                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2001-CA-01446-SCT

CHARLES L. DONALDSON

v.

COVINGTON COUNTY, MISSISSIPPI


DATE OF JUDGMENT:                                  8/22/2001
TRIAL JUDGE:                                       HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                         COVINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                           ROBIN L. ROBERTS
                                                   EUGENE COURSEY TULLOS
ATTORNEYS FOR APPELLEE:                            ROBERT O. ALLEN
                                                   SALLY BURCHFIELD DOTY
NATURE OF THE CASE:                                CIVIL - PERSONAL INJURY
DISPOSITION:                                       AFFIRMED - 03/27/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        BEFORE PITTMAN, C.J., WALLER AND CARLSON, JJ.

        PITTMAN, CHIEF JUSTICE, FOR THE COURT:


¶1.     Charles L. Donaldson was involved in car accident while driving on old Highway 49, a county-

maintained road, in Covington County. Donaldson sued Covington County under the Mississippi Tort

Claims Act (“MTCA”), Miss. Code Ann. §§ 11-46-1 to -23 (Rev. 2002), alleging that the county knew

the road was unreasonably dangerous and failed to warn motorists of the danger. After a bench trial, the

circuit court entered judgment for the county holding that the county exercised ordinary care in performing

its duty to warn motorists of the curve. Donaldson appeals.

                                                FACTS
¶2.     On a rainy January 12, 1998, Charles L. Donaldson was involved in a one-vehicle accident on the

county-maintained Old Highway 49 (“Highway 49") in Covington County. At the time, Donaldson was

hauling a backhoe using his employer’s van. The stretch of road where the accident occurred presents a

significant curve and a railroad intersection.

¶3.     Donaldson alleged that the county knew of the dangerous road conditions and that the county’s

failure to warn motorists was the proximate cause of his accident. Likewise, he claimed, by failing to warn

motorists of a known hazard, the Board of Supervisors, which is responsible for maintaining county roads,

acted with reckless disregard for his safety. Denying all liability, the county maintained that it satisfied all

requirements of the law and due care.

¶4.     In July 2001, a two-day trial was held in the Circuit Court of Covington County.

¶5.     Donaldson testified that he was traveling at approximately 40 m.p.h with his windshield wipers and

headlights on and, because there was insufficient warnings, the curve surprised him.

¶6.     The accident investigator from the sheriff’s department, Joseph Tuggle, testified that there were

no warnings along the route Donaldson was traveling and that warnings were posted subsequent to

Donaldson’s wreck. Additionally, he testified to his knowledge of other, unreported wrecks at this curve.

¶7.     Donaldson presented John Exnicios as an expert witness in the field of traffic engineering and road

signs. He testified regarding a “ball bank indicator” test, which is used to determine the proper speed that

a curve can be safely negotiated by motorists. After conducting his own test, Exnicios concluded that 25

m.p.h. was the appropriate speed for the curve and that 55 m.p.h – the speed limit at the time of

Donaldson’s wreck– was too high.

¶8.     Further, Exnicios testified that the county failed to satisfy the guidelines provided in the Manual on

Uniform Traffic Control Devices (“MUTCD”) and that the county failed to adequately warn motorists of


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the curve. The MUTCD is published by the Federal Highway Administration (FHWA) and defines the

national standards for the installation and maintenance of traffic control devices on all streets and highways.

The standards of the MUTCD are classified in three categories: advisory, permissive, and mandatory.

Dep’t of Transp. v. Mikell, 493 S.E.2d 219, 222 (Ga. Ct. App. 1997).

¶9.     Because he was not an accidentologist, the court prevented Exnicios from testifying regarding

whether the lack of signs was the proximate cause of the wreck or give his opinion on whether the county

failed to adequately warn motorists.

¶10.    Ultimately, the trial court held that the county exercised ordinary care in the performance of its

placement of warnings. The decision of the trial court failed to mention the MUTCD, but noted that, though

not ideal, the warnings provided by the county were adequate to warn motorists.

                                       STANDARD OF REVIEW

¶11.    A case brought under the Tort Claims Act is tried without a jury. Miss. Code Ann. § 11-46-13.

See also Simpson v. City of Pickens, 761 So.2d 855, 860 (Miss. 2000). A circuit court judge sitting

without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings

will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.

Maldonado v. Kelly, 768 So.2d 906, 908 (Miss. 2000) (citations omitted). This Court reviews

questions of law, including the proper application of the Mississippi Tort Claims Act, de novo. City of

Jackson v. Perry, 764 So.2d 373, 376 (Miss. 2000).

