Opinion
2023-CA-00569-COA
11-12-2024
GEORGE ALLRED AND KRYSTAL ALLRED APPELLANTS v. TISHOMINGO COUNTY, MISSISSIPPI APPELLEE
ATTORNEYS FOR APPELLANTS: THOMAS ORVILLE COOLEY WILLIAM JACKSON SIMPSON ATTORNEYS FOR APPELLEE: BETHANY ANN TARPLEY ARNULFO URSUA LUCIANO KATHERINE PORTNER McCLELLAN DANIEL JUDSON GRIFFITH PHILLIP M. WHITEHEAD
DATE OF JUDGMENT: 05/01/2023
TISHOMINGO COUNTY CIRCUIT COURT HON. JOHN R. WHITE JUDGE
ATTORNEYS FOR APPELLANTS: THOMAS ORVILLE COOLEY WILLIAM JACKSON SIMPSON
ATTORNEYS FOR APPELLEE: BETHANY ANN TARPLEY ARNULFO URSUA LUCIANO KATHERINE PORTNER McCLELLAN DANIEL JUDSON GRIFFITH PHILLIP M. WHITEHEAD
BARNES, C.J., McDONALD AND EMFINGER, JJ.
McDONALD, J.
¶1. George and Krystal Allred appeal from a Tishomingo County Circuit Court's judgment in favor of Tishomingo County following a bench trial of their Mississippi Tort Claims Act (MTCA) lawsuit for injuries they sustained when a tree limb overhanging Line Road 61 fell on their vehicle. On appeal, the Allreds argue that the judgment of the circuit court should be reversed because they proved the necessary elements of negligence (i.e., that the County breached a duty it undertook to maintain the road and caused their injuries). The Allreds also argue that the circuit court erroneously allowed the County's expert witness to testify to an opinion that had not been disclosed prior to trial. Having reviewed the record, relevant precedent, and the arguments of the parties, we affirm the circuit court's judgment.
Miss. Code Ann. §§ 11-46-1 to -23 (Rev. 2019).
Facts
¶2. On March 13, 2019, the Allreds were traveling south on a two-lane road, Line Road 61, near the city limits of Golden, Mississippi. With no prior warning, a limb extending from an oak tree on the southbound side broke and fell onto their vehicle, causing them to lose control and crash into another tree. The limb fell on the roof of the car, crushing it down to the console.
The road is also referred to as "Duncan Road."
¶3. The vehicle was totaled, and both Krystal and George were seriously injured as a result of the accident. Rescue personnel responded to the scene, and sometime thereafter, the County paid a private contractor out of county funds to cut the tree back to the trunk.
The County did not dispute that Krystal's medical bills totaled $138,456.50 and that George's were $206,594.69. George injured his head, neck, back, and shoulder, and he suffered a broken leg. Krystal underwent three surgeries for her injuries, which included a broken ankle.
Pre-trial Proceedings
¶4. On March 10, 2020, the Allreds filed an action under the MTCA against the County in the Tishomingo County Circuit Court. They alleged that the County was required or had undertaken the duty to inspect, maintain, and repair Line Road 61 and that the County failed to do so. They contended that the County knew or should have known that their failure to maintain the tree allegedly located on the road's right of way created a risk to motorists and that the County's failure was the proximate or proximate-contributing cause of the collision and their injuries. The complaint contained three causes of action: failure to maintain the right of way, failure to inspect, and failure to warn or abate a dangerous condition.
The complaint included "John Doe" defendants if any other individuals or entities should later be identified as liable.
¶5. On July 7, 2020, the County filed its answer and affirmative defenses. The County admitted that the Allreds' vehicle sustained roof damage from the fallen limb and that the vehicle wrecked after being struck. However, the County asserted that the tree itself was not in the right of way for Line Road 61. Further, the County denied having any duty concerning the tree or that it breached any duty. The County pointed out that at the time of the accident, wind gusts exceeded twenty miles per hour. The County also claimed various statutory and common law immunities, including "Acts of God" causation.
¶6. Discovery ensued, including the exchange of written interrogatories and requests for documents, depositions, and designations of experts. The County moved for summary judgment, which the circuit court denied. Both parties moved to strike each other's tree expert. However, the circuit court did not rule on these motions prior to trial.
The summary judgment motion, response, and court order were not included in the record designated by the parties.
Bench Trial
¶7. The circuit court conducted a bench trial of the matter on February 13, 2023. In addition to testifying themselves, the Allreds called as witnesses Greg Collier (Tishomingo County Beat 5 Supervisor), Timothy Woods (Beat 5 county road foreman), J.T. Strickland (surveyor), Stewart Moore (surveyor), and Jeremy Stokes (expert forester). At the end of the Allreds' case, the County moved for a dismissal, which the circuit court denied. Having elicited most of the testimony it needed from cross-examination of the Allreds' witnesses, the only witness the County called was its expert, David Fulgham.
The Allreds
¶8. Krystal testified that she had lived in the county all her life and that she and George had married just three or four months before the accident. Her mother lived in Red Bay, Alabama, where they were headed on the day in question. She said that the day of the accident was a beautiful sunny day and that George was driving. All of a sudden a limb overhanging the road crashed down on the roof of the vehicle. George lost control and hit another tree. George's left leg was pinned beneath the dashboard, and she had a broken ankle, which required surgery. Prior to the accident, she suffered neck problems that had since resolved, but she claimed they returned after the accident. She also underwent surgery on her shoulder, and George suffered a broken femur and broken arm.
¶9. Krystal also testified that when she was released from the hospital three or four days after the accident, she went to the scene and took some pictures. She was shown a picture of a tree with the limbs still attached, and she testified as follows:
Q. And is that a picture of the tree where the accident happened?
A. Yes.
Q. And how do you know that?
A. Because the limb was right under the tree next to it.
Initially, she said that when she came back to the scene,"they had cut all the limbs off of it." But then she immediately corrected herself and said, "[O]r hadn't cut the limbs off of it yet, but ...."
She also took a picture of the limb and circled on the photograph of the tree the place where she thought the limb had broken off.
