Miss. Transp. Comm'n v. Sylvia Montgomery
| Docket Number: | 2010-IA-01112-SCT Linked Case(s): 2010-IA-01112-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-06-2011 Opinion Author: Carlson, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Section 11-46-9(1)(d) - Section 11-46-9(1)(b) - Discretionary duty - Public-function test - Section 65-1-65 - Section 63-3-305 - Dangerous condition on highway Judge(s) Concurring: Waller, C.J., Dickinson, P.J., Randolph, Lamar and Pierce, JJ. Dissenting Author : Kitchens, J. Dissent Joined By : Chandler and King, JJ. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 06-23-2010 Appealed from: Yazoo County Circuit Court Judge: Jannie M. Lewis Disposition: Denied the Appellant's motion for summary judgment. Case Number: 2003-CI67 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Mississippi Transportation Commission |
JAY GORE, III
ROGER ADAM KIRK |
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| Appellee: | Sylvia Montgomery | BRYANT WANDRICK CLARK ROBERT GEORGE CLARK, III |
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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) - Section 11-46-9(1)(b) - Discretionary duty - Public-function test - Section 65-1-65 - Section 63-3-305 - Dangerous condition on highway |
| Summary of the Facts: | Sylvia Montgomery filed suit against the Mississippi Transportation Commission after she was injured when her car struck a pothole in the northbound lane of Interstate 55. The Commission filed a motion for summary judgment which the court denied. The Supreme Court granted the Commission’s petition for interlocutory appeal. |
| Summary of Opinion Analysis: | 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. If the governmental employee indeed is performing a discretionary function, then the governmental entity is immune, regardless of whether the employee has abused his discretion. A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee. A duty is ministerial if it is positively imposed by law and required to be performed at a specific time and place, removing an officer's or entity's choice or judgment. To determine if governmental conduct is discretionary, the Court must ascertain whether the activity in question involved an element of choice or judgment and if so, must also decide whether that choice or judgment involved social, economic, or political-policy considerations. To the extent that prior cases may be read to condone an interplay between section 11-46-9(1)(b) and section 11-46-9(1)(d) to determine whether the discretionary conduct of the governmental entity is exempt from liability by applying the ordinary-care standard, these cases, they are expressly overruled. In determining whether a governmental entity is exempt from liability under section 11-46-9(1)(d), the two-part public-function test must be used. Here, the Commission argues that it is immune under section 11-46-9(1)(d) because section 65-1-65 imposes a statutory duty upon the highway department to maintain all state highways. Also, section 65-1-65 directs the highway department to organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained highway system. The Commission also implicitly relies on section 63-3-305. In today’s case, Montgomery relies solely on section 11-46-9(1)(v) as the basis for asserting that the Commission is not exempt from liability under the Tort Claims Act. However, the Court need not reach Montgomery’s argument under section 11-46-9(1)(v) if it finds that the alleged act or omission was discretionary under section 11-46-9(1)(d). The decision of whether and how to warn of a dangerous condition on a highway involves judgment calls and choices and thus is not ministerial under section 63-3-305. The allegations that the Commission was aware of a dangerous condition and allegedly failed to warn of this condition does not waive the Commission’s immunity under section 11-46-9(1)(d) – assuming the duty to warn of a pothole is a discretionary duty. To withstand entry of summary judgment, Montgomery – under the public-function test – had to rebut the presumption that the duty to warn of a pothole was grounded in policy considerations. Montgomery did not present specific facts sufficient to rebut the presumption that warning of a dangerous pothole in the highway is based on policy considerations. Thus, the trial court erred in denying the Commission’s motion for summary judgment without first considering whether the Commission’s duty to warn of the pothole was a discretionary duty under the public-function test. If the nature of the Commission’s duty to warn of this pothole indeed involves choice or judgment and is grounded in policy considerations, then the Commission is immune under section 11-46-9(1)(d). |
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