Mississippi Transp. Comm'n v. Montgomery
| Decision Date | 23 February 2012 |
| Docket Number | No. 2010–IA–01112–SCT.,2010–IA–01112–SCT. |
| Citation | 80 So.3d 789 |
| Parties | MISSISSIPPI TRANSPORTATION COMMISSION v. Sylvia MONTGOMERY. |
| Court | Mississippi Supreme Court |
OPINION TEXT STARTS HERE
Jay Gore, III, Grenada, Roger Adam Kirk, attorneys for appellant.
Robert George Clark, III, Bryant Wandrick Clark, Lexington, attorneys for appellee.
EN BANC.
ON MOTION FOR REHEARING
¶ 1. The motion for rehearing filed by the Mississippi Transportation Commission is denied. The original opinions are withdrawn, and these opinions are substituted therefor.
¶ 2. Sylvia Montgomery filed suit against the Mississippi Transportation Commission (Commission) in the Circuit Court of Yazoo County after she was injured when her car struck a pothole in the northbound lane of Interstate 55 near Vaughan. The Commission filed a motion for summary judgment, claiming it was exempt from liability under several provisions of the Mississippi Torts Claim Act (MTCA). See Miss.Code Ann. § 11–46–9(1) (Rev.2002). The Circuit Court of Yazoo County, Judge Jannie M. Lewis presiding, denied the Commission's motion. A three-justice panel of this Court granted the Commission's petition for interlocutory appeal.
¶ 3. Upon review of the parties' briefs and the record, we find the trial court erred by not determining whether the duty to warn of a dangerous condition on the highway is a discretionary duty under the public-function test. Accordingly, we reverse the trial court's denial of the Commission's motion for summary judgment and remand for further proceedings consistent with this opinion.
¶ 4. Since this is an appeal from the trial court's denial of the Commission's motion for summary judgment, we state the facts here in the light most favorable to Montgomery, the nonmoving party. On February 24, 2003, at approximately 10:30 p.m., Montgomery was driving northbound on I–55 when her car hit a twelve-by-fifteen-foot hole in the highway. Because it was late at night and the bridge was not illuminated, Montgomery was unable to see the hole. The hole was located just north of the exit ramp at Exit 133 (Vaughan), but just south of the Vaughan Bridge, which crosses over Vaughan Road. Injured and nearly losing control of her car, Montgomery pulled over to the shoulder of the highway, as did several other cars.
¶ 5. At the time of the accident, the portion of I–55 located in the area of the Vaughan Bridge was supervised and maintained by Dickerson & Bowen (“D & B”), a private contractor hired by the Commission. Under the contract between D & B and the Commission, D & B was responsible for repairing any damage to the highway, and according to the contractual terms, to “take every precaution against injury or damage by action of the elements or from any other cause.”
¶ 6. Problems had been noted with the same area of the highway before Montgomery had her accident. On February 12, 2003, during an inspection of I–55, a pothole was discovered in the northbound lane at the Vaughan Bridge. This was detailed in a “project diary” 1 maintained by the Mississippi Department of Transportation (MDOT). The entry on that day states:
D & B has no records of any work performed that day.
¶ 7. Montgomery argues that the pothole depicted in the project diary report for February 14, 2003, was the same hole she struck, after it had worsened over time—growing from a ten-by-ten-foot hole to a twelve-by-fifteen-foot hole. Montgomery argues in the alternative that, at least by February 23, 2003 (the day before the accident), the Commission had notice of the existence of the hole she struck. The Commission, on the other hand, argues that Montgomery struck a different—and new—hole. In other words, the Commission asserts that the hole recorded in the project diary reports for February 12, 2003, and February 14, 2003, was not the same hole which Montgomery struck on February 24, 2003.
¶ 8. On February 23, 2003, the day before Montgomery's accident, the Commission was notified of the existence of a hole in the northbound lane at the Vaughan Bridge on I–55. The Commission alleges that repairs were made to the hole that same day. However, the project diary report for February 23, 2003, states that “NO WORK” was done. The project diary report for the next day, February 24, 2003, the day of Montgomery's accident, also states “NO WORK” but goes on to state:
1. INSPECTED JOB SITE, REPAIRS @ VAUGHAN BRIDGE NORTH BOUND WERE MADE THE PREVIOUS NIGHT WERE OK.
2. GUARD RAIL DAMAGED @ 137 MILE MARKER IN NORTH BOUND LANE ON LEFT SHOULDER.
Corry Harms, the Commission's project engineer, claims that the “NO WORK” project diary report for February 23, 2003, was probably an error. However, Harms was not present to witness the repairs the Commission claims were done the night before Montgomery's accident. In fact, Harms was not sure what repairs allegedly were done on February 23, 2003, nor does he know the specific location on I–55 where the alleged repairs were made.
