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Ostrowski v. City of D'Iberville

Court of Appeals of Mississippi

June 5, 2018

KENNETH L. OSTROWSKI JR. APPELLANT
v.
CITY OF D'IBERVILLE, MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/16/2017

          HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. LISA P. DODSON TRIAL JUDGE

          ATTORNEY FOR APPELLANT: MICHAEL JOSEPH YENTZEN

          ATTORNEY FOR APPELLEE: NANCY L. SIPLES BRUMBELOE

          BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.

          LEE, C.J.

         ¶1. Kenneth Ostrowski Jr. sued the City of D'Iberville, Mississippi, under the Mississippi Tort Claims Act (MTCA)[1] for damages he sustained in a motor-vehicle accident. The Harrison County County Court granted the City's motion for summary judgment, finding that it was immune from liability under Mississippi Code Annotated section 11-46-9(1)(q) (Rev. 2012). Ostrowski appealed to the Harrison County Circuit Court, Second Judicial District, and the circuit court affirmed the county court's decision. In this appeal, we must determine whether the circuit court erred in affirming the county court's decision. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On May 10, 2014, Ostrowski was driving on a city road during a heavy rain storm when he struck a displaced manhole cover, causing his car to slide and strike the curb. Ostrowski's car flipped and landed on its side on the property adjacent to the road. He stated that he was driving below the posted speed limit. Ostrowski was injured, and his car was damaged.

         ¶3. In his complaint, Ostrowski alleged that the manhole cover was displaced due to "rising water because of design and deficiencies" of the City's sewer system. In support of his argument, Ostrowski produced an affidavit from a civil engineer, Dreux Seghers. In his affidavit, Seghers stated that the manhole cover was displaced due to rain water increasing the volume of water in the sewer system and that repairs were necessary to minimize the flow of rain water or ground water into the sewer system. However, the county court determined that Seghers's affidavit was not admissible since it did not meet the criteria of Mississippi Rule of Evidence 702. On appeal to the circuit court, the circuit court found no abuse of discretion by the county court in excluding Seghers's affidavit. Ostrowski does not raise the issue of the admissibility of Seghers's affidavit in this appeal.

         ¶4. Ostrowski did not produce additional evidence that the sewer system contained design deficiencies or that the City knew or should have known that the manhole cover would be displaced by rising water. The record is silent as to whether the manhole cover had been displaced by rising water prior to Ostrowski's accident.

         STANDARD OF REVIEW

         ¶5. The grant or denial of a motion for summary judgment is reviewed de novo. Karpinsky v. Am. Nat'l Ins. Co., 109 So.3d 84, 88 (¶9) (Miss. 2013). We view the evidence "in the light most favorable to the party against whom the motion has been made." Id. Summary judgment is proper when "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 material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law." Karpinsky, 109 So.3d at 88 (¶11). Further, if at trial, the movant would bear the burden of proof, he also bears the burden of production for summary judgment. Id. However, the nonmovant may not "rest upon the mere allegations or denials of his pleadings." M.R.C.P. 56(e). The nonmovant must respond "by affidavits or as otherwise provided in [Rule 56], " and he "must set forth specific facts showing that there is a genuine issue for trial." Id. "If he does not so respond, summary judgment, if appropriate, shall be entered against him." Id.

         ¶6. We also use a de novo standard of review regarding the application of the MTCA. City of Jackson v. Harris, ...


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