IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-IA-01419-SCT MISSISSIPPI TRANSPORTATION COMMISSION AND MISSISSIPPI DEPARTMENT OF TRANSPORTATION

v. CHRISTOPHER D. ADAMS, DECEASED, BY AND THROUGH DOMINIQUE D. ADAMS, INDIV IDUALLY

AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF CHRISTOPHER D. ADAMS, DECEASED

DATE OF JUDGMENT: 09/15/2014 TRIAL JUDGE: HON. ROBERT P. KREBS TRIAL COURT ATTORNEYS: PAUL T. BENTON PATRICIA BEALE STEPHEN G. PERESICH COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: STEPHEN G. PERESICH JOHANNA M. McMULLAN MARY W . VAN SLYKE ATTORNEYS FOR APPELLEE: PATRICIA L. BEALE PAUL T. BENTON NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: AFFIRMED AND REMANDED - 06/02/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE DICKINSON, P.J., LAMAR AND KITCHENS, JJ. LAMAR, JUSTICE, FOR THE COURT: ¶1. This is an interlocutory appeal. Th e M i s s i s s i p p i T r a n s p o r t a t i o n C o m m i ssion (“MTC”)

a n d t h e M i s s i s s i ppi D epartm ent o f Transportation (“MDOT”) ( c o l l e c t i v e l y , t h e “ d e fe n d a

n t s ” )
f iled a m otion f

or sum m a ry judgm ent in the Jackson County Circuit Court and argued thatthey were im m une f r om liability under the Mississippi Tort Claim s Act (“MTCA”). The trial judge denied their m otion because the plaintif f had alleged—and provided evidence—that

t h e y h a d violated specif

i c regulations. 1 The trial judge rejected t he def endants’ arg u me n t that, notwithstanding c ertain narrower regulati o n s requiring specif ic actions, they were im m une f rom l i a b i l i t y because the broader f unction of traf

f ic-control-device placem ent is discretionary . W e af

f i rm . FACTS AND PROCEDURAL HISTORY ¶2. Christopher A dam s died f rom injuries he sustained when his m otorcy c l e wrecked on
Interstate 10 in J ackson County

. A f ter traveling n orth on Interstate 110 in Harrison County , A d a m s m erged onto a n eastbound lane of I-10, where he entered a construction zo n e . According to the com

plaint, Adam s i nadvertently drove into a closed l ane and then, when he tried to navigate back into an open lane, his m otorcy cle h it an u neven surf ace between lanes and “rotated.” Adam s was thrown f rom his m otorcy cle and into traf f i c , w h e r e two other vehicles hit him , causing injuries f rom which he later died. ¶3. A d a ms ’s spouse, Dom inique, f iled s uit against the def

endants 2 and a l l e g e d e i g h t causes of action:
1. Failing to com

ply with the Mississip p i S t a n dard Specif ications f or Road and Bridge Construction;

1 T h e trial j u d g e m ad e th is ru lin g w ith o u t th e b en ef it o f th i s C o u rt’s d e cisio n in B r a n tley v. C

i ty o f H o rn L a k e , 1 5 2 S o . 3 d 1 1 0 6 (M iss. 2 0 1 4 ). B u t as w ill b e sh o w n b elo w , th e trial j u d g e p ro p e rly

ap p lied B ra n t

ley

. 2 A d am s also n am ed as a d ef en d an t th e p rim ary co n tracto r f o r th e ro a d co n stru ctio n p ro j ect, M allette B ro th ers C o n stru ctio n C o m p an y , In c. B u t it is n o t a p arty to th is ap p eal.

22. Failing t o com ply with the Manual on Unif or m Traf f ic Control Devices;
3. Failing to place proper warnings in advance of the lane closures;
4. Failing to place proper warnings in advance of the uneven pavem ent; 5. F ailing t o act with ordinary and reasonable care unde r t h e circum stances of

the subject construction zone;
6. Cre a t i n g and allowing a known and unreasonably dangerous and hazardous condition to exist i n the subject construction zone in reckless disregard f

or the saf

ety of citizens traveling through the subject construction zone;
7. Failing to e rect and/or m ain t a in warning s igns to alert travelers along the subject construction zone to the f act that dangerous conditio n s existed as a result of

said construction being perf orm ed; and
8. Further negligent acts or om issions to be shown a[ t] trial. ¶4. The def

endants answered Adam s’s com p laint and denied a l l claim s. S oon thereaf ter, the def endants f iled two m o tions; a mo tion to dism iss or f or sum m ary judgm ent based on MTCA im m

unity and a m otion asking t he trial j udge to hold their sum m ary -judgm ent m otion in abey a nce and to enter a scheduling order f or discovery on its im m

unity def enses. The trial judge u ltim ately entered an agreed scheduling order setting various deadlines f or discovery on the def

endants’ im m

unity -related def

enses. Moody’s Affidavit ¶5. During the discovery period, the def endants designated two experts, Dean M oody and Gary McCollom , both o f whom were also MDOT e m ploy ees. Moody , the p roject engineer
f or the I- 1 0 e x p a nsion where the accident occurred, subm itted an af f idavit. He stated that
“MDOT em

