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In re Estate of Hudson

Supreme Court of Mississippi

June 28, 2018

IN THE ESTATE OF PATRAUNA HUDSON: FANNY HUDSON, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF PATRAUNA HUDSON
v.
YAZOO CITY, MISSISSIPPI

          DATE OF JUDGMENT: 08/09/2016

          COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT, HON. JANNIE M. LEWIS JUDGE

          TRIAL COURT ATTORNEYS: ROBERT S. ADDISON STEVEN JAMES GRIFFIN BARRY W. HOWARD WALTER WILLIAM DUKES BRADLEY EUGENE DEAN WILEY JOHNSON BARBOUR

          ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY

          BARRY W. HOWARD ATTORNEYS FOR APPELLEE: ROBERT S. ADDISON STEVEN JAMES GRIFFIN:

          BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.

          BEAM, JUSTICE

         ¶1. This case arises from the tragic 2014 death of nine-year-old Patrauna Hudson, who drowned in flash-flood waters that swept through a drainage ditch that ran alongside her family's residence. Patrauna's estate (the "Estate") filed suit against Yazoo City for wrongful death under the Mississippi Tort Claims Act (MTCA). The Yazoo County Circuit Court granted summary judgment in favor of Yazoo City (the "City") on all claims filed against it by the Estate, having found Yazoo City immune from liability under both the discretionary-function exception and the open-and-obvious exception contained in Mississippi Code Section 11-46-9. Miss. Code Ann. § 11-46-9(1)(d) and (v) (Rev. 2012).

         ¶2. The Estate appeals, maintaining that Yazoo City violated numerous city ordinances, along with certain federal regulations, when the City converted a portion of the drainage ditch downstream from the Hudson residence into a covered tunnel with two side-by-side culverts in 2007. The Estate argues that these laws imposed a ministerial duty upon Yazoo City, and the City breached that duty by failing to comply with all the mandatory requirements prescribed by these laws when the city implemented and carried out the 2007 project. Therefore, the Estate contends, the City is not immune from liability under Section 11-46-9(1)(d).

         ¶3. The Estate further maintains the trial court erred in finding that the "open and obvious" exception provided by Section 11-46-9(1)(v) was applicable in this case. The Estate says the flood danger caused by the City's failure to comply with these mandatory requirements was not open and obvious, and further, subsection (v) is inapplicable to a nine-year-old child who is incapable of negligence.

         ¶4. We find that the Estate's claim that Yazoo City is liable for the wrongful death of Patrauna that resulted from Yazoo City's failure to comply with its ordinances and federal regulations under the National Flood Insurance Program (NFIP), fails as a matter of law for failure to state a cause of action.

         ¶5. We also find that the Estate alleged in its complaint that Yazoo City was liable for negligently failing to maintain its drainage ditches. The Estate, however, abandoned this claim under the auspices of the test adopted by this Court in Brantley v. City of Horn Lake, 152 So.3d 1106 (Miss. 2014), which we recently overruled in Wilcher v. Lincoln County Board of Supervisors, 2016-CA-01429-SCT, 2018 WL 2371859 (May 24, 2018). Based on our de novo review of the record, there is slight evidence, which if developed further, may create a genuine issue of fact with regard to this claim. We find the Estate should be given the opportunity to do so.

         ¶6. Also, we find the trial court's ruling as to the open-and-obvious exception provided by Section 11-46-9(1)(v) was premature in this instance because factual questions currently remain, according to our review of the record.

         ¶7. Accordingly, we reverse and remand for further proceedings consistent with this Court's opinion.

         FACTS AND PROCEDURAL HISTORY

         ¶8. On April 6, 2014, an intense storm system moved through Yazoo City, pouring five to six inches of rain on the area in a short amount of time. Patrauna lived at the corner of Seventh Street and Lamar Avenue with her mother, Fannie Hudson, and several of her younger brothers and sisters, the family having moved there six months earlier.

         ¶9. At approximately 8:00 p.m., Fannie instructed the children to go to their rooms and get ready for bed. When Fannie went to check on the children, Patrauna's eight-year-old sister Patrice told Fannie that Patrauna had gone out the back door to go swimming. Patrice and the clothes she was wearing were soaking wet.

