Retha Simmons, as Administratrix of the Estate of Melvin R. Simmons and on Behalf of All Wrongful Death Beneficiaries of Melvin R. Simmons, and Individually v. Jackson County, Mississippi and Joe O'Neal, in his Official Capacity as Jackson County Road Manager

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CA-01014-COA

RETHA SIMMONS, AS ADMINISTRATRIX OF APPELLANT
THE ESTATE OF MELVIN R. SIMMONS AND
ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF MELVIN R. SIMMONS,
AND INDIVIDUALLY

v.

JACKSON COUNTY, MISSISSIPPI AND JOE APPELLEES
O’NEAL, IN HIS OFFICIAL CAPACITY AS
JACKSON COUNTY ROAD MANAGER

DATE OF JUDGMENT: 10/23/2019
TRIAL JUDGE: HON. DALE HARKEY
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: L. CLARK HICKS JR.
ATTORNEYS FOR APPELLEES: DANIEL JUDSON GRIFFITH
JAMES H. COLMER JR.
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 05/03/2022
MOTION FOR REHEARING FILED: 05/13/2022 - DENIED; AFFIRMED -
11/22/2022

EN BANC.

SMITH, J., FOR THE COURT:

MODIFIED OPINION ON MOTION FOR REHEARING

¶1. The motion for rehearing is denied. The previous opinion of this Court is withdrawn,

and this opinion is substituted in its place.

¶2. On the evening of February 6, 2016, Melvin Simmons was driving home on Old River

Road in Jackson County, Mississippi, when his vehicle left the road and struck a culvert. The

collision ejected Simmons from his vehicle, and he died as a result of his injuries. As the
administratrix of her late husband’s estate, Retha Simmons, both individually and on behalf

of Simmons’s wrongful-death beneficiaries, filed a lawsuit under the Mississippi Tort Claims

Act (MTCA) against Jackson County and Joe O’Neal in his official capacity as the Jackson

County Road Manager (collectively, the County). Retha’s lawsuit also raised claims against

Mallette Brothers Construction Company Inc. (Mallette), the company hired to repave the

road just prior to Simmons’s death. Simmons’s accident occurred after Mallette had finished

repaving the road but before shoulder work had begun. Retha alleged in part that the

County’s and Mallette’s (collectively, the Defendants) negligent maintenance of Old River

Road during this time period had contributed to Simmons’s death.

¶3. The Jackson County Circuit Court held a joint bench and jury trial on the claims raised

in Retha’s complaint (wrongful death, negligence, and joint-venture liability). The jury

determined the claims asserted against Mallette, and the circuit court adjudicated all the

claims involving the County. At the conclusion of Retha’s case-in-chief, the circuit court

found Retha had presented insufficient evidence to establish a joint venture between the

County and Mallette, and the court therefore involuntarily dismissed the claim regarding

joint-venture liability. Following the conclusion of the Defendants’ case-in-chief, the circuit

court “found that the conditions of Old River Road, including the low shoulders and steep

edge drop-offs” that resulted from the road work, were open and obvious to a motorist

exercising due care. The court further determined that the road conditions were especially

“known and appreciated” by Simmons, who had lived on the road for over forty-five years

2
and had frequently driven along the road. Based on its findings, the circuit court concluded

that the County bore no liability for the failure-to-warn claim asserted under Mississippi

Code Annotated section 11-46-9(1)(v) (Rev. 2019). The circuit court did not, however, issue

any further bench rulings.

¶4. Following deliberations, the jury returned a verdict in Mallette’s favor and found that

Mallette bore no liability for Simmons’s accident. On October 17, 2019, the circuit court

entered its findings of fact and conclusions of law as to the remaining liability claim against

the County. The circuit court ultimately concluded that while the County had created a

dangerous road condition, Simmons’s own negligence while driving along Old River Road

was the sole proximate cause of his accident. As a result, the circuit court held that the

County bore no liability for Simmons’s death.

