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Robinson v. Holmes County

Supreme Court of Mississippi, En Banc

September 26, 2019

BENJAMIN ROBINSON AND APRIL ROBINSON
v.
HOLMES COUNTY, MISSISSIPPI AND BRIERFIELD INSURANCE COMPANY

          DATE OF JUDGMENT: 11/22/2017

          HOLMES COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JANNIE M. LEWIS-BLACKMON

          TRIAL COURT ATTORNEYS: BOBBY L. DALLAS MICHAEL T. JAQUES RICHARD T. LAWRENCE ROY A. SMITH, JR. DENISE WESLEY STEVEN J. GRIFFIN JAMES COLLIN MALEY

          ATTORNEY FOR APPELLANTS: MICHAEL T. JAQUES

          ATTORNEYS FOR APPELLEES: ROY A. SMITH, JR. STEVEN J. GRIFFIN RICHARD T. LAWRENCE MICHAEL O. GWIN

          COLEMAN, JUSTICE.

         ¶1. Benjamin Robinson drove his employer's vehicle into the rear end of a stopped Holmes County garbage truck. The garbage truck was stopped picking up garbage on the side of the highway in dense fog. Robinson sued Holmes County and his uninsured motorist carrier, Brierfield Insurance Company. Robinson asserts that Holmes County was negligent in its operation of the garbage truck. Robinson also asserts a breach of contract claim, stating that Brierfield Insurance Company breached the insurance contract by denying him uninsured motorist benefits.

         ¶2. The trial court granted summary judgment and found not only that Holmes County was not negligent but also that it was immune under the Mississippi Tort Claims Act. The trial court further found that, since Holmes County was not negligent, Brierfield also is not liable as the uninsured motorist insurance provider. Robinson appeals.

         FACTS AND PROCEDURAL HISTORY

         ¶3. In the early morning hours of October 25, 2011, Robinson was driving to work in a truck owned by his employer and insured by Brierfield Insurance Company. Robinson described a "dense fog" and stated that he could not see the road. At the same time, a Holmes County garbage truck was stopped in the highway while employees picked up garbage. The fog obscured Robinson's vision, and he did not see the truck in time to stop. Robinson collided with the rear end of the garbage truck.

         ¶4. Robinson filed a complaint against Holmes County and Brierfield Insurance Company, seeking damages for injuries sustained in the collision. Robinson alleges Holmes County was negligent in its operation of the garbage truck. Specifically, Robinson asserts that the accident was caused by the garbage truck's blocking his lane of travel and by the failure of the workers to display reasonable warning devices. Robinson alleges Brierfield Insurance Company breached its contract by failing to pay him uninsured motorist benefits.

         ¶5. Holmes County filed its answer and defenses, denying all liability and claiming immunity under the Mississippi Tort Claims Act. Holmes County later filed its motion for summary judgment, seeking dismissal. Holmes County claimed immunity under Mississippi Code Sections 11-46-9(1)(q) and 11-46-9(1)(v) (Rev. 2015). Brierfield joined Holmes County's motion for summary judgment, in part, and included the additional argument that Robinson could not make a prima facie case that the Holmes County employees had been negligent in the first place. Brierfield contended that in the absence of negligence, it was not required to provide uninsured motorist coverage.

         ¶6. After a hearing, the circuit court granted Holmes County's amended motion for summary judgment. The court found that Robinson had failed to make a prima facie case of negligence against Holmes County and that Holmes County was entitled to discretionary function immunity under the tort claims act. After a motion by Brierfield, the circuit court issued its corrected order under Mississippi Rule of Civil Procedure 60(a), reiterating that "Holmes County should be granted immunity on all grounds." The corrected order clarified that "Holmes County was granted summary judgment because the fog was the sole proximate cause of the accident, " and it further clarified that the County's decision not to have a flag man present was a discretionary function because it "is immune and is therefore not negligent in the accident." The corrected order also granted Brierfield's motion for summary judgment.

         STANDARD OF REVIEW

         ¶7. "A trial court's grant or denial of summary judgment is reviewed de novo." Miss. Baptist Med. Ctr., Inc. v. Phelps, 254 So.3d 843, 844-45 (¶5) (Miss. 2018) (citing Leffler v. Sharp, 891 So.2d 152, 156 (Miss. 2004)). "Summary judgment is appropriate 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.'" Id. at 845 (¶ 5) (quoting Miss. R. Civ. P. 56(c)). Evidence will be viewed in the light most favorable to the nonmoving party. Estate of Northrop v. Hutto, 9 So.3d 381, 384 (¶ 8) (Miss. 2009). The "[nonmoving] party's claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict." Lott v. Purvis, 2 So.3d 789, 792 (¶ 11) (Miss. Ct. App. 2009) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1213 (Miss. 1996)). If no genuine issue of material fact exists to be resolved, then the moving party is entitled to judgment as a matter of law. Id. at 792 (¶ 11).

         DISCUSSION

         I. The trial court did not err in finding that Robinson failed to establish a prima facie case of negligence.

         ¶8. Robinson bears the burden of producing evidence establishing a prima facie case of negligence on the part of the Holmes County employees. Goodwin v. Gulf Transp. Co., 453 So.2d 1035, 1036 (Miss. 1984). If he cannot, then his claims against both Holmes County and Brierfield fail. Horton v. City of Vicksburg, 268 So.3d 504 (Miss. 2018). As was the case in Horton, Robinson's failure to make a prima facie showing of negligence obviates the need to address the immunity issues. Id. at 505 (¶ 1).

         ¶9. In today's case, viewing the evidence in the light most favorable to Robinson, he cannot hope to prove negligence at trial. The conduct of the Holmes County employees was not a proximate contributing cause of the accident.

