IN THE SUPREME COURT OF MISSISSIPPI NO CA K.R. BORRIES, INDIVIDUALLY, D/B/A K.R. BORRIES CONSTRUCTION COMPANY

Transcription

1 E-Filed Document Mar :02: CA Pages: 34 IN THE SUPREME COURT OF MISSISSIPPI NO CA K.R. BORRIES, INDIVIDUALLY, D/B/A K.R. BORRIES CONSTRUCTION COMPANY APPELLANT VS. GRAND CASINO OF MISSISSIPPI, INC. BILOXI APPELLEE CORRECTED BRIEF OF APPELLANT APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY, MISSISSIPPI ORAL ARGUMENT REQUESTED PREPARED BY: Christopher H. Corkern, MSB # Alan M. Purdie, MSB # 4533 PURDIE & METZ, PLLC P.O. Box 2659 Ridgeland, MS Telephone: (601) Facsimile: (601) ATTORNEYS FOR APPELLANT

2 IN THE SUPREME COURT OF MISSISSIPPI NO CA K.R. BORRIES, INDIVIDUALLY, D/B/A K.R. BORRIES CONSTRUCTION COMPANY APPELLANT VS. GRAND CASINO OF MISSISSIPPI, INC. BILOXI APPELLEE CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons and/or entities have an interest in the outcome of this case. These representations are made in order that this Honorable Court may evaluate possible disqualification or recusal: 1. K.R. Borries, Individually, Appellant d/b/a K.R. Borries Construction Company 2. Christopher H. Corkern, Esq. Counsel for Appellant Alan M. Purdie, Esq. PURDIE & METZ, PLLC P.O. Box 2659 Ridgeland, MS Grand Casino of Mississippi, Inc. - Biloxi Appellee 4. John P. Kavanagh, Jr., Esq. Counsel for Appellee Kasee Sparks Heisterhagen, Esq. BURR & FORMAN, LLP Post Office Box 2287 Mobile, AL Hon. Lawrence P. Bourgeois, Jr. Circuit Court Judge Harrison County Circuit Court Post Office Box 1461 Gulfport, Mississippi i-

3 RESPECTFULLY SUBMITTED, this the 18th day of March, APPELLANT, K. R. BORRIES, INDIVIDUALLY, D/B/A K. R. BORRIES CONSTRUCTION COMPANY Christopher H. Corkern, MSB # Alan M. Purdie, MSB # 4533 PURDIE & METZ, PLLC P.O. Box 2659 Ridgeland, MS Telephone: (601) Facsimile: (601) COUNSEL FOR APPELLEES By: s/christopher H. Corkern CHRISTOPHER H. CORKERN -ii-

4 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PARTIES i; ii TABLE OF CONTENTS iii TABLE OF AUTHORITIES iv; v STATEMENT OF THE ISSUES STATEMENT OF THE CASE A. Statement of Facts B. Procedural Posture SUMMARY OF ARGUMENT STANDARD OF REVIEW ARGUMENT I. THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO GRAND CASINO DUE TO GENUINE ISSUES OF MATERIAL FACT AS TO BORRIES NEGLIGENCE CLAIM A. Contrary to the circuit court s decision, there is a jury question regarding duty, breach and causation Duty Breach of Duty: the circuit court clearly erred in holding that no genuine issues of material fact existed regarding Grand Casino s breach of its duty to take reasonable precautions to protect those in close proximity to it, including the Schooner Pier (a) Contrary to the circuit court s decision, the Gaming Commission s licensing requirements do not define the Defendant s duty to Plaintiff iii-

5 3. Causation: the trial court erred in applying the Act of God defense to Grand Casino, given the questions of fact raised by Borries regarding Grand Casino s Negligence C. There is a genuine issue of material fact as to whether Grand Casino breached its duty to take reasonable steps to secure its gambling barge to prevent foreseeable harm to nearby property owners, including Borries II. Defendant Is Not Entitled to Avoid its Liability to Plaintiff by Hiding Behind the Act of God Affirmative Defense A. Legal Standard B. Analysis CONCLUSION CERTIFICATE OF SERVICE STATUTES/ADDENDA iv-

6 CASES TABLE OF AUTHORITIES PAGE Biloxi Yacht Club, Inc. v. Grand Casinos, 2009 U.S. Dist. LEXIS (S.D.Miss. 2009) ; 24; 25 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) City of Hattiesburg v. Hillman, 76 So.2d 368 (Miss. 1954) Cook v. Children s Med. Group, P.A., 756 So.2d 734 (Miss. 1999) Davis v. Hoss, 869 So.2d 397 (Miss. 2004) Dennis v. Searle, 457 So.2d 941 (Miss. 1984) Eli Investments, LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151 (Miss. 2013) passim Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir. 1986) Galloway v. Travelers Ins. Co., 515 So.2d 678 (Miss.1987) Heigle v. Heigle, 771 So.2d 341 (Miss.2000) , 13 King v. Miss. Power & Light Co., 142 So.2d 222 (Miss. 1962) Ladnier v. Hester, 2012 Miss. LEXIS 397 (Miss. 2012) Leflore County v. Givens, 754 So.2d 1223 (Miss. 2000) Lyle v. Mladinich, 584 So.2d 397 (Miss. 1991) , 22 McFarland v. Entergy Miss., Inc., 918 So.2d 697 (Miss.Ct.App. 2004) Miller v. R.B. Wall Oil Co., 970 So.2d 127 (Miss. 2007) , 22 Miss. Dep t of Transp. v. Cargile, 847 So.2d 258 (Miss. 2003) Moss v. Batesville Casket Co., Inc., 935 So.2d 393 (Miss. 2006) Palmer v. Anderson Infirmary Benevolent Ass n, 656 So.2d 790 (Miss. 1995) v-

