                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2018-CA-01544-SCT

RHONDA J. SMITH

v.

MISSISSIPPI TRANSPORTATION COMMISSION


DATE OF JUDGMENT:                           09/28/2018
TRIAL JUDGE:                                HON. STANLEY ALEX SOREY
TRIAL COURT ATTORNEYS:                      THOMAS L. TULLOS
                                            MARK D. MORRISON
COURT FROM WHICH APPEALED:                  SMITH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     THOMAS L. TULLOS
ATTORNEY FOR APPELLEE:                      MARK D. MORRISON
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
DISPOSITION:                                AFFIRMED IN PART; REVERSED AND
                                            REMANDED IN PART - 03/19/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.

       RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Rhonda Smith appeals the Smith County Circuit Court’s grant of summary judgment

to the Mississippi Transportation Commission (MTC). The MTC argued that Smith’s claims

were preempted by the MTC’s discretionary-function immunity under Mississippi Code

Section 11–46–9(1)(d) (Rev. 2015). As the Court of Appeals noted recently, “the precedent

governing that question has evolved even during the pendency of this case . . . .” Bailey v.

City of Pearl, 282 So. 3d 669, 671(Miss. Ct. App. 2019). In Bailey, our Court of Appeals

correctly applied the public-policy function test articulated in the recent decision Wilcher v.
Lincoln County Board of Supervisors, 243 So. 3d 177 (Miss. 2018). Similar to Bailey, in

the case sub judice, not all of Smith’s theories of recovery are disposed of by summary

judgment. As in Wilcher and Bailey, issues of material fact remain regarding the MTC’s

liability, vel non. The Smith County Circuit Court’s grant of summary judgment is affirmed

to the extent Smith’s claims are grounded in the MTC’s decision-making processes, but it is

reversed concerning Smith’s claims unrelated to the MTC’s decision-making processes.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On the morning of April 12, 2010, Smith collided with a loaded logging truck. The

truck was driven by Shelby Colson on Highway 28 in Smith County. Colson testified that he

began slowing his vehicle because Joe Blackwell, an MTC employee, approached the truck

from the side of the highway. He said Blackwell approached from under a tree canopy

carrying a stop sign.

¶3.    Colson further said he had not seen any warning signs indicating that road work was

occurring ahead or that he needed to slow his vehicle down before spotting Blackwell.

Colson said Blackwell made no effort to wave the sign or to get his attention. He stopped

because he was unsure what Blackwell was doing. The MTC disputes multiple aspects of

Colson’s testimony regarding Blackwell’s location and actions. The MTC’s version has

Blackwell standing within inches of the fog line and actively directing traffic.

¶4.    Regardless of what prompted Colson to stop, Smith’s car rear ended Colson’s truck.

Smith has no recollection of most of the events that occurred that morning. In June 2011, she


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brought suit against the MTC. The suit alleged that both Blackwell and the MTC were

negligent in Blackwell’s posting, the sign placement, as well as Blackwell’s signaling.

¶5.    During the pendency of this case, this Court utilized differing tests to determine

discretionary-function immunity in Mississippi. In 2014, a special judge denied the MTC’s

motion for summary judgment based on discretionary-function immunity, citing Little v.

Mississippi Department of Transportation, 129 So. 3d 132 (Miss. 2013). Following

discovery, the MTC renewed its motion for summary judgment. The parties prepared briefs

addressing Little, then were directed to supplement their briefs after Brantley v. City of Horn

Lake, 152 So. 3d 1106, 1112 (Miss. 2014), overruled by Wilcher, 243 So. 3d 177, was

handed down. For reasons unrelated to today’s controversy, the special judge’s appointment

was vacated in 2017. After Judge Stanley Sorey began presiding in November 2017, the

parties addressed Wilcher in additional briefs. Smith now appeals the ruling granting the

MTC’s motion for summary judgment.

                                STANDARD OF REVIEW

¶6.    This Court reviews both challenges of grants of summary judgment and defenses of

discretionary-function immunity de novo. Miss. Transp. Comm’n v. Montgomery, 80 So.

3d 789, 794 (Miss. 2012) (citing Patterson v. Tibbs, 60 So. 3d 742, 753 (Miss. 2011)),

overruled by Brantley, 152 So. 3d 1106. A motion for summary judgment is appropriate

when there is no genuine issue of material fact and the movant is entitled to judgment as a

matter of law. Miss. R. Civ. P. 56(c).


