BENJAMIN ROBINSON AND APRIL ROBINSON v. HOLMES COUNTY, MISSISSIPPI AND BRIERFIELD INSURANCE COMPANY
NO. 2017-CA-01715-SCT
IN THE SUPREME COURT OF MISSISSIPPI
09/26/2019
DATE OF JUDGMENT: 11/22/2017; TRIAL JUDGE: HON. JANNIE M. LEWIS-BLACKMON; TRIAL COURT ATTORNEYS: BOBBY L. DALLAS, MICHAEL T. JAQUES, RICHARD T. LAWRENCE, ROY A. SMITH, JR., DENISE WESLEY, STEVEN J. GRIFFIN, JAMES COLLIN MALEY; COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT; ATTORNEY FOR APPELLANTS: MICHAEL T. JAQUES; ATTORNEYS FOR APPELLEES: ROY A. SMITH, JR., STEVEN J. GRIFFIN, RICHARD T. LAWRENCE, MICHAEL O. GWIN; NATURE OF THE CASE: CIVIL - PERSONAL INJURY; DISPOSITION: AFFIRMED - 09/26/2019
EN BANC.
COLEMAN,
¶1. Benjamin Robinson drove his employer‘s vehicle into the rear end of a stopped Holmes County garbage truck. The garbage truck was stopped picking up garbage on the side of the highway in dense fog. Robinson sued Holmes County and his uninsured motorist carrier, Brierfield Insurance Company. Robinson asserts that Holmes County was negligent in its operation of the garbage truck. Robinson also asserts a breach of contract claim, stating that Brierfield Insurance Company breached the insurance contract by denying him uninsured motorist benefits.
¶2. The trial court granted summary judgment and found not only that Holmes County was not negligent but also that it was immune under the Mississippi Tort Claims Act. The trial court further found that, since Holmes County was not negligent, Brierfield also is not liable as the uninsured motorist insurance provider. Robinson appeals.
FACTS AND PROCEDURAL HISTORY
¶3. In the early morning hours of October 25, 2011, Robinson was driving to work in a truck owned by his employer and insured by Brierfield Insurance Company. Robinson described a “dense fog” and stated that he could not see the road. At the same time, a Holmes County garbage truck was stopped in the highway while employees picked up garbage. The fog obscured Robinson‘s vision, and he did not see the truck in time to stop. Robinson collided with the rear end of the garbage truck.
¶4. Robinson filed a complaint against Holmes County and Brierfield Insurance Company, seeking damages for injuries sustained in the collision. Robinson alleges Holmes County was negligent in its operation of the garbage truck. Specifically, Robinson asserts that the accident was caused by the garbage truck‘s blocking his lane of travel and by the failure of the workers to display reasonable warning devices. Robinson alleges Brierfield Insurance Company breached its contract by failing to pay him uninsured motorist benefits.
¶5. Holmes County filed its answer and defenses, denying all liability and claiming immunity under the Mississippi Tort Claims Act. Holmes County later filed its motion for summary judgment, seeking dismissal. Holmes County claimed immunity under
¶6. After a hearing, the circuit court granted Holmes County‘s amended motion for summary judgment. The court found that Robinson had failed to make a prima facie case of negligence against Holmes County and that Holmes County was entitled to discretionary function immunity under the tort claims act. After a motion by Brierfield, the circuit court issued its corrected order under
STANDARD OF REVIEW
¶7. “A trial court‘s grant or denial of summary judgment is reviewed de novo.” Miss. Baptist Med. Ctr., Inc. v. Phelps, 254 So. 3d 843, 844-45 (¶5) (Miss. 2018) (citing Leffler v. Sharp, 891 So. 2d 152, 156 (Miss. 2004)). “Summary judgment is appropriate when ‘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.‘” Id. at 845 (¶ 5) (quoting
DISCUSSION
I. The trial court did not err in finding that Robinson failed to establish a prima facie case of negligence.
¶8. Robinson bears the burden of producing evidence establishing a prima facie case of negligence on the part of the Holmes County employees. Goodwin v. Gulf Transp. Co., 453 So. 2d 1035, 1036 (Miss. 1984). If he cannot, then his claims against both Holmes County and Brierfield fail. Horton v. City of Vicksburg, 268 So. 3d 504 (Miss. 2018). As was the case in Horton, Robinson‘s failure to make a prima facie showing of negligence obviates the need to address the immunity issues. Id. at 505 (¶ 1).