7 Shields v. Easterling, 676 So.2d 293 (Miss. 1996) State ex rel. Hood v. Louisville Tire Ctr., Inc., 55 So.3d 1068 (Miss. 2011) Williamson ex rel. Williamson v. Keith, 786 So.2d 390 (Miss. 2001) , 13 STATUTES/RULES Miss. Gaming Comm. Reg. II(B)(10) , 17, 18, 19 -vi-

8 STATEMENT OF THE ISSUES The Plaintiff/Appellant, K.R. Borries, Individually, d/b/a K.R. Borries Construction Company ( Borries ), asserts the following issues for review by this Court, which are identical to the issues decided by the Mississippi Supreme Court in Eli Investments, LLC v. Silver Slipper 1 Casino Venture, LLC: I. Whether the circuit court erred in holding that no genuine issue of material fact existed regarding Grand Casino s breach of its duty to take reasonable precautions to protect those in close proximity of the main casino barge and the Lady Luck Addition. II. Whether the circuit court misapplied the Act of God defense to Grand Casino, given the questions of fact raised by Borries and supported by expert testimony regarding Grand Casino s negligence So.3d 151 (Miss. 2013). -1-

9 STATEMENT OF THE CASE This case arises from the property damage suffered by Borries when Grand Casino s gambling barges broke loose from their moorings and allided with the Schooner Pier and surrounding structures during Hurricane Katrina. As demonstrated herein, the outcome of this case has already been decided by the Mississippi Supreme Court in Eli Investments, LLC v. Silver 2 Slipper Casino Venture, LLC, which is almost identical to this case from a legal and evidentiary standpoint. In that case, the Supreme Court reversed the trial court s entry of summary judgment because differing expert opinions established a battle of the experts, which must be decided by the jury on the issue of whether the casino took reasonable steps to secure its gambling barge to 3 prevent foreseeable harm to nearby property owners. Eli Investments, LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151 (Miss. 2013). Likewise, this case also has differing expert opinions establishing a battle of the experts to be decided by the jury as to whether Grand Casino adequately secured its own gambling barges to prevent foreseeable harm to Borries and other nearby property owners. Accordingly, this Court should follow its recent precedent in Eli Investments, LLC, and reverse the lower court s decision to grant summary judgment in this case. A. Statement of Facts In 1994, Grand Casino opened a hotel resort and casino at 280 Beach Boulevard in Biloxi, Mississippi. (R ). The casino barge was moored just offshore in the Mississippi So.3d 151 (Miss. 2013). A true and correct copy of the Supreme Court s opinion is provided in the Addendum section of this Brief So.3d at

10 Sound and was located approximately 1,300 ft to the east of the Borries property (known as the Schooner Pier ). (R , ). The casino consisted of six individual barges welded together and was collared to four mooring dolphins on the north side. (R ). It was approximately 653 feet long and 111 feet wide. (R. 184). According to the Mississippi Gaming Commission s licensing requirements, all permanently moored casinos were required to be moored to withstand a Category 4 hurricane with 155 mph winds and 15 foot tidal surge. Miss. Gaming Comm. Reg. II(B)(10). However, Grand Casino actually received a license for its casino barge in 1992 one (1) year before the design had even been completed in 1993, and two (2) years before the casino had been fully constructed in (R. 88, 129, 145, 159). In 1999/2000, Grand Casino constructed the Lady Luck barge and superstructure as an addition to the original casino barge. The Lady Luck alone weighed eight million (8,000,000) pounds. (R. 601). It was approximately 250 feet long, 110 feet wide and was topped with a casino superstructure similar to that of the original gambling barge. (R. 184). Nonetheless, the Lady Luck did not have its own individual mooring system (i.e., no separate pipe columns situated in large cofferdams) to independently withstand a Category 4 hurricane with 155 mph winds and 15 foot tidal surge. (R. 184). Instead, similar to a trailer hitch, the Lady Luck was attached at two points directly to the original barge. (Id.). Consequently, the Lady Luck fully relied upon the original or pre-existing cells from the main Grand Casino barge to act as its mooring points. (Id.). Despite the fact that it weighed over four (4) tons, Grand Casino never reevaluated or modified its original mooring system before, during or after the Lady Luck was built to take into account its additional load forces. (R. 111 [Mason Depo. at ]);(R. 171[ Dally Aff

11 23]). This is undisputed. The Lady Luck was also not separately licensed by the Mississippi Gaming Commission. (R. 168, 579). Prior to August 29, 2005, Borries was in the final phase of construction for the Schooner Pier and surrounding structures and/or pavilions. (R. 184). On August 29, 2005, Hurricane Katrina, a Category 3 storm, made landfall along the Mississippi Coast and it followed a similar path to that of Hurricane Camille. (R , 185). Katrina s storm surge was comparable to that of Camille, and it was nearly identical to Camille s surge in the Biloxi area. (R , 232). Due to the fact that Grand Casino s mooring system was not designed in accordance with the historical benchmarks set by Hurricane Camille (+190 mph wind; 30 foot surge) and other prior storms in the Gulf of Mexico, however, its gambling barges subsequently broke loose from their moorings and later destroyed a large portion of the Schooner Pier. (R. 169, , 195, ). This is also undisputed. In fact, Grand Casino s engineering expert, C. Lee Mason, admitted under oath that Grand Casino s barge did in fact hit the Schooner Pier. (R. 126 [Mason Depo. at 164]). When questioned further about the splintering of the pier s pilings, Mason conceded that it s probably more likely that it was probably the force of the barge. (R. 127 [Mason Depo. at 166]). Consequently, Borries personally sustained over one million dollars ($1,000,000.00) in damages to his work, work in progress and property. (R. 187, 193). In short, it is undisputed that Grand Casino s gambling barges broke loose from their moorings and struck the Schooner pier. (R. 127, 168; Mason Depo. at 164, 166.). It is also undisputed that besides some relatively minor wind damage, the vast majority of the Schooner -4-

