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02/27/98 WERNER JOSEPH WATKINS AND CYNTHIA WATKINS

WERNER JOSEPH WATKINS AND CYNTHIA WATKINS, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, JOANNA WATKINS, JESSICA DAVIS, LAURA DAVIS AND JUSTIN WATKINS
v.
MISSISSIPPI TRANSPORTATION COMMISSION



THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: 07/15/96 TRIAL JUDGE: HON. ROBERT H. WALKER COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION AFFIRMED - 2/26/98 MOTION FOR REHEARING FILED: MANDATE ISSUED:

Before Prather, C.j., Smith And Waller, JJ.

The opinion of the court was delivered by: Waller, Justice, For The Court:

SUMMARY

Werner Joseph Watkins was injured in a motorcycle accident which he alleges was caused by the negligence of the Mississippi Transportation Commission, among others not at issue here. The Harrison County Circuit Court granted the Mississippi Transportation Commission's Motion to Dismiss the resultant personal injury suit brought by Joseph Watkins, et al. Because the cause of action accrued after the passage and effective date of House Bill 2 in Extraordinary Session ("Special Session Amendments) of the legislature on September 16, 1992, the court determined that the Mississippi Transportation Commission was protected by the umbrella of sovereign immunity. Aggrieved by the decision of the circuit court, Joseph Watkins, et al, now appeal. After careful examination of the briefs and record in this matter, we conclude that the Judge's action in granting the Mississippi Department of Transportation's Motion to Dismiss was appropriate.

STATEMENT OF THE FACTS

On December 2, 1992, at 11:00 p.m., Werner Joseph Watkins ("Werner") was riding his 1949 Harley Davidson motorcycle, traveling north on Lorraine Road, within the city limits of Gulfport. The road on which he was traveling opened up from a two lane road to a four lane road and he moved into the right lane. The right lane came to an abrupt end and Werner tried unsuccessfully to merge into the left lane. As he tried to return to the roadway and/or stop his motorcycle, he encountered potholes and other defects, causing him to lose control of his motorcycle. Werner struck a shoulder drop-off located at the intersection of Jack Watson Power Plant Road and Lorraine Road and then collided with a highway sign *fn1 , causing injury to his left leg which required amputation above the knee. *fn2

On December 1, 1995, Werner Joseph Watkins and Cynthia Watkins, individually and on behalf of their minor children ("Watkins"), filed suit against, among others, the Mississippi Transportation Commission ("MTC") *fn3 . The Watkins alleged that the MTC was liable to them for the injuries sustained from the above-described motorcycle accident. The Watkins alleged that the condition of the road was the result of the collective defendants' action.

On February 13, 1996, the MTC filed a Motion to Dismiss, pursuant to Rule 12, Mississippi Rules of Civil Procedure, arguing that the Watkins had failed to state a cause of action upon which relief could be granted because sovereign immunity provided the MTC an absolute defense. MTC's motion was heard on June 28, 1996, and on July 15, 1996, the circuit court entered its order granting MTC's motion, holding that sovereign immunity was an absolute defense available to MTC on December 2, 1992, the date the cause of action arose. The Watkins moved for certification of interlocutory appeal which was granted on August 1, 1996. The Watkins filed their Notice of Appeal on August 14, 1996.

STANDARD OF REVIEW

This case comes before us on a dismissal pursuant to Miss.R.Civ.P 12(b)(6). A Miss.R.Civ.P. 12(b)(6) motion to dismiss raises an issue of law. Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990); Lester Engineering Co., Inc. v. Richland Water and Sewer District, 504 So. 2d 1185, 1187 (Miss. 1987). This Court reviews questions of law de novo. Tucker, 558 So. 2d at 872; UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So. 2d 746, 754 (Miss. 1987). Additionally,"he pleaded allegations of the complaint must be taken as true . . . ." Butler v. Bd. of Supervisors for Hinds County, 659 So. 2d 578, 581 (Miss. 1995) (quoting Overstreet v. Merlos, 570 So. 2d 1196, 1197 (Miss. 1990)). Under de novo review, we affirm only if the plaintiff can show, beyond doubt, no set of facts in support of his claim which would entitle him to relief. Robinson v. Stewart, 655 So. 2d 866, 867 (Miss. 1995); Tucker, 558 So. 2d at 872. *fn4

DISCUSSION OF THE LAW

The Watkins make two assertions in the instant case. First, the Watkins argue that sovereign immunity does not apply to the facts of this case because the MTC's negligence or fault in the maintenance and repair of a roadway is a proprietary function, which waives sovereign immunity. Second, the Watkins assert that, even if sovereign immunity does apply in the case sub judice, this Court should abrogate the doctrine because "the application of this doctrine has been uniformly diminished by this Court [which is] consistent with the nation-wide trend to promote responsibility in government by eliminating the doctrine of sovereign immunity."

The Watkins' cause of action accrued on December 2, 1992, after the date of the passage and effective date of the Special Session Amendments on September 16, 1992. Therefore, as conceded by the Watkins, their claim is governed by the Special Session Amendments. ...


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