Samuel Wilcher, Jr. v. Lincoln County Board of Supervisors

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2016-CA-01429-SCT

SAMUEL WILCHER, JR.

v.

LINCOLN COUNTY BOARD OF SUPERVISORS
AND CITY OF BROOKHAVEN, MISSISSIPPI

DATE OF JUDGMENT: 09/15/2016
TRIAL JUDGE: HON. DAVID H. STRONG, JR.
TRIAL COURT ATTORNEYS: MARK T. FOWLER
ROBERT O. ALLEN
MATTHEW D. MILLER
WILLIAM ROBERT ALLEN
JESSICA SUSAN MALONE
NICHOLAS KANE THOMPSON
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: MARK T. FOWLER
ATTORNEYS FOR APPELLEES: ROBERT O. ALLEN
JOHN CHADWICK WILLIAMS
NICHOLAS KANE THOMPSON
MATTHEW D. MILLER
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 05/24/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

MAXWELL, JUSTICE, FOR THE COURT:

¶1. The trial court granted the Lincoln County Board of Supervisors’ and the City of

Brookhaven, Mississippi’s motions to dismiss Samuel Wilcher, Jr.’s personal injury suit,
finding both governmental entities enjoyed discretionary-function immunity. In doing so,

the judge employed this Court’s recently created “Brantley” test.1

¶2. 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.2

¶3. 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.

1
Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014).
2
Jones v. Miss. Dep’t of Transp., 744 So. 2d 256 (Miss. 1999).

2
¶4. Because, from the face of the complaint, the County and City are not immune, we

reverse the grant of their motions to dismiss. We thus remand this case to the trial court for

further proceedings consistent with this opinion.

Background Facts and Procedural History

¶5. According to Wilcher’s complaint,3 he was driving at night on Washington Street in

Brookhaven when his vehicle suddenly crashed into a big hole. This “pit or ditch” was left

in the road where the County and City were repairing or constructing a bridge. Wilcher had

not been made aware the bridge was under construction. And there were no warning signs,

flag persons, lights, or any other devices that would warn Wilcher the bridge or roadway was

missing, closed, or under repair or construction. Wilcher’s vehicle crashed into the hole,

injuring Wilcher and damaging his vehicle.

¶6. After giving the requisite statutory notice,4 Wilcher sued the Lincoln County Board

of Supervisors (County) and the City of Brookhaven (City) for negligence. Wilcher alleged

both entities—who had been working jointly to replace the bridge with a culvert—had failed

in their duty to warn motorists the bridge was closed or under construction.5 This failure, he

asserted, violated both entities’ statutory duty under Mississippi Code Section 63-3-305 (Rev.

3
When reviewing a motion to dismiss, we take the facts alleged in the complaint as
true. Scaggs v. GPCH-GP, Inc., 931 So. 2d 1274, 1275 (Miss. 2006).
4
See Miss. Code Ann. § 11-46-11 (Rev. 2012).
5
According to Lincoln County’s motion to dismiss, the County and City were acting
jointly to replace the bridge with a culvert. At the time of the accident, the bridge had been
removed and the culvert installed, but the road going over the culvert had not yet been
finished.

3
2013). It also fell below the required specifications of the “state manual,”6 showing a

reckless disregard for motorists’ safety.

¶7. Both the County and City filed motions to dismiss, insisting Wilcher’s claims were

barred by the MTCA. Specifically, they argued the duty imposed by Section 63-3-305 was

discretionary, thus entitling them to discretionary-function immunity. See Miss. Code Ann.

§ 11-46-9(1)(d) (Rev. 2012). The trial judge agreed and granted both motions to dismiss.

¶8. Wilcher timely appealed. And on appeal, we review de novo the trial court’s

dismissal based on MTCA immunity. Fortenberry v. City of Jackson, 71 So. 3d 1196, 1199

(Miss. 2011) (applying de novo review to the question of MTCA immunity); Scaggs v.

GPCH-GP, Inc., 931 So. 2d 1274, 1275 (Miss. 2006) (applying de novo review to a motion

to dismiss).

Discussion

I. Discretionary-Function Immunity

¶9. Under the MTCA, the default rule is that political subdivisions like Lincoln County

and Brookhaven are not immune from tort claims.7 But the Legislature carved out several

exceptions, reinstating immunity for certain types of claims. Miss. Code Ann. § 11-46-9(1).

Relevant to this case is Section 11-46-9(1)(d). This particular section confers “discretionary-

6
Wilcher was referring to the Manual on Uniform Traffic Control Devices
(MUTCD), adopted by the State and referenced in Section 63-3-305.
7
Through the MTCA, our Legislature waived “the immunity of the state and its
political subdivisions from claims for money damages arising out of the torts of such
governmental entities and the torts of their employees while acting within the course and
scope of their employment[.]” Miss. Code Ann. § 11-46-5 (Rev. 2012).

4
function immunity.” Under this provision, “A governmental entity and its employees acting

within the course and scope of their employment or duties shall not be liable for any claim

. . . (d) Based upon the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a governmental entity or employee thereof,

whether or not the discretion be abused.” Miss. Code Ann. § 11-46-9(1)(d).

¶10. The language of this provision is clear enough, but understanding and applying it has

at times proved difficult. The Federal Tort Claims Act was enacted decades before the

MTCA. And because the MTCA’s “Section 11-46-9 appear[ed] to be patterned after 28

U.S.C. § 2680(a), the ‘discretionary function’ exception to the Federal Tort Claims Act,” this

Court originally turned to the federal courts’ substantial experience in dealing with

discretionary-function immunity. Jones v. Miss. Dep’t of Transp., 744 So. 2d 256, 260

(Miss. 1999).

¶11. This Court found significant that “[t]he United States Supreme Court has recognized

that [while] the majority of acts in the day-to-day operations of governmental activities

involve the exercise of some form of discretion, . . . not all of these acts are protected under

the exception.” Id. Instead, “only those functions which by nature are policy decisions,

whether made at the operational or planning level, are protected.” Id. (citing United States

v. Gaubert, 499 U.S. 315, 322, 111 S. Ct. 1267, 1273, 113 L. Ed. 2d 335 (1991)). This is

because “the purpose of the exception is to prevent judicial second-guessing of legislative

and administrative decisions grounded in social, economic, and political policy through the

5
medium of an action in tort.” Gaubert, 499 U.S. at 323, 111 S. Ct. at 1273 (quoting United

States v. Varig Airlines, 467 U.S. 797, 814, 104 S. Ct. 2755, 2765, 81 L. Ed. 2d 660 (1984)).

¶12. Agreeing that the purpose of discretionary-function immunity is not to protect all

decisions by governmental employees involving some level of discretion but instead only

those functions that by their nature are policy decisions, this Court adopted Gaubert’s “public

policy function test.” Jones, 744 So. 2d at 260. This test requires “determin[ing] whether

governmental conduct is discretionary so as to afford the governmental entity immunity.”

