Melissa Smith v. Pike County, Mississippi

• Court: Court of Appeals of Mississippi
• Decided: February 9, 2021
• Docket: 2019-CA-01446-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-01446-COA

MELISSA SMITH APPELLANT

v.

PIKE COUNTY, MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/28/2019 TRIAL JUDGE: HON. DAVID H. STRONG JR. COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: EDWIN L. BEAN JR. ATTORNEY FOR APPELLEE: WILLIAM ROBERT ALLEN NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 02/09/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

LAWRENCE, J., FOR THE COURT:

¶1. Melissa Smith appeals the Pike County Circuit Court’s grant of summary judgment

in favor of Pike County, Mississippi (“County”). In March 2016, Smith drove her vehicle

across a washout on a County road and sustained injuries. As a result, she brought a

negligence action against the County. The County filed a motion for summary judgment,

claiming immunity under the Mississippi Tort Claims Act (“MTCA”). The circuit court

ultimately granted the County’s motion. Smith filed a motion for reconsideration. The court

denied Smith’s motion, and she appealed. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On the evening of March 12, 2016, Smith was driving eastbound on Magnolia- Holmesville Road in the County when she drove her vehicle over a washout. The washout

was a result of a “significant rain event” that occurred on the evening of March 10 and early

morning of March 11. According to Smith, there were no signs on the eastbound lane

warning motorists of the washout.

¶3. On September 1, 2016, Smith filed a complaint against the County for negligence per

se and/or negligence. Specifically, she claimed that the County failed to place proper

warnings in advance of the washout, failed to act with ordinary and reasonable care, failed

to comply with the regulations set forth in the Manual on Uniform Traffic Control Devices,

failed to comply with Mississippi Code Annotated sections 11-46-9-(1)(v) and (1)(w) (Rev.

2019) of the MTCA, and allowed an unreasonably dangerous and hazardous condition to

exist in the road. On October 4, 2016, the County filed its answer and affirmative defenses.

The County admitted that a washout occurred on Magnolia-Holmesville Road the date of the

accident but claimed immunity under the MTCA. On February 27, 2017, the circuit court

entered an agreed order limiting discovery.1

¶4. On October 10, 2017, the County filed a motion for summary judgment. In relevant

part, the County argued that Smith’s claims were barred by Mississippi Code Annotated

section 11-46-9-(1)(q) (Rev. 2019), otherwise known as the “weather exception.” That

section states “[a] governmental entity and its employees acting within the course and scope

1 The order specifically allowed the County to participate in limited immunity-related discovery without waiving any immunities or other affirmative defenses.

2 of their employment or duties shall not be liable for any claim . . . arising out of an injury

caused solely by the effect of weather conditions on the use of streets and highways.” Miss.

Code. Ann. §11-46-9-(1)(q) (emphasis added). On June 8, 2018, Smith filed a response and

argued, among other things, that section 11-46-9(1)(q) was inapplicable because “the

condition that caused the washout that plaintiff’s vehicle entered on the night of March 12

. . . had long passed.” The court held a hearing on February 8, 2018. On June 28, 2018, the

circuit court denied the County’s motion.

¶5. The County filed its motion for reconsideration on July 13, 2018. The County also

filed a petition for interlocutory appeal, which the Supreme Court denied. Following a

hearing, on February 28, 2019, the circuit court granted the County’s motion for summary

judgment, which had been previously denied. In its order, the court held that the County was

immune under section 11-46-9(1)(q).

¶6. On March 7, 2019, Smith filed a motion for reconsideration, which the circuit court

denied. Smith appealed.

STANDARD OF REVIEW

¶7. We review a trial court’s grant or denial of summary judgment de novo. Miss. Dep’t

of Revenue v. Hotel & Rest. Supply, 192 So. 3d 942, 945 (¶5) (Miss. 2016). A party is

entitled to summary judgment if the record shows that there is no genuine issue of material

fact and that the party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). We

review the summary judgment record in the light most favorable to the nonmoving party.

