Winters v. Lumley
| Decision Date | 27 September 1989 |
| Docket Number | No. 07-58550,07-58550 |
| Citation | 557 So.2d 1175 |
| Parties | Mattie S. WINTERS, Administratrix and Representative of the Wrongful Death Beneficiaries of Corliss D. Suber, Deceased v. Leon LUMLEY and the Board of Supervisors of Washington County, Mississippi. |
| Court | Mississippi Supreme Court |
Robert E. Buck, Greenville, for appellant.
B. Stevens Hazard, Daniel Coker Horton & Bell, Lucy Carroll Lacey, Daniel Coker Horton & Bell, J. Wyatt Hazard, Jennifer L. Welsh, Daniel Coker Firm, Jackson, for appellee.
Before ROY NOBLE LEE, PITTMAN and BLASS, JJ.
Mattie S. Winters, Administratrix of the Estate of Corliss D. Suber, Deceased, has appealed from a judgment of the Circuit Court, Washington County, Mississippi, entered on a Rule 12(b)(6) motion dismissing the action for damages filed against the Board of Supervisors of Washington County as a result of the death of Corliss D. Suber. The appellant assigns two (2) errors in the proceedings below.
The second amended complaint charged that on December 10, 1984, Corliss Suber was driving an automobile in a westerly direction on Wilmot Road in Washington County; that suddenly and without warning, she ran into a slippery muddy place on the highway caused by large clumps of rain-moistened earth; and that her vehicle skidded out of control and crashed into the railings of a concrete bridge, causing serious injuries to Suber, from which she subsequently expired.
The complaint further alleged that a mud slick and mud was upon the highway as a result of the farming operations conducted by Leon Lumley as he moved farm equipment from his farming operation onto the paved highway where the mud was shaken loose from the machinery and deposited on the highway; and that the Board of Supervisors of Washington County was negligent in that it was aware of, or should have been aware of, the dangerous condition on the highway caused by the deposits of mud and failed to clean up and remove the hazardous condition.
The appellee Board of Supervisors of Washington County answered and the third defense was a Rule 12(b)(6) motion interposing and claiming sovereign immunity in the suit. The appellant also filed, prior to the court's ruling on the motion, a bill of exceptions attaching thereto copy of a policy of liability insurance which provided general liability protection for the Board of Supervisors in the amount of five hundred thousand dollars ($500,000). After considering the motion, together with the bill of exceptions, the lower court sustained the motion and dismissed the suit as to the Board of Supervisors with prejudice.
The first question argued by the appellant on this assigned error is whether or not the removal of mud and cleanup of the slippery condition on the highway resulting from the deposit of such mud thereon by vehicles using the highway is a discretionary function or a ministerial function of the Board of Supervisors. The lower court found that it is a discretionary function rather than a ministerial function and, therefore, granted the 12(b)(6) motion. We address this question for the reason that the members of the Board of Supervisors of Washington County were sued in their "official capacities," not individually.
In order to sustain a 12(b) motion, it must appear to a certainty that the appellant is entitled to no relief under any facts presented that could be proved in support of his claim. State v. Lewis, 498 So.2d 321, 324 (Miss.1986); Busching v. Griffin, 465 So.2d 1037 (Miss.1985); and Stanton & Associates, Inc. v. Bryant Constr. Co., 464 So.2d 499 (Miss.1985).
Davis v. Little, 362 So.2d 642 (Miss.1978), discusses the distinction between discretionary and ministerial functions:
The immunity of public officials, on the other hand, is a more limited principle, since its purpose is not directly to protect the sovereign, but, rather, to do so only collaterally by protecting the public official in performance of his governmental function. Given the more limited function, courts have generally extended less than absolute immunity. The most commonly recognized limitation is the distinction between discretionary acts as opposed to ministerial acts. Under this distinction, the official is immune only where that which he does in the performance of his lawful duties requires personal deliberation, decision and judgment.
Discretionary decisions of Boards of Supervisors were discussed in Webb v. County of Lincoln, 536 So.2d 1356 (Miss.1988), where the Court said:
However, in no way can it be said that the legislature, in so laying the foundation for abrogation of immunity in this area, has addressed even peripherally the role of an individual supervisor in governmental capacity to repair and maintain the roads within the beat. It does in fact, reinforce the discretionary/ministerial distinction by allowing the board as a whole the authority to make discretionary decisions with regard to the general condition and state of maintenance of county roads and bridges, thus leaving intact the board's qualified immunity for such decision.
536 So.2d at 1359. See also Region VII, Mental Health/Mental Retardation Center v. Isaac, 523 So.2d 1013 (Miss.1988), Grantham v. Miss. Department of Corrections, 522 So.2d 219 (Miss.1988).
We are of the opinion that removing mud and cleaning the highway in the case sub judice, as charged in the complaint, was a discretionary function of the members of the Board of Supervisors and that governmental immunity applies to them in this case.
The second amended complaint sues the Board of Supervisors in the following language:
III.
The defendant Board of Supervisors of Washington County, Mississippi, is the official governing authority for Washington County, Mississippi and is charged by law, among other things, with the responsibility of maintaining the public roads of said county. The members of the Board of Supervisors are: Virgil L. Sandifer, John L. Hinkle, Lonzo D. Peacock, C.C. "Frank" Self and William J. "Bill" Ellard. The said members of the Board of Supervisors of Washington County (hereinafter referred to as the "Board") are joined herein in their official capacities.
As stated, the Board of Supervisors was sued in its official capacity, which also was tantamount to a suit against Washington County. The immunity of Washington County rests upon whether the function of cleaning the highway was a governmental or...
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