SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Transcription

1 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI DEANIE LEE, ET. AL. VERSUS MISSISSIPPI DEPARTMENT OF TRANSPORTATION APPELLANTS CAUSE NO: 2008-TS APPELLEE APPEAL FROM THE CmCUIT COURT GEORGE COUNTY, MISSISSIPPI REPLY BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED SUBMfI"fED BY: A.M. Murphy Attorney at L1aw P. O. Box 35 Lucedale, MS Lawrence E. Abernathy, ill Attorney at Law P.O.Box4177 Laurel, MS I, I, ATTORNEYS FOR THE APPELLANTS 'DEANIE LEE, ET. AL. I, i,

2 TABLE OF AUTHORTnES CASES: City of Hattiesburg vs. Hillman, 76 SO.2d 368 (Miss. 1954)... 6 Frazier vs. Mississippi dept. oftransp, 970 So.2d 221 (Miss. 2006)... 3 Howard vs. City of Biloxi, 942 So.2d 751 (Miss. 2006)... 3 Jones vs. Miss. Trans. Comm 'n, 920 So.2d 516 (Miss. 2006)... 4 McDonald vs. Mississippi Dept. oftransp, 955 So.2d 355, {Miss. 2006)... 8 McFarlandvs. IntergyMississippi, Inc., 919 So.2d 894, (Miss. 2005)... 5,6 Miss. Dept. of Trans. vs. Cargill, 847 So.2d 258, (Miss. 2003)... 4 Pear River Valley Water Supply District vs. Bridges, 878 so.2d 1013, (Miss Ct. Appl. 2004) Reeves vs. Mississippi Dept. Transp, 941 So.2d 844, (Miss. 2006)... 3 Rosales vs. Miss. Trans. Comm, 2:01-CV-39WS (S.D. Miss. 2002)... 2,4 Willingham vs. Mississippi Trans. Comm 'n, 944 So.2d 949 (Miss. Ct. Appeals. 2006)... 2,4,5 CODE: Miss. Code Ann (1)... 8 Miss. Code Ann (1)(q)....4,5,6 Miss. Code Ann (1)(v)... 1 MISCELLANEOUS: Blacks Law Dictionary... 6 Webster's, 3 M Edition... 6

3 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii ARGUMENT (1) FAILURE TO CORRECT A DANGEROUS DEFECT IN THE HIGHWAY (RUTTING) AFTER SEVEN YEARS ACTUAL NOTICE DEFEATS ALL IMMUNITY AFFORDED MDOT UNDER THE MISSISSIPPI TORT CLAIM ACT IN ORDER FOR WEATHER TO BE THE SOLE CAUSE OF THE ACCIDENT IT MUST BE DUE DIRECTLY AND EXCLUSIVELY TO NATURAL CAUSES WITHOUT HUMAN INTERVENTION (1)(0) CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 i, II

4 RESPONSE TO MDOT'S ARGUMENTS I. II & ill (1) FAILURE TO CORRECT A DANGEROUS DEFECT IN THE HIGHWAY (RUTTING) AFTER SEVEN YEARS ACTUAL NOTICE DEFEATS ALL IMMUNITY AFFORDED MDOT UNDER THE MISSISSIPPI TORT CLAIM ACT. Appellee, Mississippi Department of Transportation's, (MDOT), argument concerning its first three propositions: (1) immunity under the Mississippi Tort Claim Act (MTCA), (II) immunity for road maintenance because same is discretionary and (III) immunity if a dangerous condition is open and obvious, all fail because MDOT had actual, not constructive, but actual notice of the rutting condition for over seven years prior to the accident and, to date of trial, never corrected the dangerous rutting condition. MDOT, in its brief, made much about the general law of immunity under the MTCA, but completely ignored the pivotal provision of (l)(v) which said provision states, regarding dangerous condition; "of which the governmental entity did not have notice, either actual or constructive,. and adequate opportunity to protect or warn against." This one little caveat, if proven, completely strips all immunity arguments ofmdot.. and even though MDOT was given ample opportunity to address this issue in its brief, MDOT completely ignored the opportunity and did not do so.. Examination of the Summary Judgment, reveals that the Judgment is completely void of any mention of the prior actual notice to MDOT regarding the dangerous rutting condition of the highway. The Affidavits presented by SIPP given by area residents, not party litigants, spanning seven years prior to this accident, all provide actual notice to MDOT. The trial judge completely ignored the affidavits and gave them no consideration whatsoever, not one grain, not one ounce 1

