                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2018-IA-01139-SCT

MISSISSIPPI DEPARTMENT OF
TRANSPORTATION

v.

KENNETH MUSGROVE AND LATASHA
MUSGROVE, INDIVIDUALLY


DATE OF JUDGMENT:                       07/19/2018
TRIAL JUDGE:                            HON. EDDIE H. BOWEN
TRIAL COURT ATTORNEYS:                  COREY D. GIBSON
                                        B. ADAM HAYS
                                        OBY T. ROGERS
                                        CHRISTOPHER O. MASSENBURG
COURT FROM WHICH APPEALED:              COVINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                MICHAEL D. GOGGANS
                                        B. ADAM HAYS
                                        CHRISTOPHER O. MASSENBURG
ATTORNEYS FOR APPELLEES:                MICHAEL V. RATLIFF
                                        OBY T. ROGERS
                                        COREY D. GIBSON
NATURE OF THE CASE:                     CIVIL - PERSONAL INJURY
DISPOSITION:                            REVERSED AND RENDERED - 04/16/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE KITCHENS, P.J., COLEMAN AND GRIFFIS, JJ.

      KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Mississippi Governor Phil Bryant declared a state of emergency on January 27, 2014,

in anticipation of an imminent winter storm. In response to the governor’s declaration,

Mississippi Department of Transportation (MDOT) placed limestone material on roadways

as a remedial measure. Four days after the state of emergency was declared, Kenneth
Musgrove lost control of his car and crashed on Highway 37, where MDOT had placed the

limestone material, severely injuring his wife and himself.

¶2.    The Musgroves filed a complaint against MDOT in the Circuit Court of Covington

County on June 23, 2015, for damages from the car accident. MDOT filed a motion for

summary judgment, asserting that it was participating in emergency-management services

under the Mississippi Emergency Management Law (MEML) and therefore was immune

from liability. The trial court denied MDOT’s motion for summary judgment, finding that

there was a “genuine issue of material fact as to whether MDOT exercised due care in

maintaining the road by placing gravel on the road and failing to warn drivers” of the gravel.

MDOT timely filed its petition for interlocutory appeal, arguing that the MEML explicitly

grants state agencies complete immunity from liability and that the trial court had erred by

applying the standards set forth in the Mississippi Tort Claims Act (MTCA) instead of

applying the willful-misconduct standard set forth in the MEML.

¶3.    This Court finds that MDOT has immunity under the MEML and that the trial court

erred by applying the MTCA’s immunity standards instead of applying the MEML’s

standard. Accordingly, we reverse and render.

                             STATEMENT OF THE FACTS

¶4.    On January 27, 2014, Mississippi Governor Phil Bryant issued a proclamation

declaring a state of emergency because a significant winter storm was approaching the state.

The proclamation warned portions of the state, including Covington County, of the

impending storm and of the potential for hazardous driving conditions. It directed all



                                              2
agencies of the state, including MDOT, to discharge their emergency responsibilities. The

proclamation was in effect from January 27, 2014, through February 10, 2014. In response

to the proclamation, MDOT deployed its emergency-management services and used deicing

techniques on roads across the affected regions, including Highway 37 in Covington County.

MDOT’s deicing techniques consisted of placing limestone materials on roadways in

anticipation of the expected hazardous driving conditions.

¶5.    On January 31, 2014, Kenneth Musgrove was driving on Highway 37 when he lost

control of his car and wrecked. Musgrove claims that he lost control due to the placement of

the limestone materials, which had been applied to Highway 37 as it led into a curve. Both

Kenneth and Latasha Musgrove were severely injured in the wreck.1

¶6.    The Musgroves filed a complaint in the Circuit Court of Covington County on June

23, 2015. They claim that MDOT’s placement of the limestone material and its failure to

warn drivers of the limestone’s presence was the ultimate cause of their wreck. The

Mississippi Highway Safety Patrol’s accident report states that the vehicle’s driver lost

control “due to gravel which was on [the] roadway due to recent ice storm.” A highway

patrolman testified in a deposition that there had been an accident earlier in the day that was




       1
       Kenneth Musgrove suffered a broken back and now is paralyzed from the chest
down. Latasha Musgrove suffered a broken neck.

