Rita M. Higginbotham v. Hill Brothers Construction Company, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-CA-00289-COA
RITA M. HIGGINBOTHAM, INDIVIDUALLY, AND
AS MOTHER AND PERSONAL REPRESENTATIVE
OF THE WRONGFUL DEATH BENEFICIARIES OF
HEATHER DAWN HIGGINBOTHAM, DECEASED
APPELLANT
v.
HILL BROTHERS CONSTRUCTION CO., INC.,
HILL BROTHERS CONSTRUCTION &
ENGINEERING CO., INC., AND ENDEVCO, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
1/5/2005
HON. ALBERT B. SMITH, III
TUNICA COUNTY CIRCUIT COURT
C. KENT HANEY
DANA J. SWAN
THOMAS W. SOUTHERLAND
MICHAEL N. WATTS
TODD BRITTON MURRAH
CIVIL - WRONGFUL DEATH
SUMMARY JUDGMENT AWARDED TO
DEFENDANTS
AFFIRMED - 12/12/2006
EN BANC
BARNES, J., FOR THE COURT:
¶1.
This wrongful death action arose from an automobile accident that claimed the life of Heather
Higginbotham on December 12, 1999. Rita Higginbotham, the administratrix of Heather’s estate,
appeals to this Court from the Tunica County Circuit Court’s grant of summary judgments in favor
of Hill Brothers Construction Co., Inc., Hill Brothers Construction & Engineering Co., Inc.
(collectively “Hill Brothers”), and Endevco, Inc. Finding no error by the trial court, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
Heather, traveling south from Memphis to Clarksdale, lost control of her vehicle on Highway
61 in Tunica County after hitting a puddle that had formed in the roadway and was thrown from the
vehicle when it subsequently flipped several times. Tina Read, an eyewitness to the accident,
testified in her affidavit that Heather began to hydroplane when she hit the puddle that was located
on what Read called both a “crossover” and “connecting road.” Read was referring to what is known
as a “temporary connector,” which diverts traffic from a four-lane roadway to a two-lane roadway.
At the time of the accident, two lanes were being added to Highway 61 to make it a four-lane
highway from Clarksdale to Memphis. North of the temporary connector involved in this fatal
accident, Highway 61 consisted of four lanes, but south of the accident scene there were still only
two lanes. The temporary connector on which the puddle accumulated was moving southbound
traffic from the two newly constructed lanes on the western side of the highway to the eastern two
lanes that made up the original highway. A second temporary connector that was under construction
at the time of the accident intersected with the existing temporary connector making an “X.” It was
designed to eventually move northbound traffic from the new western side of the highway to the old
lanes on the eastern side of the highway while the old portion of Highway 61 was being paved south
of where the accident occurred.
¶3.
In 1996 the Mississippi Department of Transportation (“MDOT”) hired Endevco to construct
an additional two lanes on Highway 61 from the point where Highway 4 intersects it down to the
location of the temporary connector. Endevco was the prime contractor responsible for the
construction of the temporary connector on which Heather hydroplaned. Endevco also repaved the
original two lanes on this stretch of the highway. Endevco completed the work according to
MDOT’s specifications and was given its “Final Maintenance Release” on December 8, 1998. After
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inspecting the work done by Endevco, MDOT also gave formal notice to the company on September
20, 1999, that the project was satisfactorily completed and officially accepted. Lehman-Roberts Co.
was the paving subcontractor for Endevco on the 1996 project and paved the temporary connector
that was completed during that project.
¶4.
In July of 1998, MDOT hired Lehman-Roberts as the primary contractor to pick up where
Endevco’s project ended and complete the construction of the two new lanes and repave the older
roadway 11.7 miles down to the place where Highway 49 intersects Highway 61 in Coahoma
County. Lehman-Roberts was responsible for the construction of the second temporary connector
that intersected with the original temporary connector that Endevco had built.
¶5.
Lehman-Roberts hired Hill Brothers Construction Co., primarily as a “subgrade”
subcontractor. Hill Brothers was also responsible for drainage in connection with the second
temporary connector. Although Higginbotham argues to the contrary, all evidence contained in the
record reflects that Hill Brothers had absolutely no responsibility for the first temporary connector,
which was the connector involved in Heather’s fatal accident: Hills Brother did not construct or
contribute in anyway to construction of the first temporary connector, and, the company was never
responsible for ongoing maintenance or drainage of that connector.
¶6.
Hill Brothers began working on the subgrade for the second temporary connector on
November 29, 1999. “Subgrade” is the dirt and other granular material that make up the bottom
layer of an asphalt road and establishes the grade or angle of the road. Hill Brothers constructed the
subgrade for the second temporary connector and then topped it with a sandy material. Hill Brothers
also bladed the clay gravel that Lehman-Roberts spread on top of the subgrade. By December 2, Hill
Brothers had completed the subgrade and blade work on the second temporary connector. The
record reflects that on December 3, a few Hill Brothers employees drained some water from the
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second connector as part of an effort to keep the connector in a condition to be paved. The second
temporary connector was ready to be paved by December 4, but was not paved by Lehman-Roberts
until January 11, 2000. According to the record, Hill Brothers did no work and was not otherwise
present at the construction site from December 4 until well after the fatal accident occurred on
December 12.
¶7.
On December 10, 2002, Rita Higginbotham, the administratrix of Heather’s estate, filed an
amended complaint in the Circuit Court of Tunica County for the wrongful death of her daughter
against multiple defendants, including Hill Brothers and Endevco. Higginbotham alleged that the
negligence of Hill Brothers, Endevco and other defendants involved in the road construction process
directly and proximately caused or contributed to the car wreck and eventual death of her daughter.
