IN THE SUPREME COURT OF MISSISSIPPI
N O. 2013-CT-00258-SCT
TERRY H. LOGAN, SR. AND BEV ERLY W. LOGAN

v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION AND MISSISSIPPI TRANSPORTATION COMMISSION ON WRIT OF CERTIORARI DATE OF JUDGMENT: 09/19/2012 TRIAL JUDGE: HON. JAMES McCLURE, III TRIAL COURT ATTORNEYS: CHARLES J. SW A YZE, III ROBERT J. DAMBRINO, II COURT FROM W HICH APPEALED: TALLAHATCHIE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: CHARLES JONES SW AYZE, III CHARLES J. SW A YZE, JR. ATTORNEY FOR APPELLEES: ROBERT J. DAMBRINO, III NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED - 09/10/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. CHANDLER, JUSTICE, FOR THE COURT: ¶1. This certiorari appeal arises f rom a negligence suit f

iled by Terry and Beverly Logan against the Mississippi Departm ent o f T r ansportation (MDOT) and the Mississippi Transportation Com m ission (MTC). The s uit a rose out o f a s ingle-car accident that allegedly occurred d

ue to an im

properly perf

orm ed br i d g e repair. T h e Court of Appeals a f f irm e d inpart and reversed in part and rem anded the trial court’s g r ant of sum m ary judgm ent to the

def endants u n d e r the Mississippi Tort Claim s A ct (MTCA). W e granted c e rtiorari review.
Our opinion today corrects the Court of Appeals’ treatm ent of an af f idavit that contained an alleged adm ission of a party opponent under Mississippi Rule of Evidence 801(d)(2).
FACTS AND PROCEEDINGS BELOW ¶2. On March 12, 2011, the Logans were traveling south on Highway 4 9 in Tallahatchie County w hen they drove over a bridge that recently had undergone repairs. Both lanes were
open, and no warning signs were present indicating ongoin g r e pairs or a d angerous condition.
Two p rotruding crisscrossed m e tal plates caught the u ndercarriage of their c ar, causing the

car t o s pin out of control and t o com e t o r e s t f a c i n g south in the northbound lane. The Logans’ d aughter-in-law, M auri Logan , arrived a t the scene shortly af ter the accident occurred. The Log a n s suf f ered injuries and were transported to a local hospital by

am bulance. According to Mauri Logan, she spoke to two MDOT em p loy ees at the s cene who both inf orm ed her that MDOT had received a phone call earlier in the day inf orm ing them about bent m etal plates on the bridge. She stated that the MDOT em ploy ees had advised her
to take pictures of both the b ent plates and another set of plates on the bridge that were not dislodged. She took photographs, which are part of the record on appeal. ¶3. According to MDOT, f lat m etal plates routinely a re bo l t e d t o b r i d ge decks during structural repairs tem

porarily to cover f

resh concrete while the concrete cures, with the bolt head and steel plate not extending m ore than two inches above the bridge d eck. The Logans allege that these p articular m e tal plates were not properly a ttached to t h e bridge, had bent

2upward and were projecting dangerously above the road surf ace. The d eposition testim ony of a bridge crew superintende n t f o r MTC indicated that the steel plates should not be positioned in a cross shape and that the sm aller plate was to be pl a c e d o n t o p of the larger plate. The photos taken b y Mauri L ogan indicate that, f or the plates the Logans r an over, the larger plate was placed on t o p of (and hung slightly over) the sm aller plate, a nd the plates

wer e in a cross shape. The Logans f iled suit against MDOT a nd MTC, asserting negligent bridge repairs and f

ailure to warn of

a dangerous condition. ¶4. The d ef

endants m oved f

or sum m ary judgm ent, a sserting immu n i t y u nder m ultiple provisions of the M ississippi T o rt C l aim s Act. In light o f the def endants’ m otion f

or

sum m ary judgm ent, the Logans subm itted an a f f idavit f r om Mauri Logan, whom they intended to use as a key

witness at trial. Her af

f idavit asserted in part:
I saw two em

ploy ees of Mississippi Departm ent of T r ansportation a t the scene. I spoke with one of those gentleme n . . . told m e that MDOT had received a phone c all earlier in the day of March 12, 2011, r egarding the dangerous m etal plates sticking up on the bridge.

. . . The MDOT em ploy ee advised m e to take photographs of the dangerous m etal p lates. I did. He also recom m e nded that I take pictures of m etal plates that were on the bridge but not dislodged. I did. I to o k t he photos attached to this Af f idavit as cum

ulative Exhibit “ A” on March 12, 2 011.

