IN THE SUPREME COURT OF MISSISSIPPI CASE NO CC-002S8 c;oii-~ TERRY H. LOGAN, SR. AND BEVERLY W. LOGAN CERTIFICATE OF INTERESTED PERSONS

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1 IN THE SUPREME COURT OF MISSISSIPPI CASE NO CC-002S8 c;oii-~ TERRY H. LOGAN, SR. AND BEVERLY W. LOGAN 1PELLANTS V. MISSISSIPPI DEPARTMENT OF TRANSPORTATION AND MISSISSIPPI TRANSPORT A TION COMMISSION APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges ofthe Court of Appeals may evaluate possible disqualifications of recusal. I. Honorable James McClure III Circuit/Trial Court Judge 2. Terry H. Logan, Sr. and Beverly W. Logan Appellants 3. Charles J. Swayze III Attorney for Appellants 4. Mississippi Department of Transportation Appellee 5. Mississippi Transportation Commission Appellee 6. Robert J. Dambrino CHARLES J. WHITTINGTON, DI\.'W<''' P.O. Box 941 Greenwood, MS Telephone: Facsimile: cjsiii@whittingtonlaw.com Counsel for Plaintiffs - Appellants

2 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... ".. "... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF ISSUES... 1 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS... 2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 I. STANDARD OF REVIEW... 4 II. THE TRIAL COURT ERRED IN OPINING THAT... 5 DEFENDANT WAS IMMUNE FROM LIABILITY UNDER THE MISSISSIPPI TORT CLAIMS ACT WHEN IT HAD KNOWLEDGE OF THE DANGEROUS CONDITION THAT CAUSED PLAINTIFFS' ACCIDENT AND FAILED TO REMEDY THE CONDITION OR WARN THE PLAINTIFFS OF ITS PRESENCE III. THE TRIAL COURT ERRED IN OPINING THAT... '] DEFENDANT WAS ENTITLED TO DISCRETIONARY IMMUNITY UNDER MISS. CODE ANN (d) WHEN IT FAILED TO MAINTAIN IN A SAFE CONDITION THE BRIDGE, WHERE THE SUBJECT ACCIDENT OCCURRED, AFTER IT HAD KNOWLEDGE OF A DANGEROUS CONDITION IV. GOVERNMENTAL IMMUNITY UNDER MISSISSIPPI TORT... 9 CLAIMS ACT AS TO ONE CAUSE OF ACTION IN PLAINTIFFS' COMPLAINT DOES NOT EQUATE TO GOVERNMENTAL IMMUNITY AS TO ALL CAUSES OF ACTION CONCLUSION.. " CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES Cases Chisolm v. MDOT, 942 So. 2d 165 (Miss. Ct. App. 2005)... 6 Chisolm v. MDOT, 942 So. 2d 136 (Miss. 2006)... 6 Heigle v. Heigle, 771 So. 2d 341 (Miss. 2000)... 4 Jones v. Mississippi Department o/transportation, 744 So. 2d 256 (Miss. 1999)... 8,9 Jones v. Mississippi Transportation Commission, 920 So. 2d 516 (Miss. Ct. App. 2006)... 6 Lang v. Bay St. Louis / Waveland School District, 764 So. 2d 1234 (Miss. 1999)... 8 Little v. MDOT, 2012 Miss. App. LEXIS 627 (Miss. Ct. App. 2012)... 5 MacDonald v. MDOT, 955 So. 2d 355 (Miss. Ct. App. 2007) Miss. Transp. Comm 'n v. Montgomery, 80 So. 3d 789 (Miss. 2012)....4, 5, 8, 9,10 Titan Indemnity Co. v. Estes, 825 So. 2d 651 (Miss. 2002)... 4 Tucker v. Hinds County 558 So. 2d 869 (Miss. 1990)... 4 III

4 Statutes Miss. Code Ann , 6,8,10 Miss. Code Ann ,9 Treatise Jim Frasier, Recent Developments in Mississippi Tort Claims Act Law Pertaining to Notice o/claim and Exemptions to Immunity Issues; Substantial/Strict Compliance, Discretionary Acts, Police Protection and Dangerous Conditions, 76 Miss. L. J. 973 (2007)... 6 IV