12 pier would have remained intact but for the barge striking it. (R. 187, 220). Katrina alone would not have caused the catastrophic damage that occurred to the pier. (Id.). It is undisputed that most of the southern end of the Schooner pier, which was not hit by Grand Casino s barge, remained intact. (R. 187, 220). B. Procedural Posture Consequently, on July 9, 2007, Borries filed suit against Grand Casino for negligence and gross negligence arising out of the property damage suffered by Borries as a consequence of the actions and/or inactions of Grand Casino in failing to properly design, construct, secure and/or maintain its gambling barges located. (R ). On May 8, 2012, in an attempt to avoid liability for the destruction of Borries property, Grand Casino filed a Motion for Summary Judgment and Memorandum of Authorities. (R ). Therein, Grand Casino argues that (1) it did not negligently design, construct or secure its casino barges, (2) Hurricane Katrina was an act of God, and (3) Grand Casinos did not cause Plaintiff s damages. (Id.). In so doing, Grand Casino takes the position that it owed no duty to Borries because it acted in a reasonable manner by simply complying with the Mississippi Gaming Commission s ( MGC ) minimum licensing requirements (155 mph winds; 15 foot tidal surge). (Id.). Thereafter, Borries filed his Response to Defendant s Motion for Summary Judgment and Memorandum of Law (R , ). Therein, Borries argues (1) that the MGC licensing requirements do not establish the duty of care owed by Grand Casino to Borries and the surrounding property owners regarding the security of Grand Casino s gambling barges; (2) that Grand Casino knew or should have known of the potential conditions and effects of Hurricane Katrina based upon prior hurricanes that made landfall in the Gulf Coast region, such as -5-

13 Hurricane Camille; (3) that despite the historical benchmarks set by Camille and other hurricanes for wind and surge, Grand Casino failed to adequately design and construct its casino barges in accordance therewith; (4) that Grand Casino failed to take other reasonable precautions to adequately secure its casino barge prior Katrina, such as scuttling the barges in place or utilizing certain protective measures utilized by other casinos in the immediate vicinity of the Grand Casino; and (5) that as a result of Grand Casino s failure to take these necessary and reasonable precautions, its gambling barges were permitted to break free from their moorings and cause substantial damage to property owners in the reasonable proximity of the Grand Casino, including the Schooner Pier. (R , ). In support of the foregoing arguments, Borries presented the trial court with a plethora of evidence, including affidavits from two engineering experts, expert reports, deposition testimony, alternate design drawings/illustrations by an engineering expert, government reports and/or treatises and other pertinent evidence. (Appellant s Record Excerpts 6-12 at ). In particular, Plaintiff presented evidence that Grand Casino s mooring system did not meet or exceed the Mississippi Gaming Commission s minimum licensing requirements for wind and surge (155 mph wind and 15 foot surge). Specifically, Plaintiff presented expert testimony and other evidence that the gambling barges actually broke free from their moorings when Hurricane Katrina s storm surge was less than fifteen (15) feet, and the mooring system did not allow for applicable wind and wave loads. Plaintiff s expert, Dr. William R. Dally ( Dr. Dally ) opined: As stated in my report, it is my belief that the main barge s mooring system failed prior to its design limits on August 29, Specifically, it is my opinion that at approximately 8:30 CDT, the guide collars broke away from the dolphin pilings securing the barges in place, thereby allowing the barge to leave its moorings at roughly 1.5 to 2.0 ft. below the terminal design limits of the dolphin pilings. At this point, the surge heights at this -6-

14 location was between 13.5 and 14.0 ft above sea level. R [Supp. Affidavit of Dally at 2]. This opinion is based on Dr. Dally s modeling results, the documents produced in this litigation, as well as the testimony of Thomas Lynn Patterson and Neil Hall. (R ). As a result, Dr. Dally opined that despite the fact that Grand Casino s mooring system was apparently intended to withstand a storm surge of fifteen feet (15), the mooring system was not ultimately constructed and/or maintained to withstand a fifteen (15) foot surge in light of the fact that it broke loose 1 to 1.5 feet below the 15 foot design criteria as a result of wave and wind action, which was not taken into account when the mooring system was designed and constructed. (R [Affidavit of Dally at 22-23]); (R. 579 [Second Supp. Affidavit of Dally at 6]). Additionally, Plaintiff s other expert, Mr. Edward Geoffrey Webster (Webster), also testified that at high tide, Grand Casino s mooring system could not accommodate a fifteen (15) foot tidal surge. (R [Affidavit of Webster at 11]). Additionally, Borries also presented expert testimony and other evidence that based in part on the engineering benchmark set by Hurricane Camille, Grand Casino had a duty to reasonably design and/or construct its mooring system to adequately withstand a future hurricane of equal or greater magnitude to that of Camille (190 mph wind; 21 to 30 foot surge). As set out in the affidavit of coastal engineering expert, Dr. William R. Dally, [t]he wind and surge levels produced by Camille should have been the engineering benchmark for constructing and designing Grand Casino s gambling barges and not the Gaming Commission s minimum licensing requirements. (R. 171 [Dally Affidavit at 20]). As a result, the exercise of reasonable engineering judgment would have resulted in a -7-