                                              3
in the same general area as the Musgroves’ accident.2 Nothing in the record indicates that

MDOT had knowledge of the prior accident.3

¶7.    On December 6, 2016, MDOT filed a motion for summary judgment, asserting that

it was immune from the suit because the MEML protected it from tort liability during an

emergency situation.

¶8.    After a hearing, the trial court entered an order on April 20, 2017, denying MDOT’s

motion for summary judgment. The trial court found the following:

       1. MTCA does not supersede the MEML, but each should be read in
       conjunction with the other statute.

       2. Mississippi Code Section 63-3-303 made MDOT’s placement and
       maintenance of traffic-control devices a discretionary function, but there still
       could be liability under MTCA Sections 11-46-9(1)(v) and (w), for failure to
       warn of a known danger that is not open and obvious.

       3. Applying the standard set forth in Brantley v. City of Horn Lake, 152 So.
       3d 1106 (Miss. 2014), Mississippi Code Section 65-1-65 required MDOT to
       maintain the roads at all times; thus MDOT had a ministerial duty and there
       was nothing to suggest that duty was altered during an emergency situation.

       4. The [c]ourt finds there is a genuine issue of material fact as to whether
       MDOT exercised due care in maintaining the road by placing gravel on the
       road and failing to warn drivers of the road condition that the gravel placed on
       the road.




       2
        Mississippi Highway Patrolman Leno Holmes stated in his deposition that he had
responded to an earlier accident “[m]aybe 60 yards” south of the location of the Musgroves’
accident.
       3
         In Patrolman Holmes’s deposition, he was asked, “At any point in time did you
report the wrecks or did you call anybody and ask them about the . . . [?]” Inexplicably, the
deposition cuts off at that point.

                                              4
That order was not received by MDOT’s counsel, who filed a motion for relief under

Mississippi Rule of Civil Procedure 60. On July 19, 2018, the trial court entered an amended

order denying MDOT’s motion for summary judgment. MDOT timely filed its petition for

interlocutory appeal, which was granted.

¶9.    MDOT raises the following issues on appeal: 1) whether MDOT is immune from

liability for acts undertaken under the MEML and 2) whether the trial court erred by ruling

that the MTCA immunity standard applied rather than the MEML immunity standard. MDOT

argues that the MEML explicitly grants state agencies complete immunity from liability for

its “emergency management activit[ies]” during a state of emergency, absent willful

misconduct. MDOT argues also that the trial court erred when it considered the MTCA’s

limited immunity provisions instead of the MEML’s complete immunity. The Musgroves

argue that the trial court did not err by denying the motion for summary judgment because

the “trial court correctly found that a genuine issue of material fact exists as to whether

MDOT is liable under the MTCA and is not excused for its willful misconduct by the

MEML.”

                                STANDARD OF REVIEW

¶10.    Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment

“shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter of law.”

Miss. R. Civ. P. 56(c). “This Court reviews a trial court’s grant or denial of a motion for



                                               5
summary judgment or a motion to dismiss under a de novo standard.” Arceo v. Tolliver, 949

So. 2d 691, 694 (Miss. 2006) (citing Monsanto v. Hall, 912 So. 2d 134, 136 (Miss. 2005)).

“[T]he burden of demonstrating that no genuine issue of fact exists is on the moving party.”

Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So. 2d 658, 663 (Miss. 2002). “The

party opposing the motion must be diligent and may not rest upon mere allegations or denials

in the pleadings but must by allegations or denials set forth specific facts showing there are

genuine issues for trial.” Davis v. Hoss, 869 So. 2d 397, 401 (Miss. 2004) (citing Richmond

v. Benchmark Constr. Corp., 692 So. 2d 60, 61 (Miss. 1997)).

