Lois Kaigler v. City of Bay St. Louis, Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00640-COA
LOIS KAIGLER, ON HER BEHALF AND THAT
OF HER MINOR CHILD, LESHAN KAIGLER
APPELLANT
v.
THE CITY OF BAY ST. LOUIS, MISSISSIPPI
AND THE VCJ GYM
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
02/18/2008
HON. STEPHEN B. SIMPSON
HANCOCK COUNTY CIRCUIT COURT
MATTHEW LOUIS PEPPER
BRENDA G. LONG
EDWARD C. TAYLOR
KRISTI R. ROGERS
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT ENTERED
AFFIRMED: 06/30/2009
BEFORE MYERS, P.J., GRIFFIS AND ISHEE, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Lois Kaigler, individually and on behalf of her minor child, Leshan Kaigler, brought
suit against the City of Bay St. Louis, Mississippi (“the City”) and the VJC Gym (“Gym”)
for personal injuries that Leshan sustained at the Gym. The circuit court granted summary
judgment in favor of the City and the Gym. Kaigler appeals and argues that the City and the
Gym are not entitled to statutory immunity and that there is a genuine issue of material fact
concerning the City’s failure to comply with the Mississippi Fire Prevention Code
(“MFPC”). We find no error and affirm.
FACTS
¶2.
On December 11, 2002, twelve-year-old Leshan accompanied his older sister to her
basketball practice at the Gym. He brought his basketball with him and hoped that he would
get to shoot. While at the Gym, two older boys took Leshan’s ball from him and threw it into
the false ceiling where ceiling tiles were missing. One of the boys retrieved the ball for
Leshan, but the other boy threw it back into the false ceiling. When both boys refused to get
the ball, Leshan climbed up a wall and into the false ceiling. The ceiling tiles gave way, and
Leshan fell ten to twelve feet to the concrete floor. Leshan suffered injuries to his cervical
spine and neck.
¶3.
Kaigler filed suit alleging that Leshan’s injuries were due to the City’s and the Gym’s
negligence because they: (1) allowed a dangerous condition to exist for an unreasonable
length of time, (2) failed to repair and/or renovate the property, (3) knew or should have
known of the dangerous hazard of the building, (4) failed to adequately maintain the premises
in a safe condition, and (5) failed to properly supervise the children.
¶4.
The City submitted affidavits from three city officials stating that to their knowledge
there was no “statute, regulation or ordinance, that was in effect on December, 11, 2002, or
at another time, that imposed a duty or otherwise directed [the City] as to how to maintain
or operate the [Gym] or mandated supervision of the activities that transpired at the Gym.”
¶5.
The City and the Gym moved for summary judgment. At the summary judgment
hearing, Kaigler responded to the City’s affidavits by claiming that as political subdivision
of the State of Mississippi, the City was subject to the MFPC and that the City had failed to
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ensure that the Gym complied with the MFPC. The circuit court granted the City’s and the
Gym’s motion for summary judgment.
STANDARD OF REVIEW
¶6.
Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment
when there are no genuine issues of material fact so that the moving party is entitled to
judgment as a matter of law. To determine if there are genuine issues of material facts, the
trial court may look beyond the pleadings. Grant v. State, 686 So. 2d 1078, 1091 (Miss.
1996). This Court will review a decision to grant summary judgment de novo. Hernandez
v. Vickery Chevrolet-Oldsmobile Co., 652 So. 2d 179, 181 (Miss. 1995). If any triable issues
of material fact exist, the lower court's decision to grant summary judgment will be reversed;
otherwise, the decision will be affirmed. Brown v. Credit Center, Inc., 444 So. 2d 358, 362
(Miss. 1983). This Court views the evidence in the light most favorable to the non-moving
party, which in this case is Kaigler. Turner v. Johnson, 498 So. 2d 389, 390 (Miss. 1986).
ANALYSIS
1.
¶7.
Are the City and the Gym entitled to statutory immunity?
The circuit court found that the maintenance and operation of the Gym was a
discretionary function. Therefore, the City was immune from this claim under Mississippi
Code Annotated section 11-46-9(1)(d) (Supp. 2008). Kaigler asserts that the City and Gym
are not entitled to statutory immunity under section 11-46-9 because: (1) under Mississippi’s
premises liability law, Leshan was an invitee and entitled to an ordinary standard of care; (2)
the defendants had a duty to adequately supervise the children; and (3) the operation and
maintenance of the Gym were not discretionary.
