Presley v. Mississippi State Highway Com'n

Decision Date31 August 1992
Docket NumberNo. 90-CC-0644,90-CC-0644
Citation608 So.2d 1288
PartiesMable PRESLEY, Administratrix of the Estate of Mattie Presley, Deceased, and Charley Earl Presley, Minor Son, Sole Heir, and Wrongful Death Beneficiary of Mattie Presley, Deceased, Margaret Presley and Ruby J. Presley, Jr. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
CourtMississippi Supreme Court

Richard T. Phillips, Smith Phillips & Mitchell, Batesville, Barrett J. Clisby, Roberts & Clisby, Oxford, for appellants.

Michael C. Moore, Atty. Gen., Alan M. Purdie and Rickey T. Moore, Sp. Asst. Attys. Gen., Jackson, for appellee.

Karla J. Pierce, Dale Hubbard, Ferrell & Hubbard, Jackson, James E. Holland, Cleveland, Jim P. Brantley, Brantley & Knowles, W. David Watkins, Brunini Grantham Grower & Hewes, Ottowa E. Carter, Jr., Brunini Firm, P. David Andress, Brunini Firm, Jackson, for amicus curiae.

En Banc.

HAWKINS, Presiding Justice, for the Court:

Mable Presley and Charley Earl Presley, administratrix and wrongful death beneficiary, respectively, of Mattie Presley, deceased, have appealed the dismissal of their wrongful death suit against the Mississippi State Highway Commission (Commission) because of sovereign immunity granted the Commission under Miss.Code Ann. § 11-46-1, et seq. (Supp.1987), the Sovereign Immunity Act. At issue on appeal is the constitutionality of this Act. Ch. 483, Laws 1987, Section 3, codified as 11-46-1,

requires that all claims against the State be governed by case law governing sovereign immunity as it existed immediately prior to our decision in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982). For the reasons stated, we find this portion of the Act unconstitutional, and reverse and remand.


October 2, 1987, Mattie Presley was riding as a passenger in a Mercury automobile driven by her mother, Margaret Presley.

At the intersection of Highways 310 and 51 in Como, 310 runs East/West and 51 runs North/South. Prior to that day there had been a traffic light, which had been replaced by stop signs on 310. Because of the curvature widening of 310 just before its entrance into 51, the signs had been placed back at the narrow portion of 310.

The Presley vehicle was headed West on 310 and as it entered 51 was struck by a school bus, crushing its right side. The Mercury caught fire and because Mattie Presley was pinned inside, she was burned to death.

Following the accident the cautionary signs were changed. The Commission installed a four-way flashing red light and concrete islands on which it placed stop signs on 310 closer to the entrance into the intersection with 51.

The suit against the Commission in the Circuit Court of the First Judicial District of Panola County charged negligent design of the warning signs at the intersection.

The Commission filed a Rule 12(b)(6) motion to dismiss, which was sustained by the circuit judge on the ground the Commission was immune from suit.

The Presleys have appealed.



We have addressed and applied this Sovereign Immunity Act, Miss.Code Ann. § 11-46-1, et seq., in several cases, namely: Starnes v. City of Vardaman, 580 So.2d 733 (Miss.1991); McKay v. Boyd Construction Co., Inc., 571 So.2d 916 (Miss.1990); Employers Ins. of Wausau v. Mississippi State Highway Comm., 575 So.2d 999 (Miss.1990) cert. denied --- U.S. ----, 112 S.Ct. 72, 116 L.Ed.2d 46 (1991); Richardson v. Rankin County School District, 540 So.2d 5 (Miss.1989); Webb v. County of Lincoln, 536 So.2d 1356 (Miss.1988); Region VII, Mental Health-Mental Retardation Center v. Isaac, 523 So.2d 1013 (Miss.1988); Strait v. Pat Harrison Waterway District, 523 So.2d 36 (Miss.1988); Grantham v. Mississippi Dept. of Corrections, 522 So.2d 219 (Miss.1988) rev'd. sub nom. Sykes v. Grantham, 567 So.2d 200 (Miss.1990); and State v. Lewis, 498 So.2d 321 (Miss.1986). This is the first instance, however, in which the constitutionality of the Act has been challenged.

