Joe McGee Construction Company, Inc. v. Dianne Brown-Bowens, Individually and on Behalf of The Wrongful Death Beneficiaries of Hattie W. Brown

• Court: Mississippi Supreme Court
• Decided: August 17, 2023
• Docket: 2021-IA-01405-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2021-IA-01405-SCT

JOE McGEE CONSTRUCTION COMPANY, INC.

v.

DIANNE BROWN-BOWENS, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF HATTIE W. BROWN

DATE OF JUDGMENT: 12/09/2021 TRIAL JUDGE: HON. JOHN R. WHITE TRIAL COURT ATTORNEYS: WILBUR O. COLOM CHARLES TYRONE BRANT MICHAEL WAYNE BAXTER CHRIS H. DEATON MICHAEL MADISON TAYLOR, JR. DANA GAIL DEARMAN COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MICHAEL WAYNE BAXTER MICHAEL MADISON TAYLOR, JR. ATTORNEY FOR APPELLEE: WILBUR O. COLOM NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: REVERSED AND RENDERED - 08/17/2023 MOTION FOR REHEARING FILED:

CONSOLIDATED WITH

NO. 2021-IA-01406-SCT

MISSISSIPPI DEPARTMENT OF TRANSPORTATION

DIANNE BROWN-BOWENS, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF HATTIE W. BROWN DATE OF JUDGMENT: 12/09/2021 TRIAL JUDGE: HON. JOHN R. WHITE COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHRIS H. DEATON ATTORNEY FOR APPELLEE: WILBUR O. COLOM NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: REVERSED AND RENDERED - 08/17/2023 MOTION FOR REHEARING FILED:

EN BANC.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. The Mississippi Department of Transportation hired Joe McGee Construction

Company, Inc., for a road construction and bridge replacement project on Highway 245 in

Lee County. The Department designed the temporary traffic control plan for the project,

which provided for the placement of temporary traffic signs, such as DETOUR, ROAD

CLOSED AHEAD, ROAD CLOSED 1000 FEET with a flashing light on top, ROAD

CLOSED 500 FEET with a flashing light on top for the project, and two Type III barricades

with a ROAD CLOSED sign mounted on top. McGee Construction then subcontracted with

Riverside Traffic Systems, Inc., for the placement of the signs leading up to and around the

site. Riverside completed the placement of the signs and barricades as required by the traffic

control plan on May 30, 2018.

¶2. On the night of June 3, 2018, Hattie Brown, after visiting her friend Eddie Bogan,

drove down the closed portion of Highway 245 and collided with a stationary crane, resulting

in her death. The single occupant of the vehicle, her body was not discovered until the next

morning. Mississippi Highway Patrol Trooper Jonathan Ragan responded to the scene to

investigate. Trooper Ragan’s report states that Brown’s vehicle “collided with the barricade

2 on the southbound lane and traveled approximately 200 yards colliding head on with a crane

parked on a bridge.” His report also notes that “[t]here was adequate warning signage of the

road being closed with barricades across both lanes” and that “[t]he southbound side

barricade was destroyed.”1

¶3. Dianne Brown-Bowens, Hattie Brown’s daughter, filed a wrongful death suit against

McGee Construction on November 9, 2018, and later amended the complaint to include the

Department and Riverside as defendants. In her amended complaint, she asserted claims of

negligence and strict liability and sought to recover punitive damages. Regarding the

negligence claim, Brown-Bowens claimed that McGee Construction and the Department

were negligent by “[f]ailing to provide proper warnings” and “[f]ailing to have proper safety

plan in place to protect drivers on public highway[.]”

¶4. On December 16, 2020, the Department filed a motion for summary judgment,

arguing that,

[b]ecause plaintiffs cannot establish any duty owed by MDOT to [Hattie] Brown concerning this closed road under construction, because plaintiffs cannot establish any breach of duty by MDOT and because plaintiffs have no evidence that any alleged act or omission by MDOT was a proximate cause, or substantial contributing cause, of [Hattie] Brown’s vehicle crashing through a “Road Closed” barricade and traveling hundreds of yards down the closed road to impact with a crane, MDOT is entitled to summary judgment[.]

In response to the motion, Brown-Bowens asserted that summary judgment was premature

and that there were genuine issues of material fact. Along with her supplemental response

1 The report also mentions that empty alcohol bottles were found in the vehicle with the victim. But it was reported that, due to rigor mortis, the coroner could not take Hattie Brown’s blood in order to perform a toxicology test.

