IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-IA-01139-SCT MISSISSIPPI DEPARTMENT OF TRANSPORTATION

v. KENNETH MUSGROV E AND LATASHA MUSGROV

E, INDIV

IDUALLY

DATE OF JUDGMENT: 07/19/2018 TRIAL JUDGE: HON. EDDIE H. BOW EN TRIAL COURT ATTORNEYS: COREY D. GIBSON B. ADAM HAYS OBY T. ROGERS CHRISTOPHER O. MASSENBURG COURT FROM W HICH APPEALED: COVINGTON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MICHAEL D. GOGGANS B. ADAM HAYS CHRISTOPHER O. MASSENBURG ATTORNEYS FOR APPELLEES: MICHAEL V. RATLIFF OBY T. ROGERS COREY D. GIBSON NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND RENDERED - 04/16/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE KITCHENS, P.J., COLEMAN AND GRIFFIS, JJ. KITCHENS, PRESIDING JUSTICE, FOR THE COURT: ¶1. Mississippi Governor Phil B ry ant declared a s tate of em e rgency on January 27, 2014, in antici p ation o f an im m inent winter storm

. In r esponse to the governor’s declaration, Mississippi Departm ent of Transportation (MDOT) placed lim estone m aterial on r oadway s

as a rem edial m easure. Four day s af ter the state o f e me r g e n c y was declared, KennethMusgrove lost control of his car and c rashed on H ighway 37, where MDOT had placed the

lim estone m aterial, severely injuring his wif

e a n d him self

. ¶2. The M usgroves f

iled a c o mp laint against M DOT in the Circuit Court of Covington
C o u n t y o n J une 23, 2015, f or d am ages f

rom the car accident. MDOT f iled a m otion f

o r

sum m ary judgm ent, a sserting that it was participating i n e m ergency -m anagem e nt services under the M i ssissippi Em e rgency Managem ent Law (MEML) and theref ore was im m

une f rom liability

. The trial court denied MDOT’s m otion f o r s u m ma ry judgm ent, f

inding that there was a “genuine i ssue of m aterial f act as to whether MDOT exercise d due care in

m aintaining the road by placing gravel on the r oad and f ailing to warn drivers” of the gravel.
MDOT tim ely f

i led its petition f

or interlocutory appeal, arguing that the MEML explicitly grants s tate agencies com plete im m

unity f rom liability

and that the trial court had erred by apply ing the standards s et f orth in the M i s s i s s i p pi Tort Claim s Act (MTCA) instead of apply ing the willf

ul-m i sconduct standard set f orth in the MEML. ¶3. This Court f

inds that MDOT has im m unity under the MEML a n d that the trial court erred by apply ing the MTCA’s im m unity standards ins t e a d o f a p ply ing the MEML’s standard. Accordingly , we reverse and render.
STATEMENT OF THE FACTS ¶4. On January 27, 2014, M ississ i p p i G o v e r n o r P h i l B r y a n t i s s u e d a proclam ation declaring a s tate of e m e rgency because a signif icant winter storm w as approaching the state. The p rocl a ma t i o n warned portions of the state, including Covington County , of the im p ending storm and of the p otential f or hazardous drivin g c o n d i t ions. It directed all

2agencies of the state, including MDOT, to d ischarge their e mergency responsibilities. The

proclam ation was in ef

f ect f rom J anuary 2 7, 2014, through February 10, 2014. In response
to the proclam ation, MDOT deploy ed its em ergency - m anagem e n t services and used deicing techniques on roads across the af f ected regions, including Highway 37 in Covington County

. MDOT’s deicing techniques consisted of p lacing lim estone m a t e r i a ls on roadway s in anticipation of

the expected hazardous driving conditions. ¶5. On January 3 1, 2014, Kennet h M u s g r o ve was driving on Highway 3 7 w hen he lost control of his car and wrecked. Musgrove claim s that h e lost c ontrol due to the placem ent of the lim estone m aterials, which had been applied to Highway 37 as it l ed into a curve. Both Kenneth and Latasha Musgrove were severely injured in the wreck. 1 ¶6. The Musgroves f

iled a com

plaint in the Circuit Court of Covington County

on June 23, 2015. They c laim that MDOT ’ s p l a c e m ent of the lim e stone m aterial and its f ailure to

warn drivers of the lim estone’s presence was the ultim ate c a u s e o f their wreck. The Mis s i s s i p p i Highway Saf e ty Patrol’s accident r eport states that the v ehicle’s driver lost control “due to gravel which was on [ the] roadway d ue to r ecent ice s t orm .” A highway patrolm an testif

i ed in a deposition that there h ad been an accident earlier in the day that was

1 K en n e th M u sg ro v e su f

f ered a b ro k e n b ack a n d n o w i s p araly zed f ro m th e ch est d o w n . L atash a M u sg ro v e su f f ered a b ro k en n e c k

.