Id. The public-policy function test has two parts. “This Court first must ascertain whether

the activity in question involved an element of choice or judgment.” Miss. Transp. Comm’n

v. Montgomery, 80 So. 3d 789, 795 (Miss. 2012). If so, this Court also must decide whether

that choice or judgment involved social, economic, or political-policy considerations. Id.

Only when both parts of the test were met did a government defendant enjoy discretionary-

function immunity.8

II. Brantley

¶13. Four years ago, however, five members of this Court decided to abandon the two-part,

public-policy function test. The Brantley majority claimed to have detected in Section 11-

46-9(1)(d) “a requirement not present in the Federal Tort Claims Act.” Brantley v. City of

8
According to Gaubert, discretionary-function immunity “covers only acts that are
discretionary in nature, acts that ‘involve’ an element of judgment or choice[.]” Gaubert, 499
U.S. at 322, 111 S. Ct. at 1273 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108
S. Ct. 1954, 1958, 100 L. Ed. 2d 531 (1988)). “Furthermore, even ‘assuming the challenged
conduct involves an element of judgment,’” that judgment must be “of the kind that the
discretionary function exception was designed to shield”—i.e., it must involve
“considerations of public policy.” Id. at 322-23, 111 S. Ct. at 1273-74.

6
Horn Lake, 152 So. 3d 1106, 1112-13 (Miss. 2014). So the Brantley majority crafted a new

and completely different test. The Brantley test directed the Court to first “consider the

broadest function involved in order to make a baseline determination of whether the

overarching function is discretionary or ministerial.” Id. at 1114. “The Court then must

examine any narrower duty associated with the activity at issue to determine whether a

statute, regulation, or other binding directive renders that particular duty a ministerial one,

notwithstanding that it may have been performed within the scope of a broader discretionary

function.” Id. at 1115. Conspicuously absent from this new test was any consideration of

whether policy factored into the decision.

¶14. Brantley’s stated intention was to create a more “workable rule” for when

discretionary-function immunity applies. Id. at 1112. But in reality, the new test “marked

an unwise and unworkable departure from longstanding precedent,” and by failing to

consider whether the activity in question involved policy, ignored the Legislative intent

behind discretionary-function immunity. Crider v. DeSoto Cty. Convention & Visitors

Bureau, 201 So. 3d 1063, 1067-70 (Miss. 2016) (Maxwell, J., concurring in result only). 9

This case is a poster child for these truths.

¶15. Were we to apply Brantley here, we would start with arguably the broadest function

possible—the placement of traffic-control devices, which Section 63-3-305 leaves to the

discretion of the controlling political subdivision. But we could not stop there, as the trial

court did. Instead, we would then have to scour the state manual. After that, we would have

9
See also Miss. Transp. Comm’n v. Adams, 197 So. 3d 406, 416-18 (Miss. 2016)
(Maxwell, J., concurring in result only).

7
to hunt for other regulations and ordinances to see if the narrower duty in question has

somehow been “rendered ministerial.”10 This tedious and scattered quest exemplifies one

of the major criticisms of Brantley analysis—that “it overcomplicates the process of

litigating a claim and places the success of a claim on the ability of the injured party’s

attorney to sift through myriad and sometimes arcane regulations—creating extra layers of

proof, which may have little or no practical effect on the actual negligent act.” Crum v. City

of Corinth, 183 So. 3d 847, 854 (Miss. 2016) (Randolph, P.J., concurring in result only)

(emphasis added).

¶16. Here, Brantley analysis would require this Court to take a deep dive into the

Mississippi Code, the City of Brookhaven’s Code of Ordinances, the Mississippi Standard

Specifications for Road and Bridge Construction (a/k/a “Red Book”), and the Mississippi

Administrative Code to justify what should be blatantly obvious. Both common sense and

the common law dictate that if a road crew removes a bridge to install a culvert, leaves a

giant hole overnight, and fails to either barricade or sufficiently warn about the gaping hole

it created, then the entity in charge could be liable in tort if someone drives his car into the

hole. This would certainly be true in the context of a premises-liability claim against a

private property owner. So why should it be any different when the government owns or

controls the premises? In other words, the government does not have the “discretion”—let

10
See Boroujerdi v. City of Starkville, 158 So. 3d 1106, 1114 (Miss. 2015)
(remanding plaintiff’s claim so that he could have the opportunity to “prove that the City’s
alleged inaction in repairing the sewage system was related to a more narrow function made
ministerial by statute, ordinance, regulation, or other binding directive”).

8
alone legislatively conferred discretion—to create a dangerous condition and leave it exposed

without warning.

¶17. But the problems with Brantley run much deeper than just placing a hodgepodge of

local ordinances and regulations front and center in our sovereign-immunity analysis. As a

result of Brantley, what the Legislature intended as a shield—discretionary-function

immunity under Section 11-46-9(1)(d)—is flipped on its head and is being used as a sword.

Parties are now citing Brantley to bring actions based solely on violations of statutes and/or

local ordinances or regulations, which they argue impose “ministerial” duties. See Horton

v. City of Vicksburg, 2016-IA-1595-SCT (MTCA claim based on the city’s alleged failure

to enforce its local property-maintenance code). But this practice is certainly not what the

Legislature intended. In fact, this approach is completely backwards.

¶18. “Section 11-46-9(1) restores sovereign immunity.” Simpson Cty. v. McElroy, 82 So.

3d 621, 624 (Miss. Ct. App. 2011). “It does not in itself create duties.” Id. Furthermore,

regulations do not create causes of action, and the MTCA does not grant a right to recover

based on a mere violation of statute or regulation. Taylor v. Delta Reg’l Med. Ctr., 186 So.

3d 384, 390-91 (Miss. Ct. App. 2016).11 “[T]he general rule is that ‘a mere violation of a

statute or regulation will not support a claim where no private cause of action exists.’” Id.

(quoting Tunica Cty. v. Gray, 13 So. 3d 826, 829 (Miss. 2009)). Despite this, Brantley’s

analysis wrongly zeroes in on applicable regulations and ordinances. And if a regulation was

11
This “Court will not find a private cause of action when there is no apparent
legislative intent to establish one,” and “the party asserting a right of action . . . [bears] the
burden of establishing the required legislative intent.” Hill v. City of Horn Lake, 160 So.
3d 671, 681 (Miss. 2015).

9
“ministerial,” this Court began to presume that the alleged violation of that regulation or

ordinance, itself, established a viable cause of action without even questioning if a claim

would exist without the regulation.

¶19. Though its problems are aplenty, Justice Kitchens continues to defend Brantley. He

insists “seasoned practitioners and jurists understand” that our law should be confusing.

This, he suggests, “is what the lawyers who represent parties and the judges who sort through

and decide complex legal issues, often involving myriad statutes, ordinances, and regulations,

have done from time immemorial.”