More specifically, Higginbotham alleged that the defendants were negligent in many respects
including: failure to properly drain the temporary connector, failure to properly construct the
temporary connector so as to prevent rainwater from ponding, and failure to warn the traveling
public about an extremely hazardous condition about which they had actual knowledge. Hill
Brothers and Endevco filed motions for summary judgment, which were granted by the trial court
on November 17, 2004. Aggrieved by the result, Higginbotham perfected this appeal.
STANDARD OF REVIEW
¶8.
A motion for summary judgment is properly granted “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.” M.R.C.P. 56(c). This Court reviews the grant or denial of summary judgment de
novo. Saucier ex. rel. Saucier v. Biloxi Reg'l Med. Ctr., 708 So. 2d 1351, 1354 (¶10) (Miss. 1998).
We will consider all of the evidence before the lower court in the light most favorable to the
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non-moving party. Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So. 2d 790, 794 (Miss.
1995). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So. 2d 1346, 1355 (Miss. 1990).
DISCUSSION
I. ENDEVCO’S SUMMARY JUDGMENT
¶9.
Endevco moved for summary judgment on the grounds that the “Final Maintenance Release”
and official notice of acceptance given to it by MDOT prior to the accident shields it from liability
to third parties.
Higginbotham disagrees and alleges that Endevco did not meet MDOT
specifications and that this negligence in constructing the connector caused ponding to occur on it
during periods of heavy rainfall. Endevco does not dispute the fact that there was ponding on the
connector it built, but instead argues that it constructed the connector using MDOT specifications
and that, if ponding occurred, then MDOT should be held liable for negligently designing the
connector. Endevco cites McKay v. Boyd Constr. Co., 571 So. 2d 916 (Miss. 1990), for the general
rule that a contractor is not liable for work accepted by a public agency after it is accepted. Id. at 925
(quoting Holmes v. T.M. Strider & Co., 186 Miss. 380, 397, 189 So. 518, 522 (1939)). However,
there is an exception to this general rule “in cases where the work is a nuisance per se, or where it
is turned over by the contractor in a manner so negligently defective as to be imminently dangerous
to third persons.” Id. We turn now to a discussion of McKay and its applicability to the case sub
judice.
¶10.
McKay was a truly tragic case.
Timothy McKay, a two-year-old boy, his mother,
grandmother, brother, and sister were all traveling on U.S. Highway 49 in the summer of 1967, when
their car began drifting slightly towards the left as the family approached the Strong River Crossing
in Simpson County. Id. at 918. The McKay’s automobile struck the concrete abutment, which was
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only twenty-three inches from the traveled portion of the road, and everyone except Timothy was
killed instantly. However, he did not walk away from the accident unscathed, but suffered severe
brain stem injuries which rendered him blind, incapable of speech, mentally incompetent, and totally
dependent upon others for his care. Id.
¶11.
In 1983, Timothy filed suit, through his guardian, alleging that the portion of the highway
approaching the bridge was negligently constructed by Boyd Construction, Inc. in that it was overly
pitched, causing vehicles to drift left from center toward the abutment. Further, Timothy argued that
Boyd was negligent in failing to provide guardrails for the abutment and in constructing the abutment
only twenty-three inches from the traversed portion of the road. Id. Boyd countered that it was not
hired to construct guardrails, all specifications for the work it was contracted to do came from the
Mississippi Highway Commission (“MHC”), which collected them from the Red Books published
by the American Association of State Highway Officials (“AASHO”), and after completion and
inspection of its work, the MHC granted Boyd a full, final release from all liability in 1963. Id. at
918-19. Boyd then filed a motion for summary judgment, claiming there were no genuine issues of
material fact. Id. at 917. Timothy’s response contained two affidavits, one asserting that it was not
appropriate for the Strong River Bridge to have only a twenty-three inch clearance and another
asserting that the bridge did not meet AASHO guidelines. After a hearing, summary judgment was
granted in favor of Boyd. Id. at 919.
¶12.
In affirming the lower court’s grant of summary judgment, the supreme court stated:
[A]fter the contractor has turned the work over and it has been accepted by
a public board or a commission as satisfactory, the contractor incurs no further
liability to third parties, by reason of the condition of the work, and that the
responsibility, if any, for maintaining or using it in its defective condition, is shifted
to the public board or commission. This rule, however, is subject to some
qualifications, among them the cases where the work is a nuisance per se, or where
it is turned over by the contractor in a manner so negligently defective as to be
imminently dangerous to third persons.
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Id. at 925 (quoting Holmes, 186 Miss at 397, 189 So. at 522). This language indicates that if the
public board or commission conducts a detailed inspection and gives final approval of the work
done, as evinced by a full and final release from all public liability or some similar declaration, then
the contractor shall be deemed to have complied with those specifications supplied by the
government agency that hired it to do the job. This interpretation of the language quoted above is
reinforced by the language itself, as well as a sense of logic and justice.
¶13.
First, the precedent itself states, “After the contractor has turned the work over and it has
been accepted by a public board or a commission as satisfactory, the contractor incurs no further
liability to third parties, by reason of the condition of the work . . . .” This makes no mention of the
contractor having to comply with specifications of any kind, only that the government employer
accepts the work as satisfactory, thus implying the contractor complied with given specifications.
Therefore, the test of whether or not the contractor satisfactorily complied with the specifications
is answered solely by the opinion of the government entity that provided it, evinced by its release.