3in the sam e general area as the Musgroves’ a c c i d e n t

. 2 Nothing in the record indicates that

MDOT had knowledge of the prior accident. 3 ¶7. On Decem

ber 6, 2016, MDOT f

iled a m otion f

or sum m ary

judgm ent, asserting that it was i m m

une f rom the suit because the MEML protected it f rom tort l i a b i l ity during an

em ergency

situation. ¶8. Af ter a hearing, the trial c ourt entered an order on April 20, 2017, deny ing MDOT’s

m otion f or sum m ary

judgm ent. The trial court f ound the f

ollowing:
1. MTCA does not supersede t h e MEML, but each should b e read in conjunction with the other statute.
2

. M ississippi Code Section 63-3-303 m ade MDOT’s p lacem e nt a n d m aintenance of traf

f ic-control devices a discretionary f unction, but there s t ill could b e liability under MTCA Sections 11-46-9(1)(v) and (w), f or f ailure to warn of a known danger that is not open and obvious. 3. Apply ing the standard set f orth in Brantley v. C

ity of Horn Lake , 152 So. 3d 1106 (Miss. 2014), Mississippi Code Section 65-1-65 required MDOT to m aintain the roads at all t i me s ; thus MDOT had a m inisterial duty and there was nothing to suggest that duty was altered during an em e r gency situation.
4. The [ c]ourt f

inds there is a genuine i ss u e o f ma t e r ial f act a s to whether MDO T e x e r c i s ed due care in m aintaining the road by placing gravel o n the road and f a iling to warn drivers of the road condition that the gravel p laced on the road.

2 M ississip p i H ig h w ay P atro lm an L en o H o lm es stated in h is d ep o sitio n th at h e h ad resp o n d ed to an earlier accid en t “[ m ] ay b e 6 0 y ard s” so u th o f th e l o c atio n o f th e M u sg ro v es’ accid e n t

.

3 I n P atro lm an H o lm es’s d ep o sitio n , h e w as ask ed , “A t an y p o in t in tim e d i d y o u rep o rt th e w reck s o r d id y o u call an y b o d y an d ask th em ab o u t th e . . . [ ? ] ” In ex p licab ly , th e d ep o sitio n cu ts o f

f at th at p o in t. 4That order was not received by MDOT’s counsel, who f i led a m otion f

or r el i ef under Mississippi Rule of Civil Procedure 60. On July 19, 2018, the trial court entered an am ended order deny ing MDOT’s m otion f or sum m ary j udgm ent. MDOT tim ely f iled its petition f

or interlocutory

appeal, which was granted. ¶9. MDOT r aises the f ollowing issues o n a p p e a l : 1 ) whether MDOT is im m une f rom liability f or acts undertaken under the MEML and 2) whether the trial court erred by ruling

t h at the MTCA i m m

unity standard applied rather than the MEML im m uni t y s t a n d a r d

. M D O T
argues that the MEML explicitly grants state agencies com plete im m u nity f rom liability f

or its “em ergency m a nagem ent activ i t [ i e s ] ” during a state of em ergency , absent willf ul

m isconduct. MDOT argues also that the t rial court erred when it considered the MTCA’s lim ited i m mu nity provisions instead o f the MEML’s com plete im m

unity

. The Musgroves
argue that the trial court did not err by deny ing the m o tion f o r sum m ary judgm ent because the “tr i a l c o urt correctly f ound that a g enuine issue of m aterial f act exists a s to whether
MDOT is liable under the M TCA and i s no t e x c u s e d f o r its willf

ul m isconduct by the
MEML.”
STANDARD OF REVIEW ¶10. Under Rule 56(c) of the M i s sissippi Rules of Civil Procedure, sum m ary j udgm ent “shall be rendered f

orthwith if the pleadings, depositions, answers to in t e r rogatories and adm issions on f

ile, together w ith the af

f idavits, if any , show that there is no genuine issue as
to any m aterial f

act a nd that the m oving party i s entitled to j udgm ent as a m atter of law.” Miss. R. Civ. P

