                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2013-CT-00258-SCT

TERRY H. LOGAN, SR. AND BEVERLY W.
LOGAN

v.

MISSISSIPPI DEPARTMENT OF
TRANSPORTATION AND MISSISSIPPI
TRANSPORTATION COMMISSION

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         09/19/2012
TRIAL JUDGE:                              HON. JAMES McCLURE, III
TRIAL COURT ATTORNEYS:                    CHARLES J. SWAYZE, III
                                          ROBERT J. DAMBRINO, II
COURT FROM WHICH APPEALED:                TALLAHATCHIE COUNTY CIRCUIT
                                          COURT
ATTORNEYS FOR APPELLANTS:                 CHARLES JONES SWAYZE, III
                                          CHARLES J. SWAYZE, JR.
ATTORNEY FOR APPELLEES:                   ROBERT J. DAMBRINO, III
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED IN PART, REVERSED IN PART,
                                          AND REMANDED - 09/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      CHANDLER, JUSTICE, FOR THE COURT:

¶1.   This certiorari appeal arises from a negligence suit filed by Terry and Beverly Logan

against the Mississippi Department of Transportation (MDOT) and the Mississippi

Transportation Commission (MTC). The suit arose out of a single-car accident that allegedly

occurred due to an improperly performed bridge repair. The Court of Appeals affirmed in
part and reversed in part and remanded the trial court’s grant of summary judgment to the

defendants under the Mississippi Tort Claims Act (MTCA). We granted certiorari review.

Our opinion today corrects the Court of Appeals’ treatment of an affidavit that contained an

alleged admission of a party opponent under Mississippi Rule of Evidence 801(d)(2).

                        FACTS AND PROCEEDINGS BELOW

¶2.    On March 12, 2011, the Logans were traveling south on Highway 49 in Tallahatchie

County when they drove over a bridge that recently had undergone repairs. Both lanes were

open, and no warning signs were present indicating ongoing repairs or a dangerous condition.

Two protruding crisscrossed metal plates caught the undercarriage of their car, causing the

car to spin out of control and to come to rest facing south in the northbound lane. The

Logans’ daughter-in-law, Mauri Logan, arrived at the scene shortly after the accident

occurred. The Logans suffered injuries and were transported to a local hospital by

ambulance. According to Mauri Logan, she spoke to two MDOT employees at the scene who

both informed her that MDOT had received a phone call earlier in the day informing them

about bent metal plates on the bridge. She stated that the MDOT employees had advised her

to take pictures of both the bent plates and another set of plates on the bridge that were not

dislodged. She took photographs, which are part of the record on appeal.

¶3.    According to MDOT, flat metal plates routinely are bolted to bridge decks during

structural repairs temporarily to cover fresh concrete while the concrete cures, with the bolt

head and steel plate not extending more than two inches above the bridge deck. The Logans

allege that these particular metal plates were not properly attached to the bridge, had bent



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upward and were projecting dangerously above the road surface. The deposition testimony

of a bridge crew superintendent for MTC indicated that the steel plates should not be

positioned in a cross shape and that the smaller plate was to be placed on top of the larger

plate. The photos taken by Mauri Logan indicate that, for the plates the Logans ran over, the

larger plate was placed on top of (and hung slightly over) the smaller plate, and the plates

were in a cross shape. The Logans filed suit against MDOT and MTC, asserting negligent

bridge repairs and failure to warn of a dangerous condition.

¶4.    The defendants moved for summary judgment, asserting immunity under multiple

provisions of the Mississippi Tort Claims Act. In light of the defendants’ motion for

summary judgment, the Logans submitted an affidavit from Mauri Logan, whom they

intended to use as a key witness at trial. Her affidavit asserted in part:

       I saw two employees of Mississippi Department of Transportation at the scene.
       I spoke with one of those gentlemen . . . told me that MDOT had received a
       phone call earlier in the day of March 12, 2011, regarding the dangerous metal
       plates sticking up on the bridge. . . . The MDOT employee advised me to take
       photographs of the dangerous metal plates. I did. He also recommended that
       I take pictures of metal plates that were on the bridge but not dislodged. I did.
       I took the photos attached to this Affidavit as cumulative Exhibit “A” on
       March 12, 2011. . . . The second employee from MDOT confirmed that MDOT
       received a telephone call early in the day regarding the dangerous metal plates
       on the highway.

