Wilcher v. Lincoln Cnty. Bd. of Supervisors

• Decision Date: 24 May 2018
• Docket Number: NO. 2016–CA–01429–SCT,2016–CA–01429–SCT
• Citation: 243 So.3d 177
• Parties: Samuel WILCHER, Jr. v. LINCOLN COUNTY BOARD OF SUPERVISORS AND CITY OF BROOKHAVEN, MISSISSIPPI
• Court: Mississippi Supreme Court

243 So.3d 177

Samuel WILCHER, Jr.

v.LINCOLN COUNTY BOARD OF SUPERVISORS AND CITY OF BROOKHAVEN, MISSISSIPPI

NO. 2016–CA–01429–SCT

Supreme Court of Mississippi.

May 24, 2018

ATTORNEY FOR APPELLANT: MARK T. FOWLER

ATTORNEYS FOR APPELLEES: ROBERT O. ALLEN JOHN CHADWICK WILLIAMS NICHOLAS KANE THOMPSON MATTHEW D. MILLER

EN BANC.

MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. The trial court granted the Lincoln County Board of Supervisors' and the City of Brookhaven, Mississippi's motions to dismiss Samuel Wilcher, Jr.'s personal injury suit, finding both governmental entities enjoyed discretionary-function immunity. In doing so, the judge employed this Court's recently created " Brantley " test.¹

¶ 2. On appeal, we face head on one of the unintended but predicted consequences of Brantley —that the test forces parties and judges to wade through an ever-deepening quagmire of regulations and ordinances to locate "ministerial" or "discretionary" duties, overcomplicating the process of litigating and deciding claims involving governmental entities. Unfortunately, this methodology, though well-intentioned, has over time proved unworkable. Instead of trying to retool the Brantley test to somehow make it workable, we concede this short-lived idea, which was meant to be a course correction, has ultimately led this Court even farther adrift. Because the Brantley line of cases has not fulfilled its purpose—getting our discretionary-function analysis back on track—we abandon this failed venture. We find it best to return to our original course of applying the widely recognized public-policy function test—the original Mississippi Tort Claims Act (MTCA) test first adopted by this Court in 1999 in Jones .²

¶ 3. Applying the Jones test to this case, we hold that Wilcher's claim that County and City employees negligently left an unfinished culvert installation overnight, without warning drivers they had removed but not yet replaced a bridge, is not barred by discretionary-function immunity. Wilcher is not trying to second-guess a policy decision through tort. He is seeking to recover for injuries caused by run-of-the-mill negligence.

¶ 4. Because, from the face of the complaint, the County and City are not immune, we reverse the grant of their motions to dismiss. We thus remand this case to the trial court for further proceedings consistent with this opinion.

Background Facts and Procedural History

¶ 5. According to Wilcher's complaint,³ he was driving at night on Washington Street in Brookhaven when his vehicle suddenly crashed into a big hole. This "pit or ditch" was left in the road where the County and City were repairing or constructing a bridge. Wilcher had not been made aware the bridge was under construction. And there were no warning signs, flag persons, lights, or any other devices that would warn Wilcher the bridge or roadway was missing, closed, or under repair or construction. Wilcher's vehicle crashed into the hole, injuring Wilcher and damaging his vehicle.

¶ 6. After giving the requisite statutory notice,⁴ Wilcher sued the Lincoln County Board of Supervisors (County) and the City of Brookhaven (City) for negligence. Wilcher alleged both entities—who had been working jointly to replace the bridge with a culvert—had failed in their duty to warn motorists the bridge was closed or under construction.⁵ This failure, he asserted, violated both entities' statutory duty under Mississippi Code Section 63–3–305 (Rev. 2013). It also fell below the required specifications of the "state manual,"⁶ showing a reckless disregard for motorists' safety.

¶ 7. Both the County and City filed motions to dismiss, insisting Wilcher's claims were barred by the MTCA. Specifically, they argued the duty imposed by Section 63–3–305 was discretionary, thus entitling them to discretionary-function immunity. See Miss. Code Ann. § 11–46–9(1)(d) (Rev. 2012). The trial judge agreed and granted both motions to dismiss.

¶ 8. Wilcher timely appealed. And on appeal, we review de novo the trial court's dismissal based on MTCA immunity. Fortenberry v. City of Jackson , 71 So.3d 1196, 1199 (Miss. 2011) (applying de novo review to the question of MTCA immunity); Scaggs v. GPCH–GP, Inc. , 931 So.2d 1274, 1275 (Miss. 2006) (applying de novo review to a motion to dismiss).

