Little v. Miss. Dep't of Transp.

Decision Date16 January 2014
Docket NumberNo. 2011–CT–00693–SCT.,2011–CT–00693–SCT.
Citation129 So.3d 132
CourtMississippi Supreme Court
PartiesFloyd K. LITTLE, Estate of Roger D. Pierce and Kelly Sykes v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION.

OPINION TEXT STARTS HERE

A. Malcolm N. Murphy, Mark Anthony Maples, Lucedale, attorneys for appellants.

Trace D. McRaney, Gulfport, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

COLEMAN, Justice, for the Court:

¶ 1. Three motorists sued the Mississippi Department of Transportation (the Department) after their vehicles collided with a pine tree that had fallen across the highway. The Department filed a motion to dismiss asserting immunity under the Mississippi Tort Claims Act (MTCA), and the trial court granted the motion. The Court of Appeals affirmed. The motorists filed a petition for writ of certiorari with this Court. Finding that the Department's motion to dismiss should not have been granted, we reverse and remand.

Facts and Procedural History

¶ 2. On the evening of November 26, 2004, Floyd Little, Roger Pierce, and Kelly Sykes were operating separate vehicles on Highway 26 in George County. Unbeknownst to them, a large pine tree had fallen across the highway. Little was traveling east on Highway 26, and he collided with the tree first. Pierce was coming from the opposite direction and ran into the other side of the tree. Sykes then collided with the rear of Pierce's vehicle. All three incurred property damage; Little and Pierce sustained personal injuries. Little, Pierce, and Sykes (collectively “Little”) filed a complaint against the Department. Little alleged that the Department was negligent in the following respects: (1) failing to adequately maintain, repair, and inspect the highway; (2) failing to remove dead or dangerous trees near the road; and (3) failing to properly patrol, find, and remove the leaning tree before it fell.

¶ 3. After the case sat dormant for two and half years, the Department filed a motion to dismiss for failure to state a claim or, alternatively, for failure to prosecute. The Department asserted that it was immune from liability under the discretionary function provision of the MTCA. That motion was denied, as was the Department's renewed motion to dismiss. The Department asserted a second renewed motion to dismiss after a relevant case was handed down by the Court of Appeals. At that point, the circuit court concluded that the Department was entitled to discretionary-function immunity and granted the motion to dismiss. Little appealed, and the Court of Appeals affirmed. Little v. Miss. Dep't of Transp., 129 So.3d 192 (Miss.Ct.App.2012). Little filed a petition for writ of certiorari, which we granted.

Discussion

¶ 4. Little asserts that the circuit court erred in granting the Department's motion to dismiss, and he presents three issues in his petition for writ of certiorari. First, Little asserts that the Court of Appeals erred in applying the immunity provisions of the MTCA. Second, he maintains that there is a distinction between “right-of-way maintenance” and “road maintenance,” and that the Court of Appeals erred in confusing the two. Finally, Little asks this Court to determine whether right-of-way maintenance is a discretionary function. The issues have been reorganized for the purposes of discussion.

¶ 5. The application of the MTCA is a question of a law that is reviewed de novo. Fairley v. George County, 871 So.2d 713, 716 (¶ 7) (Miss.2004). Further, a trial court's grant or denial of a motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) also raises a question of law that is reviewed de novo. Little v. Miss. Dep't of Human Servs., 835 So.2d 9, 10–11 (¶ 5) (Miss.2002) (internal citations omitted). A Rule 12(b)(6) motion to dismiss “tests the legal sufficiency of the complaint.” Id. at 11 (¶ 6). [I]n order to grant a Rule 12(b)(6) motion to dismiss, there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim.” Id.

I. Whether there is a distinction between “right-of-way maintenance” and “road maintenance.”

¶ 6. Little alleged that the Department failed to adequately patrol, maintain, repair, and inspect the highway, in violation of Mississippi Code Section 65–1–65, which provides:

It shall be the duty of the state highway commission to have the state highway department maintain all highways which have been or which may be hereafter taken over by the state highway department for maintenance in such a way as to afford convenient, comfortable, and economic use thereof by the public at all times. To this end it shall be the duty of the director, subject to the rules, regulations and orders of the commission as spread on its minutes, to organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained state highway system, so that said highways may be kept under proper maintenance and repair at all times.

Miss.Code Ann. § 65–1–65 (Rev.2012).1 Little claims that the Court of Appeals erroneously applied principles pertaining to “road maintenance” to the question at issue, which is one of “right-of-way maintenance.” He maintains that there is a distinction between the two categories and that this is an issue of first impression.