¶10. George testified he had lived in the area all his life as well, and he was familiar with the road. He confirmed that he and his wife were on their way to help his wife's mother when the accident happened. He said he had been down the road "a million times" and never thought that a tree limb would fall. He did not see the limb until it hit the car, and, at first, he thought an airplane motor had fallen from the sky. He said it felt like the car just exploded, with glass flying everywhere. George also testified at length about the extent of his injuries, his medical treatment and bills, and how his daily activities have been limited by his injuries.
The Surveyors
¶11. The Allreds' expert professional engineer and licensed surveyor, Moore, testified that he visited the site, inspected the tree, and took measurements of its distance from the road. During Moore's testimony, the Allreds attempted to admit the August 2021 survey Moore had prepared, but the County objected because it was not listed as an exhibit in the pre-trial order. The Allreds explained that Moore was listed as a "may-call" witness. Because they were not sure he would testify, they did not list the survey in the pre-trial order, but it had been produced to the County during discovery. The court allowed the document to be marked, but the court reserved ruling on its admissibility.
¶12. Moore proceeded, without objection, to testify that the tree was within the right of way of Line Road 61, as were limbs extending out over the road. Moore said the center of the tree stump was sixteen feet from the center of the road, and the road's right of way extended twenty feet from either side of the center line, which Moore determined from researching old state aid plans for the road. The tree was not on private property.
Although Road Foreman Woods later said he thought the tree was on private property, he admitted he did not measure the tree's position or check on a map to see if it was, in fact, on private property.
¶13. Surveyor Strickland testified and agreed that the tree was on a county road right-of-way. During his testimony, the Allreds' attorney showed Strickland the state aid road map, which Strickland had seen during his earlier deposition. Strickland confirmed that the document had Line Road 61 on it where the accident occurred. When the Allreds sought to admit the document, the County objected because Strickland could not properly authenticate the document. In response, the Allreds said that the County had produced the document during discovery. The court did not admit the document but allowed the Allreds to make a proffer. Strickland continued being questioned and testified that another source, the county tax map, showed that the road had a side-to-side forty-foot right of way at the location of the accident. Strickland testified that he looked at the tree at some time after the accident to determine if it was on the road's right of way. He said that when he saw it, the limbs were cut back, and the tree was dead, although he felt its branches would have extended into the right of way as well.
It does not appear from the trial transcript that the Allreds made a proffer concerning the state aid document.
The County Supervisor and Road Manager
¶14. Collier, who had served as Beat 5's supervisor and road manager for the past twelve years, testified that Line Road 61 was a county road. However, he said that the County's road crew was only responsible for "bushhogging" and "maintaining the sides of the road" because that stretch of road was inside the city limits of Golden. Collier thought the County had an agreement with the city to provide only limited maintenance. As long as he had been supervisor, Collier stated, the County bushhogged the side of the road with a ten-foot bush hog, "from ditch to ditch." But Collier admitted the County may also clean the ditches, cut a limb that is hanging down, and unclog a culvert. Although he had no formal training in maintenance and inspection, he could drive up and down the road and see what needed attention, including dead trees and limbs. Although the County had no written protocols on road maintenance, Collier admitted that "typical road maintenance included cutting limbs back off the highway." Collier agreed that neither the adjacent property owner nor the City of Golden was involved in the decision to cut the tree back after the accident.
"Beats" are also called supervisory "districts."
The Allreds objected that no agreement had been produced or even testified about prior to trial.
Collier said some roads were sixteen, or eighteen, or twenty-feet wide.
¶15. Collier said that he drove the Line Road "pretty regular" and did not notice anything wrong with the tree in question. If he had, he said, he would have made sure that the proper parties were notified. Being a supervisor, he said people would call him from all over the county to complain if something were wrong, but no one ever called him with complaints about this tree.
¶16. Woods, who had worked as the road foreman for Beat 5 for eight years, said that he was responsible for inspecting the roads in Beat 5. He said that during his inspections, he looked for dead trees and dead limbs. He also said they would trim the dead trees overhanging the road, or if they were too big, they would get someone like Ralph Lee to cut them. He stated that he "inspected" every road he drove "out of a force of habit," and he drove Line Road 61 three or four times a week. He would primarily look at the height of the grass in the ditches and mow or bushhog along Line Road 61 in this area. But he never noticed anything unsafe about the tree in question. He would also receive calls from the public of any unsafe condition on the road, but he never received any complaints about this particular tree. He recalled one time a citizen called about a branch hanging down from a bridge hitting windshields in another area. Woods said he went out and pulled the branch down. Woods said that about three days before the accident, the county experienced some "pretty significant weather," with storms and tornadoes. They had to help clean up debris in another part of the county.
¶17. Woods also testified that he responded to the Allreds' accident as a firefighter with the City of Golden. They had to use the "jaws of life" to get George out of the vehicle. While at the scene, Woods said that he looked at the limb in the road that he presumed was the limb that hit the Allred vehicle. He said the limb did not look dead and was "still good and solid."
The Allreds' Tree Expert Jeremy Stokes
¶18. Jeremy Stokes was designated by the Allreds as an expert in forestry. Stokes testified that he had a bachelor's degree in forestry from Mississippi State and had been working for the Army Corps of Engineers for the past twenty-two years. He also owned a forestry consulting business, and in that capacity, he marked timber for sales; thus, he was familiar with different types of trees. Stokes was also a member of the Southern Hardwood Foresters, a group that met twice a year. The County had no objection to Stokes's qualifications, and Stokes was accepted as an expert in hardwood forestry.
Prior to his testimony, the County renewed its motion to strike Stokes as an expert, arguing that the documents Stokes generated were for a different location; however, the County asked Stokes no questions to confirm this contention. The County stated that the court had already ruled it was going to allow Stokes to testify, and the County was just making a record of its objection.