3 Thomas v. Chevron U.S.A. Inc., 212 So. 3d 58, 60 (¶7) (Miss. 2017). However, the

nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but his

response, by affidavits or as otherwise provided in [Mississippi Rule of Civil Procedure 56],

must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

“To withstand summary judgment, the party opposing the motion must present sufficient

proof to establish each element of each claim.” Sharrieff v. DBA Auto. Two LLC, 242 So.

3d 944, 947 (¶9) (Miss. Ct. App. 2018).

ANALYSIS

¶8. Smith’s argument on appeal is two-fold. First, she argues that section 11-46-9(1)(q)

is inapplicable because the dangerous condition was not solely caused by the weather

conditions but rather in conjunction with the County’s failure to warn. Second, she argues

that the section is inapplicable because the accident did not occur simultaneously with the

weather that caused the washout.

¶9. Under section 11-46-9(1)(q), a governmental entity cannot be held liable for an injury

if that injury was caused solely by a weather condition. “Questions concerning the

application of the MTCA are reviewed de novo.” Miss. Dep’t of Pub. Safety v. Durn, 861

So. 2d 990, 994 (¶7) (Miss. 2003) (citing Donaldson v. Covington County, 846 So. 2d 219,

222 (¶11) (Miss. 2003)). Immunity is a question of law. See Mitchell v. City of Greenville,

846 So. 2d 1028, 1029 (¶8) (Miss. 2003).

¶10. Smith first argues that the rain event did not solely cause the accident because, had

4 the County placed proper warnings on the road, she would not have driven over the washout.

In several cases, this Court and the Mississippi Supreme Court have addressed government

immunity under section 11-46-9(1)(q).

¶11. In Schepens v. City of Long Beach, 924 So. 2d 620, 622 (¶4) (Miss. Ct. App. 2006),

the property owner lived at the end of a dirt road, which “deteriorated after rain storms.” To

repair the road, the city would either fill the potholes each time with gravel and sand or

remove the sand and add more gravel. Id. Ultimately, the property owner sued the city for

negligently failing to maintain a road that caused damage to his vehicles. Id. at (¶5). During

trial, the city filed a motion to dismiss. Id. at (¶6) The court granted the city’s motion based

on the weather exception, and the property owner appealed. Id.

¶12. On appeal, this Court affirmed the circuit court’s dismissal under several MTCA

provisions, including the weather exception of section 11-46-9(1)(q). Id. at 623 (¶12). In

doing so, this Court specifically referred to the property owner’s testimony that the rain

caused the potholes and held that “[his] claim arose from an injury which resulted solely

from the effect rain had on [the road].” Id.

¶13. In Willing v. Estate of Benz, 958 So. 2d 1240, 1243-44 (¶3) (Miss. Ct. App. 2007), a

woman drove over a patch of ice and hit and killed a man who was repairing a construction

sign. That sign was damaged earlier in the day when another driver hit the same patch of ice.

Id. at 1244 (¶3). The Greenwood Police Department had dispatched an officer to the first

accident, who notified the Mississippi Department of Transportation (MDOT) of ice on the

5 road. Id. The officer did not place any warning signs on the road, and MDOT did not

remove or repair the icy patch until after the second accident. Id. As a result, the decedent’s

family brought a wrongful-death action against the City of Greenwood, claiming that the city

negligently failed to warn of the patch of ice. Id. at (¶4). The city filed a motion for

summary judgment, claiming immunity under Section 11-46-9(1)(q). Id. at 1245 (¶7). The

circuit court granted the city’s motion, and the decedent’s family appealed. Id.

¶14. On appeal, this Court agreed that summary judgment was proper because the accident

was caused solely by the icy patch on the road. Id. at 1254 (¶38). Notably, this Court was

not persuaded by the family’s argument that the city’s alleged failure to warn of the icy patch

rendered Section 11-46-9(1)(q) inapplicable. Id. To be sure, this Court did not hold that the

city had no duty to warn of the icy patch. Rather, this Court held that “the city [was] immune

from any alleged breach of that duty because the ice was caused solely by the ‘effect of the

weather on the use of streets and highways.’” Id. (citing Horan v. State, 514 A.2d 78, 79

(N.J. Super. Ct. App. Div. 1986)) (other citation omitted).

