Jason Farris v. Mississippi Transportation Commission
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CC-01919-COA
JASON FARRIS
APPELLANT
v.
MISSISSIPPI TRANSPORTATION
COMMISSION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/03/2009
HON. THOMAS J. GARDNER III
LEE COUNTY CIRCUIT COURT
FRANK A. RUSSELL
JEFFREY DEAN LEATHERS
THOMAS WICKER
CIVIL - PERSONAL INJURY
BENCH TRIAL ENTERED TAKE-NOTHING
JUDGMENT FOR MTC
AFFIRMED: 03/22/2011
GRIFFIS, P.J., MYERS AND CARLTON, JJ.
MYERS, J., FOR THE COURT:
¶1.
Jason Farris sued the Mississippi Transportation Commission (MTC) for injuries he
sustained when a dead tree located in the highway right-of-way maintained by the
Mississippi Department of Transportation (MDOT)1 fell on his vehicle. Following a bench
trial in the Lee County Circuit Court, the trial court granted MDOT a judgment of dismissal
1
The Mississippi Transportation Commission is the actual party opposing Farris.
MDOT, however, maintains the highways “subject to the rules, regulations, and orders” of
the MTC. See Miss. Code Ann. § 65-1-1 (Rev. 2005) and § 65-1-65 (Rev. 2005). Because
the parties and the trial court repeatedly refer to MDOT rather than MTC throughout the
case, this opinion hereinafter will also in order to avoid confusion.
based on a finding that MDOT could not be held liable under the Mississippi Tort Claims Act
(MTCA). Finding no error, we affirm.
FACTS AND PROCEEDINGS
¶2.
On July 13, 2003, Farris was driving north on Highway 371 in Lee County,
Mississippi, when a portion of a dead pine tree located within MDOT’s right-of-way fell
through the windshield of Farris’s pickup truck. A piece of the tree, measuring two to three
inches in diameter, penetrated Farris’s lower abdomen causing Farris serious injuries.
Doctors were able to repair much of the damage, but Farris continues to struggle with
difficulties as a result of the accident.
¶3.
Farris filed suit against MDOT, and a bench trial followed pursuant to Mississippi
Code Annotated section 11-46-13(1) (Rev. 2002). At trial, Farris presented expert testimony
from Charles Williams, a forester, who inspected the remaining portions of the tree, more
than fours years after the event. Williams opined that the pine tree was ten to twelve inches
in diameter and had likely been dead for approximately six months at the time of the
accident. Williams said that due to the visual effects associated with the decaying process,
the pine tree would have stood prominent in the forest. But after looking at pictures taken
of the fallen pine tree shortly after the accident, Williams could not say with certainty that
the pine tree would have been readily observable to someone making an inspection by
driving down the roadway.
¶4.
After the close of Farris’s case-in-chief, MDOT moved for a judgment of involuntary
dismissal. The trial court granted the motion, and it entered an order granting judgment in
2
favor of MDOT.
¶5.
In its order of dismissal, the trial court found that the dead pine tree grew more than
thirty feet east of the paved portion of the roadway and approximately five to ten feet west
of MDOT’s right-of-way marker. The area of the right-of-way from which the pine tree
grew consisted of other trees and vegetation, and the area was not maintained by mowing.
The trial court found no evidence that MDOT knew the existence of the dead tree prior to the
accident, or that the tree constituted a known danger to those using the roadway. Evidence
was presented that MDOT personnel traveled the highway in order to check for problems on
the paved portion of the highway and the adjoined mowed section of the right-of-way.
Witnesses for MDOT indicated that if they had known about the dead tree and had
considered it a hazard to those using the roadway, it would have been removed. But the
MDOT witnesses also testified that time and circumstances did not provide for inspection
of the unmaintained portion of the right-of-way.
¶6.
The trial court concluded that: maintenance of state roads is a discretionary function
of MDOT, and MDOT is protected from liability of hazardous conditions of which it did not
have notice. Accordingly, the trial court dismissed the case and denied all relief sought by
Farris. This appeal followed.
¶7.
Farris asserts two arguments on appeal. First, he contends that the trial court erred in
finding that MDOT was immune pursuant to the discretionary-function exemption of
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Mississippi Code Annotated section 11-46-9(1)(d) (Supp. 2010).2 Second, Farris argues that
the trial court erred in not finding that MDOT waived its immunity under the dangerouscondition exception of section 11-46-9(1)(v) (Supp. 2010).
¶8.
Additional facts will be related, as necessary, in our discussion.
STANDARD OF REVIEW
¶9.
A trial judge sitting as trier of fact under section 11-46-13(1) is accorded the same
deference with regard to his or her factual findings as that of a chancellor.
Martin v.