¶5.    The trial court granted summary judgment to the defendants, finding that the

maintenance of the bridge is a discretionary function under Mississippi Code Section 11-46-

9(1)(d) and that the defendants therefore were entitled to immunity. Regarding the Logans’

failure-to-warn claim, the court stated that “there is no basis in fact to infer that either MDOT

or MTC knew or should have known that the repair itself was dangerous, or that they knew

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or should have know that some instrumentality had damaged the bridge repair and thereby

created a dangerous condition.” The court found it unnecessary to perform a detailed

immunity analysis as to the failure-to-warn claim and stated that, even if the bridge repair

“presented a dangerous condition, known by these defendants, against which they did not

warn the public, nevertheless [the defendants] are completely immune by virtue of

Mississippi Code Annotated [section] 11-46-9(1)(d),” referring to a finding of immunity for

the alleged negligent bridge repair.

¶6.    The Court of Appeals reversed the trial court’s grant of summary judgment on the

failure-to-maintain claim, finding that road maintenance is a ministerial function and does

not provide the defendants governmental discretionary function immunity under Section 11-

46-9(1)(d). Terry H. Logan, Sr. and Beverly W. Logan v. Miss. Dep’t of Transp. and Miss.

Transp. Comm’n, No. 2013-CA-00258, 2014 WL 4413437 (Miss. Ct. App. Sept. 9, 2014).

The Court of Appeals pointed to this Court’s evolving approach to the question in

Mississippi Transportation Commission v. Montgomery, 80 So. 3d 789 (Miss. 2012), and

Little v. Mississippi Department of Transportation, 129 So. 3d 132 (Miss. 2014). Id. at *3.

¶7.    However, the Court of Appeals affirmed the grant of summary judgment to the

defendants on the failure-to-warn claim. It found that “a detailed discussion concerning the

[defendants’] immunity . . . is unnecessary since there is no triable issue of fact presented as

to whether the [defendants] had notice of the ‘dangerous condition,’ and there is nothing to

support the Logans’ claim on the failure to warn.” Logan v. Miss. Dep’t of Transp., 2014

WL 4413437, at *7. Opining that Mauri Logan’s affidavit is inadmissible to create an issue



                                               4
of fact, the opinion states that “there is nothing to demonstrate that the workers, who

allegedly spoke to Mauri [Logan], were authorized to make the statement concerning a matter

within the scope of their employment with MDOT.” Id. at *6.

¶8.    Both parties filed petitions for certiorari review. The defendants petitioned the Court

of Appeals’ reversal of summary judgment on the failure-to-maintain claim, and the Logans

petitioned the Court of Appeals’ affirmation of summary judgment as to their failure-to-warn

claim. We denied the defendants’ petition and granted the Logans’ petition regarding failure

to warn.

                                        DISCUSSION

¶9.    We review grants of summary judgment de novo. Miss. Transp. Comm’n v.

Montgomery, 80 So. 3d 789, 794 (Miss. 2012). Summary judgment is properly granted

where “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.” M.R.C.P. 56(c). To survive

summary judgment, the nonmoving party must produce specific facts showing that there is

a genuine material issue for trial. Gorton v. Rance, 52 So. 3d 351, 354 (Miss. 2011).

Mississippi Rule of Civil Procedure 56(c) permits the party adverse to summary judgment

to serve opposing affidavits prior to the summary judgment hearing. Rule 56(e) requires that

“[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively that the affiant

is competent to testify to the matter stated therein.” M.R.C.P. 56(e).