This reasoning is in line with McKay, though the issues surrounding that case focused more on the
exceptions to the above rule rather than the rule itself. There, the supreme court was faced with one
affidavit from Boyd’s president stating that it had no part in the design of the bridge or its
specifications, implying that Boyd did in fact comply with those specifications, and a second counter
affidavit from Timothy stating that Boyd had not complied with AASHO regulations, which was the
source of the Highway Commission’s specifications. McKay, 571 So.2d at 919, 923. Though the
McKay court never explicitly found that Boyd complied with the Highway Commission’s
specifications, this finding is implicit in the following: “Notwithstanding the fact that Boyd had
nothing to do with the design, planning or specification of the project, its work was approved and
accepted by the highway commission.
Moreover, based upon its inspections, the highway
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commission provided a full and final release from liability to Boyd.” Id. at 925. From this point on
the McKay court discussed the negligence exception to the rule with the understanding that Boyd
had, in fact, “followed the guidelines and specifications provided by the highway commission.” Id.
¶14.
Secondly, logic would dictate that the government entity that sponsored the project, drew up
and approved the specifications, inspected the completed work, fulfilled its pecuniary obligations,
and provided the contractor with a full and final release of all further liability would stand in the best
position to determine whether or not its own specifications were met. Whether the contractor
followed given specifications would possibly be an issue if the contractor had not yet turned over
the work, and not yet been brought under the protection of the rule above, but that is not the case
here. Lastly, justice would also dictate that once a contractor receives a full and final release
absolving it from future liability arising from the project, and placing the liability with the
government entity that commissioned the work, some finality is deserving. Otherwise the release
the contractor receives is nothing more than a piece of paper. For these reasons, we find that the
issue of whether Endevco complied with MDOT’s specifications is a decided, and thus a moot, point
under the facts presented. That being said, we must now determine whether either of the exceptions
apply.
¶15.
The first exception concerns whether the work “is turned over by the contractor in a manner
so negligently defective as to be imminently dangerous to third persons.” In McKay, the supreme
court was faced with a bridge constructed with no guardrails and abutments less than two feet from
the traversed portion of the road. In addition, the supreme court had before it affidavits stating that
the bridge was neither built within federal guidelines nor proper from a traveler safety standpoint.
Given these dangers, the supreme court did not find them worthy of even a mention in regards to the
“imminently dangerous” exception. This lack of discussion is revealing on the viability of this
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exception in that the following hazards apparently did not rise to the level of imminent danger: (1)
the close proximity of the concrete abutments, (2) the lack of guardrails on those abutments, and (3)
the previous two facts considered in light of the fact that the speed limit on this stretch of Highway
49 was sixty-five miles per hour. We find that the facts of this case do not even approach the
apparent hazard that existed in McKay.
¶16.
Two cases that have utilized the “contractor immunity” rule, and its corresponding
exceptions, have found the question of whether the contractor turned over the work in a manner so
negligently defective so as to be imminently dangerous to third persons to be a question for the jury.
However, the facts of this case do not warrant the same treatment. In Holmes, a contractor was hired
to rebuild and install an extra steel span across a bridge in Claiborne County. Holmes, 186 Miss. at
390, 189 So. at 520. After the contractor removed the hand or guardrail, wheel guard, posts, and
other essential items in preparation to replace them, the State Highway Department instructed the
contractor cease all work and replace those items so that the bridge could be reopened to the public.
Id. at 390-91, 189 So. at 520. The posts were put back, some bolted as before, some only nailed, but
were spaced nineteen and a half feet apart, an increase from the seven or eight feet apart from where
the posts were originally placed. The hand or guardrail was attached to the posts, and no further
work was done on the guardrail until the accident that brought rise to the suit. Subsequently, the
plaintiff/appellant was permanently injured when the car in which she was riding hit the guardrail
and, after it gave way, fell off the bridge. Id., 189 So. at 520. The court reversed the trial court’s
grant of a peremptory instruction in favor of the contractor and ordered a new trial as to negligence
by the contractor. Id. at 397, 189 So. at 523.
¶17.
A second case in which the question of whether the exception applied was Monroe County
Elec. Power Ass’n v. Pace, 461 So.2d 739 (Miss. 1984). In Pace, a contractor was hired by a private
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business to build a molt press shed, and was instructed where and how to build the shed. Id. at 742.
It so happened that the construction site for the shed was under high voltage power lines, which an
employee of the private business, while working on the roof of the shed, came into contact with two
years after its completion. The question of whether the contractor’s action of building the shed
underneath the power lines came within the exception went to the jury and it returned a verdict for
the injured employee. Id. at 741. The supreme court simply affirmed the jury verdict. Id. at 748.
¶18.
While these cases demonstrate that whether the exception applies may be a question of fact
for the jury, we find that when assuming all facts favorable to the plaintiff in this case are true, the
legal question is, was the connector “so negligently defective as to be imminently dangerous to third
persons?” The record shows that Heather’s fatal accident occurred on December 12, 1999. It had
been raining all day. In fact, it had been raining the previous two days. In total, over the two days
previous and the day of the accident, there had been three and a half inches of rainfall, two of which
occurred the day Heather’s accident occurred. With that much precipitation some amount of pooling
or ponding must reasonably be expected by the motoring public. While not in the record, anyone
who has driven on the streets, highways, and interstates of the State of Mississippi during, or
immediately after, a rainstorm will see, and expect, pooling to some extent. It is not a totally
unexpected event after it rains. Newspapers are replete with stories of motorists hydroplaning off
state and county roadways. Temporary ponding of rainwater after a two inch rainfall on the
connector, cannot be a condition so negligently defective as to be imminently dangerous to third
persons so as to fall under the exception above. Imminently implies immediate, and the condition
of the road in no way created an immediate danger. Rainwater ponding on the roadway is only
dangerous at an unreasonably high rate of speed under the then existing conditions. This is not the
case of erecting a building in which third persons may work on the roof dangerously close to high
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voltage power lines, as was the case in Pace. Neither is this the case of removing the safety features
from a bridge, only to partially replace some of them in such a way so as to create a danger to any
person who utilizes the bridge. The case before us involves pooling of water on a connector after
three days of rain. Given the condition of most, if not all, of the roadways in this state, those facts
can hardly be considered as imminently dangerous.