Franklin County, 29 So. 3d 862, 865 (¶8) (Miss. Ct. App. 2010) (citation omitted). When
considering a motion for involuntary dismissal under Rule 41(b) of Mississippi Rules of Civil
Procedure, “the trial court should consider ‘the evidence fairly, as distinguished from in the
light most favorable to the plaintiff,’ and the judge should dismiss the case if it would find
for the defendant.” Ladner v. Stone County, 938 So. 2d 270, 273 (¶10) (Miss. Ct. App. 2006)
(quoting Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d 359, 369 (Miss. 1992)). The
trial judge’s factual findings will not be reversed on appeal where they are supported by
substantial, credible, and reasonable evidence. Martin, 29 So. 3d at 865 (¶8). Application
of the MTCA is reviewed de novo. Miss. Dep’t. of Pub. Safety v. Dunn, 861 So. 2d 990, 994
(¶7) (Miss. 2003).
DISCUSSION
2
Both parties periodically refer to section 11-46-9 as “11-26-9” in their respective
briefs on appeal. There is no such section in the Mississippi Code, and it is clear that both
parties meant section 11-46-9.
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I. WHETHER MDOT’S FAILURE TO REMOVE THE DEAD PINE
TREE FROM ITS RIGHT-OF-WAY FALLS UNDER THE
DISCRETIONARY-FUNCTION EXEMPTION OF SECTION 11-46-9.
¶10.
Farris argues that pursuant to Mississippi Code Annotated section 65-1-65 (Rev.
2005), MDOT is required to “organize an adequate and continuous patrol for the
maintenance, repair, and inspection of all of the state-maintained highway system, so that
said highways may be kept under proper maintenance and repair at all times.” Farris
contends that according to MDOT’s Standard Operating Procedures (S.O.P.), MDOT is
required to remove all trees more than four inches in diameter that are located within thirty
feet of MDOT’s right-of-way. Accordingly, Farris maintains that MDOT cannot claim
immunity in this case as it was obligated to remove the subject tree from its right-of-way.
¶11.
The MTCA, per section Mississippi Code Annotated section 11-46-9(1)(d), provides
immunity to a governmental entity and its 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.’” Lee v. Miss. Dep’t of Transp., 37 So. 3d 73, 78 (¶9) (Miss. Ct. App. 2009)
(quoting Willingham v. Miss. Transp. Comm’n, 944 So. 2d 949, 951-52 (¶8) (Miss. Ct. App.
2006)). “[T]he MTCA’s intent is to promote efficient and timely decision-making by
government officials without fear of liability.” Miss. Dep’t of Mental Health and Ellisville
State Sch. v. Shaw, 45 So. 3d 656, 659 (¶13) (Miss. 2010) (citation and internal quotation
omitted).
¶12.
In Shaw, the Mississippi Supreme Court reiterated the two-part test for determining
whether the government’s conduct falls within the scope of the discretionary-function
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exception. The Shaw court said that:
In determining whether governmental conduct is discretionary the Court must
answer two questions: (1) whether the activity involved an element of choice
or judgment; and if so, (2) whether the choice or judgment in supervision
involves social, economic or political policy alternatives.
Id. at (¶12).
¶13.
In Lee, this Court held once again that the exercise and performance on the part of
MDOT in the maintenance of its highways is a discretionary function. Lee, 37 So. 3d at 77
(¶8). Section 65-1-65 does not “impose any specific directives ‘as to the time, manner, and
conditions for carrying out . . . MDOT’s duty in maintaining highways . . . .’” Id. at 77 (¶9)
(quoting Knight v. Miss. Transp. Comm’n, 10 So. 3d 962, 970 (¶27) (Miss. Ct. App. 2009)).
Rather, section 65-1-65 requires that MDOT use its judgment and discretion in carrying out
that duty. Id.
¶14.
Bill Jameson, District Engineer for MDOT, provided testimony that there are
approximately 5,000 acres of right-of-way in Lee County, over the course of approximately
250 road miles which have to be inspected and maintained by fourteen employees assigned
to Lee County. According to Jameson, the decision as to how many employees are assigned
and available for work in a particular county is the result of joint input from MDOT and the
State Personnel Board. The maintenance task to be performed by MDOT employees are
governed, in part, by MDOT’s Maintenance and Field Operation Manual. Jameson testified
that the Maintenance and Field Operations Manual contains guidelines with regard to the
frequency of inspections, the number of persons conducting the inspections, and the method
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and mode of inspections. Jameson said that in carrying out these guidelines, “judgment
calls” are often required.
¶15.
The preface to MDOT’s S.O.P., which is contained in the Maintenance and Field
Operation Manual, is consistent with Jameson’s testimony. S.O.P. No. MND-50-03-00-000
states at page one:
PURPOSE: Quality standards are an important part of the Maintenance
Management System because they define the way a highway
should look or function as a result of the maintenance effort.
