Aultman v. Lawrence County
| Docket Number: | 2011-CA-00540-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-17-2012 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Section 11-46-9(1)(d) - Immunity - Discretionary function - Public-function test - Placement of warning signs - Section 63-3-305 - Section 11-46-9(1)(w) - Section 11-46-9(1)(v) - Open and obvious Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Roberts and Fair, JJ. Non Participating Judge(s): Maxwell, J. Concur in Part, Concur in Result 1: Russell, J., Concurs in Part and in the Result Without Separate Written Opinion Concurs in Result Only: Carlton, J., Concurs in Result Only With Separate Written Opinion Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 03-09-2011 Appealed from: LAWRENCE COUNTY CIRCUIT COURT Judge: Prentiss Harrell Disposition: SUMMARY JUDGMENT GRANTED TO DEFENDANT Case Number: 2010-0132H |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Arnetria L. Aultman |
C. E. SOREY II |
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| Appellee: | Lawrence County, Mississippi | ROY A. SMITH JR. STEVEN JAMES GRIFFIN | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Tort Claims Act - Section 11-46-9(1)(d) - Immunity - Discretionary function - Public-function test - Placement of warning signs - Section 63-3-305 - Section 11-46-9(1)(w) - Section 11-46-9(1)(v) - Open and obvious |
| Summary of the Facts: | Arnetria Aultman was injured when her vehicle plunged into a huge crevasse that was approximately twenty feet wide and ten feet deep. The crevasse formed when a section of Oak Grove Road was washed out following heavy rainfall in Lawrence County. Another vehicle, driven by Angelean Ball, had fallen into the crevasse a few hours earlier when the road initially gave way. Immediately after the first accident involving Ball, Lawrence County Supervisors Archie Ross and Steve Garrett placed warning barricades that bore three horizontal orange and white planks at the accident site. Aultman filed an action against Lawrence County, alleging that it failed to warn the public of the washed-out portion of Oak Grove Road. Lawrence County responded with a motion for summary judgment which the court granted. Aultman appeals. |
| Summary of Opinion Analysis: | Section 11-46-9(1)(d) provides immunity for government entities and its employees from claims that are based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a government entity or employee thereof, whether or not the discretion be abused. A two-part public-policy-function test is used to determine whether the governmental conduct constitutes a discretionary function. First, it must be determined whether the activity involved an element of choice or judgment. If so, it must then be determined whether the choice or judgment involved social, economic, or political policy. Aultman contends that the placement of warning signs is a ministerial function. However, section 63-3-305 states that officials “shall place and maintain such traffic control devices upon highways . . . as they may deem necessary . . . to regulate, warn or guide traffic.” It is well-settled law in Mississippi that the placement or non-placement of traffic control devices or signs is a discretionary governmental function. Since Lawrence County officials used their judgment in deciding when and where to place the traffic control devices, the act is considered a discretionary function. Aultman argues that the circuit court erred by failing to make a determination of whether Lawrence County’s choice or judgment – to place warning barricades on Oak Grove Road, to alert motorists of the dangerous condition – involved social, economic, or political policy. While it would have been better practice for the circuit court to discuss the two-part public-policy-function test specifically in its grant of summary judgment, the comprehensive language in the court’s order, indicating that “Lawrence County’s decision to place barricades and barrels (traffic control devices or warning signs) at or near the crevasse was therefore a discretionary function for which ordinary care is not required,” is sufficient for the Court to presume that the appropriate standard was employed. It was Aultman’s responsibility to rebut the presumption that the discretion exercised by Lawrence County officials in placing the warning signs was grounded in public policy. Other than her broad assertion on appeal that the circuit court failed to address the issue of policy, she has provided neither the circuit court, nor the appellate court, with any specific facts to rebut the presumption that the county’s actions were “grounded in policy.” Aultman also argues that there is a genuine issue of material fact as to whether the crevasse in Oak Grove Road was “open and obvious” under the requirements of section 11-46-9(1)(v). Aultman does not dispute that Lawrence County placed barricades at or near the site of the dangerous condition. However, Aultman claims that her affidavit and those of her passengers indicated that they “only saw one barricade at the side of the roadway, not blocking the entrance nor blocking passage over the washed out area of the road,” then the condition was not obvious. When summary judgment is found to be appropriate as to section 11-46-9(1)(d), the Court need not engage in any analysis regarding an appellant’s claim as to section 11-46-9(1)(v). In addition, the record supports immunity under section 11-46-9(1)(w) which states that which states that a governmental entity is not liable for injuries “[a]rising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice[.]” Even if the warning signs were moved to the side of the road and the barrels knocked into the crevasse as was claimed in the other affidavits, logic would dictate that a third party was responsible. |
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