Lee County Bd. of Sup'rs v. Fortune, No. 90-IA-0717

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBefore ROY NOBLE LEE; BANKS; ROY NOBLE LEE; McRAE; ROBERTS; McRAE
Citation611 So.2d 927
PartiesLEE COUNTY BOARD OF SUPERVISORS v. Margie Gail FORTUNE.
Decision Date31 December 1992
Docket NumberNo. 90-IA-0717

Page 927

611 So.2d 927
LEE COUNTY BOARD OF SUPERVISORS
v.
Margie Gail FORTUNE.
No. 90-IA-0717.
Supreme Court of Mississippi.
Dec. 31, 1992.

Page 928

William M. Beasley, Mitchell Voge Beasley & Corban, Tupelo, for appellant.

Karla J. Pierce, Dale Hubbard, Ferrell & Hubbard, Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the Court:

Here we again treat the issue of sovereign immunity, this time, however, in light of our recent pronouncements in Presley v. Mississippi State Highway Commission, 608 So.2d 1288 (Miss.1992). Having determined that we are free from a legislative attempt to freeze the common law as it existed prior to Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), we examine the situation here presented for determination of whether a permutation of the doctrine of sovereign immunity as it existed pre-Presley is in order.

I

This case is before this Court from an order granting certification for Interlocutory Appeal on June 27, 1990, to Lee County Board of Supervisors (Lee County) pursuant to Rule 5 of the Rules of the Mississippi Supreme Court. Lee County is appealing the circuit court's refusal to grant its Motion to Dismiss.

On December 27, 1989, Mrs. Margie Gail Fortune (Fortune) filed suit for the wrongful death of her husband and two children in the Circuit Court of Lee County against the Lee County Board of Supervisors and XYZ Construction Company, alleging negligence in the erection and maintenance of a bridge by failing to place warning signs/devices on the roads in Lee County, and failing to exercise reasonable care to keep the roads and bridges safe by providing adequate and necessary guardrails for bridges

Subsequently, on January 17, 1990, Lee County Board of Supervisors filed their Motion to Dismiss pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure on the basis that they are a political subdivision of Mississippi, and therefore, immune from liability.

The circuit court refused to grant Lee County's Motion to Dismiss. In its Opinion dated May 31, 1990, the court held that, if Lee County breached a duty placed upon it by Miss.Code Ann. Sec. 65-21-1, 1 it cannot claim the benefit of sovereign immunity. On June 7, 1990, Lee County filed a request for interlocutory appeal, which was granted. Lee County presents one issue for review before this Court:

I. Whether the Lee County Board of Supervisors is immune from civil liability for damages alleged to have resulted

Page 929

from their negligence in the construction and/or maintenance of a bridge on a county road.

In response, Fortune presents the following issues for review:

I. Whether a statutory mandate to the Lee County Board of Supervisors makes their performance ministerial rather than discretionary, thereby waiving their immunity from suit.

II. (In the event the acts of the Board are determined to be discretionary, which Fortune denies), whether the Board acted arbitrarily and capriciously thereby abusing its discretion and permitting the veil of immunity to be pierced.

III. Whether the Board of Supervisors should be held liable to members of the general public for failure to warn of and/or cure hazards which it has created.

IV. Whether the doctrine of sovereign immunity should be abolished.

II

On December 11, 1989, Fortune's husband, Steven, and her two minor children, Stephanie, age 7, and Steven Matthew, age 4, were killed when their vehicle dropped off a bridge on Lee County Road No. 681. Apparently, Mr. Fortune was attempting to move his vehicle to the right of the bridge to avoid collision with another car that was approaching the bridge at the same time as his vehicle. As he did so, the right wheels of his vehicle dropped from the bridge, causing his vehicle to flip and land in a creek below. He and the two children drowned.

