Entergy Mississippi, Inc. v. Acey, (Supreme Court of Mississippi,
No. 2013-IA-01291-SCT, October 23, 2014).
Mother unable to recover as bystander when not present at the time of daughter’s accident.
In Entergy v. Acey, a minor was electrocuted when she climbed on top of a cotton picker parked underneath a sagging power line. The minor’s mother arrived at the scene of the accident after her daughter had been removed from the machine but prior to being airlifted to a hospital. Claims on behalf of the minor were settled but the mother sought recovery for emotional distress as a bystander. The trial court denied the power company’s motion for summary judgment as to the mother’s claims.
On appeal, the Supreme Court of Mississippi reversed the trial court reasoning that the following factors for bystander recovery are each mandatory for recovery: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Id. citingEntex, Inc. v. McGuire, 414 So. 2d 437 (Miss. 1982)
The court held the mother was barred from recovery as a matter of law because she was not near or at the scene of the accident when the event occurred, nor did she experience a sensory and contemporaneous observation of the accident. The trial court’s denial of summary judgment was reversed and summary judgment was entered in favor of the power company.
Animal Control Officer’s Recovery Caged
By Sovereign Immunity
Case v. Board of Supervisors of Lauderdale County, (No. 2013-CA-00266-COA, October 28, 2014).
Government employee fails to establish existence of a dangerous condition causing fall.
In Case v. Board of Supervisors of Lauderdale County, an animal control officer fell on a dry, metal ramp outside her office door on a sunny day when it had not rained. The plaintiff then sued Lauderdale County claiming the ramp was a dangerous condition and that the county failed to adequately warn or protect against the hazard. The trial court granted summary judgment to the county based on sovereign immunity pursuant to the Mississippi Tort Claims Act.
The Court of Appeals relying upon Howard v. City of Biloxi reasoned that in order for a claimant to elude sovereign immunity, they must show 1) an injury was suffered; 2) the injury was caused by a dangerous condition on the property of the government entity by the negligence or other wrongful conduct of a government employee; 3) the entity had actual or constructive notice of the defect; 4) the entity had an adequate opportunity to protect or warn of this defect; and 5) the condition was not open and obvious.
Because the ramp was dry at the time of the fall, the Court reasoned that the plaintiff failed to establish the second element necessary to overcome sovereign immunity – the existence of a dangerous condition. As such, the plaintiff failed to overcome the county’s assertion of immunity. Summary Judgment for the county was affirmed.