p l o y e e s m o n i t o r e d c o m

p l i a n c e w i t h t h e T e m porary T raf

f ic Control P lan routinely

3and f

requently throughout the duration of the Construction project.” 3 Moody also s tated that “Mallette Brothers was in com p l iance w ith the Construction Plans and the Tem porary Traf

f ic Control P l a n during the entire course of the Construction Project.” Moody ’s af f idavit continued: The MDOT had a nd has n o knowledge of any n oncom pliance by Mallette Brothers relating to the Tem porary Traf

f ic Control Plan f

o r the Construction Project and site. During P hase 4 of the P roject and bef o re the accident which is the subject of

the claim s against the M DOT, I exam ined the t raf f ic control devices set out by Mallette Brothers a nd f ound that the traf

f ic control devices c o mp l ied w ith the Tem

porary Traf

f ic Control Plan. The Tem porary Traf

f ic Control Plan f

or Phase 4 of the Project also did not requi r e additional pavem ent m arkings other than those specif ied i n the Tem

p orary Traf

f ic Control Plan. Tekell’s Affidavits ¶6. Adam s des i g n a t e d V

. O

. “ D e a n ” T e k e l l J r. a s an expert. Tekell subm itted two af f idavits. In the f

irst af f idav i t , he opined—based on his review of t he “pleadings, docum ents and photographs of the parties”—that the def endants “ha[ d] a duty to m aintain, repair and inspect state-m a intained highway s,” and that the def endants “breached this duty by f ailing to regularly inspect the area where the subject incident occurred.” ¶7. According to Tekell, the def endants “knew or should h ave known of the absence of

a s olid white traf

f ic stripe in the area of the subject incident and that the plastic drum s were placed t oo f

ar f rom the edge of the travel lane.” Tekell also stated that “[ b]y f ailing to place

a s olid white traf

f ic stripe and by f

a iling to place the drum s i n c onf orm ance with their details, they breached this duty

. ” Tekell stated f urther that the def

endants had a duty to designate a

3 We ex p l ain th e v ario u s ru les an d reg u latio n s c ited b y th e ex p erts later i n th is o p in i o n . 4responsible p erson t o m onitor Mallette Brothers’ com pliance w ith the project’s Construction Plan and Traf

f ic C ontrol Plan pursuant to Section 618.01.2 of the Red Book, and that they had f ailed to m onitor f

or at least f

ive day s pri o r to the incident. According to Tekell, the d e f e n d ants “knew or s hould have known o f Mallette B rothers’ non-com pliance with t h e Traf f ic Control Plan,” and they “f ailed to require M allette Brothers to p lace a solid white traf f i c strip in the area of

the subject incident and f ailed to require the placem e nt of drum s in conf o rm ance with the traf

f ic control detail.” ¶8. Tekell subm itted a s u p p l e m ental af f idavit and o pined that the def e ndants also had violated Red Book Section 618.03.3 (m andating that lane lines and edge lines that have been covered or rem oved during the day ’s operations be replaced b ef o re work is discontinued f or the day or soon thereaf

ter): Based on the deposition testim ony of Frank Mallette

. . . a nd the photographs produced by the parties, Mallette B rothers did not place any striping o r edge lines in the area where the subject incident occurred. Tekell f u rther opine d , “ [ i ] n f

a ct the contractor and MDOT perm itted an e dge line f rom a prior p hase to rem ain i n conf lict with their barrels,” w hich i s a violation of Red Book Section 619.03.2 and a breach of

their duties. Motion Hearing ¶9. Af ter the im m

unity -def ense discovery period, t he d ef endants f iled their supplem ental

m otion to dism i ss or f

or sum m ary

judgm ent. At the hearing on the m otion, the def endants argued prim arily

that they enjoy ed discretionary -f unction im m

unity f or any thing related to traf f i c-control devices. They argued f urther that this discretion conf erred i m m

unity even if

5there were other specif ic statutes and regulations that addressed traf f ic-control-device placem ent. Adam s countered that, while Mississippi Code Section 63-3-303 did indeed give the def endants d iscretion regarding the overall f unction of placing and m aintaining traf ficcontrol d evices, certain other statutes and Red B ook sections rendered som e narrower duties associated with traf

f ic-control devices m inisterial. See Miss. Code Ann. § 63-3-303 (Rev. 2013). ¶10. Af ter a recess, the trial judge denied the def endants’ m otion f

rom the bench:
MDOT i s n ot a constitutional creature, but is a creature of the L egislature. By em powering it to co me i n to existence, i t allowed it to prom ulgate and u se certain standards, which

. . . h a ve been in place f o r decades, p erhaps at the inception o f MDOT.

. . . And in that c a se, those standards take on an entirely dif f erent role, and that r ole is statutory , it’s legal, it is what binds MDOT to do its job. This C ourt granted the def endan t s ’ p e t ition f

or interlocutory appeal, and they now raise several issues on appeal, which we restate as:
1. Adam s’s claim s that MDOT failed to use proper traffi c -control devices are barred by t h e MTCA, specifically Sections 11-46- 9(1)(d) and 11-46-9(1)(p):
2. Mississippi Code S ections 65-1-65 an d 6 5 -1-67 “do not apply ” to Adam s’s claim s: 3. The trial judge erred w hen h e r u led “es s e n t ially ” that Red Book provisions “supercede” Mississippi Code Section 63-3-303:
4. Adam s f

ailed to dem onstrate a causal connection betw e e n t he defendants’ alleged negligence and the m otorcy c le accident.
W e have consolidated and rearranged som e of the issues in our discussion f o r clarity

.