¶20. But whether a practitioner is long in the tooth, or fresh out of law school, it is obvious

to all who have been involved in these cases recently that the Brantley approach is

unnecessarily complex. It also improperly turns regulations into causes of action, and is not

based on the text of Mississippi’s Tort Claims Act. But perhaps the most practical truth is

that it has made it little more than a gamble when lawyers advise clients whether they have

valid tort claims or defenses in MTCA cases. And that is not how our law should operate.

¶21. Attorneys and parties should not have to wait until their case shakes out in the

appellate courts to know what the law is. The very reason we apply stare decisis is “so that

trial courts can make correct decisions and lawyers can properly advise their clients.” United

Servs. Auto. Ass’n v. Stewart, 919 So. 2d 24, 30 (Miss. 2005). And when attorneys are left

unable to advise their clients on the applicability of discretionary-function immunity in the

10
wake of Brantley, any stare decisis argument for upholding this newly crafted test is

seriously undermined.12

¶22. Wilcher’s complaint is evidence of the confusion Brantley has created. According

to his factual allegations, the County and City removed a bridge and failed to warn oncoming

motorists the road had not yet been replaced. These allegations support a common-law

premises-based claim of failure to warn of a dangerous condition created by the County and

City. Yet, Wilcher did not plead his claim as negligent failure to warn.13 Instead, Wilcher

apparently found the statutory duty that most closely fit the factual scenario. And he argued

the County and City breached the ministerial duties the statute imposed. He then turned to

the state manual. He did this to establish a claim that, should the broader statutory function

be discretionary, the defendants still had violated mandatory regulatory duties. In other

words, even though Wilcher’s allegations support an obvious common-law negligence claim

12
It is interesting that Justice Kitchens cites stare decisis to justify upholding
Brantley. There was no concern for stare decisis when the Brantley majority admittedly
abandoned fifteen years of precedent. Boroujerdi, 158 So. 3d at 1115-16 (Waller, C.J.,
dissenting).
13
On appeal, the defendants emphasize Wilcher has not brought a common-law
failure-to-warn claim, only a statutory one. But if there are any deficiencies in Wilcher’s
complaint, this Court must shoulder the blame. And just as in Boroujerdi, “we find that it
would be patently unfair to affirm [dismissal] in the [County’s and] City’s favor without
[Wilcher’s] having an opportunity to attempt to conform his complaint and proof to this
Court’s current approach to discretionary function immunity.” Boroujerdi, 158 So. 3d at
1114.

11
against the defendants, under Brantley, he was forced to present his claim as a statutory

and/or regulatory violation.14

¶23. This leads us to the inescapable conclusion that, instead of being a course correction,

Brantley has led this Court even farther astray. And this Court finds itself in a deep hole of

our own making. But rather than try to dig our way out by further modifying the Brantley

test, we find the better course is to put down the shovel. We thus abandon and overrule the

Brantley line of cases and return to our original course of applying the widely-recognized,

easily understood, public-policy function test.

III. The Two-Part, Public-Policy Function Test

A. The Mississippi and Federal Discretionary-Function-
Immunity Provisions Are Practically Identical

¶24. Though we admit Brantley and its progeny, though well-intended, were wrongly

decided, Justice Kitchens doubles down on his position that we cannot return to Jones and

the application of the two-part, public-policy function test. Jones, 744 So. 2d 256. To

maintain this stance, he clings to what he perceives as a material distinction between our

discretionary-function immunity provision, Mississippi Code Section 11-46-9(1)(d), and its

corollary in the Federal Tort Claims Act, 28 U.S.C. § 2680(a). But in reality, there is no

difference.

¶25. Just like the MTCA, the FTCA “covers actions for personal injuries ‘caused by the

negligent or wrongful act or omission of any employee of the Government while acting

14
Of course, the violation of relevant statutes, ordinance, or regulations may be
relevant to the question whether a governmental employee acted negligently. Taylor, 186
So. 3d at 391.

12
within the scope of his office or employment.’”15 Sheridan v. United States, 487 U.S. 392,

400, 108 S. Ct. 2449, 2455, 101 L. Ed. 2d 352 (1988) (quoting Panella v. United States, 216

F.2d 622, 623 (2d Cir. 1954)) (emphasis removed and added elsewhere).16 Under both

statutory schemes, if an employee was acting within the scope of his employment, then he

cannot be individually sued. Instead, the plaintiff must sue the government employer, in

accordance with Mississippi or federal statute. Compare 28 U.S.C. § 2679 with Miss. Code

Ann. § 11-46-7. Conversely, if an employee was acting outside the scope of her

employment, then the plaintiff can only sue her individually. The government employer

cannot be sued, and the MTCA or FTCA do not apply.17 This means Section 11-46-9(1)’s

15
Indeed, it is a jurisdictional requirement for bringing an action under the FTCA that
the alleged tortious conduct was committed while acting within the scope of employment.
E.g., CNA v. United States, 535 F.3d 132, 140 (3d Cir. 2008); Lawrence v. Dunbar, 919
F.2d 1525, 1528 (11th Cir. 1990).
16
See also 28 U.S.C. § 1346(b) (authorizing federal lawsuits based on “claims against
the United States, for money damages . . . for injury or loss of property, or personal injury
or death caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment” (emphasis added));
28 U.S.C. § 2672 (authorizing the settlement of “any claim for money damages against the
United States for injury or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the agency while acting within the
scope of his office or employment” (emphasis added)); 28 U.S.C. § 2679(b)(1) (“The remedy
against the United States provided by sections 1346(b) and 2672 of this title for injury or
loss of property, or personal injury or death arising or resulting from the negligent or
wrongful act or omission of any employee of the Government while acting within the scope
of his office or employment is exclusive . . . .” (emphasis added)).
17
See Univ. of Miss. Med. Ctr. v. Oliver, 235 So. 3d 75, 82-83 (Miss. 2017) (holding
the MTCA did not apply to claim against police officers alleging they acted maliciously and
thus outside the course and scope of their employment); Leleux v. United States, 178 F.3d
750, 757 (5th Cir. 1999) (dismissing a claim based on tortious conduct committed outside
the scope of employment as “barred by the FTCA”).

13
and Section 2680’s reinstatements of immunity necessarily do not apply. Therefore, an

employee being sued for actions outside the course and scope of his employment cannot take

refuge in these provisions, because the entire Act has no application. See Sheridan, 487 U.S.

at 400-01, 108 S. Ct. at 2455 (holding Section 2680(h) did not apply to claim against an “an

off-duty serviceman, not acting within the scope of his office or employment”); Oliver, 235

So. 3d at 83 (holding defendant employees, whose alleged malicious conduct fell outside the

course and scope of their employment, could not “claim one of Section 11-46-9(1)’s

exemptions to liability applies”).

