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City of Clinton v. Smith10/23/2003
al entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which 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.
Miss. Code Ann. § 11-46-9 (1)(v).
Applying the foregoing to the facts in this case, the court finds that the City of Clinton is responsible for Ernest Smith's injury. The evidence is clear that officials of the City of Clinton had either actual or constructive knowledge of the dangerous condition surrounding the entrance to the municipal building. It is equally clear that no precautionary measures were taken until after Mr. Smith fell and sustained his injury. Consequently, the shield of absolute immunity is not available to the City of Clinton and it is liable to Smith for damages for the injuries he sustained in the February 5, 1996, fall in front of the City of Clinton Municipal Building.
. This Court's standard of review of a judgment from a bench trial is well settled. "'A circuit judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,' and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence." Maldonado v. Kelly, 768 So.2d 906, 908 (Miss. 2000) (quoting City of Jackson v. Perry, 764 So.2d 373, 376 (Miss. 2000) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss. 1993); Sweet Home Water & Sewer Ass'n v. Lexington Estates, Ltd., 613 So.2d 864, 872 (Miss. 1993); Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss. 1992)).
. Based on Smith's testimony during cross-examination, the trial court erred in its analysis by ignoring the entire language of Miss. Code Ann. § 11-46-9(1)(v), that "a governmental entity shall not be liable for failure to warn of a dangerous condition which is obvious to one exercising due care." At trial and in his deposition, Smith admitted that the steps and ramp were covered with enough snow and ice for any human eye to see and that he wasn't paying attention as he left the building holding his money and a receipt.
. As an example of the application of Miss. Code Ann. § 11-46-9(1)(v), the Mississippi Court of Appeals recently addressed this issue in City of Newton v. Lofton, 840 So.2d 833, 836 (Miss. Ct. App. 2003). The City of Newton contended that "the trial court misapplied the law to the facts of this case erroneously determining that the City of Newton was not immune from liability under Miss. Code Ann. § 11-46-9 (1)(v)." 840 So.2d at 835. In an effort to attend a junior-senior prom held in the Newton Middle School gymnasium, Lofton had parked her vehicle in a parking lot to the rear of the gymnasium and walk a path across a grassy area and through a construction site. Id. at 834-35. The City was doing construction in order to improve drivers' visibility in the area. Id. at 835. Witnesses testified that there was an absence of warning signs and that construction was not completed. Id. "Lofton sustained a compound fracture to her leg and incurred medical expenses totaling $18,135.00." Id. Lofton "endured three hospital stays and years of rehabilitation to retain use of her leg." Id. The trial court conducting a bench trial awarded Lofton $155,054.25. Id. In upholding the trial court's award, the court held that:
The trial court used the statute to determine, based on the facts of the case, if the statute provided immunity for the City of Newton. After weig
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