¶5. On appeal, Retha does not contest the jury’s verdict in favor of Mallette. Instead, she

only challenges the circuit court’s ruling that the County bore no liability for Simmons’s

death. Retha argues that the circuit court manifestly erred by failing to apportion a

percentage of the fault for Simmons’s accident to the County. Upon review, we find that

substantial evidence supports the circuit court’s findings. We therefore affirm the circuit

court’s judgment.

FACTS

¶6. The County owns and maintains Old River Road. Pursuant to its contract with the

County, Mallette performed an asphalt overlay on an approximately six-mile section of Old

3
River Road in January 2016. Prior to the project, the County notified residents of the

upcoming road work through newspaper, radio, and television advertisements. Signs were

also placed at either end of the work zone to notify motorists of the upcoming project. While

performing the road work, Mallette placed its own safety signs throughout the work zone,

and flagmen directed traffic.

¶7. For over two weeks after Mallette completed the asphalt overlay, Old River Road had

a shoulder drop-off of at least twelve inches. The evidence reflected that the newly laid

asphalt needed time to completely cool before heavy machinery could traverse the roadway

and perform the shoulder work. During that time, the road had no center-line or edge-line

striping to delineate its travel lanes and edges. After completing the repaving, Mallette had

removed all its own safety signs. The County, however, had placed “Shoulder Work Ahead”

signs at either end of the project to notify motorists that shoulder work would begin on the

road in February 2016.

¶8. At trial, Retha testified that she and Simmons had lived on Old River Road for over

forty-five years and were aware of the road work. Retha stated that everyone, including she

and Simmons, knew the section of road under repair had no line striping. Retha and other

witnesses described Old River Road as very dark at night and stated that the road lacked any

streetlights or other artificial lights to illuminate it. Although Retha tried to avoid driving

through the road work, especially at night, she stated that Simmons did not share her

concerns and would drive through the area regularly on his way to and from his hunting

4
camp.

¶9. Around 6:30 p.m. on February 6, 2016, Simmons was driving home along Old River

Road after leaving his hunting camp. On his way home, Simmons and a pickup truck, which

was driving in the opposite direction and hauling a bass boat behind it, passed each other.

The truck’s driver, Adam White, stated that he and Simmons each moved toward their

respective edge of the road as they passed one another. The posted speed limit on Old River

Road was 40 miles per hour. Although White did not know Simmons’s exact speed, he

estimated that Simmons was driving around 50 or 55 miles per hour as they passed each

other. White stated that the road work on Old River Road had forced him to reduce his speed

to about 35 miles per hour. Although he had his truck’s headlights on dim, White testified

that he could see the roadway and its edges. In contrast with his own reduced speed, White

testified that Simmons appeared to be driving “fast” given the road conditions and did not

appear to slow down as the two vehicles approached each other. White stated that something

“wasn’t right” about Simmons’s vehicle, and as White watched in his rearview mirror, he

saw Simmons’s vehicle leave the road and flip through the air. White turned his truck around

and returned to help Simmons, but Simmons had been ejected from his vehicle and died from

his injuries.

¶10. On January 10, 2017, Retha filed a wrongful-death suit against the County. She

subsequently filed an amended complaint on December 4, 2017, that named Mallette as an

additional defendant in the lawsuit. The County and Mallette filed their respective answers

5
and affirmative defenses to the amended complaint. Following a joint bench and jury trial,

the circuit court concluded that “the conditions of Old River Road, including the low

shoulders and steep edge drop-offs, were, as to Mr. Simmons, open, obvious, known and

appreciated” and “that the open and obvious nature of the road’s condition precluded a claim

against the County for failure to warn . . . .” The circuit court therefore dismissed the failure-

to-warn claim against the County, and the jury returned a verdict finding Mallette bore no

liability for Simmons’s accident.