¶26. So, while the phrase “acting within the course and scope of their employment or

duties” does limit discretionary-function immunity, it is inaccurate to say the federal

counterpart has no comparable limitation. Taken to its logical conclusion, the Brantley

position—that our immunity provision has an additional limitation—suggests that federal

employees can claim sovereign immunity for actions taken outside the course and scope of

their employment, when this is certainly not the case. According to the United States

Supreme Court, the waiver-of-immunity exceptions provided under Section 2680 must “be

construed to apply only to claims that would otherwise be authorized by the basic waiver of

sovereign immunity.” Sheridan, 487 U.S. at 400, 108 S. Ct. at 2455 (emphasis added). And

the only claims authorized by the basic waiver of sovereign immunity are “actions for

personal injuries caused by the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employment.” Id.

14
¶27. Both Section 11-46-9(1) and Section 2680 apply only to claims based on an

employee’s conduct while acting within the course and scope of his employment. The

Federal statute, Section 2680, precludes any claim:

based upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal agency or an employee
of the Government, whether or not the discretion involved be abused.

Almost verbatim, the Mississippi statute, Section 11-46-9(1)(d), precludes any claim:

[b]ased upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a governmental entity or
employee thereof, whether or not the discretion be abused[.]

So we are dealing with essentially the same immunity provision.

¶28. While Brantley claimed Mississippi’s traditional test ignored the text of Section 11-

46-9(1)(d), it is indeed the text—namely its inescapable similarity to Section 2680—that

drives us to conclude Brantley’s new-found textual “distinction” between our discretionary-

function provision and the federal version is simply nonexistent. Our Legislature did not

draft Section 11-46-9(1)(d) in a vacuum. Instead, as even the Brantley majority had to

acknowledge, the Legislature patterned Mississippi’s immunity provision after its federal

counterpart. Brantley, 152 So. 3d at 1112.18

¶29. Recognizing this, the Jones Court—far from being “pernicious”—reasonably looked

to the United States Supreme Court for interpretive guidance and adopted its test for when

18
If the language the Legislature chose is practically verbatim, does it not stand to
reason that our Legislature intended to enact the same immunity provision to provide the
same type of immunity? Why would our Legislature enact a similarly worded immunity
provision if the intent was not to provide “discretionary-function immunity” as understood
by Congress, the body which came up with the concept in the first place?

15
this provision applies. Jones, 744 So. 2d at 260 (“adopt[ing] the public policy function test”

from Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273). Reason also dictates that, in light of the

fact the purported course corrections have proved more and more unworkable with every

case, we should return to this test. The justification for why we had to abandon the Gaubert

test—that our provision has an additional “acting within the course and scope”

requirement—simply fails under scrutiny.

B. Return to the Traditional Public-Policy Function Test

¶30. Mississippi’s public-policy function test has two parts. “This Court first must

ascertain whether the activity in question involved an element of choice or judgment.”

Montgomery, 80 So. 3d at 795. If so, this Court also must decide whether that choice or

judgment involved social, economic, or political-policy considerations. Id. Only when both

parts of the test are met does a government defendant enjoy discretionary-function immunity.

This test, of course, presupposes the court has correctly identified “the activity in

question”—the allegedly tortious act giving rise to the claim.

¶31. The County and City insist the placement of traffic-control devices is a “discretionary

function” under Section 63-3-305. But what the parties—and Justice Kitchens—miss is that

the placement or lack of placement of a traffic-control device is not the government function

being challenged. This is not a case, for example, where the plaintiff alleges the County or

City decided against installing warning lights or signs at dangerous intersections, and that

particular decision contributed to his accident with another vehicle. In such a scenario, it

would be arguable that the plaintiff was trying to use his tort action to second-guess the

16
government’s discretionary policy decision on how best to regulate traffic within the confines

of the government’s limited resources—something the discretionary-function provision was

designed to curb.19 Gaubert, 499 U.S. at 323, 111 S. Ct. at 1273-74. But again, that is not

what Wilcher is claiming.

¶32. Here, the allegedly tortious act was the construction crew’s alleged failure to barricade

or warn against the significant drop-off in the road—a condition it created.20 This alleged

failure was not the result of noncompliance with Section 63-3-305. And applying the public-

policy function test, it certainly was not the result of a policy decision. Rather, if indeed

there was such a failure, it was the result of straight-up negligence.

¶33. We admit the public-policy function test is not perfect and has been misapplied in the

past. We are particularly mindful of this Court’s decision in Pratt, which stretched the

bounds of “policy” beyond credulity. Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So.

19
Nor it this a case about “road maintenance” in the broad sense. Like the decision
to place traffic-control devices, the decision how best to use limited funds to maintain
roadways very well could involve immunized policy decisions. But Wilcher is not claiming
the County and City’s decision to replace or not replace the bridge is what led to his injuries.
20
Of course, the lack of immunity under one of Section 11-46-9(1)’s provisions does
not preclude immunity under another provision. See Fair v. Town of Friars Point, 930 So.
2d 467, 471 (Miss. Ct. App. 2006) (“If any subpart of Mississippi Code Annotated § 11-46-
9(1) applies, immunity exists.”). But it is telling that the City and County can find no relief
under Mississippi Code Section 11-46-9(1)(v)—the immunity provision specifically aimed
at premises-liability claims. According to Wilcher’s allegations, which we must take as true
at this stage, the City and County negligently created a dangerous condition that was not
obvious and that the City and County failed to adequately warn against. So subsection (v),
which provides immunity for claims “[a]rising out of an injury caused by a [non-obvious]
dangerous condition on property of the governmental entity” that was neither caused by a
governmental employee’s negligence or known about in time to adequately protect against
or warn, does not apply. Miss. Code Ann. § 11-46-9(1)(v) (Rev. 2012).

17
3d 68, 75 (Miss. 2012) (holding the placement of nonslip tape on tarmac stairs was an

operational decision involving economic policy and was thus immune). And we agree with

and adopt as part of our public-policy function analysis Chief Justice Waller’s dissent from

that case.

¶34. Because discretionary-function immunity “protects only governmental actions and

decisions based on considerations of public policy,” when “applying the

discretionary-function exception, this Court must distinguish between real policy decisions

implicating governmental functions and simple acts of negligence which injure innocent

citizens.” Id. at 76 (Waller, C.J., dissenting) (citations omitted) (emphasis added). Thus,

“[w]hen reviewing whether a challenged action is afforded immunity, a court’s focus is ‘on

the nature of the actions taken and whether they are susceptible to policy analysis.’” Id.

(quoting Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275).

¶35. Wilcher has alleged a “simple act[] of negligence,” and not a real policy decision,

caused his injury. Therefore, the County and City cannot take refuge in discretionary-

function immunity.

Conclusion

¶36. 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.

18
Applying that test here, the allegedly tortious act did not involve a discretionary policy

decision.

¶37. We thus reverse the trial court’s dismissal based on discretionary-function immunity

and remand this case for further proceedings consistent with this opinion.

¶38. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., BEAM, CHAMBERLIN AND ISHEE, JJ.,
CONCUR. COLEMAN, J., CONCURS WITH SEPARATE WRITTEN OPINION
JOINED IN PART BY RANDOLPH, P.J. KITCHENS, P.J., CONCURS IN RESULT
ONLY WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

COLEMAN, JUSTICE, CONCURRING:

¶39. I concur with the majority and write separately to explain further my decision to do

so.