¶19. In his report, Stokes relied on Strickland's deposition testimony that the tree in question was a water oak. Stokes testified that the literature that he attached to his report included articles and information on the signs and symptoms of Hypoxylon canker that can infect oak trees. He said that to assess the health of a tree, the normal procedure would be to visit and examine it. But in this case, he could not do that because the County had all but removed the tree before his involvement in the case. Even if he took samples of the tree, Stokes said they would be tainted by the activities of the County since the accident. So to determine what the tree looked like before the accident and assess its health, Stokes obtained the latitude and longitude of the accident site from the accident report, and using Google Earth, he found pictures of the tree at that location from 2014. He noted "nine or ten different dead limbs" in the photos, leading him to conclude that the tree had extensive "die back" even in 2014. He noted that fallen limbs were piled along the right of way against the base of the tree and in the ditch that the County was maintaining.
¶20. Stokes also viewed pictures of the broken limb Krystal took after the accident. He concluded that the limb was dead because (1) there was no wood in the middle, (2) the rest of the wood was decayed, and (3) there was no early leaf growth that would be expected in mid-March. Because the limb no longer existed and because the County had cut the tree back, Stokes felt any "test" of the tree would not be valid. However, from the photos, he opined that the tree likely had Hypoxylon canker and believed its limbs would not grow back. He also noted that in the 2014 photo, there were limbs that had broken off but had not yet hit the ground. Although he could not be 100% certain, he concluded that the tree most likely had an infection, and it was his opinion, to a reasonable degree of certainty, that the tree was still alive but with dead limbs. The natural progression of the disease would be that the tree continued to die and drop limbs. He said a tree this size, forty-eight inches in diameter, is a big tree and that dropping its limbs in the road was an obvious danger.
¶21. Stokes prepared an initial report and a rebuttal report. He said his opinions did not change whether the tree was a 48-inch water oak or a 55-and-a-half-inch Willow Oak (as determined by the County's expert, Fulgham, who inspected the trunk). Although the cause of the tree's dying condition was unknown, Stokes said that anybody who looked at the pictures could see the limbs were dying. Stokes said that the fact that the limb in question did ultimately fall proves that the tree continued to decline after 2014 and did not recover. Accordingly, Stokes opined that the tree was a "foreseeable risk" to motorists on the road-one that the County knew or should have known.
¶22. On cross-examination, Stokes admitted that he had never used a photograph to determine the health of a tree for testimony in court, but he insisted it was necessary in this case. He has relied on photographs for other cases to compare a tree's progression over time, but not for a case that went to trial. The 2014 Google Earth photos were the only evidence he had of the condition of the tree prior to the accident. Stokes also agreed that it was possible that the branches snapped for some reason other than that the limb was dead. At the end of Stokes's testimony, the County again renewed its objection to his opinions. The court indicated that if it were a jury trial, the court might consider sustaining it, but since it was a bench trial, the court overruled the County's motion.
County Arbor Expert Fulgham
¶23. Contradicting Stokes was the testimony of David Fulgham, whom the County designated as an expert in arboriculture. According to his resume, Fulgham held a master of science degree in forestry from Mississippi State University and had worked at Fulgham Inc., a forestry consulting service, for most of his thirty-year career. He was also a certified arborist, a tree risk assessor with the International Society of Arboriculture and licensed tree surgeon. The Allreds renewed their pre-trial motion to strike Fulgham or limit his opinions. The circuit court denied the Allreds' motion.
The Allreds argued that Fulgham offered no opinions about the health of the tree, its potential as a dangerous condition, or any other opinion that would assist the court in determining if the County should have noticed that the tree was in a decayed and dying state.
¶24. Fulgham proceeded to testify that arboriculture is the science of taking care of trees. His primary opinion in this case was that there was not enough information available for anyone to form an opinion about the health of the tree or its risk at the time of the accident. The Allreds objected, claiming that this opinion had not been provided prior to trial. They argued that Fulgham's report and designation did not say that there was not enough information to say that the tree was healthy. Therefore, the Allreds objected to any opinion Fulgham would give about whether the tree was healthy, unhealthy, or otherwise. The County responded that Fulgham is not giving an opinion on the health of the tree and that his entire report discussed the fact that there is not enough evidence for anyone to make such a determination. The circuit court overruled the Allreds' objection, noting their continuing objection to Fulgham's testimony.
¶25. Fulgham said that another attorney had contacted him in 2020 to look at the tree. But Fulgham told that attorney that there was nothing that he could do because there was no evidence to look at, including "no prior photos," to assess the health of the tree. Fulgham then clarified that the decay level could not be based on a photograph; it had to be physically examined. Measurements of the size of the hollow spot needed to be taken to see if they were within industry standards. Fulgham explained how he assessed tree risk for homeowners, looking at the soil, scanning the roots to create a root map, and examining the trunk for strength. He also would scan the entire tree (limbs and trunk) with radar, often climbing the tree himself or using drones. Then he would determine the risk of each part. He stated he had never relied on photographs. He said what he described was the industry standard for assessing tree risk and that a person cannot make a reliable conclusion about the risk or health of a tree without this assessment. Fulgham said that Stokes's reliance on five-year old photos is not within industry standards. In Fulgham's report, which was identified as an exhibit, he pointed out that the 2014 photos were from January and that you can see ice on the ground; thus, at that time, the tree would have been dormant.
¶26. Fulgham also pointed out that the examination of a tree spans several seasons as well. In this case he would have needed to visit the tree on site multiple times, at different times of the year, because a broken limb may have come from a storm or from the tree itself dying. Stokes, Fulgham said, did not make such visits. Fulgham also testified that an expert tree examiner would need to identify the species of the tree. Stokes did not make this identification either, but relied upon Strickland, a surveyor's testimony, to assert that the tree was a water oak. Fulgham added that when he examined the tree, a willow oak, in September 2022, it was alive with leaves, twigs, and buds. Fulgham also testified that it was not within industry standards to rely on five-year-old photographs to assess the health of a tree. Without doing all that Fulgham had described, he said no one can make a reliable conclusion about the health of a tree and reiterated that Stokes's process was not within accepted arboriculture methodology.
