OF JUDGMENT: 08/12/2016
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.
COURT ATTORNEYS: REBECCA B. COWAN BRADFORD KEITH MORRIS
BENJAMIN LYLE ROBINSON WALKER REECE GIBSON.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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
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.
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.
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 ...