Deanie Lee v. Mississippi Department of Transportation
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00605-COA
DEANIE LEE INDIVIDUALLY AND AS
MOTHER AND NEXT FRIEND OF SUMMER
JACKSON; TERESA A. BROWN,
INDIVIDUALLY AND AS MOTHER AND NEXT
FRIEND OF ERICA BLANKINCHIP AND GUY
ERIC BLANKINCHIP, INDIVIDUALLY AND AS
A FATHER, NEXT FRIEND AND GUARDIAN
OF ERICA BLANKINCHIP AND J.C. BELL,
TRUSTEE; TERESA A. BROWN
INDIVIDUALLY AND AS MOTHER AND NEXT
FRIEND OF CESELIE BLANKINCHIP AND
GUY ERIC BLANKINCHIP, INDIVIDUALLY
AND AS FATHER, NEXT FRIEND AND
GUARDIAN OF CESELIE BLANKINCHIP AND
J.C. BELL, TRUSTEE, GUY ERIC
BLANKINCHIP, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF
BEVERLY BLANKINCHIP AND J.C. BELL,
TRUSTEE AND DOROTHY M. SIPP
APPELLANTS
v.
MISSISSIPPI DEPARTMENT OF
TRANSPORTATION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
02/8/2008
HON. KATHY KING JACKSON
GEORGE COUNTY CIRCUIT COURT
A. MALCOLM N. MURPHY
LAWRENCE E. ABERNATHY
JAMES H. HEIDELBERG
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT ENTERED IN
FAVOR OF MISSISSIPPI DEPARTMENT OF
TRANSPORTATION
AFFIRMED - 09/15/2009
BEFORE LEE, P.J., ISHEE AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
Dorothy Sipp, the Estate of Beverly Blankinchip, Erica Blankinchip, Ceselie
Blankinchip, and Deanie Lee, individually and as mother and next friend of Summer Jackson
(collectively, the Appellants) sued the Mississippi Department of Transportation 1 for injuries
and death resulting from a two-vehicle collision on a state highway in George County,
Mississippi.2 After discovery, the George County Circuit Court found that there were no
genuine issues of material fact and granted summary judgment on behalf of MDOT.
Aggrieved, the Appellants appeal and assert that the court erred in granting summary
judgment. Finding no error, we affirm.
FACTS
¶2.
On September 21, 2003, Dorothy Sipp (Sipp) was driving north on State Highway 63
in George County. A heavy downpour shortly before the accident caused water to pool on
the highway. Sipp’s car hydroplaned, crossed the center line, and collided with a southbound
1
Although we typically avoid referring to a party as “Appellants,” we do so in this
case to avoid the tedious and repetitive nature of naming all parties who are appellants.
Also, we refer to the Mississippi Department of Transportation simply as MDOT throughout
this opinion.
2
In its brief to this Court, MDOT states that it is technically an improper party to this
case. MDOT asserts that the Mississippi Transportation Commission (MTC) is actually the
proper entity opposing the Appellants. MDOT advised the Appellants of this in its
pleadings, but no action was taken by the Appellants to change the name of the party. We
take notice of MDOT’s assertion, but in continuity with the style of the case, we will refer
to the Appellee as MDOT.
2
vehicle driven by Beverly Blankinchip (Beverly). Beverly was accompanied by Erica
Blankinchip (Erica), Ceselie Blankinchip (Ceselie), and Summer Jackson (Jackson). Beverly
died as a result of the accident, and Erica, Ceselie, Jackson, and Sipp suffered personal
injuries of varying degrees.
¶3.
The Appellants’ individual suits were consolidated for trial purposes. The Appellants
alleged that: MDOT failed in its duties to properly inspect and maintain Highway 63 where
the accident occurred; MDOT failed to properly warn of a dangerous condition; and MDOT
failed to properly construct and engineer the highway where the accident occurred. MDOT
filed a motion to dismiss or, in the alternative, a motion for summary judgment on June 1,
2005. After significant delays and continuances for various reasons, including delays caused
by Hurricane Katrina, the matter was heard on January 10, 2008. Following the hearing, the
circuit court allowed the Appellants an opportunity to submit supplemental material.
Thereafter, the circuit court granted summary judgment in favor of MDOT on January 30,
2008.
¶4.