¶19.
The second exception that must be discussed is whether the work constituted a nuisance per
se. According to the court in McKay, “as distinguished from negligence liability, liability in
nuisance is predicated upon an unreasonable injury rather than upon unreasonable conduct.” McKay,
571 So.2d at 921 (quoting 58 Am. Jur. 2d Nuisances §§ 9-11 (1989)). “Any permanent, fixed, or
stationary object or impediment, as distinguished from a mere temporary obstruction incidental to
a lawful use of the way, which unreasonably and unnecessarily interferes with public travel or which
endangers the safety of travelers constitutes a public nuisance per se.” Id. (quoting 39 Am. Jur. 2d
Highways, Streets, and Bridges § 274 (1968)).
¶20.
First of all, while Heather Higginbotham’s fatal automobile accident was without question
a tragedy, given the multiple days of rain and the corresponding surface conditions of the connector,
an accident and subsequent injury can hardly be said to be unreasonable. Secondly, the “object” in
question, ponding of rainwater, does not lend itself to classification as a public nuisance per se. In
addition to the fact that ponding is not a “permanent, fixed, or stationary object,” but only temporary
by its very nature, an act of God cannot qualify as a nuisance, least not one for which Endevco
should be held liable. The connector itself, in no way, restricted travel or posed any greater risk than
any other average highway, street, or road in this state would after three and a half inches of rainfall.
Therefore, we cannot find a genuine issue of material fact that either of the exceptions to contractor
immunity applies to the instant case.
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II. HILL BROTHERS SUMMARY JUDGMENT
¶21.
The fact that Hill Brothers did not design or contribute in any way to the construction of the
first temporary connector is not disputed. Consequently, any claim based on negligent design or
construction is clearly inapplicable. With respect to Hill Brothers, Higginbotham argues on appeal
that the company was negligent by failing to take affirmative action either to remedy or warn of the
allegedly defective condition. Hill Brothers maintains that it cannot be held liable for the alleged
wrongful death of Higginbotham’s daughter because it was not responsible for the construction,
maintenance or drainage of the original temporary connecting road. We find the argument advanced
by Hill Brothers to be persuasive.
¶22.
Higginbotham asserts on appeal that Hill Brothers “should have taken steps to correct [the]
drainage problem,” a problem which she claims contributed to the fatal accident. To support this
contention, Higginbotham argues that Hill Brothers’s 30(b)(6) representative, Danny Wilbanks,
admitted in his deposition that Hill Brothers was responsible for the drainage of the temporary
connector and the surrounding area. We find this to be a misinterpretation of the record as Wilbanks,
in his deposition, specifically stated that Hill Brothers was responsible for the drainage of the
subgrade it constructed for the second temporary connector. Wilbanks’s entire deposition testimony
was fairly clear that Hill Brothers was not responsible for drainage on or around the original
connector. Wilbanks also stated in a subsequent affidavit that Hill Brothers was only responsible
for drainage on its subgrade work. Moreover, according to the testimony of Lehman-Roberts’s
representative, Willy DeLoach, Hill Brothers had no responsibilities whatsoever with regard to the
original temporary connector. Higginbotham focuses on one line from Wilbanks’s deposition, while
ignoring all of his other testimony about drainage and his subsequent affidavit, and tries to turn that
one line into an admission of responsibility for drainage on and around the first temporary
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connector. This is not a genuine factual issue; taken in context, the only reasonable interpretation
of Wilbanks’s testimony is that Hill Brothers was responsible only for drainage on the subgrade of
the second temporary connector.
A. WHETHER HILL BROTHERS HAD AN AFFIRMATIVE DUTY TO TAKE REMEDIAL
ACTION
¶23.
Having failed to establish that Hill Brothers had any ongoing responsibility for the first
temporary connector, Higginbotham is left only with her contention “that there was considerable
construction by Hill Brothers in the very same area” to establish the company’s affirmative duty to
take remedial action. What is lacking in Higginbotham’s argument, however, is any arguable basis
for Hill Brothers’s duty in light of the fact that Hill Brothers had no responsibility for the first
temporary connector. Apparently, Higginbotham would have this Court place an affirmative duty
upon Hill Brothers simply because the company was working in the area of the first temporary
connector, and allegedly had notice of its propensity to accumulate water during periods of rain.
Higginbotham has produced no authority which would place an affirmative duty upon Hill Brothers
under the facts of this case.1 To the contrary, our own independent research reveals that the
Mississippi Supreme Court has expressly found no duty to warn under analogous circumstances.
¶24.
In Jones v. James Reeves Contractors, Inc., 701 So. 2d 774 (Miss. 1997), our supreme court
acknowledged Mississippi’s adherence to section 314 of the Restatement (Second) of Torts, which
1
Higginbotham does not point out in her brief the source of the duty that Hill Brothers owed
to the decedent. According to this Court, “It is well-settled law in this state that [the plaintiff] ha[s]
the burden to show the following by a preponderance of the evidence: (a) a definable duty . . . .”
White v. Rainbow Casino-Vicksburg P’ship, L.P., 910 So. 2d 713, 718 (¶15) (Miss. Ct. App. 2005).
