E-Filed Document Apr :21: CA Pages: 22. CITY OF MOSS POINT, MISSISSIPPI, a Municipal Corporation APPELLEE

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1 E-Filed Document Apr :21: CA Pages: 22 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA BOBBIE JEAN LOWE APPELLANT VERSUS CITY OF MOSS POINT, MISSISSIPPI, a Municipal Corporation APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSISSIPPI NO ,017(3) BRIEF OF APPELLEE ORAL ARGUMENT NOT REQUESTED Amy Lassitter St. Pe! (MSB No ) James E. Lambert, III (MSB No ) DOGAN & WILKINSON, PLLC 734 Delmas Avenue (39567) Post Office Box 1618 Pascagoula, MS Phone: Fax: astpe@dwwattorneys.com jlambert@dwwattorneys.com ATTORNEYS FOR APPELLEE CITY OF MOSS POINT, MISSISSIPPI

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii I. STATEMENT OF ISSUES... 1 II. STATEMENT OF THE CASE... 1 III. SUMMARY OF THE ARGUMENT... 2 IV. ARGUMENT... 3 A. Standard of Review... 3 B. Moss Point is entitled to discretionary-function immunity... 4 i. The overarching function at issue is discretionary... 6 ii. Plaintiff has failed to identify any narrower ministerial function or duty imposed by law to maintain the premises at Pelican Landing... 8 C. Alternatively and/or additionally, Moss Point is entitled to immunity under Mississippi Code Section (1)(v) V. CONCLUSION CERTIFICATE OF SERVICE ii

3 CASES TABLE OF AUTHORITIES PAGE: Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014)... 4,5 Hoffman v. City of New Orleans, 771 So. 2d 217 (La. Ct. App. 2000) City of Jackson v. Doe, 68 So. 3d 1285 (Miss. 2011)... 4,5,8,12 City of Natchez v. De La Barre, 145 So. 3d 729 (Miss. 2014)... 3,5,6,12 Crider v. Desoto Cnty. Convention and Visitors Bureau, 201 So. 3d 1063 (Miss. 2016)... 7,8,10 Doe v. Rankin Cnty. Sch. Dist., 189 So. 3d 616 (Miss. 2015)... 4,5,13 Griffin v. Grenada Youth League,2017 WL (Miss. Ct. App. Mar. 28, 2017) Kirksey v. Dye, 564 So. 2d 1333 (Miss. 1990) K.N. v. Moss Point Sch. Dist., 167 So. 3d 1280 (Miss. Ct. App. 2014) Little v. Miss. Dept. of Transp., 129 So. 3d 132 (Miss. 2013)... 5,11 Miss. Transp. Comm'n v. Montgomery, 80 So. 3d 789 (Miss.2012)... 4,5,6 Moss Point School District v. Stennis, 132 So. 3d 1047 (Miss. 2014)... 6 Natchez-Adams School District v. Bruce, 168 So. 3d 1181 (Miss. Ct. App. 2015) Pratt v. Gulfport-Biloxi Reg l Airport Auth., 97 So. 3d 68 (Miss. 2012)... 5,11 S. Cnt. Reg l Med. Ctr. v. Guffy, 930 So. 2d 1252 (Miss. 2006)... 3,4 Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205 (Miss. 1996) STATUTES Mississippi Code Annotated Section (1)... 4 Mississippi Code Annotated Section (1)(b)... 7 Mississippi Code Annotated Section (1)(d)... 1,2,3,4,7,12,16 Mississippi Code Annotated Section (1)(v)... 1,2,3,7,10,12,13,14,16,17 Mississippi Code Annotated Section ,8 Mississippi Code Annotated Section ,6,8,9 Mississippi Code Annotated Section (1)... 8 Mississippi Code Annotated Section Mississippi Code Annotated Section ,10,11 iii

4 Mississippi Code Annotated Section (1)... 9 Mississippi Code Annotated Section ,12 Mississippi Code Annotated Section ,11 Mississippi Code Annotated Section (1) Rev RULES Mississippi Rule of Civil Procedure 56(c)... 4 iv

