DATE OF JUDGMENT: 06/01/2012.
ADAMS COUNTY CIRCUIT COURT, HON. FORREST A. JOHNSON JR.,
FOR APPELLANT: L. CLARK HICKS JR.
FOR APPELLEE: JOHN T. BALL.
BEFORE IRVING, P.J., CARLTON AND MAXWELL, JJ. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
¶1. At the conclusion of a bench trial, the Adams County Circuit Court found that Andre De la Barre had sustained $80,000 in damages as a result of his fall on a sidewalk in Natchez, Mississippi. The circuit court apportioned fifty percent of the damages to De la Barre and fifty percent to the City of Natchez (City). Feeling aggrieved, the City appeals and argues that the circuit court erred by failing to find that it was immune from liability under the Mississippi Tort Claims Act (MTCA), and erred in applying the comparative-negligence doctrine instead of finding that De la Barre's own negligence was an absolute bar to his recovery.
¶2. Finding that the circuit court erred in failing to find that the City is immune under the discretionary-function-exemption provision of the MTCA, we reverse and render the circuit court's judgment.
¶3. In September 2008, a hurricane hit Natchez, Mississippi, and caused a building's brick faç ade to fall. The faç ade caused damage to the sidewalk in front of the building. The City claims that it immediately put barricades, warning tape, and warning barrels in the area.
¶4. De la Barre lived in the area where the faç ade had fallen and was aware of the damage to the sidewalk. The sidewalk in that area consists of two tiers: a concrete tier immediately in front of the building, and a lower, bricked tier, between the concrete tier and the street. The bricked tier of the sidewalk is lower than the concrete tier of the sidewalk, but higher than the street level. De la Barre testified that he knew of the danger in the area and that he never tried to step up onto the concrete tier of the sidewalk, which was " clearly damaged." When he parked on that street, he would regularly step on the lower, bricked tier of the sidewalk because there was never a visible problem with that tier. De la Barre claims that there were no barrels, warning tape, or any other warning signs indicating that the bricked portion of the sidewalk was damaged. He testified that, on March 30, 2009, when he stepped onto the bricked portion of the sidewalk, the bricks collapsed beneath him, causing him to fall and break his wrist.
¶5. Louise Peabody, who lived on the same street as De la Barre, testified that there were no barriers or warning signs on the bricked portion of the sidewalk around the time that De la Barre fell. She also stated that she did not recall seeing any warning devices in that area at any time before ...