                                                ANALYSIS

        I.       SHOULD THE MANUAL ON UNIFORM TRAFFIC CONTROL
                 DEVICES (“MUTCD”) BE ENFORCED AS THE STANDARD OF
                 CARE?



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¶12.    Donaldson petitions the Court to extend the holding in Jones v. Panola County, 725 So.2d 774

(Miss. 1998), and enforce the MUTCD as the minimum standard of care in the placement of signs. The

county maintains that a strict enforcement of the MUTCD is unworkable and ignores the inherent

particularities of Mississippi roadways. The county notes the utility of the MUTCD; however, it argues that

ultimately it is the people charged with maintaining roadways who are best suited to determine the

necessary signs.

¶13.    Mississippi law requires the Commissioner of Public Safety to adopt a manual for uniform traffic

control, which must generally conform with the system approved by the American Association of State

HighwayOfficials (“AASHTO”). Miss. Code Ann. § 63-3-301 (Rev. 1996).1 Local authorities may place

and maintain traffic control devices as they deem necessary; however, the devices shall conform to the state

manual. Id. § 63-3-305.2

¶14.     Interpreting § 63-3-305, the Attorney General concluded that local authorities have a duty to

determine the necessity of traffic control devices and post signs thereto conforming with state law. Miss.


        1
              The commissioner of public safety shall adopt a manual and specifications
             for a uniform system of traffic-control devices consistent with the
             provisions of this chapter for use upon highways within this state. Such
             uniform system shall correlate with and so far as possible conform to the
             system then current as approved by the American Association of State
             Highway Officials.
Miss. Code Ann. § 63-3-301 (Rev. 1996).
        2
             Local authorities in their respective jurisdictions shall place and maintain
             such traffic control devices upon highways under their jurisdiction as they
             may deem necessary to indicate and to carry out the provisions of this
             chapter or provisions of local traffic ordinances or to regulate, warn, or
             guide traffic. All such traffic-control devices hereafter erected shall
             conform to the state manual and specifications. Local authorities in
             exercising those functions referred to in the preceding paragraph shall be
             subject to the direction and control of the state highway commission.
Miss. Code Ann. § 63-3-305 (Rev. 1996).

                                                     4
Att’y Gen. Opinion No. 2000-0565 (Sept. 29, 2000). However, to ensure uniformity, all such devices

must meet the specifications set forth in the manual. Id.

¶15.    This Court has considered the relationship between MUTCD and the standard of care and held

that the MUTCD was admissible as nonconclusive proof of the standard of care. Jones v. Panola

County, 725 So.2d 774 (Miss. 1998). See also Leflore County v. Givens, 754 So.2d 1223 (Miss.

2000) . In Panola County, the plaintiff sued the county after his vehicle struck a gravel pile that was used

to mark an out of service bridge. 725 So.2d at 775. The plaintiff appealed the decision of the trial court

prohibiting him from offering the MUTCD as evidence of the applicable standard of care in the placement

of warnings. Id. at 777. Reversing and remanding, this Court held that “the relevant MUTCD provisions

may properly be considered by a jury as evidence of negligence, albeit not as conclusive evidence thereof.”

Id. at 778 (footnote omitted). This Court stressed that a verdict favoring the plaintiff based solely on the

MUTCD guidelines would be improper. Id. at 778-79.

¶16.    In an unrelated case, we held that both counties and the Department of Transportation have a duty

to warn motorists of a known dangerous condition. Jones v. Miss. Dep’t of Transp., 744 So.2d 256,

258 (Miss. 1999). The case arose after the county reopened a road but failed to place a stop sign where

the road intersected with another forming a “T” intersection. Id. at 258. In the decision, we recognized

that, although Mississippi had not formally adopted a manual, the MUTCD was the manual to be used in

conformity with the statutes. Id. at 262 (citing Jones v. Panola County, 725 So.2d at 777-78).

¶17.    The Court finds that there is no majority view regarding the MUTCD. E.g., Donaldson v. Dep’t

of Transp., 511 S.E.2d 210 (Ga. Ct. App. 1999)(since the MUTCD was not published by authority by

the Secretary of State as state adopted regulations, it does not have the force of law); Brockie v. Omo



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Constr.., Inc., 944 P.2d 61(Mont. 1992) (violation of MUTCD is not negligence per se but evidence of

negligence); Fisher v. State, 702 N.Y.S.2d 418 (N.Y. App. Div. 2000)(MUTCD sets forth the

standards for evaluating the reasonableness of the State’s placement of road markings); Patton v.