                                       DISCUSSION

       I.     Whether MDOT has immunity for its actions during the state of
              emergency.

¶11.   MDOT argues that the MEML gives it complete immunity for its emergency-

management activities during emergency situations, such as when a state of emergency has

been proclaimed. The Mississippi Emergency Management Law (MEML), specifically

Mississippi Code Section 33-15-21(a), states,

       Neither the state nor any political subdivision thereof, nor other agencies, nor,
       except in cases of willful misconduct, the agents, employees, or representatives
       of any of them engaged in any emergency management activities, while
       complying with or attempting to comply with this article or any rule or
       regulation promulgated pursuant to the provisions of this article, shall be liable
       for the death of or any injury to persons, or damage to property, as a result of
       such activity.

Miss. Code Ann. § 33-15-21(a) (Rev. 2010).

¶12.   Under the MEML, the state and its agencies shall not be liable for their actions when

dealing with emergencies, except when such actions constitute willful misconduct. The


                                               6
Musgroves argue that MDOT’s placement of the limestone material and its failure to warn

constituted willful misconduct. They contend also that MDOT engaged in willful misconduct

by failing to warn after having knowledge of a recent prior accident near the location of their

accident.

¶13.   We first interpret the MEML and then we determine whether MDOT committed

willful misconduct and, thus, cannot claim immunity under the MEML.

       A.     The MEML

¶14.   Neither party disputes that there was a state of emergency in effect at the time of the

accident and that MDOT’s actions were undertaken in response to the governor’s emergency

proclamation, thus implicating the MEML. MDOT asserts that because an accident occurred

during a declared state of emergency and because MDOT’s emergency-management

activities failed to constitute willful misconduct, it is entitled to immunity under the MEML.

¶15.   The Musgroves rely on a Mississippi Court of Appeals case’s definitions and

interpretation of “reckless disregard” and “willful misconduct” to support their claim that

“liability for willful misconduct under MEML appears to be the same as liability for reckless

disregard under MTCA.” See Herndon v. Miss. Forestry Comm’n, 67 So. 3d 788 (Miss. Ct.

App. 2011).4 But these definitions from Herndon undermine rather than support the

Musgroves’ position. The Herndon court defined “reckless disregard” as “more than mere

negligence, but less than an intentional act.” Herndon, 67 So. 3d at 796 (internal quotation

       4
        In Herndon, the Court of Appeals found that the Mississippi Forestry Commission
(MFC) was immune both under the MTCA and the MEML because, although the employee’s
conduct “may have been negligent,” the conduct did not constitute “reckless disregard of
safety” or “willful misconduct.” Herndon, 67 So. 3d at 795.

                                              7
marks omitted) (quoting Giles ex rel. Giles v. Brown, 31 So. 3d 1232, 1237 (Miss. Ct. App.

2009)). The court then defined “[w]illful misconduct” as “misconduct committed voluntarily

and intentionally.” Id. (internal quotation marks omitted) (quoting Willful misconduct,

Black’s Law Dictionary (9th ed. 2009)). This Court has explained “willful misconduct”:

“Where the misconduct is wilful, there is an intentional injury.” Mason v. Shook, 240 Miss.

478, 486, 127 So. 2d 658, 661 (1961). These definitions establish that the two terms are

distinct and that they are by no means identical or interchangeable. Reckless disregard is

something less than an intentional act, which is the kind of act that is required to show willful

misconduct. Nothing in the record demonstrates or even suggests an intention on the part of

MDOT to harm the Musgroves or other motorists by the placement of limestone on the

surface of a state highway during a winter-storm emergency. The Musgroves’ contention that

the reckless-disregard standard from the MTCA and the willful-misconduct standard from

the MEML are the same is without merit.

¶16.   MDOT cites the Mississippi Court of Appeals case Parsons v. Mississippi State Port

Authority at Gulfport to demonstrate how the MTCA does not override the MEML. See

Parsons v. Miss. State Port Auth., 996 So. 2d 165 (Miss. App. Ct. 2008).5 “Statutes on the

same subject, although in apparent conflict, should if possible be construed in harmony with

each other to give effect to each.” Parsons, 996 So. 2d at 169 (citing Roberts v. Miss.