6STANDARD OF REVIEW

¶11. T r i a l c o u r t s s h o u l d g r a n t m otions f or sum m ary judgm ent “if t h e p l e a d i n g s , depositions, answers to interrogatories and a dm issions on f ile, together with the af

f idavits, if any , show that there i s no g e nuine issue as to any m a terial f act and that the m oving party is entitled to a j udgm ent a s a m atter of l aw.” M iss. R. C iv. P

. 5 6 ( c )

. I m m u nity under the
MTCA “is an e ntitlem ent not to stand t rial rather tha n a me r e def ense to l iability and, theref ore, should be resolved at the earliest possible stage of litigation.” Brantley v. City of
Horn Lake , 152 So. 3d 1106, 1109 (Miss. 2014) (quoting Mitchell v . City of G

reenville , 846
So. 2d 1028, 1029 (Miss. 2003)). This Court reviews de novo the application of the MTCA and grants or d e nials o f sum m ary -jud g me nt m otions. City of Magee v . Jones , 161 So. 3d 1047, 1049 (Miss. 2015) (citing L ee v . M e m ’ l H osp. at Gulfport , 999 So. 2d 1263, 1266 (Miss. 2008); Johnson v. Pace , 122 So. 3d 66, 68 (Miss. 2013)).
ANALYSIS ¶12. T h e crux of this a ppeal is whether the def

endants’ p lacem e nt and ma i n t e n a n c e o f traf f i c-control devices w as discretionary , so as to af f ord t hem im m

unity f rom Adam s’s suit. The d ef endants argue that, by d eny ing sum m a r y judgm ent, the t rial court in e ssence decided that the specif

ic regulations cited by Adam s “superseded” the discretion the Legislature had af f orded them in S ection 63-3-303. Adam s posits that t his Court has addressed this scenario in Brantley and in several s ubsequent opinions, holding that “certain n arrower f unctions and duties” involved with a d i sc r e t i o n ary f unction “ m ay be r endered m inisterial through

7applicable statutes, regulations, and/or ordinances.” Boroujerdi v. City o f Starkville , 158 So. 3d 1106, 1108 (Miss. 2015). W e agree with Adam s f or the reasons discussed below.
1. The defendants do not e njoy discretionary -funct i o n im m unity becaus e A d am s has produced evidence that they breached m inisterial duties. ¶13. Mississippi Code Section 11-46-9(1)(d) provides:
A governm ental e ntity and its em plo y e e s acting within the course and scope of their em ploy m e nt or duties shall not be liable f or any claim : Based upon the exercise or perf orm ance o r the f

ailu r e t o exercise or perf

o rm a discretionary f

u nction or d

uty on the part of a governm ental entity or e m ploy ee thereof

, whether or not the discretion be abused[ .] Miss. Code Ann. § 11-46-9(1)(d) (Rev. 2 012). There is no dispute that the def endants are
governm ental entiti e s a n d that the provisions of the MTCA—including its im m unity provisions—control here. Again, the def endants argue that they have discretionary -f unction im m u nity , as provided i n S ection 11-46-9(1)(d), “because all o f A dam s’s claim s [ are] predicated on the use and p lacem ent o f traf f ic cont r o l d evices.” The def e ndants rely on Section 63-3-303, which provides, in pertinent part: The com m issioner of public s af ety and the state highway com m ission shall place and m aintain such traf f ic-control devices c onf

orm ing to its m anual and specif i cations, upon all state and county highway s as it shall deem necessary to indicate and to carry

out the provision of

this chapter or to r egulate, warn, or guide traf

f ic. Miss. Code A nn. § 63-3-303. 4 Based on this l anguage, the d ef endants argue that “placem ent and m aintenance of traf

f ic control devices are d iscretionary f unctions and duties” that the

4 T h e len g th o f I-1 0 lo cated in M ississip p i i s a d esig n ated s tate h ig h w ay . M iss. C o d e A n n . § 6 5 -3 -3 (R e v . 2 0 1 3 ). 8Legislature has e xcepted f ro m t h e def

e ndants’s “m inisterial duty to equip the state’s highway s with traf

f ic control devices . . . .” ¶14. Adam s does n o t disagree with this assertion but argues that within the overarching discretionary f

unction prescribed by Section 63

- 3

- 303 exist certain n arrower d uties m ade

m inisterial by

specif ic regulations and statutes. In Brantley , this Court explained that while one statute m a y r e n der a broad f unction m inisterial, another statute or regulation m ay render a duty involved with that f u n c tion discretionary , thus allowing the perf

o rm ance of

such a duty to e n

joy i m m unity

. And clearly , the c o n v e r s e must be true, s uch that narrower duties encompassed in a broad discretionary function may be rendered ministerial through statute or regulation