. 5 6(c). “This Court reviews a trial c o u rt’s grant or denial of a m otion f or

5sum m ary judgm ent or a m o tion to dism iss under a de novo standard.” Arceo v. Tolliver , 949

So. 2d 691, 694 (Miss. 2006) (citing Monsanto v . Hall , 912 S o. 2d 134, 136 (Miss. 2005)). “[ T]he burden of d em onstrating that no genuine issue of f act exists is on the m oving party .”
Moore ex rel. Moore v. Mem ’l H osp. of Gulfport , 825 So. 2d 658, 663 (Miss. 2 002). “The party opposing the m otion m u st be diligent and m ay not r est upon m ere allegations or denials in the pleadings but m

ust by allegations or denials set f orth specif

ic f acts showing there are genuine issues f

or trial.” Davis v. Hoss , 869 So. 2d 397, 401 ( Miss. 2004) (citing Richm ond
v. Benchm ark Constr. Corp. , 692 So. 2d 60, 61 (Miss. 1997)).
DISCUSSION
I. Whether MDOT has im m unity for its actions during the state of em ergency . ¶11. MDOT argues t h a t t h e M E M L g i v e s i t c o mp l e t e im m unity f or its em ergency m anagem ent activities d

u ring em e rgency situations, such a s when a state of em ergency has been proclaim ed. The Mississippi Em ergency Managem ent Law (MEML), s pecif ically Mississippi Code Section 33-15-21(a), states, Neither the state nor any political s ubdivision thereof , nor other agencies, nor, e x c e p t i n c a s e s o f w illf

ul m isconduct, the a gents, em p loy ees, or representative s of any of them engaged in any em ergency m anagem ent activiti e s , w h ile com ply ing with o r a ttem

pting t o com

ply with this article o r any rule or regulation prom

ulgated pursuant to the provisions of this a rticle, shall b e liable f or the death of or any i njury to persons, or dam age to property , as a result of such activity

. Miss. Code Ann. § 33-15-21(a) (Rev. 2010). ¶12. Under the MEML, the state and its agencies shall not b e liable f or their actions when de a l ing with em ergencies, except when such actions constitute willf ul m isconduct. The

6Musgroves argue that MDOT’s placem ent o f the lim estone m aterial and its f ailure to warn constituted w illf

ul m isconduct. They contend a l s o t h a t MDOT engaged in willf ul m isconduct by f ailing to warn af

ter having knowledge of a recent p rior accident near the location of their accident. ¶13. W e f

irst interpret the M E M L a n d t h en we d eterm ine whether MDOT com m itted willf ul m isconduct and, thus, cannot claim im m unity under the MEML.
A. The MEML ¶14. Neither party disputes that there was a state of em ergency in e f f ect at the tim e of

the accident and that MDOT’s actions were undertaken in response t o the governor’s em ergency proclam ation, thus im

plicating the MEML. MDOT a sserts that b ecause an accident occurred during a declared state o f em ergency and because MDOT’s em ergency -m anagem ent activities f

ailed to constitute willf

u l m isconduct, it is entitled to im m unity under the MEML. ¶15. The Musgroves rely on a M i s s i s s i p p i C o u r t o f A p p e a ls case’s d ef initions and interpretation of “reckless disregard” and “willf u l m isconduct” t o support thei r c l a im that “liability f

or willf u l m isconduct under MEML appears t o b e the sam e as liability f or reckless disregard under MTCA.” See Herndon v. Miss. Forestry Com m ’n , 6 7 So. 3d 788 (Miss. Ct. App. 2 011). 4 But these d ef initions f rom Herndon under mi n e rather than support the Musgroves’ position. The Herndon court def i ned “reckless disregard” as “m ore than m ere negligence, but less than an intentional act.” Herndon , 67 So. 3 d at 796 (internal quotation

4 In Herndon , the Court of Appeals f ound that the Mississippi Forestry Com m ission (MFC) was im m

une both under the MTCA and the M EML because, although the em ploy ee’s conduct “m ay have been negligent,” the conduct did not constitute “reckless disregard of saf ety ” or “willf

ul m isconduct.” Herndon , 67 So. 3d at 795. 7m arks om itted) (quoting Giles ex rel. Giles v. Brown , 31 S o. 3 d 1232, 1237 (Miss. Ct. App.

