Wright, et al. v. Lee County


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Docket Number: 2010-CA-01380-COA
Court of Appeals: Opinion Link
Opinion Date: 10-11-2011
Opinion Author: Carlton, J.
Holding: Affirmed
Additional Case Information: Topic: Personal injury - Tort Claims Act - Discretionary function - Section 11-46-9 - Road maintenance
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Ishee, Roberts, Maxwell and Russell, JJ.
Non Participating Judge(s): Barnes, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - OTHER
Trial Court: Date of Trial Judgment: 08-02-2010
Appealed from: Lee Court Circuit Court
Judge: Thomas J. Gardner
Disposition: DIRECTED VERDICT IN FAVOR OF LEE COUNTY BOARD OF SUPERVISORS
Case Number: CV06-171-GL
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Lorri L. Wright, Individually and on Behalf of Nicholas Seidl and John Seidl and Nichols Seidl, Individually




 DANIEL M. CZAMANSKE JR. JOSEPH HARLAND WEBSTER



  
  • Appellant #1 Brief
    		•
    Appellee: Lee County, Mississippi, By and Through Its Board of Supervisors WILLIAM C. MURPHREE GARY L. CARNATHAN  
    Synopsis provided by:

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    Topic: Personal injury - Tort Claims Act - Discretionary function - Section 11-46-9 - Road maintenance
    Summary of the Facts: While Nicholas Seidl was driving his vehicle on a road in Lee County, the vehicle’s right front tire dropped off the right edge of the paved surface. Nicholas was ejected from the vehicle, resulting in injuries that left him a paraplegic. His brother John remained in the vehicle, and he sustained a broken leg. Lorri Wright initiated this action individually and on behalf of Nicholas and John, her sons, and filed a complaint against Daimlerchrysler Corporation and Lee County. Daimlerchrysler was dismissed with prejudice after reaching a settlement with Wright. After a trial, Lee County moved for a directed verdict. The circuit judge granted Lee County’s motion and entered an order dismissing the action. Wright appeals.
    Summary of Opinion Analysis: Wright argues that the circuit court erred in determining that the maintenance and creation of a shoulder on the road constituted a discretionary function under section 11-46-9. When determining whether governmental conduct is discretionary, the Court must consider 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. Here, Wright argues that based on testimony that all Lee County roads were required to have a shoulder and that the maximum pavement differential was three to four inches, such road maintenance is not discretionary; rather, it is mandatory. Since Mississippi case law clearly establishes that road maintenance is a discretionary function, the circuit court properly granted Lee County’s motion for a directed verdict based on the discretionary exception from liability pursuant to section 11-46-9(1)(d). Wright also argues that the conduct of Lee County cannot be discretionary because section 11-46-9(1)(v) does not allow entities to create statutorily or allow a dangerous condition to go unnoticed. However, even if the governmental entity abuses its discretion in creating a dangerous condition, the governmental entity still has immunity.


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