Mohundro v. Alcorn County

• Decision Date: 06 June 1996
• Docket Number: No. 92-CA-00152-SCT,92-CA-00152-SCT
• Citation: 675 So.2d 848
• Parties: William C. MOHUNDRO and Mary Mohundro v. ALCORN COUNTY, Mississippi; Carl Lamar Fields, Travis L. Little, Ely Barber Mitchell, Willard H. Crum, and Danny Wayne Dixon, Individually, and in their Official Capacities as the Board of Supervisors of Alcorn County, Mississippi; Fidelity and Deposit Company of Maryland; and United States Fidelity and Guaranty Company.
• Court: Mississippi Supreme Court

Page 848

675 So.2d 848

William C. MOHUNDRO and Mary Mohundro v. ALCORN COUNTY, Mississippi; Carl Lamar Fields, Travis L Little, Ely Barber Mitchell, Willard H. Crum, and Danny Wayne Dixon, Individually, and in their Official Capacities as the Board of Supervisors of Alcorn County, Mississippi Fidelity and Deposit Company of Maryland; and United States Fidelity and Guaranty Company.

No. 92-CA-00152-SCT.

Supreme Court of Mississippi.

June 6, 1996.

Jon A. Wilson, Southaven, Taylor D. Buntin, III, Bridgforth & Buntin, Southaven, for Appellant.

Wendell H. Trapp, Jr., Smith Ross & Trapp, Corinth, for Appellee.

En Banc.

ON PETITION FOR REHEARING

JAMES L. ROBERTS, Jr., Justice, for the Court:

The court denies the Petitions for Rehearing filed by the Appellants, William C. Mohundro and Mary Mohundro, and the Appellee, Danny Wayne Dixon. The original opinions are withdrawn and these opinions substituted therefor.

This is a sovereign immunity case coming to us from the Circuit Court of Alcorn County, Mississippi, Honorable Barry Wayne Ford presiding. William C. Mohundro ("Mohundro"), a resident of McNairy County, Tennessee, sustained a broken neck and was rendered a quadriplegic as a result of driving his truck into a washout in the middle of Mathis Road in Alcorn County, Mississippi, on the morning of May 21, 1990. Subsequently, a lawsuit was filed by Mohundro and his wife Mary against Alcorn County, the Alcorn County Board of Supervisors, both individually and in their official capacities, and the supervisors' corporate sureties. On January 29, 1992, summary judgment was entered against the Mohundros on the basis of sovereign immunity. Feeling aggrieved, William C. and Mary Mohundro perfected this appeal, raising the following issues:

1. DID THE TRIAL COURT ERR IN SUSTAINING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND IN OVERRULING THE PLAINTIFFS' COUNTER-MOTION FOR PARTIAL SUMMARY JUDGMENT?

2. IS ALCORN COUNTY, MISSISSIPPI, AS A POLITICAL ENTITY, ENTITLED TO ABSOLUTE IMMUNITY UNDER THE FACTS OF THIS CASE?

3. ARE THE INDIVIDUAL MEMBERS OF THE ALCORN COUNTY, MISSISSIPPI, BOARD OF SUPERVISORS, AND THEIR CORPORATE SURETIES, ENTITLED TO QUALIFIED IMMUNITY UNDER THE FACTS OF THIS CASE?

STATEMENT OF FACTS

Mathis Road is a county road which runs more or less in a north-south direction. The section where the accident occurred is located in the Fifth District of Alcorn County, Mississippi. Approximately one month prior to Mohundro's accident, Danny Wayne Dixon, ("Dixon"), the supervisor for the Fifth District, replaced an existing bridge on Mathis Road with a culvert which was placed under and perpendicular to the road. Dixon had determined the existing bridge was rotting and needed to be replaced. He decided that a culvert would be less expensive than replacing the bridge. Dixon determined the size of culvert needed and supervised the installation by a crew of county workers.

On Sunday, May 20, 1990, sometime between 10:00 a.m. and 12:30 p.m. the entire roadbed, dirt and blacktop, surrounding the culvert washed away leaving an open pit in Mathis Road. The pit was approximately 16 to 20 feet by 24 to 30 feet in size, and approximately 6 to 8 feet deep. Dixon personally observed the washout sometime between noon and 1:00 p.m. on Sunday, May 20, 1990. Kenneth Null, a county employee, had already placed yellow warning signs in both lanes about 200 to 300 feet both north and south of the washout. The warning signs were yellow diagonal squares reading "Road Closed." One of the signs north of the washout was nailed to a saw horse while the other was nailed to a cross tie. The signs were not lighted and no barricades were put up.