5 STATEMENT OF THE ISSUES I. Whether Defendants are immune from liability under the Mississippi Tort Claims Act, Miss. Code Ann et seq. when it had Irnowledge of a dangerous condition and failed to remove the dangerous condition or warn the Plaintiffs of the presence of the dangerous condition. II. III. Whether the Trial Court erred in opining that the Defendants were entitled to discretionary immunity under Miss. Code Ann (d) when it failed to maintain in a safe condition the bridge, where the subject accident occurred, after it had lrnowledge of a dangerous condition. Governmental immunity under the Mississippi Tort Claims Act as to one cause of Plaintiffs' Complaint does not equate to governmental immunity to all causes of action. I

6 STATEMENT OF THE CASE This cause is appealed to this Court by Plaintiffs, Terry H. Logan and Beverly W. Logan, as described in the Notice of Appeal filed with the Circuit Clerk of Tallahatchie County on November 30, The style generated by this Court incorrectly lists Terry H. Logan as the only Plaintiff. This is a personal injury case filed by Plaintiffs, Terry H. Logan and Beverly W. Logan, as a result of single car accident in which they were injured on March 12, The accident was caused by the negligent maintenance of Defendants, Mississippi Department of Transportation and Mississippi Transportation Commission. (Hereinafter referred to collectively as "Defendant"). Defendant was aware of the dangerous condition which caused Plaintiffs' accident but it failed to remove the dangerous condition or warn the Plaintiffs of the presence of the dangerous condition. Defendant was granted summary judgment on the theory of governmental immunity under the Mississippi Tort Claims Act. The actions of Defendant do not entitle it to immunity and Plaintiffs appealed the Trial Court's decision. STATEMENT OF THE FACTS On March 12, 2011, the Plaintiffs, while returning home from a trip to Memphis, were involved in a single car accident on Highway 49 south in Tallahatchie County near Glendora. (See Tr. 240, Ins. 2-6 and Tr. 241, Ins. 7-10). Plaintiff, Terry Logan, was driving. As the Plaintiffs crossed the first bridge south of Glendora on Highway 49, large metal plates, bolted to the bridge, grabbed the bottom of Plaintiffs' vehicle causing them to lose control and crash. (Tr ) (See picture of the metal plates, Tr ). The metal plates cut the bottom of the 2

7 Plaintiffs' vehicle from the front axle to the rear axle. Plaintiff, Terry Logan, testified that the power steering was lost and he had no control of the vehicle. (Tr. 243 Ins and Tr. Ins. 1- II). Mauri Logan, daughter-in-law ofthe Plaintiffs, came to the accident scene. (Tr. 247). While on the scene, two employees of Defendant informed her that Defendant had received a call earlier in the day about the dangerous metal plates on the bridge. (Id.) No action was taken by Defendant to remove the dangerous metal plates or warn of their presence. Defendant's employees advised her to take pictures of the plates that caused the accident. (rd.) The Plaintiffs suffered serious injuries and were treated at Greenwood Leflore Hospital and by their family physician, Walter Rose, M.D. Damages are not an issue. SUMMARY OF THE ARGUMENT Plaintiffs appeal from the judgment of the Circuit Court on the basis that the Court should have denied Defendant's Motion For Summary Judgment because Defendant failed to meet the exceptions by which a governmental entity can be exempt from tortious liability under the Mississippi Tort Claims Act. On March 12,2011, the Plaintiffs were traveling south on Mississippi Highway 49 when their vehicle was carved apart by two metal plates protruding up from a bridge, causing a serious accident which injured them. These metal plates had been a dangerous condition in the middle,jd ~~\fy of the roadway since earlier in the day. Defendant knew of the dangerous condition and failed to repair it. Defendant, knowing of the dangerous condition, also failed to warn Plaintiffs or any other motorists of the presence of the dangerous metal plates. Since Defendant knew of the dangerous condition, had adequate time to repair it and failed to warn Plaintiffs of its presence it is not entitled to governmental immunity. Further, Defendant was performing maintenance on the bridge where the dangerous metal 3