¶11. The circuit court subsequently entered its findings of fact and conclusions of law as

to the remaining issue against the County. The circuit court held that the County breached

a ministerial duty imposed by statute when it failed to mark Old River Road with temporary

center lines and created a dangerous condition—the steep shoulder drop-off—while the

asphalt cooled before it rebuilt the roadway’s shoulder. The circuit court concluded,

however, that neither the County’s breach of its ministerial duty nor the dangerous road

condition proximately caused Simmons’s accident. As previously discussed, the circuit court

determined that the condition of Old River Road was “open and obvious to a motorist

exercising due care” and was specifically known and appreciated by Simmons. In assessing

the parties’ comparative negligence, the circuit court found that Simmons’s own negligence

in failing to comply with the duties imposed on him as a motorist exercising due care within

a construction zone constituted the sole proximate cause of his accident. The circuit court

therefore ruled in favor of the County. Aggrieved, Retha appeals.

6
DISCUSSION

¶12. “[W]e apply the substantial-evidence standard of review” to “the factual findings of

[a] circuit court sitting as the sole trier of fact in a bench trial . . . .” City of Jackson v. Hilton,

324 So. 3d 1164, 1170 (¶18) (Miss. Ct. App. 2021) (quoting Delta Reg’l Med. Ctr. v. Taylor,

112 So. 3d 11, 23 (¶35) (Miss. Ct. App. 2012)). In so doing, “we must accept that evidence

which supports or reasonably tends to support the findings of fact made below, together with

all reasonable inferences which may be drawn therefrom and which favor the circuit court’s

findings of fact.” Id. (internal quotation marks omitted) (quoting Univ. Med. Ctr. v. Martin,

994 So. 2d 740, 747 (¶26) (Miss. 2008)).

¶13. Relevant to this appeal, section 11-46-9(1)(v) provides that a governmental entity

cannot be held liable for claims

[a]rising out of an injury caused by a dangerous condition on property of the
governmental entity that was not caused by the negligent or other wrongful
conduct of an employee of the governmental entity or of which the
governmental entity did not have notice, either actual or constructive, and
adequate opportunity to protect or warn against; provided, however, that a
governmental entity shall not be liable for the failure to warn of a dangerous
condition which is obvious to one exercising due care . . . .

(Emphasis added).

¶14. As this Court has previously explained, “the italicized ‘provided’ clause ‘is a complete

bar in a Tort Claims Act case for the failure to warn of a dangerous condition.’” Campbell

v. Harrison Cnty. Bd. of Supervisors, 269 So. 3d 1269, 1273 (¶15) (Miss. Ct. App. 2018)

(quoting City of Natchez v. Jackson, 941 So. 2d 865, 876 (¶33) (Miss. Ct. App. 2006)).

7
Governmental entities therefore bear no liability where they fail to warn of open and obvious

conditions. Id. As our caselaw further recognizes, however, “the open-and-obvious defense

is not a complete bar to recovery for every premises liability claim against a governmental

entity.” Id. at 1274 (¶15). Instead,

as the statute clearly states, the fact that a dangerous condition is obvious only
exempts the governmental entity from liability for the failure to warn of the
condition. It is not a bar to recovery when the issue is the government’s
negligent maintenance or repair which led to the dangerous condition.

Id. (citation and internal quotation marks omitted). In cases such as the one presently before

us where “the plaintiff alleges that the defendant negligently created . . . a dangerous

condition, ‘the “open and obvious” standard is simply a comparative negligence defense used

to compare the negligence of the plaintiff to the negligence of the defendant.’” Id. at 1274-

75 (¶18) (quoting Mayfield v. The Hairbender, 903 So. 2d 733, 737 (¶18) (Miss. 2005)).

“[T]he [Mississippi] Supreme Court has also held[, however,] that ‘the open and obvious

defense remains a complete bar to a negligence claim’ if ‘the plaintiff is one hundred percent

(100%) negligent himself.’” Id. at 1275 (¶19) (quoting Fulton v. Robinson Indus. Inc., 664

So. 2d 170, 176 (Miss. 1995)).

¶15. Here, the parties do not challenge the circuit court’s findings that (1) the condition of

Old River Road was open and obvious, (2) the County created the dangerous condition of

low shoulders and steep edge drop-offs without temporary line striping, and (3) Simmons

bore partial responsibility for his accident. Instead, the only disputed issue on appeal is

whether the circuit court correctly concluded that Simmons’s accident resulted solely due to

8
his own negligence. In her appellate brief, Retha acknowledges that the record supports

apportioning a percentage of the fault for the accident to Simmons. She maintains, however,

that the circuit court manifestly erred by finding the County’s actions failed to also contribute

to Simmons’s death.

