Lead Opinion
ON WRIT OF CERTIORARI
for the Court:
¶ 1. Three motorists sued the Mississippi Department of Transportation (the Department) after their vehicles collided with a pine tree that had fallen across the highway. The Department filed a motion to dismiss asserting immunity under the Mississippi Tort Claims Act (MTCA), and the trial court granted the motion. The Court of Appeals affirmed. The motorists filed a petition for writ of certiorari with this Court. Finding that the Department’s motion to dismiss should not have been granted, we reverse and remand.
Facts and Procedural History
¶ 2. On the evening of November 26, 2004, Floyd Little, Roger Pierce, and Kelly Sykes were operating separate vehicles on Highway 26 in George County. Unbeknownst to them, a large pine tree had fallen across the highway. Little was traveling east on Highway 26, and he collided with the tree first. Pierce was coming from the opposite direction and ran into the other side of the tree. Sykes then collided with the rear of Pierce’s vehicle. All three incurred property damage; Little and Pierce sustained personal injuries. Little, Pierce, and Sykes (collectively “Little”) filed a complaint against the Department. Little alleged that the Department was negligent in the following respects: (1) failing to adequately maintain, repair, and inspect the highway; (2) failing to remove dead or dangerous trees near the road;
¶ 8. After the case sat dormant for two and half years, the Department filed a motion to dismiss for failure to state a claim or, alternatively, for failure to prosecute. The Department asserted that it was immune from liability under the discretionary function provision of the MTCA. That motion was denied, as was the Department’s renewed motion to dismiss. The Department asserted a second renewed motion to dismiss after a relevant case was handed down by the Court of Appeals. At that point, the circuit court concluded that the Department was entitled to discretionary-function immunity and granted the motion to dismiss. Little appealed, and the Court of Appeals affirmed. Little v. Miss. Dep’t of Transp.,
Discussion
¶ 4. Little asserts that the circuit court erred in granting the Department’s motion to dismiss, and he presents three issues in his petition for writ of certiorari. First, Little asserts that the Court of Appeals erred in applying the immunity provisions of the MTCA. Second, he maintains that there is a distinction between “right-of-way maintenance” and “road maintenance,” and that the Court of Appeals erred in confusing the two. Finally, Little asks this Court to determine whether right-of-way maintenance is a discretionary function. The issues have been reorganized for the purposes of discussion.
¶ 5. The application of the MTCA is a question of a law that is reviewed de novo. Fairley v. George County,
I. Whether there is a distinction between “right-of-way maintenance” and “road maintenance.”
¶ 6. Little alleged that the Department failed to adequately patrol, maintain, repair, and inspect the highway, in violation of Mississippi Code Section 65-1-65, which provides:
It shall be the duty of the state highway commission to have the state highway department maintain all highways which have been or which may be hereafter taken over by the state highway department for maintenance in such a way as to afford convenient, comfortable, and economic use thereof by the public at all times. To this end it shall be the duty of the director, subject to the rules, regulations and orders of the commission as spread on its minutes, to organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained state highway system, so that said highways may be kept under proper maintenance and repair at all times.
Miss.Code Ann. § 65-1-65 (Rev.2012).
¶ 7. Mississippi Code Section 65-1-1 provides that in Title 65, Chapter 1, the words “highway” and “road” include rights-of-way. Miss.Code Ann. § 65-1-1(h) (Rev.2012). In light of the definition provided in Section 65-1-1, the Department’s duty to maintain and repair highways, set forth in Section 65-1-65, includes both road maintenance and right-of-way maintenance. Miss.Code Ann. §§ 65-1-1, 65-1-65 (Rev.2012). See also Hattiesburg Realty Co. v. Miss. State Highway Comm’n,
II. Whether right-of-way maintenance is a discretionary function for which immunity is afforded under the MTCA.
¶ 8. The MTCA provides the exclusive remedy for civil claims against governmental entities and employees. Miss. Code Ann. § 11-46-7 (Rev.2012). Under the MTCA, a government entity and its employees are immune from liability for claims arising from “the exercise or performance or the failure to exercise or perform a discretionary function or duty[.]” Miss.Code Ann. § 11 — 46—9(l)(d) (Rev. 2012). The language of Section 11^16-9(l)(d) requires us to look at the function performed — not the acts that are committed in furtherance of that function — to determine whether immunity exists. Id. See also Miss. Transp. Comm’n v. Montgomery,
¶ 9. In the instant case, the Court of Appeals held that right-of-way maintenance was a discretionary function, thus, the Department was immune from liability. Little,
Ordinarily, where a statute mandates the government or its employees to act, all acts fulfilling that duty are considered mandated as well, and neither the government nor its employees enjoys immunity. Occasionally, however, the Legislature will mandate that a political subdivision fulfill some particular function, but then specifically set forth that some portion or aspect of that function is discretionary. When that happens, acts fulfilling the discretionary portionof the governmental function enjoy immunity.