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                                  ISSUES ON APPEAL

¶7.    The issues on appeal follow:

       I.     Are decisions by the MTC regarding placement of traffic-control
              devices discretionary?

       II.    Does Smith’s allegation that Blackwell was negligent for failing to do
              his job implicate discretionary-function immunity?

                                       ANALYSIS

       I.     Are decisions by the MTC regarding placement of traffic-control
              devices discretionary?

¶8.    To determine if actions are covered by discretionary-function immunity, we apply the

public-policy function test resurrected in Wilcher. Wilcher, 243 So. 3d at 187 (citing

Montgomery, 80 So. 3d at 795). It has two prongs: first, whether the alleged wrongful act

involves an element of choice or judgment and, if so, then, second, whether the choice or

judgment had a bearing on public policy. Id. Decisions that bear on public policy are

decisions made by individuals charged with responsibility for making those decisions that

consider economic, political, or social grounds. Wilcher, 243 So. 3d at 182 (citing United

States v. Gaubert, 499 U.S. 315, 335, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991)). The

purpose of this test is to discern between actual policy decisions of government made by

policymakers versus simple acts of negligence by government employees or agents. Wilcher,

243 So. 3d at 188 (quoting Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So. 3d 68, 76

(Miss. 2012) (Waller, C.J., dissenting)).

¶9.    The duty to place and maintain traffic-control devices, as the MTC characterizes the

                                            4
wrongful action here, has long been covered by discretionary-function immunity, as this

Court acknowledged in Wilcher. Wilcher, 243 So. 3d at 187–88. Smith’s argument to the

contrary is unavailing. The MTC’s duty to place and maintain traffic-control devices is set

forth in Mississippi Code Section 63–3–303. That statute provides that traffic-control devices

shall be placed and maintained as deemed necessary by the relevant entities. Miss. Code Ann.

§ 63–3–303 (Miss. 2013). As we stated in Wilcher, and even earlier in Jones v. Mississippi

Department of Transportation, 744 So. 2d 256 (Miss. 1999), the statute’s assignment of

authority clearly meets the first prong of the test because it is phrased as a choice or decision.

We further reiterate that “installing warning lights or signs at dangerous intersections” and

other instances of installation of traffic-control devices do carry with them economic,

political, or social concerns. Wilcher, 243 So. 3d at 187. Therefore, any claims Smith brings

that the MTC through its policymakers erred in its decision regarding placement of traffic-

control devices are ineffective because the MTC can invoke discretionary-function immunity.

Summary judgment on those issues, therefore, is affirmed.

       II.     Does Smith’s allegation that Blackwell was negligent for failing to
               do his job implicate discretionary-function immunity?

¶10.   But Smith does not only allege the MTC incorrectly determined placement of traffic-

control devices. Separately, Smith argues that Blackwell was negligent for failing to signal

the traveling public at all. Smith argues that Blackwell breached a duty to act as a reasonably

prudent person would in the situation and that this breach was the proximate cause of her

injuries. Here, she does not challenge the MTC’s discretion to place traffic-control devices

                                                5
in certain areas or not. Rather, she challenges the conduct of Blackwell, the flagman, and

argues that the MTC is vicariously liable for his negligence. Just as in Wilcher and Jones,

we hold that such a claim clearly falls outside the ambit of placement of traffic-control

devices contemplated in Section 63–3–303. Therefore, we engage in a separate analysis to

determine if this action is subject to discretionary-function immunity.

¶11.   Blackwell’s alleged failure to perform his assigned duty to warn the traveling public

was a decision or choice, just as state employees can choose to run over manhole covers with

lawnmowers, Crum v. City of Corinth, 183 So. 3d 847, 853–54 (Miss. 2016) (Randolph, P.J.,

concurring in result only), choose to place just two strips of non-stick tape on a step, Pratt,

97 So. 3d at 76 (Waller, C.J., dissenting), or choose not to put up a sign warning of a large

hole in the middle of a road, Wilcher, 243 So. 3d at 188. Just like those actions, it is alleged

that Blackwell elected to stand in the shade next to a pickup truck and not to perform the job

he was placed in the field to do. If that is true, the defendants are not entitled to immunity

protection. This conduct, if true, was not made by a policymaker considering social,

economic, or political concerns. This allegation, if proved, does not fall within the ambit of

discretionary-function immunity.