2009)). The court then def ined “[ w]illf

ul m i sconduct” as “ m isconduct com m itted voluntarily and intentionally

. ” Id

. (internal quotation m a rks om itted) (quoting W illful m isconduct , Black’s Law Dictionary (9th ed. 2009)). This Court has explained “willf ul m isconduct”:
“W here the m isconduct is wilf ul, there is an intentional injury .” Mason v. Shook , 2 40 Miss. 478, 4 86, 127 So. 2d 6 58, 6 61 (1961 )

. T h e s e def i nitions establish that the two term s are distinct and that they are by no m eans identical or i nterchangeable. Reckless disregard is

som ething less than an intentional act, which is the kind of a ct that i s required to show willf ul

m isconduct. Nothing in the record dem onstrates or even suggests a n intention on the part of
MDO T t o harm the Musgroves or other m otorists by the placem ent o f lim estone on the surf ace of a s tate highway during a winter-storm em e rgency . The Musgroves’ contention that the reckless-disregard standard f rom the MTCA and the willf ul-m i sconduct standard f

rom the MEML are the sam e is without m erit. ¶16. MDOT cites the Mississippi Court of Appeals case Parsons v. M ississippi S

tate Port Authority at Gulfport to dem ons t r a t e how the MTCA d oes not override the MEML. See
Parsons v. Miss. State Port Auth. , 996 So. 2d 165 (Miss. A pp. C t. 2008). 5 “Statutes on the

sam e subject, although in apparent conf lict, should i f possible be construed in harm ony with each o t h e r t o give ef

f ect t o each.” Parsons , 996 So. 2d at 169 (citing Roberts v. Miss.

5 The i ssue bef

o re the appeals court in Parsons was “ w hether the [ MTCA had] supersed[ ed] the [ MEML],” and the court f ound that the two should be “read in conjunction with each other” and that the MTCA did not supersede the MEML. Parsons , 996 So. 2d at 166, 169. T he court also held, “the two statutes can b e read together to provide im m unity f or the state and its agencies f or its activities during tim es of em ergency m anagem e nt while sim ultaneously

being exem

p t f rom liability under the MTCA.” Id. at 169. 8Republican Party State Exec. C om m . , 465 So. 2d 1050, 1 052 ( Miss. 1985)). The Parsons

c ourt f ound that the MTCA did not override the MEML because the MEML “ provide s im m unity to the state and its agencies f or liability

occurring during em ergency situations.”
Id. The MEML is a m o re narrow im m unity statute than the MTCA, is applicable only in

em ergency

situations, and can be def eated only

by willf ul m isconduct. ¶17. MDOT cites three f ederal cases that dem o nstrate how neg l i g e n t a c t s in em ergency situations do not constitute willf ul m isconduct under the MEML. See Ecker v. U nited States , No. 1:07-cv-1101-HSO-JMR, 2 009 W L 1 0706019 (S.D. Miss

. May 6, 2009); Estate of
Martin ex rel. Echoles v . Unit e d S tates , No. 1 :08-cv-157-HSO-JMR, 2 010 W L 2985471 (S.D. Miss. 2010); L indsey v. Miss. State P ort A uth. , No. 1:06-cv-656-LG-RHW , 2006 W L 5209293 ( S.D. M iss. 200 6 )

. E c k er and Martin involved a National Guard m em ber who caused an autom obile wreck w hile acting in response to a state of em erg e n c y . T h e f ederal district court in b oth c ases f ound that there was “insuf f icient e v idence indicating any willf ul misconduct” a nd granted i m m u nity under the MEML. Ecker , 2009 W L 1070601 9 , a t * 4 ; Martin , 2010 W L 2 985471, at *3. The Musgroves argue t h a t t h e se three cases are inapplicable because the plaintif f s there could not prove willf ul m i sc o n d u ct. W hile these f ederal cases are not binding on this Court, we f ind them persuasive. They correctly describe the w ay in which M EML im m unity protects the state and its agencies f rom liability f

or negligent acts during a state of e m ergency , absent willf ul m i sconduct. T he M usgroves have f ailed to a dduce evidence proving that MDOT’s a ctions am ounted to w illf u l m isconduct, not unlike the plaintif

f s in the three f

ederal cases.