¶16. In considering liability for Simmons’s accident, the circuit court noted that motorists

bear certain responsibilities when operating a vehicle. Especially relevant to the present

appeal, our caselaw holds that “enhanced care” is “required of motorists who encounter

highway construction . . . .” Miss. Dep’t of Transp. v. Trosclair, 851 So. 2d 408, 417-18

(¶32) (Miss. Ct. App. 2003). As we explained in Trosclair, this enhanced-care standard

requires “that when one is sufficiently warned that a public thoroughfare is under

construction or undergoing repairs, he should exercise a vigilant caution and keep a constant

lookout for dangers incident to the progress of the work.” Id. at 418 (¶32) (quoting Bush

Const. Co. v. Blakeney, 350 So. 2d 1370, 1373 (Miss. 1977)).

¶17. Like Simmons, the motorist in Trosclair suffered injuries when her vehicle left a

newly repaved road that had a three-to-six-inch shoulder drop-off and lacked any temporary

center-line or edge striping. Id. at 412 (¶¶4-7). The motorist asserted that her accident would

not have occurred if the road had been marked with center-line and edge stripes. Id. at 418

(¶34). This Court found, however, that the undisputed evidence showed (1) the motorist

knew she had entered a portion of road undergoing repaving, (2) the shoulder drop-off was

obvious even though the exact elevation change was not known, and (3) the edge of the road

9
was clearly visible. Id. at 417 (¶28). Because the edge of the road was clearly visible in

Trosclair, we held “it does not matter that a painted line might have more colorfully noted

that edge.” Id. at 418 (¶34).

¶18. Although undisputed testimony reflected that the injured motorist in Trosclair had

been driving the posted speed limit, we recognized that “[t]he operator of a motor vehicle has

a duty to keep the vehicle under proper control and to drive at a speed which is reasonable

under the conditions that she faces.” Id. at (¶35) (emphasis added). Thus, if the lack of

temporary road striping “was such as to cause [the motorist] doubts about maintaining her

position on the roadway, then the obligation of care was to slow down.” Id. at (¶34). We

therefore held in Trosclair that the motorist “did not meet the ‘vigilant caution’ standard for

drivers on roads under construction” and that her own negligence partially contributed to her

accident. Id. at 418-19 (¶¶35-36).

¶19. Here, the only eyewitness testimony about Simmons’s accident came from White, who

passed Simmons immediately before the accident and then watched in his rearview mirror

as Simmons’s vehicle left the road. Although the posted speed limit on Old River Road was

40 miles per hour, White testified that at the time of the accident, he had reduced his speed

to about 35 miles per hour due to the ongoing road work. Even with his headlights on dim,

White stated that he had no problem seeing the road and its edges as he drove that evening.

¶20. Given the road conditions, White testified that Simmons seemed to be driving “fast”

as he approached. White estimated that Simmons was driving around 50 or 55 miles per hour

10
on the road and did not appear to reduce his speed as he approached White’s truck.

According to White, something “wasn’t right” about Simmons’s vehicle as it approached and

then passed him. As a result, White continued to watch the other vehicle in his rearview

mirror even after it passed him.

¶21. The record clearly establishes that Old River Road lacked any temporary line striping

to mark the roadway’s lanes or edges. Even without the line striping, however, the circuit

court concluded the witness testimony “demonstrated that the edges of the pavement were

visible with their [vehicles’] head lamps.” As the circuit court noted, “[e]very witness with

personal knowledge of the road conditions existing at the time of the accident attested to the

need for vigilant caution.” Similarly to White, Joey Rocco, who was Simmons’s friend and

arrived on the scene shortly after the accident occurred, testified that he did not have trouble

remaining on Old River Road that evening or finding the edges of the road. Rocco stated that

he did not need warning signs to tell him what he already knew about the road conditions;

rather, he simply made sure to drive slowly through the area.