8 plates were placed. When Defendant has knowledge of a dangerous condition in the road its duty becomes one of maintenance. Road maintenance is not a discretionary act giving Defendant immunity. The Trial Court erred in opining that the maintenance performed by Defendant was a discretionary act. Defendant was performing maintenance. It was negligent and its conduct does not qualify it for immunity. Last, each cause of action in Plaintiffs Complaint should be measured separately against the goverrunental immunities provided for in the Mississippi Tort Claims Act. The mere fact Defendant may be immune as to one cause of action does not mean it is immune to all causes of action. The Trial Court erred when it dismissed Plaintiffs entire case on the premise that Defendant was performing maintenance and was immune from any liability. The Trial Court erred in granting Defendant's Motion for Summary Judgment. Anyone of the foregoing errors is enough to warrant that the case be reversed. This cause should be remanded to the Trial Court for a trial on the merits. ARGUMENT I. STANDARD OF REVIEW. "When reviewing a grant or denial of summary judgment, the Court conducts a de novo review of the trial court's judgment." Miss. Transp. Comm'n v. Montgomery, 80 So. 3d 789,794 (Miss. 2012). "[MJotions for summary judgment are to be viewed with a skeptical eye, and if a trial court should err, it is better to err on the side of denying the motion." Titan Indemnity Co. v. Estes, 825 So. 2d 651, 654 (Miss. 2002). The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990). See also Heigle v. Heigle, 771 So. 2d 341,345 (Miss. 2000). 4

9 "[TJhe Legislature has waived immunity for torts committed by the State of Mississippi and its employees who are acting within the scope of their employment." Montgomery, 80 So. 3d at 794. "The Mississippi Tort Claims Act ("MTCA") establishes the exclusive civil remedy against government entities and its employees for acts or omissions that give rise to a lawsuit." Little v. MDOT, 2012 Miss. App. LEXIS 627, ~6 (Miss. Ct. App. 2012). There are limited exceptions in which government entities are immune. Miss. Code Ann These immunities are not limitless. II. THE TRIAL COURT ERRED IN OPINING THAT DEFENDANT WAS IMMUNE FROM LIABILITY UNDER THE MTCA WHEN IT HAD KNOWLEDGE OF THE DANGEROUS CONDITION THAT CAUSED PLAINTIFFS' ACCIDENT AND FAILED TO REMEDY THE CONDITION OR WARN THE PLAINTIFFS OF ITS PRESENCE. Plaintiffs allege in their Complaint that Defendant was negligent "in allowing to exist a defective and dangerous condition, i.e. metal plates protruding above the bridge which grabbed the bottom of Plaintiffs' vehicle causing them to lose control and violently crash into the bridge which resulted in serious injuries." (Tr. 6). The accident was first reported at approximately 5:22 p.m. (Tr. 288). The Defendant was aware earlier in the day of March 12, 20 II, that the dangerous metal plates that caused the Plaintiffs' accident were protruding up off the bridge deck. (Tr. 247). Mauri Logan, daughter-in-law of the Plaintiffs, was on the scene after the accident. (Id.). She spoke with two employees of Defendant who were also at the scene of the accident. The first employee informed her that Defendant was aware of the dangerous condition of the metal plates on the bridge deck because it had received a call earlier in the day. (ld.). The second employee of Defendant corroborated the first employee's statement informing Mauri Logan that Defendant had in fact received a call earlier in the day regarding the dangerous condition of the metal plates on the highway. (Tr. 248). The testimony of Mauri Logan has 5

10 not been refuted. It is uncontradicted. "Only when given notice of a dangerous condition does a governmental entity become duty bound to warn or provide relief from the dangerous condition to those who use the roads." Jones v. Mississippi Transportation Commission, 920 So. 2d 516, 519 (Miss. Ct. App. 2006). It is recited in Miss. Code Ann (l)(v) that: (I) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: (v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn ofa dangerous condition which is obvious to one exercising due care. In other words, "a claimant must prove (I) that a dangerous condition existed on government property, (2) that it was caused by the entity and/or entity had notice of the condition and adequate time to protect or warn against it and (3) that the condition was not open and obvious to the claimant with the exercise of due care." Jim Frasier, Recent Developments in Mississippi Tort Claims Act Law Pertaining to Notice of Claim and Exemptions to Immunity Issues; Substantial/Strict Compliance, Discretionary Acts, Police Protection and Dangerous Conditions, 76 Miss L. J. 973, 1000 (2007)(emphasis added). "Under the plain language of the MTCA, MDOT could be held liable for injury resulting from a dangerous condition on the property if (I) MDOT had notice of the dangerous condition and (2) MDOT had adequate opportunity to protect or warn against the dangerous condition." Chisolm v. MDOT, 942 So. 2d 165,170 (Miss. Ct. App. 2005)(Chisolm was reversed by the Mississippi Supreme Court on grounds unrelated to governmental immunity in Chisolm v. MDOT, 942 So. 2d 136 (Miss. 2006)). 6

