Farris v. Miss. Transp. Comm'n
| Docket Number: | 2009-CC-01919-COA Linked Case(s): 2009-CC-01919-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-22-2011 Opinion Author: Myers, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Discretionary function - Section 11-46-9(1)(d) - Maintenance of highways - Section 65-1-65 - Dangerous condition - Section 11-46-9(1)(v) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 11-03-2009 Appealed from: Lee County Circuit Court Judge: Thomas J. Gardner Disposition: Bench Trial Entered Take-Nothing Judgment for MTC Case Number: Cv05-005-GL |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Jason Farris |
FRANK A. RUSSELL, JEFFREY DEAN LEATHERS |
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| Appellee: | Mississippi Transportation Commission | THOMAS WICKER | ||
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 - Discretionary function - Section 11-46-9(1)(d) - Maintenance of highways - Section 65-1-65 - Dangerous condition - Section 11-46-9(1)(v) |
| Summary of the Facts: | Jason Farris sued the Mississippi Transportation Commission for injuries he sustained when a dead tree located in the highway right-of-way maintained by the Mississippi Department of Transportation fell on his vehicle. The trial court granted MDOT a judgment of dismissal based on a finding that MDOT could not be held liable under the Mississippi Tort Claims Act. Farris appeals. |
| Summary of Opinion Analysis: | Issue 1: Discretionary function Farris argues that according to MDOT’s Standard Operating Procedures, MDOT is required to remove all trees more than four inches in diameter that are located within thirty feet of MDOT’s right-of-way. Accordingly, Farris maintains that MDOT cannot claim immunity in this case as it was obligated to remove the tree from its right-of-way. Section 11-46-9(1)(d) provides immunity to a governmental entity and its employees who perform (or decline to perform) an action on the basis of a discretionary function or duty whether or not the discretion be abused. In determining whether governmental conduct is discretionary, the court considers whether the activity involved an element of choice or judgment; and if so, whether the choice or judgment in supervision involves social, economic or political policy alternatives. The exercise and performance on the part of MDOT in the maintenance of its highways is a discretionary function. Section 65-1-65 requires that MDOT use its judgment and discretion in carrying out that duty. Here, the trial court found that the pine tree was located more than thirty feet from the edge of the roadway. The record is inconclusive as to how far, exactly, from the roadway’s edge the pine tree stood. However, this case does not turn on whether the pine tree grew within thirty feet of the edge of the roadway. MDOT’s S.O.P. does not establish a mandatory requirement so as to deprive MDOT of its discretion. As MDOT witnesses testified, MDOT has and will continue to remove dead trees from areas adjacent to its roadways that pose a danger to traveling motorists. But there is no statute, rule, regulation, or order that compels MDOT or its employees to inspect every existing tree alongside its highways in carrying out that plan. Thus, MDOT’s action (or inaction) falls within the scope of the discretionary-function exception provided by section 11-46-9(1)(d). Issue 2: Dangerous condition Farris contends that he presented evidence that the pine tree had been dead for six months, the condition of which would have made the tree noticeable to MDOT upon proper inspection. Farris, thus, argues that there is enough here to show that MDOT was on constructive notice that the pine tree constituted a dangerous condition. Where any of the immunities enumerated in section 11-49-9(1) apply, the government is completely immune from the claims arising from the act or omission complained of. Since MDOT’s conduct falls within the scope of the discretionary function exception under section 11-46-9(1)(d), Farris’s argument that the dangerous condition exception found under section 11-46-9(1)(v) applies, must fail. |
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