Here, Section 65-1-65 imposes a statutory duty on the highway department to maintain all state highways. See Miss. Code Ann. § 65-1-65 (Rev.2005). Were this the only statutory provision at issue, we would find that the Commission is not immune for the acts carrying out that function. The Legislature, however, carved out a portion of the function mandated by that statute, and made it discretionary. Section 63-3-305 gives local authorities discretion in placing and maintaining traffic devices “as they may deem necessary to indicate and [to] carry out the provisions of this chapter.... ” Miss.Code Ann. § 63-3-305 (Rev.2004). Although the Commission’s duty to maintain highways is not discretionary, the placing of warning signs is, because the Legislature has provided specific language in the statute extending discretion to those acts. Otherwise, the Commission would not enjoy immunity.
Montgomery,
Our [S]upreme [C]ourt has long held that road maintenance and repair are discretionary, rather than ministerial functions. See, e.g., Mohundro v. Alcorn Cnty.,675 So.2d 848 , 854 (Miss.1996); Coplin v. Francis,631 So.2d 752 , 754-55 (Miss.1994); State ex rel. Brazeale v. Lewis,498 So.2d 321 , 323 (Miss.1986). However, in Montgomery, the [Cjourt ... seemed to deviate from its long-standing and bright-line rule that road maintenance and repair implicate a discretionary function....
Here, unlike in Montgomery, no additional statute is involved. Nevertheless, we note that the [Cjourt in Montgomery did not expressly overrule its prior decisions holding that road maintenance and repair are discretionary functions. We further note that in Mohundro, Coplin, and Lewis, there is no discussion of any statute carving out a portion of the mandated function and making it discretionary, as is the case in Montgomery.
In Lewis, the [Cjourt held that a clearly ministerial duty may require the exercise of discretion in the discharge of the otherwise ministerial function. Lewis,498 So.2d at 323 . In such a case, the government actor would be immune from suit for injuries arising out of the exercise of his discretion in the discharge of what is otherwise a ministerial function. Therefore, we are constrained to hold that our [Sjupreme [Cjourt did not intend to change existing law regarding its earlier holdings that road maintenance and repair are discretionary functions.
Little,
¶10. Previously, we have said that, while a certain act may be mandated by statute, how that act is performed can be a matter of discretion. See, e.g., McQueen v. Williams,
¶ 11. Because Section 65-1-65 requires the Department to maintain and repair state highways, that duty — and all acts in furtherance of that duty — are ministerial unless, as in Montgomery, another statute makes a particular act discretionary. Today, we overrule the line of cases holding otherwise. See Miss. Dep’t of Transp. v. Cargile,
¶ 12. The dissent continues to toe the line of cases that we eroded in Montgomery and overrule today. In truth, the dissent’s explication of our caselaw ascribing immunity to acts rather than functions does even more to highlight the extent to which our precedent has strayed from the language of the MTCA itself. As we note above, it is the function, not the act, to which the MTCA grants or denies immunity. We — the judicial branch of government — should not place ourselves in the position of changing the substantive law enacted by the Legislature, Stockstill v. State,
III. Whether the Court of Appeals erred in its application of the immunity provisions of the MTCA.
¶ 13. Little asserts that the Court of Appeals erred in applying the immunity provisions of the MTCA found in Section 11-46-9. He also asserts that the courts’ longstanding and consistent application of those immunity provisions is erroneous and should be overturned because, in his
¶ 14. Little asserts that, even if the Department was entitled to discretionary-function immunity, which we have held it is not, the Department could not be immune from liability because it had a duty to warn of a dangerous condition under Section ll-46-9(l)(v). See Miss. Code Ann. § ll-46-9(l)(v) (Rev.2012). First, Little seemingly seeks to have subsection (l)(v) enforced as an affirmative duty to warn, rather than as a provision for immunity against claims for failure to warn.
¶ 15. Second, Little asserts that Section 11-46-9(1) is not written in the disjunctive, and that immunity under one provision is not sufficient. Little has failed to articulate exactly how he thinks Section 11-46-9(1) should be applied. Presumably, he means that immunity must be found under all of the subsections. That, however, would be absurd, as every subsection is not relevant to every claim. Regardless, such an application would be contrary to this Court’s consistent application of the MTCA for the last twenty years. See Fortenberry v. City of Jackson,
¶ 16. The Department’s duty to maintain and repair highway right-of-way is a ministerial function. Therefore, the Department is not entitled to discretionary-function immunity for the acts, or the failure to act, associated with that function, and the circuit court erred in granting the Department’s motion to dismiss on that basis. The judgments of the George County Circuit Court and the Court of Appeals are reversed, and the case is remanded to the circuit court for further proceedings consistent with this opinion.
