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Hathorn v. Louisville Utilities Commission

Supreme Court of Mississippi, En Banc

September 28, 2017

PAULA HATHORN
v.
LOUISVILLE UTILITIES COMMISSION

          DATE OF JUDGMENT: 08/12/2016

         WINSTON COUNTY CIRCUIT COURT, HON. JOSEPH H. LOPER, JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: BRADFORD KEITH MORRIS.

          ATTORNEYS FOR APPELLEE: JOSEPH WALTER GILL REBECCA B. COWAN.

          TRIAL COURT ATTORNEYS: REBECCA B. COWAN BRADFORD KEITH MORRIS BENJAMIN LYLE ROBINSON WALKER REECE GIBSON.

          BEAM, JUSTICE.

         ¶1. Paula Hathorn appeals a judgment entered by the Winston County Circuit Court granting summary judgment in favor of the Louisville Utilities Commission (Commission). Hathorn sued the Commission along with the City of Louisville and the O'Reilly Auto Parts store located Louisville, Mississippi, for injuries she claimed resulted from a fall that occurred after she stepped into a sunken utility box set into a sidewalk in front of O'Reilly's Auto Parts. Hathorn dismissed O'Reilly Auto Parts and the City from the suit after entering into a settlement agreement with each separately. The Commission thereafter moved for summary judgment, which the Winston County Circuit Court granted based on the court's findings that (1) the Commission is a subsidiary of the City, and according to the settlement agreement, Hathorn had released all claims against the City and its subsidiaries; (2) the Commission is immune from liability in this instance under the Mississippi Tort Claims Act (MTCA) because it did not have a ministerial duty to maintain the water meter at a level even with the ground; and (3) Hathorn cannot maintain a premises liability claim against the Commission because the City owns the Commission's assets including its water meter boxes.

         ¶2. Having reviewed the record de novo, we agree with the trial court that Hathorn released her claim against the Commission when she entered into a settlement agreement with the City. Therefore, we affirm the trial court's grant of summary judgment in favor of the Commission. This issue being dispositive, we limit our decision in this case to this assignment of error.

         FACTS AND PROCEDURAL HISTORY

         ¶3. Hathorn claimed that in August 2014, she was walking on the sidewalk along South Church Avenue in Louisville, Mississippi. As she approached the portion of sidewalk in front of O'Reilly's Auto Parts, Hathorn noticed grass clippings along the edge of the sidewalk and scattered across its surface. While walking in front of O'Reilly's, Hathorn's foot unexpectedly sank into a hole a few inches deep in the sidewalk, causing Hathorn to twist her ankle, lose her balance, and fall forward, injuring herself further. According to Hathorn, an uncovered utility box set within the sidewalk caused her fall, and she did not see it because of the grass clippings covering the sidewalk.

         ¶4. Hathorn sued O'Reilly Auto Parts, the City, and the Commission in March 2015. In December 2015, Hathorn executed a settlement agreement with the City and a separate settlement agreement with O'Reilly Auto Parts. An agreed order was entered on December 30, 2015, dismissing O'Reilly Auto Parts as a defendant. Another agreed order was entered on January 4, 2016, dismissing the City.

         ¶5. The Commission remained the only defendant. Litigation continued between the two parties over the next seven months, which included depositions, additional discovery, and ongoing correspondence between counsel for Hathorn and counsel for the Commission.

         ¶6. Hathorn took the deposition of Wilson Webb, who has served as the General Manager of the Commission since 2004. Webb testified that the Commission is a division of the City. The City's Board of Alderman appoints one board member per year and reappoints the board members every five years. The Board of Alderman can fire or remove the any commissioner.

         ¶7. Webb said that, prior to Hathorn's incident, there had been no complaints by anyone about a lid being off a meter box or about the depth or the offset of a water meter box in any sidewalk in the city. He said as a matter of course, every water meter box installed in a sidewalk in the city is installed flush or level with the surface of the sidewalk. And this particular water meter box was installed flush during the construction of the O'Reilly store and it appeared to remain flush even after O'Reilly resurfaced the sidewalk with concrete.

         ¶8. Webb acknowledged that at some point in time, this particular water meter box had gotten depressed by something running over it, e.g., a riding lawnmower or a ...


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