¶9. In today‘s case, viewing the evidence in the light most favorable to Robinson, he cannot hope to prove negligence at trial. The conduct of the Holmes County employees was not a proximate contributing cause of the accident.
¶10. Robinson alleges that the accident was caused “by the garbage truck‘s blockage of the lane of travel” and by the “failure of the garbage truck to display any adequate or reasonable warning devices, including lights.” However, there is no evidence of negligence on the part of Holmes County. The only evidence of any type of negligence is Robinson‘s running into the rear end of the garbage truck in blinding fog.
To all intents and purposes Welch, if he was telling the truth, might as well have been physically blind. It should be indelibly seared into the memory of all motorists that neither the law nor the courts can, or will, turn loose to kill and maim persons on the highways of this state, drivers, who are either physically blind, or are so indifferent to their responsibility to others that they do not see although they have eyes for that purpose.
Id. at 493-94. Welch‘s “conduct stands out as a glaring instance of unadulterated carelessness and negligence.” Id. Based on the evidence, the Court found no negligence on the part of the pedestrian, and it found Welch‘s conduct, speeding in foggy weather, to be the sole cause of the accident. Id.
¶12. In Gartman v. Bush Construction Co., 227 So. 2d 846 (Miss. 1969), the Court held that no fault or negligence on the part of a construction company and its driver could be shown after the plaintiff drove into a dense dust cloud and collided with the rear end of a construction water truck. The trial court granted a directed verdict against Gartman, finding that “there was nothing to keep [the plaintiff] from seeing the dust before he entered it without slacking his speed.” Id. at 847. Reviewing the record, the Court was “unable to find any evidence of negligence” on the part of the construction company or its employee that the Court could conclude “caused or contributed to the accident.” Id. Accordingly, the Court upheld the directed verdict in favor of the defendants. Id.
¶13. The record belies Justice Maxwell‘s position that the trial judge did not find that Robinson failed to make a prima facie showing of negligence. In her corrected order, the trial judge wrote in reference to the original order, “[I]t was the Court‘s finding that . . . Holmes County was not negligent . . . .” The trial judge clarified her earlier finding because she had failed to rule upon Brierfield‘s separate motion for summary judgment, in which Brierfield argued that because plaintiff could not make a prima facie showing of negligence, the plaintiff‘s claim for uninsured motorist benefits must fail.
¶14. Justice Maxwell is correct that, other than arguing causation, which pertains to both the weather-immunity provision and the common-law negligence elements, Holmes County did not expressly argue that Robinson failed to make a prima facie case of negligence. However, Brierfield, also a defendant, did. In its motion, Brierfield argued, “The plaintiffs have not and can not produce any evidence establishing a prima facie case of the following essential elements of negligence against the County (a) breach of duty or (b) proximate cause.” The entirety of the trial judge‘s treatment of Brierfield‘s motion in the corrected order reads as follows:
At the time of the original order, the Court did not entertain the Defendant, Brierfield Insurance Company‘s Motion for Joinder in Holmes County‘s Motion for Summary Judgment, and realizes that Brierfield‘s motion should have been addressed at that time in that the motion was argued before the Court. It was the Court‘s finding that since Holmes County was not negligent, Brierfield Insurance Company was not liable. At the time of the original order, it was the Court‘s intent to grant Summary Judgment to Holmes County, as well as to Brierfield Insurance Company.