Prior to Pruett, decided November 10, 1982, sovereign immunity in this State, except in the few and limited instances in which it had been waived by statute, 1 was governed by common law, and for the State and all political subdivisions, except for "proprietary" functions of municipalities, was absolute. 2

Beginning with County of Yalabusha v. Carby, 6 Miss. (3 Sm. & M.) 529 (1844), this Court recognized a common law sovereign immunity in this State, and this judicially-created immunity was firmly established by a long line of our subsequent decisions. 3

Our discomfort with this judicially-created immunity was first noted in Berry v. Hinds County, 344 So.2d 146 (Miss.1977), cert. denied 434 U.S. 831, 98 S.Ct. 114, 54 L.Ed.2d 91 (1977), and then again in Jones v. Knight, 373 So.2d 254 (Miss.1979), although we suggested that the Legislature, not us, was the branch of government to abolish the immunity doctrine. 4

With the exception of "the historical and well-recognized principle of immunity granted to all legislative, judicial and executive bodies and those public officers who are vested with discretionary authority, which principle of immunity rests upon an entirely different basis," 421 So.2d at 1052, this Court in Pruett firmly and emphatically abolished all judicially-created state and political subdivisions' sovereign immunity theretofore existing under the common law of this state.

In Pruett we noted that, "[f]or a good many years now, state after state has decided that the principle that the King (state) can do no wrong is not a legal principle that should receive blanket application in modern times." Pruett, 421 So.2d at 1047. We then held that "the absolute sovereign immunity doctrine is out of date in modern society and modern legal concepts." Pruett, 421 So.2d at 1047.

Quoting from our previous decision in Mississippi Baptist Hospital v. Holmes, 214 Miss. 906, 55 So.2d 142 (1951), aff'd 214 Miss. 906, 56 So.2d 709 (1952), we noted that "the functions of creating a public policy is primarily one to be exercised by the legislature and not by the courts." Pruett, 421 So.2d at 1051. We then held:

We agree that the time has arrived when this Court should recognize that the judiciary is no longer the branch of government to supervise and control the extent to which persons with rightful claims against the sovereign may propound those claims. ... the problem is one our system of government places on the legislative branch.

421 So.2d at 1051.

Pruett, decided November 10, 1982, was made prospective, its mandate applying only to causes of action accruing on or after July 1, 1984. Pruett, 421 So.2d at 1052.

Our decision in Pruett made Mississippi the 45th state to judicially abrogate sovereign immunity. 5 There are many sound reasons why an immunity granted the state or political subdivision should come solely from Legislative enactment. Sovereign immunity is a matter of public policy and our Legislature determines what is in the public interest. Johnson v. U.S., 163 F. 30, 32 (1st Cir.1908); Miss. Baptist Hospital v. Holmes, supra; Albritton v. City of Winona, 181 Miss. 75, 95-96, 178 So. 799, 803 (1938), appeal dismissed, 303 U.S. 627, 58 S.Ct. 766, 82 L.Ed. 1088 (1938). In the granting or withholding of sovereign immunity, there are gradations, competing interests to balance, that of fairness to our citizens and proper functions of state government, and which can only be accomplished by statutory law. As stated in Mayhew, The Abrogation of Sovereign Immunity in Mississippi, 3 Miss.College Law Review 209 at 214 (1983):

[G]overnment provides services that are not generally provided in the private sector such as fire suppression, law enforcement, welfare, streets, sewers, traffic control, and the various inspection services. The private sector determines the viability of services usually on an economic basis; government usually cannot 3 Miss.College Law Review 209 at 214-215 (1983).

evaluate its services and their continuance in this manner. In addition, especially as to the state, there is often great geographical diversity in the providing of governmental services. Finally, the legislature must consider the many small governmental entities and their limited resources that exist here in Mississippi. [Footnotes omitted]

As also noted in this same article:

The legislature must decide whether to treat all the governmental agencies within the state in the same manner or whether to have different rules for the various governmental units....

The legislature should also review the functions of government within the state to determine if any particular activity of government should be immunized specifically....

Only by closely reviewing the functions of the various governmental entities can the legislature properly apply the balancing test and make the necessary legislative judgment.

Id. at 218-220.

These are Legislative functions which the courts of this state are neither empowered nor equipped to fulfill. Pruett, supra; Jones v. Knight, 373 So.2d 254, 256 (Miss.1979).


The Legislature enacted Ch. 495, Laws 1984 (Senate Bill No. 2441), approved May 15, 1984. The Act has no title, but is a detailed, all-encompassing enactment covering tort claims against the State and all political subdivisions. Section 1 defines the claims and public entities covered.

Under Section 2, as of July 1, 1985, for the State and October 1, 1985, for all political subdivisions, there is a grant of absolute immunity from all claims defined under Section 1.

Under Section 3, and again as of July 1, 1985, for the state and October 1, 1985, for all political subdivisions, there is a limited waiver of the immunity granted under Section 2.

Section 4 reads in full:

SECTION 4. This act shall apply only to claims that accrue on or after July 1, 1985, as to the state, and on or after October 1, 1985, as to political subdivisions. Claims that accrue prior to July...

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