. B r antley , 152 So. 3d at 1113 (em phasis a dded). And in Boroujerdi , a case invol v i n g a
sewage backup in a hom e, this Court said “while t he overall f unction of m aintain ing a
sewage sy stem m ay be discretionary , certain narrower f unctions and duties i nvolved with [ a discretionary f

unction] m ay be rendered m inisterial through applicable statutes, regulations, and/or ordinances.” Boroujerdi , 158 So. 3d at 1108.
Red Book Sections ¶15. The regulations at the core of Adam s’s claim s are various sections of the M ississippi Standard Specifications

f or Road and Bridge Construction (the “Red Book”). The Red Book

covers all areas of road construct ion f rom the bid process t o traf f i c control i n construction and reconstruction zones. 5 MTC has a dopted it a n d ordered that it govern “all road and bridge construction except as ma y b e d e signated otherwise in t he contract docum ents f or

5 h t t p : / / m d o t

. m s . g o v / d o c u

m e n t s / l p a / M S % 2 0 2 0 0 4 %20St a

nda r d%20Spe c i f

i c a t i ons . pdf (last v isited M ay

3 1 , 2 0 1 6 ). 9work already advertised o r under construction.” Here, MTC expressly incorporated the Red

Book into the proposal and contract docum ents. ¶16. As detailed abo v e , A d a ms p r o d u c e d e v i d e n c e that the def endants had violated

m inisterial duties estab l i s h ed by the Red Book. First, Adam s presented evidence that the def endants had violated a portion of Section 618.03.3, which provides: All centerline, lane l ines, edge lines and no-passin g s t r i pes that h ave been covered or rem oved during the day ’s operatio n s s h all be replaced with tem porary stripe bef

ore work is discontinued f or the day or as soon as weather conditions will perm it . . . . (Em phasis added.) Tekell stated in his supplem ental af f idavit that “Mallette Brothers did not
p l a c e any striping or edge lines in the area where the subject incident o ccurred.” An d according to the com

p laint, the lane in which Adam s was traveling started to taper to the lef t, but there was no edge m arking showing the lane m ovem ent. As a result, he f ound him self traveling in a lane that was closed to traf f ic. And when he attem

pted to change lanes into the open lane, he hit the uneven longitudinal edge and was thrown f r om his m o torcy cle. ¶17. Adam s also p r oduced evidence that the def endants had violated a portion of Section 619.03.2, which m andates th a t “ [ e ] xisting pavem ent m arkings c onf licting with tem

porary

m arkings shall be r em ov e d

. ” S p e cif ically , Adam s alleged—and t he def endants do not dispute—that the existing pavem e nt m arking “continues through the s houlder and goes of f int o t he woods.” And Tekell stated in his supplem ental af f idavit t hat the def

endants “perm itted an edge line f

rom a prior phase to rem ain in conf lict with their barrels.” ¶18. Adam s fu

r t h e r p r o d u c e d e v i d ence t hat the def

endants had violated a portion of Section 618.01.2, which m andates that they shal l designate a “responsible person” to m onitor the

10c ontractor’s com pliance with the Plan. Tekell s tated in his initial af f idavit that t h e def endants had f

ailed to m onitor Mallette Brothers’ com pliance with the Plan f

or at least f

ive day s p rior to the incident, and that they “knew o r should have k nown” of Mallette Brothers’
“non-com pliance.” ¶19. Based on our hold i n g s i n B r a n t l e y a n d B o r o u

jerdi and in light of the evidence detailed above, we f

ind that the trial judge did not err when h e f ound that the def

endants

were not entitled to discretionary -f unction im m

unity

. 6 Stated dif

f erently , we f

i n d that the
f u n c tion here presents “ the converse” principle that Brantley discussed: placem ent an d

m aintenance o f traf

f ic-control devices is discretionary , unless narrower duties encom passed in t hat f unction—such as placing and ma i n t a i n ing edge lines—have been “rendered

. . .

m inisterial through statute or regulation.” Id. at 1113. ¶20. The def

endants a r g u e s t r e n u o u s l y t h a t t h i s Court’s decision in A labam a Great
Southern Railroad v. Jobes “leaves no doubt that claim s advanced on t he use and placem ent of traf f ic-control d evices are cloaked with im m unity .” There, this Court f ound that “[ Section 63-3-303] allows MDOT, in its discretion, to de t e r mine the appropriate ty p e, num ber, and location of traf

f ic-control devices, m aking it im m u ne f rom liability f

or this c laim under Section 11–46–9(1)(d).” A labam a Great Southern R.R. v . J obes , 156 So

. 3 d 871, 882 (Miss. 2015). But we m ade that f inding only af

ter noting specif

ically that Jobes had f

ailed to allege any

narrower duty , or to present any evidence to support her allegations:

