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Wednesday, April 20, 2011

Injustice of the week goes to...Mississippi Court of Appeals

As Homer Simpson said to Bart, Worst far.

Choice to not have safe roads...

The Mississippi Supreme Court and the people in the legislature have in their lack a wisdom left a huge hole in who and what you can hold a government responsible for. It is called the discretionary exception or (9)I defenses.

This is why I very rarely handle any cases against any state or government agency. Government has a different set of rules then we do. We are guilty if we are negligent. They are only liable is they fail to do a ministerial duty that they are required to do under law. If there is any discretion involved at all or choice involved they are immune. Almost everything in life involves a choice. If someone gets killed or injured then and someone else is at fault a bad choice was always made. Otherwise, how can they be at fault? Even if they used taxpayer money to buy millions in insurance and people die, even if hundreds of people die as a result. Major bridge out, etc. They are immune. This is nuts.

Here are the Facts:
Ok, in their defense they are apply the law as they understand it. But here the law is truly an ass. On February 5, 2004, heavy rains pounded Simpson County, washing out a culvert below Shorter Road, a county-maintained road. (Happens all the time)That evening, local residents notified the County of the washout. The County’s road manager, Gary Sullivan, sent road foreman,William "Red" Busby, to close the road. The residents watched as Busby and his crew placed on each side of the washout two-foot by two-foot white fiberglass signs with "Road Closed" painted in fluorescent orange. The crew also strung two strands of four-inch wide yellow warning tape across the road, with fluorescent streamers hanging between the strands of tape. Afterwards, they left Shorter Road to work on other road hazards created by the storm.

¶4. Early the following morning, McElroy drove across the washout at fifty miles per hour. (The speed limit?)His truck struck the hole created by the washout, badly injuring his knee. He testified he did not see any warnings signs or warning tape. (Nobody did as they were likely gone or blow down by morning duh?)
¶5. McElroy sued the County under the Mississippi Tort Claims Act (MTCA). He alleged the County (1) failed to properly design, construct, and maintain Shorter Road and (2) failed to warn of the dangerous condition caused by the washout. The County moved for summary judgment on both claims, arguing the County was entitled to immunity under Mississippi Code Annotated section 11-46-9(1). The circuit court reserved its ruling on the County’s motion until after evidence was presented at a bench trial.
¶6. The circuit judge found McElroy failed to meet his burden of proof on his road design, construction, and repair claim and entered judgment in favor of the County on that claim. But the circuit judge found McElroy’s failure-to-warn claim was controlled by Mississippi Code Annotated section 11-46-9(1)(b), which he concluded "requires that ordinary care be exercised in the warning of dangerous conditions." (Standard that would apply to you and me)
The circuit judge held that the County failed to exercise ordinary care by using inadequate signs "in light of the attendant weather circumstances." The judge found the
signs used to close Shorter Road must have blown away in the night. He reasoned that instead of using the signs which were in the back of Busby’s truck, Busby should have gone to the County’s storage barn to get larger signs and barricade.
 Appeals Courts analysis. The court decided that the Judge cant even review anything about putting out warning signs or just saying screw it as it is a discretionary fuction.

