Webb v. County of Lincoln, 58164

• Decision Date: 21 December 1988
• Docket Number: No. 58164,58164
• Parties: Robin Ann WEBB and Christopher Robert Webb v. The COUNTY OF LINCOLN, Mississippi; Clifton Givens, Isaiah Ard, Ramsey Smith and F.H. Britt, Jr., each Individually and in his Official Capacity as a Member of the Board of Supervisors of Lincoln County; Mississippi State Highway Commission; John R. Tabb, Director of the Mississippi State Highway Department in his Official Capacity as Director of the Mississippi State Highway Department.
• Court: Mississippi Supreme Court

Page 1356

536 So.2d 1356

Robin Ann WEBB and Christopher Robert Webb v. The COUNTY OF LINCOLN, Mississippi; Clifton Givens, Isaiah

Ard, Ramsey Smith and F.H. Britt, Jr., each Individually and

in his Official Capacity as a Member of the Board of

Supervisors of Lincoln County; Mississippi State Highway

Commission; John R. Tabb, Director of the Mississippi State

Highway Department in his Official Capacity as Director of

the Mississippi State Highway Department.

No. 58164.

Supreme Court of Mississippi.

Dec. 21, 1988.

T. Mack Brabham, McComb, for appellants.

Donald B. Patterson, Brookhaven, Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by P.O. Gibson, Asst. Atty. Gen., and Thomas S. Coleman, Jackson, for appellees.

En Banc.

DAN M. LEE, Presiding Justice, for the Court:

Robin Ann and Christopher Robert Webb, filed suit on September 13, 1986, in the Circuit Court of Lincoln County, Mississippi, for damages growing out of a one-vehicle accident on July 8, 1986. Interrogatories and requests for production were attached to the complaint. Among the numerous defendants below, now appellees, were the Mississippi State Highway Commission, a body incorporated under the laws of the State of Mississippi; John R. Tabb, director of the Mississippi State Highway Department, in his official capacity as the director of the Mississippi State Highway Department; and Lincoln County and its five supervisors in their individual and official capacities.

All appellees filed an answer. Additionally, the appellees presented to the court a motion pursuant to Rule 12(b)(6) of the Miss.R.Civ.Proc. to dismiss the complaint. On January 30, 1987, the court granted the motion to dismiss all parties pursuant to the case of State v. Lewis, 498 So.2d 321 (Miss.1986). Feeling aggrieved by the holding of the lower court, the Webbs appeal and assign two assignments of error. Ultimately finding no error, we affirm.

STATEMENT OF FACTS

Christopher Robert Webb, his wife, Robin Ann Webb, and their one- (1-) year-old son, Robert Anthony Webb, were travelling in Lincoln County, Mississippi, at approximately 9:45 p. m. on July 8, 1986. The weather conditions that night were foggy and rainy. The Webbs were travelling down a road known as "Robert Adams Road." Unbeknownst to Mr. Webb, and without any warning, the road suddenly came to a dead end where Robert Adams Road made a "T" intersection with Old Hog Chain Road. Mr. Webb, unable to stop his automobile, proceeded through the intersection and struck a tree. The accident inflicted serious injuries on Robin Ann Webb, who sustained a broken nose, broken maxilla (upper jaw), broken shoulder, broken ankle and the breaking of most all other facial bones between the level of Mrs. Webb's eye and mandible.

In their complaint, the Webbs specifically allege that the intersection had previously been marked by a stop sign. On the day in question, the stop sign no longer existed at that particular intersection; therefore, the Webbs charged that the appellees failed to properly supervise or maintain the intersection in a reasonably safe manner. The plaintiffs further alleged two additional acts of negligence, (1) a failure to warn members of the motoring public of the condition that existed at the intersection, and (2) the failure to properly maintain the intersection according to the uniform traffic control device manual.

Through answers to interrogatories and affidavit attached to their motion, appellees, Mississippi State Highway Commission and John R. Tabb, in his official capacity of director of the Highway Department, denied any obligation to maintain the intersection at which the accident occurred.

Similarly, appellees, Lincoln County and its supervisors, answered the complaint and asserted in their "Second Defense" that appellants action was barred by sovereign immunity. Additionally, in their "First Defense," Lincoln County and its supervisors moved for a 12(b)(6) dismissal for failure to set a claim upon which relief can be granted, or in the alternative for a judgment on the pleadings.

The circuit court, after considering briefs filed by appellants and appellees, held "this case is governed by the decision in State of Mississippi for the Use and Benefit of Nelda M. Brazeale and Nelda M. Brazeale, Individually, v. Richard A. Lewis, Individually, and United States Fidelity & Guaranty Co., 498 So.2d 321 (Miss.1986)." The Court sustained the 12(b)(6) motion and dismissed the complaint.

DISCUSSION

The essential issue of this appeal is whether the doctrine of sovereign immunity forestalls the Webbs' recovery in this cause. The Webbs, reviewing this Court's opinion in State v. Lewis, supra, point out that the central issue of Lewis is whether or not a supervisor could be held individually liable for negligent acts even if the county could not be held liable. The essence of this Court's holding in Lewis was that if governmental immunity applied to the county under the particular facts involved, then it applied to the supervisor individually, as well. In Lewis we said:

Assuming arguendo that an individual of the board of supervisors has a ministerial duty or function to maintain the road of his district, we recognize that for various reasons, at least some roads may be in a state of disrepair from time to time, particularly due to the lack of funds, which would, of course, require that the main, heavily travelled roads receive the supervisors immediate attention. Certainly, making the determination as to which roads should be better maintained under such conditions would be a discretionary matter with the individual members of the board, absent some personal tort committed by him.

The Webbs believed that this Court's distinction was based on economic considerations. In other words, a supervisor, dealing with limited funds, could act in his discretion as to which county road should first be repaired. While such distinction may have merit in State v. Lewis, Webb charges that the "economic consideration" clearly would not apply to the simple, inexpensive task of re-erecting a downed stop sign.

The Mississippi State Highway Commission and the State Highway Department point out that they have no jurisdiction over any road or highway which is not designated as a part of the state highway system. An affidavit contained in the record establishes the fact that said road and intersection were not part of the state highway system.

Leaving liability in the hands of the county, Lincoln County and its Board of Supervisors argue that any liability on their part is abrogated by the holding in State v. Lewis, supra. This Court, as did the trial judge below, finds merit in this argument.

Before applying the reasoning of Lewis to the facts at hand, we are inclined to review Mississippi law in connection with sovereign immunity. Prior to the holding in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), decided in November of 1982, the law governing sovereign immunity in this case was quite clear. The rule dictated that the state or its political subdivision may not be sued without legislative consent. Pruett abolished the judicially created doctrine of sovereign immunity. The Court set July 1, 1984, as the effective date for recognition of state tort liability. Unfortunately for the Webbs, as well as many other plaintiffs, the holding in Pruett has never come into effect. Since 1984, the Legislature has repeatedly enacted a legislative doctrine of sovereign immunity, each set to repeal at the end of the fiscal year following the legislative session during which it was enacted.

In a recent case, Grantham v. Department of Corrections, 522 So.2d 219 (Miss.1988), this Court explained the ambiguities concerning judicially created sovereign immunity and legislatively created sovereign immunity:

The judicially created doctrine of sovereign immunity was abolished by this Court in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982). The Court set July 1, 1984, as the effective date for recognition of state tort liability. In 1984, the Legislature enacted a statute waiving the sovereign immunity of the state...