5 BRIEF OF APPELLEE COMES NOW the Appellee, City of Moss Point, Mississippi ( Moss Point or Defendant ), by and through counsel of record, Dogan & Wilkinson, PLLC, and files this its Brief of Appellee, and would show unto the Court as follows 1 : I. STATEMENT OF ISSUES 1. Whether the trial court erred as a matter of law in finding that Moss Point was entitled to discretionary-function immunity under Mississippi Code Section (1)(d). 2. Alternatively and/or addtionally, whether Moss Point is entitled to immunity under Mississippi Code Section (1)(v). II. STATEMENT OF THE CASE On or about October 20, 2012, the Appellant, Bobbie Jean Lowe ( Plaintiff ), attended an event called Bras Across the Bridge held in Moss Point, Mississippi. Prior to and during the course of the event, participants, including Plaintiff, congregated at Pelican Landing, a facility owned by Moss Point. 2 After being at the event for a few hours, Plaintiff began to walk to her car to leave when she stepped in a small, grass-covered hole and injured her ankle. Arising out of that incident, on or about January 24, 2014, Plaintiff filed suit in the Circuit Court of Jackson County, Mississippi. Plaintiff acknowledged that, as a governmental entity, Moss Point is subject to the immunities and defenses afforded in the Mississippi Tort Claims Act ( MTCA ), but alleged that immunity is overcome and specifically waived by statute, particularly, 1 For purposes of this Brief, the following abbreviations will be utilized: CP. (Clerk s Papers), R. (Hearing Transcript) and R.E. (Appellee s Record Excerpts). 2 The trial court correctly described Pelican Landing as a convenient and upscale rental space to conduct both business meeting [sic] and private events for the citizens of the community. CP

6 but not necessarily limited to (1)(v) Miss. Code. Ann., and due to the fact that the act of maintaining the premises in a reasonably safe condition by... Moss Point... is a ministerial duty, and/or not a discretionary duty subject to immunity, as contemplated under the statute. CP. 7. After discovery progressed and multiple depositions were taken, on November 4, 2015, Moss Point filed a Motion for Summary Judgment, arguing that it was immune from suit under Mississippi Code Section (1)(d) and (v). CP Lowe filed a Response to Moss Point s Motion for Summary Judgment on or about January 7, CP Moss Point filed a Reply to Lowe s Response on or about January 7, CP A hearing was held before the trial court on January 15, R Following that hearing, on June 3, 2016, the trial court entered an Order Granting Motion for Summary Judgment. CP On June 9, 2016, the trial court entered a Corrected Order Granting Summary Judgment. 3 CP In its Order, the trial court correctly found that Moss Point was immune from suit under Mississippi Code Section (1)(d), as any applicable duties imposed upon Moss Point in this case were discretionary. CP Lowe filed her Notice of Appeal on July 5, 2016, resulting in the present appeal before this Court. CP III. SUMMARY OF THE ARGUMENT The trial court correctly determined that Moss Point was entitled to discretionary-function immunity under Mississippi Code Section (1)(d). Mississippi Code Section authorizes, but does not require, municipalities to purchase 3 The trial court s Orders were substantively identical. The second Order corrected an error in the caption of the case. 4 The trial court noted that, [i]mmunity thus being established [under Section (1)(d)], analysis of [Moss Point s] immunity vel non under Miss. Code Ann (1)(v) is unnecessary. CP

7 and hold real property such as Pelican Landing. Therefore, by owning Pelican Landing, Moss Point engaged in an overarching discretionary function or duty, and all acts in furtherance of that overarching discretionary function or duty, including the operation and/or maintenance of Pelican Landing, are discretionary, unless Plaintiff can identify any more narrow ministerial function or duty imposed by law to maintain the premises at Pelican Landing. However, because no applicable narrower functions or duties are imposed by law, Plaintiff is unable to meet this burden. As such, Moss Point is entitled to discretionary function immunity under Section (1)(d). Alternatively and/or additionally, Moss Point is entitled to immunity under Mississippi Code Section (1)(v). Under Mississippi Code Section (1)(v), governmental entities are exempt from liability if (1) the injury was caused by a dangerous condition that was not caused by the negligent or other wrongful conduct of the governmental entity, or (2) the injury was caused by a dangerous condition of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against. Plaintiff failed to set forth competent summary judgment evidence to create a genuine issue of material fact that Moss Point knew or should have known of the existence of the hole and had an adequate opportunity to protect or warn against the alleged danger. Because there is no genuine issue of material fact on this issue, Moss Point also is entitled to summary judgment under Section (1)(v). A. Standard of Review IV. ARGUMENT This case arises under the Mississippi Tort Claims Act ( MTCA ), which is the exclusive remedy for filing a lawsuit against governmental entities and [their] employees. City of Natchez v. De La Barre, 145 So. 3d 729, 731 (Miss. 2014) (quoting S. Cnt. Reg l Med. Ctr. v. Guffy, 930 So. 3