5 of consideration, when such affidavits constituted a serious material issue of fact which would have prevented the entry of summary judgment. The issue of prior notice of the rutting condition is a point of utmost importance as to liability in this case and yet it was completely ignored and given no value whatsoever. This was manifest error that warrants reversal. It is equally important to note that MOOT in its Reply Brief, arguments I, II and III, never, not one time, ever addressed the issue of actual notice as it applied to MOOT's immunity or to distinguish the effect of such notice affidavits. MOOT never addressed the argument of Appellants' first two propositions in its brief and like the Trial Judge, MOOT completely ignored the affidavits which constituted actual notice of the dangerous conditions, as provided in (1)(v). In this respect alone, Summary Judgment should be reversed and the cause remanded for trial. Examine the Affidavits submitted by Sipp, which said affidavits have pictures of the rutting, all of which are located in the Record Excerpts. MOOT relies heavily upon Willingham vs. Mississippi Trans. Comm'n, 944 So.2d 949 (Miss. Ct. Appeals. 2006), and Rosales vs. Miss. Trans. Comm, 2:01-CV-39WS (S.D. Miss. 2002)(Rosales does not appear to be a reported case) regarding open and obvious dangers or the duty to post notice and discretion. In each of these cases the dangers were open and obvious, not so for the claimants in this case. Each tort claim case is largely fact driven regarding the duty to maintain and to give notice. In the Willingham case the accident occurred as a result of a speeding hot rod kid, in a heavy down pour with reckless abandon for safety in a mechanically,, unsound vehicle - nothing like the facts in this case.. But, Willingham is important for the law that it does provide, that MOOT can lose its immunity if it knows of a dangerous condition and fails to correct it or give notice to the public. Willingham also provided that "No evidence was offered by 2

6 the Appellants that the rutting was so severe that it posed hidden danger to travelers who were exercising due care."(page 5,~ 16) In this case, the Tort Claim Notice, Complaint and Affidavits all provide that the excessive rutting was the cause of the accident and that MDOT was informed of the dangerous condition many years prior to and up until the accident and that when raining the condition was not open and obvious.. The ruts allowed the water to stand and accumulate which caused the hydroplaning as the highway was not maintained as required by statute.. All that is known about the Rosales case is that the accident occurred during a heavy down pour. These two case are important for what they say, but they do not factually address the issues in this case as there was no heavy down pour - only misty type drizzle rain, speed was not a factor and MDOT had seven (7) years prior notice of the dangerous defect (rutting) and made no attempt to repair or remove the dangerous condition. (MDOT'S BRIEF NEVER ADDRESSED THE AFFIDAVITS REGARDING NOTICE TO MDOT OF THE DANGEROUS CONDITION.) This Court should also note, that on the issue of open and obvious dangerous condition, the Trial Court and MDOT refused to give any consideration on the affidavits that a driver can not tell if water is standing on the highway, that standing water is not obvious in this area. The affidavits address serious material issues of disputed fact as to open and obvious danger and notice to MDOT of the dangerous condition (rutting). It was manifestly wrong for the Trial Judge and for MDOT to completely ignore these affidavits and for the Court to grant summary judgment for MDOT. I, MDOT never, at any time, ever tried to distinguish it's position from the law announced in Frazier v. Mississippi dept. of Transp. 970 So. 2d 221 (Miss. 2006), Howard vs. City of Biloxi, 942 So.2d 751 (Miss. 2006), Reeves vs. Mississippi Dept. Transp, 941 so.2d 844 (Miss. 2006), 3

7 Miss. Dept. of Trans. vs. Cargill, 847 so.2d 258 (Miss. 2003) or Jones vs. Miss. Trans. Com 'n, 920 So.2d 2006)or any of the other cases cited in Appellant's Brief. All MOOT did was to hammer home points oflaw different from the issues presented by Appellants. There was absolutely no way MOOT could overcome the affidavits ofbeka Lister (1999), Dorothy Clark (1996), Lorena G. Clark (2001), Karen Capps (2002) and Thomas H. Dickerson (2001) regarding their notification to MOOT about the rutting condition of Highway No. 63, prior to the 2003 accident.... a good seven years of notice... Kapp's Affidavit even provides that she went to the highway with MOOT Engineers to discuss the severe rutting and Dorothy Clark not only called MOOT to complain, she went face to face with the Southern District Highway Commissioner, Ronnie Shows, over the condition of the Road. There is not one reported case that has this much prior actual notice of a dangerous condition as in this case. How much notice does it take? The Appellant's have made their case and this cause should be reversed and remanded for trial.. 2. IN ORDER FOR WEATHER TO BE THE SOLE CAUSE OF THE ACCIDENT IT MUST BE DUE DIRECTLY AND EXCLUSIVELY TO NATURAL CAUSES WITHOUT HUMAN INTERVENTION (1)(0) MOOT'S Fourth argument that the trial Court was correct in holding that weather was the cause of the accident, therefore, immunizing the MOOT. ( (1)(q), is completely wrong and is contrary to all reported cases. Sipp's Tort Claim Notice and subsequent Complaint both provided that the excessive rutting of the road surface caused water to stand, that the standing water caused the hydroplaning conditions which caused the accident, which caused the injuries complained of and that MOOT had notice of the dangerous condition prior to the accident and never repaired same. The Trial Court held that the cause of the accident was the result of 4