11 It is undisputed that the metal plates which caused the Plaintiffs' accident were a dangerous condition. The Trial Court took judicial notice of this in its ore tenus opinion stating "".I don't think there is any doubt [the metal plates are] a dangerous condition." (Court Reporter's transcript, pg 23, Ins ). Further, Defendant had notice of the dangerous metal plates and adequate time to protect and warn Plaintiffs of their presence. Mauri Logan testified through an affidavit that Defendant admitted to her that it had knowledge of the dangerous metal plates through a call it received earlier in the day. The Plaintiffs' accident occurred around 5:22 p.m. Clearly, Defendant had enough time to correct the dangerous situation it was made aware of earlier in the day. Last, the danger was not open and obvious. Plaintiff, Terry Logan, testified that he was traveling 55 miles per hour which is the posted speed limit. (Tr. 242, Ins ). He said that the dangerous metal plates looked like an object in the road but that everything happened so quickly, he could not tell what it was. (Tr. 242 Ins ) Plaintiff, Beverly Logan, testified that she first saw the dangerous metal plates immediately before they grabbed the bottom of the car. (Tr. 287, Ins. 9-12). Based on these uncontradicted facts, Defendant had notice of the dangerous metal plates, had adequate opportunity to protect or warn against the dangerous condition and the dangerous condition was not open and obvious. As a result, it is not entitled to govemmental immunity. III. THE TRIAL COURT ERRED IN OPINING THAT DEFENDANT WAS ENTITLED TO DISCRETIONARY IMMUNITY UNDER MISS. CODE ANN ( d) WHEN IT FAILED TO MAINTAIN IN A SAFE CONDITION THE BRIDGE, WHERE THE SUBJECT ACCIDENT OCCURRED, AFTER IT HAD KNOWLEDGE OF A DANGEROUS CONDITION. 7

12 The actions of Defendant are ministerial under Mississippi law, thus it is not immune from liability pursuant to the discretionary function exception under Miss. Code Ann (1)( d). Defendant has an affirmative duty to properly maintain the highways in the state of Mississippi in a safe manner. Miss. Code Ann recites: 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. (Emphasis added). The Mississippi Supreme Court has ruled that Defendant's duty to maintain highways is not discretionary. Miss. Transp. Comm'n v. Montgomery, 80 So. 3d 789, 798 (Miss. 2012). "While there is no flexible rule to distinguish whether an act is ministerial or discretionary, the most important criteria is if the duty is one which has been positively designated, the duty to perform under the condition specified, not being dependent upon the officer's judgment or discretion, the act or discharge thereof is ministerial." Lang v. Bay St. Louis I Waveland School District, 764 So. 2d 1234, 1240 (Miss. 1999). If there is a duty imposed on govermnental entities, i.e. Defendant, by Mississippi law, and that duty is breached, then the act is considered ministerial and the govermnental is not entitled to immunity from suit. "When determining whether a decision is ministerial, the Court's inquiry is basically whether or not the govermnental entity's actions violated any 'specific duties required by law.'" Jones v. Mississippi Department a/transportation, 744 So. 2d 256, (Miss. I 999)(emphasis added). In this instance, Miss. Code Ann imposes a statutory duty on Defendant to properly maintain 8