15 design for the Grand Casino barges that would exceed the known maximum surge heights created by Hurricane Camille for this area of the Gulf Coast (+21ft.NAVD). (R. 170 [Dally Affidavit at 17]). See also Expert Report of William R. Dally. (R ). It is also Dr. Dally s opinion that in light of the known data regarding storm surge and wave heights in Biloxi prior to the construction of the Defendant s gambling barges, it was foreseeable, from an engineering standpoint, that a barge mooring system design that did not meet or exceed the capacity to withstand historically known surge heights, would fail in the manner that the Defendant s system failed on August 29, Id. (See also R. 237[Webster Affidavit at 13]). Moreover, Dr. Dally opined that [t]he fact that the Grand did not modify the mooring system already in place to accommodate the increased load and stress on the structure after the addition of the 250' x 110' Lady Luck casino barge in , illustrates Defendant s breach of basic marine engineering design protocols. (R. 171 [Dally Affidavit at 22]). Notwithstanding the Lady Luck addition, however, Dr. Dally concluded that the Defendant could have designed 4 the attaching collars of the mooring system to withstand any surge height. (R ). Specifically, he opined: With proper guide collar and connector design, upon the onset of significant surge heights, the barges would simply become submerged but remain connected to the dolphin pilings. Upon complete inundation, uplift or buoyancy forces would cease to act upon the barges, and the structures would not have broken free in the manner that occurred in this case, thereby eliminating the significant risk to adjoining property owners and the public. 4 As laid out in the affidavit of Plaintiff s other expert engineer, Edward Geoffrey Webster, the exercise of reasonable engineering judgment would have resulted in a design for the Grand Casino barges that would have the characteristics set out in the exhibits to this Affidavit. (R. 237; [Webster Affidavit at 12]). Those design characteristics are more fully described in and 20 to his Affidavit. (R ). -8-

16 R For all of these reasons, Dr. Dally reached the opinion that the design of Grand Casino s gambling barges were clearly insufficient. (R ). (See also R [Expert Report of Dally at12-13]). Plaintiff s other expert engineer, Edward Geoffrey Webster, reached the same opinion regarding the deficiency of the mooring systems design. (R [Webster Affidavit at 15, 21]. As a consequence thereof, Grand Casino s gambling barges broke loose from their moorings during Hurricane Katrina and destroyed a large portion of the Schooner Pier. (R [Dally Report at 10-11,13]); (R [Daly Affidavit at 9, 15-17]); (R. 237 [Webster Affidavit at 15]). On December 4, 2012, notwithstanding the disputed facts presented by Borries, the trial court still entered an order granting summary judgment in favor of Grand Casino. (R ). In so doing, the trial court fully adopted or rubber stamped Grand Casino s proposed findings of fact and conclusions of law, which its attorney previously submitted to the Court in this matter. Despite Borries expert testimony to the contrary, the trial court found that Grand Casino had established its duty of care Borries merely because Grand Casino had allegedly met the licensing requirements of the MGC. (R ). The trial court also found that Hurricane Katrina was an Act of God. (Tr. 108). However, the trial failed to provide any factual basis in support this finding. (Id.). On December 14, 2012, Borries filed his Motion for Reconsideration and/or To Alter or Amend Judgment. Therein, Borries laid out the clear errors of law and fact as to the trial court s entry of summary judgment. Nevertheless, on July 1, 2013, the trial court entered an Order denying Borries motion for reconsideration. (R. 874). -9-

17 Aggrieved by the circuit court s decision and its failure to properly consider the evidence before it, Borries filed his Notice of Appeal on July 29, (R. 875). SUMMARY OF ARGUMENT In what amounted to a bench trial, the trial court erroneously granted summary judgment to Grand Casino without properly considering the abundance of evidence presented by Borries in opposition thereof. The lower court also misapplied the summary judgment standard by improperly weighing the testimony of Borries expert witnesses. If that is not enough, the lower court went even further and essentially Daubert challenged the qualifications of Borries ocean engineering expert, Dr. Dally. All of this was done despite the fact that Dr. Dally s qualifications and expertise have never been challenged by Grand Casino or otherwise been at issue in this case whatsoever. Additionally, in reaching its decision, the lower court also relied on outside evidence that was never a part of the instant record and was actually cited for the first time in the court s opinion. With all due respect to the trial court, enough is enough. Without question, Borries has presented a sufficient amount of evidence to overcome summary judgment, including expert witness affidavits, expert reports, deposition testimony, alternate design drawings/illustrations by an engineering expert, government reports and/or treatises and other pertinent evidence. (Appellant s Record Excerpts 6-12 at ). This evidence clearly shows the existence of genuine issues of material fact as to whether Grand Casino was negligent in the design and/or construction of its mooring system, as well as disputed questions of fact as to whether Grand Casino s negligence caused or contributed to Borries damages. This is especially true in light of the fact that all reasonable inferences are made in -10-

