Joseph Erich WILLING, Jr., and Jeanette Willing, Individually, and as Parent and Natural Guardian of the Minors Joseph Brandon Willing and Chadwick Mitchell Willing, and as Administratrix of the Estate of Joseph Erich Willing, Sr., Deceased, Appellants,
v.
ESTATE OF Richard BENZ, Jr., Deceased, Wendy P. Benz, Executrix and the City of Greenwood, Mississippi, Appellees.
Court of Appeals of Mississippi.
*1243 Thomas Henry Freeland, attorney for appellants.
Richard Benz, Jr., Arnold F. Gwin, Greenwood, Wilton V. Byars, Terry Dwayne Little, Oxford, attorneys for appellees.
EN BANC.
MODIFIED OPINION ON MOTION FOR REHEARING
BARNES, J., for the Court.
¶ 1. The appellants' motion for rehearing is denied, and the previous opinion of this Court is withdrawn, and this opinion is substituted in lieu thereof. This wrongful death action brought under the Mississippi Tort Claims Act ("MTCA") arose from circumstances surrounding the death of Joseph Erich Willing, Sr. near the intersection of U.S. Highway 49 and U.S. Highway 82 in Greenwood, Mississippi on January 8, 2002. The Willings appeal to this Court from the Leflore County Circuit Court's grant of summary judgment in favor of the City of Greenwood as well as from the court's award of attorney's fees to Richard Benz, Jr. Finding error only in the trial court's award of attorney's fees, we affirm in part and reverse and remand in part.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. At approximately 6:18 a.m. on the morning of January 8, 2002, Officer Scott Beck of the Greenwood Police Department responded to a single vehicle accident near the intersection of U.S. Highway 49 and U.S. Highway 82 in Greenwood, Mississippi. The driver of the vehicle informed Officer Beck that she was traveling in the eastbound lane of Highway 82 when she hit what appeared to be a patch of ice that caused her vehicle to slide across the median into the westbound lane of Highway 82. At approximately 6:35 a.m., Officer Beck radioed the police dispatcher and reported the three to four foot patch of ice on the road so that the Mississippi Department of Transportation ("MDOT") could be notified to address the condition with sand or salt. Officer Beck then completed his accident report and left the scene. A few minutes after receiving the report from Officer Beck, the police dispatcher notified MDOT of the ice on thе highway.
¶ 3. At approximately 7:13 a.m. on the same morning, Officer Beck was again dispatched to the intersection of Highway 49 and Highway 82 in reference to another accident. Sharon Simpson, the driver of the vehicle involved in this accident, stated that she was traveling approximately seventy *1244 miles per hour[1] east on Highway 82 when she drove over a patch of ice and slid across the median, hitting and killing Joseph Erich Willing, Sr. ("Willing, Sr."), who was in the process of repairing a construction sign damaged in the first accident. The patch of ice involved in this accident was apparently the same patch of ice involved in the earlier accident. MDOT arrived to address the patch of ice a few minutes before Officer Beck left the scene of this second accident.
¶ 4. By the end of the day, Joseph Erich Willing, Jr. ("Joseph") had filed a complaint in the Circuit Court of Leflore County, Mississippi as a wrongful death beneficiary of Willing, Sr. Joseph contemporaneously petitioned the Chancеry Court of Leflore County for letters of administration in the estate of Willing, Sr. The chancery court granted this petition and also approved the contingent fee contract between Joseph and his attorney Richard Benz, Jr.[2] Subsequently, Jeanette Willing, widow of Willing, Sr. and guardian of their two minor children, filed a motion through separate counsel in the Leflore County Chancery Court to set aside the order granting letters of administration and approving the contingent fee contract between Joseph[3] and Benz. Acknowledging that Grenada County was the proper venue for administration of Willing, Sr.'s estate and that Jeanette Willing should have been given preference to administer the estate, the Leflore County Chancery Court granted Jeanette's motion and entered an order to that effect on April 5, 2002.[4] The contract for employment between Joseph and Benz, insofar as it may have related to any activity on behalf of Jeanette Willing or the two minor children, wаs ordered "set aside, canceled and held for naught" by the chancellor.
