We were traveling on a road that the pavement ended around a corner suddenly and turned to pea gravel, we were on motorcycles and this caused us to wreck. What is the law about road signs marking such dangerous areas?
2 Answers from Attorneys
Re: road signs
You will need to determine who was responsible for maintenance of the road on the approach to the gravel and see if there was any relevant contributing cause that could have been eliminated by a governmental authority performing its nondiscretional (ministeral) duties.
Miss. Code (1972) Section 11-46-9(1)(d) reads in part:
(1) 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[.]
Knight v. Miss. DOT No. 2008-CA-00897-COA (Miss. CoA 4/21/09).
If there was a failure to perform some duty that was not discretionary, a government authority will be liable for any negligence. A private entity or individual will be liable for any failure to act as a reasonable and prudent person.
Re: road signs
In FRAZIER v. MISSISSIPPI DEPT. OF TRANSP.970 So.2d 221 (Miss. COA 2007)
the Court wrote:
This statute and "the corresponding case law make it clear that a governmental entity is immune from claims arising from a non-obvious dangerous condition on government property, or failure to warn of the dangerous condition, absent actual or constructive notice of the dangerous condition." Jones v. Mississippi Trans. Comm'n, 920 So.2d 516, 518-19(¶ 4) (Miss.Ct.App.2006). Therefore, a governmental entity charged with maintaining and repairing roads, owes a duty to warn motorist or repair roads only if it is "given notice of a dangerous condition." Id. at 519(¶ 4). As we have previously stated, "[i]n the absence of notice, a governmental entity's decision to maintain or repair roads, or to place traffic control devices or signs, is purely discretionary, and the entity will be immune from suit even upon proof of an abuse of discretion." Id; Miss.Code Ann. § 11-46-9(1)(d) (Rev. 2001); See Barrentine v. Mississippi Dep't of Transp., 913 So.2d 391, 393(¶ 8) (Miss. Ct.App.2005). Thus, the decisive question under the guidelines of the Mississippi Tort Claims Act is whether MDOT had notice of the alleged defective seal. If MDOT did not have notice of the alleged dangerous condition, it is immune from liability and whether or not to use road signs to warn is discretionary [under the Mississippi Tort Claims Act].
In Frazier, MDOT created the condition but did not believe it was dangerous until it was notified by the Highway Patrol about the Frazier's accident.
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