Higginbotham does not assert that Hill Brothers’s duty is based on premises liability, as Hill Brothers
did not own the subject property, nor does she point out any other circumstances that would remove
this case from the general rule stated in section 314 of the Restatement (Second) of Torts, discussed
below.
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states that “the fact that an actor realizes or should realize that action on his part is necessary for
another’s aid or protection does not of itself impose upon him a duty to take such action.” Id. at 784.
This principle dictates that absent certain particular circumstances, there is no affirmative duty to aid
or protect others. See, e.g., Evans v. United States, 883 F. Supp. 124 (S. D. Miss. 1995) (construing
Mississippi law in holding that doctor did not have duty to warn members of patient’s family of
patient’s threats of violence); Long v. Patterson, 198 Miss. 554, 22 So. 2d 490 (1945) (citing
Restatement, Vol. 2 Torts, section 314 to support decision that minor, a passenger, did not have duty
to warn tractor operator of oncoming traffic); White v. Rainbow Casino-Vicksburg P’ship, L.P., 910
So. 2d 713, 719 (¶19) (Miss. Ct. App. 2005) (declining to establish duty of casino to render aid to
patron in the absence of authority by Mississippi Supreme Court or by legislature); Cooper v.
Missey, 881 So. 2d 889, 893 (¶¶12-13) (Miss. Ct. App. 2004) (finding that there is no case law and
no statute to establish social host’s affirmative duty to render aid to a guest). Consequently, a finding
that Hill Brothers had no responsibility for the first temporary connector precludes a finding that Hill
Brothers had a duty to warn of or remedy any dangerous condition–even assuming Hill Brothers
knew of the condition.
¶25.
In Jones, the issue was “whether there was a common law duty to warn on the part of the
architects based upon their prior knowledge of the dangerous soil conditions.” Jones, 701 So. 2d
at 784. There, the defendant architects were aware of the dangerous condition of the soil but did not
warn construction crews of this condition. As a result, three men were trapped, suffocated, and
killed when the walls of an excavation site caved in. Id. at 776-77. The Jones court stated that
“[o]ne articulable reason in favor of holding the architect liable is that the status of the professional
architect confers special duties upon him to warn the contractor and/or the contractor's employees
due to the foreseeability of harm if no such warnings are given.” Id. at 784 (citing Tarasoff v.
14
Regents of the Univ. of California, 551 P.2d 334 (Cal. 1975) (psychiatrist treating deranged patient
held liable to victim of patient's assault where doctor failed to warn victim of patient's ill intent
toward him). Stated differently, “because the architect knows of the danger and is in a position to
take reasonable steps to prevent the harm, he must give a warning that would allow those in control
to prevent harm to the worker.” Id. Relying on section 314 of the Restatement (Second) of Torts,
however, the Jones court expressly rejected this argument and found that the architects did not have
a duty to warn of the dangerous soil condition. Id.
¶26.
The supreme court in Jones held that, for the architects to have an affirmative duty, the
architects would have had to take on the responsibility, “by contract or conduct,” to maintain the
safety of the construction project. Id. at 785-86. The holding in Jones and the application of section
314 of the Restatement (Second) of Torts leaves no alternative conclusion but that Hill Brothers had
no affirmative duty with respect to the first temporary connector’s propensity to accumulate water.
There is simply no basis in law or fact to impose such a duty upon Hill Brothers. Hill Brothers did
not own or occupy the connector, and there is no evidence that Hill Brothers undertook “by contract
or conduct” to maintain the safety of the connector. To the contrary, the record clearly establishes
that Hill Brothers was responsible only for drainage on the subgrade of the second temporary
connector. Also, as will be shown, there is no evidence that the company either created or
exacerbated the alleged defect. Consequently, Hill Brothers did not have an affirmative duty in this
instance and therefore could not have breached any duty. Without proof of these necessary tort
elements, Higginbotham failed to provide sufficient proof to withstand summary judgment.
B. WHETHER HILL BROTHERS HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE
PONDING ON THE FIRST TEMPORARY CONNECTOR
15
¶27.
Even assuming that Hill Brothers had an affirmative duty with respect to the first temporary
connector, the record does not contain sufficient evidence to demonstrate that Hill Brothers had
actual or constructive notice of the allegedly dangerous condition. While we acknowledge that
circumstantial evidence is sufficient in many instances to create a factual dispute as to the proffered
allegation, a jury would have to make very tenuous inferences, based on the circumstantial evidence
contained in the record, to conclude that Hill Brothers had notice of the ponding on the first
temporary connector prior to December 12.
¶28.
According to our supreme court, the “negligence of the defendant and notice to him may be
found from circumstantial evidence of adequate probative value.”
Mississippi Winn-Dixie
Supermarkets v. Hughes, 247 Miss. 575, 584, 156 So. 2d 734, 736 (1963). Moreover, circumstantial
evidence may be utilized to prove that a defective condition “was one of which the proprietor either
had actual notice or the condition existed for such a length of time that, in the exercise of reasonable
care, he should have known of it.” Id. “However, the circumstantial evidence must be such that it
creates a legitimate inference that places it beyond conjecture.” Herrington v. Leaf River Forest
Prods., 733 So. 2d 774, 777 (¶8) (Miss. 1999) (citing Hardy v. K Mart Corp., 669 So. 2d 34, 38
(Miss. 1996)). While we acknowledge that a genuine factual dispute exists as to whether there was
ponding on the first temporary connector, we find that there is no genuine factual dispute as to
whether Hill Brothers had actual or constructive knowledge of the ponding.
1. Actual notice
¶29.
