Christopher D. Jenkins v. Mississippi Department of Transportation
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01467-COA
CHRISTOPHER D. JENKINS, ADAM ROBERTSON
AND SHELIA ROBERTSON
v.
MISSISSIPPI DEPARTMENT OF
TRANSPORTATION, OKTIBBEHA COUNTY AND A.
L. GOODMAN
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEES
7/25/2002
HON. LEE J. HOWARD
OKTIBBEHA COUNTY CIRCUIT COURT
SHIRLEY C. BYERS
KATHERINE S. KERBY
RONALD L. ROBERTS
BERKLEY N. HUSKISON
CIVIL - PROPERTY DAMAGE
SUMMARY JUDGMENT FOR DEFENDANTS
AFFIRMED: 11/09/2004
BEFORE KING, C.J., CHANDLER AND ISHEE, JJ.
KING, C.J., FOR THE COURT:
¶1.
Aggrieved by the trial court’s grant of summary judgment Christopher Jenkins, Adam
Robertson, and Shelia Robertson appeal and assert the following assignments of error, which we
quote verbatim.
I.
Whether the Circuit Court erred in granting summary judgment in favor of the Mississippi
Department of Transportation.
II.
Whether the Circuit Court erred in granting summary judgment in favor of the [sic]
Oktibbeha County and A.L. Goodman.
Finding no error, we affirm.
STATEMENT OF FACTS
¶2.
Shortly after midnight on May 24, 1999, Christopher Jenkins and his brother, Adam
Robertson, were traveling in their mother's vehicle from West Point to Starkville on Old West Point
Road in Oktibbeha County, Mississippi. Jenkins was the driver of the car, and Robertson was the
only passenger. A car traveling in the opposite direction signaled them to stop, and informed
Jenkins that he should slow down because of a problem in the road ahead. For approximately one
quarter of a mile, Jenkins drove about thirty-five miles per hour, but he was unable to see that the
road covering a culvert had collapsed. Consequently, Jenkins drove the car into the crevice, injuring
Robertson, and causing damage to the vehicle.
¶3.
Both Jenkins and his brother testified that approximately three hours earlier, they had traveled
along the same road on the way from Starkville to West Point and had not noticed a problem with
the road or culvert. Jenkins also testified that he had traveled the road many times in the months
preceding the accident and had never noticed a problem in the road or the culvert.
¶4.
Subsequently, the two brothers and their mother, Sheila Robertson, the owner of the vehicle,
filed a complaint in the Circuit Court of Oktibbeha County, against the Mississippi Department of
Transportation (MDOT), Oktibbeha County, and A.L. Goodman, the Oktibbeha County Engineer.
The complaint alleged that the culvert was negligently constructed, maintained and inspected, and
sought damages for physical injuries, pain and suffering, and lost wages, as well as compensation
for damage to the vehicle. MDOT, Oktibbeha County, and Goodman filed motions for summary
judgment. On July 25, 2002, the trial court granted the defendants’ motions for summary judgment.
The trial court held that MDOT owed no duty of care to the plaintiffs because the road was not a
designated state highway and in the alternative, that MDOT was entitled to exemption from liability
under the Mississippi Tort Claims Act, Mississippi Code Annotated § 11-46-9(1)(d), (g), (q), and (v).
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The trial court also granted summary judgment in favor of Oktibbeha County and Goodman, holding
the actions, or inactions, of Oktibbeha County and A.L. Goodman were discretionary, and thus
immune from liability under the Mississippi Tort Claims Act and alternatively, that the plaintiffs
failed to show the county and Goodman acted negligently.
ISSUES AND ANALYSIS
I.
Whether the Circuit Court erred in granting summary judgment in favor of the
Mississippi Department of Transportation.
¶5.
Jenkins, et al., assert that the trial court erred in granting summary judgment. Jenkins argues
that even though Old West Point Road is not designated as a state highway under Mississippi Code
Annotated Section 65-3-3 (Rev. 2003), it is designated as a state aid road, and since the Office of
State Aid Road Construction is a subdivision of MDOT, that MDOT, through its subdivision, had
a duty to properly inspect Old West Point Road. He contends that MDOT knew or should have
known the condition of the culvert in light of its March 1999 inspection. Furthermore, Jenkins
asserts that MDOT is not immune under the Mississippi Torts Claims Act exemptions because the
State Aid Engineer had a statutory ministerial duty to conduct a proper annual inspection of Old
West Point Road, which included the culvert.