¶40. In the nascent years of Mississippi’s Tort Claims Act, the Court interpreted the

Section 11-9-46(1)(d) phrase “discretionary function or duty” to protect “those governmental

decisions in which, to be effective, the decision-maker must look to considerations of public

policy and not merely to established professional standards or to standards of professional

reasonableness.” Robinson v. Indianola Mun. Separate Sch. Dist., 467 So. 2d 911, 915

(Miss. 1985). Indeed, the Robinson Court noted that the “principle of immunity from suit

for governmental bodies vested with discretionary authority was carried forward” by the

Legislature when it adopted the Mississippi Tort Claims Act. Robinson, 467 So. 2d at 915.

I concurred with the majority in Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss.

2014), but there we failed to consider properly the weight of the above-identified precedent

that squarely interpreted Mississippi’s discretionary-immunity provision an a manner

19
consistent with our later adoption of the public-function test. In Brantley we failed to

consider the binding precedent of Robinson and other early cases and failed to consider

whether departing from them was justified despite the stabilizing influence of the principle

of stare decisis.

¶41. Further, I agree with the majority that the Brantley Court wrongly distinguished the

Federal Tort Claims Act based on the perceived absence in the federal law of the “course

and scope” limitation found in the Mississippi Tort Claims Act. Brantley, 152 So. 3d at 1112

(¶ 19). As the majority points out, the federal version does indeed contain a course and scope

limitation.

¶42. Accordingly, I concur with the majority opinion and its holding that overrules

Brantley.

RANDOLPH, P.J., JOINS THIS OPINION IN PART.

KITCHENS, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶43. Mississippi Code Section 11-46-9(1)(d) provides that:

A governmental entity and its employees acting within the course and scope
of their employment or duties shall not be liable for any claim . . . [b]ased upon
the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of the governmental entity or
employee thereof, whether or not that discretion be abused.

Miss. Code Ann. § 11-46-9(1)(d) (Rev. 2012). I agree with the majority that the Lincoln

County Board of Supervisors and the City of Brookhaven are not immune and that the Circuit

Court of Lincoln County erroneously granted the motions to dismiss. But because the

majority returns this Court to the public policy function test, which we overruled

20
approximately three years and five months ago in Brantley v. City of Horn Lake, 152 So. 3d

1106 (Miss. 2014), I respectfully concur in result only.

¶44. In Brantley, 152 So. 3d at 1116, we held that Section 11-46-9(1)(d) required us to

“abandon the public-policy function test, because its language does not limit the immunity

enjoyed in the exercise of a discretionary function to discretion involving policy judgments.

Instead, the statute requires only that the discretion be exercised in the course and scope of

the entity or employee’s employment or duty.” Today’s majority exhumes the public policy

function test because federal courts, including the United States Supreme Court, have

construed the Federal Tort Claims Act, Title 28, Section 2680(a) of the United States Code,

to include “actions for personal injuries ‘caused by the negligent or wrongful act or omission

of any employee of the Government while acting within the scope of his office or

employment . . . .” Sheridan v. United States, 487 U.S. 392, 400, 108 S. Ct. 2449, 101 L. Ed.

2d 352 (1988) (quoting Panella v. United States, 216 F. 2d 622, 623 (2d Cir. 1954))

(emphasis in original).21

¶45. But, irrespective of the manner in which the federal courts see fit to interpret federal

statutes, Section 2680(a), which the majority says is no different from Section 11-46-9(1)(d),

reads as follows:

Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the exercise or performance
or the failure to exercise or perform a discretionary function or duty on the part

21
In neither Sheridan nor Panella did the United States Supreme Court apply the
public policy function test.

21
 of a federal agency or an employee of the Government, whether or not the
discretion involved be abused.

28 U.S.C. § 2680(a) (Rev. 2012). Notably absent is the predicate requirement of Section 11-

46-9(1)(d) that the governmental entity and its employees enjoy discretionary-function

immunity only when the governmental entity and its employees are “acting within the course

and scope of their employment or duties . . . .” See Brantley, 152 So. 3d at 1112 (“the

Mississippi Tort Claims Act contains a requirement not present in the Federal Tort Claims

Act . . . .”). That is not to say that “federal employees can claim sovereign immunity for

actions taken outside the course and scope of their employment.” Maj. Op. ¶ 26. The majority

correctly relates that other sections of the United States Code restrict governmental immunity

to the employees acting within the scope of their employment. The course and scope of the

employment requirement is absent textually from Section 2680(a), itself.

¶46. Even assuming, for the sake of argument, that the federal and Mississippi statutes are

identical textually, the Brantley Court said that the judicial adoption of the public policy

function test “imposed a restriction on immunity neither derived from nor contemplated by

Mississippi’s statutory language: that the activity in question ‘involve[] social, economic, or

political policy considerations.’” Brantley, 152 So. 3d at 1112 (quoting Miss. Transp.

Comm’n v. Montgomery, 80 So. 3d 789, 795 (Miss. 2012) (citing Jones v. Miss. Dep’t of

Transp., 744 So. 2d 256, 260 (Miss. 1999), abrogation recognized by Doe v. Rankin Cty.

Sch. Dist., 189 So. 3d 616 (Miss. 2015)).

¶47. The United States Supreme Court had the benefit of legislative history when crafting

the public policy function test: “[t]he legislative materials of the 77th Congress illustrate

22
most clearly Congress’ purpose in fashioning the discretionary function exception.” United

States v. Varig Airlines, 467 U.S. 797, 809, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984). No

such materials exist for this Court’s consideration of legislative intent. By contrast, we have

held that “[t]o determine legislative intent, the Court looks first to the language of the

statute.” Lawson v. Honeywell Int’l, Inc., 75 So. 3d 1024, 1027 (Miss. 2011) (citing Pinkton

v. State, 481 So. 3d 306, 309 (Miss. 1985)).

¶48. The United States Supreme Court explained also that a “Government spokesman

appearing before the House Committee on the Judiciary” said that Section 2680(a) was

“‘designed to preclude application of the act to a claim based upon an alleged abuse of

discretionary authority by a regulatory or licensing agency—for example, the Federal Trade

Commission, the Securities and Exchange Commission, the Foreign Funds Control Office,

or Office of the Treasury, or others.’” Varig Airlines, 467 U.S. at 809. Our nation’s highest

court previously had considered a case involving “vast claims for damages against the United

States arising out of a disastrous explosion of ammonium nitrate fertilizer, which had been

produced and distributed under the direction of the United States for export to devastated

areas occupied by the Allied Armed Forces after World War II.” Id. at 810 (citing Dalehite

v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953)). The plaintiffs charged

the government with negligence on many levels: “the cabinet-level decision to institute the

fertilizer export program, the failure to experiment with the fertilizer to determine the

possibility of explosion, the drafting of the basic plan of manufacture, and the failure

properly to police the storage and loading of the fertilizer.” Varig Airlines, 467 U.S. at 811.