¶22. Retha’s accident reconstructionist, Ben Smith, opined that it was impossible from the

evidence to reliably calculate the speed of Simmons’s vehicle at the time of the accident.

According to Smith, there was not sufficient evidence to show whether Simmons was driving

more or less than 40 miles per hour. Thus, rather than focusing on Simmons’s speed as a

cause of the accident, Smith testified that he focused on the road conditions and typical

patterns of human behavior in determining a cause for Simmons’s accident.

11
¶23. As a result of the ongoing work on Old River Road at the time in question, the circuit

court held that Simmons “was required to operate his vehicle at a reasonable speed for the

conditions then and there existing” and “was required to exercise an enhanced level of care

. . . .” The undisputed evidence supports the circuit court’s finding that “Simmons was not

an unsuspecting motorist suddenly encountering the conditions as they existed on the night

of this accident” but was well aware, prior to his accident, of the conditions Old River Road

posed. The evidence reflected that Simmons had driven regularly on Old River Road at

various times of the day and had discussed the conditions of the road with Retha.

¶24. Based on the trial testimony and evidence, the circuit court found that additional

warnings and temporary lane markings “would not have alerted Mr. Simmons to any dangers

of which he was not already aware, nor, in the estimation of [Retha’s] accident reconstruction

expert, would such signs have prevented Mr. Simmons from leaving the roadway.” Similar

to this Court’s holding in Trosclair, the circuit court found that if Simmons experienced any

uncertainty regarding his lane of traffic while traversing Old River Road, his obligation as

a motorist exercising due care for his own safety was to reduce his speed like White testified

he did.

¶25. Retha repeatedly contends the circuit court determined that “Jackson County

committed multiple negligent acts and omissions during the road maintenance.” Although

the circuit court determined the County had “created a dangerous condition—the steep

shoulder drop-off,” the court made no findings that the condition at issue resulted from any

12
“negligent or other wrongful conduct” by the County or its employees. As discussed, section

11-46-9(1)(v) of the MTCA shields a governmental entity from liability for claims based on

a dangerous condition when the condition was “not caused by the negligent or other wrongful

conduct of an employee of the governmental entity.” The testimony presented at trial

reflected it was necessary for the County to wait several days after repaving Old River Road

before bringing in the heavy equipment needed to complete the shoulder work. The

testimony also reflected that any delay in commencing the shoulder work was due to

equipment maintenance and not the fault of the County. We therefore find no support in the

record for Retha’s allegations that negligence by the County contributed to Simmons’s

injuries. Regardless, this was a fact-finding made by the circuit court that does not rise to

the level of manifest error.

¶26. On appeal, we must adhere to the well-established standard of review of “‘[a]ccepting

all the evidence which reasonably tends to support the circuit court’s findings of facts, as

well as the reasonable inferences which may be drawn therefrom . . . .’” Hilton, 324 So. 3d

at 1173 (¶29) (quoting Prayer v. Greenwood Leflore Hosp., 183 So. 3d 877, 884 (¶23) (Miss.

2016)). In so doing, we find sufficient evidentiary support for the circuit court’s

determination that Simmons’s own negligence in failing to exercise vigilant caution and

reduce his speed as he drove through the work on Old River Road constituted the sole

proximate cause of his accident. We therefore find no manifest error in the circuit court’s

judgment.

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CONCLUSION

¶27. Because substantial credible evidence supports the circuit court’s findings, we find

no manifest error. Accordingly, we affirm the circuit court’s judgment.

¶28. AFFIRMED.

BARNES, C.J., WILSON, P.J., GREENLEE, LAWRENCE, McCARTY AND
EMFINGER, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY CARLTON, P.J., AND McDONALD, J.

WESTBROOKS, J., DISSENTING:

¶29. Because I believe the circuit court committed manifest error both when it failed to

allocate a portion of the fault for Simmons’ accident to Jackson County and when it

erroneously applied an open-and-obvious standard to Simmons’ claim, I respectfully dissent.

I. Failure to Allocate Fault to Jackson County

A. Proximate Cause

¶30. “Those who are negligent and proximately contribute to an injury should be allocated

a percentage of fault.” Miss. Dep’t of Transp. v. Trosclair, 851 So. 2d 408, 417 (¶27) (Miss.