¶ 5. On July 2, 2002, Sharon Simpson filed an interpleader counterclaim asking that $100,000, the policy limits of her automobile liability insurance, be interpled into the registry of the circuit court in which the wrongful death action was pending. An agreed order was entered by the circuit court granting Simpson's interpleader request and ordering all plaintiffs to release Simpson from further liability. The circuit court then entered an order disbursing the proceeds of the settlement funds, finding that Benz was entitled to one-third of the proceeds pursuant to the contingency fee contract signed by Joseph on behalf of the wrongful death beneficiaries of Willing, Sr.
¶ 6. Jeanette Willing, acting through separate counsel, was allowed to intervene in the wrongful death action, and her counsel immediately moved the Leflore County Circuit Court to reconsider the disbursement order, citing the fact that the Leflore *1245 County Chancery Court had revoked thе letters of administration it had granted to Joseph and had invalidated the contract for employment between Benz and Joseph as it may have related to activity on behalf of Jeanette Willing or her two minor children. This motion was denied by the circuit court on January 15, 2003.
¶ 7. Having received contingency fees from the Simpson settlement proceeds and at the written request of Joseph, Benz filed a motion to withdraw as counsel for Joseph, and this motion was granted by order of the circuit court on June 26, 2003. Pursuing their claims now by joint representation, the Willings' complaint was amended to add the City of Greenwood as a defendant. The amended complaint alleged negligence on the part of the city in failing to warn of the icy condition on the highway. The city moved for summary judgment asserting that it was immune from liability by virtue of the MTCA. More specifically, the city cited immunities found at sections 11-46-9(1)(c), (d), (q), and (v) as precluding liability for the city's acts or omissions regarding the death of Willing, Sr. The circuit court granted the city's motion for summary judgment, dismissing the case with prejudice; however, the circuit court found that immunity existed under subsections (c), (d), and (q) only.
¶ 8. Aggrieved, the Willings appeal to this Court urging that there are genuine issues of material fact as to whether the city was entitled to immunity under any provision of the MTCA and that therefore the grant of summary judgment in favor of the city was error. Additionally, the Willings appeal the circuit court's grant of a one-third contingency fee to attorney Benz from the interpled settlement proceeds. The Willings assert that Benz is entitled to contractual fees only with respect to his representation of Joseph and that he is entitled to fees based on quantum meruit with respect to work that may have benefitted Jeanette Willing, the estate of Joseph Erich Willing, Sr., and Jeanette Willing's two minor children. We find that there is no genuine issue as to whether the immunities found in subsections (c) and (q) are applicable to the Willings' claims against the City of Greenwood and therefore affirm the circuit court's grant of summary judgment. As to the award of contingent fees to attorney Benz out of proceeds attributable to beneficiaries other than Joseph, we reverse and remand the case with instructions that the circuit court use quantum meruit to determine the amount of fees owed to Estate of Richard Benz, Jr.
STANDARD OF REVIEW
¶ 9. When reviewing a trial court's grant of summary judgment, this Court applies a de novo standard of review. Busby v. Mazzeo,
¶ 10. The circuit court's decision to award contingent fees to attorney Benz will not be disturbed unless the trial judge's decision was manifestly wrong, clearly erroneous, or an improper legal standard was applied. See Pannell v. Guess,
ISSUES AND ANALYSIS
¶ 11. The Willings' appeal raises two factually and legally distinct issues. We will therefore address each issue separately.
I. WHETHER THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT BASED ON IMMUNITIES AFFORDED THE CITY OF GREENWOOD UNDER THE MISSISSIPPI TORT CLAIMS ACT
¶ 12. The trial court held that the City of Greenwood was immune from liability by virtue of three immunity provisions found in the MTCA. The sections found applicable by the trial court provide that:
A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liablе for any claim:
. . . .
