Terry H. Logan, Sr. v. Mississippi Transportation Commission , 2015 Miss. LEXIS 460 ( 2015 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CT-00258-SCT
TERRY H. LOGAN, SR. AND BEVERLY W.
LOGAN
v.
MISSISSIPPI DEPARTMENT OF
TRANSPORTATION AND MISSISSIPPI
TRANSPORTATION COMMISSION
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 09/19/2012
TRIAL JUDGE: HON. JAMES McCLURE, III
TRIAL COURT ATTORNEYS: CHARLES J. SWAYZE, III
ROBERT J. DAMBRINO, II
COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CIRCUIT
COURT
ATTORNEYS FOR APPELLANTS: CHARLES JONES SWAYZE, III
CHARLES J. SWAYZE, JR.
ATTORNEY FOR APPELLEES: ROBERT J. DAMBRINO, III
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED - 09/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHANDLER, JUSTICE, FOR THE COURT:
¶1. This certiorari appeal arises from a negligence suit filed by Terry and Beverly Logan
against the Mississippi Department of Transportation (MDOT) and the Mississippi
Transportation Commission (MTC). The suit arose out of a single-car accident that allegedly
occurred due to an improperly performed bridge repair. The Court of Appeals affirmed in
part and reversed in part and remanded the trial court’s grant of summary judgment to the
defendants under the Mississippi Tort Claims Act (MTCA). We granted certiorari review.
Our opinion today corrects the Court of Appeals’ treatment of an affidavit that contained an
alleged admission of a party opponent under Mississippi Rule of Evidence 801(d)(2).
FACTS AND PROCEEDINGS BELOW
¶2. On March 12, 2011, the Logans were traveling south on Highway 49 in Tallahatchie
County when they drove over a bridge that recently had undergone repairs. Both lanes were
open, and no warning signs were present indicating ongoing repairs or a dangerous condition.
Two protruding crisscrossed metal plates caught the undercarriage of their car, causing the
car to spin out of control and to come to rest facing south in the northbound lane. The
Logans’ daughter-in-law, Mauri Logan, arrived at the scene shortly after the accident
occurred. The Logans suffered injuries and were transported to a local hospital by
ambulance. According to Mauri Logan, she spoke to two MDOT employees at the scene who
both informed her that MDOT had received a phone call earlier in the day informing them
about bent metal plates on the bridge. She stated that the MDOT employees had advised her
to take pictures of both the bent plates and another set of plates on the bridge that were not
dislodged. She took photographs, which are part of the record on appeal.
¶3. According to MDOT, flat metal plates routinely are bolted to bridge decks during
structural repairs temporarily to cover fresh concrete while the concrete cures, with the bolt
head and steel plate not extending more than two inches above the bridge deck. The Logans
allege that these particular metal plates were not properly attached to the bridge, had bent
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upward and were projecting dangerously above the road surface. The deposition testimony
of a bridge crew superintendent for MTC indicated that the steel plates should not be
positioned in a cross shape and that the smaller plate was to be placed on top of the larger
plate. The photos taken by Mauri Logan indicate that, for the plates the Logans ran over, the
larger plate was placed on top of (and hung slightly over) the smaller plate, and the plates
were in a cross shape. The Logans filed suit against MDOT and MTC, asserting negligent
bridge repairs and failure to warn of a dangerous condition.
¶4. The defendants moved for summary judgment, asserting immunity under multiple
provisions of the Mississippi Tort Claims Act. In light of the defendants’ motion for
summary judgment, the Logans submitted an affidavit from Mauri Logan, whom they
intended to use as a key witness at trial. Her affidavit asserted in part:
I saw two employees of Mississippi Department of Transportation at the scene.
I spoke with one of those gentlemen . . . told me that MDOT had received a
phone call earlier in the day of March 12, 2011, regarding the dangerous metal
plates sticking up on the bridge. . . . The MDOT employee advised me to take
photographs of the dangerous metal plates. I did. He also recommended that
I take pictures of metal plates that were on the bridge but not dislodged. I did.