Ct. App. 2003) (citing Miss. Code Ann. § 85-5-7 (Rev. 1999)). Mississippi Code Annotated

section 85-5-7(1) defines fault as “an act or omission of a person which is a proximate cause

of injury . . . .” Miss. Code Ann. § 85-5-7(1) (Rev. 2011). The circuit court, in its facts and

findings, acknowledged this statutory requirement prior to holding that Simmons “was the

sole proximate cause” of the accident. This holding ignores our Court’s definition of

proximate cause, giving rise to the manifest error in this case. Based on the evidence in the

14
record, I believe that it has been overwhelmingly established that Jackson County’s

negligence was a proximate cause of Simmons’ injury.

¶31. “In order for an act of negligence to proximately cause the damage, the fact finder

must find that the negligence was both the cause in fact and legal cause of the damage.”

Glover ex rel. Glover v. Jackson State Univ., 968 So. 2d 1267, 1277 (¶31) (Miss. 2007)

(citing Dobbs, The Law of Torts, § 180, at 443 (2000)). “Cause in fact” means that, but for

the defendant’s negligence, the injury would not have occurred. City of Jackson v. Spann,

4 So. 3d 1029, 1033 (¶11) (Miss. 2009) (citing Glover, 968 So. 2d at 1277 (¶32)). A cause-

in-fact can be described as “that cause which, in natural and continuous sequence unbroken

by any efficient intervening cause, produces the injury and without which the injury would

not have occurred.” Glover, 968 So. 2d at 1277 (¶32) (quoting Gulledge v. Shaw, 880 So.

2d 288, 293 (¶11) (Miss. 2004)). An action is the “legal cause” of the injury when “the

damage is the type, or within the classification, of damage the negligent actor should

reasonably expect (or foresee) to result from the negligent act.” Id. at (¶33) (citing Dobbs,

The Law of Torts, § 180 at 443). Caselaw further shows that “there may be more than one

proximate cause of an injury” Mathews v. Thompson, 231 Miss. 258, 95 So. 2d 438, 448

(1957) (citing 38 Am. Jur. Negligence § 63).

¶32. Notably, the circuit court did not find that Simmons’ driving was a superseding cause;

instead, the court found that Simmons was the sole proximate cause of the accident. I

respectfully disagree that such finding is not manifestly wrong, as the evidence drastically

15
departs from the circuit court’s findings. “An intervening cause is one which comes into

active operation in producing the [injury] after the negligence of the defendant.” William

Prosser & W. Page Keeton, Law of Torts, § 44, at 301-03 (5th ed. 1984). An intervening

cause may be considered a “superseding cause” and thus shield a defendant from liability.

Southland Mgmt. Co. v. Brown ex rel. Brown, 730 So. 2d 43, 46 (Miss. 1998). But the

Supreme Court has also affirmed that “if the occurrence of the intervening cause might

reasonably have been anticipated, such intervening cause will not interrupt the connection

between the original cause and the injury.” Mathews, 95 So. 2d at 449-50. “Thus, under

principles of ‘foreseeability,’ a defendant may be held liable for his failure to anticipate an

easily-predicted intervening cause and to properly guard against it.” Southland Mgmt. Co.,

730 So. 2d at 46.

¶33. The circuit court correctly noted in its facts and findings that “negligence in the

abstract does not impose liability.” It further explained that a defendant’s negligence as a

proximate cause must be present. But the circuit court proclaimed that Simmons was the sole

proximate cause of his accident. This conclusion ignored the undisputed evidence in the

record that Jackson County created a dangerous condition: a steep shoulder drop-off, which

the circuit court believed “was in excess of anything that could be considered reasonable,”

and that Jackson County breached its statutory duty to mark temporary center lines on the

16
road which was undergoing reconstruction or maintenance, opening the road to the public.1

¶34. Retha’s expert engineer, David Gardner, testified that a “drop-off” is “when [the drop]

is in excess of three inches.” He explained that drop-offs were a hazard to motorists. The

drop-off on Old River Road was photographed as having a height of approximately sixteen

inches in one area. Photos of the accident scene, taken by the sheriff’s office the morning

after the accident, show the intersection of Old River Road and Blackfoot Road where the

accident occurred. Deep drop-offs were also documented in these photos. Local residents

testified that the drop-off was eighteen inches or more. There were no statutorily required

temporary center stripes in the photos. The circuit court even acknowledged that the record

shows Jackson County breached this statutory duty to mark temporary center stripes.