The most apparent meaning of the above-quoted paragraph—especially given the trial court‘s use of the word “negligent” instead of immunity—is that the trial judge agreed with Brierfield‘s separate argument regarding plaintiff‘s failure to make a case of common-law negligence.1 Brierfield‘s argument combined with the trial judge‘s second order entered for the express purpose of addressing it lead to the conclusion that the trial court granted summary judgment on both grounds: sovereign immunity as to Holmes County and the failure of the plaintiff to provide evidence of his negligence claim as to Brierfield.
¶15. Immunity from liability for negligence based on sovereign immunity differs from not being negligent. Given the difference between immunity from liability on one hand and failing to prove the elements of common-law negligence on the other, given the fact that one of the parties argued (and continues to argue on appeal) that Robinson failed to produce evidence as to all elements of his common-law negligence claim, and, finally, given that the trial court‘s finding that fog was the sole proximate cause of the accident pertains to the elements of a negligence claim but not to discretionary-function immunity, we cannot agree with Justice Maxwell that the trial judge only addressed immunity in her orders.
¶16. In any event, whether the trial court based its grant of summary judgment to the defendants on sovereign immunity, negligence, or both, we may affirm the lower court‘s grant of summary judgment for any sufficient reason apparent from the record. Cummins v. Goolsby, 255 So. 3d 1257, 1258-1259 (¶ 8) (Miss. 2018). As noted above, Brierfield argued the plaintiff‘s failure to make a prima facie case of negligence in its separate motion for summary judgment before the trial court. In its brief on appeal, Brierfield again argues that Robinson failed to offer “admissible evidence to establish the negligence of Holmes County and its employees.” Brierfield argued that Robinson‘s failure to make a prima facie showing of negligence before the trial court and in the instant appeal and Robinson‘s failure to demonstrate an issue of fact on the element of proximate cause disposes of all issues before the Court.
II. To recover against Brierfield Insurance Company, the uninsured motorist laws of Mississippi require that Robinson prove Holmes County‘s negligence.
¶17. Robinson‘s obligation to prove negligence is embedded in the uninsured motorist statutes. The uninsured motorist statutes require Robinson to prove he is “legally entitled to recover as damages for bodily injury . . . from the owner or operator of an uninsured motor vehicle.”
¶18. The fundamental requirement of proving breach of duty and proximate cause against the uninsured motorist is confirmed by legal scholarship:
Plaintiff must show that he is “legally entitled to recover” damages from the uninsured motorist; that is, he must show that the uninsured motorist‘s negligence was the proximate cause of the accident.
Richard T. Phillips, A Guide to Uninsured Motorist Law in Mississippi, 52 Miss. L.J. 225, 307 (1982).
¶19. The Court has held previously that there is no “different rule for the application of negligence in an uninsured motorist cause and the ordinary automobile case” and that “[a] plaintiff must show the collision was the proximate result of negligence on the part of the uninsured [motorist.]” State Farm Fire & Cas. Co. v. McGee, 368 So. 2d 230, 234 (Miss. 1979) (citing Wightwick, 320 So. 2d at 375).
¶20. Because Robinson‘s negligence claim fails as a matter of law, so does his claim against Brierfield for uninsured motorist benefits. Robinson‘s failure to make a prima facie showing of negligence disposes of all claims against both defendants, so we need not address the application of the Mississippi Tort Claims Act. See Chaffee v. Jackson Pub. Sch. Dist., 270 So. 3d 905, 907 (¶ 9) (Miss. 2019) (failure of plaintiff to make prima facie showing of negligence moots issue regarding application of the Mississippi Tort Claims Act).
CONCLUSION
¶21. Finding no genuine issue of material fact, we affirm the judgment of trial court granting summary judgment to Holmes County and Brierfield Insurance Company.
¶22. AFFIRMED.
KING, P.J., CHAMBERLIN AND ISHEE, JJ., CONCUR. RANDOLPH, C.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY BEAM, J.; RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ., JOIN IN PART. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, J.
