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City of Clinton v. Smith10/23/2003
ted to $553.50.
. Smith was also treated by Dr. Leonard Edwards, a chiropractor. Dr. Edwards initially saw Smith on March 19, 1997, for arm, neck and head pain related to a fall on February 5, 1996. Based on his examination, Dr. Edwards determined that Smith exhibited weakness and a loss of agility in his right hand. Dr. Edwards stated that within a reasonable degree of medical certainty, the fall caused the difficulty Smith was experiencing. The course of treatment that Dr. Edwards provided consisted of "working with the cervical spine as well as the extremity to increase the range of motion to the extremity to increase usage of the hand." Dr. Edwards also used cryotherapy on Smith. After Smith's adjustment, Dr. Edwards placed Smith in cervical traction with ice applied to the neck to increase the natural lordosis or curvature of the neck and also to the extremity. Smith was told to continue ice therapy at home on a daily basis. Dr. Edwards continued treatment until the visit on May 5, 2000.
. Dr. Edwards determined that within a reasonable degree of medical probability that Smith would have permanent limitations as to any twisting motion of his hand as a result of the fall. Dr. Edwards's charges for chiropractic care amounted to $14,291.00. Dr. Edwards stated that none of his charges had been paid.
. Dr. Edwards stated that within a reasonable degree of probability, Smith would need future chiropractic care. Dr. Edwards testified the cost of chiropractic treatment would be $6,240.00 a year.
. Smith introduced Medicaid's statement of payments made in connection with medical services provided and pharmacy payments made as a result of the accident dated February 5, 1996. The statement indicated payment of $8,077.26 by Medicaid.
. After a bench trial on December 18, 2001, briefs were submitted, and Judge Kidd rendered his opinion in favor of Smith, awarding damages of $150,000. Judgment was entered from that sum. From that judgment, the City appealed to this Court, raising the following issues:
I. Whether the City is entitled to absolute immunity under Miss. Code Ann. § 11-46-9(1)(v).
II. Whether the trial court failed to apply the doctrine of comparative negligence.
DISCUSSION
. On appeal, the City contends that it is entitled to immunity from liability to Smith pursuant to Miss. Code Ann. § 11-46-9(1)(v) (Rev. 2002). However, Miss. Code Ann. § 11-46-9(1)(v) provides that governmental entity shall not be liable for any claim:
Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee if the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care[.]
(emphasis added).
. In awarding damages of $150,000 against the City, the trial court stated:
The City of Clinton claims absolute immunity from suit in this case based upon Mississippi Torts Claim Act exemption found in § 11-46-9 (1)(v) which states in pertinent part:
(1) A governmental entity and its employees action within the course and scope of their employment or duties shall not be liable for any claim:
...
(v) Arising out of an injury caused by a dangerous condition on property of the government
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