6 We n o t e th at th e d e f

e n d an ts f ailed to an aly

ze o r ev en cite eith er o f th ese o p in io n s in th eir in itial b rief

b ef o re th is C o u rt. 11W h ile Jobes does g enerally allude to som e o f M DOT’s standard operating

procedures related to potholes, warning sign placem ent, and pavem ent e dging in her Response to MDOT’s Motion, she has presented absolutely no evidence regarding MDOT’s exact duties, or whether those duties were breached.
Id. a t 880. B ut as shown above, Adam s has presented evidence here through expert af f idavits. So we reject the def endants’ argum ent that Jobes controls. ¶21. In sum , we af

f irm the t r i a l j u d g e ’ s d e n i a l o f sum m ary j udgm ent because Adam s produced evidence that the def endants had bre a c h e d certain specif ic m inisterial duties im p osed b y their own duly adopted regulations. W e reject the def endants’ argum ent that, because there is a statute r e ndering the overarching f unction at issue here discretionary , no regulation can render an act associated with that f u nction m inisterial. Mississippi Code Section 65-1-67 ¶22. The d ef

endants appear also to argue that t hey enjoy d iscretionary -f unction i m m

u nity
f rom A dam s’s claim s that they violated M ississippi Code Section 6 5-1-67. They couch their
argum ent in dif

f erent term s , asserting that the section “does not apply ,” but the crux of their
argum ent is, again, their exercise o f d i s c r e t i on. The f irst paragraph o f Section 65-1-67 requires MTC

to have the State Highway Departm ent trim with edge lines, of a color and in a m an n e r w h i ch conf

orm s with unif

orm n ational standards relating thereto which have been adopted b y the Federal Highway

Adm inistration, the edges of all s tate-designated hard-surf aced highway s which are c o n s tructed of asphaltic m aterial, in the interest of public saf

ety on said highway s. Miss. Code Ann. § 65-1-67 (Rev. 2012). The second paragraph c arves out a n e x ception f or roads under construction:

12Except as n ecessary to accom m odate r econstruction, n o road or h ighway shall

be o pened f

or p ublic use until the departm ent has com p lied with the provisions of this s ection; however, the Director of the State Highway

Departm ent m ay perm it segm ents of r oads under contract f or m a i n t enance, construction or reconstruction to be open f or public use when tem

porary c e nter line m arkings are installed. Id. Photographs produced in discovery show—and the parties do not dispute—that on the night o f the accide n t there was no white edge l ine where Adam s wrecked, but there was a
tem porary center line. The d ef endants argue that the s t atute af f ords them the discretion to
open a n under-construction road as long as there is a t em porary center-line m a rking, and that
“MDOT’s duty t o edge the state’s r oads and highway s does not apply where the road is under ‘reconstruction.’” ¶23. A d a ms c o u n t e r s t h a t , while som e discretion m ay exist, MTC has d e c i d e d

— b y

m andating tha t t h e R ed Book govern a ll construction contracts and by expressly incorporating it into the T raf f ic Control Plan here—to abide by the prescriptions in that

m anual. And s ince one of the sections—nam ely 618.03.3, discussed above—provides that all “edge lines

. . . that have been covered or rem oved during the day ’s operations shall be replaced with tem

p o rary stripe bef

ore work i s discontinued f or the d ay . . . ,” the def

endants cannot now assert the discretion allowed by Section 65-1-67. ¶24. We agree with Adam s. The plain language of the statute d o e s n o t s u p p o r t t h e interpretation that the def

endants c an ignore the express requirem ents o f the Red Book, and, by extension, the Traf

f ic Control Plan. W e are n ot persuaded by their argum ent that the

s e c o n d paragraph o f Section 65-1-67 allows MTC to n ot com ply with the regulatio n s i t adopted and incorporated into the Traf f ic Control Plan here.

132. Mississippi Code Section 65-1-65 im p oses a m inisterial duty .

¶25. Mississippi Code Section 65-1-65 requires MTC to, am ong other things, have MDOT “organize an adequate a nd c ontinuous patrol f o r the m aintenance, r epair, and i nspection of all of t he state-m aint ained state highway sy stem , so that said highway s m a y be kept under
proper m aintenance and repair at all tim e s.” Miss. Code Ann. § 65-1-65. This Court held in L ittle v. Mississippi Depa r t m e nt of Transportation , 129 S o. 3d 132, 1 38 (Miss. 2013), that “[ b ]ecause Section 65-1-65 requires the Departm ent t o m ainta i n and repair state highway s, that duty

—and a ll acts i n f

urtherance of that duty

—are m i nisterial unless, as in Montgom ery , another s tatute m a kes a particular act discretionary .” Little , 129 So. 2d at 138. 7 ¶26. Adam s argues that the def endants breached the m inisterial d uties im posed b y Section
65-1-65. But the def

endants argue that Section 65-1-65 does not im pose a m inisterial duty here because it applies o n ly to roads “which h ave been or which m a y be hereaf ter taken over by the State Highway Departm ent f or m aintenance

. . . .” The def endants argue that, because

t h i s p o r t i o n o f I-10 was under reconstruction, i t was n ot “ taken o ver” at the t im e of the accident, and thus Section 65-1-65 does not apply . The def e ndants’ only

authority f

or this proposition is Montgom ery , in which this Court noted that the decision to build a r oad and the initial p lacem ent of traf f ic control devices is of the planning nature, involving public policy c onside r a t i ons. Bailey Drainage Dist. v. Stark , 526 So. 2d 678, 681 n .1 (Fla. 1988). However, once the road is built a nd t h e r e s p onsible entity becom es aware o f a d angerous condition in connection with the road, the duty becom es one of m aintenance.