Heavy rains continued through Sunday and the next day. Dixon, worried that someone might drive into the washout, made several trips to the scene, but took no preventive action other than the warning signs. Dixon stated that he intended to barricade the road with dirt and gravel on Monday if it had stopped raining. On Monday, May 21, 1990, at approximately 5:45 a.m. Dixon returned to the washout and observed the warning signs to still be in place and visible. Sometime between 5:45 a.m. and 6:00 a.m. Dixon left the scene and went to pick up Kenneth Null. Dixon stated that it started raining so hard and became so windy that he could not get out of his truck. He waited for it to subside before picking up Null sometime between 6:30 a.m. and 7:00 a.m. Dixon and Null returned to the washout between 7:00 a.m Mohundro had been traveling in the southbound lane when he saw a dark patch in the road that he believed simply to be standing water. It was instead the washout. He did not observe any warning signs. Dixon stated that when he and Null arrived to find Mohundro, the sign north of the pit in the northbound land was still standing. The sign which had been attached to the saw horse and placed in the southbound lane had been knocked or blown down and looked to have been run over by a vehicle.

and 7:15 a.m. and found Mohundro had run off into the open pit.

Mohundro "suffered a broken neck, painful and permanent physical injuries and impairment, including the loss of use of both legs, and loss of use of both hands, thereby requiring hospitalization, expensive and prolonged medical treatment, and other resulting damages."

DISCUSSION ¹

DID THE TRIAL COURT ERR IN SUSTAINING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND IN OVERRULING THE PLAINTIFFS' COUNTER-MOTION FOR PARTIAL SUMMARY JUDGMENT?

A. ALCORN COUNTY, MISSISSIPPI, AND ITS BOARD OF SUPERVISORS

1. IS MISS.CODE ANN. § 11-46-6 , ET SEQ. UNCONSTITUTIONAL?

The Mohundros attack the constitutionality of Miss.Code Ann. § 11-46-6, et seq. (Supp.1989) as being violative of Article I, Section I and Article III, Section 24 of the Mississippi constitution and the 14th Amendment to the United States Constitution. The cause of action and subsequent dismissal in the case sub judice was post-Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), in which this Court abolished judicially-created sovereign immunity, and pre-Presley v. Mississippi State Hwy. Com'n, 608 So.2d 1288 (Miss.1992), wherein this Court held the principle of sovereign immunity as codified in Miss.Code Ann. § 11-46-1 et seq. to be unconstitutional.

Presley was decided after the briefs were filed in this case. In that case we held Miss.Code Ann. § 11-46-6, which required courts to apply pre-Pruett case law in determining sovereign immunity cases, to be unconstitutionally void as against the doctrine of separation of powers and the constitutional prohibition of reviving laws by reference. 608 So.2d at 1296. See Miss. Const. Art. 1, § 1. 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 So.2d 975 (Miss.1993); Coplin v. Francis, 631 So.2d 752 (Miss.1994). Although this Court in Presley held Miss.Code Ann. § 11-46-1 et seq. was unconstitutional, the decision in that case has only prospective application. See Robinson v. Stewart, 655 So.2d 866, 868 (Miss.1995).

The Mohundros also argue that Miss.Code Ann. § 11-46-1 et seq. is in violation of Miss. Const., Art. III, § 24, which provides the courts shall be open and a remedy shall be available for every injury. In Presley, this Court did not address § 11-46-1 et seq. as it relates to the Remedy Clause.

In Wells v. Panola County Bd. of Educ., 645 So.2d 883 (Miss.1994), this Court held that statutory limits on damages in suits against the State and its political subdivisions were not unconstitutional. The Wells Court stated that since the plaintiff had no right to recovery against government entities at common law due to sovereign immunity, "damage limitation statutes deprive the party of no remedy or property right." 645 So.2d at 891. The Court also held the " 'remedy' guaranteed is not absolute or limitless." However, this decision focused on the limitation of damages and not the absolute bar of sovereign immunity.

In Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d 441 (5th Cir.1991), the United States Court of Appeals for the Fifth Circuit held that the post-Pruett legislative enactments of Miss.Code Ann. § 11-46-6 survived Remedy Clause scrutiny. The Grimes Court held:

The statute is not in conflict with the constitutional provision. The Mississippi Constitution places no limitation on the Mississippi Legislature's ability to enact legislation. The Pruett opinion suggested the proper forum to address complaints regarding immunity of the sovereign is the legislature. Pruett, 421 So.2d at 1051. The basic principle of sovereign immunity is that the "king can do no wrong". Consequently, the state is free from any liabilities unless it carves an exception. These exceptions come in the form of tort claims acts. The Mississippi Legislature has carved no such exception for this type of suit against the Pearl River Water District, and the "remedy clause" of the Mississippi Constitution does not require them to do so. Consequently, plaintiff's claims under the Mississippi Constitution must fail.

930 F.2d at 443-444.

In the recent case of Robinson, supra, wherein we discussed both Wells and Grimes, we held the remedy clause is not an absolute guarantee of a trial and that it is the legislature's decision whether or not to address restrictions upon actions against government entities. Robinson, 655 So.2d at 868-69.

The Mohundros also suggest that the statute violates their right to due process. A due process violation requires that the party be deprived of a protected property interest. Tucker v. Hinds County, 558 So.2d 869, 873 (Miss.1990). As was stated by this Court in Wells, there was no right to sue the State or its political subdivisions at common law. The legislature has continued to...