MAXWELL, JUSTICE, CONCURRING IN RESULT ONLY:
¶23. This case is really about sovereign immunity—more precisely, which immunity provisions, if any, apply and what impact that has on the Robinsons’ ability to recover uninsured-motorist benefits. The parties teed it up that way. The judge did too. But since the plurality does not address it, I will.
¶24. I start with the fact the record compels me to respectfully disagree with the plurality‘s view that the trial court granted summary judgment based on “finding that Robinson failed to establish a prima facie case of negligence.” As stated in her corrected order, the trial judge granted summary judgment because “Holmes County is immune and is therefore not negligent in the accident.” (Emphasis added.) Finding the County was “not negligent” was not an independent and alternative reason for granting summary
¶25. If the judge‘s corrected order left any doubt that she granted summary judgment based on Holmes County‘s immunity claim, one need only look at Holmes County‘s amended motion—a motion requesting summary judgment based solely on its argument that it was immune under
¶26. When it comes to a grant of summary judgment by the circuit court, we have said we will affirm “if any ground raised and argued below will support the lower court‘s decision.” Horton ex rel. Estate of Erves v. City of Vicksburg, 268 So. 3d 504, 507 (Miss. 2018) (emphasis added). And here, Holmes County neither raised nor argued to the trial court any ground for summary judgment that was an alternative to or independent of its immunity claim.2 But even if Holmes County got enough of its foot in the door to support a no-negligence argument, the immunity question is still before us.
¶27. Since the immunity issue is primed for review, I will address it and explain why the trial court did not err. The trial court granted Holmes County summary judgment based on finding the governmental entity and its employees were immune under
¶28. But the answer becomes apparent when the Robinsons’ uninsured-motorist
¶29. But weather-condition immunity creates a different scenario.
¶30. Weather-condition immunity applies when the claimed injury was “caused solely by the effect of weather conditions on the use of streets or highways.”
¶31. So the key question this Court should address on appeal is—Did the trial court err by finding Holmes County was immune under Section 11-46-9(1)(q) because the fog was the sole proximate cause of the accident?
¶32. The two cases the plurality cites, Robertson v. Welch, 242 Miss. 110, 134 So. 2d 491 (1961), and Gartman v. Bush Construction Co., 227 So. 2d 846 (Miss. 1969), cannot help answer this question. Not only do both predate the Mississippi Tort Claims Act, but also neither has anything to do with sovereign immunity. Further, in neither case did this Court conclude, as the trial judge did here, that the weather condition was the sole proximate cause of the wreck. Instead, both cases found the driver of the colliding vehicle negligent for driving in low visibility conditions. So by citing these cases as controlling, I agree with the dissenting justice that the plurality leaves the impression that our holding is based on a finding that Robinson, like the drivers in Robertson and Gartman, had been negligent and his negligence was the sole proximate cause of the accident. And I share the dissenting justice‘s concern that such a conclusion ignores the possibility that Holmes County could have been likewise negligent for operating under the same conditions and thus seemingly takes this issue away from a jury. See White v. Miller, 513 So. 2d 600, 601 (Miss. 1987) (rejecting a per se rule that the driver who hits another vehicle from behind is the negligent one).
¶33. But I do not join the dissent for the simple reason the trial court did not find Robinson had been negligent or that his negligence caused, even in part, the accident. Importantly, the trial court found no evidence of any negligence at all. Instead, the fog was the sole proximate cause of the accident. So the case on point is not Robertson or Gartman but rather Hayes v. Green County, 932 So. 2d 831 (Miss. Ct. App. 2005).
¶34. Like the case before us, Hayes dealt with heavy morning fog, a stopped garbage truck, and a rear-end collision. The only difference is that Hayes involved an additional car. While the driver of first car was able to stop in time to avoid the
¶35. On de novo review, the Court of Appeals affirmed. Id. at 832-33. The second driver testified the reason she did not see the first car or garbage truck was the fog. Id. at 833. The same is true here. Robinson testified he could think of no reason why he did not see the garbage truck in time to brake other than the fog. So Robinson‘s own deposition testimony sufficiently supports Holmes County‘s affirmative defense that the fog was the sole proximate cause of the accident.