¶ 7. Mississippi Code Section 65–1–1 provides that in Title 65, Chapter 1, the words “highway” and “road” include rights-of-way. Miss.Code Ann. § 65–1–1(h) (Rev.2012). In light of the definition provided in Section 65–1–1, the Department's duty to maintain and repair highways, set forth in Section 65–1–65, includes both road maintenance and right-of-way maintenance. Miss.Code Ann. §§ 65–1–1, 65–1–65 (Rev.2012). See also Hattiesburg Realty Co. v. Miss. State Highway Comm'n, 406 So.2d 329, 334 (Miss.1981) (“the term ‘highway’ includes not only the roadway itself but also the entire right-of-way as well”) (citing Miss.Code Ann. § 65–1–1 (1972)). The issue is without merit.

II. Whether right-of-way maintenance is a discretionary function for which immunity is afforded under the MTCA.

¶ 8. The MTCA provides the exclusive remedy for civil claims against governmental entities and employees. Miss.Code Ann. § 11–46–7 (Rev.2012). Under the MTCA, a government entity and its employees are immune from liability for claims arising from “the exercise or performance or the failure to exercise or perform a discretionary function or duty [.] Miss.Code Ann. § 11–46–9(1)(d) (Rev.2012). The language of Section 11–46–9(1)(d) requires us to look at the function performed—not the acts that are committed in furtherance of that function—to determine whether immunity exists. Id. See also Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 798 (¶ 32) (Miss.2012); Pratt v. Gulfport–Biloxi Reg'l Airport Auth., 97 So.3d 68, 72 (¶ 10) (Miss.2012). If the function is ministerial, rather than discretionary, there is no immunity for the acts performed in furtherance of the function. A ministerial function is one that is “positively imposed by law.” Pratt, 97 So.3d at 72 (¶ 9). The function at issue here is right-of-way maintenance, which is a ministerial function required by law. The decision of whether to cut down a tree is not a function, but rather an act performed in furtherance of the ministerial function of maintaining highway rights-of-way.

¶ 9. In the instant case, the Court of Appeals held that right-of-way maintenance was a discretionary function, thus, the Department was immune from liability. Little, 129 So.3d at 196 (¶ 15). The Court of Appeals's holding is in direct conflict with language this Court used recently in Mississippi Transportation Commission v. Montgomery, 80 So.3d 789 (Miss.2012). In that case, the issue was whether the maintenance of traffic control devices was a discretionary function for the Mississippi Transportation Commission (the Commission). Montgomery, 80 So.3d at 798 (¶¶ 31–33) (discussing Miss.Code Ann. § 63–3–305 (Rev.2004)). We wrote:

Ordinarily, where a statute mandates the government or its employees to act, all acts fulfilling that duty are considered mandated as well, and neither the government nor its employees enjoys immunity. Occasionally, however, the Legislature will mandate that a political subdivision fulfill some particular function, but then specifically set forth that some portion or aspect of that function is discretionary. When that happens, acts fulfilling the discretionary portion of the governmental function enjoy immunity.

Here, Section 65–1–65 imposes a statutory duty on the highway department to maintain all state highways. SeeMiss.Code Ann. § 65–1–65 (Rev.2005). Were this the only statutory provision at issue, we would find that the Commission is not immune for the acts carrying out that function. The Legislature, however, carved out a portion of the function mandated by that statute, and made it discretionary. Section 63–3–305 gives local authorities discretion in placing and maintaining traffic devices “as they may deem necessary to indicate and [to] carry out the provisions of this chapter....” Miss.Code Ann. § 63–3–305 (Rev.2004). Although the Commission's duty to maintain highways is not discretionary, the placing of warning signs is, because the Legislature has provided specific language in the statute extending discretion to those acts. Otherwise, the Commission would not enjoy immunity.

Montgomery, 80 So.3d at 798 (¶¶ 31–32). According to Montgomery, there is no immunity for maintenance of state highways unless a statute carves out a particular exception for a certain activity, such as traffic control devices. Id. Addressing Montgomery in the instant case, the Court of Appeals wrote:

Our [S]upreme [C]ourt has long held that road maintenance and repair are discretionary, rather than ministerial functions. See, e.g., Mohundro v. Alcorn Cnty., 675 So.2d 848, 854 (Miss.1996); Coplin v. Francis, 631 So.2d 752, 754–55 (Miss.1994); State ex rel. Brazeale v....

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