City of Natchez v. Jackson

941 So. 2d 865, 2006 WL 2672188
CourtCourt of Appeals of Mississippi
DecidedSeptember 19, 2006
Docket2005-CA-00043-COA
StatusPublished
Cited by19 cases

This text of 941 So. 2d 865 (City of Natchez v. Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Natchez v. Jackson, 941 So. 2d 865, 2006 WL 2672188 (Mich. Ct. App. 2006).

Opinion

941 So.2d 865 (2006)

CITY OF NATCHEZ, Appellant
v.
Irma JACKSON and Husband, Melvin Jackson, Appellees.

No. 2005-CA-00043-COA.

Court of Appeals of Mississippi.

September 19, 2006.
Rehearing Denied November 3, 2006.

*868 L. Clark Hicks, Jr., attorney for appellant.

W. Bruce Lewis, William F. Riley, Natchez, attorneys for appellees.

Before KING, C.J., GRIFFIS and BARNES, JJ.

GRIFFIS, J., for the Court.

¶ 1. Irma and Melvin Jackson filed suit against the City of Natchez for Irma's personal injuries and Melvin's loss of consortium. After a bench trial, the Adams County Circuit Court entered judgment for the Jacksons. The city appeals and argues (1) there was no dangerous condition, (2) the trial court erred in admitting and excluding expert testimony, (3) the trial court erred in admitting medical records, (4) Irma was comparatively negligent, and (5) the damage award was not supported by the evidence. We find no error and affirm.

FACTS

¶ 2. Irma visited Copy Cats on Main Street in Natchez in order to have fliers printed. She was carrying her purse and papers in her hands. As she neared the door, about to enter the store, she fell. Her high heel got caught in a two-inch wide, six-inch deep hole.

¶ 3. The hole was a part of an old coal grate that the city had attempted to cover over with concrete. The reason was the city determined that the holes in the coal grate created a dangerous condition to pedestrians. The owner of Copy Cats, James Handjis testified that on four different occasions he had called the city, because the concrete was falling through the holes in the grate. Each time, the city patched the respective hole with more concrete. The Jacksons' concrete expert Henry White testified that concrete does not adhere to steel and this was the reason that the concrete plugs in the holes kept giving way. White also testified that it appeared the city had engaged in a core cutting in the area in question, which was further causing the strength of the concrete plugs to give way.

STANDARD OF REVIEW

¶ 4. In a claim based on the Mississippi Tort Claims Act, the trial judge sits as the finder of fact. Miss.Code Ann. § 11-46-13(1) (Rev.2002). "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence." Donaldson v. Covington County, 846 So.2d 219, 222(¶ 11) (Miss. 2003). The circuit judge's findings of fact and conclusions of law will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Miss. Dep't of Transp. v. Trosclair, 851 So.2d 408, 413(¶ 11) (Miss.Ct. App.2003).

*869 ANALYSIS

I. Did the trial court err in finding a dangerous condition?

¶ 5. The city first argues that the judge erred in finding a dangerous condition, because holes in sidewalks are not dangerous conditions for which municipalities may be held liable. The Jacksons respond that the coal grate was placed there by the city and was negligently repaired by the city. The Jacksons further argue that the city violated its own city code by failing to adequately secure the opening.

¶ 6. To state a cause of action under the dangerous condition exemption of the Mississippi Tort Claims Act, a plaintiff must show: (1) a dangerous condition, (2) on the government entity's property, (3) which the government entity caused, or of which it had notice and time to protect or warn against, and, (4) in the case of a failure to warn, the condition was not open and obvious. Miss.Code Ann. § 11-46-9(1)(v) (Rev.2002). See City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 64(¶ 11) (Miss.2005). The city argues that holes and cracks in sidewalks are not dangerous conditions for which municipalities may be held liable. Indeed we have refused to impose liability for naturally occurring defects in sidewalks. Burton v. City of Philadelphia, 595 So.2d 1279, 1280 (Miss.1991). However, the supreme court has distinguished between defects caused by nature and those caused by the government. Id.; Lancaster v. City of Clarksdale, 339 So.2d 1359, 1360 (Miss.1976); City of Ruleville v. Grittman, 250 Miss. 842, 845-46, 168 So.2d 527, 529 (1964). Where the defect is caused by the city, we are much more prone to hold it is a triable issue as to whether the city was negligent. Lancaster, 339 So.2d at 1360.

¶ 7. For example, in Grittman, 250 Miss. at 843, 168 So.2d at 528, the court upheld a verdict for a pedestrian who fell when her shoe was caught in a steel wire wicket the city had embedded in the sidewalk and left exposed. A ditch had been excavated for the purpose of installing sewer lines. Id. at 844, 168 So.2d at 528. Then, "[t]he ditch . . . was filled in part with broken pieces of concrete, one of which had attached a piece of steel wire reinforcement." Id. When the surface was resealed with concrete, the steel wire remained exposed. Id. "About four days before plaintiff sustained said injuries she noticed the wicket and intended to notify the authorities when she arrived at work but forgot to do so." Id. at 845, 168 So.2d at 528. Later, her foot caught in the wicket causing her to fall and sustain serious injuries. Id. at 845, 168 So.2d at 529. The court held that since the defect was caused by the City of Ruleville, it was a question for the jury as to whether the city was negligent. Id. at 846, 168 So.2d at 529. The court went on to hold the jury was justified in finding it was a dangerous condition. Id. at 847, 168 So.2d at 530.

¶ 8. Likewise, the undisputed evidence here was that the hole was caused by the affirmative act of the City of Natchez. The city placed the coal grate in the middle of the sidewalk on Main Street. The steel grate was full of holes. Even though the city tried to cover the holes up, it left at least one hole exposed. Thus, it was a question for the trier of fact as to whether the city was negligent.

¶ 9. The trial court found the coal grate did create a dangerous condition. We must affirm this holding so long as there is substantial, credible evidence to support it. Donaldson, 846 So.2d at 222(¶ 11). Handjis testified that the hole created an unreasonable trip hazard for his customers, many of whom wear high heels and enter *870 and exit the store with their hands full. The city's director of public works Richard Burkes admitted that the holes in the coal grate created an unreasonable trip hazard. He testified this was why the city previously attempted to cover the holes altogether. He also testified, that the coal grate was a dangerous condition according to the city code "so long as it was not so secure as to prevent accidents to persons passing over them." Natchez Code, Art. III, § 26-41. On this record, we hold the judge was justified in finding the hole in the coal grate was a dangerous condition. Not only did the city affirmatively cause the defect, there was evidence, including an admission, that this was a dangerous, unreasonable trip hazard.

II. Did the trial court err in admitting and excluding expert opinions?

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Bluebook (online)
941 So. 2d 865, 2006 WL 2672188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-natchez-v-jackson-missctapp-2006.