The circuit court based its opinion on the following: (1) the Appellants offered no
proof of a defect in the design of the highway;3 (2) MDOT was immune from suit because
3
The Appellants do not raise any argument on appeal concerning the circuit court’s
grant of immunity to MDOT based upon the plan or design of the highway. MDOT
presented an affidavit of Todd Jordan, the District Maintenance Engineer for MDOT, to the
circuit court. Jordan stated that the section of highway where the accident occurred was
approved on October 5, 1950, by T.C. Robbins, the Executive Director of the Mississippi
State Highway Department. Jordan also stated that “[i]t was and still is the responsibility of
the Project Engineer to make sure that the highway is constructed according to the plans and
specifications in effect at the time of said planning and design.”
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of the discretionary nature of the duties involved; (3) the open and obvious nature of the
danger relieved MDOT of the responsibility to warn of the danger; and (4) weather was the
sole cause of the accident. Following the circuit court’s grant of summary judgment in favor
of MDOT, the Appellants filed a motion for a new trial on February 8, 2008, and an amended
motion for a new trial on February 16, 2008. The circuit court denied these motions. The
Appellants appeal and raise the following issues: (1) MDOT waived immunity because it
failed to correct dangerous conditions on a state highway after having notice of the condition;
(2) MDOT waived immunity because it failed to warn of a dangerous condition on a state
highway after having notice of the condition; and (3) the trial court erred in finding that
weather was the sole cause of the accident. We will address issues one and two together.
STANDARD OF REVIEW
¶5.
It is well-settled that:
We apply a de novo standard of review to a trial court's grant of summary
judgment. Summary judgment is proper where the evidence shows that there
is no genuine issue of material fact in the case. The party moving for summary
judgment bears the burden of showing that there is no genuine issue of
material fact. The non-moving party should be given the benefit of every
reasonable doubt. Issues of fact sufficient to require denial of a motion for
summary judgment obviously are present where one party swears to one
version of the matter in issue and another says the opposite.
Willingham v. Miss. Transp. Comm'n, 944 So. 2d 949, 951 (¶7) (Miss. Ct. App. 2006)
(internal citations and quotations omitted).
I.
¶6.
WHETHER MDOT MAINTAINS MTCA IMMUNITY UNDER THE
MISSISSIPPI TORT CLAIMS ACT.
The Appellants argue that they supplied the circuit court with numerous affidavits of
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George County residents, wherein the affiants stated that the condition of the road was “bad,”
and they had complained to MDOT about the condition of the highway. The Appellants
assert that this proved MDOT was given notice of the dangerous condition existing on
Highway 63 in George County; therefore, it waived its immunity under the MTCA. The
Appellants also argue that accidents occurring on Highway 63 in George County should have
alerted MDOT to the dangerous rutting that had developed. Be that as it may, any actual or
constructive notice MDOT may have had concerning rutting on Highway 63 in George
County does not remove MDOT from the protective shield of the MTCA.
¶7.
Mississippi Code Annotated section 11-46-9 (Supp. 2002) states, in pertinent part,
that:
(1) A governmental entity and its employees acting within the course and
scope of their employment or duties shall not be liable for any claim:
....
(d) 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;
....
(g) Arising out of the exercise of discretion in determining
whether or not to seek or provide the resources necessary for the
purchase of equipment, the construction or maintenance of
facilities, the hiring of personnel and, in general, the provision
of adequate governmental services;
....
5
(p) Arising out of a plan or design for construction or
improvements to public property, including but not limited to,
public buildings, highways, roads, streets, bridges, . . . where
such plan or design is in conformity with engineering or design
standards in effect at the time of preparation of the plan or
design;
....
(v) Arising out of an injury caused by a dangerous condition on
property of the governmental entity that was not caused by the
negligent or other wrongful conduct of an employee of the
governmental entity or of which the governmental entity did not
have notice, either actual or constructive, and adequate
opportunity to protect or warn against; provided, however, that
a governmental entity shall not be liable for the failure to warn
of a dangerous condition which is obvious to one exercising due
care.
(Emphasis added). While giving the Appellants the benefit of every reasonable doubt, a
review of the record and established case law reveals that the Appellants presented no issues
of material fact, and the circuit court’s grant of summary judgment in favor of MDOT was
well taken. We will briefly address each reason the circuit court did not err in granting
MDOT’s motion for summary judgment.
a.
¶8.
