tort claims – Brantley abandoned

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.

* * * *

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.

4 thoughts on “tort claims – Brantley abandoned

  1. Very interesting case, and interesting ruling. But I find your analysis – I assume based on your on completed investigation – of the relationship to the Jackson situation interesting. “a manhole cover that had been negligently installed…” ? Haven’t seen that specific answer anywhere else, so should we assume it is from some independent investigation on your on?

    • Love the sarcasm but I have not completed my own investigation. I am assuming that based on what I’ve heard. But even if it were not negligently installed, the City may be liable where it knew that the manhole was dangerous based on 911 calls and did not act reasonably. Since it would be a tort claims act case, a judge will have to decide and I’m not a judge.

      • Only a little bit of sarcasm, but glad you loved it! My comment was based on how much is being said on various social media sites based on “what people have heard”. If one were to list the various things “heard” it includes the concept that there was no manhole cover; that there never was a manhole cover; that someone stole the cover; etc. etc. I’m not about to get into the question of liability, as I figure that will be hashed out by many more learned than I. But – I just don’t jump to the conclusion that the cover (or the rim, actually) was negligently installed. Big difference, at least in my humble opinion (and many would argue that I should never use the term humble) as to whether the city ‘acted reasonably’ under the facts and that there was ‘negligence’ in the installation.

        But, as an aside – I enjoy reading your site which I do twice weekly. And appreciate your posting of the going’s on at the Gartin Building.

      • Thank you. It seems like a thankless job most of the time so I appreciate the kind words. What’s weird is someone asked me about this case recently. Before today I was of the opinion that if the Fortners did sue, it would be iffy. Lots of non lawyers were assuming that the city would be liable.

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