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A.
¶8.
Premises Liability under the MTCA
Kaigler argues that: (1) Leshan was an invitee not a trespasser, and (2) the room where
Leshan fell was in an unsafe condition. The City and the Gym assert that they are immune
under Mississippi Code Annotated section 11-46-9(1)(v) (Supp. 2008).
¶9.
The circuit court found that Leshan was a trespasser when he entered the ceiling and
that the only duty the City owed to him was to refrain from willfully or wantonly injuring
him. Accordingly, the circuit court found that there was no liability because the City and the
Gym did not do anything to willfully or wantonly injure Leshan.
¶10.
If this case were not against a governmental entity, Kaigler's claim would be
considered under our law of premises liability. Leshan’s status at the Gym, at least in the
beginning, was that of an invitee. A business owner (the Gym) owes a business invitee
(Leshan) a duty of ordinary care to keep the business premises in a reasonably safe condition.
Waller v. Dixieland Food Stores, Inc., 492 So. 2d 283, 285 (Miss. 1986). The owner has a
duty to warn invitees of dangerous conditions that are not apparent to the invitee, of which
the owner or occupier knows or through the exercise of reasonable care should know. Id.
However, the owner is not an insurer against all injuries that may occur on the premises.
Jerry Lee's Grocery, Inc. v. Thompson, 528 So. 2d 293, 295 (Miss. 1988).
¶11.
However, since the Mississippi Tort Claims Act (MTCA) grants immunity to
governmental entities under certain circumstances, we must consider whether section
11-46-9(1)(v) is applicable. Under this statute, Kaigler may defeat the City’s immunity
defense if she can prove: (1) a dangerous condition, (2) on the governmental entity's
property, (3) which the governmental entity caused by negligence or wrongful conduct, or
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of which it had actual or constructive notice and adequate time to protect from or warn
against, and (4) the condition was not open and obvious to one exercising due care. Miss.
Code Ann. § 11-46-9(1)(v); see also Lowery v. Harrison County Bd. of Supervisors, 891 So.
2d 264, 267 (¶12) (Miss. Ct. App. 2004).
¶12.
Kaigler does not discuss the elements necessary to defeat immunity under section 11-
46-9(1)(v); instead, she focuses on whether Mississippi has abolished the open and obvious
standard in premises liability cases. We address this sub-issue before addressing whether she
can defeat the City’s immunity under section 11-46-9(1)(v).
¶13.
After Mississippi adopted the doctrine of comparative negligence, the supreme court
“abolish[ed] the ‘open and obvious’ defense which acts as a complete bar on recovery in
negligence actions. However, actions brought against an entity invoking the protection of
the Mississippi Tort Claims Act differ from the general negligence action.” Howard v. City
of Biloxi, 943 So. 2d 751, 756 (¶16) (Miss. Ct. App. 2006) (citing Tharp v. Bunge Corp., 641
So. 2d 20, 24 (Miss. 1994)). In a suit against a governmental entity for injuries caused by
a dangerous condition on its premises, a plaintiff must make a showing of the entity’s failure
to warn. Id. However, “[t]he open and obvious defense is an absolute bar to recovery in a
case brought under the [MTCA] for the failure to warn of a dangerous condition.” Id.
¶14.
Under section 11-46-9(1)(v), Kaigler must first prove that Leshan’s injury was caused
by a dangerous condition. Kaigler alleges that the room was in general disrepair; however,
she fails to explain how missing ceiling tiles and clutter in the room created the alleged
dangerous condition that resulted in Leshan’s fall.
¶15.