8 2d 1252, 1255 (Miss. 2006) (brackets in original)). The Mississippi Supreme Court has stated, [t]his Court reviews the trial court s application of the MTCA as well as a trial court s ruling on a motion for summary judgment de novo. Doe v. Rankin Cnty. Sch. Dist., 189 So. 3d 616, 619 (Miss. 2015) (citing City of Jackson v. Doe, 68 So. 3d 1285, 1287 (Miss. 2011)). A motion for summary judgment is to be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). B. Moss Point is entitled to discretionary-function immunity. Mississippi Code Section (1) provides, in pertinent part, that "[a] governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: (d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused. Miss. Code Ann (1)(d). The Mississippi Supreme Court [t]raditionally... has analyzed the applicability of Section (1)(d) by applying a two-pronged, public-policy function test, which required a determination of whether the activity in question involved an element of choice or judgment, and if so,... whether that choice or judgment involved social, economic, or political-policy considerations. Doe v. Rankin Cnty. Sch. Dist., 189 So. 3d 616, 620 (Miss. 2015) (citing Miss. Transp. Comm'n v. Montgomery, 80 So. 3d 789, 795 (Miss.2012)). However, in Brantley v. City of Horn Lake, 152 So. 3d 1106, 1112 (Miss. 2014), the Court abolished the public-policy test and 4

9 announced a new test. 5 As the Court explained in Doe: Under the new test announced in Brantley, our courts must first determine whether the overarching governmental function at issue is discretionary or ministerial. Brantley, 152 So.3d at The Court then must examine any narrower duty associated with the activity at issue to determine whether a statute, regulation, or other binding directive renders that particular duty a ministerial one, notwithstanding that it may have been performed within the scope of a broader discretionary function. Id. at To defeat a claim of discretionary-function immunity, a plaintiff must prove that an act done in furtherance of a broad discretionary function also furthered a more narrow function or duty which is made ministerial by another specific statute, ordinance, or regulation promulgated pursuant to lawful authority. Id. Doe, 189 So. 3d at 620. Whether the function is broad or narrow, the Mississippi Supreme Court has explained that [a] ministerial function is one that is positively imposed by law. Little v. Miss. Dept. of Transp., 129 So. 3d 132, 136 (Miss. 2013) (quoting Pratt v. Gulfport-Biloxi Reg l Airport Auth., 97 So. 3d 68, 72 (Miss. 2012)). The Mississippi Supreme Court further has made clear that, for a duty to be imposed by law, it must be imposed by a statute, ordinance, regulation or other binding directive. Doe, 1289 So. 3d at 620 (quoting Brantley, 152 So. 3d at 1115)) In contrast, a duty is discretionary when it is not imposed by law[.] City of Natchez, 145 So. 3d at 732 (quoting Miss. Transp. Comm n 5 Plaintiff attempts to argue that Doe v. Rankin Cnty. Sch. District, pronounced that all pre-2014 Court decisions which had been rendered prior to the Court s holding in Brantley v. City of Horn Lake... have been expressly abolished by the Court. See Brief of Appellant at pg. 9. Contrary to Plaintiff s argument, the Doe Court did not expressly abolish any or all pre-2014 Court decisions which had been rendered prior to the Court s holding in Brantley. Instead, the Doe Court clearly held that Brantley expressly abolished the public-policy function test. Wholly absent from the Doe opinion is any statement or analysis that all prior decisions were overruled or abolished. Plaintiff s argument simply stretches the holding of Doe beyond its plain words to reach an illogical conclusion. To further illuminate the fallacy of this argument, one need look no further than the practical application of stating that all cases decided prior to Brantley (2014) are abolished. Such an application necessarily means that the Court s 2013 decision in Little has been abolished a result which is obviously inaccurate. As the Court noted in Doe, Brantley [was decided] in furtherance of this Court s decision in Little[.] Doe v. Rankin County Sch. Dist., 189 So. 3d at

