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Spoo v. T.L. Wallace Construction Co.10/28/2003
had only one functioning headlight prior to the accident. Autopsy results show Dale had a blood alcohol level of 0.12% at the time of impact, as well as the presence of marijuana metabolites of sufficient levels to establish Dale had ingested marijuana within the several hours before his death.
. Tabatha later filed suit against Wallace, claiming negligence for failing to erect barriers that would keep the public from entering the bypass, and for creating a hazard by removing the dirt ramps with the knowledge that the public utilized the unfinished road including the bridges. After discovery, Wallace moved for summary judgment which was granted on the basis that Dale Spoo was the sole proximate cause of Tabatha's injuries.
ANALYSIS
. Because each of the assignments of error may be resolved upon the same bases, we combine them for discussion. For appeals from summary judgment, we employ a de novo standard of review. Lewallen v. Slawson, 822 So. 2d 236, 237 ( 6) (Miss. 2002).
. In order to succeed on a claim of negligence, as Tabatha here complained, the plaintiff must establish four elements:
(1) A duty, or obligation, recognized by law, requiring the person to conform to a certain standard of conduct for the protection of others against unreasonable risks.
(2) A breach of the duty, a failure on the person's part to conform to the standard required.
(3) A reasonably close causal connection between the conduct and the resulting injury.
(4) Actual loss or damage resulting to the interests of another.
Carpenter v. Nobile, 620 So. 2d 961, 964 (Miss. 1993).
. The duty owed by the contractor of a roadway under construction and not yet open to unrestricted public use is to give legally sufficient notice to a traveler that the road is, in fact, under construction and, attendant with that status, the traveler should anticipate impediments to his passage. Graves v. Johnson, 179 Miss. 465, 479, 176 So. 256, 260 (1937). Once that notice has been conveyed, the driver is obligated to maintain vigilant caution and keep a constant lookout for perils. Id. Although most authority on this standard of care is of older vintage, the vigilant care requirement for drivers of roads under construction was very recently discussed by this Court and it is still the applicable standard. Mississippi Dept. of Transp. v. Trosclair, 851 So. 2d 408, 417-18 ( 31-32) (Miss. Ct. App. 2003).
. From this standard are drawn two crucial questions: (1) whether Wallace gave notice sufficient that Dale Spoo knew, or should have known, that the bypass road was still under construction and (2) if so, did Dale Spoo then exercise the necessary degree of care in response to this knowledge. Graves, 179 Miss. at 480, 176 So. at 260. Although we need not address the second question unless the first is answered in the affirmative, the answer to both of these questions is unequivocal: Yes, to the first. No, to the second.
. Without doubt, Dale Spoo knew the road was still under construction. All entrances from Highway 35 were barricaded and signs announced the road was closed. Tabatha does not even attempt to argue otherwise as she admitted during discovery the bypass was still under construction on October 30, 1999. Even without this admission, no reasonable jury could find that twelve foot barricades, barrels and signs in the middle of each entrance were insufficient to give notice that the road was under construction.
. Dale had previously avoided the barricades and traveled the unopened road. In her motio
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