8 "Weather" and therefore MDOT enjoyed immunity. MDOT arguers that Willingham and Rosales are dispositive of this issue and that "The exception, even from the limited waiver ofliability is for "weather", not from "heavy" rain, but weather, no matter the severity. Miss. Code Ann ( 1)( q)." This is an erroneous contention, even Willingham recognized that under certain circumstances that severe rutting may pose a hidden danger and said "No evidence was offered by the Appellants to indicate that the rutting was so severe that it posed a hidden danger to travelers who were exercising due care." A collective reading of all of the affidavits submitted in this case speak directly to the fact that affiants could not tell if the road was dangerous.. and some ofthese affiants hydroplaned and wrecked on this very road. Serious contested facts supported by proper affidavits! WEATHER. MTCA, (1)(q) provides as follows: "( q) Arising out of an injury caused solely by the effect of weather conditions on the use of streets and highways;" The MTCA does not address or define just how or what is really meant by "solely" by the effect of weather, but if the English language is to be given any meaning, then the definition of "solely" must be addressed first...and the dictionary defines solely, "without another: singly, alone, conclusively, entirely." In McFarland v. Entergy Mississippi, Inc., 919 so.2d 894 (Miss. 2005),.,. this Court was confronted with the effects of an ice storm, and it was the ice storm that caused damage to the power lines, but this Court in discussing "Weather" in releasing Entergy from liability provided that the ice storm could unquestionably be characterized as an "Act of God" of which Entergy had no control. Nor could Entergy have done anything to prevent or lessen the end result." The McFarland Case is important to this case as this Court is defining a Weather 5

9 condition and is, by way of analogy, defining what is meant by solely, as same applies to a Weather condition. Admittedly, this Court is defining an "Act of God", but as we know an Act of God its defines the forces of nature as same applies to this case. Blacks Law Dictionary, Third Edition, Act of God is defined: "Act of God. In the civil law, vis major. any misadventure or casualty is said to be caused by the "act of God" when it happens by the direct, immediate, and exclusive operation of the forces of nature, uncontrolled or un-influenced by the power of man and without human intervention, and is of such character that it could not have been prevented or escaped from any amount of foresight or prudence, or by any reasonable degree of care or diligence, or by the aid of any appliance which the situation of the party might reasonably require him to use. Inevitable accident or casualty; any accident produced by any physical cause which is irresistible, such as lightning, tempest, perils of the seas, an inundation, or earth quake; and also the sudden illness or death of a person." InMcFarlandvs. EntergyMississippi, Inc. 919 So.2d 894 (MS 2005) this Court, in releasing Entergy from liability where an accident occurred from a sagging power line due to an ice storm this Court, in defining the exclusion from weather conditions, analogized same as to an "Act of God" and provided, page 8, ~28, "Id. at 729. The United States Supreme Court has defined "Act of God" as a "loss happening in spite of all human effort and sagacity." * * * This defense has been widely defined as "any accident, due directly and exclusively to natural causes without human intervention, which by no amount offoresight, pains, or care, reasonably to have been expected could have been prevented." * * * However, the "Act of God" defense "applies only to event in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them. * * * "{A}n "Act of God" is not only one which causes damage, but one as to which reasonable precautions and/or the exercise of reasonable care by the defendant, could not have prevented the damage from the natural event." * * * "Act of god" does not apply if there is an intervening circumstance attributed to the defendants." * * * (CITATIONS OMITTED). Note: sagacity - is defined as "to perceive keenly - of keen and farsighted penetration andjudgment. In the case of City of Hattiesburg v. Hillman, 76 So.2d 368 (Miss. 1954) a case regarding 6