. . . The second em ploy ee f r om MDOT conf

irm ed that MDOT received a telephone call early in the day regarding the dangerous m etal plates on the highway

. ¶5. T h e t r i a l c o urt g ranted sum m ary judgm ent to the def enda n t s , f

i n d i n g t h a t t h e

m aintenance of the b ridge is a discretionary f unction under Mississippi Code Section 11-46- 9(1)(d) and that the def

endants theref

ore were entitled to im m

unity

. Regarding the Logans’ f ailure-to-warn claim , the c ourt stated that “there is no basis in f act to inf er that either MDOT

or MTC knew or should have k n own that the repair itself w as dangerous, o r that they knew

3or should have k now that som e instrum entality h ad dam aged the bridge repair and thereby created a dangerous condition.” The court f ound i t u n n e c e ssary to perf orm a detailed im m unity analy sis as to the f

ailure-to-warn claim a nd stated that, e v e n if the b ridge repair “presented a dangerous c ondition, known by these def endants, against w h i c h they did not

warn the public, n evertheless [ the def endants] are com

plete ly im m

une by virtue of Mississippi Code Annotated [ section] 11-46-9(1)(d),” ref erring to a f

i nding o f im m

unity f or the alleged negligent bridge repair. ¶6. The Court of Appeals r eversed the trial court’s grant o f s u m ma r y j u dgm ent on the
f ailure-to-m aintain claim , f inding that road m aintenance is a m inisterial f u nction and does
not provide the d ef

endants governm ental discretionary f unction i m m

unity under Section 11- 46-9(1)(d). Terry H

. Logan, Sr. and Beverly W. Logan v. Miss. Dep’t of Transp. and Miss. Transp. Com m ’n , N o. 2013-CA-00258, 2 014 W L 4413437 (Miss. Ct. App. Sept. 9, 2014).
T h e C o u r t o f A ppeals pointed to this Court’s evolving approach to the question in Mississippi Transportation Com m ission v. Montgom ery , 80 So. 3d 789 (Miss. 2012), and
Little v. Mississippi Departm e nt of Transportation , 1 29 So. 3d 132 (Miss. 2014). Id

. at *3. ¶7. However, the Court of Appeals af f irm ed the g r a n t o f s u mma r y judgm ent to the def endants on the f

ailure-to-warn claim

. It f

o und that “ a detailed discussion c oncerning the [ def e ndants’] i m m

unity

. . . i s unnecessary since there i s no triable issue of f act presented as
to whether the [ def

e ndants] had notice of the ‘dangerous condition,’ and there is nothing to support t h e L o g ans’ c laim on the f ailure to warn.” Logan v. M iss. Dep’t o

f Transp. , 2014
W L 4413437, at *7. Opining that Mauri Logan’s af f idavit is inadm issible to create an issue

4o f f

a ct, the opinion states that “ there is nothing to dem onstrate that the workers, w h o allegedly sp o k e t o M a

uri [ Logan], were a

uthorized t o m ake the statem e nt concerning a m atter within the scope of their em ploy m ent with MDOT.” I

d . at *6. ¶8. Both parties f

iled petitions f

or c ertiorari review. The d ef endants petitioned the Court of Appeals’ reversal of sum m ary judgm ent on the f a ilure-to-m aintain c laim , and the Logans petitioned the Court of Appeals’ af f irm ation of sum m ary judgm ent as to their f ailure-to-warn claim

. W e denied the d e f

endants’ p etition and granted the Logans’ petition regarding f ailure
to warn. DISCUSSION ¶9. W e review grants o f s u mma r y j u d g me n t d e n o v o . M

iss. Transp. C

om m ’n v. Montgom ery , 80 So. 3d 789, 794 (Miss. 2012). S um m a r y j u d g m ent is properly granted where “the pleadings, depositions, answers to interrogatories and adm ission s o n fi l e , t o gether with the a f

f idavits, if any , show that there is n o genuine issue as to any m aterial f a ct and that the m oving party is e ntitled to j udgm ent as a m atter o f law.” M.R.C.P. 56(c). To survive

sum m ary judgm ent, the nonm oving party m ust produce specif

ic f acts s howing that there is

a genuine m a terial issue f or trial. Gorto n v

. R a nce , 52 So. 3d 351, 354 ( Miss. 2011). Mis s i ssippi Rule of Civil Procedure 56(c) perm its the party adverse to sum m a ry j udgm ent
to serve opposing af

f idavits prior t o the sum m ary judgm ent h earing. Rule 56(e) requires that “[ s]upporting and opposing af f idavits shall be m a de on personal knowledge, shall set f orth such f acts as would be adm issible in evidence, and shall show af f irm atively that the af

f iant is com petent to testif

y to the m a tter stated therein.” M.R.C.P. 56(e).

