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Fortune v. Lee County Board of Supervisors

July 02, 1998

MARGIE GAIL FORTUNE AS WRONGFUL DEATH BENEFICIARY OF STEVEN LYNN FORTUNE
v.
LEE COUNTY BOARD OF SUPERVISORS



The opinion of the court was delivered by: Prather, Chief Justice

DATE OF JUDGMENT: 01/04/94

TRIAL JUDGE: HON. THOMAS J. GARDNER, III

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION AFFIRMED - 4/23/98

MOTION FOR REHEARING FILED: 5/6/98

MANDATE ISSUED:

EN BANC.

STATEMENT OF THE FACTS AND CASE

¶1. Maggie Fortune's husband, Steven Fortune, and their two young children, Stephanie and Steven Matthew, were killed on December 11, 1989, when the vehicle in which they were riding fell from a bridge without guardrails on County Road 681 in Saltillo, Mississippi. Mrs. Fortune filed suit against the Lee County Board of Supervisors and the XYZ Construction Company on December 27, 1989, alleging that the Board of Supervisors was negligent in failing to properly inspect, repair, erect and maintain guardrails on the bridge in question and in failing to warn of the bridge's hazards. The circuit court denied the County's motion to dismiss, finding that the Board of Supervisors did not enjoy the benefit of sovereign immunity that it claimed.

¶2. In its opinion denying the Board of Supervisor's motion to dismiss, the circuit court found that if the Board violated the duty placed on it by Miss. Code Ann. § 65-21-1, governing the design and construction of bridges on public roads, it was not shielded from liability by sovereign immunity. Lee County Bd. of Supervisors v. Fortune, 611 So. 2d 927, 928 (Miss. 1992)(hereinafter Fortune I). This Court granted the Board's request for an interlocutory appeal on the question of its liability for negligence in the construction and/or maintenance of a bridge on a county road. (Fortune I, 611 So. 2d at 928).

¶3. While that case was pending, the sovereign immunity statute, Miss. Code Ann. § 11-46-6 (1986), was found to be unconstitutional (but only prospectively) in Presley v. Mississippi State Highway Commission, 608 So. 2d 1288 (Miss. 1992). In Fortune I, this Court affirmed the circuit court's denial of the Board's motion to dismiss, but declined to address the issues raised by the parties, stating:

We need not decide these issues. As we did in Presley, the proper course is to remand this case for further proceedings in light of our holding there. We therefore affirm the order of the circuit court denying defendants' motion to dismiss and remand this case to that court for further proceedings.

Fortune I, 611 So. 2d at 930.

¶4. On remand, the Board filed a motion for summary judgment on November 17, 1993, asserting that Mrs. Fortune's claims were barred by the 1993 amendments to the State Tort Claims Act and arguing that Presley was inapplicable because the cause of action arose prior to the August, 1992 decision. The circuit court found, as a matter of law, that Fortune's claims were barred by Miss. Code Ann. § 11-46-1, et seq., as amended effective April 1, 1993, and granted the Board's motion for summary judgment on January 4, 1994. Fortune timely appealed to this Court.

ARGUMENTS AND DISCUSSION OF THE LAW

I. WHETHER THE AMENDED SOVEREIGN IMMUNITY STATUTE IS APPLICABLE TO THE CAUSE OF ACTION

A. WHETHER THE INTERLOCUTORY ORDER OF THE MISSISSIPPI SUPREME COURT IS A "FINAL JUDGMENT" WITHIN THE MEANING OF § 11-46-3(2)

¶5. The circuit court granted the Board of Supervisors' motion for summary judgment on grounds that suit against it was barred by the revised sovereign immunity statute. Miss. Code Ann. § 11-46-3 (Supp. 1997), as amended effective April 1, 1993, provides for the immunity of the state and its subdivisions as follows:

(1) The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare, provide, enact and re-enact that the "state" and its "political subdivisions," as such terms are defined in Section 11-46-1, are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract, including but not limited to libel, slander or defamation, by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature ...


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