Glenn "Trey" Martin, III v. Franklin County, Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01581-COA
GLENN “TREY” MARTIN III
APPELLANT
v.
FRANKLIN COUNTY, MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
08/21/2008
HON. FORREST A. JOHNSON, JR.
FRANKLIN COUNTY CIRCUIT COURT
JAMES KEVIN RUNDLETT
EDWARD J. CURRIE, JR.
LANE B. REED
JEREMY TRISTAN HUTTO
CIVIL - PERSONAL INJURY
DISMISSED DEFENDANT FRANKLIN
COUNTY, MISSISSIPPI WITH PREJUDICE
AFFIRMED-03/09/2010
BEFORE KING, C.J., ISHEE AND MAXWELL, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Following an all-terrain vehicle (ATV) accident on a bridge located on Garden City
Road in Franklin County, Mississippi, Glen “Trey” Martin sustained head and other injuries.
Pursuant to the Mississippi Tort Claims Act, Martin filed a complaint in the Franklin County
Circuit Court alleging that Franklin County (the County) was negligent in failing to properly
maintain Garden City Road and the bridge, in failing to warn of the conditions, and by
negligently constructing the dirt embankments that were placed before the entrance to the
bridge. The County subsequently filed a motion to dismiss Martin’s complaint. The trial
court found in favor of the County and dismissed Martin’s case with prejudice. Feeling
aggrieved, Martin now appeals that judgment and asserts the following allegations of error:
I.
The trial court erred by finding that Franklin County adequately warned
the plaintiff of the extremely dangerous condition of the bridge at issue.
II.
The trial court erred in ruling that the sole proximate cause of Martin’s
injuries was Martin and the other individuals’ decision to proceed past
the dirt piles.
III.
The trial court erred in failing to levy sanctions on defense counsel after
learning of extreme unethical conduct during trial.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On May 29, 2004 Martin was riding as a passenger on an ATV on Garden City Road
in Franklin County. According to Martin, Jennifer Allen was the driver of the ATV. The
ATV fell off of an embankment on Garden City Road near the Wells Creek Bridge (the
bridge) when the bridge abutment collapsed. The bridge was constructed and maintained by
the County.
¶3.
In February 2004, the County issued an emergency order to close the bridge due to
heavy rains which were causing severe bank erosion. According to testimony at trial, the
County placed two warning signs on Garden City Road to warn traffic that the bridge was
closed. One sign was located approximately 1,500 feet away from the bridge and a “Bridge
Out” sign was located approximately thirty to forty feet before the entrance to the bridge.
The warning signs were placed by Franklin County officials on the Adams County side of
the bridge which was the direction from which Martin and Allen approached the bridge.
Additionally, the County erected two large dirt berms approximately four feet in height
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which stretched the entire width of the roadway. As further warning, the County placed
orange reflective ribbon in front of the first dirt berm. The County also routinely visited the
bridge to ensure that the warning signs and reflective tape were still in place.
¶4.
On the evening of the accident, Martin, Allen, Martin’s friend David Hetzinger, and
the children of Martin and Allen arrived at a deer camp in Franklin County and unloaded
their gear and ATVs. Sometime after midnight, Martin, Allen, Hetzinger and Martin’s stepson Jon Michael Eschete decided to go for a ride on the ATVs. Martin said he and Allen
rode together on one ATV with Allen driving. Hetzinger and Eschete each drove separate
ATVs. The group rode north on Garden City Road and approached the bridge.
¶5.
According to Hetzinger’s testimony, he crossed the bridge first with no problem.
Hetzinger testified that he saw a small hump of dirt in front of the bridge, but that he did not
see any warning signs. Allen crossed over the dirt hump next and as she did so, the ground
connecting the road and the bridge collapsed. Martin and Allen fell approximately 30 feet
and crashed into the bed of the creek. Allen died as a result of the accident and Martin
suffered head and other injuries.
¶6.