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
. . . .
(q) Arising out of an injury caused solely by the effect of weather conditions on the use of streets and highways. . . .
Miss.Code Ann. § 11-46-9(1)(c), (d), and (q) (Rev.2002).
¶ 13. The Willings argue that (1) a genuine fact issue exists as to whether Officer Beck's conduct with respect to the icy condition on the highway amounts to a "reckless disregard [for] the safety" of the traveling public within the meaning of subsection (c); (2) the trial court imрroperly held that the city's duty to warn in this case was discretionary as contemplated by subsection (d); and (3) a genuine fact issue exists as to whether the accident in question was caused solely by the effect of weather conditions, precluding summary judgment pursuant to subsection (q).
¶ 14. We note at the outset that counsel for the Willings alluded in the appellants' brief and more directly during oral arguments that liability or immunity therefrom should be analyzed separately with respect to the city's acts or omissions through Officer Beck and the city's acts or omissions by persons who may have been put on notice of the icy conditions by Officer Beck. We find this contention without merit as the only acts or omissions that may *1247 be attributed to the City of Greenwood were those of Officer Beck and those of dispatcher Lee Taylor who is also a Greenwood city police officer. There is no evidence in the record that any other city employee had knowledge of the icy condition nor do the Willings identify any other city employee who had a duty to act under the circumstances. Accordingly, we find that all acts or omissions properly attributable to the City of Greenwood were performed by employees engaged in activities relating to police protection.
A. WHETHER OFFICER BECK'S CONDUCT AMOUNTED TO RECKLESS DISREGARD FOR THE SAFETY OF THE TRAVELING PUBLIC
¶ 15. The Willings appeal the circuit court's grant of summary judgment pursuant to section 11-46-9(1)(c) of the MTCA. This section affords immunity for acts or omissions of police officers while performing police-related activities unless the police officer "acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury." Miss.Code Ann. § 11-46-9(1)(c) (Rev.2002). The facts in this case are not disputed. The characterization of these facts, however, is at issue. The Willings contend that Officer Beck's failure to take additional steps between the occurrence of the two accidents, separated by approximately forty-five minutеs, to warn the traveling public amounts to reckless disregard for the traveling public's safety or at the very least creates a triable issue. We disagree.
¶ 16. Reckless disregard is a higher standard than gross negligence. Miss. Dep't. of Pub. Safety v. Durn,
¶ 17. Under the standard discussed above, in order to find that Officer Beck's conduct amounted to reckless disregard, the Willings must show facts from which a trier of fact could conclude that: (1) the patch of ice created an unreasonable risk; (2) this risk included a high probability of harm; (3) Officer Beck appreciated the unreasonable risk; and, (4) Officer Beck deliberately disregarded that risk, evincing "almost a willingness that harm should follow." See Durn,
¶ 18. There is no evidence in the record that would indicate the probability of additional accidents. Although the mere fact that the first accident occurredand a condition which contributed to that accident remained on the highwaymay indicate that additional accidents were possible, we decline to address whether this possibility would be sufficient to create a genuine issue with respect to the first three factors specified in the preceding paragraph. Instead, we find that the Willings failed to provide sufficient proof that *1248 Officer Beck deliberately disregarded the risk posed by the icy condition, as required by the fourth factor enumerated above. Absent a showing that Officer Beck deliberately disregarded the risk posed by the patch of ice, there is no genuine issue as to whether Officer Beck's conduct amounted to reckless disregard. We turn now to a discussion of this issue.
