Simpson County v. Mcelroy
| Decision Date | 19 April 2011 |
| Docket Number | NO. 2009-CA-01874-COA,2009-CA-01874-COA |
| Parties | SIMPSON COUNTY, MISSISSIPPI APPELLANT v. DON F. MCELROY APPELLEE |
| Court | Mississippi Court of Appeals |
DATE OF JUDGMENT: 08/06/2009
TRIAL JUDGE: HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED: SIMPSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: WILLIAM ROBERT ALLEN
ROBERT O. ALLEN
ATTORNEY FOR APPELLEE: W. TERRELL STUBBS
NATURE OF THE CASE: CIVIL-PERSONAL INJURY
TRIAL COURT DISPOSITION: AWARDED PLAINTIFF $106,896.29 ON HIS
FAILURE-TO-WARN CLAIM
DISPOSITION: REVERSED AND RENDERED-04/19/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.Don McElroy sued Simpson County, Mississippi, for failing to warn him of a dangerous road condition caused by a rain storm. The County claimed it was entitled to sovereign immunity under Mississippi Code Annotated section 11-46-9(1) (Supp. 2010). The circuit court rejected the County's immunity-based defense and instead found the County liable under section 11-46-9(1)(b) for failing to exercise ordinary care in placing warning signs along the road.
¶2. We find the circuit court erroneously applied Mississippi Code Annotated section 11-46-9(1)(b) and also failed to apply the immunizing provision in section 11-46-9(1)(d). Because we find the County is statutorily immune from McElroy's claim, we reverse and render.
FACTS AND PROCEDURAL HISTORY
¶3. On February 5, 2004, heavy rains pounded Simpson County, washing out a culvert below Shorter Road, a county-maintained road. That evening, local residents notified the County of the washout. The County's road manager, Gary Sullivan, sent road foreman, William "Red" Busby, to close the road. The residents watched as Busby and his crew placed on each side of the washout two-foot by two-foot white fiberglass signs with "Road Closed" painted in fluorescent orange. The crew also strung two strands of four-inch wide yellow warning tape across the road, with fluorescent streamers hanging between the strands of tape. Afterwards, they left Shorter Road to work on other road hazards created by the storm.
¶4. Early the following morning, McElroy drove across the washout at fifty miles per hour. His truck struck the hole created by the washout, badly injuring his knee. He testified he did not see any warnings signs or warning tape.
¶5. McElroy sued the County under the Mississippi Tort Claims Act (MTCA). He alleged the County (1) failed to properly design, construct, and maintain Shorter Road and (2) failed to warn of the dangerous condition caused by the washout. The County moved for summary judgment on both claims, arguing the County was entitled to immunity under Mississippi Code Annotated section 11-46-9(1). The circuit court reserved its ruling on the County'smotion until after evidence was presented at a bench trial.
¶6. The circuit judge found McElroy failed to meet his burden of proof on his road-design, construction, and repair claim and entered judgment in favor of the County on that claim. But the circuit judge found McElroy's failure-to-warn claim was controlled by Mississippi Code Annotated section 11-46-9(1)(b), which he concluded "requires that ordinary care be exercised in the warning of dangerous conditions."
¶7. The circuit judge held that the County failed to exercise ordinary care by using inadequate signs "in light of the attendant weather circumstances." The judge found the signs used to close Shorter Road must have blown away in the night. He reasoned that instead of using the signs which were in the back of Busby's truck, Busby should have gone to the County's storage barn to get larger signs and barricades. Because he did not, the circuit judge found the County liable to McElroy for $106,896.29.
¶8. After an unsuccessful post-judgment motion, the County timely appealed.
STANDARD OF REVIEW
¶9. The issue on appeal is whether the County is immune from liability for McElroy's tort claim based on Mississippi Code Annotated section 11-46-9(1). Immunity is a question of law. Dancy v. E. Miss. State Hosp., 944 So. 2d 10, 15 (¶16) (Miss. 2006). We review questions of law de novo. Madison HMA, Inc. v. St. Dominic-Jackson Mem'l Hosp., 35 So. 3d 1209, 1215 (¶17) (Miss. 2010).