Maintenance of roads and highways is a discretionary
function.
It is undisputed that the area of highway on which the accident occurred had areas of
indentation, or was “rutted out,” and it is likely, that the condition contributed to water
pooling on the highway. It is also clear that it is the duty of the State Highway Commission
to have the State Highway Department maintain all highways which have been taken over
by the State Highway Department for maintenance. See Miss. Code Ann. § 65-1-65 (Rev.
6
2005). However, case law reveals that the exercise and performance of that maintenance is
a discretionary function.
¶9.
Recently, this Court stated that the “statutes do not impose any specific directives ‘as
to the time, manner, and conditions for carrying out the [MDOT's] duty in maintaining
highways or posting traffic-control or warning devices; thus, the above duties are not
ministerial in nature.’” Knight v. Miss. Transp. Comm'n, 10 So. 3d 962, 970 (¶27) (Miss. Ct.
App. 2009) (citing Collins v. Tallahatchie County, 876 So. 2d 284, 289 n.9 (Miss. 2004)).
“In fact, all [the] statutes require that [MDOT] use its judgment and discretion in carrying
out the duties prescribed therein.” Id. (citing Dancy v. E. Miss. State Hosp., 944 So. 2d 10,
16 (¶19) (Miss. 2006)). “The MTCA . . . grants immunity to governmental 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.’” Willingham, 944 So. 2d at 951-52 (¶8) (citing
Miss. Code Ann. § 11-46-9(1)(d) (Supp. 2006)). Also, the supreme court has held that
discretionary functions do not require a standard of due care. Id. at 952 (¶8). In other words,
“if an employee’s act is discretionary, immunity is granted, regardless of whether due care
was exercised in the execution of the duty.” Id. We recognize that MDOT has a limited
number of funds to disperse in the maintenance and upkeep of the State’s highways.
Therefore, MDOT must use its discretion and judgment when determining the order in which
roads will be resurfaced or repaired. This fact was echoed by Richard Lee, the District
Engineer for MDOT, wherein he stated by sworn affidavit that “[t]he District is allotted a
finite amount of funds annually for road maintenance. At the discretion of the Agency, those
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finite available funds are used where the Agency believes they are needed most, particularly
on the roads of the State in the most need of repair.” Based upon the plain reading of
Mississippi Code Annotated section 11-46-9(1)(d) (Rev. 2002) and relevant case law, it is
clear that MDOT maintains its immunity under the MTCA in relation to its discretionary
functions. Therefore, the Appellants’ argument – that MDOT waived its immunity because
it may have had notice of rutting and/or accidents occurring on Highway 63 but failed to
repair the condition, – is without merit.
b.
¶10.
MDOT did not waive its immunity because it did not
warn of a possibly dangerous condition.
The Appellants rely on Howard v. City of Biloxi, 943 So. 2d 751 (Miss. Ct. App.
2006) for their argument that MDOT waived its immunity under the MTCA because it had
either actual or constructive notice of a defect and did not warn of the dangerous condition.
Although Howard does discuss the possibility of liability on the part of a governmental entity
if it has notice of a dangerous condition, the Appellants give short shrift to the fact that
Howard clearly states that the city or governmental entity will not be liable if the dangerous
condition is open and obvious. The Appellants simply claim that the condition was not open
and obvious, so they have met all five factors set forth in Howard. We disagree.
¶11.
In Howard, the plaintiff filed suit after she fell on the sidewalk outside a public
library. Id. at 753 (¶2). The Howard plaintiff claimed that the city had notice of the
unevenness of the sidewalk, and the city was responsible for her injury because it failed to
correct the unevenness and/or warn of the danger. Id. at (¶3). However, the Howard court
8
found that the governmental agency had not waived its immunity under the MTCA, by
failing to warn, because the defect was open and obvious. Id. at 756 (¶¶14-15).
¶12.
The Howard court stated:
The Mississippi Tort Claims Act provides the exclusive civil tort remedy
against a governmental entity, and as such, dictates the elements a plaintiff
must satisfy to recover against the City of Biloxi. The Act, as it relates to the
present case, provides immunity to the City in pertinent part:
Arising out of an injury caused by a dangerous condition on
property of the governmental entity that was not caused by the
negligent or other wrongful conduct of an employee of the
governmental entity or of which the governmental entity did not
have notice, either actual or constructive, and adequate
opportunity to protect or warn against; provided, however, that
a governmental entity shall not be liable for the failure to warn
of a dangerous condition which is obvious to one exercising due
care.