Cleveland, 641 N.E. 2d 1126 (Ohio Ct. App. 1994) (failure to meet requirements of MUTCD to post

construction approach signs was negligence per se, not some evidence of negligence); City of Mission

v. Cantu, 89 S.W.3d 795 (Tex. App. 2002) (violations of the MUTCD are not negligence per se, as

compliance with the MUTCD is not mandatory).

¶18.    Donaldson cites Schaeffer v. Kansas Dep’t of Transp., 608 P.2d 1309 (Kan. 1980). In

Schaeffer, a woman sued the Kansas Department of Transportation (“KDOT”) alleging that, because

there was an inadequate warning regarding the curve, there was a street defect, which led to her husband’s

inability to safely negotiate a curve. Id. at 1312. Quoting the opinion from the Kansas Supreme Court,

which affirmed a decision holding the DOT 49% responsible to Schaeffer 51%, Donaldson argues:

        [It] appears obvious that both [statute and MUTCD] vest in the DOT the discretion and
        obligation to maintain adequate warning signs if, in fact, a hazard does exist. In our
        opinion the manual merely establishes minimum, not maximum, standards
        for safety. To hold otherwise would place form over substance and would negate the
        actual objectives of the statutes and manual of effecting uniform traffic control with a
        maximum amount of protection
        for the motoring public.

Id. at 1316 (emphasis added). Upon review, we find Schaeffer unpersuasive.

¶19.    Schaeffer was based on a since repealed statute that allowed a party to sue state entities based

on a highway defect, in contrast to a suit based on common law negligence. Schmeck v. City of

Shawnee, 651 P.2d 585 (Kan. 1982). Because the standard of liability differs between an action based

on statutory liability for a highway defect and one based on common law negligence, the law pertaining


                                                    6
statutory highway defects does not apply to an action based upon common law negligence theory.

Schmeck, 651 P.2d at 594-95. Therefore, Donaldson’s reliance on Schaeffer is misplaced.

¶20.    Likewise, the MUTCD lends no support to Donaldson’s argument. The manual states that it

“describes the application of control devices, but shall not be the legal requirement for the installation.”

Manual of Uniform Traffic Control Devices § 1A.09 (Millennium Ed. with Revision No. 1 changes Dec.

28, 2001). The “decision to use a particular device at a particular location should be made on the basis

of either an engineering study or the application of engineering judgement.” Id. The manual should not be

considered a substitute for engineering judgment. Id.

¶21.    The Court declines to extend the holding in Jones v. Panola County or to more strictly enforce

the provisions of the MUTCD. Previously, this Court has considered this issue and is not compelled to

expand its prior holdings. Our decision is based on Donaldson’s failure to cite other jurisdictions that

employ the approach he urges the Court to adopt and the aforementioned provisions of the MUTCD.

¶22.    To rule as Donaldson urges would substitute the MUTCD for engineering judgment. This Court

declines to hold that the MUTCD is only factor in determining whether the county exercised ordinary care.

Thus, this issue is without merit.

        II.      DID THE TRIAL COURT ERRONEOUSLY                                    LIMIT THE
                 TESTIMONY OF THE PLAINTIFF’S EXPERT?

¶23.    Donaldson argues that the trial judge improperly limited the testimony of his expert, John Exnicios.

In addition to other testimony, Exnicios, a traffic engineer, was prepared to testify regarding the issues of

adequate warning and causation. However, the trial judge determined that testimony regarding warning

and causation required a witness trained in accident reconstruction and, therefore, limited the testimony by

Exnicios. Donaldson alleges that this was a reversible error.



                                                     7
¶24.    Questioned whether a lack of road markings would make the curve hazardous, Exnicios testified

affirmatively and stated that the lack of markings would be one of the proximate causes of the accident.

Objecting, the county argued that Exnicios was not qualified to answer the question. The trial court agreed

and ruled that this line of questioning required an accidentologist. The ensuing dialogue occurred, with

Roberts for Donaldson and Allen for the county:

        ROBERTS:        Assume... for a moment that Mr. Donaldson was traveling between 45
                        and 50 miles per hour north on Highway 49, that the weather conditions
                        were or had been wet and he was driving a passenger van pulling a trailer
                        with a backhoe and that as he drove north on the highway there were no
                        signs marking this particular curve. Is it your opinion that there would
                        have been a failure to adequately warn the driver on the part of the county
                        in this situation?