10 the death of a child by a falling limb and the City sought to escape liability for not cutting a tree that had been damaged by an earlier wind storm, the Supreme Court addressed the defense of weather as a "Act of God" and provided the following, (page 450 Hn 3), as follows: "Now in 65 C.J.S., Negligence, Section 21(b), pages 432-3, it is said: "No one is liable for an injury proximately caused by an act of God, which is an injury due directly and exclusively to natural causes without human interventions, which could not have been prevented by the exercise of reasonable care and foresight. * * * The application of this rule may preclude any recovery for injuries caused by extreme weather conditions, or extraordinary or unprecedented * winds * '. An act which may be prevented by the exercise of ordinary care is not an act of God; * *" (Emphasis supplied.) See also 38 Am. Jur., Negligence, Section 7, page 649, and Section 75, page 734." The City of Hattiesburg case goes further and provides that the City had a duty to inspect and its failure to do so constituted negligence... same as in this case, MOOT had a duty to repair and maintain and after seven years of actual notice the failure to repair resulted in a deadly accident, just as Affiant, Karen Capps had warned MOOT what would happen if they did not fix the rutting conditions of the road. "I told them then that they were getting people hurt and someone was going to get their killing." It can not be said that Weather was the sole cause of the accident complained of by Sipp, et. a!., and if the decisions of this Court are to be followed, and the definitions of sole and "Act of God", (defining weather conditions, etc.,) are to be followed, then it was simply just plain error, abuse of discretion, to grant MOOT summary judgment in view of the numerous affidavits regarding notice to MOOT of the severe rutting, which said notice provided MOOT ample time to cure the dangerous condition. Had the road been properly maintained, under the weather conditions identified by affidavits, there would have been no standing water and as a consequence the severe rutting was the intervening factor with the weather that caused the water to accumulate 7

11 and cause the accident. Please read the affidavits. MOOT, in concluding its reply cited Pear River Valley Water Supply District v. Bridges, 878 so.2d 1013 (Miss Ct. App. 2004) and argued the application of"frasier's Octopus" mandated summary judgment ifany exemption under MTCA applied ( (1). This Court in McDonaldvs. MisSissippi Dept. oftransp., 955 So.2D 355 (MS. 2006), explained "Frasier's Octopus" "That law review article stated, "the various exemptions {listed under Section (9)(1)} are like an octopus arms; even if one doesn't get you, another one may." TheMcDonald case makes it perfectly clear (~25. "* * *." "Suffice it to say, the legal principle referred to as "Frasier's Octopus" applies to an individual claim, but mayor may not apply to all claims." It was improper for MOOT to argue the Pearl River Valley case in light of the McDonald case as the argument is completely unfounded and without merit as same does not apply and does not mean what MOOT would have this Court believe.. CONCLUSION MOOT completely failed to address the issues regarding the Affidavits of claimants, Sipp, et. ai, did not address the issues of notice of the defect, did not address the issues that MOOT had seven years to correct the severe rutting of the road and completely misapplied the law as same applies to Weather conditions being the sole cause of the accident. As previously stated it was t manifest error for the Trial Judge to completely ignore all of the affidavits as to Notice of the Defect to MOOT, the effect of Weather on the severe rutting, the disputed facts that one could not tell if the road was dangerous. The Trial Judge completely missed the application of Weather 8

12 as the sole cause of the accident as provided by ~ (1)(q). Appellant, Sipp, et. ai., would respectfully request that this cause be reversed and remanded by this Court for trial upon its merits. RESPECTFULLY SUBMITTED, this the 2 nd day of March, CERTIFICATE OF SERVICE I, the undersigned attorney for the Plaintift7 Appellant do hereby certify that I have this day served a copy of Appellant's Reply Brief by United States Mail with postage prepaid to the following persons at these addresses:.,.. JAMES H. HEIDELBERG, ESQ. WILLIAMS, HEIDELBERG, STEINBERGER & McELHANEY, P.A. POST OFFICE BOX 1407 PASCAGOULA, MS LAWRENCE E. ABERNATHY, m ATTORNEY AT LAW POST OFFICE BOX 4177 LAUREL, MS HON. KATHY KING JACKSON CIRCUIT COURT JUDGE 9

13 DISTRICT 19 POST OFFICE BOX 998 PASCAGOULA, MS THIS the 2 nd day of March,2009. A. M. MURPHY ATTORNEY AT LAW P. O. BOX35 LUCEDALE, MS ,, 10