Simpson County v. McElroy


<- Return to Search Results


Docket Number: 2009-CA-01874-COA
Linked Case(s): 2009-CA-01874-COA ; 2009-CT-01874-SCT ; 2009-CT-01874-SCT
Court of Appeals: Opinion Link
Opinion Date: 04-19-2011
Opinion Author: Maxwell, J.
Holding: Reversed and rendered.
Additional Case Information: Topic: Personal injury - Sovereign immunity - Section 11-46-9(1)(b) & (d) - Discretionary function
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts and Carlton, JJ.
Nature of the Case: CIVIL - PERSONAL INJURY
Trial Court: Date of Trial Judgment: 08-06-2009
Appealed from: Simpson County Circuit Court
Judge: Robert G. Evans
Disposition: Awarded Plaintiff $106,896.29 on His Failure-To-Warn Claim
Case Number: 2005-205
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Simpson County, Mississippi




 WILLIAM ROBERT ALLEN, ROBERT O. ALLEN



  
  • Appellant #1 Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: Don F. McElroy W. TERRELL STUBBS  
    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.
    Topic: Personal injury - Sovereign immunity - Section 11-46-9(1)(b) & (d) - Discretionary function
    Summary of the Facts: Don McElroy sued Simpson County, for failing to warn him of a dangerous road condition caused by a rain storm. The County claimed it was entitled to sovereign immunity under section 11-46-9(1). However, the court found the County liable under section 11-46-9(1)(b) for failing to exercise ordinary care in placing warning signs along the road. The County appeals.
    Summary of Opinion Analysis: Section 11-46-9(1)(b) does not apply to this case. Subsection 9(1)(b) only applies to claims arising out of the exercise of ordinary care in performing a statute, ordinance, or regulation. And the circuit court found the County neither performed a statute, ordinance, or regulation nor exercised ordinary care. Further, the circuit court found the County failed to exercise ordinary care. Therefore, section 11-46-9(1)(b) is wholly inapplicable, and the circuit court’s use of this provision to impose liability was error. That is not to say the County had no duty to warn. But as with all tort claims against government entities, before reaching the question of liability, the circuit court had to ask whether the County is immune based on one of the provision of section 11-46-9(1). Section 11-46-9(1)(d) provides immunity from claims 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. So long as the employee was performing a discretionary function, the government is immune, even if the employee abused his discretion. To determine if government conduct is an immune discretionary function, the court considers whether the activity involved an element of choice or judgment and, if so, whether the activity involved social, economic, or political policy. A duty is discretionary if it requires an official to use her own judgment and discretion in order to carry out the duty. In this case, Busby exercised his judgment when he chose to use the signs readily available in his truck rather than leave Shorter Road to retrieve barricades and other signs. The circuit court acknowledged as much, stating Busby “chose to utilize the aforesaid method of warning.” Busby’s actions were discretionary, not ministerial. This finding is consistent with other cases holding that warning of road hazards is a discretionary duty. The County’s use of road-closure signs involved economic policy. The County’s road manager, Sullivan, testified the County limited its budget for road signs and barricades. To save money, his department made hand-painted fiberglass signs, including the ones Busby placed on Shorter Road. In using the fiberglass signs in the back of his truck, Busby was following County procedure, grounded in economic policy. By finding the County liable in tort for Busby’s failure to use more expensive (albeit sturdier) signs, the circuit court was second-guessing the County’s administrative decision to use the “homemade” signs for temporary road closures. Thus, the judgment is reversed and rendered.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court