Sammy Richardson, Hill Brothers’s supervisor in charge of the second temporary connector,
testified through affidavit that neither he nor any of his crew members ever saw any accumulation
of water on the first temporary connector. Danny Wilbanks, Hill Brothers’s 30(b)(6) representative,
16
also testified in his deposition that he did not remember seeing any ponding on the first temporary
connector. This is the only direct evidence of what Hill Brothers did or did not have notice.
¶30.
As for circumstantial evidence, Tina Read, a passing motorist, testified by way of affidavit
that she had “observed water on this section of the road on numerous occasions after it rained” and
even stated that “every time it rained, water would stand on that road, or on that connecting road.”
While Read’s testimony creates a factual dispute as to whether there was ponding on the connector,
the mere existence of this fact–that the connector accumulated water when it rained–does not create
a “legitimate inference . . . beyond conjecture” that Hill Brothers had notice of the ponding.
Evidence contained in the record reflects that Hill Brothers generally did not work during periods
of rain and wet soil conditions. Particularly, Hill Brothers did no work at the construction site from
December 4 until well after the accident occurred on December 12, so Hill Brothers would not have
been in a position to notice any ponding between these dates.
¶31.
Although the record does establish that at least some Hill Brothers employees were at the
construction site for very limited work on days when it had rained, the record also reflects that Hill
Brothers had been working on an approximately 800-foot stretch of roadway prior to the fatal
accident. There simply is nothing in the record to establish that Hill Brothers was in a position to
witness the alleged ponding of the first temporary connector at any time prior to December 12. The
inferential chain is simply much too weak to create a factual dispute based upon Read’s affidavit,
especially in light of the direct testimony of Hill Brothers’s representatives that none of Hill
Brothers’s employees had seen any ponding on the first connector, MDOT representative Ulmer
Bullock’s deposition testimony to the effect that operations generally ceased during periods of rain
and wet soil conditions and the undisputed MDOT diary entries reflecting Hill Brothers’s absence
from the construction area during periods of rain between December 4 and December 12, 1999.
17
¶32.
Similarly unpersuasive is the fact that on February 11, 2000, the MDOT inspector’s diary
indicated that Lehman-Roberts, the general contractor responsible for the ongoing project, reworked
the median near the first temporary connector to alleviate ponding next to the temporary connector.
This fact, while certainly indicative of a problem with the drainage in the median right next to the
original connector, does not create a legitimate inference of notice to Hill Brothers because: (1) this
remedial work was performed two months after the fatal accident and has no bearing on whether there
was notice prior to the accident, and (2) even if notice could somehow be attributed to LehmanRoberts based on this remedial work, there is no factual or legal basis to impute this notice to Hill
Brothers, a subcontractor.
2. Constructive notice
¶33.
As to whether Hill Brothers had constructive notice of the condition of the connector, there
is evidence which tends to prove that the ponding condition existed for quite some time prior to
December 12, 1999. The affidavit of Read is one such source of evidence. However, for Hill
Brothers to be charged with constructive knowledge, a jury would have to find that “the condition
existed for such a length of time that, in the exercise of reasonable care, [Hill Brothers] should have
known of it.” Hughes, 247 Miss. at 584, 156 So. 2d at 736.
¶34.
Constructive notice does not require any direct or circumstantial evidence of actual notice, but
is instead a mechanism whereby the consequences of notice may be imposed without any proof that
the accused had actual notice. Constructive notice may be asserted in situations where the accused
has an affirmative duty to stay informed of the conditions associated with a particular piece of
property. See id. In light of our previous finding that Hill Brothers had no responsibility for the first
temporary connector, we find that the company could not validly be charged with constructive notice,
18
as it would be inconsistent to assert that Hill Brothers should have been aware of an allegedly
defective condition on a piece of property for which it had absolutely no responsibility.
3. Other evidence of notice
¶35.
While an appellant certainly has a duty to bring to the Court’s attention specific facts to
support his argument, we are mindful of our duty to conduct a de novo examination of the record for
any evidence that would preclude summary judgment. Consequently, we have examined the entire
record for any evidence which would preclude summary judgment in favor of Hill Brothers. The
following is a discussion of evidence that was not pointed out by Higginbotham, but which
nonetheless might be construed as implying that Hill Brothers had notice of the ponding on the first
temporary connector.
¶36.
First, the December 3, 1999 foreman’s report prepared by Prophet Giles, one of Lehman-
Roberts’s asphalt foremen, states that some Lehman-Roberts employees drained water off of a
crossover. In his deposition, and pursuant to some confusion as to the difference between a
“crossover” and “connector,” Giles drew a diagram showing that a crossover is completely different
from a connector, and testified that the work performed on December 3 involved draining water from
a crossover “where we [were] working down the road . . . so we could lay asphalt on it.”
Furthermore, Giles specifically denied having to drain water from any connector. Even assuming,
arguendo, that notice by Lehman-Roberts may be imputed to Hill Brothers, this evidence does not
establish notice of anything other than the accumulation of water on an unrelated, ongoing
construction project.
¶37.
Second, the December 3, 1999 Hill Brothers time sheet lists “Drain water on conn.” as the
work performed by Hill Brothers on that date. This entry loses all of its inferential value when read
19
in light of Danny Wilbanks’s deposition testimony. In his testimony, Wilbanks explained that the
water drainage performed on December 3 was performed on the “connectors”2 in an effort to get pools
of water off of the clay gravel. According to Wilbanks, this was “standard practice, to get it off of
the clay gravel.” Both the Lehman-Roberts and Hill Brothers work records, along with the testimony
of Giles and Wilbanks, mention water drainage in connection with ongoing work. We find that the
propensity for water to accumulate on an unfinished, ongoing construction project does not in any
way give notice that water is likely to accumulate on a section of pavement that, at the time of the
accident and preceding, was complete and in all respects accepted by MDOT as safe for highway
traffic.
