Leflore County v. Givens, 1998-IA-01454-SCT.

• Citation: 754 So.2d 1223
• Decision Date: 27 January 2000
• Docket Number: No. 1998-IA-01454-SCT.,1998-IA-01454-SCT.
• Parties: LEFLORE COUNTY, Mississippi, Phil Wolfe, Robert Moore, William Stewart, Alix H. Sanders, James N. Hooper, Jr., in their capacity as supervisors; and the Leflore County Board of Supervisors, Individually v. Bob GIVENS, as father and next friend of Kimberly Givens and L.M. Green, III, as father and next friend of Leslie Kathy Green.
• Court: Mississippi Supreme Court

754 So.2d 1223

LEFLORE COUNTY, Mississippi, Phil Wolfe, Robert Moore, William Stewart, Alix H. Sanders, James N. Hooper, Jr., in their capacity as supervisors; and the Leflore County Board of Supervisors, Individually v. Bob GIVENS, as father and next friend of Kimberly Givens and L.M. Green, III, as father and next friend of Leslie Kathy Green.

No. 1998-IA-01454-SCT.

Supreme Court of Mississippi.

January 27, 2000.

Mitchell Cowan, Joseph Stroble, Jackson, Willie Perkins, Greenwood, Attorneys for Appellants.

Marc Biggers, Paul Goodman, J.L. Wilson, Greenwood, Attorneys for Appellees.

BEFORE SULLIVAN, P.J., SMITH AND MILLS, JJ.

SULLIVAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. This case comes on interlocutory appeal after the denial of a motion for summary judgment. The Appellees ("plaintiffs") filed an action against Leflore County, Mississippi ("county") for injuries sustained by their children in a single vehicle accident on August 27, 1994 after their car left State Aid Road 515, also known as Itta Bena-Schlater Road, at a curve. Four people were in the car, Page Givens and Leslie Green, the plaintiffs in this case; Michael Davidson who was killed as a result of the accident; and Douglas Chismond a passenger who apparently was asleep at the time of the accident. The plaintiffs claimed that the county was negligent in its failure to warn of the danger at the curve because there were no advisory speed limits, warning signs or other devices at the curve where the accident occurred. A Notice of Claim was filed in an attempt to comply with the notice requirements of the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-11 on August 21, 1995, and the plaintiffs filed suit on August 24, 1995. After answering the complaint and conducting discovery, the county filed a motion for summary judgment on March 18, 1998. The circuit court denied the motion for summary judgment and set the matter for a bench trial to begin on November 5, 1998. The county filed a Motion for Certification of Interlocutory Appeal in the circuit court seeking that court's permission to appeal the denial of summary judgment to this Court, which was denied by the circuit court on September 24, 1998. This Court on its own motion stayed the proceedings of the lower court pending its disposition of the Petition for Certification of Interlocutory Appeal. The circuit court issued an order on October 20, 1998, continuing the case pending this Court's disposition of the Petition for Interlocutory Appeal. We granted the petition for interlocutory appeal on November 20, 1998. An order denying an emergency motion to suspend the rules and vacate stay on the part of the plaintiffs was entered on October 22, 1998. The county filed its Notice of Appeal in the instant case pending before this Court on December 2, 1998.

STANDARD OF REVIEW

¶ 2. For a summary judgment motion to be granted there must exist no genuine issues of material fact and the moving party must be entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). This Court employs a de novo standard of review of a lower court's grant or denial of summary judgment and examines all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt. Quinn v. Mississippi State Univ., 720 So.2d 843, 846 (Miss.1998) (collecting authorities).

STATEMENT OF THE LAW

1. WHETHER THE PLAINTIFFS' CLAIMS ARE BARRED BY THE MISSISSIPPI TORT CLAIMS ACT BECAUSE LEFLORE COUNTY IS IMMUNE FOR DISCRETIONARY, GOVERNMENTAL ACTS.