¶ 17. REVERSED AND REMANDED.
Notes
. Little also asserted a claim under Section 65-7-9 for failure to remove dead or dangerous trees near a public road, but that claim is inapplicable because that section applies to
. Notably, Little’s complaint did not include a claim a for failure to warn, but he attempted to assert that claim at the hearing via subsection (l)(v).
Dissenting Opinion
dissenting:
¶ 18. I agree that the Mississippi Department of Transportation (“MDOT”)
¶ 19. In Mississippi Transportation Commission v. Montgomery,
¶ 20. Montgomery came to this Court on an interlocutory appeal from a denial of a motion for summary judgment. Id. at 791. The trial court denied MDOT’s motion for summary judgment because it found issues of material fact “existed as to whether [MDOT] had notice of the pothole.” Id. at 800. We found that “the trial court erred by failing first to consider whether the failure to warn was a discretionary function under the public-function test” and reversed the judgment and remanded the case. Id. Thus, we simply ordered the trial court first to consider whether [MDOT’s] duty to warn of a dangerous pothole on a highway was discretionary or ministerial under Section 11-46-9(l)(d) and if it was discretionary, then it would be proper to grant [MDOT’s] motion for summary judgment. Id. at 799-800 (“If the nature of [MDOT’s] duty to warn of this pothole indeed involves choice or judgment and is grounded in policy considerations, then [MDOT] is immune under Section ll-46-9(l)(d)).” Id. In Montgomery, we did not overturn the line of cases cited infra and for good reason.
¶ 21. This Court and the Court of Appeals repeatedly have held that road maintenance and repair are discretionary as opposed to ministerial functions. See
¶ 22. Under the Mississippi Torts Claims Act (“MTCA”), a governmental entity and its employees are immune from liability for claims arising from “the exercise or performance or the failure to exercise or perform a discretionary function or duty[.]” Miss.Code Ann. § ll-46-9(l)(d) (Rev.2012). A two-prong analysis is required to determine whether governmental conduct is discretionary: “(1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment ... involves social, economic or political policy alternatives.” Doe v. State ex rel. Miss. Dep’t of Corrections,
¶ 23. Section 65-1-65 provides in part, “it shall be the duty of the director, subject to the rules, regulations and orders of [MDOT] ... to organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained state highway system[.]” Miss.Code Ann. § 65-1-65 (Rev.2012). With regard to the first prong of the test, Section 65-1-65 clearly involves an “element of choice or judgment,” because it gives discretion to MDOT to determine how the highways are to be maintained by setting rules and organizing patrols throughout the state’s thousands of miles of highway.
¶ 24. Regarding the second step for determining discretionary-function immunity, this Court reasoned, as it pertained to road maintenance by a member of a board of supervisors in Brazeale:
[W]e recognize that, for various reasons, at least some roads may be in a state of disrepair from time to time, particularly due to the lack of funds, which would, of course, require that the main, heavily-traveled roads receive the supervisor’s immediate attention. Certainly, making the determination as to which roads should be the better maintained under such conditions would be a discretionary matter....
Brazeale,
¶ 25. Section 65-1-65 does not specify in what manner or under what conditions maintenance is to be performed, thus calling for discretion and judgment on the part of MDOT. Further, highway maintenance by MDOT involves policy and economic considerations through the exercise of MDOT’s discretion in determining which highways or roads should be repaired first and which maintenance issues are most important.
¶ 26. I would affirm the Court of Appeals decision and the judgment of the trial court and follow the precedent this Court has established since the Mississippi Torts Claims Act was adopted in 1984. I would find that MDOT’s duty to maintain, repair, and inspect highways is discretionary, and MDOT is entitled to discretionary function immunity under Mississippi Code Section 11 — 46—9(l)(d).
¶ 27. For the above-mentioned reasons, I respectfully dissent.
. The majority opinion refers to tire Mississippi Department of Transportation as the "Department.” Many cases, including some cited in this opinion, refer to the "Commission” or the State Highway Commission and some to the Mississippi Department of Transportation or "MDOT.” The statutes, including the one at issue here, Mississippi Code Section 65-1-65, place “the duty of the State Highway Commission to have the State Highway Department maintain all highways.” Miss.Code Ann. § 65-1-65 (Rev.2005). I will use the term "MDOT” to refer collectively to the State Highway Commission and to the Mississippi Department of Transportation.