Most maintenance activities cannot be quantitatively defined
because they are so complex and diverse. Therefore, the
standards are generally written descriptions of the completed
activity rather than a measured value.
The purpose of the quality standards is to provide guidance to a
supervisor in the evaluation of work accomplishments and to
establish a level of consistent maintenance service throughout
the State.
Changes in available funds, equipment or personnel will require
adjustments in the standards from time to time. Consequently,
these standard[s] do not establish legal criteria as they are
intended to function primarily as a guide for maintenance
activities. The judgment of trained maintenance personnel must
be relied upon to the determine what methods and materials will
best achieve the desired results in keeping with the prime
objective of the department which is to provide the motorist
with a safe smooth riding surface and an adequately signed,
satisfactorily drained, well kept roadway in the most economical
manner possible.
¶16.
On page seven of the S.O.P., is a section entitled “ROADSIDE MAINTENANCE.”
In this section, on page ten of the S.O.P., is a provision entitled “Timber and Brush Control,”
and it provides the following:
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All trees located on state highway rights of way within 30 feet from the edge
of the traveled way, which are four inches or more in diameter are to be cut
flush with the ground and removed from the right of way except: (1) those of
historical value or of special community interest; (2) those of scenic value on
the rights of way of low speed highways in urban or built up areas; (3) those
stipulated to remain in place by provision in right of way deeds; (4) those
which cannot be reached by an out-of-control vehicle; (5) those located on
U.S. Highway No. 90 between the Bay of St. Louis and Biloxi Bay.
....
Thick stands of trees and other trees which have shaded out vegetation cover
may be gradually thinned and ultimately eliminated as this vegetative cover
returns in areas in order that the necessity for costly erosion control work will
be reduced or eliminated.
¶17.
As mentioned, the trial court found that the subject pine tree was located more than
thirty feet from the edge of the roadway. For the sake of thoroughness, we point out that the
record is inconclusive as to how far, exactly, from the roadway’s edge the pine tree stood.
Farris did not provide precise measurements as to the tree’s location during his case-in-chief.
Instead, Farris’s expert, Williams, estimated by memory that the pine tree grew ten to twelve
feet west of MDOT’s right-of-way marker. And the testimonies provided by MDOT’s
witnesses only indicate that the width of MDOT’s right-of-way at this particular location is
sixty feet from the “center line” of the two-lane highway. That said, this case does not turn
on whether the subject pine tree grew within thirty feet of the edge of the roadway.
¶18.
First, as a practical observation (this being despite the fact that MDOT provided little
testimony with regard to this particular S.O.P. provision at trial), it is fairly obvious that the
thirty-foot-clearance requirement is not contemplated as a demarcation point. According to
the record, the subject pine tree was forty feet in length, and this stretch of highway is lined
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with similar pine trees. Neither this provision, nor any other provision contained in MDOT’s
S.O.P., mentions tree height. Second, and more to the point, even though the provision
contains obligatory language, it is qualified by a number of exceptions, which clearly require
the use of judgment and discretion with regard to trees located within the thirty-foot area
adjoining MDOT’s highways.
Based on our reading of this provision, it is intended to
operate as a general guideline, and it does not establish a mandatory requirement so as to
deprive MDOT of its discretion.
¶19.
As MDOT witnesses testified, MDOT has and will continue to remove dead trees
from areas adjacent to its roadways that pose a danger to traveling motorists. But there is no
statute, rule, regulation, or order that compels MDOT or its employees to inspect every
existing tree alongside its highways in carrying out that plan. That no such requirement
exists, is, as Jameson indicated, an economic decision, which we may not second guess.
¶20.
Accordingly, we agree with the trial court’s finding that MDOT cannot be held liable
for not having removed the dead pine tree at issue in this case. MDOT’s action (or inaction)
falls within the scope of the discretionary-function exception provided by section 11-469(1)(d). This issue is without merit.
II. WHETHER MTC WAIVED ITS IMMUNITY UNDER THE
DANGEROUS-CONDITION EXCEPTION OF 11-46-9(1)(v).
¶21.
Farris contends that he presented evidence that the pine tree had been dead for six
months, the condition of which would have made the tree noticeable to MDOT upon proper
inspection. Farris, thus, argues that there is enough here to show that MDOT was on
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constructive notice that the pine tree constituted a dangerous condition.
¶22.
In Knight, this Court explained that “where any of the immunities enumerated in
section 11-49-9(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) (quoting Willing v. Estate
of Benz, 958 So. 2d 1240, 1255 (¶40) (Miss. Ct. App. 2007)).
¶23.
Having found that MDOT’s conduct falls within the scope of the discretionary-
function exception under section 11-46-9(1)(d), Farris’s argument that the dangerouscondition exception found under section 11-46-9(1)(v) applies, must fail. Id. Therefore, this
issue is also without merit.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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