¶ 19. The city cites Durn for the proposition that reckless disregard amounts "almost to a willingness that harm should follow" from an act or omission. Durn,
¶ 20. The Willings misconstrue the procedural posture of Turner. It was not held in Turner that the officer's conduct amounted to reckless disregard or even that sufficient evidence existed which would preclude summary judgment on this issue. The Turner court merеly held that "the facts pled do allege that [the officer] wrongfully and intentionally allowed a visibly intoxicated Smith to continue driving. By this alleged act, the officer allegedly showed a reckless or wanton or willful disregard for the safety of other drivers on the road, including Turner." Id. at 230(¶ 20). It was the legal sufficiency of the plaintiff's pleadings at issue in Turner, not the factual sufficiency as is before this Court. The court's holding in Turner did nothing to disturb the requirement that a plaintiff prove wantonness, which "is a failure or refusal to exercise any care, while negligence is a failure to exercise due care." Maldonado,
¶ 21. The Willings concede that Officer Beck notified his dispatcher of the condition of the highway and that the dispatcher promptly notified the MDOT so that sand and/or salt could be applied to the patch of ice. Yet, the Willings insist that Officer Beck "did nothing to prevent the second accident in which [Willing, Sr.] was killed." This contention, however, is inaccurate. To say that the second accident was not prеvented is not to say that no effort was made to prevent it. It is undisputed that Officer Beck notified his dispatcher with the intent that the condition be addressed by the MDOT. It is similarly without question that the dispatcher promptly notified the MDOT of the patch of ice. Unfortunately, the MDOT did not arrive on the scene until shortly after the fatal accident involving Willing, Sr. The fact that the second accident was not prevented does not change the fact that an effort was made to that end. In light of these undisputed facts, we certainly cannot agree with the Willings' contention on this point. Reasonable minds could not conclude, based on the evidence presented, that Officer Beck's conduct rose to the level of wantonness, which, as mentioned above, "is a failure or refusal to exercise any care, while negligence is a failure to exercise due care." Maldonado, 768 So.2d at *1249 912(¶ 8) (citations omitted) (emphasis added).
¶ 22. The Willings cite several cases which have found reckless disregard by the conduct of police officers in pursuit of fleeing suspects. The factors considered by these courts in reaching their decisions include the length of the chase, type of neighborhood, characteristics of the streets, the presence of vehicular or pedestrian traffic, weather conditions and visibility, and the seriousness of the offense for which the police are pursuing the vehicle. Durn,
¶ 23. The Willings do not specify any particular alternative course of conduct that Officer Beck should have taken, only generally that he should have performed his duty to warn. The Willings admit, as discussed infra, that Officer Beck's duty to warn did not include a duty to erect warning signs. We can speculate as to the feasibility and effectiveness of several alternatives, but there is no evidence in the record to support these speculations. In contrast, we can say with virtual certainty that had the officer in Turner taken the intoxicated motorist into custody, the accident in that case would not have occurred. Similarly, in Brister and other police pursuit cases, we can say that had the officers not engaged in pursuit of the suspects, or had disengaged the pursuit, the accidents would not have occurred. We cannot, nor can the Willings, assert similar certainty about Offiсer Beck's alleged failure to act as the Willings do not produce any specific alternative choices that Officer Beck should have taken, much less the potential benefits versus risks that an alternative would have produced. The questions left in our minds by the absence of such evidence in the record include: (1) whether Officer Beck should have remained on the side of the highway with his blue lights on (if this were done, we are not convinced that motorists would necessarily have known that there was a patch of ice on the road); (2) whether Officer Beck should have blocked off or barricaded this part of the highway (this alternative was not suggested by the Willings, and the record does not reflect the feasibility of this alternative, the effect on traffic, the potential harm versus benefit, or even whether Officer Beck or the city had authority to pursue this alternative).
¶ 24. In light of the foregoing discussion, we are not convinced that sufficient evidence exists in the record to suрport a finding that Officer Beck was even negligent. We certainly do not find that sufficient evidence exists from which a trier of fact could conclude that Officer Beck or the city failed or refused to exercise any care or that his actions evinced "almost a willingness that harm should follow." It follows that Officer Beck's conduct did not rise to the level of reckless disregard. Thus, we find the circuit court's grant of summary judgment as to the conduct of Officer Beck appropriate.