We must determine if government conduct is an immune discretionary function. Id. at 1250 (¶26)(citing Jones v. Miss. Dep’t of Transp., 744 So. 2d 256, 260 (¶11) (Miss. 1999)). First, "whether the activity involved an element of choice or judgment." Id. (citations omitted).And, if so, we next ask whether the activity involved social, economic, or political policy.Id.; see also Dancy, 944 So. 2d at 16 (¶18).
A. Choice or Judgment¶20. To answer this first question, we ask whether the Busby’s action was discretionary or ministerial. Knight v. Miss. Transp. Comm’n, 10 So. 3d 962, 968 (¶20) (Miss. Ct. App.2009). "A duty is discretionary if it requires an official to use her own judgment and discretion in order to carry out the duty." Id. (citing Dancy, 944 So. 2d at 16 (¶19)). (Pretty Much everything they do.)"On the other hand, a duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee’s judgment." Id. (citations and quotations omitted); see also Covington County Sch. Dist. v. Magee, 29 So. 3d 1, 4 (¶8) (Miss. 2010) (describing an act as ministerial if "its performance [is] required at a time and in a manner or upon conditions which are specifically designated"). ¶21. McElroy fails to cite any law or regulation that specifically directed the conduct of
Busby and his crew when closing Shorter Road and left them no choice in what warnings signs to use. We reject his argument that Mississippi Code Annotated section 11-46-9(1)(v) created a ministerial duty to warn of dangerous conditions. (We would want that would we, it makes too much sense.) Like subsection 9(1)(b), subsection 9(1)(v) confers immunity, specifically for failure to warn of unknown or open and
DISCUSSION¶10. There are two distinct reasons we cannot affirm the judgment of the circuit court. First, the circuit court’s basis for imposing liability—Mississippi Code Annotated section 11-
¶11. Second, though the County did have a common-law duty to warn drivers of known dangerous road conditions, in this case, it was shielded against McElroy’s claim for breach of that duty. (They say they have a duty just nothing anyone can do about it when they breach it. So is it really a duty at all?) Because the circuit court failed to apply the immunizing provision found in Mississippi Code Annotated section 11-46-9(1)(d), we have no choice but to reverse its award of tort damages against the County and render a judgment in favor of the County........
The second prong of the public-function test limits the scope of discretionary-function immunity to "only those functions which by nature are policy decisions, whether made at theoperational or planning level." Dancy, 944 So. 2d at 16 (¶17) (citations omitted). "The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the
medium of an action in tort." Id. (OR USE OF COMMON SENSE WE CANT HAVE THAT IN GOVERNMENT)¶24. We find the County’s use of road-closure signs involved economic policy. The County’s road manager, Sullivan, testified the County limited its budget for road signs and barricades. To save money, his department made hand-painted fiberglass signs, including the ones Busby placed on Shorter Road. Sullivan testified it was his department’s policy to use barricades and purchased signs for planned road closures, such as construction projects, and to use the "homemade" signs for temporary closures, such as bad weather conditions. (A/K/A USE THE CRAPPY SIGNS FOR THE REALLY DANGEROUS STUFF LIKE FLOODED BRIDGES) In using the fiberglass signs in the back of his truck, Busby was following County procedure, grounded in economic policy. By finding the County liable in tort for Busby’s failure to usemore expensive (albeit sturdier) signs, the circuit court was second-guessing the County’sadministrative decision to use the "homemade" signs for temporary road closures. (Probably because he drives those same roads and found it stupid) ¶25. Because the County’s actions also meet second-prong of the public-function test, the County was performing a discretionary function and is, therefore, shielded from liability under Mississippi Code Annotated section 11-46-9(1)(d). Cf. Webb v. County of Lincoln,536 So. 2d 1356, 1358-59 (Miss. 1988) (citing State v. Lewis, 498 So. 2d 321, 323 (Miss.1986)) (finding county immune for failure to replace stop sign at dead-end street because decision of which roads to repair involved economic considerations); (WE DONT NEED NO STINKING STOP SIGNS) Knight, 10 So. 3d at 970 (¶28) (finding duty to place warning signs clearly requires the policy considerations in doing so); Barrentine, 913 So. 2d at 39 (¶8) (finding placement or non-placement of warning signs a discretionary governmental function immune from liability under Miss. Code Ann.§ 11-46-9(1)(d)). (IE THEY DON'T HAVE TO DO SQUAT. WHAT A COUNTRY!)
obvious dangerous conditions on government property.2 It does not conversely impose a prescribed time and manner for warning of known, non-obvious dangerous conditions.¶22. Busby exercised his judgment when he chose to use the signs readily available in his truck rather than leave Shorter Road to retrieve barricades and other signs. The circuit court acknowledged as much, stating Busby "chose to utilize the aforesaid method of warning." Busby’s actions were discretionary, not ministerial. Thus, we find the County meets the first prong of the discretionary-function test. And we note this finding is consistent with other cases holding that warning of road hazards is a discretionary duty. See, e.g., Knight, 10 So. 3d at 970 (¶¶26-27) (placement of highway warning signs discretionary); Willing, 958 So. 2d at 1250-53 (¶¶28-33) (method of warning of icy patch on highway discretionary); Barrentine, 913 So. 2d at 393 (¶8) (failure to place warnings signs on bridge discretionary).........4-46-9-(1)(b)—does not apply to this case. Subsection 9(1)(b) only applies to claims arisingout of the exercise of ordinary care in performing a statute, ordinance, or regulation. And the circuit court found the County neither performed a statute, ordinance, or regulation nor exercised ordinary care. Hence, they decided the Judge that lived in the county, knows the supervisors and what goes on daily is wrong and the County's insurance company a/k/a Goldman Sachs or someone like them them owes this poor guy nothing. Oh well, there is always food stamps for him and free cheese too. (You and I will pay for this basically.) He is lucky some of the guys in cases they cited like where the bridges are out are dead.

So what does this mean to you and I? Why should you give a damn? If you don't drive a car or know someone who does, well it shouldn't. This means that the road departments we pay our taxes too don't really have to do anything to warn us about down trees or power lines they know about, missing stop signs, bridges that are out, and now washed out roads. (All these from actual cases.) Think about that the next time you are driving down a dark Mississippi road in the country. The Judge in this case sure did, and he knew the county could and should do better. The Court of Appeals Judges didn't. They are probably all going to just drive on interstates. Now when a Federal judge or Congressman drives into a river because the County didn’t want to put up a "bridge is out" sign,(All the local people knew that bridge went out when it was a heavy rain anyway), maybe we will see a change. Until then, I suggest great caution when driving on dark roads particularly in bad weather. Come to think of it, I think a US Supreme Court Judge is is going be up in Simpson County in a few. I hope it is not raining or maybe they will use the good signs for him.


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