Doreen Norris, an EMT with Franklin Ambulance Service, was one of the first
responders to arrive on the scene of the accident. Norris testified that she arrived at the scene
on the Franklin County side of the bridge. Norris testified that once she arrived at the scene
she walked around piles of dirt and saw a “Bridge Out” sign on the Adams County side of
the bridge – the same side from which Martin and the group had approached the bridge prior
to the accident. As a part of her job, Norris spoke with Martin at the accident scene. She
testified that Martin appeared lucid following the accident, but there was a very strong odor
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of alcohol coming from him. Norris also testified that Hetzinger told her that the group had
been out on Garden City Road “all night jumping the berm.” 1 Norris testified that Hetzinger
told her that the group knew the bridge was out and that they had to build the dirt up to jump
the berms.
Franklin County Sheriff James Newman testified that Hetzinger told the
investigating officers at the accident scene that he saw a dirt mound or berm across the bridge
entry and that Martin told him how to drive around it and then traverse a narrow dirt pathway
onto the bridge.
¶7.
Dr. Frederick Carlton was offered as a toxicology expert. He reviewed the toxicology
reports on Martin and Allen following the accident. According to the toxicology report,
Allen’s blood alcohol level (BAL) was taken at 7:05 a.m. the morning following the accident.
Her BAL at that time was .112. Based on his review of the reports, Dr. Carlton concluded
that at the time of the accident, Allen’s BAL was .19. Martin’s BAL following the accident
was .13.2 Dr. Carlton concluded that both Allen and Martin were legally intoxicated at the
time of the accident and that legal intoxication can lead a person to have a “reduced
perception of danger as well as a reduced reaction time and impaired judgment.”
STANDARD OF REVIEW
¶8.
A case brought under the Mississippi Tort Claims Act is tried without a jury. Miss.
Code Ann. § 11-46-13(1) (Supp. 2009). A circuit court judge sitting without a jury is
1
Evidence from the record shows that the group left for their ATV ride shortly after
midnight and that the accident happened around 3:00 a.m. The accident scene was only
approximately a mile away, however Martin testified that group went directly to the bridge
and made no stops along the way.
2
In 2004 under Mississippi law, the legal blood alcohol limit was .08.
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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).
However, questions of law are reviewed de novo. Id. “The findings of the trial judge 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 (¶10) (Miss. Ct. App. 2003) (quoting City of Newton v. Lofton, 840 So.
2d 833, 835-36 (¶6) (Miss. App. 2003)).
DISCUSSION
I.
¶ 9.
Adequate warning
First, Martin takes issue with the trial court finding that Franklin County adequately
warned him of the extremely dangerous condition of the Wells Creek Bridge. Martin
contends that although the County placed piles of dirt in front of the bridge in an attempt to
stop traffic from crossing the bridge, that measure did not work. Martin argues that the
County was aware that the bridge was in a dangerous condition and that the piles of dirt were
not stopping the public from using the bridge. He further argues that there were no signs
present on the date the bridge abutment caved in and he was injured. Martin concludes that
the County had a duty to warn the public of the bridge’s dangerous condition and that it
failed to do so.
¶ 10. Pursuant to Mississippi Code Annotated section 11-46-9(1)(v) (Supp. 2009), “[A]
governmental entity shall not be liable for the failure to warn of a dangerous condition which
is obvious to one exercising due care.” According to testimony from EMT Norris, she saw
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a “Bridge Out” sign on the Adams County side of the bridge, which was on the same side
from which Martin and the group approached the bridge prior to the accident. Evidence from
the toxicology reports presented to the trial court showed that both Martin and Allen were
legally intoxicated at the time of the accident. In addition, the offense report presented
during trial provides that Martin and the group were ramping their ATVs over the dirt
embankments that were erected by the County to prevent crossing of the bridge.
¶11.
Several Franklin County officials testified that prior to the accident, several warning
signs were placed by them on Garden City Road at the approach to the bridge. County
supervisor Woodrow Wilson testified that he and his road foreman continually checked to
make sure the warning signs and dirt embankments remained in place.
¶12.
Martin contends that if warning signs were placed on Garden City Road, those
warning signs were temporary and were commonly known to be stolen or removed.
