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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 95-CA-01312 COA MYRL BARFIELD v. CITY OF CALHOUN CITY, MISSISSIPPI APPELLANT APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE: NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED: NOVEMBER 13, 1995 HONORABLE R. KENNETH COLEMAN CALHOUN COUNTY CIRCUIT COURT DANA J. SWAN J. KIRKHAM POVALL JOHN DONELSON BRADY JOSEPH MCCOY CIVIL - PERSONAL INJURY DIRECTED VERDICT GRANTED IN FAVOR OF APPELLEE. AFFIRMED - 11/18/97 11/24/97 2/27/98

BEFORE McMILLIN, P.J., HINKEBEIN, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT: In a personal injury action brought by Myrl Barfield and tried without a jury, the circuit court granted a directed verdict in favor of the City of Calhoun City. On appeal, Barfield asserts that the court erroneously applied the open and obvious defense rather than the doctrine of comparative negligence. We find that in fact the trial court properly applied the controlling statute on municipal immunity. We therefore affirm. FACTS

On rainy December 13, 1993, Myrl Barfield traveled with a friend to Calhoun City. After parking their car in front of City Hall, they proceeded across the street. While on the street, Barfield fell and injured her wrist and shoulder. Barfield filed suit against Calhoun City alleging that the City negligently maintained the street. She contended that a pothole in the street caused her fall. Barfield made no report of the accident at that time. At trial Barfield called City employees to testify regarding the pothole and the City's street inspection program. Photographs were introduced of a pothole, but these were taken after the incident. Between the time of the injury and the photographs, north Mississippi suffered a severe ice storm that according to testimony, may have caused the photographed pothole. A City employee testified as to repairing the photographed pothole as soon as it was discovered after the ice storm. There was some evidence the pothole had been there from before the storm. At the close of Barfield's case, the trial court granted the City's motion for directed verdict. The court concluded that the city was immune from suit under a statute barring any claim: Arising out of an injury caused by a dangerous condition on the 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.

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