                                               5
       WHETHER THE COURT OF APPEALS ERRED IN TREATING
       MAURI LOGAN’S AFFIDAVIT AS INADMISSIBLE.

¶10.   The Logans argue that the Court of Appeals erred in finding that they had not

produced specific facts creating a genuine material fact for trial. They argue that Mauri

Logan’s affidavit testimony demonstrates the defendants’ alleged knowledge of the

dangerous condition. We agree with the Logans that the Court of Appeals erred by treating

Mauri Logan’s affidavit as inadmissible hearsay. Mississippi Rule of Evidence 801(d)(2)(D)

provides that a statement is not hearsay if the statement is offered against a party and is “a

statement by the party’s agent or servant concerning a matter within the scope of the agency

or employment, made during the existence of the relationship . . . . ” The Logans correctly

point out that Rule 801(d)(2) does not require the employees of the defendant to be

authorized to make the alleged statements for them to be admissible. We already have

addressed a similar scenario regarding party statements in Jones et al. v. Fluor Daniels

Servs. Corp., 959 So. 2d 1044 (Miss. 2007). In Jones, the plaintiff’s work supervisor

directed numerous racial slurs at the plaintiffs. Id. at 1045. The plaintiffs testified that the

supervisor said that “someone” in Fluor Daniels’ main office had told him to make racial

comments towards the plaintiffs. Id. This Court rejected Fluor Daniels’ argument that there

was no admissible evidence of vicarious liability against it for the racial comments made by

the supervisor, saying:

       However, the plaintiffs claim that, immediately after making the comment,
       [the supervisor] said that someone in the main office had told him to make the
       statement. Fluor Daniel argues that [the supervisor’s] statement is hearsay and
       would not be admissible at trial. However, we find that [the supervisor’s]
       statement would be admissible under M.R.E. 801(d)(2)(D) as an admission by


                                               6
       a party opponent. Therefore, viewing this evidence in the light most favorable
       to the plaintiffs, as we must, we find evidence sufficient to defeat a motion for
       summary judgment.

Id. at 1049.

¶11.   Here, similar to Jones, and viewing the evidence in the light most favorable to the

Logans, the MDOT employees’ alleged statements to Mauri Logan are admissible under Rule

801(d)(2)(D) as an admission by a party opponent. The Court of Appeals erroneously treated

Mauri Logan’s affidavit as inadmissible when finding that the plaintiffs failed to demonstrate

the existence of a genuine dispute of material fact.1

¶12.   Aside from finding that “there is no basis in fact to infer that either MDOT or MTC

knew or should have known that . . . some instrumentality had damaged the bridge repair and

thereby created a dangerous condition,” the trial court did not proceed to perform a detailed

immunity analysis of the Logan’s failure-to-warn claim.2 We find that the appropriate

disposition is to remand the case for the trial court to perform a detailed summary-judgment

analysis consistent with this Court’s precedent. See Brantley v. Horn Lake, 152 So. 3d 1106

(Miss. 2014).



       1
          We note that the trial court treated the affidavit as admissible for summary judgment
purposes and is entitled to deference on such evidentiary determinations. Indem. Ins. Co. of
N. Am. v. Guidant Ins., 99 So. 3d 142, 155 (Miss. 2012). A review of the transcript of the
summary judgment hearing shows the trial court declined the defendant’s ore tenus motion
to strike the affidavit and proceeded to operate explicitly under the assumption that the two
men in Mauri’s statements were employees acting in the scope of their duty, thus satisfying
Mississippi Rule of Evidence 801(d)(2).
       2
        The court found such analysis unnecessary due to its finding (subsequently reversed
by the Court of Appeals) that the defendants were entitled to immunity for alleged negligent
bridge repairs.

                                              7
                                     CONCLUSION

¶13.   The trial court and Court of Appeals erred in concluding that no disputed fact exists

regarding the Logan’s failure-to-warn claim. We reverse the judgment and remand the case

for the trial court to perform a more detailed summary-judgment immunity analysis of the

Logan’s failure-to-warn claim consistent with this opinion.

¶14.   AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

    WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, PIERCE,
KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., NOT
PARTICIPATING.




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