23
¶49. The Court held that the government was protected under the discretionary function

exception, which it described as “‘the discretion of the executive or the administrator to act

according to one’s judgment or best course’”:

It is unnecessary to define, apart from this case, precisely where discretion
ends. It is enough to hold, as we do, that the “discretionary function or duty”
that cannot form a basis for suit under the Tort Claims Act includes more than
the initiation of programs and activities. It also includes determinations made
by executives or administrators in establishing plans, specifications or
schedules of operations. Where there is room for policy judgment and decision
there is discretion. It necessarily follows that acts of subordinates in carrying
out the operations of government in accordance with official directions cannot
be actionable.

Varig Airlines, 467 U.S. at 811 (quoting Dalehite, 346 U.S. at 35-36). The Varig Court

continued that “the basic inquiry concerning the application of the discretionary function

exception is whether the challenged acts of a Government employee—whatever his or her

rank—are of the nature and quality that Congress intended to shield from tort liability.”

Varig Airlines, 467 U.S. at 813.

¶50. This Court, in adopting the public policy function test, employed language from the

United States Supreme Court that is in nowise binding upon this state supreme court: “‘[T]he

purpose of the exception is to prevent judicial second-guessing of legislative and

administrative decisions grounded in social, economic, and political policy through the

medium of an action in tort.’” Jones v. Miss. Dep’t of Transp., 744 So. 2d 256 (Miss. 1999).

Well before Jones and well before Varig and well before Section 11-46-9(1)(d), this Court

had said that:

Judicial review of basic policy-making decisions continues to be regarded by
many as inappropriate because courts have no standards by which to judge

24
 such decisions. Judges and jurors are in no better position to evaluate the
reasonableness of policy determinations than are those officials who are
charged with making them. The reasonable man standard of tort law is not an
appropriate measure for the political, social or economic desirability of
government programs and the methods selected for pursuing them. State tort
standards cannot adequately control those government decisions in which, to
be effective, the decision maker must look to considerations of public policy
and not merely to established professional standards or to standards of general
reasonableness.

Pruett v. City of Rosedale, 421 So. 2d 1046, 1051-52 (Miss. 1982), superseded by statute as

recognized by Jackson v. Daley, 739 So. 2d 1031 (Miss. 1999). Consistent with Varig

Airlines, Jones, and Pruett, Brantley leaves to the legislative branch, at both the state and

local levels, the public-policy-driven task of determining and controlling immunity.

¶51. Under the public policy function test, “the Court first determines ‘whether the activity

in question involved an element of choice or judgment[,]” and, if so, ‘whether that choice or

judgment involved social, economic, or political-policy considerations.’” Brantley, 152 So.

3d at 1112 (citing Montgomery, 80 So. 3d at 795) (citing Jones, 744 So. 2d at 260). The

majority accuses this justice of having “no concern for stare decisis when the Brantley

majority admittedly abandoned fifteen years of precedent.” Maj. Op. ¶ 21 n.12. But the

Brantley Court carefully explained the rationale for abandoning the public policy function

test:

This Court has examined the broad governmental function implicated by the
suit to determine whether immunity applied, rather than the specific activity
involved, in several prior cases. In the pre-Little case of Pratt [v. Gulfport
Biloxi Regional Airport Authority, 97 So. 3d 68 (Miss. 2012)], a plurality of
the Court determined that a municipality was entitled to discretionary-function
immunity for a suit based upon the alleged improper placement of nonslip tape
on temporary airstairs at a municipal airport. Pratt, 97 So. 3d at 75-76 (¶ 19).
The plurality opined that the act of placing the tape on the stairs was

25
performed in furtherance of the discretionary function of a municipality’s
operation of an airport. Id. at 72 (¶ 10). The parties in that case had agreed that
placing nonslip tape on airstairs “was not a ministerial function, as there
[we]re no laws or regulations pertaining to th[at] activity.” Id. The plurality
concluded that, “barring a rule or regulation pertaining to a certain activity,
decisions that are part of the airport’s day-to-day operations are also
discretionary.” Id. Importantly, the plurality noted “that there are many laws,
rules, and regulations pertaining to aviation and airports, so not every
day-to-day decision or activity at an airport will be discretionary.” Id. at 73 (¶
14).

While it is true, as the dissent contends, that the plurality in Pratt applied the
public-policy function test, it was clear that the overarching discretion
involved with operating an airport was the dispositive factor in finding
immunity. The plurality held that certain day-to-day decisions such as the
placement of nonslip tape on airstairs fell “under the overall operation of the
airport.” Id. at 75 (¶ 18). The regional airport authority’s “operation of the
airport involve[d] social and economic policy considerations, satisfying the
second part of the public-policy function test.” Id. (emphasis added). Any
concept of the sort of policy decisions implicit in deciding how to place
nonslip tape on airstairs was completely subsumed by the fact that the decision
to operate an airport was discretionary and implicated economic policy
considerations. Clearly, this Court looked at the broad governmental function
of airport operation implicated by the suit when it determined that
discretionary-function immunity applied, rather than analyzing the specific
activity of placing nonslip tape on stairs.

Further, in City of Jackson v. Doe ex rel. J.J., 68 So. 3d 1285, 1288 (¶ 12)
(Miss. 2011), in which Chief Justice Waller joined the majority opinion, this
Court held that a city was not liable for a dangerous condition in one of its
parks because the “operation of a city park is a discretionary function of the
city.” In so holding, the Court did not examine the specific conduct which had
led to the injuries involved, i.e., maintaining the park in a reasonably safe
condition. Instead, the Court stated that the “creation and operation of a city
park is within the discretion of the municipality[,]” and thus immunity applied.
Id. Again, the Court did not focus on the specific activity in question, but
rather on the overarching function of the operation of a public park. So, while
the dissent in the present case may argue that this approach arises from some
novel understanding of the law, in actuality, this Court has been focusing on
the function, rather than on the act, for some time now.

26
 In Pratt, Montgomery, and Little, this Court recognized that, although a broad
function, such as the operation of an airport, may be discretionary, or that road
maintenance may be ministerial, within those functions may lie more narrowly
defined duties which may be rendered ministerial or discretionary through
other legislative enactments or through regulations. Accordingly, the language
in Little which provides that the Court must look only at the function can be
misunderstood. The Court first must consider the broadest function involved
in order to make a baseline determination of whether the overarching function
is discretionary or ministerial. The Court then must examine any narrower duty
associated with the activity at issue to determine whether a statute, regulation,
or other binding directive renders that particular duty a ministerial one,
notwithstanding that it may have been performed within the scope of a broader
discretionary function.

For example, in the context of Pratt, operators of an airport are, of course,
required to conduct security screenings of passengers who are attempting to
board airplanes. A municipality’s decision to operate an airport may be
discretionary; but once that discretion has been exercised to operate the airport,
the municipality must comply with security regulations promulgated by the
Transportation Security Administration. In this way, it is useful to think of the
operation of an airport as an overarching discretionary function that shelters
several narrower functions or duties, many of which, such as the provision of
security and compliance with federal security regulations, are ministerial.