¶15. In Ostrowski v. City of D’Iberville, 269 So. 3d 418, 419 (¶2) (Miss. Ct. App. 2018),

the driver was injured on a city road when his vehicle struck a displaced manhole cover

during a heavy rainstorm. The driver sued the city, alleging the city sewer system’s design

deficiencies caused the manhole’s displacement. Id. at (¶3). Similar to the present case, the

driver argued that section 11-46-9(1)(q) was inapplicable because the “the rain was not the

sole cause of the accident” because the city’s negligence contributed to the accident. Id. at

6 421 (¶7). The driver, however, failed to provide any evidence that the sewer system actually

contained deficiencies or that the city knew or should have known rising water would

displace the manhole cover. Id. at 419 (¶4). The circuit court ultimately affirmed the county

court’s grant of summary judgment under the weather exception. Id. at (¶1). This Court

affirmed, stating that “both [the driver] and the [c]ity agreed the manhole cover was

displaced by rising water.” Id. at 421 (¶12). We explained that although the driver claimed

the city sewer system’s design deficiencies caused the manhole cover’s displacement, he

failed to create a genuine issue of material fact that the rain was not solely responsible. Id.

¶16. Most recently, in Robinson v. Holmes County, 284 So. 3d 730 (Miss. 2019) (plurality

opinion), the plaintiff sued the county for negligence after his vehicle collided with a county

garbage truck during a “dense fog.” Id. at 731 (¶3). Specifically, he claimed that the garbage

truck blocked his lane of travel and that the employees failed to “display reasonable warning

devices.” Id. at (¶4). The county filed a motion for summary judgment and asserted several

defenses, including immunity under section 11-46-9(1)(q). Id. at 732 (¶6). The court granted

the county’s motion, finding that county enjoyed immunity because the fog was the “sole

proximate cause of the accident.” Id. On appeal, the supreme court’s plurality affirmed

without addressing section 11-46-9(1)(q). Instead, the supreme court held that the plaintiff

failed to make a prima facie showing of negligence, which rendered any MTCA application

moot. Id. at 732 (¶10). Justice Maxwell’s separate opinion specifically addressed the

weather exception, stating that the trial court did not err in granting summary judgment in

7 favor of the county based on section 11-46-9(1)(q). Id. at 736 (¶37).

¶17. After review, we agree with the circuit court that the accident was caused solely by

the significant rain event that occurred in the late hours of March 10 and early morning hours

of March 11. As stated in Willing, we do not hold that the County had no duty to warn of the

washout. We hold that the County is immune to any breach of that duty because the washout

“was caused solely by the ‘effect of the weather on the use of streets and highways.’”

Willing, 958 So. 2d at 1253 (¶38). There is simply no proof that anything other than the

weather was the sole cause of the accident. Because Smith fails to create a genuine issue of

material fact as to whether the County was in any way responsible for the formation of the

washout, we find that summary judgment was proper.

¶18. The dissent argues that “there is a genuine issue of material fact as to whether the

county’s alleged failure to warn of a dangerous washout was a contributing cause of Melissa

Smith’s injuries . . . .” The dissent’s position is supported by the testimony surrounding

exactly how many barricades were placed and then present at the time of the accident.

However, section 11-46-9(1)(w) of the MTCA shields a governmental entity from liability

in instances “[a]rising out of the . . . removal by third parties of any sign, signal, warning

device, illumination device, guardrail or median barrier, unless the absence, condition,

malfunction or removal is not corrected by the governmental entity responsible for its

8 maintenance within a reasonable time after actual or constructive notice[.]”2 As pointed out

by the dissent, County employee Abraham McEwen testified that he placed two barricades

on Magnolia-Holmesville Road at the intersection of Magnolia-Holmesville Road and Joel

Lang Road—one in the westbound lane and one in the eastbound lane (the direction of the

washout).3 According to Smith, there was only one barricade at the intersection blocking the

westbound lane of Magnolia-Holmesville Road. Smith fails to show that a County employee

moved the other barricade or, if a third party moved the barricade, that the County had actual

or constructive notice that the barricade had been moved. If a third party was, in fact,

responsible for moving the barricade, the County would be immune under this section.