9B. Does M DOT have im m unity for its p lacem ent of the lim estone m aterial on the road and i t s f a i l u r e to w a rn of a dangerous condition? ¶18. The f

acts of this c a s e i m

p l i c a t e t h e M E M L , which requires a f inding o f willf ul mi sconduct on the part of the state agency to f oreclose MEML im m

u nity

. The q u e s t i o n be c o mes whether MDOT’s placem ent of the lim e stone m aterial on the road and its f ailure

to warn am ount to wi l l f ul m isconduct. The M usgroves argue that MDOT’s actions do constitute willf

ul m isconduct because: 1) MDOT “wrongf u lly ” placed the l im est o n e m a terial

on the road and did so w ithout e r e c t i n g w a r ning signs a n d 2 ) MDOT “ wrongf u lly ” placed the lim estone m aterial on the r oad and “f a i l e d t o clean up the gravel af ter h aving been

w a r n e d about the dangerous condition it posed af ter having been a lerted to the f act t h a t another wreck had occurred earlier that sam e day .” ¶19. The M usgroves contend that MDOT’s acts of placing the lim estone m aterial on the road c o nstituted willf

ul m isconduct because MDOT should not have placed the m aterial on

a highway leading into a curve without putting up warning signs. Aga i n, “willf ul

m isconduct” is “m isconduct com m itted voluntarily and intentionally .” H erndon , 6 7 So. 3d

at 796 (internal quotation m arks om itted) (quoting W illf u l m i s c onduct , Black’s Law Di ctionary (9th e d. 2009)). The Musgroves have f a iled to provide evidence dem onstrating that MDOT’s placem ent of the lim estone m aterial and subsequent f ailure to wa rn was

m isconduct com m itted voluntarily and intentionally . “The party opposing the m o tion m

ust be diligent and m ay n ot rest upon m ere alleg a t i o n s o r denials i n the pleadings but m ust by allegations or denials set f o rth specif

ic f acts s h owing there are genuin e i s sues f or trial.”

1 0Davis , 869 So. 2 d at 401 (ci t i n g R i c h m ond , 692 So. 2d at 61). MDOT’s placem ent of the

ma t e r i al on the roadway was not governm ental m isconduct because MDOT was acting in
response to the governor’s proclam a tion to “discharge their em ergency responsibilities as d e e m ed necessary as s et f orth in the State of Mississippi’s Com prehensive Em erg e n c y Managem ent P lan.” 6 Although MDOT intended f o r the lim estone gravel t o be placed on the road, i ts p urpose was to m a ke the road saf e r i n keeping with the proclam ation, not to cause harm intentionally

. ¶20. MDOT was acting d u ring a declared em ergency , and its placem ent of the lim estone and f a i lure to warn of its presence could have been, at m ost, negligent conduct, which is the

sort of tortious a ctivity or inactivity f or which the MEML shields s tate agencies f rom liability

. It was the legislature’s express intent that the MEML would “provide f or the rapid and orderly provision o f relie f ” i n e me r gency situations. 7 Miss. Code Ann. § 33-15-2(2)

6 T h e M ississip p i C o m

p r eh en siv e E m erg en cy M an ag e m en t P lan (C E M P ) p ro v id es six teen E m erg en cy S u p p o rt F u n ctio n A n n ex es (E S F s), w h ich id en tif y th e s p ecif

ic activ ities req u ired to su p p o r

t each n u m

b ered f u n ctio n an d sp ecif

y th e ag en cies an d o rg an izatio n s th at are r esp o n s i b l e f

o r p erf o rm in g th o se activ i ties. M iss. E m e rg en cy M g m t

. A g en cy , M iss. C o m p reh en siv e E m erg e n cy M g m t. P lan (D ec. 2 0 1 7 ), h ttp s://w w w .m s em a .o rg /w p co n t e n t/u p lo ad s /2 0 1 8 /1 0 /2 0 1 8

- S tate-C E M P -B a s ic-P lan .p d f

. Wh ile th e E S F s n am e an d d escrib e th e sp ecif

ic task s, th e y d o n o t d escrib e th e d etailed p ro c ed u res to p erf o r m th em . Id