10 v. Montgomery, 80 So. 3d 789, 795 (Miss. 2012)). Thus, in the absence of law positively imposing a duty on Moss Point to maintain the premises at Pelican Landing, the duty to do so is discretionary, and Moss Point is immune from suit. See City of Natchez, 145 So. 3d at 732 ( Because there is no statute imposing a duty upon the City to repair and maintain sidewalks, the duty is a discretionary one. ) i. The overarching function at issue is discretionary. In her Brief, Plaintiff contends that, [t]o be sure, the decision of the broad discretionary function of when and under what circumstances [Moss Point] performs lawn maintenance at Pelican Landing is a discretionary function. See Brief of Appellant at pg. 10. Plaintiff is correct that the broad function in this case is discretionary, but Plaintiff s reasoning is flawed, for her contention plainly reverses broad and narrow functions. The broad function in this case is not the specific maintenance of Pelican Landing, but rather the overarching function found in Mississippi Code Section Section provides, in pertinent part, that [e]very municipality... shall have the power to... purchase and hold real estate... for all municipal purposes.... Miss. Code Ann Through this statute, Moss Point is empowered, but not required to purchase and hold real property such as Pelican Landing. Although she incorrectly relies on this statute in the context of a narrower function or duty, Plaintiff nonetheless argues that Section imposes a ministerial duty upon Moss Point (and all municipalities for that matter) to maintain its general property. However, Plaintiff s argument is belied by the plain language of the statute which, again, empowers but not does require Moss Point to purchase and hold municipal property. This principle has long been established by the Court, 6 but 6 See, e.g., Moss Point School District v. Stennis, 132 So. 3d 1047 (Miss. 2014). In that case, the Court noted [t]he Legislature has provided that school boards... shall have the... power... [t]o prescribe 6

11 recently was re-affirmed in Crider v. Desoto Cnty. Convention and Visitors Bureau, 201 So. 3d 1063 (Miss. 2016) a case which is almost identical to the case sub judice both factually and in legal application. In that case, Crider was leaving an event at the Desoto County Civic Center. As she proceeded across a grassy area to her car[,]... [she] stepped in a hole obscured by overgrown grass[,]... fell and broke her ankle. Id. at As a result of her injuries, Crider sued the DeSoto County Convention and Visitors Bureau (the Bureau), which operates the Civic Center. Id. at The Bureau moved for summary judgment under both Section (1)(d) and (v). The trial court granted summary judgment to the Bureau under Section (1)(d), reason[ing] that the Bureau enjoyed discretionary-function immunity because no statute mandated that it operate a civic center and because Crider failed to show any laws or regulations... which would remove the Defendants' particular acts (or inaction) from the umbrella of discretionary function immunity. Id. at 1064 (internal quotations omitted). On appeal, consistent with the test announced in Brantley, the Court analyzed the applicable statute in that case, Mississippi Code Section , which provides in pertinent part: A convention bureau established hereunder shall have the authority to promote tourism and convention business. In this regard, the commission is empowered:... (4) To purchase, receive, lease, or otherwise acquire, own, hold, improve, use and otherwise deal in real or personal property or enter any interest therein wherever situated, subject to the prior approval of the appointing authorities[.] and enforce rules and regulations... for the government of schools.... Id. at 1052 (quoting Miss.Code Ann (l) (Rev. 2013)). If the school board exercises its authorized power and prescribes a regulation(s) positively imposing a duty on the school, then Section (1)(b) requires that the school exercise ordinary care in the execution or performance of that regulation. Id. Thus, the Court did not hold language empowering ( shall have the power ) a school board to act imposed a ministerial duty on the school boards to prescribe regulations. Instead, the Court held that the Legislature has granted the school district the authority to create a rule or regulation... which imposes a positive duty on a school. Id. If that authorized power was exercised, a ministerial duty may arise. 7