13 all state highways. Montgomery, 80 So. 3d at 798 (Citing Miss. Code Ann. 65-l-65 (Rev. 2005». Included in maintenance is the duty of Defendant to remove the dangerous metal plates from the bridge deck once it became aware of them. "Once the road is built and the responsible entity becomes aware of a dangerous condition in connection with the road, the duty becomes one of maintenance." Jones v. Mississippi Department o/transportation, 744 So. 2d 256, 264 (Miss. 1999). Maintenance is not a discretionary act. Montgomery, 80 So. 3d at 798. Defendant had knowledge of the dangerous metal plates sticking up on the bridge. (Tr. 247). Defendant admitted that it received a telephone call regarding the dangerous condition earlier in the day. Defendant failed to remove the metal plates after it had knowledge and breached its affirmative duty to keep "the highways under proper maintenance and repair at all times." Miss. Code Ann. 65-l-65. As a result, the Plaintiffs were injured in a horrific single car accident caused by the dangerous metal plates. Defendant is not immune. IV. GOVERNMENTAL IMMUNITY UNDER MTCA AS TO ONE CAUSE OF ACTION IN PLAINTIFFS' COMPLAINT DOES NOT EQUATE TO GOVERNMENTAL IMMUNITY AS TO ALL CAUSES OF ACTION. The Plaintiffs alleged four causes of action against Defendant. It alleged in the Complaint that Defendant was negligent: a. in failing to maintain in a safe manner the bridge located one-tenth (Ill 0) ofa mile north of Fedric Road on Highway 49 south; b. in allowing to exist a defective and dangerous condition, i.e. metal plates protruding above the bridge which grabbed the bottom of Plaintiffs' vehicle causing them to lose control and violently crash into the bridge which resulted in serious injuries; c. in failing to warn Plaintiffs of the dangerous conditions, i.e. metal plates protruding above the bridge; and d. in failing to provide notice to Plaintiffs that the bridge was under repair. (Tr. 5-6). If the Court finds that Defendant is immune as to one cause of action, it does not mean 9

14 that Defendant is immune as to the remaining causes of actions. "Immunity as to one claim does not necessarily, as a matter of law, equate to immunity for all claims." MacDonald v. MDOT, 955 So. 2d 355, 362 (Miss. Ct. App. 2007). This case is similar to Macdonald in that the Plaintiffs have alleged several claims against Defendant. The Court must look at each individual claim and determine if immunity applies. For example, Plaintiffs allege that Defendant failed to maintain the bridge where the subject accident occurred in a safe manner. Defendant was aware of the dangerous condition through a telephone call earlier in the day. It failed to remove the dangerous metal plates and thus is not immune from liability. Further, the Plaintiffs allege that Defendant was negligent in allowing to exist a defective and dangerous condition, i.e. metal plates protruding above the bridge, which Defendant knew about and had an opportunity to repair. No immunities under Miss. Code Ann apply to this cause of action. Failing to correct or remove a known dangerous condition is maintenance. Maintenance is not discretionary. Montgomery, 80 So. 3d at 798. Defendant knew of the dangerous metal plates and failed to take proper action to remove them from the highway. Defendant's negligent inaction caused the Plaintiffs' accident. The Trial Court failed to look at each individual claim to determine if immunity applied. Clearly, immunity does not. CONCLUSION The Trial Court should have denied Defendant's Motion for Summary Judgment. It was a manifest injustice to not allow this case to go to trial when the testimony overwhelmingly supported Plaintiffs' assertions that Defendant was aware of the dangerous metal plates on the bridge where the accident occurred; that Defendant was made aware of the dangerous metal plates earlier in the day; that Defendant breached its affirmative duty to maintain a safe highway 10

15 by not removing the dangerous metal plates; and Defendant failed to warn Plaintiffs of a known dangerous condition. Based on the uncontradicted facts, it is impossible to fathom that the law in Mississippi, even under the MTCA, would allow Defendant to avoid liability under the shield of governmental immunity. The Trial Court's decision should be reversed and this case remanded for a trial on the merits. This the 10 th day of September, Respectfully submitted, Whittington, Brock & P. O. Box 941 Greenwood, Mississippi Telephone: Fax: cjsiii@whittingtonlaw.com Attorney for Plaintiffs Terry H. Logan, Sr. and Beverly W. Logan II

16 CERTIFICATE OF SERVICE I do hereby certify that on this date a true and correct copy of the foregoing Brief of Appellant was served, via U. S. Mail, postage prepaid, to the following: Hon. James McClure III Circuit Judge P. O. Box 246 Sardis, MS Robert J. Dambrino, Esq. Gore, Kilpatrick & Dambrino, PLLC P.O. Box 901 Grenada, MS This the loth day of September, J. Swayze Whittington, Brock & Swavze; P. O. Box 941 Greenwood, MS Telephone: Fax: cjsiii@whittingtonlaw.com Attorney for Plaintiffs 12