. O n e o f th e E S F s is th e T ran sp o rtatio n R esp o n s e A n n ex , w h ich n am es M D O T a s th e p rim ary ag en c y a n d lists sev eral su p p o rt ag en cies. O n e o f th e su p p o rt a g en cies is th e M ississip p i H i g h w a y S af

ety P atro l, w h ich , u n d er th e p l a n a n d d u rin g a n em erg en cy situ atio n , “[ a] s su m e[ s] resp o n sib i lity f o r d eto u r i n g t r af

f ic aw ay f ro m sites th at h av e ex p erien ced sev ere in f

rastru ctu re d am ag e (traf

f ic reg u l a t i o n an d co n tro l).” M iss. E m erg e n cy M g m t. A g en cy , M iss. E m erg en cy S u p p o rt F u n c tio n # 1

- T ran s p o rtatio n R esp o n s e A n n ex (R ev . Ju n e 2 0 1 7 ), h ttp s://w w w .m sem a.o rg / w p -co n t en t/u p lo ad s /2 0 1 8 /1 0 /2 0 1 8

_ E S F

_ 0 1 .p d f

. 7 “It i s t he i ntent of the L egislature t o reduce the vulnerability of the p eople and property of this state

. . . to provide f o r the rapid and orderly p rovision o f relief t o p e rsons and f or the coordination of activities relating to em ergency p reparedness, response, recovery 1 1(Rev. 2010). The MEML gives state agencies f r eedom to d eploy their em er g e n c y m anagem ent responsibilities r a pidly and f

ocus on “reduc[ i ng] the vulnerability o f the people and property of this state,” f r ee o f concern about p otential liability f or n egligent acts. Miss. Code Ann. § 33-15-2(2) (Rev. 2 0 10). The trial court f ound that MDOT has a duty to m aintain the roads a t all tim es and there was “nothing to s uggest that duty is dim inished or som ehow altered during an em ergency situation.” But the legislature’s s t a t e d intent m akes it

unm istakably clear that the MEML does alter such duties during em er g e n cy situations.
MDOT’s f

ailure to place signs that warned o f the gravel m ay have b een negligent, but it did

not rise to the level o f willf ul m isconduct. Theref

ore, that om ission, even if m isconduct, was clothed in the f

o rm idable arm o r of

the MEML’s im m

unity provision. ¶21. The Musgroves a r g ue a lso that there was willf ul m isconduct by M DOT f o r having knowledge of a prior accident that occurred i n the sam e general location a s the Musgroves’ accident and by not placing warning signs af ter receiving this k

nowledge. But the Musgroves have f ailed to provide any specif i c f acts to support their a llegation that MDOT knew of the prior a ccident. The party opposing the m otion cannot rest upon m e re allegations and denials, but m ust provide “specif

ic f a cts showing there are genuine issues f or trial.” Davis , 869 So. 2d at 401 (citing Richm o n d , 6 9 2 So. 2d at 61). The Musgroves say that a “Mississippi Highway Patrolm an conf irm ed that a wreck had taken place in the sam e location earlier in

and m itigation am ong and between agencies and of f icials of this state

. . . .” Miss. Code Ann. § 33-15-2(2) (Rev. 2010). 1 2the day o n which the Musgrove[ s ] were injured.” 8 But the trooper’s test i m o n y establishes

m erely that the Mississippi Highway Saf ety Pat r o l had knowledge of the prior accident; it does not establish that MDOT had knowledge of the prior accident. ¶22. MDOT’s placem ent of the lim estone m aterial on t h e r o a d a nd its f a ilure to warn of its presence did not constitute willf ul m isconduct. Theref

ore, MDOT is entitled to MEML im m unity

. II. Whether the t rial court erred by apply ing MTCA standards instead of the MEML’s w illful-m isconduct standard. ¶23. The Musgroves argue t h a t t h e t r i a l c o u r t correctly f ound that “genuine issues of

ma t e r i a l f act exists [ sic] concerning [ MDOT’s] liability under MTCA, f r om which it d o e s
not have liability under MEML,” becau s e M D O T ’ s f ailure to warn s ubjected i t t o liability under MTCA. W e f

ind that the trial court erred by apply ing the wrong legal standard. ¶24. It appears the trial court undertook an MTCA analy sis without being asked to do so. 9
MDOT’s m otion f

or s um m ary judgm ent was based on the MEML, not the MTCA. 1 0 The trial

8 A cco rd in g to t h e C E M P , th e M ississip p i H ig h w ay S af ety P atro l d u rin g an em erg e n c y situ atio n assu m es th e resp o n sib ilities o f traf f ic reg u latio n an d co n tro l

