IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01117-COA KENNETH L. OSTROWSKI JR. APPELLANT

v. CITY OF D’IBERVILLE, MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/16/2017 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: MICHAEL JOSEPH YENTZEN ATTORNEY FOR APPELLEE: NANCY L. SIPLES BRUMBELOE NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 06/05/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ. LEE, C.J., FOR THE COURT: ¶1. Kenneth O strowski Jr. s ued the City of D’Iberville, Mississippi, under the Mississippi
Tort Claim s Act (MTCA) 1 f or dam ages he sustained in a m otor-vehicle acci d e nt. The Harrison County Co unty Court granted the C i ty ’s m otion f or sum m ary judgm ent, f

inding that it was im m

une f rom liability under Mississippi Code Annotated section 11-46-9(1)(q) (Rev. 2012). Ostrowski appealed to the Harrison C ounty Circuit Court, Second Judicial District, and the circuit court af

f irm ed t he county court’s decision. In this appeal, we m ust determ ine whether t he circuit court erred in af f irm ing the c ounty court’s decision. Finding n o error, we

1 M iss. C o d e A n n . § § 1 1 -4 6 -1 to -2 3 (R e v . 2 0 1 2 & S u p p . 2 0 1 7 ).af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. O n May 1 0 , 2014, Ostrowski was driving on a city r oad during a heavy r ain s t o r m when he struck a displaced m anhole c over, causing his car to slide a n d s t r i k e t h e curb. Ostrowski’s car f

lipped and landed on its side on the property adjacent t o the road. He stated

t h a t h e w a s driving below the posted speed lim it. Ostrowski was injured, a n d his car was dam aged. ¶3. In his com

pl a i n t , O s t r o w s k i alleged that t he m anhole c over was displaced due to “rising water b ecause of design and def iciencies” of t he City ’s sewer sy stem

. In support of his argum ent, Ostrowski produced an af f idavit f rom a civil engineer, Dreux Seghers. In his af f idavit, Seghers stated that the m anhole cover was displaced due to rain water i ncreasing the volum e of w ater in the sewer sy stem and that repairs were necessary to m inim ize the f low of r ain water or ground water into the s ewer sy stem

. However, the county court determ ined that Seghers’s af

f idavit w as not adm issible since it did not m eet the cr i t eria of Mississippi Rule of Evidence 7 02. On a p peal to the circuit c ourt, the circuit c ourt f ound no abuse of discretion by the county court i n excluding Seghers’s af f idavit. Ostrowski does not raise the issue of the adm issibility

of Seghers’s af

f idavit in this appeal. ¶4. Ostrowski did not produce a d d itional evidence that the sewer sy stem contained design d e f i ciencies or that the C ity knew or s hould have known that the m anhole cover w o u l d b e displaced by rising wate r . T he record is s ilent as to whether the m anhole cover had been displaced by

rising water prior to Ostrowski’s accident.

2STANDARD OF REVIEW

¶5. The grant or denial of a mo t i o n f o r s u mma r y j u d g m e n t is r eviewed de novo. Karpinsky v. Am. Nat’l Ins. Co. , 109 So. 3 d 84, 8 8 (¶9) (Miss. 2013). W e view the evidence “in t h e l i g h t m o st f

avorable to the party against whom the m otion has been m ade.” Id

. Sum m ary judgm ent is p r oper when “the pleadings, depositions, an s w e r s t o interrogatories and a dm issions on f

ile, together with the af

f idavits, if any , show that t here is no genuine issue as to any

m aterial f

act and that the m oving party is entitled to a judgm ent as a m atter of law.” M.R.C.P. 56(c). “The m ovant bears the burden o f persuading the trial j udge that: (1) no genuine issue o f m aterial f act exists, and (2) on the basis of the f acts established, he is entitled to judgm ent a s a m atter of law.” Karpinsky , 109 So. 3d at 8 8 (¶11). Further, if at trial, the m ovant would bear the burden of proof , he also bears the b urden o f production f or

sum m ary judgm ent. Id

. However, the nonm ovant m ay not “rest u pon the m ere allegations

or denials of h is pleadings.” M.R.C.P. 56(e). T h e nonm o vant mu s t respond “by af f idavits

or a s otherwise p r ovided in [ Rule 56],” a n d he “m ust set f orth specif

ic f acts showing that there is a genuine issue f or trial.” Id. “If he does not so r e s p o n d , s u mma ry j udgm ent, if appropriate, shall be entered against him .” I d

. ¶6. W e also u se a de novo sta n d a r d o f r e view regarding the application of the MTCA. City of Jackson v. Harris , 44 So. 3d 927, 931 (¶19) (Miss. 2010).
DISCUSSION ¶7. Section 11-46

- 9 ( 1 ) ( q ) p r o v i d e s i mmu n i t y t o a g o v ernm ental entity f or claim s “[ a]rising out o f an injury caused solely by the e f f e c t o f weather conditions on the use of

3streets and h ighway s.” I n his only issue o n appeal, Ostrowoski argues that section 11-46-

9(1)(q) was not applicable since the rain was not the sole cause of his a c cident; rather, the City ’s negligence in m aintaining the sewer sy stem caused t he m anhole c over to be displaced during the rain storm