¶38.
Third, Jackie Tucker, a passenger in the decedent’s vehicle at the time of the accident, testified
in his deposition that as he was passing by the first temporary connector the day after the accident,
he noticed “guys out there on backhoes digging trenches off the road to let the water run off.”
Nowhere does Tucker identify these “guys” as being employees of Hill Brothers. Moreover, Hill
Brothers’s time sheets, as well as MDOT’s diary entries, reflect that Hill Brothers performed no work
on this project between December 4, 1999 and January 17, 2000. Consequently, even if Rule 407 of
the Mississippi Rules of Evidence did not make evidence of subsequent remedial measures
2
The record reflects that the particular highway project in question spanned more than eleven
miles. There were three temporary connectors discussed or mentioned throughout the record. There
were two connectors mentioned on the north end of the approximately eleven mile project: the old
connector where the accident took place (first temporary connector), and the new connector on which
Hill Brothers was performing the subgrade work (second temporary connector). In addition to these
two connectors, Hill Brothers was also performing subgrade work on a connector on the south end
of the project. This connector was several miles south of the north connectors. When Wilbanks
refers to “connectors” in his deposition testimony, he is referring to the new connector on the north
end of the project (second temporary connector) and the new connector on the south end of the
project. Wilbanks expressly stated that Hill Brothers had no responsibility for building or
maintaining the old north connector (first temporary connector), which is where the fatal accident
took place.
20
inadmissable to prove negligence, Tucker’s testimony is insufficient to create a genuine issue as to
Hill Brothers’s notice prior to the accident. These “guys” could have been employees of LehmanRoberts, MDOT, or Tunica County, and the remedial measures could have been performed in
response to the accident itself rather than in response to notice had prior to the accident.
¶39.
Finding no direct evidence of Hill Brothers’s actual or constructive notice and no
“circumstantial evidence of adequate probative value” to establish same, we find that Higginbotham
failed to present sufficient evidence of Hill Brothers’s notice.
C. WHETHER HILL BROTHERS CONTRIBUTED TO OR EXACERBATED THE
ALLEGEDLY DEFECTIVE CONDITION
¶40.
Finally, although Higginbotham did not include an argument or any authority with respect to
the issue of whether Hill Brothers negligently caused or exacerbated the allegedly defective condition
of the first temporary connector, we will briefly address this issue.
¶41.
While there is ample evidence that Hill Brothers was working in the same area as the first
temporary connector, nowhere does Higginbotham point out any negligent activity on the part of Hill
Brothers that may have created or contributed to the alleged ponding on the first temporary connector.
In fact, neither Higginbotham’s summary judgment response nor her appellate brief assert that Hill
Brothers was responsible for creating or contributing to the ponding. Instead, Higginbotham’s entire
argument with respect to Hill Brothers’s negligence is that Hill Brothers failed to take remedial
action–in the form of a warning or remedying the alleged drainage problem–when, according to
Higginbotham, the company had a duty to do so.
¶42.
Even if we were to entertain an argument that Higginbotham did not advance in response to
summary judgment and does not advance on appeal, the record contains no evidence to indicate that
Hill Brothers either created or contributed to the first temporary connector’s propensity to pond during
21
periods of rain. First of all, it is not disputed that Hill Brothers did not contribute in any way to the
construction of the first temporary connector, either as contractor or subcontractor. This fact absolves
Hill Brothers of responsibility for any defects that existed at the time the first temporary connector
was designed and constructed. This undisputed fact becomes even more probative in light of the
affidavit of Tina Read, who testified that she traveled this “section of Highway 61 where the accident
occurred . . . at least once a week from 1990 to 2003,” and that “every time it rained, water would
stand on that road, or on that connecting road,” indicating that the ponding condition existed on the
first temporary connector prior to Hill Brothers becoming a subcontractor on the second temporary
connector. Additionally, Ulmer Bullock, III, the MDOT resident engineer associated with this
particular construction project, testified in his deposition that “I’m not aware of ponding. I can’t say
as to what would have or wouldn’t have caused it,” Bullock’s testimony therefore in no way points
to any negligent conduct by Hill Brothers. The simple fact that Hill Brothers was performing work
in the area, regardless of what that work entailed, is simply insufficient to create a factual dispute as
to whether Hill Brothers created or exacerbated the allegedly defective condition.
¶43.
Absent specific allegations and specific and detailed proof to support those allegations, there
is no indication of which aspect of Hill Brothers’s work was negligently performed, much less any
evidence that would causally link any such negligence to the creation or exacerbation of the ponding
on the first temporary connector. According to Danny Wilbanks, Hill Brothers area manager and
30(b)(6) representative, Hill Brothers “graded the opposite connector and placed the clay gravel for
Lehman-Roberts. We placed the dirt by contract. We bladed their clay gravel when they leased the
grader from us.” Additionally, when asked whether or not any dirt had been hauled in, Wilbanks
admitted that Hill Brothers had “hauled a little bar in.” When asked whether Hill Brothers hauled any
dirt “in there,” Wiley Deloach, Lehman-Roberts 30(b)(6) representative testified that “I can’t answer
22
that.” Deloach also testified that “Hill Brothers handled everything with the grades” on the second
temporary connector and that Hill Brothers was responsible for drainage only on the second
connector. While it is within the realm of possibility that some of these activities were negligently
performed and may have somehow contributed to the ponding on the first temporary connector, there
is absolutely no evidence to indicate which activity was negligently performed, why such activity was
negligent, nor how such negligence contributed to the ponding. Absent specific and detailed proof
of these elements, there is no factual dispute as to this issue.