¶19. Smith’s second claim is that the weather event must occur at the time of the incident

for purposes of section 11-46-9(1)(q). Neither this Court nor the supreme court has held that.

Although two of the cases previously discussed, Ostrowski and Robinson, involved drivers

injured during the weather event, Schepens clearly did not. Equally important, the

Mississippi Legislature did not specify any such requirement in Section 11-46-9(1)(q).

2 This section does not shield the County from liability in the event that the rain was responsible for the barricade’s removal. 3 County road manager Mark Duncan’s testimony differed from McEwen’s testimony. Duncan testified that there was one barricade at the intersection and that it was placed on Joel Lang Road. When asked whether he had “any evidence that any barricades were removed by someone prior to Ms. Smith’s entering that washout on [March] 12?,” he responded, “Based on the report I got, they were all still in place.” The record is unclear as to what time he received his latest report from the county employees in charge of placing the barricades. Notably, Duncan was in Houston, Texas, at the time of the rain event and the placing of the barricades.

9 Surely, if the Legislature had intended such, it would have said so. The Legislature did not

place a temporal component to the immunity granted. Rather, if the weather was the sole

cause of the accident, then the weather immunity would apply. Likewise, it follows that, if

the weather was not the “sole cause,” immunity would not apply. In this case, there was no

evidence to indicate any contributing cause other than the weather. For these reasons, we

find no merit to Smith’s argument.

CONCLUSION

¶20. We find the County is immune from liability under section 11-46-9(1)(q).

Accordingly, we affirm the circuit court’s grant of summary judgment.

¶21. AFFIRMED.

BARNES, C.J., CARLTON, P.J., AND GREENLEE, J., CONCUR. WESTBROOKS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY McDONALD, J. McDONALD, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WILSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD AND McCARTY, JJ. SMITH, J., NOT PARTICIPATING.

WESTBROOKS, J., SPECIALLY CONCURRING:

¶22. I concur with the majority’s opinion in this case. We are bound by applicable law

holding that governmental entities are immune under the MTCA for injuries occurring as a

result of weather conditions. Miss. Code Ann. § 11-46-9(1)(q) (Rev. 2019). The exemptions

set forth in section 11-46-9 are phrased in the disjunctive. Meaning, per the language of the

statute, it clearly appears that sovereign immunity applies if a governmental entity is able to

establish that the requirements of any one of the exemptions set forth in section 11-46-9 are

10 met. In this case there is an exemption for weather conditions. Miss. Code Ann. § 11-46-

9(1)(q). We have also previously held that the exemptions listed in section 11-46-9 do not

impose duties “whether or not the discretion be abused” and cannot be used as affirmative

sources of liability. See Pearl River Valley Water Supply Dist. v. Bridges, 878 So. 2d 1013,

1016, 1019 (¶¶11, 30) (Miss. Ct. App. 2004).

¶23. The “significant rain event” that gave rise to the accident apparently began sometime

on March 10, 2016, and continued until the early morning of March 12, 2016. Smith’s

accident happened at approximately 8:00 p.m. on March 12, 2016. Smith alleges that Pike

County failed to alert her about the washout. Specifically, she states that if warning signs

had been posted, her accident could have been avoided. There is testimony that the roadway

was at least partially barricaded from both directions, and it was possible that the barricade

had been removed or washed away prior to Smith’s accident.

