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City of Clinton v. Smith10/23/2003
hing all the evidence, the trial court determined that Lofton's injury was caused by the negligence of the City of Newton, by failing to warn and protect Lofton, who was an invitee, against the dangers present on said construction site. The trial court, sitting as the jury, determined that the condition was not open and obvious which is required for immunity to apply. The City of Newton failed to have present warning devices surrounding said construction site, which, if present, could have alerted Lofton to the danger.
Id. at 836.
. Unlike the facts in Lofton, Smith by his own testimony, during his deposition and during cross-examination, admitted that the ice and snow on the ramp was obvious for anyone to see. Based on Smith's admission, the facts present a situation of an open and obvious condition which is required for immunity pursuant to Miss. Code Ann. § 11-46-9(1)(v). Therefore, we find that the trial court erred in not granting the City immunity pursuant to Miss. Code Ann. § 11-46-9(1)(v). As this issue is dispositive of the case, we will not address comparative negligence raised on appeal by the City in its second issue.
CONCLUSION
. For the foregoing reasons, we find that the trial court erred in not finding the City immune under Miss. Code Ann. § 11-46-9(1)(v). Therefore, we reverse the judgment of the Circuit Court of Hinds County awarding Smith $150,000, and we render judgment here in favor of the City finally dismissing Ernest Smith's complaint and this action with prejudice.
. REVERSED AND RENDERED.
PITTMAN, C.J., SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
McRAE, PRESIDING JUSTICE, DISSENTING:
. The majority erroneously finds that the circuit court erred in rendering judgment in favor of Ernest Smith for personal injuries he received as a result of a fall he sustained on the handicap ramp of the City of Clinton municipal court building. The majority fails to give deference to the circuit court judge who presided in a bench trial and both viewed the evidence and the witness testimony. After reviewing the evidence and applying Miss. Code Ann. § 11-46-9(1)(v) (Rev. 2002), the circuit court judge correctly found the City of Clinton liable for Smith's injuries. His findings were based on substantial credible evidence and should not be overturned. The circuit court correctly found and the evidence clearly established that Smith exercised ordinary care in descending the handicap ramp, the City of Clinton had either actual or constructive knowledge of the hazards created by the ice on the handicap ramp, the City of Clinton took absolutely no precautionary measures to ensure the safety of individuals entering and exiting the building, and the conditions created by the ice were not obvious. For these reasons, I dissent.
. Actions brought under the Mississippi Tort Claims Act ("MTCA") are conducted by bench trial where the trial judge sits as trier of fact. Miss. Code Ann. § 11-46-13(1) (Rev. 2002); Simpson v. City of Pickens, 761 So.2d 855, 860 (Miss. 2000); City of Newton v. Lofton, 840 So.2d 833, 835 (Miss. Ct. App. 2003). The trial court's findings will not be disturbed unless the judge "abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id. at 836. Furthermore, the trial judge's findings of fact are safe on appeal if "supported by substantial, credible, and reasonable evidence." City of Jackson v. Perry, 764 So.2d 373, 376 (Miss. 2000). However, errors of law are reviewed de novo. Id.
. With the above standards
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