7 T h e “other statute” present in Montgom ery w as Section 63-3-305, w hich is nearly identical to Section 6 3 -3-303 e x c e pt that it applies to “local authorities.” Mississippi Transp. Com m ’ n v. Montgom e ry , 80 So. 3d 789, 796 (Miss. 2012); Miss. Code Ann. § 63-3-305. 14Montgom ery , 8 0 S o . 3 d a t 798 (quoting Jones v. Miss. Dep’t of Transp. , 744 So. 2d 256,

264 (Miss. 1999)). In other words, the def endants ask this Court to f ind that this section of I-10 was not “built” because they were adding two lanes. ¶27. But Mississippi Code Section 65-3-3 provides that certain roadway s in Mississippi, including I-10, “are d esignated as state highway s and shall b e under the jurisdiction of the Mississippi Transportation Com m ission f or c onstruction and m aintenance

. . . .” M iss. Code
Ann. § 65-3-3. The def

e ndants have cited no auth o r i t y f o r t he f iction they advocate here: that while Section 65-1-65 a pplied t o t h e p a r t o f I-10 on the com pleted side of the orange barrels, it did not a

pply on the construction side, b ecause that was m e rely a road that had y et to be “built.” W e reject this argum ent and f ind t hat Section 65-1-65 applied to the portion

o f t h e h ighway that was under construction and did, c onsistent with Little , im pose a

m inisterial duty

of m aintenance and repair upon the def endants.
3. The defendants are not im m u n e u n d e r Mississippi Code S ection 11- 46-9(1)(p) because Adam s does not c laim MTC’s plans w e re deficient; Adam s claim s MTC’s plans w e re not follow ed. 8 ¶28. The def

endants also a rgue that they are im m une under Mississippi C ode Section 11- 46-9(1)(p) be c ause all of A dam s’s claim s about traf f ic-control devices are actually claim s that MTC’s plans were def icient. 9 According to the def e n dants, “Adam s ’[ s] claim s that this

8 T h e d ef en d an ts m en t io n ed sev eral o th er M T C A su b sectio n s at th e trial-co u rt lev el, b u t sin c e t h ey f

a iled to p u rsu e th o se o n ap p eal, w e co n s id er th em ab an d o n e d

. B a n n ister v. S ta te , 7 3 1 S o . 2 d 5 8 3 , 5 8 8 (M iss. 1 9 9 9 )

. T h eref o re, o n ly su b s e ctio n s (d ) an d (p ) are b ef o re th e C o u rt in th is ap p eal.

9 (1 ) A g o v ern m e n tal e n tity an d its em

p lo y ees actin g w i th in th e co u rse an d sco p e o f th eir em p lo y m en t o r d u ties sh all n o t b e liab le f o r an y claim :

. . . 15or that traf f ic control d evice or sign should have been placed here or t h e re spring f rom MDOT’s plans and designs

. . . .” But the record belies this c l a im : Adam s s pecif ically
argues t h a t t h e construction p lans incorporated the R ed Book requirem ents and that the def enda n t s a n d Mallette Brothers then violated those requirem ents. W e f ind nothing in Adam s ’s c om

plaint, p leadings, or argum ents on appeal that can f a irly be construed as a claim that MTC’s plans were def icient.
4. The defendants’ causation argum e nt is not properly b efore this Court. ¶29. The d ef

endants argue, f

or the f irst t im e on appeal, that “ [ e]ven i f s o me of Adam s’s claim s point to f

unctions and duties that ar e d e e med m inisterial, which is denied, Adam s f ailed to bring f

orth s um m ary -judgm ent ty pe e v idence to establish her negligence claim .”
But this issue is not properly bef ore this Court. The r ecord i s clear that, a t every point prior to this appeal, the only litigated issue was if t he MTCA barred Adam s’s claim s. ¶30. Most im

p ortantly , the trial court’s order and the hearing transcript show that the trial judge n ever a ddressed this issue and w a s never asked to do so. “One of the m ost f undam ental and long established rules of law in Mississippi i s that the M ississippi Suprem e Court will not review m atters on appeal that were not raised at the trial court level.” Shaw

v. Shaw , 603 So. 2d 287, 292 (Miss. 1992) (quoting Estate of Myers v. Myers , 498 So. 2d
3 7 6, 3 78 (Miss. 1986)) (internal quotation m arks om itted). At t he d ef endants’ behest , t h e
(p ) A risin g o u t o f a p lan o r d esig n f o r co n stru ctio n o r im

p ro v em en ts to p u b lic p ro p erty , i n clu d in g , b u t n o t lim ited t o , p u b lic b u i l d in g s, h ig h w ay s, ro a d s, streets . . . .
M iss C o d e A n n . § 1 1 -4 6 -9 (1 ) (p ) (R ev . 2 0 1 2 ). 16trial-court proceedings were l im i ted to their i m m unity def ense, and we decline t o address any

new m atters on appeal.
CONCLUSION ¶31. For the reasons discussed above, the def endants’ assignm ents of

error are without

m erit, and the trial judge did not err when he denied their m otion f or sum m ary judgm ent. W e theref ore af f irm the judgm ent of

the Jackson County

Circuit Court and rem and the case to the trial court f

or f urther proceedings consistent with this opinion. ¶32. AFFIRMED AND REMANDED. DICKINSON, P.J., KITCHENS, KING, C OLEMAN AND BEAM, JJ., CO N C U R . MAX WELL, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINI O N J OINED BY W ALLER, C.J., A ND RANDOLPH, P.J. RANDOLPH, P.J., CONCURS IN P ART A ND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.
MAX WELL, JUSTICE, CONCURRING IN RESULT ONLY: ¶33. The m a

jority relies on B rantley v. City o f Horn Lake 10 to conclude the d ef endants do

not enjoy discretionary -f

u n ction im m

unity

. W hile I a g r ee t he def endants are not im m

une, I cannot join the m a

jority in f u ll. In m y view, B rantley m arked an unwise and unworkable departure f

rom longstanding precedent. So I join other v oices f rom this court t hat disagree

10 B ra n tley v. C

ity o f H o rn L a k e, 1 5 2 S o . 3 d 1 1 0 6 (M iss. 2 0 1 4 ).