12 Id. at 1066 (quoting Miss. Code Ann ) (emphasis added). In light of Section 's plain language ( shall have the authority to ), the Court recognized that the statute empowers, but does not require, the Bureau [t]o... own, hold, improve, use and otherwise deal in real or personal property.... Id. The Court further stated, [b]y owning and using the Civic Center, the Bureau engaged in a function the statute authorized but did not require. Id. Based on the foregoing analysis, the Court affirmed the trial court s grant of summary judgment [b]ecause the Bureau engaged in an overarching discretionary function owning and using real property to which immunity attached, and because the plaintiff failed to identify any more narrow ministerial function or duty imposed by law to maintain the Civic Center s grass. Id. Just like the Bureau in Crider, by purchasing and holding municipal property like Pelican Landing, Moss Point engaged in a function which Section authorized but did not require. Id. As such, Moss Point engaged in an overarching discretionary function to which immunity attached, including attaching to all acts in furtherance of that discretionary function such as maintaining the property. Because the overarching function is plainly discretionary, it is the Plaintiff s burden to identify any more narrow ministerial function or duty imposed by law to maintain the premises at Pelican Landing. 7 Id. ii. Plaintiff has failed to identify any narrower ministerial function or duty imposed by law to maintain the premises at Pelican Landing. In her Brief, Plaintiff recognized her burden to identify a narrower ministerial function or 7 The fallacy of reliance on Section to impose a ministerial duty on a municipality to maintain its property is further exemplified by the statute s reference to parks. Included within the municipal purposes listed in Section are parks. Miss. Code Ann (1). Therefore, following Plaintiff s proposed application of Section , municipalities would have a ministerial duty to maintain parks. Yet, the Mississippi Supreme Court explicitly has held that the maintenance and operation of a park is a discretionary function of a municipality. See City of Jackson, 68 So. 3d at 1288 (Miss. 2011). 8

13 duty and attempted to cite several statutes which she contends satisfy this burden. Moss Point already has addressed one of the statutes relied upon by Plaintiff, Section Moss Point will address each of the remaining statutes relied upon by Plaintiff in turn. Section Plaintiff argues that Mississippi Code Section imposes a ministerial duty which encompasses the maintenance of Pelican Landing. Section provides, in pertinent part, that [t]he powers granted to municipalities by law shall be exercised... in the manner provided by law. Miss. Code Ann Like her reliance on Section , Plaintiff s reliance on Section is belied by the plain language of the statute. Section itself does not impose a duty by operation of law, but rather specifically contemplates that another law may do so. However, as explained supra and infra, there is no law imposing a ministerial duty on a municipality to generally maintain its property. Thus, in this circumstance, the manner provided by law is discretionary. Section Plaintiff also relies on Mississippi Code Section which provides, in pertinent part, [t]he governing authorities of every municipality of this state shall have the care, management and control of the municipal... property.... Miss. Code Ann (1). However, this statute does not impose a duty on a municipality to maintain its property. Instead, it merely codifies that the authority to do so is vested with the municipality, and no other. This is embodied in the further language of the statute which provides that municipalities shall have the power to adopt any orders, resolutions, or ordinances with respect to such municipal.. property.... Miss. Code Ann (1) This language does not impose a duty on a municipality to adopt any orders, resolutions, or 9

14 ordinances[,] rather it authorizes a municipality to do so. 8 To support her misplaced reliance on Section , Plaintiff cites Natchez-Adams Sch. Dist. v. Bruce, 168 So. 3d 1181 (Miss. Ct. App. 2015). In that case, Bruce was injured after she tripped over a section of conduit that protruded from the surface of a driveway in front of [the school district s] administrative building. Bruce, 168 So. 3d at After Bruce successfully pursued her case at trial, the school district appealed, arguing it [was] immune to Bruce s claim under either discretionary-function exemption or the dangerous-condition exemption of the... MTCA. Id. On appeal, the Court of Appeals examined the applicable statute, Mississippi Code Section , which provides, in pertinent part: The school boards of all school districts shall have the following powers, authority and duties[:].... (d) To have responsibility for the erection, repairing and equipping of school facilities and the making of necessary school improvements Id. (citing Miss. Code Ann ) (emphasis added). Based on its review of that statute, the Court of Appeals affirmed, holding that, under Section , the school district ha[d] a statutory duty to repair the school facility, and all acts in furtherance of that duty [were] ministerial. Id. at See discussion of Crider supra. Further, it is not disputed in this case that Moss Point had no written policies regarding the maintenance of its property creating a ministerial duty that would encompass the maintenance of Pelican Landing. CP Plaintiff also notes, [t]he Court of Appeals ruled that the school district was not immune pursuant to Section (1)(v) Miss. Code, as it pertains to the issue of injury caused by a dangerous condition on property of a governmental entity.... See Brief of Appellant at pg. 12. However, Plaintiff conveniently omits the basis of that ruling, i.e., there was sufficient credible evidence that [the school district] had notice of the protruding conduit before Bruce tripped over it. Bruce, 168 So. 3d at