*1250 B. WHETHER THE CITY'S DUTY TO WARN WAS DISCRETIONARY WITHIN THE MEANING OF SECTION 11-46-9(1)(d)
¶ 25. The city originally relied only on sections 11-46-9(1)(c), (q), and (v) as the bases for its summary judgment motion. However, the city filed a supplemental motion for summary judgment, asserting that the city was immune pursuant to the "discretionary function or duty" immunity found in subsection (d). Relying on Collins v. Tallahatchie County,
¶ 26. In order to make the determination of whether governmental conduct is discretionary, this Court employs the public policy function test as adopted by the Mississippi Supreme Court in Jones v. Miss. Dep't of Transp.,
¶ 27. While we agree with the trial court that the conduct of Officer Beck involved the exercise of choice or judgment, we find that the trial court failed to consider the second prong of the public policy function test, which requires that the choice involve "social, economic, or political policy." Accordingly, we cannot, at this time, affirm the judgment of the trial court as to the applicability of section 11-46-9(1)(d).
1. Whether the activity involved an element of choice or judgment
¶ 28. The Willings contend that the city's duty to warn of the icy condition on the highway was not discretionary and that Officer Beck and the city breached this duty by not taking additional steps to warn the traveling public of this condition. An act is ministerial and not discretiоnary "(if) the duty is one which has been positively imposed by law and its performance required at a time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion." *1251 Stewart,
¶ 29. Although the Willings are correct in that the city generally has a duty to warn of dangerous conditions of which it has knowledge, the precise time, manner, and conditions upon which this duty could be carried out involve an element of choice or judgment.[5]See Jones,
¶ 30. Recognizing that the placement of road signs has been found to be a discretionary duty, the Willings represent that "the placement of warning signs was in no way involved in this case." Citing Jones, Leflore County v. Givens,
¶ 31. As previously discussed, a duty does not involve an element of choice or judgment, i.e., is ministerial and not discretionary, if the duty at issue is imposed by law and the time, manner, and conditions for carrying out that duty are specified, leaving no room for discretion. Stewart,
¶ 32. In Mosby v. Moore,
¶ 33. We find that Officer Beck's actions with regаrd to the icy condition on the highway involved an element of choice or judgment. As such, the decision to promptly notify the MDOT of the icy condition rather than remaining at the scene after the first accident was discretionary and not ministerial. By choosing this course of conduct, Officer Beck exercised his discretion in an attempt to make the dangerous condition safe. See, e.g., Cargile,
2. Whether the choice or judgment involves social, economic, or political policy
¶ 34. The second prong of the test protects only those discretionary acts or decisions founded upon public policy considerations. Dotts,
¶ 35. In the case sub judice, neither party addressed this prong of the public policy function test in their summary judgment briefs before the trial court nor do they address it on appeal. Consequently, the trial judge did not have the opportunity to apply both prongs of the public policy function test to the facts of this case, and we cannot affirm the trial court's decision on this ground. Were we not affirming summary judgment pursuant to sections 11-46-9(1)(c) and (q), we would be compelled to remand this case for a determination of the city's immunity based on both prongs of the public policy function test. As will be discussed below, however, where any of the immunities enumerated in section 11-46-9(1) apply, the government is complеtely immune from any claims arising from the act or omission complained of.