       5
         The issue before the appeals court in Parsons was “whether the [MTCA had]
supersed[ed] the [MEML],” and the court found that the two should be “read in conjunction
with each other” and that the MTCA did not supersede the MEML. Parsons, 996 So. 2d at
166, 169. The court also held, “the two statutes can be read together to provide immunity for
the state and its agencies for its activities during times of emergency management while
simultaneously being exempt from liability under the MTCA.” Id. at 169.

                                               8
Republican Party State Exec. Comm., 465 So. 2d 1050, 1052 (Miss. 1985)). The Parsons

court found that the MTCA did not override the MEML because the MEML “provides

immunity to the state and its agencies for liability occurring during emergency situations.”

Id. The MEML is a more narrow immunity statute than the MTCA, is applicable only in

emergency situations, and can be defeated only by willful misconduct.

¶17.   MDOT cites three federal cases that demonstrate how negligent acts in emergency

situations do not constitute willful misconduct under the MEML. See Ecker v. United States,

No. 1:07-cv-1101-HSO-JMR, 2009 WL 10706019 (S.D. Miss. May 6, 2009); Estate of

Martin ex rel. Echoles v. United States, No. 1:08-cv-157-HSO-JMR, 2010 WL 2985471

(S.D. Miss. 2010); Lindsey v. Miss. State Port Auth., No. 1:06-cv-656-LG-RHW, 2006 WL

5209293 (S.D. Miss. 2006). Ecker and Martin involved a National Guard member who

caused an automobile wreck while acting in response to a state of emergency. The federal

district court in both cases found that there was “insufficient evidence indicating any willful

misconduct” and granted immunity under the MEML. Ecker, 2009 WL 10706019, at *4;

Martin, 2010 WL 2985471, at *3. The Musgroves argue that these three cases are

inapplicable because the plaintiffs there could not prove willful misconduct. While these

federal cases are not binding on this Court, we find them persuasive. They correctly describe

the way in which MEML immunity protects the state and its agencies from liability for

negligent acts during a state of emergency, absent willful misconduct. The Musgroves have

failed to adduce evidence proving that MDOT’s actions amounted to willful misconduct, not

unlike the plaintiffs in the three federal cases.



                                               9
       B.     Does MDOT have immunity for its placement of the limestone
              material on the road and its failure to warn of a dangerous
              condition?

¶18.   The facts of this case implicate the MEML, which requires a finding of willful

misconduct on the part of the state agency to foreclose MEML immunity. The question

becomes whether MDOT’s placement of the limestone material on the road and its failure

to warn amount to willful misconduct. The Musgroves argue that MDOT’s actions do

constitute willful misconduct because: 1) MDOT “wrongfully” placed the limestone material

on the road and did so without erecting warning signs and 2) MDOT “wrongfully” placed

the limestone material on the road and “failed to clean up the gravel after having been

warned about the dangerous condition it posed after having been alerted to the fact that

another wreck had occurred earlier that same day.”

¶19.   The Musgroves contend that MDOT’s acts of placing the limestone material on the

road constituted willful misconduct because MDOT should not have placed the material on

a highway leading into a curve without putting up warning signs. Again, “willful

misconduct” is “misconduct committed voluntarily and intentionally.” Herndon, 67 So. 3d

at 796 (internal quotation marks omitted) (quoting Willful misconduct, Black’s Law

Dictionary (9th ed. 2009)). The Musgroves have failed to provide evidence demonstrating

that MDOT’s placement of the limestone material and subsequent failure to warn was

misconduct committed voluntarily and intentionally. “The party opposing the motion must

be diligent and may not rest upon mere allegations or denials in the pleadings but must by

allegations or denials set forth specific facts showing there are genuine issues for trial.”