15 At the outset, the Court of Appeals application of Section is not germane to this case. Section only applies to school boards. To extend the interpretation of one particular statute to a wholly separate set of statutes is improper. However, because Plaintiff s leap in application (and logic) is somewhat apparent, Moss Point will address her reliance on Bruce. Plaintiff argues that Section presents the same scenario [as] the present cause of action and asks this Court to compare and analogize the language of Sections and But, in so doing, Plaintiff asks the Court to ignore the plain, but essential differences between the two statutes. First, while Plaintiff emphasizes the word responsibility in Section , responsibility is wholly and noticeably absent from Section Second, Section provides, in pertinent part, school boards... shall have the following powers, authority, and duties.... Miss. Code Ann (emphasis added). As Little stated, [a] ministerial function [or duty] is one that is positively imposed by law. Little, 129 So. 3d at 136 (Miss. 2013) (quoting Pratt v. Gulfport-Biloxi Reg l Airport Auth., 97 So. 3d 68, 72 (Miss. 2012)). By its plain language, Section positively imposes duties on the school board. And, by comparison, there is no language positively imposing any duties in Sections The Court of Appeals decision in Bruce simply does not support Plaintiff s argument. Section Plaintiff additionally relies upon Mississippi Code Section which provides, in pertinent part, municipalities shall have the power to exercise full jurisdiction in the matter of streets, sidewalks, sewers, and parks;... and to repair [and] maintain... the same. Miss. Code Ann This statute is inapplicable for two reasons. First, it is undisputed in this case that Plaintiff s injury did not occur on a street or sidewalk, nor did it involve a sewer. It is further undisputed, despite Plaintiff s incorrect and unsupported contentions in her Brief, that Pelican 11

16 Landing is not a park. CP. 47. Thus, Section is wholly inapplicable to this case. Second, even if Pelican Landing were a park, the Mississippi Court of Appeals explicitly has held that this statute does not impose a ministerial duty. See City of Natchez, 145 So. 3d at 732 ( [W]e have interpreted section as only giving the City the power to exercise jurisdiction over the streets, and not imposing a... duty to maintain them. ); see also City of Jackson, 68 So. 3d 1285 (holding that the operation and maintenance of a park is a discretionary function). Just like the previous statutes relied upon by Plaintiff, Section does not impose a narrower ministerial duty which would encompass Moss Point s maintenance of Pelican Landing. As fully explained supra, the overarching function at issue in this case is discretionary. Thus, Moss Point is entitled to discretionary-function immunity for all acts in furtherance of that discretionary function unless Plaintiff could meet her burden to identify a narrower ministerial function or duty which rendered maintenance of Pelican Landing ministerial. Because no applicable narrower functions or duties are imposed by law, Plaintiff is unable to meet this burden. As such, Moss Point is entitled to discretionary function immunity under Section (1)(d). C. Alternatively and/or additionally, Moss Point is entitled to immunity under Mississippi Code Section (1)(v). In its Motion for Summary Judgment, Moss Point also contended that it was immune from suit under Mississippi Code Section (1)(v). Moss Point s argument regarding Section (1)(v) was fully briefed by both parties and was argued during the hearing before the trial court. In its Order, the trial court correctly determined that it need not reach the issue of immunity under Section (1)(v) because Moss Point was entitled to discretionary-function immunity. Despite the fact that the trial court did not address Moss Point s immunity under Section (1)(v) in its Order, Moss Point would submit that the issue is ripe for consideration before this 12