18 favor of Borries as the non-moving party. Because the contested facts offered by Borries were support by credible evidence, they were questions that should have been decided by a jury. Indeed, if this case does not create a jury question, then the trial by jury system no longer exists in this State. It might as well be swept under the rug. Thankfully, in order to right this wrong, Borries and this Court can rely on the Mississippi Supreme Court s recent decision in Eli 5 Investments, LLC v. Silver Slipper Casino Venture, LLC, which is almost identical to this case from a legal and evidentiary standpoint. In that case, the Supreme Court reversed the trial court s entry of summary judgment because differing expert opinions established a battle of the experts, which must be decided by the jury on the issue of whether the casino took reasonable 6 steps to secure its gambling barge to prevent foreseeable harm to nearby property owners. Likewise, this case also has differing expert opinions establishing a battle of the experts to be decided by the jury as to whether Grand Casino adequately secured its own gambling barges to prevent foreseeable harm to Borries and other nearby property owners. Accordingly, this Court should follow binding Supreme Court precedent and reverse the lower court s decision to grant summary judgment in this case So.3d 151 (Miss. 2013). A true and correct copy of the Supreme Court s opinion is provided in the Addendum section of this Brief So.3d at

19 STANDARD OF REVIEW A trial court s grant of summary judgment is reviewed de novo. Davis v. Hoss, 869 So.2d 397, 401 (Miss. 2004). Since the summary judgment procedure affects the substantive rights of litigants and it cannot be used to deprive a litigant of a full trial of genuine factual issues, this Court must review the evidence in the light most favorable to the nonmoving party. State ex rel. Hood v. Louisville Tire Ctr., Inc., 55 So.3d 1068, 1072 (Miss. 2011). Circumstantial evidence will be sufficient to create a genuine issue of material fact. Leflore County v. Givens, 754 So.2d 1223 (Miss. 2000). If there is any doubt regarding the existence of a genuine issue of material fact, the benefit goes to the nonmovant. Miller v. R.B. Wall Oil Co., 970 So.2d 127, 130 (Miss. 2007). A fact is material if it tends to resolve any of the issues properly raised by the parties. Moss v. Batesville Casket Co., Inc., 935 So.2d 393, 398 (Miss. 2006) (citing Palmer v. Anderson Infirmary Benevolent Ass n, 656 So.2d 790, 794 (Miss. 1995)). Issues of fact exist where there is more than one reasonable interpretation that may be given undisputed testimony, and where materially differing but nevertheless reasonable inferences may be drawn from the uncontradicted facts. Ladnier v. Hester, 2012 Miss. LEXIS 397 at *10 (Miss. 2012) (citing Dennis v. Searle, 457 So.2d 941, 944 (Miss. 1984)). Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss. 2001)(quoting Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000); Cook v. Children s Med. Group, P.A., 756 So.2d 734, 739 (Miss. 1999). If, in this view, there is no genuine issue of material fact and, the moving party is -12-

20 entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Keith, 786 So.2d at 393 (quoting Heigle, 771 So.2d at 345). The burden of demonstrating that no genuine issue of fact exists is on the moving party. Id. Specifically, it is the ultimate burden of the moving party to provide sufficient probative evidence from pleadings, discovery, and/or affidavits showing the absence of a genuine issue of material fact. Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Until that burden is satisfied, the nonmoving party s burden to show the existence of issues of material fact does not arise. ARGUMENT I. THE CIRCUIT COURT ERRED IN FINDING NO GENUINE ISSUES OF MATERIAL FACT WERE PRESENTED TO SHOW GRAND CASINO BREACHED ITS DUTY TO BORRIES. Under Mississippi law, the elements of negligence are duty, breach, proximate cause and damages. Miss. Dep t of Transp. v. Cargile, 847 So.2d 258, 262 (Miss. 2003); Lyle v. Mladinich, 584 So.2d at If a triable issue of fact regarding each of these elements exists, then summary judgment must be reversed. Lyle v. Mladinich, 584 So.2d 397, 399 (Miss. 1991). Here, at the very least, there is a genuine issue of material fact as to all four of these elements. Since it is undisputed in the record that Grand Casino s unmooring caused damage to Borries property, only the first three elements will be addressed herein. A. Contrary to the circuit court s decision, there is a jury question regarding duty, breach and causation. 1. Duty Regarding the first element of negligence, the existence of a duty is a question of law to -13-

21 be decided by the court. Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (Miss. 2004) (citing Donald v. Amco Prod. Co., 735 So.2d 161, 174 (Miss. 1999)); Doe ex rel. Doe v. Wright Sec. Servs, 950 So.2d 1076, 1079 (Miss.Ct.App. 2007). Clearly, a duty exists here. The Mississippi Supreme Court has recognized that a casino operator owes a duty to take reasonable measures to prevent foreseeable harm to nearby property owners. Eli Investments, LLC, 118 So.3d at 154. As a result, the trial court correctly found that Grand Casino owed a duty to property owners in close proximity to take reasonable measures to prevent foreseeable injuries in the event of a hurricane. (R. 495). It is clear from the record that the unmooring of Grand Casino s gambling barges caused damage to Borries property. Thus, the issue is then whether Borries offered sufficient evidence to create a dispute of fact as to whether Grand Casino breached its duty to take reasonable measures to prevent foreseeable harm to Borries. As the record evidence indicates, Borries certainly did so. 2. Breach of Duty: the circuit court clearly erred in holding that no genuine issues of material fact existed regarding Grand Casino s breach of its duty to take reasonable precautions to protect those in close proximity to it, including the Schooner Pier. Whether the defendant breached its duty to the plaintiff is a question of fact. Eli Investments, LLC, 118 So.3d at 154 (citing Lyle, 584 So.2d at 400). The standard of care applicable to negligence cases is whether the defendant acted as a reasonable and prudent person would have under the same or similar circumstances. Id. (quoting Donald v. Amoco Prod. Co., 735 So.2d 161, 175 (Miss. 1999)). The defendant must take reasonable measures to remove or protect against foreseeable hazards that he knows about should know about in the exercise of due care. Id. (citing Millers of Jackson, Meadowbrook Road, Inc. v. Newell, 341 So.2d 101,