C. WHETHER THE ACCIDENT WAS CAUSED SOLELY BY THE EFFECTS OF THE WEATHER
¶ 36. The Willings' final assignment of error regarding summary judgment involves section 11-46-9(1)(q) of the MTCA. Specifically, the Willings insist that a genuine issue exists regarding whether the fatal accident which claimed the life of Willing, Sr. was "caused solely by the effect of weather conditions on the use of" Highway 82. Miss.Code Ann. § 11-46-9(1)(q) (Rev.2002). Under this MTCA provision, a governmental entity cannot be held liable for injury if that injury was caused solely by a weather conditionin our case, the patch of ice on the road. We agree with the city's position and the circuit court's holding on this issue that the accident in this case was caused solely by the patch of ice on the highway.[9]
*1254 ¶ 37. Mississippi courts have had occasion to consider this issue in very few cases. In Hayes v. Greene County,
¶ 38. In Schepens v. City of Long Beach,
¶ 39. Because the Willings do not point to any evidence that Officer Beck or the City of Greenwood contributed to or were otherwise responsible for the formation of the patch of ice, summary judgment was appropriate as to this immunity. See Horan,
¶ 40. We will not address the propriety of the trial court's finding that the city was not immune under section 11-46-9(1)(v) as this issue was not raised on appeal. In any event, we have found summary judgment appropriate with respect to immunities found at subsections *1255 (c) and (q) of Mississippi Code Annotated section 11-46-9(1) (Rev.2002). As established by precedent of both this Court and our supreme court, where any of the immunities enumerated in section 11-46-9(1) apply, the government is completely immune from any claims arising from the act or omission complained of. See State v. Hinds County Bd. of Supervisors,
II. WHETHER THE TRIAL COURT ERRED BY AWARDING CONTINGENT FEES TO ATTORNEY RICHARD BENZ, JR.
¶ 41. The Willings appeal the circuit's court award of a one-third contingency fee to Benz out of the settlement proceeds attributable to Jeanette Willing and her two minor children. The Willings point out that the Chancery Court of Leflore County improperly granted letters of administration to Joseph and improperly approved the contingent fee contract between Benz and Joseph. The Willings further argue that since the Leflore County chancellor revoked the letters of administration and revoked approval of the Benz-Joseph contract, Benz is entitled to contractual fees only with respect to his representation of Joseph and to fees based on quantum meruit for any work that may have benefitted beneficiaries other than Joseph.
¶ 42. We agree with the Willings' conclusion; although for reasons that will be discussed, we do not agree with the reasoning employed by the Willings to reach this conclusion. Nonetheless, since the chancellor's disbursement order cited the Joseph-Benz contingency fee contract as the basis for awarding attorney's fees to Benz, and a substantial portion of the fees were derived from proceeds attributable to the two Willing minors, we are obligated to reverse and remand this case to the Circuit Court of Leflore County for a quantum meruit determination as to what fee Benz is entitled from Jeanette's and the two minor Willings' share of the settlement proceeds.[12] Additionally, any determination regarding fees out of the proceeds attributable to the two minors must be made contingent on aрproval by the Chancery Court of Grenada County.
*1256 ¶ 43. The Mississippi Supreme Court recently clarified what had been very murky waters. In Long v. McKinney,
¶ 44. A wrongful death beneficiary may bring suit with or without the knowledge and agreement of the remaining beneficiaries or estate representative. Long,
¶ 45. In the case at bar, Jeanette Willing retained separate counsel to represent her interests individually as beneficiary, as personal representative of Willing, Sr.'s estate, and as guardian of her two minor children. There is no evidence in the record that Jeanette gave informed written consent to the representation and fee arrangement between Joseph and Benz. Accordingly, Benz was entitled to contingency fees based on the Joseph-Benz contract only with respect to Joseph's portion of the proceeds. Regarding the remainder of the proceeds, "an attorney who successfully prosecutеs a wrongful death claim without representing all of the heirs must prove that he has earned a fee from the proceeds distributed to all of the heirs." Franklin v. Franklin,
*1257 ¶ 46. The fact that Benz was instrumental in securing the settlement with Simpson's insurance carrier, the only proceeds at issue here, is not disputed. The Willings concede that Benz was entitled to fees based on quantum meruit with respect to proceeds attributable to the estate, Jeanette Willing, and the two minor children. We agree, with two reservations. First, the amount of the proceeds attributable to the estate was deducted prior to the calculation of contingency fees that were ultimately awarded to Benz. Therefore, Benz did not receive any fees from the estate's share of the proceeds. Since Benz did not assert a claim to fees from the estate's share of the proceeds at trial, we will not require a determination on remand as to his quantum meruit entitlement thereto.[15]
¶ 47. Second, we do not agree with the Willings' contention that thе circuit court did not have jurisdiction to apportion any fees to Benz. Chancery court approval is required only with respect to fees paid out of estate proceeds and fees paid out of minors' proceeds. See Long,
¶ 48. Accordingly, we agree with the Willings' contention that quantum meruit is the appropriate measure for attorney's fees with respect to work performed by Benz that may have benefitted Jeanette Willing and her two minor children.
