Bay Point High & Dry, LLC v. New Palace Casino, LLC
| Docket Number: | 2009-CA-01452-COA Linked Case(s): 2009-CA-01452-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-05-2010 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Negligence - Duty - Reasonable foreseeability - Act of God - Negligence per se Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Carlton and Maxwell, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - NEGLIGENCE |
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| Trial Court: |
Date of Trial Judgment: 08-14-2009 Appealed from: Harrison County Circuit Court Judge: Roger T. Clark Disposition: SUMMARY JUDGMENT GRANTED TO DEFENDANT Case Number: A2402-07-191 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Bay Point High and Dry, L.L.C. |
WILLIAM L. GUICE III |
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| Appellee: | New Palace Casino, LLC | J. HENRY ROS, GARY A. HEMPHILL | ||
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: | Negligence - Duty - Reasonable foreseeability - Act of God - Negligence per se |
| Summary of the Facts: | Bay Point High and Dry, L.L.C. filed suit for negligence against New Palace Casino, L.L.C. New Palace filed a motion for summary judgment, which the trial court granted. Bay Point appeals. |
| Summary of Opinion Analysis: | Bay Point argues that there are genuine issues of material facts as to whether New Palace was negligent in mooring its barge. To prove a negligence claim, Bay Point must show a duty or standard of care owed by New Palace to Bay Point, a breach of that duty by New Palace, and this breach proximately caused the damage to the Bay Point building. The trial judge found that New Palace owed a duty to the owners of real property in close proximity to the casino to take reasonable measures to prevent foreseeable injuries and damages in the event of a hurricane. The important component of the existence of the duty is that the injury is reasonably foreseeable. Ordinary care does not require that the reasonable person anticipate an unusual or extraordinary event even if it is in the realm of possibility. The trial court was correct in its finding. The trial court held that New Palace met their duty to take reasonable measures for foreseeable injuries when they complied with Mississippi Gaming Commission Regulation section II(B)(10). The pertinent language of regulation section II(B)(10) states that “cruise vessels utilized for gaming on the Mississippi Gulf Coast, in the Biloxi Bay[,] or in the Bay of St. Louis, that are not self-propelled, are to be moored to withstand a Category 4 Hurricane with 155 mile per hour winds and 15 foot tidal surge.” New Palace’s mooring system was designed by a licensed engineer in Mississippi. He stated in his affidavit that the design met and exceeded the standards in the regulation. The barge was actually designed to withstand an eighteen-foot-tidal surge. Bay Point’s own expert acknowledged that the designs met the regulation standards. The Commission found that the mooring system met the regulation and granted New Palace a license. As a governmental body that has a duty to protect the public from harm, their determination is strong proof that New Palace complied with the standards. The duty New Palace owed to Bay Point only required that they use reasonable measures and did not require that they take additional measures for the unforeseen. The trial court also held that New Palace had established that Hurricane Katrina was an “Act of God.” Acts of God are defined as events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them. The injury caused during the Act of God must be solely due to natural causes without human intervention, which could not have been prevented by exercise of reasonable care and foresight. The trial court was not wrong in finding that Hurricane Katrina was an “Act of God.” Bay Point also argues that there is enough evidence to support a finding of negligence per se against New Palace for the damage to its property by violating United States Coast Guard regulations. To succeed in a negligence-per-se claim, Bay Point must prove that it is a member of the class sought to be protected under the statute; its injuries were of a type sought to be avoided by the statute; and the violation of the statute proximately caused or contributed to its injuries. The plaintiff is a member of the class the statute meant to protect since they operate a business immediately adjacent to a navigable waterway. The statute was enacted, in part, to protect those businesses from damage by vessels on a navigable waterway. It is clear and undisputed by New Palace that it violated the statute by not filling out the paperwork to receive its PMV status for the SportsZone. However, there is no evidence to suggest that had New Palace correctly filed the paperwork to request a PMV status for the Sports Zone that the Coast Guard would not have granted it. The evidence shows that the mooring system of the SportsZone not only exceeded the Commission’s requirements, but also the previous highest storm surge at the SportsZone’s location created by Hurricane Camille. |
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