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Spoo v. T.L. Wallace Construction Co.10/28/2003
n opposing summary judgment, Tabatha argues this is evidence of proximate cause-had Wallace not been negligent in placing barriers and barrels, Dale would not have been able to drive around them. The fact that Dale had previously driven the unopened road by going around the barricades merely emphasizes his knowledge that the road was closed and under construction. We know of no authority requiring a contractor to completely block the entrance to an unfinished road with an immovable barrier nor does Tabatha point us to any. We do, however, have authority which states that one who drives around or through any barricade of an officially closed highway or road is guilty of a criminal misdemeanor. Miss. Code Ann. § 63-3-321 (Rev. 1996).
. It is also equally apparent that Dale did not exhibit the necessary degree of care while traveling the bypass road. Tabatha either admits or does not dispute the following facts: Dale had a blood alcohol level of 0.12%. This exceeds the legal limit of 0.08% to drive a car. Miss. Code Ann. § 63-11-30(1) (Rev. 1996). The autopsy report also showed recent consumption of marijuana. Expert opinion held that the result of the drug and alcohol ingestion was a significant impairment of Dale's judgment, perception and motor skills. Dale was driving between fifty and fifty-five miles per hour on an unpaved, unfinished road. The vehicle had only one functioning headlight and the accident occurred just after midnight.
. The driver of a motor vehicle is required to keep the vehicle under control and drive at a speed reasonable for the conditions faced. Upchurch ex. rel. Upchurch v. Rotenberry, 761 So. 2d 199, 205 ( 24) (Miss. 2000). Dale did nothing to accommodate either the conditions of the road or his own impaired status. Had the signs been absent from the road entrances, Dale would have still failed to keep the proper lookout. The conditions of the road-unpaved, unlighted, littered with construction debris and equipment-indicated that great care needed to be paid under the circumstances. The only reasonable conclusion to be drawn from the undisputed facts is that Dale did not exercise vigilant caution and a constant lookout for danger. By driving impaired and failing to account for the conditions of the road, he failed to exhibit even ordinary caution. We particularly note that in no pleading or otherwise has Tabatha attempted to argue or otherwise persuade that Dale's actions on the night of October 30, 1999, met the requisite standard of care he assumed by knowingly driving on a road under construction. Her only argument is that Wallace should have done more.
. Tabatha argues that despite the barricades and signs, Wallace may yet have proximately caused her injuries because Wallace failed to comply with the Mississippi Department of Transportation traffic control plan. The plan called for the placement of eleven barrels at the Highway 35 site but Wallace only had seven, a fact Wallace does not dispute.
. Having only seven barrels instead of eleven does constitute non- compliance with the traffic plan. It is not, however, proximate cause, nor does it create a reasonable question on the issue unless Tabatha can make a sufficient showing that the absence of these four barrels somehow led Dale Spoo to reasonably believe the road was finished, open to the public and free of construction obstacles such that he need only exercise ordinary care. This Tabatha cannot do nor, again, has she attempted to do so.
. We have already agreed with the trial court that the notices given were legally sufficient for Wallace to discharge its duty of care. Tabatha's own witnesses, Denise Spoo and Michael Kellum, testified by deposition that the barrica
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