Brantley, 152 So. 3d at 1113-1115.

¶52. The public policy function test provides no guidance with regard to whether the

overarching function, discussed in the cases mentioned by Brantley, or the narrower duties

associated with the overarching function involved an element of choice or judgment, and, if

so, also involved social, economic, or political-policy considerations. Under the public policy

function test, this Court first had to consider whether to look to the overarching function or

the narrower duties associated with that function. So the public policy function test involved

the same sort of “tedious and scattered quest” the majority accuses Brantley of having

created and it certainly “made it little more than a gamble when lawyers advise[d] clients

27
whether they [had] valid tort claims or defenses in MTCA cases” causing attorneys and

litigants to have to “wait until their case shakes out in the appellate courts to know what the

law is.” Maj. Op. ¶¶ 15, 20, 21. Brantley provided certainty: “this Court must look closely

at any of the narrower functions or duties underlying the claim at issue and determine

whether a statute or other regulation removes it from the umbrella of discretionary function

immunity.” Brantley, 152 So. 3d at 1117.

¶53. I turn to the case currently before the Court. Section 63-3-305 requires that:

Local authorities in their respective jurisdictions shall place and maintain such
traffic control devices upon highways under their jurisdiction as they may
deem necessary to indicate and to carry out the provisions of this chapter or
provisions of local traffic ordinances or to regulate, warn, or guide traffic. All
such traffic-control devices hereafter erected shall conform to the state manual
and specifications.

Local authorities in exercising those functions referred to in the preceding
paragraph shall be subject to the direction and control of the state highway
commission.

Miss. Code Ann. § 63-3-305 (Rev. 2013).

¶54. In Section 63-3-305, the legislature mandates that local authorities place and maintain

traffic control devices “upon highways under their jurisdiction as they may deem necessary

to indicate and to carry out the provisions of this chapter or provisions of local traffic

ordinances or to regulate, warn, or guide traffic.” Section 63-3-305 continues: “All such

traffic-control devices hereafter erected shall conform to the state manual and

specifications.” The legislature incorporated by reference local traffic ordinances and the

State manual and specifications and made those regulations mandatory once the local

authority deemed it necessary to place and maintain traffic control devices. Lincoln County,

28
in its motion to dismiss, stated that the company it had hired to remove the bridge and replace

it with a culvert pipe “had removed the old bridge, inserted the culvert pipes, and was in the

process of covering the culvert pipes at the end of the day,” but that “[t]here was a drop off

left,” so the company “placed a homemade barricade across the south end of the road

warning the public that the bridge construction was not completed.”

¶55. In Brantley, this Court explained that:

Our holding in Little stands for the principle that all acts in furtherance of a
ministerial function lack immunity notwithstanding that the act itself may
involve an element of discretion. That said, while one statute may render a
broad function ministerial, another statute or regulation may render a duty
involved with that function discretionary, thus allowing the performance of
such a duty to enjoy immunity.22 And clearly, the converse must be true, such
that narrower duties encompassed in a broad discretionary function may be
rendered ministerial through statute or regulation.

Brantley, 152 So. 3d at 1113. This Court held that “a plaintiff may defeat sovereign

immunity, even when a governmental entity’s act furthered a discretionary function or duty,

when the plaintiff proves that the act also furthered a more narrow function or duty which

is made ministerial by another specific statute, ordinance, or regulation promulgated pursuant

to lawful authority.” Id. at 1115.

22
The Court here incorporated the following footnote in Brantley:

Such was recognized by this Court in Montgomery. “Occasionally . . . the
Legislature will mandate that a political subdivision fulfill some particular
function, but then specifically set forth that some portion or aspect of that
function is discretionary. When that happens, acts fulfilling the discretionary
portion of the governmental function enjoy immunity.” Miss. Transp.
Comm’n v. Montgomery, 80 So. 3d 789, 798 (¶ 31) (Miss. 2012).

Brantley, 152 So. 3d 1106, 1113 n.3.

29
¶56. In Boroujerdi v. City of Starkville, this Court observed that:

The duty to maintain a sewage system is not imposed by law upon
municipalities. The language of [Mississippi Code] Section 21-27-189 [(Rev.
2007)] explicitly leaves it to the discretion of municipalities whether and how
to maintain their sewage systems, if any. Accordingly, sewage maintenance,
as a general function, is discretionary. This, in fact, is similar in principle to
the statute [(Miss. Code Ann. § 41-55-1 (Rev. 2013))] rendering a city
ambulance service a discretionary function in Brantley. Our task now,
pursuant to our holding in Brantley, is to consider whether there are narrower
functions or duties concomitant to the general discretionary function of sewage
maintenance that have been rendered ministerial through statute, ordinance, or
regulation.

Boroujerdi v. City of Starkville, 158 So. 3d 1106, 1112 (Miss. 2015). This Court referenced

the Federal Water Pollution Control Act and regulations from the Mississippi Department

of Environmental Quality to find that, “[c]learly, although the legislature granted to

municipalities the discretion to maintain their sewage systems initially, there remain many

statutes and regulations which render ministerial certain more narrow functions of sewage-

system maintenance.” Id. at 1113. “[I]f Boroujerdi can prove that the City’s alleged inaction

in repairing the sewage system was related to a more narrow function made ministerial by

statute, ordinance, regulation, or other binding directive, then he may proceed with his

claim.” Id. at 1114.

¶57. In Mississippi Transportation Commission v. Adams, this Court held that, while

Mississippi Code Section 63-3-303 is discretionary, the Mississippi Transportation

Commission’s adoption of the Mississippi Standard Specifications for Road and Bridge

Construction (the “Red Book”) imposed narrower ministerial duties on the Mississippi

Transportation Commission entitling the plaintiff to proceed with her claims. Miss. Transp.

30
Comm’n v. Adams, 197 So. 3d 406, 413 (Miss. 2016). Citing Brantley, the Adams Court

observed that “the function here presents ‘the converse’ principle that Brantley discussed:

placement and maintenance of traffic-control devices is discretionary, unless narrower duties

encompassed in that function—such as placing and maintaining edge lines—have been

‘rendered . . . ministerial through statute or regulation.’” Id. (quoting Brantley, 152 So. 3d

at 1113).