The ceiling, in and of itself, was not a dangerous condition for Leshan when he was
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standing on the floor. Presumably, a dangerous condition was created when Leshan climbed
up a wall and started to crawl across the false ceiling. Once Leshan was in the false ceiling,
there may have been a dangerous condition on governmental property. However, Kaigler
cannot prove that the City or the Gym had actual or constructive notice that Leshan had
climbed into the false ceiling and was in danger of falling to the floor or that there was
adequate time to protect or warn against this danger. Furthermore, the danger of falling
through the ceiling tiles was open and obvious to anyone exercising due care. Kaigler’s
claim that some of the tiles were missing or broken further supports our conclusion that the
danger of falling through the false ceiling was an open and obvious danger. Therefore, we
find that Kaigler does not defeat the City’s and Gym’s immunity under section 11-46-9(1)(v).
¶16.
Although the circuit court used Leshan’s status as a trespasser, not section 11-46-
9(1)(v), to determine that the City and the Gym were not liable for his injuries, we agree with
the circuit court’s result. “On appeal, we will affirm a decision of the circuit court where the
right result is reached even though we may disagree with the reason for that result.” Puckett
v. Stuckey, 633 So. 2d 978, 980 (Miss. 1993) (citing Stewart v. Walls, 534 So. 2d 1033, 1035
(Miss. 1988)). This issue is without merit.
B.
¶17.
Failure to Supervise
Kaigler claims that the Gym is required to provide supervision because it is akin to
a public school which has an obligation to adequately supervise students. The City and the
Gym respond that decisions concerning supervision are discretionary, and they are immune
under section 11-46-9(1)(d).
¶18.
In support of her argument, Kaigler quotes L.W. v. McComb Separate Municiple
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School District, 754 So. 2d 1136, 1142 (¶26) (Miss. 1999) as follows: “Public officers and
administrators are protected by sovereign immunity, if and only if, they used ordinary care
in controlling and disciplining youth in their care and control.” We find that supreme court
actually said, “the teachers and administrators here are then protected by sovereign immunity
if and only if they used ordinary care in controlling and disciplining their students.” Id.
Kaigler’s substitution of the term public official for teacher and youth for students is
misleading. Kaigler cites no authority to support her conclusion that a Gym should be held
to the same standard as a school.
¶19.
Kaigler cites Summers v. St. Andrew's Episcopal School, 759 So. 2d 1203 (Miss.
2000) for the proposition that a public entity is required to supervise youth activities. The
supreme court’s holding in Summers addressed the board of education’s obligation and does
not extend to all public entities. The supreme court said that “[a]lthough a board of
education is not an insurer of the safety of its students, there is an obligation to supervise
adequately the activities of students within its charge.” Id. at 1214 (¶47) (citation omitted).
¶20.
Kaigler has not pointed to any statute that imposes a duty on the City or Gym to
supervise. Therefore, Mississippi Code Annotated section 11-46-9(1)(b) (Supp. 2008) does
not apply, because it exempts actions that “[arise] out of any act or omission of an employee
of a governmental entity exercising ordinary care in reliance upon, or in the execution or
performance of, or in the failure to execute or perform, a statute, ordinance or regulation,
whether or not the statute, ordinance or regulation be valid.”
¶21.
The City and the Gym argue that the decision whether or not to supervise was
discretionary and entitled the entities to immunity under section 11-46-9(1)(d) which grants
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the governmental entity immunity when the function or duty is discretionary.
¶22.
This Court uses a two-part public policy function test to determine “whether
governmental conduct is discretionary so as to afford governmental entity immunity.” Dotts
v. Pat Harrison Waterway Dist., 933 So. 2d 322, 326 (¶9) (Miss. Ct. App. 2006) (citation
omitted). “The test requires a determination of (a) whether the activity involves an element
of choice or judgment, and if so, then it must be determined (b) whether the choice or
judgment involves social, economic, or political policy.” Id. (citations omitted).
¶23.
The City’s decisions of whether to open the Gym and whether to provide supervision
were not mandated by statute. Rather, the City chose to open the Gym to the public and used
its judgment to determine the most effective use of the Gym once it was open to the public.
This choice satisfies part (a) of the two-part public policy function test. Because the social
value and economic cost of operating the Gym and supervising the activities at the Gym go
into determining the most effective use of the Gym, part (b) of the test is also satisfied. We
find that the City is entitled to immunity under section 11-46-9(1)(d) because the supervision
at the Gym was a discretionary function.
¶24.