17 Court. As stated previously, [t]his Court reviews the trial court s application of the MTCA as well as a trial court s ruling on a motion for summary judgment de novo. Doe, 189 So. 3d at 619 (Miss. 2015) (citing City of Jackson, 68 So. 3d at 1287 (Miss. 2011)). Consistent with its de novo review, this Court further has stated that summary judgment must be affirmed [i]f any ground raised and argued below will support the lower court s decision[.] Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss. 1996) (citing Kirksey v. Dye, 564 So.2d 1333, (Miss.1990)). claims Mississippi Code Section (1)(v) exempts governmental entities from liability for (v) 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 open and obvious to one exercising due care. Miss. Code Ann (1)(v) (emphasis added). Thus, under Section (1)(v), governmental entities are exempt from liability if: (1) the injury was caused by a dangerous condition... that was not caused by the negligent or other wrongful conduct of the governmental entity ; or (2) the injury was caused by a dangerous condition... of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against[.] Id. Again, in this case, Plaintiff was injured when she stepped in a small, grass-covered hole. Other than the conclusory allegations contained in Plaintiff s complaint that Moss Point created a dangerous condition on the premises, Plaintiff submitted no appropriate summary judgment evidence to support such an allegation. As Plaintiff testified, the hole was simply a small, dirt hole covered up by grass. CP. 45; R.E Photographs taken by Plaintiff which were made part of the 13

18 summary judgment record further support that this was nothing more than a naturally occurring hole. CP ; R.E Because there is no evidence that the hole Plaintiff stepped in was a dangerous condition caused by the negligence or other wrongful conduct of Moss Point or its employees, Moss Point is immune from suit under Section (1)(v). See K.N. v. Moss Point Sch. Dist., 167 So. 3d 1280, 1285 (Miss. Ct. App. 2014) ( Section (1)(v) provides immunity in cases where the governmental entity did not create the dangerous condition. ) Furthermore, there is no evidence that the hole constituted a dangerous condition of which Moss Point had notice, either actual or constructive, and an adequate opportunity to protect or warn against. Roy Stanton, City of Moss Point Director of Ground Maintenance, was deposed in this case. Mr. Stanton and two other employees prepared the grounds and surrounding areas at Pelican Landing in advance of the Bras Across the Bridge event. Mr. Stanton explained the process they went through in the days before the event, which included walk[ing] the grounds. CP. 48; R.E There is no evidence that Mr. Stanton or the two other employees observed the hole while walking and preparing the grounds. Moreover, there is no evidence of prior complaints from patrons at Pelican Landing which would have placed Moss Point on actual notice of the hole. There also is no evidence that Moss Point should have known of the existence of the hole prior to Plaintiff s injury. Plaintiff s argument before the trial court on this issue illuminates the lack of evidence to support constructive notice. During the hearing, the following exchange occurred between the trial court and counsel for Plaintiff: COURT: If there is a ministerial duty on the part of the City of Moss Point to maintain these grounds, in regard to the condition of the property, knew or should have known. Would the other exemption under Subsection (b) [sic] apply? MR. FRAZIER: No, No, because the gentlemen who testified... that they did an inspection that day, so there was constructive notice

19 THE COURT: That s not constructive notice..... THE COURT: Constructive notice is should have known. MR. FRAZIER: That s right, they should have known. When they were mowing the grass, they should have found that. They should have been aware of this three, four inch depression in the grass that had been naturally caused. When you look at the photographs, you ll see that this is not something that just popped up overnight. This is something that had been developing over a long course of time. It s fully encased in grass. THE COURT: It s covered in grass so it s hidden, it s not known. MR. FRAZIER: That s right, but the fact that it s there - - Judge, the fact that it s there, they have constructive notice. R ; R.E (emphasis added). Plaintiff s argument is simple despite being small and fully encased in grass, the mere existence of the hole constituted constructive notice to Moss Point of an alleged dangerous condition. This argument is not supportable, and Plaintiff s own testimony illuminates the unreasonableness of any claim that Moss Point should have known of the hole because it was there. Plaintiff testified that the grounds at Pelican Landing cover an expansive area and that the hole she stepped in was barely large enough for her foot to fit. CP. 40; R.E Plaintiff admitted that, had she been looking, she still would not have noticed the hole because it was concealed with grass. CP. 42; R.E Ultimately, Plaintiff testified that it was a small, grass-covered hole that was impossible to see. CP. 43; R.E There was simply no evidence set forth by Plaintiff to create a genuine issue of material fact that Moss Point knew or should have known of the existence of the hole. Just as Plaintiff testified the small grass-covered hole was impossible for her to see, it was likewise impossible for Mr. Stanton and the two other Moss Point employees to see during their preparation of the grounds. It 15