         ¶10. Robinson alleges that the accident was caused "by the garbage truck's blockage of the lane of travel" and by the "failure of the garbage truck to display any adequate or reasonable warning devices, including lights." However, there is no evidence of negligence on the part of Holmes County. The only evidence of any type of negligence is Robinson's running into the rear end of the garbage truck in blinding fog.

         ¶11. In Robertson v. Welch, 134 So.2d 491, 491 (Miss. 1961), Welch was traveling too fast down a highway in "misty and foggy" weather; the defendant even admitted "you couldn't hardly see a thing." Id. at 491-92. The defendant's vehicle struck a pedestrian. Id. The defendant stated he never saw the pedestrian before hitting her. Id. at 493. The Court noted the defendant's legal duty to be on the alert for pedestrians and others using the highway and the defendant's legal duty to drive his automobile at such a speed necessary to avoid injury to others coming within the range of his lights. Id. The Court stated that "because of the condition of the weather, " Welch "had no right whatever to operate his automobile blindly down this highway at 35 miles an hour." Id. at 493 (citing Keith v. Yazoo & M.V.R. Co., 151 So. 916, 916 (1934)).

To all intents and purposes Welch, if he was telling the truth, might as well have been physically blind. It should be indelibly seared into the memory of all motorists that neither the law nor the courts can, or will, turn loose to kill and maim persons on the highways of this state, drivers, who are either physically blind, or are so indifferent to their responsibility to others that they do not see although they have eyes for that purpose.

Id. at 493-94. Welch's "conduct stands out as a glaring instance of unadulterated carelessness and negligence." Id. Based on the evidence, the Court found no negligence on the part of the pedestrian, and it found Welch's conduct, speeding in foggy weather, to be the sole cause of the accident. Id.

         ¶12. In Gartman v. Bush Construction Co., 227 So.2d 846 (Miss. 1969), the Court held that no fault or negligence on the part of a construction company and its driver could be shown after the plaintiff drove into a dense dust cloud and collided with the rear end of a construction water truck. The trial court granted a directed verdict against Gartman, finding that "there was nothing to keep [the plaintiff] from seeing the dust before he entered it without slacking his speed." Id. at 847. Reviewing the record, the Court was "unable to find any evidence of negligence" on the part of the construction company or its employee that the Court could conclude "caused or contributed to the accident." Id. Accordingly, the Court upheld the directed verdict in favor of the defendants. Id.

         ¶13. The record belies Justice Maxwell's position that the trial judge did not find that Robinson failed to make a prima facie showing of negligence. In her corrected order, the trial judge wrote in reference to the original order, "[I]t was the Court's finding that . . . Holmes County was not negligent . . . ." The trial judge clarified her earlier finding because she had failed to rule upon Brierfield's separate motion for summary judgment, in which Brierfield argued that because plaintiff could not make a prima facie showing of negligence, the plaintiff's claim for uninsured motorist benefits must fail.

         ¶14. Justice Maxwell is correct that, other than arguing causation, which pertains to both the weather-immunity provision and the common-law negligence elements, Holmes County did not expressly argue that Robinson failed to make a prima facie case of negligence. However, Brierfield, also a defendant, did. In its motion, Brierfield argued, "The plaintiffs have not and can not produce any evidence establishing a prima facie case of the following essential elements of negligence against the County (a) breach of duty or (b) proximate cause." The entirety of the trial judge's treatment of Brierfield's motion in the corrected order reads as follows:

At the time of the original order, the Court did not entertain the Defendant, Brierfield Insurance Company's Motion for Joinder in Holmes County's Motion for Summary Judgment, and realizes that Brierfield's motion should have been addressed at that time in that the motion was argued before the Court. It was the Court's finding that since Holmes County was not negligent, Brierfield Insurance Company was not liable. At the time of the original order, it was the Court's intent to grant Summary Judgment to Holmes County, as well as to Brierfield Insurance Company.

         The most apparent meaning of the above-quoted paragraph-especially given the trial court's use of the word "negligent" instead of immunity-is that the trial judge agreed with Brierfield's separate argument regarding plaintiff's failure to make a case of common-law negligence.[1] Brierfield's argument combined with the trial judge's second order entered for the express purpose of addressing it lead to the conclusion that the trial court granted summary judgment on both grounds: sovereign immunity as to Holmes County and the failure of the plaintiff to provide evidence of his negligence claim as to Brierfield.

         ¶15. Immunity from liability for negligence based on sovereign immunity differs from not being negligent. Given the difference between immunity from liability on one hand and failing to prove the elements of common-law negligence on the other, given the fact that one of the parties argued (and continues to argue on appeal) that Robinson failed to produce evidence as to all elements of his common-law negligence claim, and, finally, given that the trial court's finding that fog was the sole proximate cause of the accident pertains to the elements of a negligence claim but not to discretionary-function immunity, we cannot agree with Justice Maxwell that the trial judge only addressed immunity in her orders.

         ¶16. In any event, whether the trial court based its grant of summary judgment to the defendants on sovereign immunity, negligence, or both, we may affirm the lower court's grant of summary judgment for any sufficient reason apparent from the record. Cumminsv. Goolsby, 255 So.3d 1257, 1258-1259 (¶ 8) (Miss. 2018). As noted above, Brierfield argued the plaintiff's failure to make a prima facie case of negligence in its separate motion for summary judgment before the trial court. In its brief on appeal, Brierfield again argues that Robinson failed to offer "admissible evidence to establish the negligence of Holmes County and its employees." Brierfield argued that Robinson's failure to make a prima facie showing of ...


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