3 to the motion, Brown-Bowens attached several exhibits, including the affidavit of Jeffrey

Armstrong, a professional engineer that performs “forensic engineering analyses on matters

involving traffic and transportation engineering, including analysis of temporary traffic

control[.]” Armstrong reached several conclusions that alleged fault on behalf of the

defendants, but the Department moved to strike Armstrong’s affidavit as untimely and

improper under the rules of discovery “because it offers expert opinions from an individual

who has not been designated an expert and on whom no expert interrogatory response was

provided.” The Department also asserted that “[e]ven if [Armstrong] had been timely

designated as an expert and even if plaintiff had timely supplemented the expert

interrogatory, [Armstrong’s] affidavit is neither admissible under MRE 402 or MRE 702.”

¶5. On May 28, 2021, McGee Construction filed a motion for summary judgment,

asserting that it had “provided legally sufficient notice to motorists, including [Hattie]

Brown, that the section of Highway 245 South where the accident occurred was closed and

that McGee Construction therefore, breached no duty owed to [Hattie] Brown” and that it

was not negligent because none of its actions proximately caused the accident.

¶6. On July 27, 2021, a hearing was held regarding multiple pending motions filed by the

parties, most notably the competing motions for summary judgment. After hearing

arguments from the parties, the trial court entered an order granting Riverside’s motion for

summary judgment and granting in part and denying in part the Department’s and McGee

Construction’s motions for summary judgment, ruling that the Department’s and McGee

4 Construction’s summary judgment motions were denied as to Brown-Bowens’s negligence

claim but granted as to her claims for strict liability and for punitive damages.

¶7. Regarding the Department’s motion for summary judgment, the trial judge determined

that Brown-Bowens had “presented sufficient evidence to establish the basis of a government

entity’s duty to warn, as set out in Miss. Code Ann. § 63-3-305” and that Armstrong’s

affidavit established a breach of that duty by “offer[ing] expert testimony as to MDOT’s

failure to comply with the [traffic control plan].” The trial judge determined also that,

viewing the evidence in the light most favorable to Brown-Bowens, the deposition testimony

of Eddie Bogan and Gerald Holcomb “established a sufficient basis for the element of

causation” and genuine issues of material fact still exist. As for McGee Construction’s

motion for summary judgment, viewing the evidence in the light most favorable to Brown-

Bowens, the trial judge determined that the evidence was sufficient to establish a prima facie

case of negligence and that Brown-Bowens’s contested evidence created genuine issues of

material fact.

¶8. The Department and McGee Construction filed petitions for interlocutory appeal,

which we granted and consolidated. The parties argue that the trial court erred by denying

their motions for summary judgment because Brown-Bowens failed to present evidence that

either party, by act or omission, contributed to the death of Hattie Brown. We agree and we

reverse the judgment of the trial court because Brown-Bowens failed to produce any

evidence that any acts or omissions on the part of the McGee Construction or the Department

caused the death of Hattie Brown.

5 STANDARD OF REVIEW

¶9. “To prevail on a of negligence claim, a plaintiff must establish by a preponderance

of the evidence each of the elements of negligence: duty, breach, causation and injury.”

Miss. Dep’t of Mental Health v. Hall, 936 So. 2d 917, 922 (Miss. 2006) (quoting Miss.

Dep't of Transp. v. Cargile, 847 So. 2d 258, 262 (Miss. 2003), overruled on other grounds

by Little v. Miss Dep’t of Transp., 129 So. 3d 132 (Miss. 2013)). Mississippi Rule of Civil

Procedure 56(c) mandates summary judgment when “there are no genuine issues of material

fact such that the moving party is entitled to judgment as a matter of law.” Crain v.

Cleveland Lodge 1532, Order of Moose, Inc., 641 So. 2d 1186, 1188 (Miss. 1994). When

“the party opposing the motion for summary judgment on a claim or defense upon which it

bears the burden of proof at trial, and the moving party can show a complete failure of proof

on an essential element of the claim or defense, other issues become immaterial and the

moving party is entitled to summary judgment as a matter of law.” Id. (citing Grisham v.

John Q. Long V.F.W. Post, No. 4057, Inc., 519 So. 2d 413, 416 (Miss. 1988)).

DISCUSSION

¶10. McGee Construction and the Department each moved for summary judgment pursuant

to Rule 56 of the Mississippi Rules of Civil Procedure because, among other grounds, no

evidence had been offered to show that any act or omission by either party had caused the

death of Hattie Brown. Although the evidentiary sufficiency is disputed, it is nonetheless

undisputed that Hattie Brown would have driven past several warning signs and a barricade

indicating a road closure prior to the collision. No witnesses, however, saw the collision.

6 Even the exact time of the collision is unknown. In short, no competent summary judgment

evidence in the record before us supports that any breach of any duty on the part of the

Department or McGee Construction caused the collision. One can do no more than speculate

about causation here, and speculation does not defeat summary judgment. Johnson v. Brock,

337 So. 3d 1053, 1057 (Miss. 2022) (citing Strantz v. Pinion, 652 So. 2d 738, 742 (Miss.

1995)).