¶36. While the dissent argues the Robinsons’ pleadings are sufficient to create a material fact dispute, we are not confronted with dismissal on the pleadings. We are instead dealing with the grant of summary judgment. And at the summary-judgment stage, “[m]ere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment.” Palmer v. Biloxi Reg‘l Med. Ctr., Inc., 564 So. 2d 1346, 1356 (Miss. 1990). So while Robinson alleged the garbage truck did not have sufficient warning lights, he could not testify whether the truck‘s flashers were on or not. Meanwhile, the truck‘s driver testified the flashing lights were on that morning. Thus, Robinson has failed to establish a genuine fact issue that the truck‘s failure to use its warning lights that morning was a contributing cause of the wreck. In fact, Robinson has presented no other causation evidence other than the fog.3 So the trial court did not err by finding the fog was the sole proximate cause of the accident.
¶37. For this reason, the trial court did not err by granting Holmes County summary judgment based on weather-condition immunity.
¶38. Accordingly, I concur in the result only.
BEAM, J., JOINS THIS OPINION. RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ., JOIN THIS OPINION IN PART.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶39. I dissent from the plurality‘s finding that Robinson failed to make a prima facie case of negligence. Robinson4 pled sufficient facts to allow this matter to proceed to a jury, and I would reverse the lower court‘s grant of summary judgment determining that fog was the sole proximate cause of this accident in addition to
¶40. The vehicle driven by Benjamin Robinson was insured under an automobile liability insurance policy issued to his employer by Brierfield Insurance Company. The policy included uninsured and underinsured motorist coverage. Robinson averred that he was legally entitled to recover damages for the County‘s negligence under his employer‘s policy, pleading, “to the extent that [Robinson is] barred from recovery against Holmes County” under the Mississippi Uninsured Motorist Act, he could collect from the carrier Brierfield.5 Robinson pled that Brierfield was properly joined “in the event that the County was immune, and therefore ‘uninsured,’ or in the event that Robinson‘s damages exceeded . . . liability under the MTCA, rendering the County ‘underinsured.‘” Brierfield disputed this obligation, arguing, inter alia, that the Robinsons are not entitled to recover uninsured motorist benefits because they “are not ‘legally entitled to recover’ a judgment from Holmes County because of Holmes County‘s immunity.”
¶41. The trial court granted summary judgment to Brierfield, thus relieving the uninsured motorist carrier of its contractual obligation to pay the Robinsons whatever damages, if any, they might have been due from Holmes County but for its immunity. The trial court found that because “Holmes County was not negligent, Brierfield Insurance Company was not liable” but also stated in its order that, as “Holmes County is immune from liability [it] is therefore not negligent in this action” and as “Holmes County is not negligent, Brierfield is not liable.”
¶42. With respect, the trial court‘s reasoning was flawed. The court‘s finding that the County was immune from liability did not equate to the county‘s not having been negligent. The County‘s cloak of immunity precluded its being liable for the payment of damages to the Robinsons, even if its negligence was the sole proximate cause of the accident. Sovereign immunity protects negligent governmental tortfeasors from the burden of paying damages to those injured by their negligence. Holmes County can, at the same time, be a negligent party and an immune party.
¶43. The trial court‘s initial role was to adjudicate Holmes County‘s immunity.