. A s a result, Ostrowski a r g u e s t hat the City ’s negligence was the proxim ate cause of

his injuries. ¶8. Few cases discuss this particular governme n t a l i m m unity

. In one case, a dense f og had c reated lim ited visibility on a county road. Hayes v. Greene Cty. , 932 So. 2d 831, 832 (¶2) (Miss. Ct. App. 2005). A county -operated garbage truck had stopped in the road, and the plaintif

f stopped to avoid hitting the garbage truck. Id. However, another driver, with lim ited visibility due to the f og, struck the plaintif

f ’s car f rom behind, c ausing dam age. Id. The plaintif

f sued the county , but the t rial court granted sum m ary judgm ent, f inding section 11-46-9(1)(q) applied. H ayes , 932 So. 2d at 832 (¶2)

. W e af f i rm ed, f i n d i n g t h at “[ t]he testim o ny of [ the plaintif

f ] and [ the s econd driver] was suf f icient to establish the dense f og

as t he cause of the collision, a nd thereby af f ord to [ the county ] t he prot e c tion of [ section] 11-46-9(1)(q).” Hayes , 932 So. 2d at 832 (¶8). ¶9. In S

chepens v. City of

Long Beach , 924 So. 2d 620, 623 (¶12) (Miss. Ct. App. 2006), the property owners claim ed dam ages due to p o t h o l e s in the dirt road leading to their property

. The road deteriorated a f ter rain s torm s, resulting in potholes. I d

. The property

owners sued the City of Long B each f o r f ailure to im

prove a nd m aintain the road. Id. at 622 (¶5). This Court f

ound several p rovisions of t he MTCA provided i m m unity t o the City , including section 11-46-9(1)(q). Schepens , 924 So. 2d at 623-24 (¶¶11-13). A lthough there

4was testim ony that the road needed to be graded af ter rainstorm s to pre v e n t p o t holes, we f ound that the property owners’ claim “arose f r om an injury which resulted solely f rom the ef f ect rain had on” the road in question. Id. at 623 (¶12). ¶10. In W

i lling v. Estate of Benz , 958 So. 2d 1240, 1253 (¶36) (Miss. Ct. App. 2007), this
Court f ound the governm ental entity could n ot be liable f or an accident caused by a patch of ice on the road. W e f

urther discussed our holding in Schepens , stating:
W e did not hold in Schepens that the city did not have a duty

to m aintain the roads, only that the city was im m une under the circum stances f or any a lleged f ailure to p e r f

o r m t h at duty because the accident at issue was caused by potholes w hich w ere in turn caused by the ef f ects of weather on the dirt r oad. [ Schepens , 924 So. 2d at 623 (¶12).] Sim ilarly , w e do not hold in the case sub judice that the City o f Greenwood did not have a duty t o warn of the patch of ice on the highway , we hold that the city is im m une f r om any alleged breach of t hat duty because the ice was caused s olely by the “ef f ect of weather on the use of streets and highway s.”
W illing , 958 So. 2d at 1254 (¶38) (citations om itted). ¶11. The m o st recent case concerned an accident on a road where water had p ooled af ter

a r a i n s t o r m. L e e v. M

iss. Dep’t of Transp. , 37 So. 3 d 73, 75 (¶2) (Miss. Ct. App. 2009), overruled by L ittle v. Miss. Dep’t of Transp. , 1 29 S o. 3d 132, 138 (¶11) (Miss. 2013). The trial c o urt granted the Mississippi Departm ent o f T ransportation’s (MDOT) m otion f or

sum m ary judgm ent, f

inding s everal provisions of the MTCA provided im m unity to MDOT.
Lee , 37 So. 3 d a t 8 1 ( ¶ ¶ 2 2-23). W e identif i ed several events contributing to the accident, including MDOT’s notice of the ruts in the road, MDOT’s responsib i l i ty f or road

m aintenance, the pooling of the w ater caused by t h e r u ts in the road, and the speed of the driver that caused the accident. I d. at 76, 79 (¶¶6, 1 5). I n regard to t he application of section

511-46-9(1)(q), we held that the weather was the sole cause of the accident—“the rutting of

the [ r oad] m ay have heightened the risk of hy droplaning, but nonetheless, it was an open and obvious c o ndition caused solely by the ef f ect of weather.” Id. at 80 (¶20). W e f urther held that roadway m aintenance was a discretionary f u n c t ion; thus, M DOT was e ntitled to im m unity under section 11-46-9(1)(d). Lee , 37 S o. 3d at 77-78 ( ¶¶8-9). H owever, Lee was reversed by the Mississ i p p i S u p r em e Court in Little v. M ississippi Department of Transportation , 129 So. 3d 132, 138 (¶11) (Miss. 2013). The court in Little clarif ied the

s t a n d a r d fo r d e t e r

m i n i n g w h e t

h e r d i s c r e t i o n ary f

unction i m m

unity applied and c oncluded that the f unction of

roadway m aintenance was m inisterial s i nce it was m andated by statute. Id. ¶12. Here, b o t h O s trowski and the City agreed that the m anhole cover was displaced by rising water. T he burden t hen shif ted to Ostrowski to respond “by af f idavits or as o therwise provided in [ Rule 56],” a nd t o “set f orth specif

i c f acts showing that there is a genuine issue
f or trial.” M

. R

. C

. P

. 5 6(e). Although Ostrowski claim e d that the cover was displaced due

to either a f

aulty design o r d e f

i c i e n c i es in the s ewer sy stem , h e f ailed to create a genuine issue of m aterial f

a ct “by af f idavits or as otherwise provided” that the m anhole cover was not displaced solely by the ef

f e ct of the rain. W e f

ind sum m ary judgm ent was properly granted in f a vor of the City

. ¶13. AFFIRMED.
IRVING AND GRIFFIS, P.JJ., BARNES, C ARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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