         ¶10. According to Fannie, the family's entire back yard was flooded with water from the ditch that evening, which came up to the back steps of the family home. Fannie did not know exactly how Patrauna had ended up in the water. She said Patrice told her that Patrauna had pushed her (Patrice) into the water, and after Patrice got out, Patrice then had pushed Patrauna into the water. Fannie said according to Patrice, once Patrauna was in the water, Patrauna tried to come back, but the water pulled her back toward the ditch.

         ¶11. Patrice later stated in an affidavit: "On the day my sister drowned [Patrauna] was outside in the backyard playing like she was swimming. When [Patrauna] got out by the clothes line the water start[ed] to pull her. She tried to come back but the water pulled her back until it pulled her into the ditch."

         ¶12. When Fannie went outside to look for Patrauna, she saw a police officer and other individuals on the street that runs alongside her house. They all appeared to be searching around the ditch. Fanny asked them if they had seen a little girl. The officer told Fanny to go back in the house to make sure she was not inside. Fanny went back inside and searched but could not find Patrauna.

         ¶13. Law enforcement and community members searched for Patrauna throughout the evening. Her lifeless body was found by a search team the following evening in a drainage ditch about four blocks from her family's residence.

         ¶14. In March 2015, the Estate filed suit against Yazoo City under the MTCA, claiming Yazoo City had failed to (a) warn Patrauna of the dangerous nature of the Seventh Street drainage ditch; (b) adequately maintain, repair, and inspect the drainage ditch; and (c) require construction and improvements be performed to the drainage ditch in accordance with existing engineering standards, with approval of the appropriate governmental agency.

         ¶15. Discovery ensued, during which numerous depositions were taken. The Estate submitted an affidavit from Gillian Butler, a private civil engineer in the field of hydrologic and hydraulic engineering. For her expert opinion, Butler relied on all the depositions taken in the case, along with Yazoo City ordinances, flood-insurance study reports, National Flood Insurance Program (NFIP) regulations, public-safety guidelines, and other information.

         ¶16. Butler submitted a report with her affidavit, detailing a hydraulic analysis she had conducted on two, side-by-side culverts installed downstream from Patrauna's residence in 2007. Each culvert is approximately 405 feet in length, and forty-eight inches and thirty-six inches in diameter, separately. According to Butler's report, the two culverts increased the flood height upstream by approximately two inches and the velocity of flood water at the culvert inlet by 0.35 feet per second.

         ¶17. Butler opined that, prior to 2007, "storm water appears to have flowed along Seventh Street between Lee Street and Prentiss Avenue in an open ditch (save for the Lee Street crossing)." Based on board minutes taken from a city council meeting held in February 2007 by the Mayor and Board of Aldermen, action was taken to purchase 800 linear feet of drainage pipe for the Seventh Street ditch. The project appeared to have begun in late March or early April 2007.

         ¶18. In Butler's opinion, the decision to convert the Seventh Street ditch between Prentiss and Lee Avenues into culverts should have triggered an application for a "floodplain development permit." In turn, the application should have included an engineering analysis, along with public-safety considerations under the guidelines and standards for the installation of long culverts. According to Butler, Yazoo City did not follow these guidelines and standards, and the failure to do so led to the dangerous condition that caused Patrauna's drowning.

         ¶19. James Wayne Morrison, a private civil engineer who provides engineering consulting services to Yazoo City, explained in his deposition that the Seventh Street drainage ditch is part of the Willis Creek drainage system, which was dug in the 1940s. This system originated as a series of open ditches throughout Yazoo City. Morrison said Yazoo City is protected by a levee, and everything that drains inside the levee eventually makes its way to Lake Yazoo, where it is then pumped over the levee into the Yazoo River.

         ¶20. In describing the course that rainwater runoff takes from Seventh Street to the Yazoo River, Morrison said the "water drains from the hills in a western direction to a lateral ditch through the lateral ditches of [Seventh] Street and then to Martin Luther King and traverses on to the south side of [Seventh] Street [where] it intersects the main trunk line of the Willis Creek Drainage District and then goes south into Lake Yazoo."

         ¶21. According to Yazoo City, the "Drainage District dissolved in 1995, [and] its land interests within the city limits were conveyed to Yazoo City, including the drainage easement that runs along Seventh Street." The only significant improvement project involving the Seventh Street drainage ditch between the time Yazoo City acquired the drainage easement in 1994 and the date of Patrauna's drowning occurred in ...


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