanding of the testimony or the determination of a fact in issue. Evidence of other similar accidents or injuries at or near the same place suffered by persons other than the plaintiff, not too remote in time from the particular occurrence, is generally admissible to show the existence of a defective or dangerous condition and the dangerous character of the place or injury and to show the defendant’s notice or knowledge thereof. Since there are no eyewitnesses, negligence may be established by circumstantial evidence such as the testimony of the witness and Cargile. The testimony of the witness supports Cargile’s allegation of knowledge by MDOT. It was properly for the trier of fact, that is, the trial judge, to determine the credibility of his testimony. Issue 2: Immunity MDOT argues that the court erred in failing to find it immune under the Tort Claims Act, MDOT and its employees are not liable when exercising ordinary care. Section 11-46-7(1)(b) provides that a governmental entity and its employees acting within the course and scope of their employment shall not be liable for any claim arising out of any act of omission of an employee of a governmental entity exercising ordinary care. Section 11-46-9(1)(q) provides that a governmental entity and its employees acting within the course and scope of their employment shall not be liable for any claim arising out of an injury solely by the effect of weather conditions and the use of streets and highways. Governmental employees are entitled to qualified immunity for discretionary acts. MDOT has a duty of ordinary care to warn of dangerous conditions if given notice, either actual or constructive, of a dangerous condition. Immunity for discretionary duties is granted only when ordinary care is used. The trial court is charged with deciding whether the decision maker used ordinary care. Here, the court correctly found MDOT’s duty to regularly inspect and maintain the highway to be discretionary, and the judge, as the finder of fact, was the proper person to decide whether MDOT used ordinary care. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