¶27. On cross-examination, Fulgham was questioned about several statements he made in his report, which was admitted as an exhibit. He agreed that the certification and training of a forester was different from that of an arboriculturist. But, he said, in this case, the two disciplines are not really that different. In his report, Fulgham said a forester is trained to "manage a community of trees for wood production, reforestation, and wildlife habitats." An arborist, however, is trained to manage individual trees, which includes risk assessment. Fulgham admitted that he was not giving an opinion about the tree in question, but as stated in his report, his "main question was does the Stokes's report represent a professional and reliable report by a consulting arborist for litigation purposes," to which his answer was no. Fulgham testified to the "Tree Risk Assessment Qualification (TRAQ)" contained in his report, which he said "provides an international format to quantify tree risk using a standard matrix to review targets, tree parts with a likelihood of failure, consequence of failure and risk mitigation." According to this standard, Fulgham stated that a "standard tree risk assessment always begins with a site visit and correctly identifying the species and making proper measurements." However, Fulgham did agree that a municipality was required to maintain trees in the right of way of a county road.
¶28. At the end of trial testimony, the circuit court instructed each party to submit proposed findings of fact and conclusions of law.
Circuit Court's Ruling
¶29. On May 1, 2023, the circuit court entered an order with its findings of fact and conclusions of law in favor of the County. The court determined that a survey that Moore prepared was inadmissible because it had not been listed as an exhibit in the pre-trial order. The court also held that a state-aid road plat was inadmissible because no foundation had been laid, and no witness authenticated it. The court proceeded to review the testimony of the testifying experts and made its conclusions of law. The court held that although the subject tree was in the road's right of way, the County had no statutory duty to maintain the tree, nor had it assumed such a duty. The County had only bushhogged the ditches; it had not voluntarily cut or trimmed the trees. There being no duty, the court concluded that there could be no breach of a duty. The County had no complaints about the tree having dead branches that were creating a hazard. The court noted that one witness, Woods, testified that when he came to the accident scene, he looked at the tree branch, and it was not dead. Finally, the court found that there was no evidence to causally link the breach of any duty to the Allreds' injuries. The court stated that the Allreds had the burden of proving that their injuries were due to a condition existing because of the negligence of the County, the result of which was reasonably foreseeable. The court held that the Allreds had not met this burden because there were many reasons why a limb might fall. Both Collier and Woods testified that they frequently rode along the road and saw no dead or dangerous trees along the way. Moreover, severe weather had come through the county just days before. The County had no notice of any dangerous condition at any time prior to the accident. Accordingly, the circuit court held for the County.
The Allreds contend that the court adopted the County's proposed findings of fact and conclusions of law with a few minor changes.
¶30. The Allreds appealed and argue that the circuit court's judgment was manifestly wrong and clearly erroneous and that the circuit court erred in allowing the County's expert, Fulgham, to give undisclosed opinions.
Motion to Strike Appellants' Reply Brief
¶31. Before we discuss the merits of the appeal, we first address the motion filed by the County to strike the Allreds' reply brief or portions thereof for referencing materials not in the record. Initially, the Allreds designated the record they determined was needed for this Court to consider on appeal. Thereafter, they moved and were granted permission to supplement that record. However, the County contends that the Allreds did not designate or include in the record the County's expert witness designation or the County's second supplemental interrogatory responses that the Allreds attached to the reply brief and reference in support of their argument that Fulgham had not disclosed his opinions prior to trial.
After the record was transmitted to the appellate court, the Allreds filed a motion to supplement it under Rule 10 of the Mississippi Rules of Appellate Procedure to add the findings of fact and conclusions of law that the County had submitted, as well as the pre-trial order. The Mississippi Supreme Court granted that motion, and the record was supplemented to include these items.
¶32. In their response to the County's motion, the Allreds admit that the documents were not designated as part of the record. They contend that the County had referenced these documents in its brief, so the Allreds merely attached them to their reply brief for clarification. Additionally, the Allreds agree that the documents are not "necessary for this Court's determination of the issues."
¶33. In Hatfield v. Deer Haven Homeowners Ass'n, 234 So.3d 1269, 1273 (¶12) (Miss. 2017), the Mississippi Supreme Court stated, "Mississippi Rule of Appellate Procedure 30(a) provides that appeals shall be on the record as designated pursuant to Rule 10. Mississippi appellate courts may not consider information that is outside the record." Accordingly, because the documents (the County's expert witness designation and the County's second supplemental interrogatory responses) attached to the Allreds' reply brief were not properly part of the record, we will not consider them. Therefore, the County's motion to strike is dismissed as moot.
Standard of Review
¶34. "A circuit court judge sitting as the trier of fact is given the same deference with regard to his fact finding as a chancellor, and his findings are safe on appeal when they are supported by substantial, credible, and reliable evidence." Phillips v. City of Oxford, 368 So.3d 317, 323 (¶20) (Miss. 2023) (citing City of Vicksburg v. Williams, 294 So.3d 599, 601 (¶11) (Miss. 2020)). "When reviewing the factual findings of the circuit court sitting as the sole trier of fact in a bench trial, we apply the substantial-evidence standard of review." City of Jackson v. Hilton, 324 So.3d 1164, 1170 (¶18) (Miss. Ct. App. 2021). Therefore, we must accept the evidence that either supports or reasonably supports the trial court's finding of fact, together with all reasonable inferences that the circuit court's findings. Id. (citing Univ. Med. Ctr. v. Martin, 994 So.2d 740, 747 (¶26) (Miss. 2008)). However, "[t]he proper application of the MTCA is a question of law, which we review de novo." Phillips, 368 So.3d at 323 (¶20).