CONCLUSION

¶11. Because Brown-Bowens, as the party opposing summary judgment, presented no

evidence to prove a claim of negligence against the Department and McGee Construction,

we reverse the judgment of the trial court and render judgment in favor of the Department

and McGee Construction.

¶12. REVERSED AND RENDERED.

RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶13. Because the majority does not view the evidence in the light most favorable to the

nonmoving party in accordance with our appellate review, I dissent. The trial judge correctly

denied both parties’ motions for summary judgment because, viewing the evidence in the

light most favorable to the nonmovant, the plaintiff had presented sufficient evidence to

survive summary judgment.

7 ¶14. “We review the grant or denial of a motion for summary judgment de novo, viewing

the evidence ‘in the light most favorable to the party against whom the motion has been

made.’” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (Miss. 2013) (quoting Pratt v.

Gulfport-Biloxi Reg’l Airport Auth., 97 So. 3d 68, 71 (Miss. 2012), abrogated on other

grounds by Wilcher v. Lincoln Cnty. Bd. of Supervisors, 243 So. 3d 177 (Miss. 2018)). Rule

56 of the Mississippi Rules of Civil Procedure provides that summary judgment “shall be

rendered forthwith 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 a judgment as a matter of law.” Miss.

R. Civ. P. 56(c). The rule requires also that the party opposing the motion for summary

judgment is to respond and “set forth specific facts showing that there is a genuine issue for

trial.” Miss. R. Civ. P. 56(e).

¶15. In Karpinsky, we said:

This Court has explained that “in a summary judgment hearing, ‘[t]he burden of producing evidence in support of, or in opposition to, [the] motion . . . is a function of [Mississippi] rules regarding the burden of proof at trial on the issues in question.’” “The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law.” “The movant bears the burden of production if, at trial, he ‘would [bear] the burden of proof on th[e] issue’ raised.” In other words, “the movant only bears the burden of production where they would bear the burden of proof at trial.” Furthermore, “summary judgment is ‘appropriate when the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.”’”

Karpinsky, 109 So. 3d at 88-89 (alterations in original) (citations omitted).

8 ¶16. “Recovery in a negligence action requires proof by a preponderance of the evidence

of the conventional tort elements: duty, breach of duty, proximate causation, and injury (i.e.,

damages).” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So. 2d 1346, 1354 (Miss. 1990)

(citing Phillips ex rel. Phillips v. Hull, 516 So. 2d 488, 491-92 (Miss. 1987), overruled on

other grounds by Whittington v. Mason, 905 So. 2d 1261 (Miss. 2005)). The trial judge

determined that the plaintiff had presented sufficient evidence to establish a prima facie

claim of negligence against both defendants. Regarding MDOT’s duty and breach, the trial

judge determined that MDOT’s duty to warn was pursuant to Mississippi Code Section 63-3-

305, i.e., to comply with Manual on Uniform Traffic Control Devices (MUTCD), and that

the plaintiff had presented sufficient evidence of MDOT’s failure to warn. Giving deference

to the plaintiff, as he was required to do, the trial judge determined that Joe McGee

Construction Company had a duty to warn because the victim’s death occurred in a

construction zone in which Joe McGee was the contractor. As for causation, the trial judge

stated that

[t]o support the element of causation, Plaintiff relies on the testimony of Bogan and Holcomb[2] to show that south on Hwy 245, between 11:00 p.m. on June 3, 2018 and 6:30 a.m. on June 4, 2018 [sic]. Additionally, Plaintiff contends that the testimony of Bogan and Holcomb show that MDOT and JMC [(Joe McGee Construction Company)] failed to provide sufficiently numbered and visible TTC devices between CR 506 and the closed road heading south on Hwy 245. While this testimony of sufficiency is heavily disputed, the [c]ourt must view the testimony in the light most favorable to the Plaintiff and give it the benefit all reasonable inferences therefrom. With that in mind, this

2 Both Eddie Bogan, a friend of Hattie Brown, and Gerald Holcomb, the person who discovered Hattie Brown’s body, testified that there were no warning signs present at the intersection of Highway 245 and County Road 506.

9 [c]ourt finds that Plaintiff has established a sufficient basis for the element of causation in her negligence claim against MDOT.

The trial judge determined the same was sufficient to establish that Joe McGee Construction

Company provided legally insufficient notice, which satisfied the elements of breach and

causation. Unlike the majority, the trial judge recognized that, despite the defense challenge

to the testimony of the plaintiff’s witnesses, viewing the plaintiff’s evidence in her favor, she

established a prima facie case of negligence.

¶17. I disagree with the majority that “no competent summary judgment evidence in the

record before us supports that any breach of any duty on the part of the Department or

McGee Construction caused the collision.” Maj. Op. ¶ 10. Viewing the evidence in the light

most favorable to the plaintiff, the trial judge determined that enough evidence was presented

to survive summary judgment. I agree.

KING, P.J., JOINS THIS OPINION.