17with the recent break f rom precedent. 11 I n s t e a d , I would readopt the longstanding publicpolicy f unction test.
Stare Decisis ¶34. I do not take this position lightly

. “The doctrine of stare decisis i s the bedrock of our
sy stem of jurisprudence.” State ex rel. M oore v. Molpus , 578 So. 2d 624, 634 (Miss. 1991) (qu o t i n g L a u r e l D aily Leader, Inc. v. Jam es , 2 24 Miss. 654, 681, 80 So. 2d 770, 780-81 (1955) (Gillespie, J., Special Opinion)). This doctrine i s based on t he prem ise that, “when

a m ajority of the C ourt sp e a k s , it speaks as the voice of the S tate, and is binding in ef f ect until a n d unless o v erruled.” I d. ( quoting Childress v. S

tate , 188 Miss. 573, 577, 195 So. 583,
584 (1940)). Thus, “absent powerf ul countervailing considerations, like c ases ought t o be decided alike.” Id. ¶35. But with this notion i n m ind, it was t h e ma j o r i ty in Brantley that disregarded stare decisis

. S ee Boroujerdi v. City of Starkville , 158 So. 3d 1106, 1115 (Miss. 2015) (W aller, C.J., d i ssenting) (characterizing the m ajority ’s new test as a “depart[ ure] f r om . . . p recedent without regard f

or the f undam ental legal doctrine of s tare decisis ”). I n doing so, the m ajority overruled f

if teen y ears of c ases apply i ng the public-policy f unction test. Brantley , 152 So. 3d at 1 112; see also City o f Magee v. Jones , 161 So. 3d 1047, 1050-51 ( M i s s . 2015)

11 S ee C ru m v. C ity o f C o r in th , 1 8 3 S o . 3 d 8 4 7 , 8 5 3 ( M iss. 2 0 1 6 ) (R an d o lp h , P .J., c o n c u rrin g i n resu l t o n ly ) ; C ity o f M a g ee v. J o n es , 1 6 1 S o . 3 d 1 0 4 7 , 1 0 5 2 (M iss

. 2 0 1 5 ) (P ierce, J., d issen t in g ); B o ro u jerd i v. C ity o f S ta rk v ille , 1 5 8 S o . 3 d 1 1 0 6 , 1 1 1 5

- 1 7 (M iss. 2 0 1 5 ) (Waller, C .J., d issen t in g ); B r a n tley , 1 5 2 S o . 3 d a t 1 1 1 8 -1 1 2 3 (Waller, C .J., co n cu rrin g in p art an d in resu lt). 18(discussing how “this Court’s rules f o r determ ining discretionary -f unct i o n im m

unity have changed drastically

. . . in light of

the new test set out . . . in Brantley ”). ¶36. I do u nderstand that the Brantley m ajority ’ s aim was to resolve the struggle with how

to apply d iscretionary -f

unction im m

unity by a rticulating what it deem ed a m ore “workable rule.” B rantley , 152 So. 3d at 1112. Unf o rtunately , however, the Brantley test m issed its

m ark, proving itself to be unworkab l e a nd conf using to practitioners i n its short eighteenm onth history

. The v e r y r e a s o n we apply stare decisis is “so that t rial c o urts c an m ake

correct decisions and lawy ers c an properly advise their c lients.” United Servs. Auto Ass’n

v. Stewart , 919 S o. 2d 24, 30 (Miss. 2005). And when atto r n e y s a r e lef t unable to advise their c lients on the applicability of discretionary -f unction im m

unity in the wake of B rantley , the whole argum ent f

or upholding “the new test” based on stare decisis i s underm ined. Public-Policy Function Test ¶37. The l ong-standing public-policy f unction test had two prongs. First, the court would determ ine “whether the activity in question involved an elem ent of c hoice o r judgm ent[ .]” Brantley , 152 So. 3d at 1112 ( quoting Miss. Transp. Com m ’n v. M ontgom er y , 8 0 So. 3d 789, 795 (Miss. 2012)). If so, the court would next ask “whether th a t c h o i c e or j udgm ent involved social, econom i c, o r p o l i tical-policy considerations.” Id. But the newly created test, by contrast, does not take policy into account. I f i nd this problem atic b ecause the entire
purpose of discretionary -f unction im m

unity “ is to prevent judicial ‘ second-guess i n g ’ of legislative and adm inistrative decisions grounded in social, economic, and political policy through the m edium of an action in tort.’” United States v. Gaubert , 499 U.S. 315, 323, 111

