Hankins v. City of Cleveland, et al.


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Docket Number: 2010-CA-01491-COA
Linked Case(s): 2010-CA-01491-COA ; 2010-CA-01491-COA

Supreme Court: Opinion Date: 06-14-2012
Holding: Petition for writ of certiorari filed by Ashley Hankins is denied.

Additional Case Information: Topic: Personal injury - Tort Claims Act - Section 11-46-9 - Discretionary duty - Maintenance of streets - Section 21-37-3 - Dangerous condition - Motion to compel discovery - M.R.A.P. 28
Judge(s) Concurring: Waller, C.J., Carlson, Dickinson, P.JJ., Randolph, Lamar, Kitchens, Chandler, Pierce and King, JJ.
Nature of the Case: Petition for Writ of Certiorari
Writ of Certiorari: Denied

Trial Court: Date of Trial Judgment: 08-20-2010
Appealed from: Bolivar County Circuit Court
Judge: Kenneth L. Thomas
Case Number: 2009-0017

  Party Name: Attorney Name:  
Appellant: Ashley Hankins








 

Appellee: City of Cleveland, Mississippi, Delta State University and Carl Towles  

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Topic: Personal injury - Tort Claims Act - Section 11-46-9 - Discretionary duty - Maintenance of streets - Section 21-37-3 - Dangerous condition - Motion to compel discovery - M.R.A.P. 28

Summary of the Facts: Ashley Hankins suffered multiple injuries when she was struck by a vehicle driven by Carl Towles while crossing Fifth Avenue on the campus of Delta State University in the City of Cleveland. Hankins filed a complaint against the City, DSU, and Towles. The court granted the City’s and DSU’s motions for summary judgment and certified both summary judgments as final under M.R.C.P. 54(b). Hankins appeals.

Summary of Opinion Analysis: In its two separate orders granting DSU’s and the City’s motions for summary judgment, the circuit court held that each were entitled to immunity pursuant to the design, discretionary, and premises exemptions found in section 11-46-9 of the Tort Claims Act. Hankins argues this was error. For DSU and the City to receive immunity under this provision of the statute, each would have to prove the following three elements: the existence of a plan or design, that the plan or design was approved prior to construction, and the plan or design was in conformity with the engineering standards that were in effect at the time it was prepared. Hankins correctly argues that neither the City nor DSU presented a plan or design for the street, much less one that was approved in advance of construction as required by statute. A decision will be considered ministerial and not discretionary if the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion. Hankins argues that the City’s duty is found in section 21-37-3, which imposes a duty on the City to maintain its streets. Hankins argues that DSU’s duty comes from her status as a student on DSU’s campus making her an invitee on DSU’s premises. Generally, it has been found that the placement, or non-placement, of warning signs is a discretionary act, involving a choice that must be based upon public policy and other considerations. Section 21-37-3 does not impose a duty on the City. Instead, it gives the City the power to exercise jurisdiction over the streets and not a mandatory duty to maintain them. Therefore, as this was a discretionary function, the circuit court was correct in granting immunity to DSU and the City pursuant to section 11-46-9(1)(d). Also, the circuit court was correct in granting immunity to DSU and the City under the provisions of section 11-46-9(1)(v). Hankins failed to present any evidence that the City or DSU had any notice of any claimed defect or had the opportunity to protect or warn of the defect. She additionally fails to show that the open-and obvious nature of the alleged dangerous condition, of which she was obviously aware, should not act as a complete bar to her recovery. Hankins also argues that the circuit judge abused his discretion in denying her second motion to compel discovery. Hankins failed to cite to any relevant case or statute in support of her argument as required under M.R.A.P. 28. In addition, Hankins’s brief does not provide, with any specificity, the information she hoped to gain had the motion to compel been granted. Nor does Hankins provide any argument as to how any new information would have helped her defeat the motions summary judgment.


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