DISCUSSION
¶10. There are two distinct reasons we cannot affirm the judgment of the circuit court. First, the circuit court's basis for imposing liability—Mississippi Code Annotated section 11-46-9-(1)(b)—does not apply to this case. Subsection 9(1)(b) only applies to claims arising out of the exercise of ordinary care in performing a statute, ordinance, or regulation. And the circuit court found the County neither performed a statute, ordinance, or regulation nor exercised ordinary care.
¶11. Second, though the County did have a common-law duty to warn drivers of known dangerous road conditions, in this case, it was shielded against McElroy's claim for breach of that duty. Because the circuit court failed to apply the immunizing provision found in Mississippi Code Annotated section 11-46-9(1)(d), we have no choice but to reverse its award of tort damages against the County and render a judgment in favor of the County.
¶12. The MCTA waives sovereign immunity for tort claims for money damages against governmental entities and their employees. Dancy, 944 So. 2d at 15 (¶17). But there are twenty-five specific exceptions from the general waiver of sovereign immunity. Miss. Code Ann. § 11-46-9(1). If any one of these exceptions apply, "the government is completely immune from any claim arising from the act or omission complained of." Willing v. Estate of Benz, 958 So. 2d 1240, 1255 (¶40) (Miss. Ct. App. 2007) (citing State v. Hinds County Bd. of Supervisors, 635 So. 2d 839, 842 (Miss. 1994)).
¶13. Section 11-46-9(1) restores sovereign immunity. It does not in itself create duties. We emphasize this because both the circuit court in its order of judgment and McElroy in his brief have incorrectly suggested this statute is the source of the duty to use ordinary care in warning motorists of dangerous conditions.
¶14. Contrary to the circuit court's finding, section 11-46-9(1)(b) does not create a dutyof ordinary care. Mississippi Code Annotated section 11-46-9(1)(b) provides:
A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:... (b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid[.]
¶15. Like its sister exceptions, this provision immunizes against tort claims. When a government employee has exercised ordinary care in executing (or failing to execute) a statute, ordinance, or regulation, a government entity is immune, even if the statute, ordinance, or regulation is invalid. Miss. Code Ann. § 11-46-9(1)(b). See Shelly Mott Diaz & Robert A. Weems, Exempt or Not Exempt: Clarifying the Confusion Surrounding the Relationship Between the Discretionary Function Exemption and the Performance of Statute Exemption in the Mississippi Tort Claims Act, 80 Miss. L.J. 45 (2010) (). Here, the performance of an underlying statute, ordinance, or regulation is not at issue. Further, the circuit court found the County failed to exercise ordinary care. Therefore, section 11-46-9(1)(b) is wholly inapplicable, and the circuit court's use of this provision to impose liability was error.
¶16. That is not to say the County had no duty to warn. See, e.g., Willing, 958 So. 2d at 1251 (¶29) & n.5 (acknowledging the general, non-ministerial duty to warn of known dangerous conditions). But as with all tort claims against government entities, before reaching the question of liability, the circuit court had to ask whether the County is immune based on one of the provision of section 11-46-9(1).
¶17. The County argues four separate provisions immunize it from liability in this case.1 Because we find the circuit court failed to apply the "discretionary function" exemption, we must reverse its award of tort damages and render judgment for the County.
¶18. Mississippi Code Annotated section 11-46-9(1)(d) provides immunity from claims "[b]ased 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[.]" So long as the employee was performing a discretionary function, the government is immune, even if the employee abused his discretion. Barrentine v. Miss. Dep't of Transp., 913 So. 2d 391, 394 (¶12) (Miss. Ct. App. 2005) (citing Miss. Code Ann. § 11-46-9(1)(d)); see also Collins v. Tallahatchie County, 876 So. 2d 284, 289 (¶17) (Miss. 2004) (). "Accordingly, in determining whether an act or omission falls within the immunity granted by section 11-46-9(1)(d), the relevant inquiry begins and ends with the determination of whether the conduct complained of was discretionary." Willing, 958 So. 2d at 1250 (¶25).
¶19. The Mississippi Supreme Court has adopted a two-part public-function test todetermine if government conduct is an immune discretionary function. Id. at 1250 (¶26) (citing Jones v. Miss. Dep't of Transp., 744 So. 2d 256, 260 (¶11) (Miss. 1999)). First, we ask "whether the activity involved an element of choice or judgment." Id. (citations omitted). And, if so, we next ask whether the activity involved social, economic, or political policy. Id.; see also Dancy, 944 So. 2d at 16 (¶18).
¶20. To answer...
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