I took the photos attached to this Affidavit as cumulative Exhibit “A” on
March 12, 2011. . . . The second employee from MDOT confirmed that MDOT
received a telephone call early in the day regarding the dangerous metal plates
on the highway.
¶5. The trial court granted summary judgment to the defendants, finding that the
maintenance of the bridge is a discretionary function under Mississippi Code Section 11-46-
9(1)(d) and that the defendants therefore were entitled to immunity. Regarding the Logans’
failure-to-warn claim, the court stated that “there is no basis in fact to infer that either MDOT
or MTC knew or should have known that the repair itself was dangerous, or that they knew
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or should have know that some instrumentality had damaged the bridge repair and thereby
created a dangerous condition.” The court found it unnecessary to perform a detailed
immunity analysis as to the failure-to-warn claim and stated that, even if the bridge repair
“presented a dangerous condition, known by these defendants, against which they did not
warn the public, nevertheless [the defendants] are completely immune by virtue of
Mississippi Code Annotated [section] 11-46-9(1)(d),” referring to a finding of immunity for
the alleged negligent bridge repair.
¶6. The Court of Appeals reversed the trial court’s grant of summary judgment on the
failure-to-maintain claim, finding that road maintenance is a ministerial function and does
not provide the defendants governmental discretionary function immunity under Section 11-
46-9(1)(d). Terry H. Logan, Sr. and Beverly W. Logan v. Miss. Dep’t of Transp. and Miss.
Transp. Comm’n, No. 2013-CA-00258, 2014 WL 4413437 (Miss. Ct. App. Sept. 9, 2014).
The Court of Appeals pointed to this Court’s evolving approach to the question in
Mississippi Transportation Commission v. Montgomery, 80 So. 3d 789 (Miss. 2012), and
Little v. Mississippi Department of Transportation, 129 So. 3d 132 (Miss. 2014). Id. at *3.
¶7. However, the Court of Appeals affirmed the grant of summary judgment to the
defendants on the failure-to-warn claim. It found that “a detailed discussion concerning the
[defendants’] immunity . . . is unnecessary since there is no triable issue of fact presented as
to whether the [defendants] had notice of the ‘dangerous condition,’ and there is nothing to
support the Logans’ claim on the failure to warn.” Logan v. Miss. Dep’t of Transp., 2014
WL 4413437, at *7. Opining that Mauri Logan’s affidavit is inadmissible to create an issue
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of fact, the opinion states that “there is nothing to demonstrate that the workers, who
allegedly spoke to Mauri [Logan], were authorized to make the statement concerning a matter
within the scope of their employment with MDOT.” Id. at *6.
¶8. Both parties filed petitions for certiorari review. The defendants petitioned the Court
of Appeals’ reversal of summary judgment on the failure-to-maintain claim, and the Logans
petitioned the Court of Appeals’ affirmation of summary judgment as to their failure-to-warn
claim. We denied the defendants’ petition and granted the Logans’ petition regarding failure
to warn.
DISCUSSION
¶9. We review grants of summary judgment de novo. Miss. Transp. Comm’n v.
Montgomery, 80 So. 3d 789, 794 (Miss. 2012). Summary judgment is properly granted
where “the pleadings, depositions, answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). To survive
summary judgment, the nonmoving party must produce specific facts showing that there is
a genuine material issue for trial. Gorton v. Rance, 52 So. 3d 351, 354 (Miss. 2011).
Mississippi Rule of Civil Procedure 56(c) permits the party adverse to summary judgment
to serve opposing affidavits prior to the summary judgment hearing. Rule 56(e) requires that
“[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively that the affiant
is competent to testify to the matter stated therein.” M.R.C.P. 56(e).
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WHETHER THE COURT OF APPEALS ERRED IN TREATING
MAURI LOGAN’S AFFIDAVIT AS INADMISSIBLE.