19S. Ct. 1267, 113 L. Ed. 2d 335 (1991) (em ph a sis added) (citation o m itted). So “when
p r o p e r l y c o n s t r u e d , t h e [d i s c retionary f

unction] exception protects onl y g o v e r n m e n t a l a c t i o n s and decisions based on considerations of public policy .” 12 Id. (em p hasis added). Thus, the policy prong—rather than im posing extrastatutory

restrictions on im m

unity 13 —ensures the discretionary -f

unction-im m

unity provision is properly construed. ¶38. For this reason, I e cho the s eparate opinions in Brantley , Boroujerdi , City of Magee , and Crum v. City of C

orinth

. 1 4 I to o would “rescind the Brantley analy sis b ecause it

ove rcom plicates the p rocess” by f ocusing o n “ som etim es arcane regulations.” Crum , 183

12 In 1 9 9 9 , th is c o u rt reco g n ized th a t S ectio n 1 1

- 4 6 -9 (1 ) (d ) o f th e M T C A “ap p ear[ e d ] to b e p attern ed af

ter 2 8 U .S .C

. § 2 6 8 0 (a), t h e ‘d i scretio n ary f u n ctio n ’ ex cep t io n to th e F ed eral T o rt C laim s A ct.” J o n es v. M

iss. D ep ’t o

f T ra n sp . , 7 4 4 S o . 2 d 2 5 6 , 2 6 0 (M iss. 1 9 9 9 ). S o th is co u rt ad o p t ed th e U n ited S tates S u p rem e C o u r t’s t e s t f o r d eterm in i n g d iscretio n ary -f

u n ctio n im m

u n ity

. Id . (ad o p tin g t w o - p a r t t est estab lish e d in G a u b ert , 4 9 9 U

. S . at 3 2 2 ). B u t th e f iv e-f o u r m aj o rity in B ra n tley co n clu d e d th at f e d e r al p reced en t sh o u ld n o t b e f o llo w ed

. B ra n t

ley , 1 5 2 S o . 2 d at 1 1 1 2

. In stead , th e m a j o rity craf

t ed a c o m p letely n ew test, p u r p o r t e d l y “g iv in g ef f ect to th e p lain l an g u ag e o f th e statu te,” w ith o u t an y co n sid eratio n f

o r th e u n d erly in g p u rp o se o f S ectio n 1 1 -4 6 -9 ( 1 )(d ). Id . H o w ev er, th e “p l ain m ean in g ru le” ap p lies o n ly w h en a s tatu te’s w o rd s are u n am b ig u o u s. S

ee, e
. g
. , B u ck el v. C h a n ey , 4 7 S o . 3 d 1 4 8 , 1 5 8 (M iss. 2 0 1 0 ). A n d th e g reat p a in s th e m aj o rity in B ra n tley

— as w e ll a s th e m aj o r ity in B r a n tley ’s p recu rso r, L ittle v. M ississip p i D e p a rtm en t o

f T r a n sp o r t a t io n , 1 2 9 S o . 3 d 1 3 2 , 1 3 7 -3 8 (M iss. 2 0 1 3 )— tak es to ex p lain th e p h rase “d iscretio n ary f

u n ctio n o r d u ty ” p o in ts to th e f act S ectio n 1 1

- 4 6 -9 (1 )(d )’s lan g u ag e is n o t u n am b ig u o u s. In stead , o th e r in terp retiv e to o ls m u st b e u s ed . A n d I th in k

th is co u rt g o t it rig h t b ack in 1 9 9 9 , w h e n it r eco g n ized th e b e st to o l w as t h e F ed eral T o rt C laim s A ct, af ter w h ich o u r state’s act w as p attern e d

.

13 S ee B ra n t ley , 1 5 2 S o . 3 d at 1 1 1 2

. 14 C ru m , 1 8 3 S o . 3 d at 8 5 3 (R a n d o l p h , P .J., co n cu rrin g in resu lt o n ly ) ; C ity o f M a g ee , 1 6 1 S o . 3 d at 1 0 5 2 ( P ierce, J., d i ssen tin g ); B o ro u jerd i , 1 5 8 S o . 3 d a t 1 1 1 5 -1 7 (Waller, C .J., d i ssen tin g ) ; B ra n tley , 1 5 2 S o . 3 d a t 1 1 1 8 -1 1 2 3 ( Waller, C .J., co n cu rrin g in p art an d in resu lt). 20So. 3 d at 8 54 ( R a n d o l p h , P.J., concurring in result only )

. And it does not address the real

question—are the alleged negligent actions “susceptible t o p olicy analy sis.” Gaubert , 499
U.S. at 325. I would instead readopt the sim pler, less conf

using, longstanding, d irect publicpolicy f unction test. ¶39. Turning to this case, if the public-policy f unction test were applied here, the result would be t he sam e. The alleged f ailure to adequately notif

y travelers a

bout a closed lane in

a c o nstruction zone c an hardly be said to be grounded in social, econom ic, or political policy

. Thus, by perm itting this case t o survive sum m ary j udgme nt, t his court i s n ot judicially

s e c o n d-guessing M TC or MDOT policy

. Rather, the court is sim p ly allowing A d a ms t o continue to pursue her c laim that the def endants acted negligently

. So I c oncur in the result

r e a c h ed by the m ajority

—that the def

endants are not entitled to discretionary -f unct i o n im m unity

. WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION.

21