Howard, 943 So. 2d at 754 (¶5) (citing Miss. Code Ann. § 11-46-9(1)(v) (Rev. 2004)). In
their brief to this Court, the Appellants correctly stated the elements necessary to overcome
the immunity provided MDOT under the MTCA, but we disagree with their assertion that
they have met all of those elements.
¶13.
In Howard, this Court clearly stated, “[t]he Act provides that a municipality ‘shall not
be liable for the failure to warn of a dangerous condition which is obvious to one exercising
due care.’” Id. at 756 (¶14) (citing Miss. Code Ann. § 11-46-9(1)(v)) (emphasis added).
This Court went on to note that the Howard plaintiff argued that “the fact that no one
reported the unevenness in the sidewalk joints [was] evidence, in and of itself, that the
condition was not open and obvious.” Id. But, we stated that a purview of the photographs
9
submitted by the Howard plaintiff revealed that the unevenness was an open and obvious
condition to one exercising due care. Id. at (¶15). Howard is analogous to the instant case.
¶14.
The Appellants have also presented photographs, which were taken shortly after the
accident, of the area where the accident occurred. From our study of the photographs, it is
apparent that the areas of pooled water on Highway 63 were clearly evident to one exercising
due care. Although the Appellants argue that the pooling of water was not evident in heavy
rain, we decline to offer an opinion about that assertion, as the record reveals that it was not
raining heavily at the time of the accident.
¶15.
The Appellants presented numerous affidavits with varying accounts about the
intensity of the rain on that fateful day, but we place the most emphasis on the statement
given by Sipp, the driver of the vehicle that hydroplaned and collided with Beverly’s vehicle.
Sipp clearly stated that it had rained heavily a short time before the accident, but it had
“changed to a light rain” before the accident. She also stated that she “saw the water on the
road from the rain and was driving about [fifty to fifty-five] miles per hour[,] and [she]
believed the road was safe for that speed.” We do not address whether Sipp’s belief that
driving fifty to fifty-five miles per hour in those conditions was reasonable. However, it is
certain that “[t]he operator of a motor vehicle has a duty to keep the vehicle under proper
control and to drive at a speed which is reasonable under the conditions that she faces.”
Miss. Dep’t. of Transp. v. Trosclair, 851 So. 2d 408, 418 (¶35) (Miss. Ct. App. 2003) (citing
Upchurch ex. rel. Upchurch v. Rotenberry, 761 So. 2d 199, 205 (¶24) (Miss. 2000)) (finding
jury instruction proper, which stated that an operator of a motor vehicle had a duty to keep
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the vehicle under proper control and to drive at a speed which was reasonable and prudent
under existing conditions) (emphasis added).
¶16.
Willingham, which involved an automobile accident caused by a hydroplaning
vehicle, is also analogous to the instant case. In Willingham, we stated the following:
In this case, the danger at issue was open and obvious to one exercising
ordinary care. It is elementary, common knowledge that driving is more
dangerous and should be approached more carefully during bad weather, such
as the weather at the time of the accident in question. Although the pavement
at question in this case was rutted and may have heightened the risk for
hydroplaning, the risk of hydroplaning during rainfall is an open and obvious
danger, such that the MTC is shielded under the MTCA.
944 So. 2d at 953 (¶16) (emphasis added). Indeed, it is common knowledge that the risk of
an accident is increased when driving in bad weather, and Sipp clearly saw the standing
water. Although we are not unsympathetic toward the tragedies of that day, We find that the
Appellants’ argument that MDOT waived its immunity by failing to warn of a dangerous
condition on Highway 63 in George County is without merit: the condition was open and
obvious to one exercising due care.
II.
¶17.
WHETHER THE CIRCUIT COURT ERRED IN FINDING THAT
THE WEATHER WAS THE SOLE CAUSE OF THE ACCIDENT.
The Appellants argue that the circuit court erred in finding that the weather was the
sole cause of the accident, asserting that they had presented four eyewitness affidavits to the
contrary. The Appellants assert that the affidavits of Steve Capello, Hollis Welford,
Roosevelt Love, and Sipp clearly dispute that there was a rainstorm shortly before the
accident. The Appellants assert that, at most, it was drizzling before the accident. This
11
argument is unpersuasive.