¶12.   But even if Smith successfully navigates around discretionary-function immunity, that

alone is not enough to insure recovery. The MTC avers that by following too closely behind

the logging truck, Smith was herself the sole cause of her damages. The proximate cause of

Smith’s injuries is a disputed question of material fact, as Smith asserts that it is the MTC’s


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derivative negligence that is to blame. Both parties have produced substantial evidence to

support claims of the other’s negligence, but it is the exclusive province of the finder of fact,

not this Court, to discern the proximate cause of an accident and assess relative fault. Spann

v. Shuqualak Lumber Co., 990 So. 2d 186, 190 (Miss. 2008). Given that there are multiple

disputes of material fact relating to this case, we reverse the decision of the Smith County

Circuit Court and remand this case for further proceedings.

                                       CONCLUSION

¶13.   The MTC is entitled to immunity protection for its decisions regarding placement of

traffic-control devices. Smith’s allegation of Blackwell’s failure to perform his job, however,

does not fall under the umbrella of public-policy protection provided in discretionary-

function immunity. Therefore we affirm in part and reverse and remand in part the grant of

summary judgment in favor of the MTC.

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

    KITCHENS AND KING, P.JJ., MAXWELL, BEAM, CHAMBERLIN, ISHEE
AND GRIFFIS, JJ., CONCUR. COLEMAN, J., CONCURS WITH SEPARATE
WRITTEN OPINION JOINED BY RANDOLPH, C.J., MAXWELL, CHAMBERLIN
AND GRIFFIS, JJ.

       COLEMAN, JUSTICE, CONCURRING:

¶15.   Over the years, we have lost the original meaning of the two-part public function test.

As a result, we have issued a wide-ranging net of opinions that fail to offer judges and

lawyers practicing in Mississippi a reliable and understandable explanation of the meaning

of the phrase discretionary function.        An examination of the historical context of

                                               7
Mississippi’s Tort Claims Act yields a definition of discretionary function that would, if

wholly re-adopted by the Court, give clarity and solid explanations for the missteps of the

past, e.g., Pratt v. Gulfport-Biloxi Regional Airport Authority, 97 So. 3d 68 (Miss. 2012)

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

and provide jurists, lawyers, and parties with surer footing going forward.

¶16.   I write separately today to offer an argument for continuing what we restarted in

Wilcher v. Lincoln County Board of Supervisors, 243 So. 3d 177 (Miss. 2018), and

remembering the original meaning of the phrase. In addition, after examining the instant

case in light of the original meaning of the statute, I concur with the majority’s holding.

I.     Discretionary-function immunity applies to decisions made by policymakers that
       affect policy.

¶17.   The Mississippi Tort Claims Act was first enacted in 1984 in response to the

Mississippi Supreme Court’s 1982 opinion in Pruett v. City of Rosedale, in which the Court

abolished “the judicially created concept of sovereign immunity.” Pruett v. City of Rosedale,

421 So. 2d 1046 (Miss. 1982), superseded by statute as stated in Jackson v. Daley, 739 So.

2d 1031, 1040 (¶ 32) (Miss. 1999). We know the statute was enacted in response to Pruett

because Mississippi Code Section 11-46-3(2) (Rev. 2019) establishes that the immunity of

the State and its subdivisions “is and always has been the law in this state, before and after

November 10, 1982 . . . .” Pruett was handed down on November 10, 1982. In any event,

the Tort Claims Act begins with a declaration that the State and its political subdivisions “are

not now, have never been and shall not be liable, and are, always have been and shall

                                               8
continue to be immune from suit at law or in equity. . . .” Miss. Code Ann. § 11-46-3(1)

(Rev. 2019). In other words, the Legislature abrogated Pruett and established that sovereign

immunity was and is in place. Miss. Dep’t of Mental Health v. Shaw, 45 So. 3d 656, 658

(¶ 8) (Miss. 2010).

¶18.   After declaring the continued viability of sovereign immunity, the Legislature in

Section 11-46-5 waived it, up to certain monetary limits delineated in Section 11-46-15, for

“money damages arising out of the torts of such governmental entities and the torts of their

employees while acting within the course and scope of their employment . . . .” Miss. Code

Ann. § 11-46-5(1) (Rev. 2019); accord. Shaw, 45 So. 3d at 658 (¶ 8). Then, after waiving

it for money damages arising from the defined spectrum of tort, the Legislature then provided

immunity from liability, within the waiver, for various, specific claims. Miss. Code Ann. §

11-46-9 (Rev. 2019).