¶ 3. The plaintiffs allege that the curve was designed and maintained in a dangerous and defective manner, that the county knew of the dangerous condition, but failed to take steps to correct such a condition despite the fact that they knew or should have known of numerous accidents occurring at this curve, and that the county had failed to place adequate warning signs before the curve. The plaintiffs further argue that Miss.Code Ann. § 63-3-305 (1996) places a statutory duty on the county to place and maintain traffic control devices as are deemed necessary:

Local authorities in their respective jurisdictions shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or provisions of local traffic ordinances or to regulate, warn, or guide traffic. All such traffic-control devices hereafter erected shall conform to the state manual and specifications. Local authorities in exercising those functions referred to in the preceding paragraph shall be subject to the direction and control of the state highway commission.

. . . . .

Miss.Code Ann. § 63-3-305 (1996).

¶ 4. The plaintiffs contend that the wording of Miss.Code Ann. § 63-3-305 mandates the placement of such warnings, that this statutory duty requires the exercise of ordinary care, and that the county did not use due care in the exercise of its discretion to warn of a known dangerous condition. The plaintiffs argue that Leflore County should have posted a warning sign to advise motorists to limit their speed through the curve and should have placed chevrons (reflectors) and or guard rails along the curve. ¶ 5. The county argues that it is immune from suit based on several provisions of § 11-46-9 of the Mississippi Tort Claims Act ("MTCA") because the county's decision whether to place warning signs in proximity to a curve is a discretionary function for which the county is immune under the MTCA. The county asserts that the decision whether to place traffic warning signs before a curve is a discretionary government function within the meaning of Miss.Code Ann. § 11-46-9(1)(d) (Supp. 1999) which states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

Miss.Code Ann. § 11-46-9(1)(d) (Supp. 1999).

¶ 6. In order to determine whether government employees are entitled to qualified immunity under the common law this Court has used a discretionary/ministerial test. If the conduct is a discretionary act governmental employees are entitled to qualified immunity. Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss. 1996) Under the test put forth in Mohundro, 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. Id. See also L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136 (Miss.1999)

.

¶ 7. The county cites several cases which have characterized the placement of traffic control devices or road signs as a governmental decision: Wall v. City of Gulfport, 252 So.2d 891, 893 (Miss.1971) (decision whether to replace a stop sign blown away by a hurricane a governmental function); Nathaniel v. City of Moss Point, 385 So.2d 599 (Miss.1980) (decision whether to place traffic control devices at an intersection is governmental); Webb v. County of Lincoln, 536 So.2d 1356, 1358-59 (Miss.1988) (re-erecting a stop sign held to be a discretionary act). These cases were decided prior to the enactment of the MTCA. Though they are still valid precedent in determining whether an act is governmental/discretionary, they do not address the issues raised by the plaintiffs in this case, and by the language of the MTCA itself, regarding the government entity's exercise of ordinary care, upon which sovereign immunity is contingent. One post-MTCA case is cited with facts similar to the current case. In King v. City of Jackson, 667 So.2d 1315 (Miss. 1995), this Court held that the City of Jackson could not be held liable for failing to provide adequate warning at a dangerous curve where a vehicle left the roadway and ran into an open concrete ditch, killing one of the occupants. Because the placement of warning signs on this portion of the street was a governmental function, and because earlier decisions of this Court had declared this to be so as a matter of public policy, the city was found to be entitled to sovereign immunity, and summary judgment in favor of the city was affirmed. Id. at 1316. Justice Banks wrote a dissenting opinion (joined by Sullivan, Pittman and McRae, JJ.) which criticized the majority for misconstruing the nature of the claim against the city, writing: "In short, this is not a claim about traffic devices at all. It is a claim concerning the failure to warn of a dangerous condition created and maintained by the city in the exercise of its governmental function." Id. at 1317. The dissenters emphasized that the presence or absence of traffic control devices was but one part of the entire allegations of negligence.

¶ 8. The decision whether to place traffic control devices in accordance with § 63-3-305 is discretionary. However, this provision must also be read in conjunction with Miss.Code Ann. § 11-46-9(1)(b) of the MTCA which requires ordinary care in the discharge of such discretionary duties. The county characterizes the decision on whether to warn motorists of the curve at issue as purely discretionary, and...