22 (Miss. 1976)). Viewing the evidence in the light most favorable to Borries in the instant case, as this Court must do when reviewing a grant of summary judgment, Borries has clearly offered sufficient proof to create a genuine issue of material fact regarding Grand Casino s breach of its duty to take reasonable precautions to protect Borries and other property owners in close proximity to the casino barges during Hurricane Katrina. Consequently, the trial court clearly erred in granting summary judgment on this issue. The Mississippi Supreme Court s decision in Eli Investments, LLC v. Silver Slipper Casino Venture, LLC, is directly on point and outcome determinative in this case. In that case, the plaintiff presented expert testimony that Katrina s storm surge was foreseeable based on prior storm history, and that the Silver Slipper Casino s moorings were insufficient to restrain the casino if it encountered significant storm surge similar to that of prior hurricanes. 118 So.3d at 155. Since the plaintiff had offered competing evidence that Silver Slipper failed to moor the casino adequately to withstand Hurricane Katrina, the Supreme Court held that the plaintiff had shown a genuine issue of material fact concerning a breach of Silver Slipper s duty and the trial court erred in granting summary judgment to it. Id. at Therefore, because Borries has actually presented more evidence than the plaintiff in Eli Investments, LLC to demonstrate a factual dispute, this Court should likewise reverse the trial court s decision to grant summary judgment in favor of Grand Casino. Indeed, similar to the expert testimony presented in Eli Investments, LLC, Borries also presented expert testimony that Katrina s storm surge was foreseeable based on prior storm history, such as that of Hurricane Camille. According to Borries coastal engineering expert, Dr. William R. Dally, Hurricane -15-

23 Camille had winds approaching 190 mph and an estimated storm surge as high as thirty (30) feet along the Mississippi coastline. (R. 579 [Dally Second Supplemental Affidavit at 7]). Dr. Dally also found that [w]ithin the close proximity of Biloxi, Mississippi, Hurricane Camille s storm surge was between twenty (21) to thirty (30) feet. (R [Dally Second Supplemental Affidavit at 7]). Dr. Dally s opinions are based on modeling results, high/still water marks, as well as statistics and data from the U.S. Department of Commerce, Environmental Science Services Administration, and other governmental/public reports. (Id.). As a result, Dr. Dally opined that [t]he wind and surge levels produced by Camille should have been the engineering benchmark for constructing and designing Grand Casino s gambling barges and not the Gaming Commission s minimum licensing requirements. (R [Dally Affidavit at 20]). Thus, Dr. Dally opined that the exercise of reasonable engineering judgment would have resulted in a design for the Grand Casino barges that would exceed the known maximum surge heights created by Hurricane Camille for this area of the Gulf Coast (+21ft.NAVD). (R. 170 [Dally Affidavit at 17]; (R ) It is also Dr. Dally s opinion that in light of the known data regarding storm surge and wave heights in Biloxi prior to the construction of the Defendant s gambling barges, it was foreseeable, from an engineering standpoint, that a barge mooring system design that did not meet or exceed the capacity to withstand historically known surge heights, would fail in the manner that the Defendant s system failed on August 29, Id; see also R. 237 [Affidavit Webster at 13]. Moreover, Dr. Dally opined that [t]he fact that the Grand did not modify the mooring system already in place to accommodate the increased load and stress on the structure after the addition of the 250' x 110' Lady Luck casino barge in , illustrates Defendant s breach -16-

24 of basic marine engineering design protocols. (R. 171 [Dally Affidavit at 22]). Notwithstanding the Lady Luck addition, however, Dr. Dally concluded that the Defendant could have designed 7 the attaching collars of the mooring system to withstand any surge height. (R ). Specifically, he opined: R With proper guide collar and connector design, upon the onset of significant surge heights, the barges would simply become submerged but remain connected to the dolphin pilings. Upon complete inundation, uplift or buoyancy forces would cease to act upon the barges, and the structures would not have broken free in the manner that occurred in this case, thereby eliminating the significant risk to adjoining property owners and the public. For all of these reasons, Dr. Dally reached the opinion that the design of Grand Casino s gambling barges were clearly insufficient. (R ). (See also R [Expert Report of Dally at12-13]). Geoff Webster, Plaintiff s other expert engineer, reached the same opinion regarding the deficiency of the mooring systems design. (R [Webster Affidavit at 15, 21].. Since minimum licensing requirements announce administrative standards and do not reflect engineering standards or judgments, Mr. Webster opined that the design of Grand Casino s gambling barge was clearly insufficient in light of the surge precedent set by Camille. (R [Affidavit of Webster at 14-15]). Mr. Webster further opined that [t]he wind and surge levels produced by Camille should have been the engineering benchmark for constructing and designing Grand Casino s gambling barges and not the Grand s attempt to comply with the Gaming Commission s minimum licensing requirements. (Id. at 15). 7 As laid out in the affidavit of Plaintiff s other expert engineer, Edward Geoffrey Webster, R.R.I.N.A., the exercise of reasonable engineering judgment would have resulted in a design for the Grand Casino barges that would have the characteristics set out in the exhibits to this Affidavit. (R. 237; [Webster Affidavit at 12]). Those design characteristics are more fully described in and 20 to his Affidavit. (R ). -17-

