Donaldson v. Covington County

• Decision Date: 27 March 2003
• Docket Number: No. 2001-CA-01446-SCT.,2001-CA-01446-SCT.
• Citation: 846 So.2d 219
• Parties: Charles L. DONALDSON v. COVINGTON COUNTY, Mississippi.
• Court: Mississippi Supreme Court

846 So.2d 219

Charles L. DONALDSON v. COVINGTON COUNTY, Mississippi.

No. 2001-CA-01446-SCT.

Supreme Court of Mississippi.

March 27, 2003.

Rehearing Denied June 5, 2003.

Robin L. Roberts, Hattiesburg, Eugene Coursey Tullos, attorneys for appellant.

Robert O. Allen, Sally Burchfield Doty, Brookhaven, attorneys for appellee.

Before PITTMAN, C.J., WALLER and CARLSON, JJ.

PITTMAN, C.J., for the Court.

¶ 1. Charles L. Donaldson was involved in car accident while driving on old Highway 49, a county-maintained road, in Covington County. Donaldson sued Covington County under the Mississippi Tort Claims Act ("MTCA"), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002), alleging that the county knew the road was unreasonably dangerous and failed to warn motorists of the danger. After a bench trial, the circuit court entered judgment for the county holding that the county exercised ordinary care in performing its duty to warn motorists of the curve. Donaldson appeals.

FACTS

¶ 2. On a rainy January 12, 1998, Charles L. Donaldson was involved in a one-vehicle accident on the county-maintained Old Highway 49 ("Highway 49") in Covington County. At the time, Donaldson was hauling a backhoe using his employer's van. The stretch of road where the accident occurred presents a significant curve and a railroad intersection.

¶ 3. Donaldson alleged that the county knew of the dangerous road conditions and that the county's failure to warn motorists was the proximate cause of his accident. Likewise, he claimed, by failing to warn motorists of a known hazard, the Board of Supervisors, which is responsible for maintaining county roads, acted with reckless disregard for his safety. Denying all liability, the county maintained that it satisfied all requirements of the law and due care.

¶ 4. In July 2001, a two-day trial was held in the Circuit Court of Covington County.

¶ 5. Donaldson testified that he was traveling at approximately 40 m.p.h with his windshield wipers and headlights on and, because there was insufficient warnings, the curve surprised him.

¶ 6. The accident investigator from the sheriff's department, Joseph Tuggle, testified that there were no warnings along the route Donaldson was traveling and that warnings were posted subsequent to Donaldson's wreck. Additionally, he testified to his knowledge of other, unreported wrecks at this curve.

¶ 7. Donaldson presented John Exnicios as an expert witness in the field of traffic engineering and road signs. He testified regarding a "ball bank indicator" test, which is used to determine the proper speed that a curve can be safely negotiated by motorists. After conducting his own test, Exnicios concluded that 25 m.p.h. was the appropriate speed for the curve and that 55 m.p.h—the speed limit at the time of Donaldson's wreck—was too high.

¶ 8. Further, Exnicios testified that the county failed to satisfy the guidelines provided in the Manual on Uniform Traffic Control Devices ("MUTCD") and that the county failed to adequately warn motorists of the curve. The MUTCD is published by the Federal Highway Administration (FHWA) and defines the national standards for the installation and maintenance of traffic control devices on all streets and highways. The standards of the MUTCD are classified in three categories: advisory, permissive, and mandatory. Dep't of Transp. v. Mikell, 229 Ga.App. 54, 493 S.E.2d 219, 222 (1997).

¶ 9. Because he was not an accidentologist, the court prevented Exnicios from testifying regarding whether the lack of signs was the proximate cause of the wreck or give his opinion on whether the county failed to adequately warn motorists.

¶ 10. Ultimately, the trial court held that the county exercised ordinary care in the performance of its placement of warnings. The decision of the trial court failed to mention the MUTCD, but noted that, though not ideal, the warnings provided by the county were adequate to warn motorists.

STANDARD OF REVIEW

¶ 11. A case brought under the Tort Claims Act is tried without a jury. Miss.Code Ann. § 11-46-13. See also Simpson v. City of Pickens, 761 So.2d 855, 860 (Miss.2000)

. A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000) (citations omitted). This Court reviews questions of law, including the proper application of the Mississippi Tort Claims Act, de novo. City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000).

ANALYSIS

I. SHOULD THE MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES ("MUTCD") BE ENFORCED AS THE STANDARD OF CARE?

¶ 12. Donaldson petitions the Court to extend the holding in Jones v. Panola County, 725 So.2d 774 (Miss.1998), and enforce the MUTCD as the minimum standard of care in the placement of signs. The county maintains that a strict enforcement of the MUTCD is unworkable and ignores the inherent particularities of Mississippi roadways. The county notes the utility of the MUTCD; however, it argues that ultimately it is the people charged with maintaining roadways who are best suited to determine the necessary signs.

