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Spoo v. T.L. Wallace Construction Co.10/28/2003
des were up and in place and Dale had to drive around them in order to access the bypass road. Denise did state she thought the barricade on one of the ramps had been moved to one side. Dale, however, did not access the bypass via one of the ramps, but rather by driving around the barricades at the two-lane main entrance.
. Tabatha further argues that Wallace was negligent by removing the dirt ramps to Bridge C because it had knowledge the public was using the road, and the bridge, thereby creating a dangerous condition for which additional barricades or signs should have been placed at the entrance to the affected bridge.
. Wallace does not dispute there was evidence people were using the road. A Wallace supervisor stated at deposition that on nights and weekends the barricades were sometimes moved and workers would see tire tracks at the site. There was testimony that Dale Spoo made unauthorized use of the road on previous occasions.
. This does not change or increase Wallace's duty. The contractor's duty is to warn that the road is under construction. Having fulfilled this initial duty by barricading and placing signs at each possible entrance, Wallace was not required to place additional signs or barriers around a particular hazard within the barricades. Blaine v. Sullivan, 204 So. 2d 436, 438-39 (Miss. 1967). That people in the community would at times make use of the unfinished bypass does not change this. Id. at 438. One who chooses to ignore the warnings and enter such a road does so at one's own peril. Central Paving & Constr. Co. v. McCaskin, 183 Miss. 814, 824, 184 So. 464, 466 (1938).
. We are aware that Tabatha's expert reconstructionist opined that the accident would not have occurred had Wallace made certain the public could not enter the bypass, that the knowledge of the public's use of the bypass required Wallace to take additional steps. That is not the law. It is axiomatic that all accidents could be avoided if only someone somewhere would do something differently. The question of law we address here is not whether something else could have been done differently but rather whether there was a breach of the duty owed by Wallace by failing to do that which was required. There was not.
. We are also aware that Tabatha's injuries were not the result of her own negligence. As a passenger in the vehicle, she was at the mercy of her uncle's imprudent actions. Although she was not the driver, any negligence Dale may have shown would not be attributable to Tabatha and she could have recovered if Wallace was in any degree the proximate cause of her injuries. Id. at 825. This rule does not aid a passenger when the sole proximate cause of loss was the driver. Id.
. Summary judgment is proper when, after adequate discovery and upon motion by a party, the non-movant fails to make a showing sufficient to establish the existence of an essential element to that party's case and upon which that party would bear the burden of proof at trial. Galloway v. Traveler's Ins. Co., 515 So. 2d 678, 684 (Miss. 1987). In such cases, there can be no genuine issue of material fact for jury determination as a complete failure concerning an essential element necessarily renders all other facts immaterial. Id. at 683 (quoting Celotex Corp. Catrett, 477 U.S. 317, 322 (1986)).
. Tabatha admits that barriers and signs were in place and that all who approached had notice of the road's status as closed for construction. This admission means Tabatha cannot prove an essential element of a negligence claim and one for which she would bear the burden of proof at trial-that Wallace breached its duty of care. The only way by which Tabatha coul
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