¶18.
As previously addressed, Sipp stated that it had been raining heavily and then it
changed to a light rain shortly before the accident. Love’s account of the weather that day
was like Sipp’s. Love stated that “[i]t had been raining heavily up until about [ten] minutes
before the accident, and at that time[,] the rain was a light rain. The road was completely
covered with standing water and we were all going very slowly.” Love further stated that
he was only driving about forty miles per hour. Welford, who was not driving that day but
lived near the scene of the accident, stated that he had been watching the weather out of his
window, and it had only been drizzling that day. Regardless of any variation in the affiants’
memories, it is clear from all of the affidavits that it indeed had been raining prior to the
accident. It is also clear that the rain caused the pooling on the highway.
¶19.
Under Mississippi Code Annotated section 11-46-9 (1)(q), a governmental entity will
not be held liable for injury if that injury was caused solely by the effect of weather
conditions on the use of streets and highways. In Willing v. Estate of Benz, 958 So. 2d 1240,
1253 (¶36) (Miss. Ct. App. 2007), this Court held that the city could not be found liable for
an accident caused by a patch of ice on the road. The instant case is similar; it simply
involves water that was still in its liquid state.
¶20.
The following is undisputed: It was raining before and during the time of the
accident; the rain caused pooling on Highway 63 in George County; and finally, the pooling
of water on Highway 63 in combination with Sipp’s speed caused Sipp’s car to hydroplane
and collide with Beverly’s vehicle. Just as in Willingham, the rutting of the highway may
12
have heightened the risk of hydroplaning, but nonetheless, it was an open and obvious
condition caused solely by the effect of weather. Willingham, 944 So. 2d at 953 (¶16).
Accordingly, We find that the circuit court did not err in determining that weather was the
sole cause of the accident.
CONCLUSION
¶21.
We recently stated that “where any of the immunities enumerated in section
11-46-9(1) apply, the government is completely immune from the claims arising from the act
or omission complained of.” Knight, 10 So. 3d at 971 (¶33) (emphasis added). We also
stated that “even if we may not agree with the wisdom of the statutes regarding the waiver
of state sovereign immunity passed by the Legislature, we are bound to follow a statute's
clear, expressed mandate.” Id. at (¶18) (citing Wells ex rel. Wells v. Panola County Bd. of
Educ., 645 So. 2d 883, 889 (Miss. 1994)). “Courts cannot pass judgment upon the wisdom,
practicality or even folly of a statute. We must follow it unless it clearly impinges upon
some Constitutional mandate . . . . This is solely the prerogative of the people acting through
their Legislature.” Id. (citation omitted).
In the instant case, MDOT is immune from
liability under at least three sub-sections of Mississippi Code Annotated section 11-46-9(1).
¶22.
First, it is well settled that the maintenance of state highways is a discretionary
function, and Mississippi Code Annotated section 11-46-9(1)(d) states that the governmental
entity or its employees acting within the course and scope of their employment will not be
liable for “the exercise or performance or the failure to exercise or perform a discretionary
function or duty . . . whether or not the discretion be abused.”
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¶23.
Second, it is clear that the pooling of water on Highway 63 was the direct result of
weather, and under section 11-46-9(1)(q), the governmental entity or its employees will not
be liable for accidents “[a]rising out of an injury caused solely by the effect of weather
conditions on the use of streets and highways.” And third, Sipp succinctly stated that it was
raining; she saw the standing water on the highway; and section 11-46-9(1)(v) sets forth that
a governmental entity will not be liable for accidents caused by a dangerous condition that
is open and obvious to one exercising due care, regardless of whether the government had
actual or constructive notice. The Legislature has clearly established that MDOT is shielded
from liability in cases that arise from the circumstances presented in the instant case.
¶24.
In order to overcome the statutory immunity granted to MDOT under the MTCA, the
Appellants had the burden to show that: MDOT failed to perform a ministerial duty, rather
than a discretionary function; the dangerous condition was not caused solely by the effect of
weather; and the dangerous condition was not open and obvious. We have thoroughly
reviewed the record, and we find that the Appellants failed to provide any evidence that
would create a genuine issue of material fact. Accordingly, the circuit court did not err in
granting MDOT’s motion for summary judgment.
¶25. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
CARLTON AND MAXWELL, JJ., CONCUR.
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