20 is likely they only could have discovered the hole in the same manner as Plaintiff, by stepping in it. To hold that Moss Point had constructive notice of such a small, grass-covered hole on a such a large piece of property would render municipalities absolutely liable for any injuries suffered on municipal property. 10 Because Moss Point did not have either actual or constructive notice of the hole, it likewise did not have an adequate opportunity to protect or warn against the danger. As such, in addition to being immune from suit under Section (1)(d), Moss Point is immune from liability under Section (1)(v). V. CONCLUSION Based on the foregoing, there is no ministerial duty positively imposed by law upon Moss Point to maintain the premises at Pelican Landing. As such, the duty to do so is discretionary, and Moss Point is immune from suit under Section (1)(d). The trial court s grant of summary 10 Such an imposition of liability would likewise be contrary to Mississippi law as recently explained by the Mississippi Court of Appeals in Griffin v. Grenada Youth League, 2017 WL (Miss. Ct. App. Mar. 28, 2017). Pertinent to the case sub judice, the Court of Appeals stated as follows: If a crack or uneven spot in a manmade sidewalk or parking lot is not a dangerous condition, it necessarily follows that a very minor indentation or depression on the side of a grassy, gently sloping hill also is not a dangerous condition. Griffin testified that the alleged hole was maybe an inch [deep], two inches max, and maybe four inches wide. To accept Griffin's argument that such a hole amounts to a dangerous condition would impose on landowners a duty to maintain all open lawns and fields in a perfectly level condition. Mississippi law does not require that of a landowner, even in paved areas of the premises. See Jones, 187 So. 3d at No open, grass-covered space is going to be perfectly level, not even a fairway on a golf course. Cf. Hoffman v. City of New Orleans, 771 So. 2d 217, 219 (La. Ct. App. 2000) ( One can hardly expect a public baseball outfield to be as smooth and even as the green of a golf course. Like any grass covered field it is bound to contain dips and inclines no matter what maintenance is performed. ). Mississippi law does not impose liability based on a minor indentation on the side of a park's grassy hill. Id. at *5 (emphasis added). 16

21 judgment should be affirmed. Alternatively and/or additionally, there is no evidence that the hole Plaintiff stepped in was a dangerous condition caused by the negligence or other wrongful conduct of Moss Point or its employees. Miss. Code Ann (1)(v). Nor is there any evidence that the hole constituted a dangerous condition of which Moss Point had notice, either actual or constructive, and an adequate opportunity to protect or warn against. Id. As such, Moss Point also is immune from suit under Section (1)(v). RESPECTFULLY SUBMITTED, this the 18 th day of April, CITY OF MOSS POINT, MISSISSIPPI BY: /s/ James E. Lambert, III JAMES E. LAMBERT, III Amy Lassiter St. Pe! (MSB No ) James E. Lambert, III (MSB No ) DOGAN & WILKINSON, PLLC 734 Delmas Avenue (39567) Post Office Box 1618 Pascagoula, Mississippi Telephone: (228) Facsimile: (228)

22 CERTIFICATE OF SERVICE I, James E. Lambert III, hereby certify that I have this day caused to be filed the foregoing BRIEF OF APPELLEE via the Supreme Court s MEC system, which will send electronic notice to the following: David C. Frazier, Esq. Frazier Law Firm PLLC Post Office Drawer 1170 Pascagoula MS I also caused to be hand-delivered, a copy of the foregoing to the following: Judge Dale Harkey 3104 South Magnolia Street Pascagoula, MS This the 18 th day of April, /s/ James E. Lambert, III JAMES E. LAMBERT, III 18