                                            10
Davis, 869 So. 2d at 401 (citing Richmond, 692 So. 2d at 61). MDOT’s placement of the

material on the roadway was not governmental misconduct because MDOT was acting in

response to the governor’s proclamation to “discharge their emergency responsibilities as

deemed necessary as set forth in the State of Mississippi’s Comprehensive Emergency

Management Plan.”6 Although MDOT intended for the limestone gravel to be placed on the

road, its purpose was to make the road safer in keeping with the proclamation, not to cause

harm intentionally.

¶20.   MDOT was acting during a declared emergency, and its placement of the limestone

and failure to warn of its presence could have been, at most, negligent conduct, which is the

sort of tortious activity or inactivity for which the MEML shields state agencies from

liability. It was the legislature’s express intent that the MEML would “provide for the rapid

and orderly provision of relief” in emergency situations.7 Miss. Code Ann. § 33-15-2(2)


       6
        The Mississippi Comprehensive Emergency Management Plan (CEMP) provides
sixteen Emergency Support Function Annexes (ESFs), which identify the specific activities
required to support each numbered function and specify the agencies and organizations that
are responsible for performing those activities. Miss. Emergency Mgmt. Agency, Miss.
Comprehensive Emergency Mgmt. Plan (Dec. 2017), https://www.msema.org/wp-
content/uploads/2018/10/2018-State-CEMP-Basic-Plan.pdf. While the ESFs name and
describe the specific tasks, they do not describe the detailed procedures to perform them. Id.
One of the ESFs is the Transportation Response Annex, which names MDOT as the primary
agency and lists several support agencies. One of the support agencies is the Mississippi
Highway Safety Patrol, which, under the plan and during an emergency situation,
“[a]ssume[s] responsibility for detouring traffic away from sites that have experienced
severe infrastructure damage (traffic regulation and control).” Miss. Emergency Mgmt.
Agency, Miss. Emergency Support Function #1 - Transportation Response Annex (Rev.
June 2017), https://www.msema.org/wp-content/uploads/2018/10/2018_ESF_01.pdf.
       7
         “It is the intent of the Legislature to reduce the vulnerability of the people and
property of this state . . . to provide for the rapid and orderly provision of relief to persons
and for the coordination of activities relating to emergency preparedness, response, recovery

                                              11
(Rev. 2010). The MEML gives state agencies freedom to deploy their emergency-

management responsibilities rapidly and focus on “reduc[ing] the vulnerability of the people

and property of this state,” free of concern about potential liability for negligent acts. Miss.

Code Ann. § 33-15-2(2) (Rev. 2010). The trial court found that MDOT has a duty to maintain

the roads at all times and there was “nothing to suggest that duty is diminished or somehow

altered during an emergency situation.” But the legislature’s stated intent makes it

unmistakably clear that the MEML does alter such duties during emergency situations.

MDOT’s failure to place signs that warned of the gravel may have been negligent, but it did

not rise to the level of willful misconduct. Therefore, that omission, even if misconduct, was

clothed in the formidable armor of the MEML’s immunity provision.

¶21.   The Musgroves argue also that there was willful misconduct by MDOT for having

knowledge of a prior accident that occurred in the same general location as the Musgroves’

accident and by not placing warning signs after receiving this knowledge. But the Musgroves

have failed to provide any specific facts to support their allegation that MDOT knew of the

prior accident. The party opposing the motion cannot rest upon mere allegations and denials,

but must provide “specific facts showing there are genuine issues for trial.” Davis, 869 So.

2d at 401 (citing Richmond, 692 So. 2d at 61). The Musgroves say that a “Mississippi

Highway Patrolman confirmed that a wreck had taken place in the same location earlier in




and mitigation among and between agencies and officials of this state . . . .” Miss. Code Ann.
§ 33-15-2(2) (Rev. 2010).

                                              12
the day on which the Musgrove[s] were injured.”8 But the trooper’s testimony establishes

merely that the Mississippi Highway Safety Patrol had knowledge of the prior accident; it

does not establish that MDOT had knowledge of the prior accident.

