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City of Newton v. Lofton3/25/2003
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 03/25/2003
. The City of Newton was found 95% negligent by failing to warn and protect Bernice Lofton, who was an invitee, against dangers present at the construction site near Newton Middle School in Newton, Mississippi. Aggrieved, the City of Newton asserts the following on appeal:
I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN MISAPPLYING THE RELEVANT PORTIONS OF THE MISSISSIPPI TORT CLAIMS ACT.
II. THE TRIAL COURT ERRED IN FAILING TO PROPERLY ASSESS CONTRIBUTORY NEGLIGENCE.
III. THE TRIAL COURT ERRED IN AWARDING AN UNREASONABLE AMOUNT OF DAMAGES.
Finding no error, we affirm.
FACTS
. On March 26, 1999, a junior-senior prom was held in the gymnasium of Newton Middle School in Newton, Mississippi, a municipal corporation. On said evening Bernice Lofton accompanied by her daughter, Teresa Hart, and her son-in-law, Allen Hart, traversed to the school gymnasium with the intentions of seeing Bernice Lofton's granddaughter as she participated in the "lead out". This is a processional at the prom wherein all of the participants parade in their gowns. Lofton and her party parked their vehicle in a parking lot to the rear of the gymnasium and began to walk a path across a grassy area near the gymnasium. In order to get to the gymnasium Lofton had to negotiate her way through a construction site, where the City was attempting to improve visibility for drivers. Lofton in attempting to step up the curb, which was recently constructed, apparently tripped and fell, breaking her ankle. Lofton sustained a compound fracture to her leg and incurred medical expenses totaling $18,135.
. Witnesses present at the time of the injury and others present shortly after the injury occurred testified that there was an absence of warning signs and that the construction on the curb was not completed and, if completed, it was not satisfactory. Witnesses not present at the time of the accident ,but active participants in the construction of the curb as well as the safety of the work site were presented. Numerous State witnesses, who personally worked at the site during construction, testified to the completion of the project, one stating he personally "packed the dirt" at the edge of the curb so as to provide a level amalgamation of the ground with the curb. These witnesses testified as to the completion of the construction and the complete absence of hazards from the construction as well as to the safety warnings that were present when they left the construction site earlier that same day.
. Lofton was treated for her injury and endured three hospital stays and years of rehabilitation to retain use of her leg. She had surgery and pins and screws were required to hold the ankle in place. Due to the extreme pain caused from the injury, Lofton is unable to take part in normal day to day activities. She was awarded $155,054.25, which was nine times her medical expenses minus five percent, her percentage of contributory negligence.
ANALYSIS
I. DID THE TRIAL COURT ERR AS A MATTER OF LAW BY MISAPPLYING THE RELEVANT PORTIONS OF THE MISSISSIPPI TORT CLAIMS ACT?
. The City of Newton contends 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. ยง 11-46-9(1)(v) and (1)(w).
. This case was brought under this state's Tort Claims Act, which permits negligence actions against state agencies under certain conditions that include the requirement that, if the matter comes to trial, it
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