¶19.   Among the above-mentioned specific claims for which the Legislature reestablished

immunity was the bedeviling discretionary function at issue today. In the nascent years of

Mississippi’s Tort Claims Act, the Court interpreted the Section 11-9-46(1)(d) phrase

“discretionary function or duty” to protect “those government decisions in which, to be

effective, the decision maker must look to considerations of public policy and not merely to

established professional standards or to standards of general reasonableness.” Robinson v.

Indianola Mun. Separate Sch. Dist., 467 So. 2d 911, 915 (Miss. 1985) (quoting Pruett, 421

So. 2d at 1052). Indeed, the Robinson Court noted that the “principle of immunity from suit


                                             9
for governmental bodies vested with discretionary authority was carried forward” by the

Legislature when it adopted the Mississippi Tort Claims Act. Robinson, 467 So. 2d at 915

(emphasis added). In other words, discretionary-function immunity preexisted the Tort

Claims Act. Even short-lived Pruett retained it. There, the Court wrote as follows:

       The reasonable man standard of tort law is not an appropriate measure for the
       political, social or economic desirability of government programs and the
       methods selected for pursuing them. State tort standards cannot adequately
       control those governmental decisions in which, to be effective, the
       decisionmaker must look to considerations of public policy and not merely to
       established professional standards or to standards of general reasonableness.

Pruett, 421 So. 2d at 1052. In short, the Tort Claims Act and Pruett both carried forward the

already-existing discretionary-function immunity. To determine what the Tort Claims Act

means when it uses the phrase, one must discern what the phrase meant in the law at the time

the Act was adopted in 1984.

¶20.   Prior to Pruett and the Tort Claims Act, the State and its subdivisions were immune

from liability pursuant to the common law doctrine of sovereign immunity. Davis v. Little,

362 So. 2d 642, 643 (Miss. 1978). Individuals who carried out the work of the sovereign,

however, did not enjoy complete protection. Id. at 644. Rather, public officials enjoyed only

limited immunity intended not for their benefit but for the protection of the sovereign,

effected “by protecting the public official in performance of his governmental function.” Id.

The foregoing delineates the meaning of discretionary function as it would have been

understood in the context of 1984 when the Legislature carried it forward in the Tort Claims

Act. “The principle of immunity from suit for governmental bodies vested with discretionary

                                             10
authority was carried forward in the legislative response to Pruett v. City of Rosedale . . . ,”

the Mississippi Tort Claims Act. Robinson v. Indianola Mun. Separate Sch. Dist., 467 So.

2d 911, 915 (Miss. 1985).

¶21.   In short, for any given decision to fall under the discretionary-function immunity

umbrella at the time the Tort Claims Act was enacted in 1984, it must not only be one that

“consider[s] economic, political, or social grounds,” Wilcher, 243 So. 3d at 182, but

also—pertaining to the second prong of the public-function test—be one made by a

policymaker that affects or sets public policy. Id. at 188. In its preservation of discretionary-

function immunity, the Pruett Court wrote that it applied to “all legislative, judicial and

executive bodies and those public officers who are vested with discretionary authority, which

principle of immunity rests upon an entirely different basis.” Pruett, 421 So. 2d at 1052. In

the early to mid 1980s, discretionary-function immunity was not only understood to apply

to a certain class of decisions, i.e., those having a bearing on public policy, but also to a

certain class of decision-makers, i.e., policy-makers. Two years after the passage of the Tort

Claims Act, the Court explained origins of discretionary-function immunity as follows:

       In order to allow our lawmakers and government officials to participate freely
       and without fear of retroactive liability in risk-taking situations requiring the
       exercise of sound judgment, the discretionary-ministerial distinction has
       evolved, and remains an integral part of our judicial system in the
       determination of liability of the state and its employees.

State ex rel. Brazeale v. Lewis, 498 So. 2d 321 (Miss. 1986), overruled on other grounds by

Little v. Miss. Dep’t of Transp., 129 So. 3d 132 (Miss. 2013). The Brazeale Court wrote of


                                               11
Pruett that “our mandate specifically limited the liability of governmental officials to

ministerial functions alone, allowing these state employees to continue their basic

policymaking decisions without fear of legal retribution.” Brazeale, 498 So. 2d at 323

(emphasis added). The policy-making nature of the decision, and the authority of the

decision-maker to set policy, is further illustrated in the following:

       In determining the necessity of repairs, or the necessity for a reconstruction of
       the bridge in question, the board, or the member thereof authorized so to do,
       exercised a judicial or quasi judicial discretion and judgment, but in tearing
       down and rebuilding the bridge he was acting in the capacity of a road
       commissioner engaged in the performance of a ministerial duty.

