Jones v. Mississippi Dept. of Transp.

• Decision Date: 10 June 1999
• Docket Number: No. 1998-CA-01211-SCT., No. 1998-CA-01210-SCT
• Citation: 744 So.2d 256
• Parties: Sarah JONES and Lottie Still v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Tunica County, Tunica County Board of Supervisors and Other Unknown Defendants. James L. Still and Lottie Still v. Mississippi Department Of Transportation, Tunica County, Tunica County Board of Supervisors and Other Unknown Defendants.
• Court: Mississippi Supreme Court

744 So.2d 256

Sarah JONES and Lottie Still v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Tunica County, Tunica County Board of Supervisors and Other Unknown Defendants.

James L. Still and Lottie Still v. Mississippi Department Of Transportation, Tunica County, Tunica County Board of Supervisors and Other Unknown Defendants.

Nos. 1998-CA-01210-SCT, 1998-CA-01211-SCT.

Supreme Court of Mississippi.

June 10, 1999.

Rehearing Denied September 2, 1999.

D. Briggs Smith, Jr., Hernando, Attorney for Appellants.

Robert H. Harper, Jim Fraiser, Jackson, James T. McColgan, III, Marcy L. Dodds, Memphis, TN, Attorneys for Appellees.

BEFORE SULLIVAN, P.J., BANKS AND WALLER, JJ.

BANKS, Justice, for the Court:

¶ 1. Here we are asked to determine whether the MDOT's and a county's failure to place traffic control devices on a road is a discretionary act under the Tort Claims Act entitling the county to immunity from appellants' suit to recover for injuries sustained in an automobile accident on the road. We conclude that, although the failure to place the traffic control devices was a discretionary act, the MDOT and the county had a duty to warn motorists of a dangerous condition of which it had knowledge. Accordingly, we reverse and remand.

I.

¶ 2. On January 29, 1995, Lottie Still ("Still") and Sarah Jones ("Jones") were injured in an one-vehicle accident as Still was driving along Bowden Lost Lake Road in Tunica County. Jones was a passenger in the vehicle. Irwin Place Road, which had recently been reopened after a construction project, intersected with Bowden Lost Lake Road to form a "T" intersection.¹ There was no STOP sign at the end of Bowden Lost Lake Road nor were there any traffic control signs warning oncoming traffic that they were approaching a "T" intersection. Upon reaching the intersection Still failed to stop the vehicle or to maneuver a right or left turn. Still crossed the intersection, crashing her car into a ditch.

¶ 3. Separate actions were filed by Jones and Still against Mississippi Department of Transportation, Tunica County and Tunica County Board of Supervisors. James Still, husband of Mrs. Still, joined in the action with his wife seeking to recover for loss of consortium. Jones and the Stills claim that the defendants negligently failed to erect traffic control signs warning of the "T" intersection and/or a STOP sign. Jones and the Stills also claim that such failure caused the accident and resulted in their respective injuries.

¶ 4. MDOT and Tunica County filed Rule 12(b)(6) motions to dismiss. The trial court consolidated Jones's and the Stills' actions and entered an Order granting MDOT's and Tunica County's motions to dismiss. The trial court found that the placement of traffic control signs was a discretionary function and as such the defendants were immune from suit pursuant to Miss.Code Ann. § 11-46-9(d)(Supp.1998).

II.

a.

¶ 5. In considering whether to grant a Rule 12(b)(6) motion to dismiss the trial court must take the "`pleaded allegations of the complaint [] as true and a dismissal should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief.'" Butler v. Board of Sup'rs, 659 So.2d 578, 581 (Miss.1995) (quoting Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990)). The same standard is applied on appeal when considering the propriety of the trial court's granting a Rule 12(b)(6) motion to dismiss. McFadden v. State, 542 So.2d 871, 874-75 (Miss.1989).

b.

¶ 6. Jones and the Stills raise the issue of whether the placement of traffic control devices was a discretionary act entitling MDOT and Tunica County to protection from suit under the Tort Claims Act. Jones and the Stills claim that the placement of traffic control devices is mandated by statute and therefore is not covered under the discretionary acts exemption to the Tort Claims Act; MDOT and Tunica County disagree.

¶ 7. Miss.Code Ann. § 11-46-9(1)(d), an exception to the Tort Claims Act's waiver of immunity, entitles a governmental entity to immunity where the conduct complained of involves the exercise of discretion.² However, the Tort Claims Act does not define "discretion." In interpreting a statute which is given to more than one interpretation, this Court is to give effect to legislative intent. Pegram v. Bailey, 708 So.2d 1307, 1314 (Miss.1997) (quoting McMillan v. Puckett, 678 So.2d 652, 657 (Miss.1996) (Banks, J. dissenting)). In so doing, words which have no statutory definitions are to be assigned their ordinary and customary meanings. Id.