. P atro lm an H o lm es t estif

ied th at h e h ad b een at th e scen e o f an earlier accid en t j u s t s i x t y y ard s aw ay f ro m w h e r e th e M u sg r o v es’ accid en t o ccu rred

. 9 T h e trial co u r

t m ay h av e ap p lied th e Brantley v. City of H orn Lake , 152 So. 3d 1106 (Miss. 2 014), standard correctly ; but this Court overruled Brantley in Wilcher v. Lincoln County Board of Supervisors , 243 So. 3d 177 (Miss. 2018), thereby r e e stablishing the public-policy

f unction test.

10 It is ap p aren t f

ro m th e M D O T ’s m o t io n f o r su m m ary j u d g m en t an d th e M u sg ro v es’ resp o n s e in o p p o sitio n to M D O T ’s m o tio n f o r su m m ary j u d g m en t th a t n eith er p a rty raised th e M T C A as an i s s u e . I n M D O T ’ s m o tio n f o r su m m ary j u d g m e n t, it raised M E M L im m u n ity as a d ef

en se an d , altern ativ ely , asserted th e r e w as n o d u ty o w ed to th e M u sg ro v es. In th e M u s g ro v e s’ r esp o n se, th ey arg u ed th at 1 ) M E M L im m u n ity d id n o t ap p ly b ecau se th e 1 3court m i stakenly i njected q uestions based o n the MTCA i nto the discussi o n. I n truth, the MTCA has nothing to do with this case. ¶25. The M usgroves are correct that this case bears som e sim ilarity to Wilcher v . Lincoln County Board of Supervisors , in which this Court f ound the governm ental entity was liable because its actions created the dangerous condition and it f ailed to warn of

the condition it had created. Wilcher v. Lincoln Cty. Bd. of Supervisors , 243 So. 3d 177, 188 (Miss. 2018).
But Wilcher i s distinguishable f r om the Musgroves’ case b ecause Wilcher d id not occur under em ergency c ircum stances that triggered the MEML. I d. But f or this accident’s having occurred during a declared state of em ergency , the Musgroves’ W i l c h e r a r g u m e n t m ight have had m erit. ¶26. T h e t r i a l c o u r

t s hould not have applied the MTCA; its f ocus should have bee n o n whether a genuine i ssue o f m aterial f act existed as to whether MDOT’s conduct constituted willf ul m isconduct.
CONCLUSION ¶27. T h e M T C A d o e s n o t o v e r r i d e the MEML’s grant of im m unity app l i c a b l e t o

em ergency -m anagem ent situations. The MEML applies to lim i ted subject m atter, while the
M T CA c overs a m

ultitude of subjects and circum stances. In a qualif y ing em ergency situation and with no willf

ul m isconduct, there is absolute governm ental im m unity under the MEML.
In such c ircum stances and in the event of willf ul m i sconduct by a s t ate agency , c o urts should

sn o w sto rm w as n o t th e ty p e o f em erg en c y f

o r w h i ch th e M E M L w as c reated ; 2 ) M D O T ’s actio n s w ere w illf

u l m isco n d u ct; an d 3 ) M D O T o w ed an d b reach ed its d u ty to m ain tain state h ig h w ay s . 1 4proceed t o determ ine whether there is im m unity under the MTCA. T he Musgroves have f a i l e d to p rovide specif

ic f acts, other than m ere a llegations and denials, to establish t h a t MDOT voluntaril y a

n d i n t e n t i o n ally com m i tted m isconduct. The trial court e rred b y apply ing
MTCA s tandards bef

ore determ ining whether there w as w il l f u l m isconduct that def

eated
MEML im m

unity

. The trial court erred also by f ailing to d eterm ine whether MDOT’s actions constituted w illf

ul m isconduct. Thus, this C ourt reverses the trial court’s d enial o f MDOT’s

m otion f or sum m ary judgm ent. MDOT is im m une under the MEML. Acco r d ingly , we reverse and render. ¶28. REVERSED AND RENDERED. RANDOLPH, C.J., KING, P.J., COLEMAN, MAX WELL, B E A M, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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