¶44. The trial court‘s logic that, as “Holmes County is not negligent, Brierfield is not liable,” is mistaken. First, the trial court should not, at that point, have undertaken to determine whether Holmes County had been negligent in the garbage truck accident. See Mitchell v. City of Greenville, 846 So. 2d 1028, 1029 (¶ 8) (Miss. 2003) (“The Mississippi Legislature has determined that governmental entities and their employees shall be exempt from liability . . . . This exemption . . . is an entitlement not to stand trial rather than a
¶45. Because the County was adjudicated immune under the MTCA for any negligence claim, it became an uninsured motorist from the Robinsons’ standpoint. Providing coverage when its insured is in an accident in which the negligent party has no coverage available is the purpose for which Robinson‘s uninsured motorist coverage had been procured.
¶46. By amendment of the uninsured motorist statute in 2009, “[t]he term ‘uninsured motor vehicle’ shall [also] mean . . . . [a] motor vehicle owned or operated by a person protected by immunity under the Mississippi Tort Claims Act . . . if the insured has exhausted all administrative remedies under that chapter.”
¶47. The United States Court of Appeals for the Fifth Circuit recently addressed the interplay between MTCA immunity and our uninsured motorist provisions, holding that uninsured motorist benefits are not recoverable to the extent that an insured is not “legally entitled to recover” from the tortfeasor because it has immunity under the MTCA. McGlothin v. State Farm Mut. Ins. Co., 925 F.3d 741, 747-49 (5th Cir. 2019) (quoting
¶48. Other states’ courts have considered the relationship between sovereign immunity and their uninsured motorist statutes. See, e.g., Tinsley v. Worldwide Ins. Co., 442 S.E.2d 877, 879 (Ga. Ct. App. 1994) (“[I]t would defeat the intent and purpose of the Act if the appellee were allowed to escape liability because of the defendants’ discharge from this litigation under the doctrine of sovereign immunity.“); Losiniecki v. Am. States Ins. Co., 610 N.E.2d 878, 880 (Ind. Ct. App. 1993) (“[Plaintiff] fails to establish that he is legally entitled to recover damages from [the] Officer . . . . Indiana Code Section 34-4-16.5-3(7) [the Indiana Torts Claims Act statute] precludes [the plaintiff‘s] right of action against [the officer] and, thus, his legal entitlement to recovery of uninsured motorist benefits.“).
¶49. For instance, the North Carolina Court of Appeals, construing North‘s Carolina‘s statutory parameters defining “uninsured motor vehicle[s],” found that
[p]erhaps most importantly, the nature of the UM statute is remedial and therefore should be liberally construed to accomplish the beneficial purpose intended by the General Assembly. The purpose of the statute is to provide some financial
recompense to innocent persons who receive bodily injury or property damage due to the negligence of uninsured motorists or those unidentified drivers who leave the scene of an accident, i.e., those who cannot be made to respond to damages.
Williams v. Holsclaw, 495 S.E.2d 166, 171 (N.C. Ct. App. 1998) (citations omitted).
¶50. Discerning a party‘s ability to receive uninsured motorist benefits confronted with a defendant shielded by sovereign immunity, the court could not countenance the “patent inequity of depriving an insured party of the benefit of his or her UM premium.” Id. Accordingly, the Williams plaintiffs could pursue recovery of their damages from their uninsured motorist carrier after the court had determined that the government tortfeasors constituted “uninsured motor vehicle[s].” Id. at 170-71 (“Barring compensation to injured motorists based solely on the fortuity of being rear-ended by a ‘municipal’ vehicle is contrary to the remedial purpose of the UM statute. Moreover, precluding UM coverage in the present case in no way advances the rationale supporting the doctrine of sovereign immunity.“).
¶51. As such courts determined when faced with both uninsured motorist recovery and sovereign immunity, I also find that “the patent inequity of depriving an insured party of the benefit of his or her UM premium is self-evident.” Id. at 171. With due respect for the Fifth Circuit‘s Erie6 guess, that
legislature‘s interest in protecting innocent victims injured at the hands of financially irresponsible drivers. In recognizing this valid expression, we have consistently construed the Act to provide, not limit, protection.“).
