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City of Clinton v. Smith10/23/2003
. Based on the evidence presented, the circuit court found that the City of Clinton had actual and/or constructive knowledge of the ice on the handicap ramp and that no precautions were taken to warn its citizens using the building. Even based on the majority's facts, the circuit court's findings are justified. The City of Clinton had been struck by a severe ice storm. There is no possible way the City and its employees could argue that they were unaware that ice was on the ground, sidewalks, steps, and handicap ramps located outside the municipal court building. The City maintained no warnings or flags regarding the ice present outside of the buildings entrance. Since the circuit court judge presiding in a bench trial was the trier of fact, his findings are to be given great deference. Miss. Dep't of Transp. v. Cargile, 847 So.2d 258, 263 (Miss. 2003) (collecting authorities). This deference recognizes that conflicting evidence and testimony, even as to actual or constructive knowledge, must also be upheld unless "substantial credible evidence" does not support his findings. Id. We must review the "entire record and must accept that `evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact.' " Id. (quoting K-Mart Corp. v. Hardy ex rel. Hardy, 735 So.2d 975, 980 (Miss. 1999) (citations omitted)). As the evidence clearly supports the circuit court judge's findings, this Court should not second guess his good judgment, especially in light of the fact that he viewed the evidence and heard the testimony of the witnesses.
3. An open and obvious condition which is obvious to one exercising ordinary care despite the governmental entity's failure to warn.
. The last condition for absolute immunity requires an "obvious condition" to one "exercising ordinary care." Under this condition, the City of Clinton is not required to warn its residents of the dangerous condition.
. Whether a condition is "obvious" is a question of fact. Huffman v. Walker Jones Equip. Co., 658 So.2d 871, 873 (Miss. 1995); City of Newton, 840 So.2d at 836. A determination of just how "obvious" a condition is turns upon the fact finder's analysis of the evidence presented. Tate v. Southern Jitney Jungle Co., 650 So.2d 1347, 1350 (Miss. 1995) (collecting authorities).
. Under the circumstances, the circuit court, as the fact finder, determined that based on the evidence presented the dangerous condition was not "obvious" and that Smith used "ordinary care." His findings are supported by "substantial credible evidence" and should not be disturbed. City of Newton, 840 So.2d at 836. Despite the majority's attempt to misconstrue Smith's testimony, his testimony does not reveal that he was on "notice" of the dangerous condition on the handicap ramp or that such condition was "obvious." The segment of his testimony cited by the majority only proves that Smith was aware of ice on the steps of the municipal court building and not on the handicap ramp of the municipal court building. In fact, Smith's testimony reveals that he was using "ordinary care" by choosing to descend by way of the handicap ramp instead of the steps after having noticed the ice on the steps on his way into the building.
. The trial court heard the testimony of the witnesses and evaluated Smith's claim on a first-hand basis. His findings should be given respect and deference. Accordingly, I would affirm the circuit court's judgment. For the above-stated reasons, I dissent.
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