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Lowe v. City of Moss Point

Court of Appeals of Mississippi

October 3, 2017

BOBBIE JEAN LOWE APPELLANT
v.
CITY OF MOSS POINT, MISSISSIPPI, A MUNICIPAL CORPORATION APPELLEE

          DATE OF JUDGMENT: 06/09/2016

         COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT HON. DALE HARKEY TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DAVID C. FRAZIER

          ATTORNEYS FOR APPELLEE: AMY LASSITTER ST. PE' JAMES EVERETT LAMBERT III

         En Banc.

          LEE, C.J.

         ¶1. Bobbie Jean Lowe brought a suit against the City of Moss Point (the City) for an injury she sustained while on municipal property. The Jackson County Circuit Court granted the City's motion for summary judgment, finding that the City was entitled to discretionary-function immunity under Mississippi Code Annotated section 11-46-9(1)(d) (Rev. 2012). Lowe now appeals. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On October 20, 2012, Lowe attended a breast-cancer-awareness event called "Bras Across the Bridge" held in Moss Point, Mississippi. During the course of the event, many participants, including Lowe, congregated at Pelican Landing, a community rental space owned by the City. After being at the event for a few hours, Lowe began to walk to her car to leave when she stepped in a grass-covered hole, fell, and injured her ankle.

         ¶3. Lowe filed suit against the City, alleging that the City was negligent in its maintenance of the lawn and facility at Pelican Landing, proximately causing Lowe's injuries. The City's answer denied any negligence on its part and also asserted that it was immune from suit under the Mississippi Tort Claims Act (MTCA). Miss. Code Ann. §§ 11-46-1 to -23 (Supp. 2016). After the parties participated in limited discovery, the City filed a motion for summary judgment, arguing that it was immune from suit specifically under sections 11-46-9(1)(d) and (v). After a hearing on the motion, the trial court granted the City's motion for summary judgment, finding that the City was immune from suit under section 11-46-9(1)(d). Lowe now appeals.

         STANDARD OF REVIEW

         ¶4. The MTCA provides "that governmental entities and their employees shall be exempt from liability in certain situations as outlined in the MTCA." Brantley v. City of Horn Lake, 152 So.3d 1106, 1108-09 (¶6) (Miss. 2014) (citing § 11-46-9). Whether governmental immunity applies "is a question of law and is a proper matter for summary judgment." Id. (quoting Mitchell v. City of Greenville, 846 So.2d 1028, 1029 (¶8) (Miss. 2003)). An appellate court reviews the application of the MTCA under a de novo standard. Id. (citing Lee v. Mem'l Hosp. at Gulfport, 999 So.2d 1263, 1266 (¶8) (Miss. 2008)).

         ¶5. The grant or denial of summary judgment is also reviewed de novo. Mitchell v.Ridgewood E. Apartments LLC, 205 So.3d 1069, 1073 (ΒΆ13) (Miss. 2016). In viewing the evidence in the light most favorable to the nonmoving party, summary judgment is proper where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any ...


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