CONCLUSION
¶ 49. We find that the circuit court was correct in finding that there were no genuine issues as to whether the immunities found in Mississippi Code Annotated sections 11-46-9(1)(c)and (q) applied to the City of Greenwood. We therefore affirm the court's grant of summary judgment in favor of the city.
¶ 50. With respect to the contingency fees awarded to attorney Richard Benz, Jr., we remand the case to the Circuit Court of Leflore County with instructions that an evidentiary hearing be held to determine the amount of attorney's fees to which the Estate of Richard Benz, Jr. is *1258 entitled based on quantum meruit. We do not disturb the contingency fees awarded by the circuit court to Benz from the settlement proceeds attributable to Joseph nor do we find that the estate proceeds should be considered in the court's determination. The circuit court's determination should also be contingent upon approval by the Chancery Court of Grenada County of attorney's fees from the proceeds attributаble to the two minor Willings.
¶ 51. THE JUDGMENT OF THE LEFLORE COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANTS AND APPELLEE ESTATE OF RICHARD BENZ, JR., DECEASED.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, ISHEE AND ROBERTS, JJ., CONCUR. GRIFFIS AND CARLTON, JJ., NOT PARTICIPATING.
NOTES
Notes
[1] This stretch of Highway 82 was under construction at the time of the accident, and the posted speed limit was forty-five miles per hour.
[2] Richard Benz, Jr. died on January 23, 2006, after the notice of appeal was filed in this case. A motion to substitute parties pursuant to M.R.A.P. 43 was made after we rendered our original opinion in this case. An order allowing the substitution of the Estate of Richard Benz, Jr., and Wendy Benz, executrix, was entered on February 27, 2007, and our modified opinion reflects this substitution.
[3] Joseph Erich Willing, Jr. is an adult child of Willing, Sr. from a prior marriage.
[4] Section 91-7-63 provides that letters of administration shall be granted in the county in which the decedent resides at the time of death, if decedent had a fixed place of residence at that time. Miss.Code Ann. § 91-7-63(1) (Rev.2004). It was not disputed that Willing, Sr. resided in Grenada county at the time of his death. This section further provides that in granting letters of administration, preference should be first given to the husband or wife of the decedent. Id.
[5] While the Willings' only argument regarding the duty at issue is that the city had a duty to warn, we find the duty owed to be much broader in that the city and Officer Beck had a duty to insure the safety of the public, in this instance, the traveling public. In referencing this argument, we will mention the duty to warn, the duty to make safe, and the duty to insure the safety of the traveling public, but we acknowledge that the two former duties are really alternative means of achieving the latter. See Miss. Dep't of Transp. v. Cargile,
[6] The court in Cargile found that the trial court correctly held MDOT's duty to regularly inspect and maintain the highway to be discretionary. Nonetheless, the court held that MDOT had a duty "to exercise a minimum standard of ordinary care to maintain the statutory shield. As in Jones, MDOT has a duty to warn of dangerous conditions if given notice, either actual or constructive, of a dangerous condition." Accordingly, "[i]mmunity for discretionary duties is granted only when ordinary care is used." Cargile,
In Jones, the court found that after a road is built and the entity responsible for thаt road becomes aware of a dangerous condition of the road, the entity's duty becomes one of maintenance, and the entity must use due care in the exercise of its discretion. Jones,
Givens involved the failure of the county to place a traffic sign warning of an allegedly dangerous curve. Givens,
The Willings also cite Yazoo City v. Loggins,
[7] The court relied on language found in the statutes mandating that authorities place traffic control devices as deemed necessary. Miss.Code Ann. §§ 63-3-303-305 (Rev.2004).
