Borne v. Estate of Carraway
118 So. 3d 571
| Miss. | 2013Background
- Sinkhole formed behind Carraway residence due to underground culvert system draining Eastover Lake.
- Lake Owner Defendants and Eastover Lake Association (ELA) own/maintain lake and culvert; City repaired nearby sewer line in 2002.
- Trial court held joint and several liability among City, Lake Owner Defendants, and ELA for culvert repair.
- Chancellor found easement by necessity for Lake Owner Defendants/ELA and duty of maintenance; City blamed for negligent repair.
- Court later held liability should be severed in proportion to fault, and jurisdictional issues addressed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations start time | Carraways discovered injury late; discovery rule applies. | Discovery timing disputed; limitations should have begun earlier. | Discovery rule applied; timely filed within three years. |
| Ownership/maintenance of culvert | Lake Owner Defendants/ELA own easement and are responsible. | City plat acceptance argued to dedicate culvert; ownership unclear. | Easement by necessity exists for Lake Owner Defendants/ELA. |
| Liability form among defendants | City liable for share due to negligent repair; others responsible too. | Liability should be joint and several or allocated differently. | Joint and several liability reversed; severally liable in proportion to fault. |
| Indemnity against City | Lake Owner Defendants/ELA entitled to indemnity for City’s fault. | Indemnity barred by active negligence by Lake Owner Defendants/ELA. | Indemnity denied; active negligence by Lake Owner Defendants/ELA confirmed. |
| ELA's status and riparian duties | ELA has duties via flowage easement to maintain water control. | As non-owner, ELA cannot bear riparian obligations. | ELA has duty of care via flowage easement and easement by necessity. |
Key Cases Cited
- J.B. Hunt Transport, Inc. v. Forrest General Hospital, 34 So.3d 1171 (Miss. 2010) (indemnity exception for passive negligence)
- Angle v. Koppers, Inc., 42 So.3d 1 (Miss. 2010) (discovery rule accrual for latent injuries)
- Lincoln Electric Co. v. McLemore, 54 So.3d 833 (Miss. 2010) (accrual when injury discovered, not causation)
- Punzo v. Jackson County, 861 So.2d 340 (Miss. 2003) (expert knowledge vs lay perception of complex issues)