THE ALABAMA GREAT SOUTHERN RAILROAD COMPANY, MISSISSIPPI TRANSPORTATION COMMISSION AND MISSISSIPPI DEPARTMENT OF TRANSPORTATION
CHANTEL JOBES; MISSISSIPPI DEPARTMENT OF TRANSPORTATION AND MISSISSIPPI TRANSPORTATION COMMISSION
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 07/08/2013. TRIAL JUDGE: HON. PRENTISS GREENE HARRELL.
REVERSED AND RENDERED.
FOR APPELLANTS: ROMNEY H. ENTREKIN, RICHARD O. BURSON, GRAYSON LACEY, CHRISTOPHER O. MASSENBURG.
FOR APPELLEE: GEORGE W. BYRNE, JR.
BEFORE DICKINSON, P.J., LAMAR AND CHANDLER, JJ. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.
¶1. In the early morning hours of April 19, 2010, Chantel Jobes's vehicle left the southbound lane of Highway 11, crossed the northbound lane and crashed into a concrete railroad trestle. Jobes was seriously injured in the accident, and she filed a complaint against Norfolk Southern Railway Company, the Mississippi Transportation Commission, and the Mississippi Department of Transportation. The trial judge denied the defendants' motions for summary judgment. This Court granted the defendants' request for an interlocutory appeal, and we now render summary judgment in their favor.
FACTS AND PROCEDURAL HISTORY
¶2. On April 18, 2010, Jobes began her shift as a manager at T.G.I. Friday's in Hattiesburg at 4:00 p.m. She finished her shift between 1:00 and 1:30 a.m. the morning of April 19. She then went to a 24/7 gym nearby to work out, which was her normal routine. She worked out for about an hour and then headed to a friend's house to celebrate his birthday. She does not remember the party, but her friends told her that she " didn't want to finish the cocktail or the drink [she] had," and that she wanted to go home.
¶3. Jobes left the birthday party and headed home to Lumberton. As she neared Lumberton, her vehicle left the southbound lane of Highway 11, crossed the northbound lane and crashed head-on into a concrete railroad trestle. According to the Mississippi Highway Patrol's Uniform Crash Report, the accident was reported at 4:42 a.m. The report also stated that the weather was " dry" and " clear," and that the crash was life-threatening. It is undisputed that Jobes was driving with a suspended license, was legally intoxicated, and had prescription anti-anxiety medication in her system. Jobes testified in her deposition that she had worked three weeks straight with no days off up until the accident, and that she could not remember a time when she had been more stressed.
¶4. Jobes suffered a fractured jaw, fractured right leg, fractured left knee, fractured right arm, fractured hip, fractured ribs, a collapsed lung, and massive head injuries. On August 22, 2011, she filed her " Petition for Damages" against the Mississippi Department of Transportation/ the Mississippi Transportation Commission (hereinafter " MDOT," collectively) and Norfolk Southern Railway Company. The parties subsequently dismissed Norfolk and substituted The Alabama Great
Southern Railroad Company (" AGSR" ) as the proper railroad defendant.
¶5. In her Petition, Jobes alleged that " suddenly and without warning, she lost control of her vehicle and collided into the Northbound railroad trestle support owned, operated and/or maintained by defendant, [AGSR]." Jobes alleged that her accident was " caused by the negligence" of MDOT and AGSR.
¶6. Specifically, Jobes alleged that MDOT was negligent by:
(1) Failing to keep the road in a reasonably safe condition;
(2) Allowing the roadway to persist in a defective and substandard condition, despite actual or constructive knowledge of the defective and substandard condition;
(3) Failing to provide an adequate " clear zone" or shoulder at the site of the accident;
(4) Failing to provide adequate and necessary crash cushions at the site of the accident;
(5) Failing to protect or warn of a dangerous condition at the site of the collision of which defendants had notice, and adequate opportunity to issue appropriate warnings;
(6) Failing to erect and/or maintain appropriate and reasonable signs, signals, warning devices, illumination devices, or guardrails and/or barriers at the site of the accident despite actual or constructive notice of the absence and/or inadequate condition of the existing devices;
(7) Failing to construct and/or maintain the roadway in a reasonably safe condition in accordance with industry and highway safety standards; and
(8) Other acts of negligence that will be shown at the trial of this matter.
¶7. Jobes alleged that AGSR was negligent by:
(1) Failing to keep and maintain the railroad trestle supports in a reasonably safe condition;
(2) Failing to post adequate warning devices;
(3) Failing to undertake timely and reasonable repairs;
(4) Failing to maintain the trestle supports in a [reasonably] safe position; and
(5) Other acts of negligence that will be shown at the trial of this matter. Jobes requested a nonjury trial against MDOT, a jury trial against AGSR, and demanded $10 million in damages.
¶8. The parties engaged in discovery during the next two years. Jobes designated Richard Fitzgerald, professional engineer, as an expert witness. According to Jobes's expert designation, Fitzgerald was expected to testify that the " unprotected bridge pier" constituted an unreasonably dangerous condition, that the roadway under the overpass was in poor condition, that the lack of shoulders on the roadway rendered it unreasonably dangerous, that the railroad overpass supports were unreasonably close to the roadway, and that no adequate warnings were posted. But two months before trial was set to begin, Jobes's counsel notified all counsel of record that she no longer intended to call Fitzgerald as a witness at trial. This left Jobes with no liability expert.
¶9. AGSR and MDOT both filed motions for summary judgment. The parties subsequently filed supplemental motions, responses and rebuttals, but the basic arguments remained the same.
¶10. AGSR argued that Jobes was " unable to establish any duty owed by [AGSR] relevant to her claims, much less evidence of a breach of any such duty." AGSR argued that MDOT was the entity responsible for the roadway conditions along Highway 11, including the installation and/or erection of any crash guards and/or warning devices. AGSR highlighted testimony from the deposition of Todd Jordan, MDOT District Maintenance Engineer for District Six, and from the affidavit of transportation engineering expert Dr. Joseph Blaschke.
¶11. Jordan testified that MDOT was responsible for Highway 11 as it pertained to motorists:
Q: And at this intersection, as between the railroad and the Mississippi Department of Transportation, MDOT is actually the entity with the authority over the roadway itself; is that correct?
. . .
Q: And, also, at this intersection, MDOT is responsible for any roadway conditions on and along Highway 11 that the motoring public would face; is that true?
A: That's true.
Q: And MDOT would be the authority that is responsible for establishing speed limits on and along Highway 11 and particularly at the location of the overpass with the Alabama ...