Kaigler also argues that the City was required to use ordinary care under section 11-
46-9(1)(d). We disagree. In Collins v. Tallahatchie County, 876 So. 2d 284, 289 (¶17)
(Miss. 2004), the supreme court specifically stated that the “ordinary care standard is not
applicable to [section] 11-46-9(1)(d).”
¶25.
This issue is without merit.
2.
Is there a genuine issue of material fact concerning the City's failure
to comply with the MFPC?
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¶26.
Kaigler argues that the City and the Gym had a statutory duty to comply with the
MFPC, under Mississippi Code Annotated section 45-11-101 (Supp. 2008). The City and
the Gym respond that: (1) the Gym was not in violation of the MFPC; (2) their actions were
not the proximate cause of the injury; and (3) they are immune under Mississippi Code
Annotated section 11-46-9(1)(c) (Supp. 2008) which exempts “the performance or execution
of duties or activities relating to police or fire protection.”
¶27.
The “[m]ere allegation or denial of material fact is insufficient to generate a triable
issue of fact and avoid an adverse rendering of summary judgment. More specifically, the
plaintiff may not rely solely upon the unsworn allegations in the pleadings, or arguments and
assertions in briefs or legal memoranda.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So. 2d
1346, 1356 (Miss. 1990) (internal citations and quotation omitted).
¶28.
In its opinion, the circuit court noted that Kaigler argued that the false ceiling violated
the MFPC, but that she failed to “submit affidavits or other evidence to establish the
applicability of the codes or how any alleged violation caused or contributed to Leshan’s
fall.”
¶29.
The City and the Gym do not dispute that the Gym was subject to the MFPC, but they
argue that they were in compliance with the MFPC. At the summary judgment hearing, the
City attempted to call the fire inspector to testify whether the ceiling was in compliance with
the MFPC. However, Kaigler objected and said that she should have the opportunity to
depose the fire inspector. Kaigler did not depose the fire inspector – or anyone else – about
whether the ceiling complied with the MFPC. Instead of producing an expert affidavit to
support her claim, Kaigler relied on her attorney’s opinion that the missing tiles in the false
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ceiling violated the MFPC. Thus, we find that Kaigler failed to show that there was a triable
issue of fact concerning whether the City violated the MFPC.
¶30.
Furthermore, in order to prevail on her negligence claim, Kaigler had to prove not
only that the City was negligent – which she did not – but also that Leshan’s injury was
proximately caused by the City’s negligence. “In order for an act of negligence to
proximately cause the damage, the fact[-]finder must find that the negligence was both the
cause in fact and legal cause of the damage.” Glover v. Jackson State Univ., 968 So. 2d
1267, 1277 (¶31) (Miss. 2007). “A defendant's negligence is the cause in fact of a plaintiff's
damage where the fact[-]finder concludes that, but for the defendant's negligence, the injury
would not have occurred.” Id. at (¶32). The defendant's negligence is the legal cause if the
“damage is the type, or within the classification, of damage the negligent actor should
reasonably expect (or foresee) to result from the negligent act.” Id. at (¶33).
¶31.
Kaigler failed to show how the City’s alleged negligence was the proximate cause of
Leshan’s injury. During the summary judgment hearing, the circuit court specifically asked
Kaigler’s attorney about causation and whether it was foreseeable that Leshan would crawl
into the false ceiling. Kaigler’s attorney responded that when one is dealing with a child you
must expect the unexpected. While a motorist does have a “duty to expect children to do the
unexpected, to understand that they may do the ununderstandable and unpredictable, and will
act upon a second's impulse,” Mississippi law does not impose this duty in every situation
upon all people. Bland v. Briggs, 512 So. 2d 894, 896 (Miss. 1987) (quoting McGee v.
Bolen, 369 So. 2d 486, 492 (Miss. 1979)). This duty is limited to motorists.
¶32.
We conclude that Kaigler failed to prove that: (1) there was a material issue of fact
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concerning the City’s and Gym’s compliance with the MFPC, and (2) the City or Gym was
the proximate cause of Leshan’s injury. Therefore, we do not reach the City’s defense that
the MFPC constitutes “the performance or execution of duties or activities relating to police
or fire protection,” affording their actions immunity under section 11-46-9(1)(c).
¶33.
This issue lacks merit.
¶34. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.
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