¶35. Accident reconstructionist Ben Smith noted that Simmons was scraping his Jeep along

the edge of the drop-off, oscillating, actively trying to get back on the road. Expert city

engineer David Gardner testified that without a center line on a dark county road it is difficult

to navigate back on the road because “it’s hard for you to have a reference” in a “dark rural

setting.” He also noted that any drop-off over two inches is considered severe. Gardner also

specifically opined Simmons was unable to recover control of the vehicle due to the dark

1
Mississippi Code Annotated section 65-7-123 (Rev. 2012) reads: “Any segment of
a county-maintained, hard-surfaced highway normally marked by center line safety stripes
which is overlayed with hot mix asphalt while undergoing reconstruction or maintenance
shall be marked with temporary center line safety stripes if permanent center line safety
stripes will not be installed before such segment is opened for public use.” (Emphasis
added).

17
weather conditions and the lack of any center-line stripe, stating “obviously you can’t recover

back when you are traveling over an edge like that.” The defense expert did not refute these

assertions, admitting to the creation of a hazardous condition, although explaining that it was

unavoidable in the course of paving a road. In reality, no expert is required to tell us what

common sense dictates: but for the steep drop-off, Simmons would have been able to return

his vehicle onto Old River Road, and the accident would never have occurred in the way it

did.

¶36. Furthermore, this accident was entirely foreseeable from Jackson County’s vantage

point. The accident was of the “type, or within the classification, of damage the negligent

actor should reasonably expect (or foresee) to result from the negligent act.” Glover, 968 So.

2d at 1277 (¶33) (citing Dobbs, The Law of Torts, § 180, at 443). When a roadway shoulder

consists of a large drop-off from which a vehicle cannot recover its position on the road, it

is entirely foreseeable that an automobile crash will occur. Additionally, when people fail

to put statutorily required temporary striping on the roads, it is foreseeable that other people

will not be able to properly maintain their lane and, again, that an automobile crash will

occur. These scenarios are “the type, or within the classification, of damage the negligent

actor should reasonably expect (or foresee) to result from the negligent act.” Id. Moreover,

as the circuit court stated, the “clear intent [of the statute] is for public safety.” This rationale

underscores the foreseeability of the results of failure to comply with the statute. Because

the accident was both a but-for cause and a legal cause of Simmons’ accident, proximate

18
cause has been established.

B. Simmons’ Duties

¶37. It is true, as the majority states, that Simmons also had duties that he breached.

However, Simmons’ breach of duty does not necessarily absolve others from liability due to

negligence. Simmons had the duty to be vigilant pursuant to the Trosclair holding “that a

driver upon entering a road she knows is undergoing repair to exercise vigilant caution.”

Trosclair, 851 So. 2d at 417 (¶31). Trosclair also notes that if a party has “doubts about

maintaining her position on the roadway, then the obligation of care was to slow down.” Id.

at 418 (¶34). Testimony showed that Simmons did not slow down below the speed limit of

40 miles per hour. However, “[t]he correlative duties of the contractor of a road under

construction and a traveler on the road are determined by all the circumstances.” See Webb

v. Brock, 232 Miss. 154, 98 So. 2d 139, 142 (1957) (emphasis added). This premise is

illustrated in Trosclair, when both the County and the driver were found to be negligent in

their duties, and this Court determined that fault should be allocated to both parties.

Trosclair, 851 So. 2d at 419 (¶37).