25 Borries has also presented evidence from Mr. Webster of several proposed alternate design illustrations that the Grand Casino should have implemented in the design and construction of its mooring system. (R [Exhibits C-F to Affidavit of Webster]). Finally, Borries has presented evidence that Grand Casino should have taken additional safety measures to adequately secure its gambling barges prior to Hurricane Katrina hitting the Mississippi Gulf Coast. Both of Borries experts, Dr. Dally and Mr. Webster, agreed that Grand Casino could have scuttled its gambling barges in place prior to Hurricane Katrina. In fact, Grand Casino s own expert, Mr. Mason, acknowledged that this safety measure could have been implemented by Grand Casino. As Mr. Webster opined: I agree with Mr. Mason s deposition testimony that the main gambling barge and the Lady Luck addition could have been scuttled into place or sunk to the sea bottom prior to Hurricane Katrina. I have carried out such operations on marine and dredging equipment prior to the onset of a hurricane or tropical storm. In my opinion, it is more probable than not that the Grand Casino barge and the Lady Luck addition would have remained in place had the barges been scuttled or sunk to the sea bottom prior to Katrina. (R [Affidavit of Webster at 19]). Accordingly, the record contains more than sufficient evidence to support the conclusion that a triable issue of fact exists regarding the breach-of-duty element. See Rein, 865 So.2d at 1144 (recognizing that foreseeablity and breach of duty are issues to be decided by the finder of fact once sufficient evidence is presented in a negligence case. ) (quoting Hankins Lumber Co., 774 So.2d at 464); Lyle, 584 So.2d at 400 (whether defendants breached their duty is an issue for the fact-finder to resolve. ) (citation omitted). The parties have provided conflicting evidence as to whether Grand Casino s mooring system was adequately designed. Grand Casino maintains that its mooring system was adequate; Borries maintains that it was not. -18-

26 As noted above, all reasonable inferences are made in favor of Borries and if there is any doubt regarding the existence of a genuine issue of material fact, the benefit goes to him. Miller, 970 So.2d at 130. Viewing the evidence in this light, Borries has offered more than sufficient evidence to withstand summary judgment as to both the duty and breach-of-duty elements. Simply put, this case has differing expert opinions establishing a battle of the experts to be decided by the jury as to whether Grand Casino adequately secured its own gambling barges to prevent foreseeable harm to Borries and other nearby property owners. In Eli Investments, LLC, the Supreme Court reversed the trial court s entry of summary judgment because differing expert opinions established a battle of the experts, which must be decided by the jury on the issue of whether the casino took reasonable steps to secure its gambling barge to prevent 8 foreseeable harm to nearby property owners. A similar result should be reached by this Court in the instant case. Borries has clearly shown a genuine issue of material fact concerning a breach of Grand Casino s duty and the trial court erred in granting summary judgment to it. (a) Contrary to the circuit court s decision, the Gaming Commission s licensing requirements do not define the Defendant s duty to Plaintiff. In its decision, the trial court indicates that Grand Casino s compliance with the licensing requirements of the Mississippi Gaming Commission excuses any duty to the Plaintiff for the failure of its mooring system during Hurricane Katrina. (R. 495). However, the Gaming Commission s minimum requirements do not establish any legal duty or standard of care, nor do they replace the common law reasonableness standard for a negligence action. See Eli Investments, LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151, 155 (Miss. 2013) So.3d at

27 (holding that Mississippi Gaming Commission Regulation II(B)(10) was enacted merely as a condition of licensure, not as a conclusive standard of care for all casinos in all circumstances. ); see also Howard v. Estate of B. Harper, 947 So. 2d 854 (Miss. 2006) (holding that Minimum Standards, which serve as internal licensing regulations, do not create a separate cause of action nor establish a duty of care... ); Moore v. Mem l Hosp., 825 So.2d 658, 665 (Miss. 2002) (holding that administrative regulations do not establish a legal duty of care to be applied in a civil action. ). Indeed, as pointed out by Borries experts, licensing standards announce administrative standards and do not reflect engineering standards or judgments. (R. 237 [Affidavit of Webster at 14]); see also R. 170 [Affidavit of Dally, at 19]. As one of the design engineers working for the Grand in 1993 put it, [ t]he problem with the 155 [mph wind speed] is it s not a design criteria. (R. 268 [Excerpts from the Deposition of Gordon H. Reigstad, taken in the related action styled, Biloxi Yacht Club, Inc. v. Grand Casinos of Mississippi, Inc. Biloxi, at 118]). 9 Consistent with Borries experts, Reigstad elaborated of the crucial difference between the licensing requirements and the obligations of the designer: Saffir-Simpson is not you will not get a single engineer in this country to say, well, we ll just apply the Saffir-Simpson to this to this manual. Those velocities are not appropriate for design. R Borries case against Grand Casino is predicated on the allegations that the Grand Casino - Biloxi was defectively designed in a manner that caused the barges to break free of their 9 At one time in this case s long history, it was removed to the United States District Court for the Southern District of Mississippi. See R Upon filing the notice, the Grand Defendant sought to consolidate the matter with the Biloxi Yacht Club and other plaintiffs bringing action against it for destruction of property occasioned by the failure of the casino barge moorings. -20-