¶6.
This Court’s standard of review for a motion for summary judgment is well-settled, and is
stated as follows:
This Court employs a de novo standard of review of a lower court's grant or denial
of summary judgment and examines all the evidentiary matters before it--admissions
in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence
must be viewed in the light most favorable to the party against whom the motion has
been made. If, in this view, there is no genuine issue of material fact and, the moving
party is entitled to judgment as a matter of law, summary judgment should forthwith
be entered in his favor. Otherwise, the motion should be denied. Issues of fact
sufficient to require denial of a motion for summary judgment obviously are present
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where one party swears to one version of the matter in issue and another says the
opposite. In addition, the burden of demonstrating that no genuine issue of fact exists
is on the moving party. That is, the non-movant should be given the benefit of the
doubt.
Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (¶ 10) (Miss. 2001).
¶7.
We look to both the Mississippi Constitution and the statutes enacted thereafter by the
Mississippi Legislature to determine whether MDOT, through the Office of State Aid Road
Construction, has the duty to maintain roads designated as “state aid roads.” The authority vested
in the legislature for the construction and maintenance of Mississippi's roadways comes from the
Mississippi Constitution Article 6, § 170 (1924), which states, in part:
The board of supervisors shall have full jurisdiction over roads, ferries, and bridges,
to be exercised in accordance with such regulations as the legislature may prescribe,
and perform such other duties as may be required by law; provided, however, that
the legislature may have the power to designate certain highways as "state highways,"
and place such highways under the control and supervision of the state highway
commission, for construction and maintenance.
Pursuant to Mississippi Code Annotated Section 65-3-3 (Rev. 2003) the legislature has designated
specific roads as state highways. The legislature also established the Mississippi Department of
Transportation to oversee the construction and maintenance of these designated state highways.
Miss. Code Ann. § 65-1-2 (c) (Rev. 2001). Within MDOT the legislature established the Office of
State Aid Road Construction which is specifically addressed in Mississippi Code Annotated
Section 65-9-5 (Rev. 2001). The Office of State Aid Road Construction oversees the funding of state
aid roads, which are defined by statute as:
[A] group or class of roads composing the main collector and distributor routes
feeding into local trade areas or into the state highway network, which are not
designated as state highways by the Legislature, and particularly those essential to the
conservation and development of natural resources, of economic and social value,
and encouraging desirable land utilization, having in addition the following
characteristics, to wit: roads . . . which (a) [c]onnect communities within the
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individual counties and with those of adjoining counties and/or which also connect
the state highway system to form a complete network of secondary or collector
routes.
Miss. Code Ann. § 65-9-1 (Rev. 2001). The duty to maintain state aid roads is delegated to the
boards of supervisors in their respective counties. Miss. Code Ann. § 65-9-25 (Rev. 2001).
Mississippi Code Annotated Section 65-9-25 addresses the duty of the State Aid Engineer
concerning the maintenance of state aid roads:
It shall be the duty of the state aid engineer and his assistants to make annual
maintenance inspections of completed projects, and such other periodic maintenance
inspections as the state aid engineer shall deem necessary. If essential maintenance
is not properly and regularly carried on, in the opinion of the state aid engineer, then
notice thereof shall be given in writing to the board in default, and if such
maintenance is not done and continued within sixty (60) days from date of such
notice, then, and in such event, the state aid engineer may proceed to have done the
necessary maintenance and repair work on such road and charge the same to any
funds in the state aid road fund in the state treasury allocated to such county. If such
failure to maintain continues, then such county shall be no longer eligible for state aid
until proper maintenance is resumed by it, and notice of such withdrawal of state aid
shall be duly given the state auditor and state treasurer . . .
Miss. Code Ann. § 65-9-25.
¶8.
The Office of State Aid Road Construction, through its officer, the State Aid Engineer, is
responsible for inspecting state aid roads annually to determine if the county has properly maintained
such roads and in the event that the county has not sufficiently maintained the road, the State Aid
Engineer is authorized to (1) give notice to the county, (2) make necessary repairs and charge the
county for those repairs, and (3) withhold future state aid monies if the county continues to fail in
maintaining the road. Therefore, MDOT, through its subdivision of the Office of State Aid Road
Construction and its State Aid Engineer, has the authority to inspect, repair, and supervise the
maintenance of state aid roads. However, the only duty delineated in the statutes is the duty to make
an annual inspection of completed roads to determine if the state will continue to give money to the
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county to maintain the road, which the record indicates was conducted on Old West Point Road in
March of 1999.