5WHETHER THE COURT O F APPEALS ERRED IN TREATING

MAURI LOGAN’S AFFIDAVIT AS INADMISSIBLE. ¶10. T h e L o g a n s argue that the Court of Appeals erred in f i nding that the y h a d n o t produced specif

ic f acts creating a genuine m aterial f a ct f or trial. They a r g u e that Mauri Logan’s a f

f idavit testim ony dem onstrates the def endants’ alleged knowledge of the dangerous condition. W e agree with the Logans that the Court of Appeals erred by treating Mauri Logan’s a f

f idavit as inadm issible hearsay

. Mississippi Rule of E vidence 801(d)(2)(D) provides that a statem ent is not hearsay if the s tatem ent is of f ered against a party and is “a
statem ent by the party ’s agent or servant concerning a m atter within the scope o f the agency

or em ploy m ent, m ade during the existence of the relationship

. . . . ” T he Logans correctly
p o i n t out that Rule 801(d)(2) does not require the em ploy ees o f the def

endant to b e authorized to m ake the alleged statem ents f o r t h e m to be adm issible. W e already have addressed a sim ilar s c e n a r io regarding party statem ents in Jones et a l. v. F luor Daniels
S e r v s . C orp. , 959 So. 2d 1 044 (Miss. 2007). In Jones , the plaintif f ’s work superv i s o r directed num erous racial slurs at the plaintif f s. Id

. at 1045. The plaintif f s testif ied that the supervisor said that “som eone” in Fluor Daniels’ m ain of f ice had told him to m a ke racial

com m ents towards the plaintif f s. Id

. This Court rejected Fluor Daniels’ argum e n t that there

was no a dm issible evidence of vicarious liability against i t f or the r acial com m ents m ade by the supervisor, say ing: However, the plaintif

f s claim t h at, im m ediately af ter m aking the com m ent, [ the s upervisor] said that som eone in the m ain of f i ce had told him to m ake the statem ent. Fluor Daniel argues that [ the supervisor’s] statem e n t i s hearsay and would not be adm issible at trial. However, we f ind that [ the s upervisor’s] statem ent w ould be adm i ssible under M.R.E. 801(d)(2)(D) as an a dm ission by

6a party opponent. T heref ore, viewing this evidence in the light m ost f avorable to the plaintif

f s, as we m ust, we f ind e vidence suf

f icient to def

eat a m o tion f

or sum m ary judgm ent. Id . at 1049. ¶11. Here, sim ilar t o Jones , and viewing the e v i d e n c e i n the light m ost f a vorable to the Logans, the M DOT em

ploy ees’ a l l e g e d s t a t e m e nts to Mauri Logan are adm i ssible under Rule 801(d)(2)(D) as an adm ission b y a party opponent. The Court of Appeals e r roneously treated Mauri Logan’s af

f idavit a s i nadm i ssible when f inding that the plaintif

f s f a i l e d to dem onstrate the existence of

a genuine dispute of m aterial f act. 1 ¶12. Aside f

r om f inding that “there is no b asis i n f a ct to i nf er that either MDOT or MTC knew or should h ave known that

. . . som e instrum entality h ad dam aged the bridge repair and thereby c reated a dangerous condition,” the trial court did not proceed to perf orm a detailed i mmu nity analy sis of the Logan’s f ailure-to-warn c laim

. 2 W e f ind that the appropriate disposition i s to rem and the case f o r the trial c ourt to p erf

orm a detailed sum m ary -judgm ent analy sis consistent with this Court’s precedent. See Brantley v . Horn Lake , 1 52 So. 3d 1106 (Miss. 2014).

1 W e note that the trial court treated the af f idavit as adm issible f

or sum m ary j udgm ent purposes and is entitled to def e rence on such evidentiary determ inations. Indem . Ins. Co. of N. Am . v. Guidant Ins. , 99 So. 3d 142, 155 (Miss. 2012). A rev iew o f th e tran scrip t o f th e su m m a ry j u d g m en t h earin g s h o w s th e trial co u rt d eclin ed th e d ef en d an t ’s o re ten u s m o tio n to s trik e th e af

f id a v it an d p ro ceed ed to o p erate ex p licitly u n d er th e assu m p t io n th at th e tw o m en in M au ri’s statem en t s w ere em p lo y ees actin g in th e sco p e o f th eir d u ty , th u s s atisf y i n g M ississip p i R u le o f

E v id en c e 8 0 1 (d )(2 ).

2 T h e co u rt f

o u n d su ch an aly sis u n n ecessary d u e to its f in d in g ( su b seq u en t ly rev ersed b y th e C o u rt o f A p p eals) th at th e d ef en d an ts w ere e n titled to im m u n ity f o r alleg ed n eg lig en t b rid g e rep airs. 7CONCLUSION

¶13. The trial court and Court of Appeals erred i n concluding that no disputed f act exists regarding the Logan’s f

ailure-to-warn claim

. W e reverse the judgm ent and r em a n d the case f or the trial court to perf

orm a m ore detailed sum m ary -judgm ent im m unity analy sis of the Logan’s f ailure-to-warn claim

consistent with this opinion. ¶14. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

### W ALLER , C.J ., DI CKI NSON, P . J ., LAMAR, KI TCHENS, PI ERCE, K I N G AND COLEMAN, J J ., CONCUR. RANDOLPH, P.J ., NO T PARTI CI PATI NG.

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