¶35. The Allreds point out that the circuit court adopted the County's proposed findings of fact, except its finding that the Allreds had established the tree from which the limb fell was in the right of way of Line Road 61. The Allreds argue that this action requires us to subject the circuit court's opinion to a stricter standard of review, citing University of Mississippi Medical Center v. Peacock, 972 So.2d 619, 628 (¶25) (Miss. Ct. App. 2006). However, the Mississippi Supreme Court rejected this "heightened scrutiny" standard in Bluewater Logistics LLC v. Williford, 55 So.3d 148 (Miss. 2011). In that case, a chancellor adopted, verbatim, a plaintiff's proposed findings of fact and conclusions of law, and on appeal, the defendant argued that the appellate court should apply a higher standard of review. Id. at 157 (¶25). The Supreme Court held, "[I]f 'heightened scrutiny' requires us to abandon the reasonable-chancellor standard and apply a different, higher standard, we find no caselaw or other authority explaining that different standard, or suggesting how it should be applied." Id. at (¶27). The Supreme Court concluded:
If we are to adopt and apply a "heightened-scrutiny" standard, simple fairness and justice requires us to publish that standard-in more than name-to the bench and bar. And because that has not been done-and because we decline to do it today-we shall continue to apply the familiar abuse-of-discretion standard to a trial judge's factual findings, even where the judge adopts verbatim a party's proposed findings of fact. And should a party suspect and suggest that the judge's factual findings are somehow tainted or untrustworthy, we hold that the party-upon proper proof-may seek a new trial.Id. at (¶32); see also Kuhn v. High, 302 So.3d 630, 637 (¶18) (Miss. 2020) (When a trial court adopts most of one party's proposed findings, "this Court no longer applies the heightened standard of review [W]e abandoned that practice in our Bluewater Logistics decision."). Accordingly, in this case, although the circuit court adopted the County's proposed findings in large part, we decline to apply a heightened scrutiny standard.
Discussion
I. Whether the circuit court's judgment for the County was manifestly wrong or clearly erroneous.
¶36. The Allreds contend that the circuit court erroneously required them to show a statutory duty of care even though parties may also sue a county for simple negligence for breach of a duty that the county assumed-in this case, the duty to maintain and inspect the Line Road 61. The County contends that the circuit court never ruled that the Allreds had to establish a statutory duty of care. Although the County agrees that it may be sued for simple negligence, it argues that the extent of its duty is limited to that which specifically caused the alleged damages (i.e., that the Allreds had to prove that the County's negligence caused the limb to fall on the Allreds' vehicle).
¶37. The MTCA provides immunity to a public entity for injuries resulting from non-obvious dangerous conditions on its property that are not caused by the negligence of the public entity, or of which the entity had no notice in order to warn the public:
A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: . . .
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.
Miss. Code Ann. § 11-46-9(v) (Rev. 2019). Thus, to prevail on such an claim, a plaintiff must show:
(1) an injury was suffered; (2) the injury was caused by a dangerous condition on the property caused by the negligent or other wrongful conduct of the government employee; (3) the governmental entity had either actual or constructive notice of the defect; (4) the governmental entity had an adequate opportunity to protect or warn of this defect; and (5) the condition was not open and obvious to one exercising due care.McGee v. Neel Schaffer Eng'rs &Planners Inc., 350 So.3d 236, 247 (¶41) (Miss. Ct. App. 2022) (parentheses added), cert. denied, 350 So.3d 234 (Miss. 2022).
¶38. The elements of an MTCA claim for damages for dangerous conditions require proof of the County's negligence in causing the dangerous condition that the County knew or should have known existed. The statute codifies the elements of simple negligence established by the Mississippi Supreme Court in similar cases decided prior to the 1984 passage of the MTCA. For example, in City of Hattiesburg v. Hillman, 222 Miss. 443, 76 So.2d 368, 370 (1954), a small child was killed by a limb that fell from a dead oak tree in 1953. Evidence was presented that the tree had last "leafed out" in 1951 and several witnesses testified that they had given the City notice of the dangerous condition of the tree three to seven months before the accident. Id. The City argued that although fifty feet was dedicated for use as a street, only twenty feet was open to the public. Id. The City claimed the tree was on private property, so the City had no duty to remove it. Id. On the City's appeal from a judgment in favor of the child's family, the Mississippi Supreme Court said that "a municipality is under the duty to exercise reasonable care to keep its streets reasonably safe for those using them with reasonable care. This duty extends to guarding against defects from overhead as well as underfoot." Id. (citations omitted). Moreover, the Supreme Court stated, "An act which may be prevented by the exercise of ordinary care is not an act of God." Id. The Court further held that whether the City had notice of the dangerous condition was for the fact-finder to decide. Id. at 371.
¶39. Similarly, in Barron v. Natchez, 229 Miss. 276, 90 So.2d 673, 675 (1956), the Mississippi Supreme Court cited Hillman, confirming the duty of a city to remedy a dangerous condition both on and above a traveled street where the dangerous object was on the right of way or in a neutral area. In that case a motorist's vehicle was crushed when a decaying tree fell into the street. Id. The tree was on private property but its limbs overhung the street. Id. The owner had notified the city several times of the tree's dangerous condition and asked the city to remove it. Id. The Supreme Court held that the plaintiff had pled a viable cause of action against the city. Id. at 677.
¶40. Accordingly, under the statute, public entities are not immune from suit for dangerous conditions caused by their negligence. In recent years, the appellate courts have addressed when actions of a public entity give rise to immunity and what actions are subject to negligence liability. In Wilcher v. Lincoln County Board of Supervisors, 243 So.3d 177 (Miss. 2018), the city had failed to give motorists any warning that it was repairing a bridge and had left a big hole in the road into which Wilcher crashed. Id. at 181 (¶5). To determine if the city were immune from suit, the Supreme Court applied the public-policy function test, which it described as follows:
Mississippi's public-policy function test has two parts. This Court first must ascertain whether the activity in question involved an element of choice or judgment. If so, this Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations. Only when both parts of the test are met does a government defendant enjoy discretionary-function immunity. This test, of course, presupposes the court has correctly identified "the activity in question"-the allegedly tortious act giving rise to the claim.Id. at 187 (¶30) (citations and internal quotation marks omitted). The Supreme Court found that the county actions alleged in Wilcher-"the construction crew's alleged failure to barricade or warn against the significant drop-off in the road-a condition it created" were not the result of a policy decision. Id. at 188 (¶32). "Rather, if indeed there was such a failure, it was the result of straight-up negligence" for which the city may be liable. Id.