¶58. Here, Section 42-85 of Brookhaven’s Code of Ordinances states that:

The permittee shall . . . ensure that any work . . . which is left overnight or in
an unfinished condition at any time when construction is not actually occurring
or during actual construction is made safe, which shall minimally include the
placement of danger or warning lights and barricades as required by any
applicable or governing safety or traffic codes, regulations, and laws and in
accordance with the Manual on Uniform Traffic Control Devices.23

Brookhaven, Miss., Code § 42-85 (2017). Section 42-87 provides:

At all times, including the non-work and overnight hours, the permittee shall
be responsible for the safety of the area where any excavation, unfinished fill
or any obstruction of any kind whatever is placed in any street, alley, sidewalk,
or right-of-way and permitted to remain or exist. Such area shall minimally be
marked with good and sufficient danger or warning lights, with barricades, and
in such a manner as to plainly show or reveal the place and extent of such
excavation, unfinished fill or obstruction. Danger or warning lights shall be
erected and illuminated not later than sunset of each evening and kept burning
continuously until sunrise the next morning. The placement, type, and form of
danger or warning lights and barricades and ensuring the safety of these areas
shall be in accordance with any and all applicable or governing safety or traffic
codes, regulations, and laws and with the Manual on Uniform Traffic Control
Devices.

23
Section 2B.58 of the Manual on Uniform Traffic Control Devices (2009) provides
images of signs required to be displayed in order to indicate a road closure: “The ROAD
CLOSED . . . sign should be installed where roads have been closed to all traffic . . . . The
word message BRIDGE OUT may be substituted for ROAD CLOSED legend where
applicable.”

31
Brookhaven, Miss., Code § 42-87 (2017). The Mississippi Standard Specifications for Road

and Bridge Construction (the “Red Book”) requires:

[W]arning signs in advance of all places on the project where operations may
interfere with traffic and all intermediate points where the work crosses or
coincides with the existing roadway. . . . All barricades, warning signs, lights,
temporary signals, other protective devices, flaggers, and signaling devices
shall meet or exceed the minimum requirements contained in the [Manual on
Uniform Traffic Control Devices].

Red Book § 107.10 (2017).24 Mississippi Administrative Code Section 37-1-26:00100-102

(2017) provides that “[s]igns and signals will be warranted, erected, and maintained in

accordance with the guidelines of the Manual on Uniform Traffic Control Devices adopted

by the Transportation Commission, as per Mississippi Code . . . 63-3-303 . . . .”

¶59. As in Adams, “the function here presents ‘the converse’ principle that Brantley

discussed: placement and maintenance of traffic-control devices is discretionary, unless

narrower duties encompassed in that function—such as placing and maintaining edge

lines—have been ‘rendered . . . ministerial through statute or regulation.’” Adams, 197 So.

3d at 413 (quoting Brantley, 152 So. 3d at 1113). The local ordinances and State regulations

referenced above impose ministerial (mandatory) duties upon the City of Brookhaven and

on Lincoln County to erect warning barricades and lights and to place signs where

construction affects an existing roadway.

24
http://sp.mdot.ms.gov/Construction/Standard%20Specifications/2017%20Standard%20
Specifications.pdf (last visited May 23, 2018).

32
¶60. The majority pontificates that, “[a]s a result of Brantley, what the Legislature

intended as a shield—discretionary-function immunity under Section 11-46-9(1)(d)—is

flipped on its head and is being used as a sword.” Maj. Op. ¶ 17. But surely, in a context such

as this, if what Wilcher has alleged is true (and we must consider it as such at the Mississippi

Rule of Civil Procedure 12(b)(6) stage), the failure of the city and county to abide not only

by the regulations mandated under State law but also by the ordinances which they

themselves adopted, does not permit the application of discretionary-function immunity. If

what Wilcher alleges is more likely true than not, the city’s and county’s nonfeasance

removes the blanket of immunity. Conversely, local and State authorities may decide—even

if a broad statute creates a mandatory duty and to the extent the legislature declines to impose

narrower ministerial duties—to render discretionary whichever narrower functions or duties

those authorities deems appropriate. The Brantley formula, in effect, makes it possible for

the legislature and State and local authorities to control immunity, or the lack thereof, by

making discretionary any narrower functions or duties which otherwise would have rendered

them ministerial.

¶61. Because Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014), provides the

most sensible and pragmatic approach to applying discretionary function immunity under

Mississippi Code Section 11-46-9(1)(d) (Rev. 2012), I would hold fast to its dictates and,

accordingly, respectfully concur with the majority in result only.

¶62. The majority decries Brantley’s forcing “parties and judges to wade through an ever-

deepening quagmire of regulations and ordinances to locate ‘ministerial’ or ‘discretionary’

33
duties, overcomplicating the process. . . .” Maj. Op. ¶ 2. Its predominant complaint about

Brantley is that it “overcomplicates the process of litigating a claim and places the success

of a claim on the ability of the injured party’s attorney to sift through myriad and sometimes

arcane regulations—creating extra layers of proof, which may have little or no practical

effect on the actual negligent act.” Maj. Op. ¶ 15 (quoting Crum v. City of Corinth, 183 So.

3d 847, 854 (Miss. 2016) (Randolph, P.J., concurring in result only)). But, upon this Court’s

return to the public policy function test, litigants and courts will continue to be required to

“scour the state manual” and “hunt for other regulations and ordinances” in order to make

arguments about whether the activity in question involved any policy considerations. Maj.

Op. ¶ 15. Yet courts and litigants will enjoy no longer the certainty of knowing that if the

most narrow duty associated with an overarching function is discretionary, the government

has immunity; and if the most narrow duty associated with an overarching function is

ministerial, the government does not retain its immunity and the case can proceed. Moreover,

seasoned practitioners and jurists understand and accept that this is what the lawyers who

represent parties and the judges who sort through and decide complex legal issues, often

involving myriad statutes, ordinances, and regulations, have done from time immemorial; we

“scour” through an ever-deepening morass of material, solving people’s problems and

searching for answers, undaunted by the volume or complexity of the issues. This is what we

do.

¶63. The Mississippi Tort Claims Act itself can be a perplexing thing to understand, and

has, since its inception, been so recognized by Bench and Bar. Particularly confusing, as

34
demonstrated by legion pre-Brantley pronouncements by this Court, have been the

exceptions to outright governmental tort immunity found in cases in which negligence is

alleged concerning the performance or lack of performance of ministerial, or mandatory,

governmental duties. What Brantley did, in full accord with the Mississippi statute, was to

clarify and make that process relatively simple and easy. In some cases, the Brantley

analysis has upheld governmental immunity. In others, immunity has been found

inapplicable.

¶64. And that process is not exactly a “recently created test,” as the majority characterizes

it. Maj. Op. ¶ 1. It has been in use since 2014. Today, a majority of the Court chooses to

abolish it, primarily because, notwithstanding its simplicity, it is accused falsely of being too

complicated. So much for stare decisis.25

KING, J., JOINS THIS OPINION.

25
As discussed above, this Court clearly found the application of the public policy
function test to have been “pernicious” in Brantley. This Court “has declined to continue
applying an incorrect interpretation when we find that it is ‘pernicious,’ ‘impractical,’ or
‘mischievous in . . . effect, and resulting in detriment to the public.’” Bester v. State, 188 So.
3d 526, 529 (Miss. 2016) (quoting Payne v. Tennessee, 501 U.S. 808, 828, 111 S. Ct. 2597,
115 L. Ed. 2d 720 (1991) (internal quotations omitted)).

35