MacDonald v. MDOT


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Docket Number: 2005-CA-00128-COA
Linked Case(s): 2005-CA-00128-COA ; 2005-CT-00128-SCT ; 2005-CT-00128-SCT

Court of Appeals: Opinion Link
Opinion Date: 09-19-2006
Opinion Author: ROBERTS, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Personal injury - Tort Claims Act - Immunity on all claims - Section 11-46-9(1)
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 09-28-2004
Appealed from: Hancock County Circuit Court
Judge: Stephen Simpson
Disposition: SUMMARY JUDGMENT AWARDED TO DEFENDANT/APPELLEE
Case Number: 02-0110

  Party Name: Attorney Name:  
Appellant: ROBERT D. MACDONALD, DECEDENT, BY AND THROUGH NANCY L. MACDONALD, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT D. MACDONALD, DECEASED, AND REPRESENTATIVE OF ALL HEIRS-AT-LAW OF THE DECEDENT, ROBERT D. MACDONALD




MARGARET P. ELLIS



 

Appellee: MISSISSIPPI DEPARTMENT OF TRANSPORTATION WILLIAM E. WHITFIELD, SAMUEL TRENT FAVRE  

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Topic: Personal injury - Tort Claims Act - Immunity on all claims - Section 11-46-9(1)

Summary of the Facts: As she drove across the Bay St. Louis bridge, Jacqueline O’Shey crossed the median into oncoming traffic and collided with Robert and Nancy MacDonald’s car. Nancy suffered injuries and Robert died. Nancy sued the Mississippi Department of Transportation on Robert’s behalf as well as her own, for defective design, negligent construction, negligent maintenance, negligent improvement in that MDOT failed to construct a median barrier, and failure to warn. MDOT filed a motion for summary judgment as it applied to Nancy’s cause of action for defective design. The court granted partial summary judgment on Nancy’s defective design claim. MDOT filed a second motion for summary judgment and claimed that it was entitled to immunity as to Nancy’s remaining causes of action. The court granted the motion, and Nancy appeals.

Summary of Opinion Analysis: In granting MDOT’s second motion for summary judgment, the court based its decision on an interpretation of the Tort Claim Act termed “Frasier’s octopus.” “Frasier’s octopus” stands for the principle that where one exemption listed in section 11-46-9(1) applies, no further immunity is necessary, as that immunity in and of itself is sufficient to defeat a claim. The term “Frasier’s octopus” originated from a law review article by Jim Frasier which stated, “the various exemptions [listed under Section 11-46-9(1)] are like an octopus’s arms; even if one doesn’t get you, another one may.” According to MDOT, because the circuit court found that summary judgment was appropriate as to Nancy’s defective design claim by way of section 11-46-9(1)(p), MDOT is also immune to Nancy’s negligent construction claim, her negligent maintenance claim, her negligent improvement claim, and her failure to warn claim. It is true that, for any individual claim, where any one provision under section 11-46-9(1) grants immunity, a governmental entity is immune to that individual claim. However, where there are separate claims, that single provision may or may not be sufficient to create immunity as it applies to those other claims. Resolution of the question as to whether a single finding of immunity equates to immunity as to each and every claim raised depends on the facts of the case and the relevant claims. Therefore, the case is remanded to the circuit court. MDOT alternatively argues that it is entitled to immunity because maintenance and improvement of the bridge, including whether to build a median barrier, was a discretionary function, and that the danger created by the lack of a median barrier was “open and obvious” to anyone exercising due care. Because the circuit court’s rationale for summary judgment was based entirely on its erroneous interpretation of “Frasier’s octopus,” the court never reached these issues. Therefore, it is inappropriate to consider these issues on appeal.


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