¶41. In dealing with an accident in a city park, this Court distinguished the city's discretionary functions for which it enjoys immunity, from simple negligence claims for which it may be liable. Bailey v. City of Pearl, 282 So.3d 669, 687 (¶23) (Miss. Ct. App. 2019). In that case, the Baileys had attended a ball game at the city's park. Id. at 671 (¶2). They alleged that the gate was left unsecured and unattended, which allowed it to swing facing oncoming vehicles leaving the park. Id. The Baileys' truck collided with the gate in such a manner that the gate "speared" the cab of the vehicle, striking Bertha Bailey in the head. Id. She was taken to the hospital but died eleven days later. Id. The circuit court dismissed the heir's complaint, finding the city to be immune. Id. at (¶5). On appeal, this Court held:
[B]ecause Bailey's allegations of negligently leaving the gate unsecured, failing to maintain the gate, and failing to inspect fixtures upon the property that could create a dangerous condition are not exempt under the public-policy function test of discretionary immunity, we reverse the circuit court's dismissal of those claims and remand for further proceedings.Id. at 678 (¶23).
¶42. Similarly, in Reverie Boutique LLC v. City of Waynesboro, 282 So.3d 1273, 1274 (¶1) (Miss. Ct. App. 2019), a business was flooded with sewage and the owner sued the city for negligent maintenance of the sewer system. When the trial court held that the city was immune and dismissed the case, on appeal this Court reversed, citing Wilcher and Bailey. Id. at 1278 (¶31). We held that Reverie's complaint was a simple failure-to-maintain negligence claim, a claim now specifically authorized under Wilcher and Bailey. Id. at 1280 (¶39).
¶43. In addition, the Mississippi Supreme Court has held that a public entity may assume a duty that is not mandated by any statute or regulation, and when it does, it must use due care in fulfilling that duty. Moses v. Rankin County, 285 So.3d 620, 625 (¶15) (Miss. 2019). In that case, residents of a subdivision sued the County when their homes were flooded by stormwater that had been diverted allegedly due to the county's failure to maintain the drainage ditches. Id. at 621-22 (¶2). Reversing the circuit court's dismissal of the action, the Supreme Court stated, "[O]nce Rankin County undertook the duty to inspect and maintain Mill Creek, it was obligated to use due care to make certain that Mill Creek was properly maintained." Id. at 625 (¶15).
¶44. In this case, we agree with the circuit court that the County had no statutory duty to inspect or maintain the right of way on Line Road 61. Even if the County may have assumed a duty, there was sufficient evidence to support the circuit court's finding that the County did not breach that duty. First, there was conflicting evidence of the health of the tree and the limb at the time of the accident. Thus, whether Woods or Collier should have known that the tree created a dangerous condition and foreseeable risk to motorists was in dispute. Both Woods and Collier testified that they inspected the roads for dead trees and limbs and that they did not identify this tree as one needing attention. Moreover, Woods, a first responder to the accident, said that the tree limb was "solid and looked good." Strickland, the surveyor, said the limb was dead when he saw it but had already been cut back at that time. Stokes was the only other witness to testify that the tree limb was probably dead at the time of the accident. But he never saw the limb or tree, and he only viewed pictures of them to give his opinion that the tree and limb were dead. Undermining the reliability of Stokes's opinion, Fulgham testified that Stokes's methodology for assessing the health of the tree was faulty. Fulgham opined that no one could determine the health of the tree at the time of the accident from pictures alone. Finally, no one disputed that the County had recently experienced bad weather that had caused damage in other areas, raising the possibility that even a viable limb could have been damaged and ultimately fallen.
¶45. Significantly, it was undisputed that the County had no notice of any potential danger from the tree. Woods and Collier testified that no one had complained to them about the tree being a hazard, and the Allreds presented no proof to contradict this testimony. Even in the cases the Allreds cite, City of Hattiesburg and Barron, citizens had complained to both cities about the danger the trees presented to the public, giving them notice and time to remove that danger. See City of Hattiesburg, 76 So.2d at 370; Barron, 90 So.2d at 675. Mississippi Code Annotated section 11-46-9(v) specifically requires proof that the County had actual or constructive notice that the tree was a dangerous condition. In this case, the County had no such notice.
¶46. From this evidence the parties presented, the circuit court, as the finder of fact, had the discretion to determine whether the tree in question constituted a dangerous condition that the County failed to appreciate and thus breached its duty. Where evidence conflicts in this context, appellate courts defer to the circuit court, as the finder of fact. Cain v. Cain, 795 So.2d 614, 617 (¶7) (Miss. Ct. App. 2001). Even though "reasonable minds" might differ on this question, "it is beyond this Court's power to disturb the findings of the trial judge if supported by substantial evidence." Miss. Dep't of Wildlife, Fisheries &Parks v. Webb, 248 So.3d 772, 777 (¶4) (Miss. 2018). Accordingly, because there was sufficient evidence to support the circuit court's finding that the County did not fail to maintain the right of way, and further, because the County had no prior notice of any problem with the tree prior to the accident, we find no error with the circuit court's finding that the County had not breached any duty owed to the Allreds as motorists on the road.
¶47. We further agree with the circuit court that even if there were a duty and a breach, the Allreds failed to prove that the breach was the proximate cause of their injuries. Here, the circuit court stated that to prove proximate cause, the Allreds needed to show that the act or omission was a substantial factor in bringing about the injury (cause in fact), and proof that the injury was foreseeable, i.e. that a person with reasonable intelligence should have anticipated the dangers his negligent act created for others.
¶48. "Proximate cause is the cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred." Mack v. Merimac Apartments, 385 So.3d 871, 876-77 (¶14) (Miss. Ct. App. 2024). The Allreds argue that the County's failure to remove the dead tree limb from the offending tree before the accident occurred was the cause in fact. They point to the picture of the hollow and blackened limb that fell and contended that this established the County's constructive knowledge of the dangerous condition the tree posed. We disagree because although the photo might show that the inside of the tree was decayed, it does not show the outside condition was similar or obvious. Although the Allreds cite the City of Hattiesburg as being applicable, it is not. In that case, the Hillmans presented several witnesses who had given actual notice to the city of the dangerous condition of the tree from three to eight months before to the child's injury. City of Hattiesburg, 79 So. 76 So.2d at 370. Here, the testimony established that the County did inspect for dead trees and often cut back dead limbs, but in this case, the County had had no prior complaints about the tree and did not see it as a danger.