¶52. If Robinson had been able to litigate a claim against Holmes County under the MTCA, a bench trial would have ensued. The circuit judge would have decided issues of fact as well as questions of law. But the trial court‘s ruling that Holmes County was immune from civil liability to Robinson meant that there would be no trial under the procedures unique to the MTCA, one of which is that there is no
¶53. Even though the trial judge opined that “the fog was the sole proximate cause of the accident,” that observation is of no import, because it invaded the province of the jury as the factfinder with respect to claims against any defendant to whom MTCA protection does not apply—here, the uninsured motorist insurance carrier. The trial court‘s finding that Holmes County was immune from civil liability does not mean that Holmes County was in nowise negligent. The import of that ruling is that, even if Holmes County was negligent, it is
immune from civil liability. In the jury trial against the uninsured motorist carrier, it is for the jury to decide who, if anyone, was negligent. A jury might well determine that Holmes County was negligent; but, even so, the jury could not render a verdict against Holmes County due to its immune status. See Mack Trucks, Inc. v. Tackett, 841 So. 2d 1107, 1114 (¶ 26) (Miss. 2003) (“Fault and liability are not synonyms. . . . Immunity from liability does not prevent an immune party from acting or omitting to act. Rather, immunity shields that party from any liability stemming from that act or omission. There is nothing logically or legally inconsistent about allocating fault but shielding immune parties from liability for that fault.“).
¶54. Even if Holmes County carried liability insurance on its garbage truck, the trial court‘s decision that the County is immune rendered that coverage unavailable to Robinson. So, in effect, Holmes County became an uninsured motorist when it prevailed on its immunity defense. This is abundantly clear in light of
¶55. Because the plurality does not acknowledge the issue of uninsured motorist recovery, and instead finds that there is no genuine issue of material fact that Robinson alone was negligent, I proceed to address this singular basis for affirming summary judgment here. Our decision in Robertson v. Welch is cited by the plurality to support its assertion that “the only evidence of any type of negligence is of Robinson‘s running into the rear end of the garbage truck in blinding fog.” Pl. Op. ¶ 10. See Robertson v. Welch, 242 Miss. 110, 119, 134 So. 2d 491, 494 (1961) (“[This] conduct stands out as a glaring instance of unadulterated carelessness and negligence.“).
¶56. To the contrary, “[t]his Court has never adopted a per se rule that the driver of the following car is negligent if he collides with the rear of a preceding vehicle, nor [should] we in this case.” White v. Miller, 513 So. 2d 600, 601 (Miss. 1987). See, e.g., Clark v. McCorkle, 252 So. 3d 603, 608 (¶ 22) (Miss. Ct. App. 2017) (plaintiffs in following car “presented sufficient evidence showing that genuine issues of material fact precluding summary judgment exist as to . . . whether the fog constituted an unusually dangerous condition“) cert. denied, 250 So. 3d 1269 (Miss. 2018); Jamison v. Barnes, 8 So. 3d 238, 245 (¶ 20) (Miss. Ct. App. 2008) (“[T]here is a genuine issue of material fact as to whether [the driver of the following car] was negligent because he should have seen the tractor in time to avoid or mitigate the accident.“).
¶57. A summary assignment of 100 percent of the negligence to Robinson overlooks Mississippi‘s status as a comparative negligence state. See
¶58. Whether a defendant was negligent and, if so, to what extent, are issues for a jury‘s consideration. Spann v. Shuqualak Lumber Co., 990 So. 2d 186, 190 (¶ 13) (Miss. 2008) (“Whether the weather or the steam was the cause-in-fact of the accident is a question within the province of a jury.“). With regard to automobile accidents, “if a jury can properly find that failure to maintain a proper lookout could render either driver guilty of negligence, then logically it should follow that both drivers could potentially have been negligent, and the jury [is] entitled to the option of apportioning fault or damages between the two parties.” Wansley v. Brent, 80 So. 3d 125, 128 (¶ 13) (Miss. Ct. App. 2011).