State ex rel. Russell v. McRae, 169 Miss. 169, 152 So. 826, 828 (Miss. 1934).

¶22.   Pursuant to the above reasoning, the Court in Brazeale held that individual members

of a county board of supervisors enjoyed discretionary-function immunity because they

participated in deciding which roads in the county would be maintained first. Brazeale, 498

So. 2d at 323. The members of the board of supervisors were policymakers whose decision

regarding road maintenance priority set policy regarding which maintenance in the county

would be performed. By contrast, in the now-debunked Pratt v. Gulfport-Biloxi Regional

Airport Authority, 97 So. 3d 68 (Miss. 2012), the decision at issue—the manner in which

anti-slip tape was affixed to stairs—was made by two airport employees with no policy-

setting authority and, therefore, had no policy-setting ramifications. In Pratt, the Court held

that the decision of the employees regarding the placement of the anti-slip tape bore upon

public policy because the decision fell within the larger group of “daily operational decisions


                                              12
that fall under the overall operation of the airport” that “involve[s] social and economic

policy considerations . . . .” Pratt, 97 So. 3d at 75 (¶ 18) (emphasis added). However, the

Pratt holding fails to comport with the requirement, understood at the time of the passage of

the Tort Claims Act, that the decision in question not just grow out of or be tangentially

related to policy but change or affect policy. Returning to the original 1984 understanding

of public function, necessarily entailing that the decision does not enjoy immunity unless

made by a policy-maker in furtherance of setting policy, will clarify what is meant today by

discretionary-function immunity and aid courts in their efforts to provide parties and

attorneys with predictable, consistent results.

II.    In the case sub judice, Smith alleges simple negligence on the part of the
       Mississippi Transportation Commission employees rather than attempting an
       attack on policy-setting decisions.

¶23.   In Wilcher, we relocated the importance of considering whether a decision giving rise

to litigation was policy-setting in nature.

       [W]e hold that Wilcher’s claim that County and City employees negligently
       left an unfinished culvert installation overnight, without warning drivers they
       had removed but not yet replaced a bridge, is not barred by
       discretionary-function immunity. Wilcher is not trying to second-guess a
       policy decision through tort. He is seeking to recover for injuries caused by
       run-of-the-mill negligence.

Wilcher, 243 So. 3d at 180 (¶ 3). Later, the Court wrote as follows:

       This is not a case, for example, where the plaintiff alleges the County or City
       decided against installing warning lights or signs at dangerous intersections,
       and that particular decision contributed to his accident with another vehicle.
       In such a scenario, it would be arguable that the plaintiff was trying to use his
       tort action to second-guess the government’s discretionary policy decision on

                                              13
       how best to regulate traffic within the confines of the government’s limited
       resources—something the discretionary-function provision was designed to
       curb.

Wilcher, 243 So. 3d at 187-88 (¶ 31) (citing United States v. Gaubert, 499 U.S. 315, 323

(1991).

¶24.   In today’s case, Smith’s complaint alleges negligence on the part of the Commission

and the flagman, Blackwell. The allegations include, inter alia, that Blackwell was not

properly trained, did not have the ability to communicate effectively, failed to control

signaling devices effectively, failed to stand in an effective location, failed to make himself

visible to approaching traffic, and failed to properly use the stop sign he carried. The

complaint never alleges that the Commission failed to properly place warning devices, only

that Blackwell did.

¶25.   If we have lost sight of anything on the discretionary-function-immunity landscape

since Pruett and the enactment of the Mississippi Tort Claims Act, we have lost sight of the

limited scope of discretionary-function immunity’s reach. As set forth above, it protects

policy-makers making policy-affecting decisions. The decisions of Blackwell or other

employees regarding the use, non-use, and placement of warning devices at the scene of the

underlying collision have no policy-making value and were not made by people who set

policy for the Commission.

     RANDOLPH, C.J., MAXWELL, CHAMBERLIN AND GRIFFIS, JJ., JOIN
THIS OPINION.



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