Miss. Transp. Comm'n v. Montgomery


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Docket Number: 2010-IA-01112-SCT
Linked Case(s): 2010-IA-01112-SCT

Supreme Court: Opinion Link
Opinion Date: 02-23-2012
Opinion Author: Carlson, P.J.
Holding: Reversed and remanded

Additional Case Information: Topic: Personal injury - Tort Claims Act - Immunity - Section 11-46-9(1)(d) - Discretionary duty - Section 65-1-65 - Section 63-3-305 - Duty to warn - Public-function test
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

Trial Court: Date of Trial Judgment: 06-23-2010
Appealed from: Yazoo County Circuit Court
Judge: Jannie M. Lewis
Disposition: Denied Appellant's motion for summary judgment.
Case Number: 2003-CI67

Note: The motion for rehearing filed by the Mississippi Transportation Commission is denied. The original opinions are withdrawn, and these opinions are substituted therefor. Reversed and Remanded.

  Party Name: Attorney Name:  
Appellant: Mississippi Transportation Commission




JAY GORE, III ROGER ADAM KIRK



 

Appellee: Sylvia Montgomery ROBERT GEORGE CLARK, III BRYANT WANDRICK CLARK  

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Topic: Personal injury - Tort Claims Act - Immunity - Section 11-46-9(1)(d) - Discretionary duty - Section 65-1-65 - Section 63-3-305 - Duty to warn - Public-function test

Summary of the Facts: The motion for rehearing filed by the Mississippi Transportation Commission is denied, and these opinions are substituted for the original opinions. 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 near Vaughan. 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. 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. The Commission contends that “any decision regarding maintenance of the highways, including the subject intersection, [is] discretionary as they are based on the judgment of MDOT officials and employees.” 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. Under the test, the Court first must ascertain whether the activity in question involved an element of choice or judgment. If so, the Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations. Section 65-1-65 imposes a statutory duty on the highway department to maintain all state highways. Were this the only statutory provision at issue, the Commission would not be immune for the acts carrying out that function. The Legislature, however, carved out a portion of the function mandated by that statute, and made it discretionary. Section 63-3-305 gives local authorities discretion in placing and maintaining traffic devices “as they may deem necessary to indicate and carry out the provisions of this chapter . . . .” Although the Commission’s duty to maintain highways is not discretionary, the placing of warning signs is, because the Legislature has provided specific language in the statute extending discretion to those acts. Because the Legislature extended discretion to whether and how to warn traffic, the Commission’s decision was not ministerial. 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. Accordingly, 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. The case is remanded for a determination of whether the Commission’s duty to warn was discretionary under section 11-46-9(1)(d).


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