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MATTIE S. WINTERS, ADMINISTRATRIX AND REPRESENTATIVE OF THE WRONGFUL DEATH BENEFICIARIES OF CORLISS D. SUBER, DECEASED v. LEON LUMLEY AND THE BOARD OF SUPERVISORS OF WASHINGTON COUNTY

SEPTEMBER 27, 1989

MATTIE S. WINTERS, ADMINISTRATRIX AND REPRESENTATIVE OF THE WRONGFUL DEATH BENEFICIARIES OF CORLISS D. SUBER, DECEASED
v.
LEON LUMLEY AND THE BOARD OF SUPERVISORS OF WASHINGTON COUNTY, MISSISSIPPI



BEFORE ROY NOBLE LEE, PITTMAN and BLASS

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Mattie S. Winters, Administratrix of the Estate of Corliss D. Suber, Deceased, has appealed from a judgment of the Circuit Court, Washington County, Mississippi, entered on a Rule 12 (b) (6) motion dismissing the action for damages filed against the Board of Supervisors of Washington County as a result of the death of Corliss D. Suber. The appellant assigns two (2) errors in the proceedings below.

Case Statement

 The second amended complaint charged that on December 10, 1984, Corliss Suber was driving an automobile in a westerly direction on Wilmot Road in Washington County; that suddenly and without warning, she ran into a slippery muddy place on the highway caused by large clumps of rain-moistened earth; and that her vehicle skidded out of control and crashed into the railings of a concrete bridge, causing serious injuries to Suber, from which she subsequently expired.

 The complaint further alleged that a mud slick and mud was upon the highway as a result of the farming operations conducted by Leon Lumley as he moved farm equipment from his farming operation onto the paved highway where the mud was shaken loose from the machinery and deposited on the highway; and that the Board of Supervisors of Washington County was negligent in that it was aware of, or should have been aware of, the dangerous condition on the highway caused by the deposits of mud and failed to clean up and remove the hazardous condition.

 The appellee Board of Supervisors of Washington County answered and the third defense was a Rule 12 (b) (6) motion interposing and claiming sovereign immunity in the suit. The appellant also filed, prior to the court's ruling on the motion, a bill of exceptions attaching thereto copy of a policy of liability insurance which provided general liability protection for the Board of Supervisors in the amount of five hundred thousand dollars ($500,000). After considering the motion, together with the bill of exceptions, the lower court sustained

 the motion and dismissed the suit as to the Board of Supervisors with prejudice.

 ISSUES

 I.

 DOES THE DOCTRINE OF SOVEREIGN IMMUNITY APPLY TO, AND PROTECT, THE BOARD OF SUPERVISORS OF WASHINGTON COUNTY FOR THE CLAIM STATED IN THE COMPLAINT?

 The first question argued by the appellant on this assigned error is whether or not the removal of mud and cleanup of the slippery condition on the highway resulting from the deposit of such mud thereon by vehicles using the highway is a discretionary function or a ministerial function of the Board of Supervisors. The lower court found that it is a discretionary function rather than a ministerial function and, therefore, granted the 12 (b) (6) motion. We address this question for the reason that the members of the Board of Supervisors of Washington County were sued in their" official capacities, "not individually.

 In order to sustain a 12 (b) motion, it must appear to a certainty that the appellant is entitled to no relief under any facts presented that could be proved in support of his claim. State v. Lewis, 498 So. 2d 321, 324 (Miss. 1986); Busching v. Griffin, 465 So. 2d 1037 (Miss. 1985); and Stanton & Associates. Inc. v. Bryant Constr. Co., 464 So. 2d 499 (Miss. 1985).

 Davis v. Little, 362 So. 2d 642 (Miss. 1978), discusses the distinction between discretionary and ministerial functions:

 The immunity of public officials, on the other hand, is a more limited principle, since its purpose is not directly to protect the sovereign, but, rather, to do so only collaterally by protecting the public official in performance of his governmental function. Given the more limited function, courts have generally extended less than absolute immunity. The most commonly recognized limitation is the distinction between discretionary acts as opposed to ministerial acts. Under this distinction, the official is ...


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