¶ 9. The Commission has not brought forward any witnesses to testify to the repairs that allegedly were done on February 13 or February 23, 2003. No evidence in the record shows that the Commission made any effort to warn the public about the holes from either February 13 or February 23, 2003.
¶ 10. The day after Montgomery's accident, D & B was contacted to repair a hole in the area of the Vaughan Bridge. The project diary report for February 25, 2003, states:
The project diary report for February 26, 2003, reveals that the Commission was again notified of a pothole in the northbound lane at the south end of the Vaughan Bridge. By February 27, 2003, D & B decided simply to dig out the entire area of the highway and replace it with hot-mix asphalt, a project which took four days. The project diary report reflecting this work stated:
D & B REPAIRED DAMAGED AREA ON JOB SITE ALSO REMOVED LANE CLOSURE IN NORTH BOUND LANE. CONTRACTOR NOTIFIED THAT DAMAGED AREAS ARE TO BE DUG OUT & REPLACED WITH HOT MIX ASPHALT. REPAIRED AREAS ARE ALSO TO BE MONITORED.
¶ 11. Montgomery ultimately brought suit against the Commission and D & B. Montgomery initially alleged five theories 2 of liability:
a. Failure to properly repair interstate;
b. Failure to use proper precautions in road construction;
c. Failure to maintain the proper degree of control of its employees;
d. Failure to use proper precautions in responding to hazardous conditions; and
e. Failure to give motorist warning of the hazardous condition.
After Montgomery had engaged in discovery with both defendants, the Commission filed a counterclaim against D & B, which was quickly dismissed with prejudice by the trial court. Soon after, the trial court ordered mediation between the parties. Eventually, Montgomery settled with D & B, and the trial court dismissed D & B from the suit with prejudice.
¶ 12. On August 3, 2009, the trial court held a hearing on the Commission's motion for summary judgment. The Commission primarily argued that the duty to maintain the roadways was discretionary, which is a general exemption from liability under Mississippi Code Section 11–46–9(1)(d) (Rev.2002). At the conclusion of the hearing, Judge Lewis rendered an opinion from the bench. The entirety of her opinion stated:
Okay. Thank you. Before this Court is a Motion for Summary Judgment filed by the defendant. In a Motion for Summary Judgment, the Court must find, before a summary judgment can be granted, the Court must find that there is no genuine issue as to any material fact or law. The-after hearing arguments of both counsel, the Court finds that there is a conflict in the facts as to when the hazardous condition existed and as to when the defendant received notice of that condition.
Therefore, the Court finds that there is a genuine issue as to the facts in this case, and the Motion for Summary Judgment is denied. Prepare me an order.
(Emphasis added.) Obviously, a delay occurred in preparing and submitting an order to Judge Lewis memorializing her bench ruling, because the order was not submitted to Judge Lewis for execution and entry until June 23, 2010. The order denying summary judgment was signed that day and entered on June 24, 2010.
¶ 13. From the trial court's denial of summary judgment, the Commission now appeals to this Court.
¶ 14. When reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the trial court's judgment. Patterson v. Tibbs, 60 So.3d 742, 753 (Miss.2011) (citing Chisolm v. Miss. Dep't of Transp., 942 So.2d 136, 140 (Miss.2006)). In doing so, we are required to examine all the pleadings, depositions, answers to interrogatories and affidavits. Id. (citing Chisolm, 942 So.2d at 140). See also Webb v. Braswell, 930 So.2d 387, 395 (Miss.2006). The focus of this review is to determine if issues of material fact exist when the evidence is viewed in the light most favorable to the nonmoving party. Patterson, 60 So.3d at 753 (citing Chisolm, 942 So.2d at 140). See also Hataway v. Nicholls, 893 So.2d 1054, 1057 (Miss.2005).
¶ 15. Generally, Mississippi and its governmental entities are afforded sovereign immunity from civil suits, under the theory that “the...
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