¶ 13. Mississippi law requires the Commissioner of Public Safety to adopt a manual for uniform traffic control, which must generally conform with the system approved by the American Association of State Highway Officials ("AASHTO"). Miss.Code Ann. § 63-3-301 (Rev.1996).¹ Local authorities may place and maintain traffic control devices as they deem necessary; however, the devices shall conform to the state manual. Id. § 63-3-305.²

¶ 14. Interpreting § 63-3-305, the Attorney General concluded that local authorities have a duty to determine the necessity of traffic control devices and post signs thereto conforming with state law. Miss. Att'y Gen. Opinion No.XXXX-XXXX (Sept. 29, 2000). However, to ensure uniformity, all such devices must meet the specifications set forth in the manual. Id.

¶ 15. This Court has considered the relationship between MUTCD and the standard of care and held that the MUTCD was admissible as nonconclusive proof of the standard of care. Jones v. Panola County, 725 So.2d 774 (Miss.1998). See also Leflore County v. Givens, 754 So.2d 1223 (Miss.2000)

. In Panola County, the plaintiff sued the county after his vehicle struck a gravel pile that was used to mark an out of service bridge. 725 So.2d at 775. The plaintiff appealed the decision of the trial court prohibiting him from offering the MUTCD as evidence of the applicable standard of care in the placement of warnings. Id. at 777. Reversing and remanding, this Court held that "the relevant MUTCD provisions may properly be considered by a jury as evidence of negligence, albeit not as conclusive evidence thereof." Id. at 778 (footnote omitted). This Court stressed that a verdict favoring the plaintiff based solely on the MUTCD guidelines would be improper. Id. at 778-79.

¶ 16. In an unrelated case, we held that both counties and the Department of Transportation have a duty to warn motorists of a known dangerous condition. Jones v. Miss. Dep't of Transp., 744 So.2d 256, 258 (Miss.1999). The case arose after the county reopened a road but failed to place a stop sign where the road intersected with another forming a "T" intersection. Id. at 258. In the decision, we recognized that, although Mississippi had not formally adopted a manual, the MUTCD was the manual to be used in conformity with the statutes. Id. at 262 (citing Jones v. Panola County, 725 So.2d at 777-78).

¶ 17. The Court finds that there is no majority view regarding the MUTCD. E.g., Donaldson v. Dep't of Transp., 236 Ga.App. 411, 511 S.E.2d 210 (1999)

(since the MUTCD was not published by authority by the Secretary of State as state adopted regulations, it does not have the force of law); Brockie v. Omo Constr., Inc., 255 Mont. 495, 844 P.2d 61 (1992) (violation of MUTCD is not negligence per se but evidence of negligence); Fisher v. State, 268 A.D.2d 849, 702 N.Y.S.2d 418 (N.Y.App.Div.2000)(MUTCD sets forth the standards for evaluating the reasonableness of the State's placement of road markings); Patton v. Cleveland, 95 Ohio App.3d 21, 641 N.E.2d 1126 (1994) (failure to meet requirements of MUTCD to post construction approach signs was negligence per se, not some evidence of negligence); City of Mission v. Cantu, 89 S.W.3d 795 (Tex.App.2002) (violations of the MUTCD are not negligence per se, as compliance with the MUTCD is not mandatory).

¶ 18. Donaldson cites Schaeffer v. Kansas Dep't of Transp., 227 Kan. 509, 608 P.2d 1309 (1980). In Schaeffer, a woman sued the Kansas Department of Transportation ("KDOT") alleging that, because there was an inadequate warning regarding the curve, there was a street defect, which led to her husband's inability to safely negotiate a curve. Id. at 1312. Quoting the opinion from the Kansas Supreme Court, which affirmed a decision holding the DOT 49% responsible to Schaeffer 51%, Donaldson argues:

[It] appears obvious that both [statute and MUTCD] vest in the DOT the discretion and obligation to maintain adequate warning signs if, in fact, a hazard does exist. In our opinion the manual merely establishes minimum, not maximum, standards for safety. To hold otherwise would place form over substance and would negate the actual objectives of the statutes and manual of effecting uniform traffic control with a maximum amount of protection for the motoring public.

Id. at 1316 (emphasis added). Upon review, we find Schaeffer unpersuasive.

¶ 19. Schaeffer was based on a since repealed statute that allowed a party to sue state entities based on a highway defect, in contrast to a suit based on common law negligence. Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982). Because the standard of liability differs between an action based on statutory liability for a highway defect and one...