        EXNICIOS:        In my opinion, this curve required a signage. It was not an apparent
                        curve to a motorist that wasn’t aware of the curve. So, my opinion is that
                        the signs should have been there, and they should be required because of
                        the differences in speed [between] the legal limit on the approached road
                        and then the tight curve which required a reduction in speed of some 30
                        miles an hour. So, I believe the signs were necessary.

        ROBERTS:        And would that constitute a lack of warning was the other part of my
                        question?

        ALLEN:          Your Honor, I’m going to object to that. That calls again for [a]
                        conclusion as an accidentologist. In his expertise, he’s given his opinion
                        as to whether the signs should be there..., and I think he’s trying to take
                        it too far.

        ROBERTS:         Your Honor, if I may, he’s addressing warning here and that is his...

        COURT:          Well, I think he can testify as to whether or not the absence of signs
                        complies with the MUTCD standards.

        ROBERTS:        MUTCD.

        COURT:           Yeah.

        EXNICIOS:       Is that the question? Excuse me.


                                                    8
        ROBERTS:          Well, let me make sure I understand the court’s ruling. Your Honor, are
                          you saying that it would be improper for him to testify about the failure on
                          the part of the county make a warning in his opinion?

        COURT:            Yeah, because that’s a legal question. Ordinary care is a legal question.

        ROBERTS:          Okay.

        COURT:            Of course, the facts determine whether or not the legal issue is met too...
                          I don’t think it’s proper to ask him is the failure to have signs a lack of
                          ordinary care. I think that’s a legal question.

                          He can testify as to what the signs would accomplish as to how they
                          would affect drivers and what the absence of signs would accomplish with
                          regard to the effect on drivers, et cetera.

¶25.    M.R.E. 702 provides:

        If scientific, technical, or other specialized knowledge will assist the trier of fact to
        understand the evidence or to determine a fact in issue, a witness qualified as an expert by
        knowledge, skill, experience, training, or education, may testify thereto in the form of an
        opinion or otherwise.

Accordingly, Exnicios should have been allowed to testify whether the curve required signs, whether the

warnings complied with the MUTCD, and whether the county failed to provide adequate warnings.

¶26.    M.R.E. 704 provides:

        Testimony in the form of an opinion or inference otherwise admissible is not objectionable
        because it embraces an ultimate issue to be decided by the trier of fact.

Generally, Rule 704 requires that opinions, before being admissible, satisfy the Rule 701 and 702, in that

“they must be helpful to a determination of the case.” M.R.E. 704 cmt.

¶27.    The trial judge incorrectly stated that ordinary care is a legal question. The standard of care is a

question of fact reserved for the trier of fact. See Stewart ex. rel Womack v. City of Jackson, 804

So.2d 1041, 1049 (Miss. 2002) (the issue of ordinary care is a fact question; the question of whether

ordinary care was, in fact, exercised is for the trial court, sitting without a jury, to decide). Despite the error,

                                                         9
the trial judge did include his analysis of ordinary care in the Findings of Fact. This Court concludes that,

ultimately, the trial judge properly considered ordinary care as a factual issue.

¶28.    Despite these objections, Exnicios was allowed to testify to extensively. The record reflects that

the trial judge was fully advised as to the opinions of Exnicios. It is unlikely that the excluded testimony

would have been a major factor on the decision of the trial court. The exclusion of such testimony does

not constitute a reversible error nor would it have changed the findings of the trial court. Therefore, the trial

judge did not abuse his discretion.

        III.     WERE THE FINDINGS OF THE TRIAL COURT BASED ON
                 SUFFICIENT EVIDENCE?

¶29.    Next, Donaldson appeals alleging that there was insufficient evidence to support the trial court’s

findings. He claims that the findings were based on an improper application of the MUTCD and a failure

to properly consider the credibility and persuasiveness of his witnesses. Because it failed to specifically refer

to the MUTCD in its findings, he argues that the trial court failed to apply the proper standard of care and

must be reversed.

¶30.    For support, Donaldson emphasizes the testimony from several witnesses. First, the testimony from

county supervisor Mason Trigg who admitted the placement of signs was generally determined by personal

observation rather than according to the MUTCD. Second, Donaldson focuses on the testimony from the

accident investigator and a resident who resides near the curve. Both of these witnesses testified that

numerous wrecks had occurred on that same stretch of road and that it was generally known to be

dangerous.