Discussion

I. Discretionary–Function Immunity

¶ 9. Under the MTCA, the default rule is that political subdivisions like Lincoln County and Brookhaven are not immune from tort claims.⁷ But the Legislature carved out several exceptions, reinstating immunity for certain types of claims. Miss. Code Ann. § 11–46–9(1). Relevant to this case is Section 11–46–9(1)(d). This particular section confers "discretionary-function immunity." Under this provision, "A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... (d) Based 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." Miss. Code Ann. § 11–46–9(1)(d).

¶ 10. The language of this provision is clear enough, but understanding and applying it has at times proved difficult. The Federal Tort Claims Act was enacted decades before the MTCA. And because the MTCA's " Section 11–46–9 appear[ed] to be patterned after 28 U.S.C. § 2680(a), the ‘discretionary function’ exception to the Federal Tort Claims Act," this Court originally turned to the federal courts' substantial experience in dealing with discretionary-function immunity. Jones v. Miss. Dep't of Transp. , 744 So.2d 256, 260 (Miss. 1999).

¶ 11. This Court found significant that "[t]he United States Supreme Court has recognized that [while] the majority of acts in the day-to-day operations of governmental activities involve the exercise of some form of discretion, ... not all of these acts are protected under the exception." Id. Instead, "only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected." Id. (citing United States v. Gaubert , 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) ). This is because "the purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Gaubert , 499 U.S. at 323, 111 S.Ct. at 1273 (quoting United States v. Varig Airlines , 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984) ).

¶ 12. Agreeing that the purpose of discretionary-function immunity is not to protect all decisions by governmental employees involving some level of discretion but instead only those functions that by their nature are policy decisions, this Court adopted Gaubert 's "public policy function test." Jones , 744 So.2d at 260. This test requires "determin[ing] whether governmental conduct is discretionary so as to afford the governmental entity immunity." Id. The public-policy function test has two parts. "This Court first must ascertain whether the activity in question involved an element of choice or judgment." Miss. Transp. Comm'n v. Montgomery , 80 So.3d 789, 795 (Miss. 2012). If so, this Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations. Id. Only when both parts of the test were met did a government defendant enjoy discretionary-function immunity.⁸

II. Brantley

¶ 13. Four years ago, however, five members of this Court decided to abandon the two-part, public-policy function test. The Brantley majority claimed to have detected in Section 11–46–9(1)(d)"a requirement not present in the Federal Tort Claims Act." Brantley v. City of Horn Lake , 152 So.3d 1106, 1112–13 (Miss. 2014). So the Brantley majority crafted a new and completely different test. The Brantley test directed the Court to first "consider the broadest function involved in order to make a baseline determination of whether the overarching function is discretionary or ministerial." Id. at 1114. "The Court then must examine any narrower duty associated with the activity at issue to determine whether a statute, regulation, or other binding directive renders that particular duty a ministerial one, notwithstanding that it may have been performed within the scope of a broader discretionary function." Id. at 1115. Conspicuously absent from this new test was any consideration of whether policy factored into the decision.

¶ 14. Brantley 's stated intention was to create a more "workable rule" for when discretionary-function immunity applies. Id. at 1112. But in reality, the new test "marked an unwise and unworkable departure from longstanding precedent," and by failing to consider whether the activity in question involved policy, ignored the Legislative intent behind discretionary-function immunity. Crider v. DeSoto Cty. Convention & Visitors Bureau , 201 So.3d 1063, 1067–70 (Miss. 2016) (Maxwell, J., concurring in result only).⁹ This case is a poster child for these truths.

¶ 15. Were we to apply Brantley here, we would start with arguably the broadest function possible—the placement of traffic-control devices, which Section 63–3–305 leaves to the discretion of the controlling political subdivision. But we could not stop there, as the trial court did. Instead, we would then have to scour the state manual. After that, we would have to hunt for other regulations and ordinances to see if the narrower duty in question has somehow been "rendered ministerial."¹⁰ This tedious and scattered quest exemplifies one of the major criticisms of Brantley analysis—that "it overcomplicates the process of litigating a claim and places the success of a claim on the ability of the injured party's attorney to sift through myriad and sometimes arcane regulations—creating extra layers of proof, which may have little or no practical effect on the actual negligent act ."...