¶ 8. Prior to the abolishment of judicially created sovereign immunity in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss. 1982), this Court utilized two tests to determine immunity issues. The governmental/proprietary function test was used to determine whether a municipality was entitled to immunity. In Parker v. City of Philadelphia, 725 So.2d 782, 784 (Miss. 1998), this Court stated that:

Under pre-Pruett common law, whether a city "enjoys the defense of sovereign immunity depends upon whether the alleged conduct occurred in the exercise of a governmental function or in the exercise of a proprietary function." Morgan [v. City of Ruleville, 627 So.2d 275, 279 (Miss.1993)]; Webb v. Jackson, 583 So.2d 946, 952 (Miss.1991). A city performing a governmental function is immune from a negligence suit, whereas a city performing a proprietary function is not immune from a negligence suit. Morgan, 627 So.2d at 279; Webb, 583 So.2d at 952.

However, this test is not applicable to the state and its political subdivisions. Mississippi Transp. Comm'n v. Rector, 663 So.2d 601, 602 (Miss.1995) (holding that the governmental/proprietary test applies only to municipalities, not to the State or its political subdivisions); Stokes v. Kemper County Bd. of Supervisors, 691 So.2d 391, 393 (Miss.1997).

¶ 9. In determining whether government employees were entitled to qualified immunity, this Court utilized the discretionary/ministerial test. Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss.1996). Governmental employees are entitled to qualified immunity for discretionary acts. Under this test, conduct is ministerial, and not discretionary, if it is imposed by law and the performance of the duty is not dependent on the employee's judgment. Barrett v. Miller, 599 So.2d 559, 567 (Miss. 1992). In two recent cases, Lang v. Bay St. Louis/Waveland Sch. Dist., No. 97-CA-01612-SCT, 1999 WL 250977, ___ So.2d ___ (Miss. April 29, 1999) and L.W. v. McComb Separate Mun. Sch. Dist., No. 97-CA-01465-SCT, 1999 WL 682076, ___ So.2d ___ (Miss. Sept. 2, 1999), this Court used the discretionary/ministerial test to determine whether the conduct complained of constituted discretionary acts under § 11-46-9.

¶ 10. The issue of what acts are discretionary under the statute has been addressed in other jurisdictions with similar discretionary act exemptions. Section 11-46-9 appears to be patterned after 28 U.S.C. § 2680(a), the "discretionary function" exception to the Federal Tort Claims Act. The United States Supreme Court has recognized that the majority of acts in the day-to-day operations of governmental activities involve the exercise of some form of discretion, however, not all of these acts are protected under the exception. In determining the scope of the acts protected under the exception, the Supreme Court held that only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). "[T]he purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Id. at 323, 111 S.Ct. 1267 (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). In discerning whether a function is afforded immunity under the discretionary exception, it must first be determined whether the activity involved "an element of choice or judgment." Gollehon Farming v. United States, 17 F.Supp.2d 1145, 1154 (D.Mont.1998). If so, it must then be determined "whether the choice involved social, economic or political policy." Id.

¶ 11. In determining whether governmental conduct is discretionary so as to afford the governmental entity immunity, this Court adopts the public policy function test as set out in United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). As noted in Parker, 725 So.2d at 784, "[t]he classifications of those functions which are governmental and those which are proprietary are very general, and are often difficult to define."

¶ 12. In Parker, 725 So.2d at 784, this Court employed the governmental/proprietary function test in holding that the placement of warning signs on a road is a governmental function, and therefore immune from suit. Also in King v. City of Jackson, 667 So.2d 1315, 1316 (Miss.1995), this Court held that "as a matter of public policy the decision of a city whether to place traffic or warning signs is a governmental function, not proprietary." The outcome would be the same under the public policy function test.

¶ 13. Jones and the Stills claim that read in conjunction, Miss.Code Ann. §§ 63-3-301, 63-3-303, 63-3-305, 63-3-805, 65-7-15, and specified provisions of the Manual on Uniform Traffic Control Devices ("MUTCD"), amount to a mandatory requirement for the placement of traffic control signs on Bowden Lost Lake Road.³ However, the provisions cited by Jones and Still do not support a finding that the placement of traffic control signs on Bowden Lost Lake Road is mandatory.

¶ 14. First, when § 65-7-15 is read in conjunction with § 65-7-17 it becomes clear that the subsection refers to the placement of directional road signs as opposed to traffic...