However, the Mississippi Supreme Court has held that Ҥ11-46-9(1)(w) does not require a
governmental entity to actively patrol areas containing warning signs to see if a third party
has removed the signs. The statute exempts the governmental entity from liability for the
removal of warning signs ‘unless the absence, condition, malfunction or removal is not
corrected by the governmental entity responsible for its maintenance within a reasonable
time after actual or constructive notice.’” Mitchell v. City of Greenville, 846 So. 2d 1028,
1031 (¶13) (Miss. 2003). Wilson testified that the area was checked for the warning signs
at least twice per week. Martin’s argument would require that the County actively monitor
the warning signs to ensure there were in place every minute of every day. This standard is
not required under Mississippi law. Thus, we find that the County did provide adequate
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warning that the bridge was out.
II.
Proximate cause
¶ 13. Second, Martin takes issue with the trial court ruling that the sole proximate cause of
Martin’s injuries was Martin and the other individuals’s decision to proceed past the dirt
piles. Martin contends that the sole proximate cause of his injuries was the County’s failure
to adequately warn of a dangerous condition about which the County knew. Martin argues
that even if he is partially at fault, he was only contributorily negligent. Martin further
contends that whether he or Allen were intoxicated is wholly irrelevant because the bridge
could have collapsed if a child were walking over the abutment.
¶14.
The trial court was presented with evidence that Martin knew or should have known
that the bridge was out prior to the accident. According to testimony from Norris, Newman,
and Wilson, substantial warnings were in place to alert Martin and other members of the
public that the bridge was out, including a “Bridge Out” sign that was placed in front of the
first two dirt embankments.
¶15.
While Martin and Allen’s legal intoxication is a substantial factor in regard to their
negligence, it was not the only basis upon which the trial court found for the County. The
trial court pointed out that in addition to being under the influence of alcohol, Martin and
Allen were both adults who “knew the bridge was out prior to that date, and knowingly
proceeded past warning signs and dirt barriers.”
¶16.
The Mississippi Supreme Court has held that liability will not be placed on a
governmental entity when “the facts present a situation of an open and obvious condition
which is required for immunity pursuant to Miss. Code Ann. §11-46-9(1)(v).” City of
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Clinton v. Smith, 861 So. 2d 323, 328 (¶19) (Miss. 2003). Accordingly, Martin’s argument
that he should have been found only partially at fault is unsupported by the facts and without
merit.
III.
¶17.
Sanctions
Lastly, Martin takes issue with the trial court deciding not to cite Franklin County
Attorney Lane Reed for highly unethical conduct during the trial on this matter. During the
first day of trial, Martin announced to the trial court that the next witness would be John
Smith, Assistant State Traffic Engineer for the Mississippi Department of Transportation
(MDOT). When Smith’s name was called, he did not respond. Counsel for Martin called
Martin as the next witness instead. During a break, Smith was contacted and told to return
to the courtroom.
¶18.
The trial judge conducted a hearing to determine why Smith was not present when he
his name was called although he had been seen at the courthouse earlier that day. Reed
explained that he contacted the Attorney General’s office to determine whether or not a trial
subpoena had been served upon Smith because Reed stated that he had found no return of
service in the trial court’s file. Reed stated that it was his understanding that an assistant
attorney general informed Smith that because he was not under subpoena, he could do
whatever he wished.
¶19.
There is no evidence that the trial court abused its discretion in refusing to levy
sanctions upon Reed. This is especially true when Smith was allowed to testify and the
documents Smith authenticated were admitted into evidence. The trial judge heard from the
parties and Smith and decided that sanctions were not warranted. Thus, this issue is also
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without merit.
¶20.
The trial court correctly ruled in favor of the County. The trial court was provided
with substantial and credible evidence that the County provided substantial warnings to
Martin that the bridge was out at the time of the accident. There was substantial evidence
presented that either Martin or Allen’s negligence constituted the sole proximate cause of the
accident, including, Martin’s decision to ignore the warnings erected by the County, and to
operate his ATV while legally intoxicated on a public road in violation of Mississippi law.
¶21. THE JUDGMENT OF THE FRANKLIN COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS AND MAXWELL, JJ., CONCUR.
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