¶10. The Logans argue that the Court of Appeals erred in finding that they had not
produced specific facts creating a genuine material fact for trial. They argue that Mauri
Logan’s affidavit testimony demonstrates the defendants’ alleged knowledge of the
dangerous condition. We agree with the Logans that the Court of Appeals erred by treating
Mauri Logan’s affidavit as inadmissible hearsay. Mississippi Rule of Evidence 801(d)(2)(D)
provides that a statement is not hearsay if the statement is offered against a party and is “a
statement by the party’s agent or servant concerning a matter within the scope of the agency
or employment, made during the existence of the relationship . . . . ” The Logans correctly
point out that Rule 801(d)(2) does not require the employees of the defendant to be
authorized to make the alleged statements for them to be admissible. We already have
addressed a similar scenario regarding party statements in Jones et al. v. Fluor Daniels
Servs. Corp., 959 So. 2d 1044 (Miss. 2007). In Jones, the plaintiff’s work supervisor
directed numerous racial slurs at the plaintiffs. Id. at 1045. The plaintiffs testified that the
supervisor said that “someone” in Fluor Daniels’ main office had told him to make racial
comments towards the plaintiffs. Id. This Court rejected Fluor Daniels’ argument that there
was no admissible evidence of vicarious liability against it for the racial comments made by
the supervisor, saying:
However, the plaintiffs claim that, immediately after making the comment,
[the supervisor] said that someone in the main office had told him to make the
statement. Fluor Daniel argues that [the supervisor’s] statement is hearsay and
would not be admissible at trial. However, we find that [the supervisor’s]
statement would be admissible under M.R.E. 801(d)(2)(D) as an admission by
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a party opponent. Therefore, viewing this evidence in the light most favorable
to the plaintiffs, as we must, we find evidence sufficient to defeat a motion for
summary judgment.
Id. at 1049.
¶11. Here, similar to Jones, and viewing the evidence in the light most favorable to the
Logans, the MDOT employees’ alleged statements to Mauri Logan are admissible under Rule
801(d)(2)(D) as an admission by a party opponent. The Court of Appeals erroneously treated
Mauri Logan’s affidavit as inadmissible when finding that the plaintiffs failed to demonstrate
the existence of a genuine dispute of material fact.1
¶12. Aside from finding that “there is no basis in fact to infer that either MDOT or MTC
knew or should have known that . . . some instrumentality had damaged the bridge repair and
thereby created a dangerous condition,” the trial court did not proceed to perform a detailed
immunity analysis of the Logan’s failure-to-warn claim.2 We find that the appropriate
disposition is to remand the case for the trial court to perform a detailed summary-judgment
analysis consistent with this Court’s precedent. See Brantley v. Horn Lake, 152 So. 3d 1106
(Miss. 2014).
1
We note that the trial court treated the affidavit as admissible for summary judgment
purposes and is entitled to deference on such evidentiary determinations. Indem. Ins. Co. of
N. Am. v. Guidant Ins., 99 So. 3d 142, 155 (Miss. 2012). A review of the transcript of the
summary judgment hearing shows the trial court declined the defendant’s ore tenus motion
to strike the affidavit and proceeded to operate explicitly under the assumption that the two
men in Mauri’s statements were employees acting in the scope of their duty, thus satisfying
Mississippi Rule of Evidence 801(d)(2).
2
The court found such analysis unnecessary due to its finding (subsequently reversed
by the Court of Appeals) that the defendants were entitled to immunity for alleged negligent
bridge repairs.
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CONCLUSION
¶13. The trial court and Court of Appeals erred in concluding that no disputed fact exists
regarding the Logan’s failure-to-warn claim. We reverse the judgment and remand the case
for the trial court to perform a more detailed summary-judgment immunity analysis of the
Logan’s failure-to-warn claim consistent with this opinion.
¶14. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, PIERCE,
KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., NOT
PARTICIPATING.
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