Blackston, et al. v. George County
| Docket Number: | 2010-CA-01306-COA Linked Case(s): 2010-CA-01306-COA2010-CT-01306-SCT |
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| Oral Argument: | 12-08-2011 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-15-2012 Opinion Author: Russell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Sovereign immunity - Section 11-46-9(1)(v) - Dangerous condition - Open and obvious - Notice of denial of claim - Section 11-46-11(3) - Governmental entity Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Maxwell and Fair, JJ. Dissenting Author : Carlton, J. Concur in Part, Concur in Result 1: Irving, P.J., Concurs in Part and in the Result Without Separate Written Opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 01-26-2010 Appealed from: George County Circuit Court Judge: Robert P. Krebs Disposition: VERDICT IN FAVOR OF APPELLEE Case Number: 2007-0165(2) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Carl Keith Blackston and Joshua M. Stapleton |
A. MALCOLM N. MURPHY
DARRYL A. HURT |
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| Appellee: | George County, Mississippi | KIMBERLY DAWN SAUCIER ROSETTI | ||
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 - Sovereign immunity - Section 11-46-9(1)(v) - Dangerous condition - Open and obvious - Notice of denial of claim - Section 11-46-11(3) - Governmental entity |
| Summary of the Facts: | Carl Blackston drove his pickup truck westbound on Mt. Pleasant Road in George County. Joshua Stapleton was a passenger in Blackston’s truck. The George County Road Department had installed culverts on several driveways on Mt. Pleasant Road. According to Blackston, a vehicle approached him in the opposite direction, and he did not have room to pass. Therefore, he moved his truck to the right side of his lane. At that time, Blackston’s truck hit a mound of dirt in the roadway, which caused Blackston to lose control of his vehicle. The mound of dirt was situated in front of a private driveway owned by Ralph Ayers. Stapleton has no memory of the accident. On February 21, 2007, Blackston and Stapleton filed a notice of tort claim to the president of the George County Board of Supervisors and the George County Chancery Clerk. On April 30, 2007, Zurich North America Insurance Company, George County’s liability carrier, sent Blackston and Stapleton a letter denying their claim. On August 30, 2007, Blackston and Stapleton filed a complaint against George County under the MTCA alleging negligence. George County filed a motion to dismiss and/or for summary judgment, asserting that the complaint filed by Blackston and Stapleton was untimely. The circuit court denied George County’s motion, finding that the denial letter was ineffective because it was sent by Zurich rather than George County. George County filed a motion for summary judgment which the court denied. After a bench trial, the circuit court rendered a verdict in favor of George County and dismissed the case with prejudice. Blackston and Stapleton appeal, and George County cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Immunity Blackston and Stapleton argue that George County left the dirt in the roadway, and but for the dirt left in the roadway, neither the accident nor the injuries would have occurred. They also argue that George County was not immune from liability. Section 11-46-9(1)(v) of the Tort Claims Act provides immunity to George County for damages arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, 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. The record supports the circuit court’s finding that Blackston and Stapleton failed to prove by a preponderance of the evidence that the mound of dirt was the cause of the accident and their resulting injuries. Furthermore, the circuit court properly found that even if the dirt mound was the cause of the accident, the MTCA’s open-and-obvious exemption provides George County with immunity from suit. Blackston testified that he had seen and was aware of the culverts and dirt used by George County prior to the accident. In addition, other neighbors testified that they were aware of the condition of the road. While Blackston argues that it was dark outside on the night of the accident, he testified that he drove down Mt. Pleasant Road daily and was aware of the work conducted by George County prior to the night of the accident. For this reason, the danger was open and obvious to him. Issue 2: Notice of denial of claim George County argues that the circuit court erred when it denied its motion to dismiss and/or for summary judgment based upon the statute of limitations because the denial letter sent by Zurich, George County’s insurer, qualified as a notice of denial of claim under the Tort Claims Act. Section 11-46-11(3) provides that “[a]ll notices of denial of claim shall be served by governmental entities upon claimants by certified mail, return receipt requested, only.” In this case, the governmental entity was George County and not Zurich. Blackston and Stapleton sent their notice of claim to the president of the George County Board of Supervisors and the George County Chancery Clerk on February 21, 2007. George County does not dispute receipt of the notice of claim. On May 4, 2007, George County improperly served notice of denial of claim on Blackston and Stapleton. Therefore, the August 30, 2007, complaint was filed well within the time allotted by the statute, as the tolling period did not end on February 21, 2007. |
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