KENNETH L. OSTROWSKI JR. APPELLANT
CITY OF D'IBERVILLE, MISSISSIPPI APPELLEE
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
LEE, C.J., CARLTON AND WESTBROOKS, JJ.
Kenneth Ostrowski Jr. sued the City of D'Iberville,
Mississippi, under the Mississippi Tort Claims Act
(MTCA) 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.
AND PROCEDURAL HISTORY
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.
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
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
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.
We also use a de novo standard of review regarding the
application of the MTCA. City of Jackson v. Harris,