Today (5/24/28)the Mississippi Supreme Court handed down an important decision in Wilcher v. Lincoln County Board of Supervisors and the City of Brookhaven. Wilcher hit a hole in the roadway on a bridge that was being repaired by the City and County. There were no warning signs. The trial court granted the defendants’ motion to dismiss holding that the defendants were immune because this was a discretionary function. The Mississippi Supreme Court reverses and remands and, in doing so, goes back to the public policy exception test.
On appeal, we face head on one of the unintended but predicted consequences of
Brantley—that the test forces parties and judges to wade through an ever-deepening
quagmire of regulations and ordinances to locate “ministerial” or “discretionary” duties, overcomplicating the process of litigating and deciding claims involving governmental entities. Unfortunately, this methodology, though well-intentioned, has over time proved unworkable. Instead of trying to retool the Brantley test to somehow make it workable, we concede this short-lived idea, which was meant to be a course correction, has ultimately led this Court even farther adrift. Because the Brantley line of cases has not fulfilled its purpose—getting our discretionary-function analysis back on track—we abandon this failed venture. We find it best to return to our original course of applying the widely recognized public-policy function test—the original Mississippi Tort Claims Act (MTCA) test first adopted by this Court in 1999 in Jones.
Applying the Jones test to this case, we hold that Wilcher’s claim that County and
City employees negligently left an unfinished culvert installation overnight, without warning drivers they had removed but not yet replaced a bridge, is not barred by discretionary function immunity. Wilcher is not trying to second-guess a policy decision through tort. He is seeking to recover for injuries caused by run-of-the-mill negligence.
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For the reasons stated in this opinion, as well as those voiced by the prior separate
opinions pointing out Brantley’s well-meaning but unworkable approach, we abandon the test crafted in Brantley and return to the two-part, public-policy function test to determine when a claim against a governmental entity enjoys discretionary-function immunity. Applying that test here, the allegedly tortious act did not involve a discretionary policy decision.
In the metro area, a young woman was killed last week when her car hit a manhole cover that had been negligently installed and about which the City had been warned. Until today, it wasn’t at all clear that a lawsuit would be successful.