¶24. Smith did not allege that Pike County failed to properly maintain the roadway.4 In this

instance there was testimony that there had been previous washouts in the area. Once Smith

learned this information, I believe a motion to amend the complaint under Mississippi Rule

of Civil Procedure 15(a) would have been appropriate. Smith would have had the

opportunity to conduct additional discovery in order to determine whether the road was

properly maintained, and, if not, whether a maintenance failure on the part of Pike County

4 Although a claim for failure to properly maintain the roadway would not open the door to a clear path for recovery, it would have allowed Smith to conduct additional discovery in order to determine the whether there was a breach of a ministerial function.

11 caused or contributed to the washout; or, whether the rain was the sole cause of the washout

and the accident.

McDONALD, J., JOINS THIS OPINION IN PART.

WILSON, P.J., DISSENTING:

¶25. The circuit court ruled that Pike County was entitled to summary judgment, and the

majority affirms, based on the county’s immunity from liability “for any claim . . . [a]rising

out of an injury caused solely by the effect of weather conditions on the use of streets and

highways[.]” Miss. Code Ann. § 11-46-9(1)(q) (Rev. 2019). However, there is a genuine

issue of material fact as to whether the county’s alleged failure to warn of a dangerous

washout was a contributing cause of Melissa Smith’s injuries, which resulted from a wreck

that occurred approximately thirty-six hours after the county became aware of the washout

and recognized the need to provide warnings. Accordingly, there is also a genuine issue of

material fact as to whether rain was the sole cause of Smith’s injuries. For that reason, I

would reverse the order granting summary judgment, and I respectfully dissent.

¶26. On the night of March 10 and early morning of March 11, 2016, heavy rains caused

a number of “washouts” in Pike County, including two washouts on Magnolia-Holmesville

Road. Around 8 p.m. on March 12—approximately thirty-six hours after the rain

ended—Smith drove her car into one of the washouts on Magnolia-Holmesville Road, an

eight-foot-deep, thirty-foot-wide hole in the middle of the road. She suffered bodily injuries,

and her car was damaged. She alleges that her injuries were caused by Pike County’s failure

12 to place a warning or close the road to the west of the washout.

¶27. Prior to her accident, Smith was driving south on Joel Lang Road. She testified that

when she reached the intersection of Joel Lang Road and Magnolia-Holmesville Road,5 there

was no barricade or warning sign on Joel Lang Road. Smith testified that there was a

barricade to her right, blocking the westbound lane of Magnolia-Holmesville Road.

However, Smith testified that there was no barricade or warning sign to her left (east) or in

the eastbound lane of Magnolia-Holmesville Road in either direction. Smith turned left

(east) onto Magnolia-Holmesville Road. A short distance later, she drove into “a big hole

in the road”—an eight-foot-deep, thirty-foot-wide washout. A Uniform Crash Report (UCR)

completed by a Pike County deputy sheriff corroborated Smith’s testimony. The UCR noted

that there was a barricade east of the washout but no barricade or warning to the west. The

UCR further noted that the county road department was notified after Smith’s accident,

responded, and put up a barricade to the west.

¶28. County employee Abraham McEwen testified that around 9:30 a.m. on March 11, he

put out two barricades on Magnolia-Holmesville Road near the intersection of Joel Lang

Road. He placed one barricade—the barricade that Smith observed—in the westbound lane

of Magnolia-Holmesville Road about fifteen feet west of the intersection. That barricade

was intended to block westbound traffic in the direction of another washout that is not at

issue in this case. McEwen testified that he also placed a barricade in the eastbound lane of

5 Joel Lang Road ends at Magnolia-Holmesville Road in a T-junction.

13 Magnolia-Holmesville Road about fifteen feet east of the intersection. That barricade was

intended to block eastbound traffic in the direction of the subject washout. However, as

noted just above, neither Smith nor the deputy sheriff observed such a barricade at the time

of Smith’s accident.