¶49. Moreover, as the circuit court pointed out, there were other reasons why the limb may have fallen besides any alleged negligence of the County. There had been recent severe weather in the area just days before. Even a "good limb," as Woods described it, could have been shaken loose as a result. In Byram Cafe Group LLC. v. Tucker, 344 So.3d 844, 847 (¶17) (Miss. 2022), the Mississippi Supreme Court stated that "the inference of a defendant's negligence as the proximate cause of a plaintiff's injuries may not be drawn if the record indicates that the cause could have just as likely occurred from causes other than the defendant's negligence."
¶50. In addition, the Allreds did not prove that the County had caused the tree to die or the limb to fall, creating a dangerous condition as Lincoln County had in the Wilcher case. In that case, the tortious act was "the construction crew's alleged failure to barricade or warn against the significant drop-off in the road-a condition it created." Wilcher, 243 So.3d at 188 (¶32).
¶51. Causation is a question of fact, Colyer v. First United Methodist Church of New Albany, 214 So.3d 1084, 1089 (¶22) (Miss. Ct. App. 2016), which in this case was to be determined by the circuit court as the finder or fact. According, because it was supported by substantial evidence in the record, we find no error with the circuit court's finding that the Allreds had failed to prove that any negligence of the County was the proximate cause of their injuries.
II. Whether the circuit court's analysis of Stokes's opinion was manifestly wrong or clearly erroneous.
¶52. The Allreds argue that the circuit court did not accurately recite the opinions of their expert, Stokes, making the court's ultimate decision that the County was not negligent "manifestly wrong and clearly erroneous." The Allreds spend considerable time in their brief detailing Stokes's opinions that were favorable to their position. These opinions, however, were the result of Stokes's admittedly less-than-optimal method of assessing the limb's health status at the time of the accident from photographs (some from 2014 and two taken by Krystal several days after the accident). Although Stokes testified that he has assessed a tree's health from photographs on other occasions and that he felt that such a methodology was acceptable, the County presented an expert with comparable experience and credentials who testified that assessing a tree's health from photographs over five years old is not an acceptable methodology in the field. Fulgham's opinion was that no one could give an opinion on the health of the tree or its limbs at the time of the accident using this flawed methodology.
¶53. The judge in a bench trial can accept or reject the opinion of any expert, and his finding is reviewed for abuse of discretion. In re Conservatorship of Geno v. Geno, 365 So.3d 287, 296 (¶22) (Miss. Ct. App. 2021). The Mississippi Supreme Court has held that "questions of weight and credibility of [expert] testimony are determined by the trier of fact." Palmer v. Biloxi Reg'l Med. Ctr., 564 So.2d 1346, 1355 (Miss.1990); see also Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146 (¶20) (Miss. 2007) (stating the trial judge determines the credibility of witnesses, including experts, in bench trials).
¶54. In the case at hand, the record reflects that Stokes's analysis contained factual errors (for example, Stokes accepted Strickland's testimony that the tree was a water oak 48 inches in diameter when Fulgham, who had examined the remaining stump, identified it as a willow oak 55.5 inches in diameter). Moreover, Stokes admitted that he based his opinions on a method he has never used to testify in court-one based on five-year old photographs of a tree he concluded was the tree in question. In addition, he said he had no way of identifying the limb that fell on the Allreds' car from the photographs. However, Woods was on the scene as a first responder soon after the accident, and Woods was the only witness to testify to the condition of the actual limb that fell on the vehicle, saying that it looked good to him. ¶55. Simply because the circuit court did not accept Stokes's opinions does not constitute manifest error. "A trial judge has not erred simply because he or she did not acknowledge or rely on a particular expert's testimony." Martin, 994 So.2d at 747 (¶25) (citing Pounders, 970 So.2d at 147). Accordingly, we find no error by the circuit court in the evaluation of Stokes's opinions.
III. Whether the circuit court erred in allowing expert Fulgham to testify as to undisclosed opinions.
¶56. The Allreds contend that the circuit court erred in allowing Fulgham to testify, arguing that Fulgham's testimony was not disclosed or consistent with his pre-trial report. They also contend that as an arborist, Fulgham admitted his training and certification was different from a registered forester like Stokes, and he should not have been allowed to testify about Stokes's opinions.
¶57. "Admission of expert testimony is within the sound discretion of the trial judge." Univ. of Miss. Med. Ctr. v. Kelly, 358 So.3d 1054, 1057 (¶9) (Miss. 2023) (citing Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 34 (¶4) (Miss. 2003)). "A trial judge's determination as to whether a witness is qualified to testify as an expert is given the widest possible discretion and that decision will only be disturbed when there has been a clear abuse of discretion." Griffith v. Entergy Miss. Inc., 203 So.3d 579, 587 (¶29) (Miss. 2016) (citing Worthy v. McNair, 37 So.3d 609, 614 n.3 (Miss. 2010)).
¶58. The Mississippi Rules of Evidence outline when expert testimony may be considered.
Under Mississippi Rule of Evidence 702, expert testimony should be admitted only when the trial court can affirmatively answer a two-fold inquiry. The first prong mandates that a witness must be qualified by virtue of his or her knowledge, skill, experience, or education. Second, the witness's scientific, technical, or other specialized knowledge must assist the trier of fact to understand or decide a fact in issue. Put simply, the expert's proposed testimony must be both relevant to the case at hand and based on reliable methodology. This standard is generally known as the Daubert standard.Kelly, 358 So.3d at 1057 (¶10) (citations and internal quotation marks omitted) (citing Clark v. State, 315 So.3d 987, 995-96 (¶16) (Miss. 2021)).