¶31.    Again, Donaldson emphasizes the testimony of Exnicios and the fact that he was the the only expert

to testify regarding the applicable standard of care. Exnicios’s opinion was that even if the court adopted



                                                      10
the position of the county, the warnings provided motorists were inadequate.3 In his opinion, the

inadequacy resided in the fact that the warnings failed to account for the severity of the turn. Despite

Exnicios’s testimony, there was sufficient evidence to support the findings of the trial court.

¶32.    The county presented several witness regarding the warnings posted at the time of the accident.

Both a current and former county supervisor and several county road workers testified regarding signs

present the day of the wreck. This was in addition to the testimony from the State Aid Engineer regarding

installation of other warnings that he supervised.4 Thus, Donaldson’s argument shifts to one of credibility

rather than the sufficiency of the evidence.

¶33.    Alternatively, the county argues that regardless of whether it breached its duty of ordinary care,

there was substantial evidence that the breach was not the proximate cause of the accident. This includes:

evidence regarding Donaldson’s failure to take adequate caution under the road conditions, especially

considering the load he was hauling; testimony from several witnesses who stated that just prior to the

wreck, they noticed that he was in a hurry and specifically warned him to be cautious; and testimony from

Chester King, who found Donaldson after the wreck, that only moments before Donaldson had passed him

from behind at a high rate of speed.

¶34.    When a trial judge sits without a jury, an appellate court must review the record and accept all

evidence that would reasonably support the judgment, together with any reasonable inferences that could

be drawn from the evidence. Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss. 1994). This Court

must let stand trial judge's findings of evidentiary or ultimate fact when substantial evidence in the record


        3
        According to the county, at the time of the accident there was a “standard curve sign” (without
warning motorists to reduce speed), a “slippery when wet sign,” and a railroad crossing sign.
        4
         The Mississippi Department of Transportation provides State Aid engineers for counties that are
without a county engineer.

                                                     11
supports those findings, or when findings are not clearly erroneous. Crowe v. Smith, 603 So.2d 301, 304

(Miss. 1992).

¶35.    This Court determines that the findings of the trial court were based on sufficient evidence. Both

parties presented conflicting evidence regarding the presence of warnings and had several witness testify

in support of their arguments. Because it observes the witnesses first hand, the trial court is in the best

position to assess the persuasiveness of a witness and to decide what weight to afford that witness's

testimony. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss. 2000).

¶36.    Donaldson requests that this Court reverse the trial court based on its failure to expressly refer to

the MUTCD in its findings and based on the testimony of Exnicios. Failure to refer to the MUTCD does

not rise to the level of a reversible error, and because there was considerable evidence and testimony

rebutting Donaldson’s claims, this Court is unable to find that the decision of the trial court was clearly

erroneous.

        IV.      DOES THE MTCA VIOLATE PLAINTIFF’S RIGHT TO A JURY
                 TRIAL?

¶37.    Mississippi Tort Claims Act cases are tried without a jury. Miss. Code Ann. § 11-46-13(1).

Donaldson alleges that the MTCA denies his right to a jury trial provided by the state constitution, which

provides in part: “[that] the right to trial by jury shall remain inviolate.” Miss. Const. art. 3, § 31.

¶38.    Because Donaldson failed to raise this issue with the trial court or to give notice to the Attorney

General, this issue is procedurally barred. When the constitutionality of a statute is challenged notice must

be given to the Attorney General. Miss. R. Civ. P. 24(d); M.R.A.P. 44(a). See also Barnes v.

Singing River Hosp. Sys., 733 So.2d 199, 202-03 (Miss. 1999). Further, except in unusual

circumstances, this Court should not consider any matter which has not first been presented to and decided


                                                      12
by the trial court. Id. at 202. “The law is well settled that the constitutionality of a statute will not be

considered unless the point is specifically pled.” Id. The failure to raise the issue at trial and to notify the

Attorney General renders the issue procedurally barred.

                                             CONCLUSION

¶39.    For these reasons, the judgment of the Covington County Circuit Court is affirmed.

¶40.    AFFIRMED.

      SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. DIAZ,
J., CONCURS IN RESULT ONLY. McRAE, P.J., AND EASLEY, J., DISSENT WITHOUT
SEPARATE WRITTEN OPINION.




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