[8] According to the United States Supreme Court, "A discretionary act is one that involves choice or judgment; there is nothing in that description that refers exclusively to policymaking or planning functions. Day-to-day management of banking affairs, like the management of other businesses, regularly requires judgment as to which of a range of permissible courses is the wisest. Discretionary conduct is not confined to the policy or planning level. `It is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.'" Gaubert,
[9] The Willings assert that Sharon Simpson, the driver of the vehicle involved in the fatal accident, was also negligent, precluding a finding that the weather was the sole cause of the accident. Conceding this fact, our conclusion is not affected, for it is the governmental actor's conduct that is relevant for purposes of immunity. To allow the negligence of a third party to thwart the immunity of the government under this or any other provision would produce absurd results. Indeed, if this were allowed, it could be argued that even the plaintiff's negligence should preclude immunity. We do not think that this was the legislature's intent in using the term "sole."
[10] Horan involved factually and legally similar issues as our case: an accident caused by ice on a road, an allegation of a failure to warn, and an immunity provision very similar to our section 11-46-9(1)(q). In addressing the plaintiff's arguments that the city's failure to warn contributed to the accident, the court stated: "As the trial judge recognized and as we agree, if these arguments were thought to be sound, the weather immunity statute would, in effect, be written out of the books." Horan,
Pico also involved an accident caused by ice on the highway. In addition to citing with approval the reasoning and holding of Horan, the court went further in stating that "under the [New Jersey] Tort Claims Act the State may be liable for the failure to correct a known pre-existing dangerous condition unrelated to the weather, but that it is immune from liability for such a condition caused solely by weather."
[11] However, in so affirming summary judgment in this case, we distinguish the facts present in this opinion from the facts in our previously decided opinion of McDonald v. Mississippi Department of Transportation, 2005-CA-00128-COA (¶¶ 19-28) (Miss Ct. App. Sept. 19, 2006). In McDonald, the plaintiff's multiple claims, including negligent design and negligent repair, arose from injuries she suffered in an automobile accident upon a bridge. Citing to a law review article by Jim Frasier, "A Review of the Substantive Provisions of the Mississippi Governmental Immunity Act: Employees' Individual Liability, Exemptions to Waiver of Immunity, Non-jury Trial and Limitation of Liability," 68 Miss. L.J. 703, 813 (1999), we held that where there are separate claims, each based on different allegedly negligent actions by the state entity, then each claim must be independently tested against the list of exemptions from liability provided by section 11-46-9. McDonald, 2005-CA-00128-COA at (¶ 28). Unlike the facts in McDonald, in the present case there is only a single allegation of negligence.
[12] As will be discussed infra, fees from proceeds attributable to the Willing, Sr. estate are not at issue.
[13] Mississippi's wrongful death statute is found at Mississippi Code Annotated section 11-7-13 (Rev.2002).
[14] "Counsel will be paid their fees and expenses from their respective client's recovery, according to their agreements, provided however, that any party or counsel who believes in good faith that attorney fees have been distributed in a manner which is grossly out of proportion to the work performed, may petition the trial court for a review of the work performed by all counsel and a more equitable distribution of attorney fees." Long,
[15] A wrongful death claim is not part of the decedent's estate. Franklin,
[16] The court in Long held that chancery approval of representation and of the fee agreement is prudent, but not required, prior to initiating suit on behalf of the estate and other beneficiaries. Chancery court approval is necessary for representation of a minor's interest, for attorney's fees awarded from a minor's proceeds, for fees awarded from proceeds of an estate, and for determination of wrongful death beneficiaries. Long,