There was an affidavit by Jimmy Jackson, who claimed that the bridge was extremely narrow and lacked bridge rails or warning signs to advise motorists. Mr. Jackson stated that he personally measured the bridge at the center and that it was less than 16 feet wide. 2 Jackson stated that he spoke with an engineer with Cook-Coggins Engineering Co., who told him that the bridge was constructed in 1956. 3

Mr. William Jones, a resident of Lee County, also gave a sworn affidavit. He stated that he lived very close to the bridge and had been complaining about the bridge for years. He asserted that on many occasions he spoke with Al Rice, a member of the Lee Board of Supervisors. On one particular instance, he recommended to Rice that the county put banisters or guardrails on the bridge. He also recommended that the board post a sign on the bridge. Jones stated that Rice's response was "they'd just saw the posts off and throw them away. There is no way we could keep a banister." Jones asserted that he then suggested that the Board place steel posts on the bridge. To that, Rice asserted, "they'd just take some kind of tractor and pull them off." Jones said that he...

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8 practice notes
  • Grindle v. State, No. 2012–KA–00006–COA.
    • United States
    • Court of Appeals of Mississippi
    • March 20, 2014
    ...in Berry was whether the father had been “conscious of impending death” and, thus, met the requirements of Rule 804(b)(2). Berry, 611 So.2d at 927. Our supreme court found that based on the severity of the victim's wounds and testimony from the victim's son that his father regained consciou......
  • Coplin v. Francis, No. 90-CA-0705
    • United States
    • United States State Supreme Court of Mississippi
    • January 27, 1994
    ...hereafter built or rebuilt shall be built with banisters on either side. (emphasis added) In Lee County Board of Supervisors v. Fortune, 611 So.2d 927 (Miss.1992), while declining to answer the question of whether Sec. 65-21-1 and Sec. 19-13-51 3 provide a statutory basis for a finding of n......
  • Mohundro v. Alcorn County, No. 92-CA-00152-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • June 6, 1996
    ...This holding of unconstitutionality has been consistently followed in subsequent cases. See Lee County Board of Supervisors v. Fortune, 611 So.2d 927 (Miss.1992); Churchill v. Pearl River Basin Development District, 619 So.2d 900 (Miss.1993); Rector v. Mississippi State Highway Com'n, 623 S......
  • Fortune v. Lee County Bd. of Sup'rs, No. 94-CA-00102-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 23, 1998
    ...of bridges on public roads, it was not shielded from liability by sovereign immunity. Lee County Bd. of Supervisors v. Fortune, 611 So.2d 927, 928 (Miss.1992)(hereinafter Fortune I). This Court granted the Board's request for an interlocutory appeal on the question of its liability for negl......
  • Request a trial to view additional results
8 cases
  • Grindle v. State, No. 2012–KA–00006–COA.
    • United States
    • Court of Appeals of Mississippi
    • March 20, 2014
    ...in Berry was whether the father had been “conscious of impending death” and, thus, met the requirements of Rule 804(b)(2). Berry, 611 So.2d at 927. Our supreme court found that based on the severity of the victim's wounds and testimony from the victim's son that his father regained consciou......
  • Coplin v. Francis, No. 90-CA-0705
    • United States
    • United States State Supreme Court of Mississippi
    • January 27, 1994
    ...hereafter built or rebuilt shall be built with banisters on either side. (emphasis added) In Lee County Board of Supervisors v. Fortune, 611 So.2d 927 (Miss.1992), while declining to answer the question of whether Sec. 65-21-1 and Sec. 19-13-51 3 provide a statutory basis for a finding of n......
  • Mohundro v. Alcorn County, No. 92-CA-00152-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • June 6, 1996
    ...This holding of unconstitutionality has been consistently followed in subsequent cases. See Lee County Board of Supervisors v. Fortune, 611 So.2d 927 (Miss.1992); Churchill v. Pearl River Basin Development District, 619 So.2d 900 (Miss.1993); Rector v. Mississippi State Highway Com'n, 623 S......
  • Fortune v. Lee County Bd. of Sup'rs, No. 94-CA-00102-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 23, 1998
    ...of bridges on public roads, it was not shielded from liability by sovereign immunity. Lee County Bd. of Supervisors v. Fortune, 611 So.2d 927, 928 (Miss.1992)(hereinafter Fortune I). This Court granted the Board's request for an interlocutory appeal on the question of its liability for negl......
  • Request a trial to view additional results

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