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City of Clinton v. Smith10/23/2003
in mind, the applicable statute at issue is Section 11-46-9(1)(v) of the MTCA, Miss. Code Ann. § 11-46-9(1)(v), which specifically provides:
A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
Arising out of an injury caused by a dangerous on property of the governmental 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 failure to warn of a dangerous condition which is obvious to one exercising due care.
Miss. Code Ann. § 11-46-9(1)(v). Under this section, the governmental entity and its employees may not be liable for premises conditions under any of the following:
1. A dangerous condition on the property of the governmental entity which was not caused by the negligence or other wrongful conduct of an employee of the governmental entity;
2. A dangerous condition on the property of the governmental entity for which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; and/or
3. An open and obvious condition which is obvious to one exercising ordinary care despite the governmental entity's failure to warn.
The specific requirements for each are separate and distinct as each of the three have been laid out by statute. Each of the three will be addressed individually below, and the requirements for each will be discussed.
1. A dangerous condition on the property of the governmental entity which was not caused by the negligence or other wrongful conduct of an employee of the governmental entity.
. Obviously, under this condition for absolute immunity, the City of Clinton is not liable to Smith. The dangerous condition, that being the ice on the handicap ramp, was not caused at all by the governmental entity or any of its employees. The ice as a dangerous condition was caused by an act of God, the weather.
2. A dangerous condition on the property of the governmental entity for which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against.
. This condition for absolute immunity requires further inquiry than the one discussed above. The condition turns upon whether the City of Clinton had (1) actual or constructive knowledge (also referred to as "notice"); and (2) whether it took proper precautions to warn if it had such notice.
. Actual knowledge requires a finding that the City of Clinton through its employees knew of the dangerous condition, that being the ice on the handicap ramp. Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss. 1992). Constructive knowledge is established "by proof that the condition existed for such a length of time that, in the exercise of reasonable care, the proprietor should have known of it." Id. (quoting Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 385 (Miss. 1986)). A proprietor or governmental entity is said to have constructive knowledge when in the exercise of ordinary care it "should have known of the condition." Id. See also Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994); Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (Miss. 2000).
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