¶29. McEwen’s description of two barricades was inconsistent with the testimony of the

county’s Rule 30(b)(6) representative,6 Pike County Road Manager Mike Duncan. On behalf

of the county, Duncan testified that a single barricade was placed near the intersection of Joel

Lang Road and Magnolia-Holmesville Road. According to Duncan, that single barricade

was on Joel Lang Road, not Magnolia-Holmesville Road. In addition, Duncan claimed that

the single barricade was still in place at the time of Smith’s accident on March 12. This

testimony was based on a report that Duncan received from Gene Morgan, the county road

department employee who responded to the scene following the accident. As noted above,

Smith specifically testified that there was no barricade or warning sign on Joel Lang Road.

The UCR also does not mention any such barricade.

¶30. The circuit court granted summary judgment in favor of Pike County, and the majority

affirms, based on a provision of the Mississippi Tort Claims Act that exempts the county

from liability “for any claim . . . [a]rising out of an injury caused solely by the effect of

weather conditions on the use of streets and highways[.]” Miss. Code Ann. § 11-46-9(1)(q)

(emphasis added). I would reverse and remand because there is a genuine issue of material

6 See M.R.C.P. 30(b)(6).

14 fact as to whether the rain, which ended at least thirty-six hours prior to Smith’s accident,

was the sole cause of Smith’s injury.

¶31. It is well-settled that “[t]here may be more than one proximate cause of an injury[.]”

Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 642, 93 So. 2d 634, 636 (1957)

(quoting Am. Creosote Works of La. v. Harp, 215 Miss. 5, 12, 60 So. 2d 514, 517 (1952)).

A defendant’s negligence is considered a proximate cause of a plaintiff’s injury if it was “a

substantial factor in producing the injury” even if it was “not . . . the sole cause of [the]

injury.” T.L. Wallace Constr. Inc. v. McArthur, Thames, Slay, & Dews PLLC, 234 So. 3d

312, 330 (¶68) (Miss. 2017) (quoting Travelers Cas. & Sur. Co. of Am. v. Ernst & Young

LLP, 542 F.3d 475, 485 (5th Cir. 2008)).

¶32. Given the conflicting evidence in this case, including material inconsistencies in the

testimony of the county’s own employees, there are genuine issues of material fact.

Specifically, there is a genuine issue of material fact as to whether Pike County negligently

failed to place a barricade or warning west of the washout, a dangerous condition of which

the county was aware. See Wilcher v. Lincoln Cnty. Bd. of Supervisors, 243 So. 3d 177, 188

(¶32) & n.20 (Miss. 2018) (recognizing that a county has a duty to warn of a dangerous

condition on its property if it either created the condition or knew about the condition and

had adequate time to give a warning). Therefore, there is also a genuine issue of material

fact as to whether Pike County’s alleged negligence was a proximate cause of Smith’s

injury—i.e., “a substantial factor in producing the injury”—even if it was “not . . . the sole

15 cause of [the] injury.” T.L. Wallace, 234 So. 3d at 330 (¶68) (emphasis added). And if Pike

County’s negligence was even a cause of Smith’s injury—i.e., one of multiple causes—then

Pike County is not immune from liability under section 11-46-9(1)(q).

¶33. I agree with the majority that the rain on the night of March 10 and the early morning

of March 11, 2016, was the sole cause of “the washout.” Ante at ¶17. However, that does

not necessarily mean that the rain was also the sole cause of Smith’s injury. Approximately

thirty-six hours before Smith was injured, Pike County became aware of the dangerous

washout and recognized the need to provide warnings. Once Pike County knew about the

washout and had an adequate opportunity to warn, it had a duty to do so. See Wilcher, 243

So. 3d at 188 (¶32) & n.20. If the county failed to provide a reasonable warning, then there

is at least a genuine issue of material fact as to whether its negligence was a contributing

cause of Smith’s injury—and, by extension, a genuine issue of material fact as to whether the

prior rain was the sole cause of Smith’s injury. Miss. Code Ann. § 11-46-9(1)(q).