28 moorings on August 29, The adequacy of the casino s design is the central question informing the issue of negligence in this case. Whether the Grand substantially complied with the licensing requirements, while relevant, cannot preclude Borries theory of relief under the negligence counts of the complaint for the simple reason that those requirements are not design standards, the fulfillment of which, completes the Defendant s duty. See Eli Investments, LLC, 118 So.3d at 155. Moreover, even were the mere fact of agency licensing theoretically probative on the question of whether the Defendant fulfilled its duties to the Plaintiff, the record compiled in this case clearly shows that Grand Casino s alleged compliance with the agency s published wind and surge guidelines was not a condition required by the Commission for issuance of Defendant s gaming license. In fact, Grand Casino actually received a license for its casino barge in 1992 one (1) year before the design had even been completed in 1993, and two (2) years before the casino had been fully constructed in (R. 88, 129, 145, 159). Accordingly, the Gaming Commission licensing requirements clearly do not inform the standard of care because Grand Casino was given a license before the design and construction criteria could even be validated. Not surprisingly, Grand Casino s engineering expert, Mr. Mason, admitted that he consulted other standards in preparing the design of the mooring system, to include ASCE and the Standard Building Code. (R. 112 [Deposition of Mason at pp ]). 10 In any event, Plaintiff has presented evidence that Grand Casino s mooring system did not meet or exceed the Mississippi Gaming Commission s minimum licensing requirements for wind and surge (155 mph wind and 15 foot surge). Specifically, Plaintiff presented Dr. Dally s expert report, expert affidavits, and other evidence that the gambling barges actually broke free from their moorings when Hurricane Katrina s storm surge was less than fifteen (15) feet, and the mooring system did not allow for applicable wind and wave loads. Dr. Dally opined that despite the fact that Grand Casino s mooring system was apparently intended to withstand a storm surge of fifteen feet (15), the mooring system was not ultimately constructed and/or maintained to withstand a fifteen (15) foot surge in light of -21-

29 3. Causation: the trial court erred in applying the Act of God defense to Grand Casino, given the questions of fact raised by Borries regarding Grand Casino s Negligence. Since Grand Casino bears the burden of proving the act of God affirmative defense, it must establish beyond peradventure all of the essential elements of the... defense. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). An act of God is an injury due directly and exclusively to natural causes without human intervention, which could not have been prevented by the exercise of reasonable care and foresight. City of Hattiesburg v. Hillman, 76 So.2d 368, 371 (Miss. 1954) (emphasis added). Stated differently, [t]his defense applies where an injury is attributable solely to natural cause. Shields v. Easterling, 676 So.2d 293, 296 (Miss. 1996). An act which may be prevented by the exercise of ordinary care is not an act of God. King v. Miss. Power & Light Co., 142 So.2d 222, (Miss. 1962) (quoting City of Hattiesburg, 76 So.2d at 371). However, if the injury is caused by an Act of God, in connection with which the negligence of the defendant is a concurring cause, and the injury would not have occurred except 11 for such negligence, then defendant is liable. McFarland v. Entergy Miss., Inc., 918 So.2d the fact that it broke loose 1 to 1.5 feet below the 15 foot design criteria as a result of wave and wind action, which was not taken into account when the mooring system was designed and constructed.. (R [Affidavit of Dally at 22-23]); (R. 579 [Second Supp. Affidavit of Dally at 6]). This opinion is based on Dr. Dally s modeling results, the documents produced in this litigation, as well as the testimony of Thomas Lynn Patterson( R ) and Neil Hall. (R ). Additionally, Plaintiff s other expert, Mr. Edward Geoffrey Webster (Webster), also testified that at high tide, Grand Casino s mooring system could not accommodate a fifteen (15) foot tidal surge. (R [Affidavit of Webster at 11]). Accordingly, a factual issue clearly exists as to whether Grand Casino even complied with the Gaming Commission licensing requirements. Stated differently, there is sufficient evidence from which a reasonable jury could conclude that the gambling barges were not secured to withstand fifteen feet of storm surge. 11 For example, in City of Jackson v. Brummett, an individual s private plane was parked at the City s airport. 80 So.2d 827, 828 (Miss. 1955). The City agreed to provide parking space and tie-down service for the plane. Id. One day, with very little warning, the wind velocity increased from 7 mph to 45 mph, and... at the airport, there were wind gusts up to 65 miles pr hour. Id. There was disputed evidence about whether the ropes to tie down the plane were rotten. Id. The plane blew over in the wind -22-

30 697, 701 (Miss.Ct.App. 2004) (rev d by 919 So.2d 894 (Miss. 2005)). In its ruling, the trial court found that Hurricane Katrina was an Act of God. (Tr. 108). However, the trial court did not provide any factual basis for reaching such a finding. (Id.) In any event, the act of Grand Casino s barges breaking loose from their moorings and damaging Borries property did not transform to the level of being an act of God merely because it occurred during a severe storm with certain unique and unprecedented features. Borries injuries would have had to be attributable solely to Katrina, without any fault on the part of Grand Casino. This was clearly not the case here. Without question, the damage to the Schooner pier could have been prevented or avoided if Grand Casino had exercised reasonable care of foresight in designing its mooring system. Grand Casino s own documents reveal that Hurricane Katrina, which made landfall on August 12 29, 2005, was not the most intense land-falling hurricane in U.S. history. Instead, Hurricane Camille, which a followed a similar path to Katrina, was a much stronger storm when it made 13 landfall along the Mississippi Coast on August 17, Moreover, as previously discussed above and in the affidavits Dr. Dally and Mr. Webster, there is at least a factual dispute as to whether Grand Casino was negligent in the design of its moorings and connections. There is also a factual dispute as to whether this negligence contributed to Borries loss. As a result, Grand and was damaged. Id. The City argued that the sole cause was an act of God in the form of a sudden, extraordinary and unprecedented wind. Id. at 829. The Court affirmed the verdict for the plaintiff and found that there was evidence that the damage to [plaintiff s] airplane was not due exclusively to natural causes, and that it could have been prevented by the exercise of reasonable care and foresight on the part of the City in providing adequate ropes to tie the plane down and by the exercise of ordinary care in that respect. Id. 12 See R. 331 [NOAA Report at p. 21]. See also R [Affidavit of Dally at 12]. 13 Id. -23-