¶9.
Jenkins asserts that MDOT did not use ordinary care in its annual inspection in March of
1999, and claims that a proper inspection would have prevented this accident that occurred only three
months later in May 1999. However, Jenkins does not produce any evidence that indicates that the
inspection was improper. The wooden culvert that collapsed in the cause sub judice was not
mentioned in the March 1999, annual report by the state aid engineer, although several other
maintenance problems were delineated on Old West Point Road. However, Jenkins’s expert witness,
Derrick Barrentine, a licensed engineer, opined that the culvert was in disrepair during the time of the
inspection. Yet, Barrentine’s affidavit does not cite to any particular standard or inspection procedure
that the State Aid Engineer failed to perform. Instead, he inferred that the failure to make mention
of the culvert was indicative of a negligent inspection. Simply not including the culvert in the March
1999, annual report of Old West Point Road does not equate to negligence by MDOT. Jenkins was
obligated to produce sufficient evidence to establish the existence of a disputed material fact. Jenkins
failed to produce sufficient evidence to establish that the March 1999 inspection was negligently
performed. Absent the existence of a disputed material fact, summary judgment was proper, and
there is no merit to this issue.
II.
Whether the Circuit Court erred in granting summary judgment in favor of the [sic]
Oktibbeha County and A.L. Goodman.
¶10.
Jenkins asserts that the trial court erred in granting summary judgment because Oktibbeha
County and the county engineer, A.L.Goodman, breached their discretionary duty to use ordinary
care in the inspection and maintenance of Old West Point Road. As with the previous issue, Jenkins
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offers the affidavit of expert witness Derrick Barrentine in support of his contention that the trial
court erred.
¶11.
Mississippi Code Annotated Section 11-46-9(d) (Rev.2002), grants immunity to governmental
entities for failure to perform discretionary duties, and Mississippi Code Annotated Section 11-469(v) (Rev. 2002), provides immunity for injuries arising from a dangerous condition on governmental
property “that was not caused by the negligent or other wrongful conduct of an employee of the
governmental entity or of which the governmental entity did not have notice, either actual or
constructive, and adequate opportunity to protect or warn against . . . .” Moreover, “mere proof of
a defective condition in the streets, no matter how dangerous, is not sufficient to show breach of the
City’s duty to maintain its streets safely.” City of Jackson v. Locklar, 431 So. 2d 475, 479-80 (Miss.
1983). “A would-be plaintiff must go further and show that the City had actual or constructive
knowledge of the defect.” Id. at 480.
¶12.
Jenkins attempts to use the affidavit of his expert to infer that the county had notice that the
culvert would collapse (1) because it was wooden, (2) due to its location in the proximity to one,
possibly two, retention ponds with minimal storage capacity for rainfall, and (3) because banking of
the roadway in the curve carried surface run-off to the upstream end of the culvert, and subjected
the culvert to being washed out. However, the affidavit does not address the cause of the wash out
on the night of the accident in question, nor does it provide any proof that the culvert was not
properly maintained. Neither of the inspection reports, that of the state aid engineer or of the county,
indicated a problem with the culvert. Barrentine used the omission of the culvert from the March
1999 annual report by the state aid engineer, to infer that the county was negligent in its inspections
because it was his opinion that the culvert was in disrepair a few months prior to the time of the
accident. Inference of notice is not actual or constructive notice to the county or Goodman. Jenkins
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offered no proof as to the knowledge or notice by the county or Goodman pertaining to the condition
of the culvert prior to the accident. In his deposition, Jenkins admitted that he did not notice a
problem in the road when he traversed it only hours before the accident. He offered no evidence that
would indicate when the culvert washed out, or when the county had or should have had knowledge
of the road’s condition. He also offered no evidence that the county, during its inspections, should
have been aware of a defective condition. Jenkins failed to establish that the county or Goodman
negligently inspected and maintained the culvert, and therefore Jenkins failed to establish that either
party had notice of the condition of the culvert, accordingly, summary judgment in favor Oktibbeha
County and Goodman was appropriate, and there is no merit to this issue.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY IS
AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.
BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS AND
ISHEE, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.
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