¶34. The majority opinion appropriately cites Willing v. Estate of Benz, 958 So. 2d 1240

(Miss. Ct. App. 2007), which applied section 11-46-9(1)(q)’s weather-condition immunity

to a somewhat analogous set of facts. See id. at 1253-55 (¶¶36-40). In Willing, a car slid on

a patch of ice on Highway 82 and struck and killed a construction worker. Id. at 1243-44

(¶3). The deceased’s estate sued the City of Greenwood, alleging that a police officer

negligently failed to provide any warning after he responded to an earlier wreck caused by

the same patch of ice. Id. at 1243-45 (¶¶2-3, 7). The circuit court granted summary

16 judgment in favor of the city, and this Court affirmed based on the weather-condition

immunity. Id. at 1245, 1254 (¶¶7, 39). This Court stated,

[W]e do not hold . . . that the [city] did not have a duty to warn of the patch of ice on the highway, we hold that the city is immune from any alleged breach of that duty because the ice was caused solely by the “effect of weather on the use of streets and highways.” Because the [estate does] not point to any evidence that [the city] contributed to or [was] otherwise responsible for the formation of the patch of ice, summary judgment was appropriate as to this immunity.

Id. at 1254 (¶¶38-39) (quoting Miss. Code Ann. § 11-46-9(1)(q)) (citations, footnote, and

paragraph break omitted).

¶35. As the majority indicates (ante at ¶17), Willing’s reasoning supports the county’s

position in this case because Willing stated that the city was immune from liability “because

the ice was caused solely by the ‘effect of the weather on the use of streets and highways.’”

Willing, 958 So. 2d at 1254 (¶38) (emphasis added) (quoting Miss. Code Ann. § 11-46-

9(1)(q)). In addition, Willing stated that the city was entitled to summary judgment because

the estate failed to show that the city “contributed to or [was] otherwise responsible for the

formation of the patch of ice.” Id. (emphasis added). Similarly in this case, rain appears to

have been the sole cause of the washout, and there is no evidence that the county played any

role in causing the washout.

¶36. However, Willing’s reasoning departs from the text of the statute and improperly

enlarges the immunity it provides. The statute exempts a governmental entity from liability

only if the plaintiff’s “injury [was] caused solely by the effect of weather conditions on the

17 use of streets and highways.” Miss. Code. Ann. § 11-46-9(1)(q) (emphasis added). Weather

may be the sole cause of a road condition (e.g., ice or a washout) without also being the sole

cause of a plaintiff’s injury. A defendant’s negligent failure to warn may be a contributing

cause of a plaintiff’s injury even if the defendant did not create the underlying dangerous

condition. Willing should be overruled to the extent that it suggests otherwise.

¶37. I also agree with the majority that weather may be the sole cause of an injury even if

the weather event ended before the injury occurred. Ante at ¶19. Thus, I agree that the fact

that the rain ended before Smith’s wreck is not dispositive. Id. However, it is relevant that

the county was aware of the washout approximately thirty-six hours prior to Smith’s wreck

and clearly had an opportunity to provide warnings. If the county nonetheless failed to

provide a reasonable warning, then there is a genuine issue of fact as to whether its

negligence was a contributing cause of Smith’s injuries. To extend Willing’s reasoning to

its logical conclusion, if the county had failed to provide a warning for weeks or months

before a wreck finally occurred, would we still say that the long-forgotten rain was the sole

cause of the wreck? Surely at some point we would recognize that the county’s failure to

warn was at least a contributing cause. If so, then the fact that weather was the sole cause

of ice or a washout does not necessarily or as a matter of law mean that it is also the sole

cause of a plaintiff’s injuries. But see ante at ¶17; Willing, 958 So. 2d at 1254 (¶38).

¶38. In summary, Smith presented evidence sufficient to create a genuine issue of fact as

to whether the county’s alleged negligence was a contributing cause of her wreck. As

18 discussed above, Smith testified that there were no warnings west of the subject washout, and

the UCR corroborated her testimony. On the present record, while rain may have been the

sole cause of the washout, there is a genuine issue of fact as to whether the rain was the sole

cause of Smith’s injury. Accordingly, I would reverse the order granting summary judgment,

and I respectfully dissent.

McDONALD AND McCARTY, JJ., JOIN THIS OPINION.