¶59. Here, I would find that the trial court erred by keeping this case from a jury. The trial court found, but later amended its holding, that Holmes County “should be granted liability on all grounds.” The order did provide additional findings regarding the grant of summary judgment respecting legal cause and immunity, holding
[t]herefore, the County is granted immunity under the discretionary function of the MTCA, no sufficient evidence has been offered to dispute that the fog was the sole cause of the accident, and this was not an open and obvious danger and a flagman was required to be on the scene, the lack of a flag man is a discretionary decision for which the Defendants are granted immunity from liability.
¶60. The order was amended under
¶61. I would reverse this decision because Robinson presented viable claims that could permit a reasonable jury to find Holmes County negligent to some degree. Obviously, the presence of a garbage truck stopped or slowly moving in a traffic lane of a two-lane state highway, obscured by thick fog, very well may pose some risk to other motorists. The traveling public is as much entitled to use the roads as the county garbage truck, and, whether the road is public or private, every motorist is bound to fulfill the duties owed to others. See, e.g., Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 144, 141 So. 2d 226, 230 (1962) (“This Court has pointed out in highway accident cases that it is the duty of an automobile driver to keep his automobile under control and to keep a lookout in the direction in which he is proceeding, and must at all times be vigilant and anticipate and expect the presence of others and cannot assume that the way is clear.“). A reasonable factfinder could find that it was foreseeable to Holmes County that approaching motorists would not be able to see a garbage truck clearly in blinding fog, if at all. A jury could find that Holmes County failed to exercise reasonable care by operating its garbage truck under these conditions. See Ready v. RWI Transp., LLC, 203 So. 3d 590, 594 (¶ 9) (Miss. 2016) (“While duty and causation both involve a foreseeability analysis, duty is an issue of law, and causation is generally a matter for the jury.” (citing W. Page Keeton et al., Prosser & Keeton on Torts § 37, 236 (5th ed. 1984))). Reasonable jurors could conclude that Holmes County‘s sending its garbage truck and crew to collect garbage in a blinding fog was, in and of itself, negligent.
¶62. While both parties were entitled to use of the road, they were obligated to use it safely, with due regard for the safety of others. A jury could have found it foreseeable that the risk of collision could have been lessened significantly if the garbage truck had waited until the fog had dissipated, allowing it better and safer visibility.
¶63. The trial court found that Robinson could not produce sufficient evidence to dispute that the fog was the sole cause of the accident; but that determination by the court invaded the jury‘s province as the sole finder of fact. Spann, 990 So. 2d at 190 (¶ 13) (“[T]he cause-in-fact of the accident is a question within the province of a jury.“); Clark, 252 So. 3d at 607 (¶ 21) (“[F]actual question[s] exist[] as to the presence of an emergency or unusual condition.” (citing White, 513 So. 2d at 601)). While Robinson did say that the fog contributed to the accident, that is but one factor for a jury to take into account in assigning and/or apportioning fault.
¶64. The Robinsons are entitled to a jury trial. They are entitled to adduce whatever proof they can that the negligence, if any, of Holmes County, proximately caused or contributed to the accident and their resulting damages. In such a trial, Holmes County would be defended by the uninsured motorist carrier. If the Robinsons were to prevail in such a trial, a verdict for money damages in their favor would be paid by that carrier up to the limits of its coverage.
¶65. That is the way that uninsured motorist coverage is supposed to work. The owner of the vehicle that Benjamin Robinson was driving had made provision for the payment of civil claims for damages on behalf of persons using that vehicle when those damages occurred by the negligence of motorists without collectible liability insurance coverage. Here, even though Holmes County may have purchased liability insurance coverage, it became inaccessible to the Robinsons when the county‘s immunity was established by the trial judge‘s ruling. Thus, to the Robinsons, the garbage truck was uninsured.
¶66. Accordingly, I would also reverse the grant of summary judgment as to Brierfield and remand this case for a jury trial.
GRIFFIS, J., JOINS THIS OPINION.