CONCLUSION
¶44.
As to Endevco, we find that MDOT’s acceptance of the company’s work on the first
temporary connector along with the full and final release given to Endevco effectively shifted the
liability for the use and maintenance of the first temporary connector from Endevco to MDOT.
Furthermore, neither of the two exceptions discussed in McKay apply so as to shift liability back to
Endevco. We therefore find that the trial court properly granted summary judgment to Endevco.
¶45.
With respect to Hill Brothers, we find that the company did not have a duty to warn of or
remedy the allegedly dangerous condition posed by the first temporary connector. As we have
concluded in a recent opinion, “This Court, while saddened by the loss of . . . life, cannot . . . stretch
the duty of [a defendant] . . . to include a duty which our supreme court and Legislature have not
deemed proper to establish.” White, 910 So. 2d at 719 (¶19). Nevertheless, even if an affirmative
duty did exist, the record contains insufficient evidence to create a factual dispute as to whether Hill
Brothers had notice of the ponding on the connector prior to December 12. The inferences necessary
to make such a conclusion are much too tenuous and would require the use of speculation and
conjecture. This type of circumstantial evidence is simply not sufficient to defeat a motion for
summary judgment. Lastly, although the argument was not advanced by Higginbotham at summary
23
judgment or on appeal, we find that there is no evidence contained in the record to suggest that Hill
Brothers created or contributed to the allegedly defective condition of the first temporary connector.
Accordingly, we affirm the summary judgment in favor of Endevco as well as the summary judgment
in favor of Hill Brothers.
¶46. THE JUDGMENT OF THE TUNICA COUNTY CIRCUIT COURT IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE AND
ROBERTS, JJ., CONCUR. LEE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
KING, C.J., NOT PARTICIPATING.
LEE, P.J., DISSENTING:
¶47.
With respect to the majority, I find that genuine issues of material fact existed in regards to
Endevco and Hill Brothers. Therefore, I dissent.
¶48.
According to MDOT, the original temporary connector was constructed according to MDOT
specifications and there was never any problem with ponding on it. Higginbotham disagrees and
alleges that Endevco did not meet the specifications and that this negligence in constructing the
connector caused ponding to occur on it during periods of heavy rainfall. Building a road, even a
temporary road, where ponding occurs every time it rains a significant amount constitutes work “so
negligently defective as to be imminently dangerous to third persons.” McKay ex rel. McKay v. Boyd
Constr. Co., 571 So. 2d 916, 925 (Miss. 1990). Endevco does not dispute the fact that there was
ponding on the connector it built, but instead argues that it constructed the connector using MDOT
specifications and that, if ponding occurred, then MDOT should be held liable for negligently
designing the connector.
24
¶49.
The “genuine issue of material fact” between Higginbotham and Endevco is whether Endevco
constructed the original temporary connector according to MDOT specifications. This factual issue
is raised by the deposition testimony of Ulmer Bullock, III, the senior engineer supervising the
Highway 61 construction project for MDOT. Bullock stated clearly in his deposition that any road
constructed according to MDOT specifications would not have any ponding on it. Furthermore, he
said that any road where ponding occurred would be unacceptable to MDOT. This factual issue is
also raised by the affidavit of Tina Read in which she claims she saw puddles on the original
temporary connector at the time of the accident and on several other occasions. The manner in which
the fatal accident at the center of this case occurred also strongly suggests that hydroplaning was the
cause of the accident: a one-car accident on a curving temporary connector during a time of
significant precipitation. All of this creates a reasonable doubt regarding whether Endevco was
negligent in complying with MDOT’s specifications. This factual issue is material as well: whether
or not Endevco constructed the connector according to specifications goes directly to its liability for
the alleged wrongful death of Higginbotham’s daughter.
¶50.
In regards to Hill Brothers, the contract diary prepared by the MDOT inspector on Februrary
11, 2000, which noted that Lehman-Roberts reworked the median drainage north of the original
temporary connector to prevent water from ponding next to the temporary connector, also creates
doubt about claims that no ponding was ever observed on the temporary connector. Although the
diary mentions ponding next to, not on, the connector, it still leaves the impression that there was
some problem with the drainage in the median right next to the original connector. If there was a
problem with drainage in that part of the median, then a pool of water trapped in that part of the
median, during a period of heavy rainfall, could have increased in size and crept up onto the original
temporary connector. The majority contends that substantial rainfall which creates ponding on
25
roadways is a common occurrence such that any accident resulting therefrom “can hardly be said to
be unreasonable.” However, the way in which Heather’s accident occurred gives one the sense that
this accident was caused by water that had collected on the temporary connector. There is no
evidence or allegation that Heather was driving recklessly at an unreasonably high rate of speed as
the majority implies.
¶51.
Giving Higginbotham the benefit of all reasonable doubts, there is reason to believe that there
was ponding on the original temporary connector on December 3, when it rained one and fourth tenth
inches, and that the Hill Brothers employees draining water off the bladed gravel on the other
connector that day observed this ponding. A Hill Brothers employee could have also observed
ponding on December 4 when it rained eight tenths of an inch. This factual dispute is genuine
because this evidence creates a reasonable doubt about whether Hill Brothers was on notice about the
alleged ponding. The factual issue is material because it will resolve the issue of Hill Brothers’s
liability for the death of Higginbotham’s daughter.
¶52.
Finding that the motions for summary judgment granted in favor of Endevco and Hill Brothers
were premature, I would reverse and remand for a trial.
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