¶22.   MDOT’s placement of the limestone material on the road and its failure to warn of

its presence did not constitute willful misconduct. Therefore, MDOT is entitled to MEML

immunity.

       II.    Whether the trial court erred by applying MTCA standards
              instead of the MEML’s willful-misconduct standard.

¶23.   The Musgroves argue that the trial court correctly found that “genuine issues of

material fact exists [sic] concerning [MDOT’s] liability under MTCA, from which it does

not have liability under MEML,” because MDOT’s failure to warn subjected it to liability

under MTCA. We find that the trial court erred by applying the wrong legal standard.

¶24.   It appears the trial court undertook an MTCA analysis without being asked to do so.9

MDOT’s motion for summary judgment was based on the MEML, not the MTCA.10 The trial


       8
        According to the CEMP, the Mississippi Highway Safety Patrol during an
emergency situation assumes the responsibilities of traffic regulation and control. Patrolman
Holmes testified that he had been at the scene of an earlier accident just sixty yards away
from where the Musgroves’ accident occurred.
       9
        The trial court may have applied the Brantley v. City of Horn Lake, 152 So. 3d 1106
(Miss. 2014), standard correctly; but this Court overruled Brantley in Wilcher v. Lincoln
County Board of Supervisors, 243 So. 3d 177 (Miss. 2018), thereby reestablishing the
public-policy function test.
       10
        It is apparent from the MDOT’s motion for summary judgment and the Musgroves’
response in opposition to MDOT’s motion for summary judgment that neither party raised
the MTCA as an issue. In MDOT’s motion for summary judgment, it raised MEML
immunity as a defense and, alternatively, asserted there was no duty owed to the Musgroves.
In the Musgroves’ response, they argued that 1) MEML immunity did not apply because the

                                             13
court mistakenly injected questions based on the MTCA into the discussion. In truth, the

MTCA has nothing to do with this case.

¶25.   The Musgroves are correct that this case bears some similarity to Wilcher v. Lincoln

County Board of Supervisors, in which this Court found the governmental entity was liable

because its actions created the dangerous condition and it failed to warn of the condition it

had created. Wilcher v. Lincoln Cty. Bd. of Supervisors, 243 So. 3d 177, 188 (Miss. 2018).

But Wilcher is distinguishable from the Musgroves’ case because Wilcher did not occur

under emergency circumstances that triggered the MEML. Id. But for this accident’s having

occurred during a declared state of emergency, the Musgroves’ Wilcher argument might have

had merit.

¶26.   The trial court should not have applied the MTCA; its focus should have been on

whether a genuine issue of material fact existed as to whether MDOT’s conduct constituted

willful misconduct.

                                     CONCLUSION

¶27.   The MTCA does not override the MEML’s grant of immunity applicable to

emergency-management situations. The MEML applies to limited subject matter, while the

MTCA covers a multitude of subjects and circumstances. In a qualifying emergency situation

and with no willful misconduct, there is absolute governmental immunity under the MEML.

In such circumstances and in the event of willful misconduct by a state agency, courts should



snow storm was not the type of emergency for which the MEML was created; 2) MDOT’s
actions were willful misconduct; and 3) MDOT owed and breached its duty to maintain state
highways.

                                             14
proceed to determine whether there is immunity under the MTCA. The Musgroves have

failed to provide specific facts, other than mere allegations and denials, to establish that

MDOT voluntarily and intentionally committed misconduct. The trial court erred by applying

MTCA standards before determining whether there was willful misconduct that defeated

MEML immunity. The trial court erred also by failing to determine whether MDOT’s actions

constituted willful misconduct. Thus, this Court reverses the trial court’s denial of MDOT’s

motion for summary judgment. MDOT is immune under the MEML. Accordingly, we

reverse and render.

¶28.   REVERSED AND RENDERED.

    RANDOLPH, C.J., KING, P.J., COLEMAN,                          MAXWELL,         BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




                                            15