Fulgham Testimony and Pre-trial Report
¶59. Under Mississippi Rule of Civil Procedure 26, a party must provide the opposing party with the identity of its expert, the subject matter, and the opinions about which that expert is expected to testify. M.R.C.P. 26(4); Briggs v. Hughes, 316 So.3d 193, 199 (¶29) (Miss. 2021). In Briggs, the Supreme Court found that this obligation was satisfied by providing an affidavit with an expert's qualifications and opinions. Briggs, 316 So.3d at 199 (¶19). Moreover, the Supreme Court also noted that Briggs, who had challenged the admission of an expert's testimony, had failed to show how his ability to prepare for trial had been prejudiced. Id. at (¶30).
¶60. In the case at hand, although Fulgham testified about the differences in training between a forester and an arboriculturist, the Allreds never objected to Fulgham's qualifications and accepted him as an expert. Moreover, the Allreds were provided Fulgham's report prior to trial, which was also admitted into evidence at the trial. In it, Fulgham stated that his task was to "review information regarding the tree that is assumed to have struck the car and provide an opinion on the Stokes report." Clearly, Fulgham was not designated to give opinions about the health of the tree at the time of the accident, but only to give his opinion about the methodology Stokes used and the opinions Stokes reached. Further, Fulgham noted in his report that Stokes did not examine the tree but that he (Fulgham) did. From his examination, he reported that Stokes had misidentified the species and the size of the tree. Fulgham went on in his report to review the 2014 photographs that Stokes relied upon. Fulgham noted that they were taken in January 2014 from only one perspective and that the sun partially inhibited the view of the north side of the tree. Fulgham opined that a site visit, not a photograph, especially one made in the winter when a tree is dormant, was needed to assess the health of a tree. In our review, we find nothing in Fulgham's testimony that was not disclosed in his report.
Different Training - Arboriculturist v. Forester
¶61. The Allreds next argue that the court erred in letting Fulgham testify because he was an arboriculturist and not a forester like Stokes. However, Fulgham testified that an arboriculturist was a forester with additional training and that neither a forester nor an arboriculturist could give an opinion on the health of the tree or limbs in question at the time of the accident. To support their position, the Allreds cite McCaffrey v. Puckett, 784 So.2d 197 (Miss. 2001). However, that case does not address the issue at hand. In that case, a chiropractor testified about the defendant chiropractor's breach of the standard of care. Id. at 200-02 (¶¶8, 16). However, the expert based his opinion in part on a medical article written by a medical doctor. Id. at 203 (¶18). The Mississippi Supreme Court held that this did not disqualify the chiropractor from testifying as an expert. Id.
¶62. "Mississippi has adopted the federal standard set out in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), and as modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), for analyzing the admissibility of expert testimony." Sanders v. Wiseman, 29 So.3d 138, 141 (¶10) (Miss. Ct. App. 2010). Daubert requires an expert opinion meet a two-prong test: first, the opinion must be relevant (i.e., it must assist the trier of fact), and second, it must be reliable. Id. The witness's expertise is determined by his training, education and experience with the subject area. "Only if the witness possesses scientific, technical, or specialized knowledge on a particular topic will he qualify as an expert on that topic." Worthy, 37 So.3d at 616 (¶23) (citing Sheffield v. Goodwin, 740 So.2d 854, 856 (Miss. 1999)).
¶63. In medical negligence cases, we have held:
It is generally not required that an expert testifying in a medical malpractice case be of the same specialty as the doctor about whom the expert is testifying. However, the expert witness must demonstrate satisfactory familiarity with the specialty of the defendant doctor before the witness will be permitted to testify and offer opinions as to the standard of care owed to the plaintiff patient.Est. of Sumrall v. Singing River Health Sys., 303 So.3d 798, 806 (¶20) (Miss. Ct. App. 2020).
Additionally, Daubert provides a list of factors for assessing reliability, including: whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance within [the] relevant scientific community.Sanders, 29 So.3d at 141 (¶11). This analysis is focused solely on principles and methodology, not on the conclusions they generate. Id. (quoting Daubert, 509 U.S. at 595).
¶64. In this case, Fulgham was a forester in addition to being an arboriculturist. He had a master's degree in urban forestry and thereafter obtained various licenses and additional training. He had thirty years experience working with trees and specialized in managing and assessing the health of trees. Moreover, Fulgham testified that as an arboriculturist, he helped homeowners identify trees as either assets or liabilities, assessing the health or risk of individual trees every day. Stokes, as a forester, was designated as an expert to render opinions concerning the health of a tree and its limbs. It is abundantly clear that Fulgham had the scientific, technical, or specialized knowledge on a key issue in this case, and the circuit court did not err in allowing him to testify as an expert.
¶65. Moreover, Fulgham's testimony was helpful to the finder of fact. He identified an international standard/methodology that is used to assess the health of trees which included a site visit. Stokes admitted that visiting and examining the tree was the normal standard; however, he could not do that in this case because time had passed, and the County had cut back the tree. Instead, Stokes used photographs from five years before the accident to assess the tree and limb's health. Stokes further admitted that he had not used such a method to give an opinion in court. Fulgham testified that such an alternative methodology was not acceptable. The party offering an expert's opinion must show that the opinion is based on sufficiently reliable scientific principles. Id. The Mississippi Supreme Court has held that "[t]he trial court has considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Thompson v. Holliman, 283 So.3d 718, 723 (¶20) (Miss. 2019). "Once a witness is qualified as an expert to render expert testimony, then it is within the province of the trier of fact to give weight and credibility to the testimony." Utz v. Running &Rolling Trucking Inc., 32 So.3d 450, 460 (¶19) (Miss. 2010). Accordingly, we find no error in the circuit court's admission of Fulgham as an expert or in allowing him to testify to the opinions he gave.
Conclusion
¶66. Because we find no error in the circuit court's finding that the County did not breach any duty of care owed to the Allreds or in the circuit court's assessment and admission of the expert testimony provided by the parties, we affirm the circuit court's judgment in favor of the County.
¶67. AFFIRMED.
BARNES, C. J., CARLTON AND WILSON, P.JJ., WESTBROOKS, LAWRENCE, McCARTY, SMITH, EMFINGER AND WEDDLE, JJ., CONCUR