¶38. Jackson County admitted that it had a duty to make sure its roads were reasonably safe

during repaving. The experts testified that a drop-off of a mere two inches is considered

severe. The circuit court itself found that a shoulder drop-off of this magnitude “was in

excess of anything that could be considered reasonable” and that a dangerous condition arose

from the drop-off coupled with the lack of statutorily required center striping that would

19
permit drivers to gauge the lane. A clear breach of duty occurred on the part of Jackson

County too. And moreover, as the majority reminds us, “[open and obvious conditions are]

not a bar to recovery when the issue is the government’s negligent maintenance or repair

which led to the dangerous condition.” City of Natchez v. Jackson, 941 So. 2d 865, 876 (¶33)

(Miss. Ct. App. 2006).

¶39. Finally, Trosclair’s proclamation that “since the edge of the roadway was clearly

visible, it does not matter that a painted line might have more colorfully noted that edge”

does not apply in the present case. Trosclair, 851 So. 2d at 418 (¶34). Trosclair was driving

during daylight hours on Highway 49, a time when the road would have been more visible.

Id. at 417 (¶28). More importantly, Trosclair noted that “intermittent splotches of white” had

properly been applied as temporary center-line markings during the repaving process. Id. at

418 (¶34). In the present case, testimony from local residents established that the unlined

road was dark and hard to see at night. This set of facts clearly differs from Highway 49,

where Trosclair had her accident in the daylight.

¶40. Because of the foregoing, I believe that it is undisputed that Jackson County was a

proximate cause of the accident, and the circuit court’s failure to allocate at least partial fault

to Jackson County rises to the level of manifest error.

II. Open and Obvious Condition and Obviating Negligence Claims
Under Premises Immunity

¶41. In its facts and findings, the circuit court correctly acknowledged Calonkey v. Amory

School District, 163 So. 3d 940 (Miss. Ct. App. 2014), which holds that the premises

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immunity of the MTCA “clearly states [that] the fact that a dangerous condition is obvious

only exempts the [defendant] from liability for the failure to warn of the condition.” Id. at

943 (¶14) (emphasis added) (citing Miss. Code Ann. § 11-46-9(1)(v) (Rev. 2002)). Again,

“[an open and obvious condition] is not a bar to recovery when the issue is the government’s

negligent maintenance or repair which led to the dangerous condition.” City of Natchez, 941

So. 2d at 876 (¶33). And yet the circuit court addressed the negligence portion of the claim

with frequent mentioning of the open-and-obvious standard, used by the majority and the

circuit court alike. The circuit court specifically noted that “while it was the County’s duty

not to create dangerous conditions and to mark this roadway with temporary center line

stripes, the Court cannot ascribe fault for this failure when these conditions were known and

appreciated by Mr. Simmons.”

¶42. Campbell v. Harrison County Board of Supervisors, 269 So. 3d 1269 (Miss. Ct. App.

2018), notes:

[T]he obviousness of a dangerous condition does not exempt the governmental
entity from liability if the plaintiff can show that the condition existed or was
not corrected because the governmental entity negligently failed to maintain
the premises in a reasonably safe condition. Thus, in most cases like this one,
in which the plaintiff alleges that the defendant negligently created or failed
to protect invitees from a dangerous condition, “[t]he ‘open and obvious’
standard is simply a comparative negligence defense used to compare the
negligence of the plaintiff to the negligence of the defendant.

Id. at 1274-75 (¶18). Nevertheless, this same court noted that the open-and-obvious standard

may be a complete bar to a negligence claim if “the plaintiff is one hundred percent (100%)

negligent himself.” Id. at 1275 (¶19) (quoting Fulton v. Robinson Indus. Inc., 664 So. 2d

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170, 176 (Miss. 1995)). The Campbell court explained that an invitee must use the standard

of care that a “person of ordinary intelligence would exercise under the same or similar

circumstance,” but the Court also held that “the property owner [still] ‘owes a duty to an

invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe

condition.’” Id. (quoting Fulton, 664 So. 2d at 175). I believe this duty to keep the premises

in a reasonably safe condition was breached by Jackson County, which was a proximate

cause of the accident as discussed above. Given this conclusion, it does not follow that

Simmons could possibly be “one hundred percent negligent.” Id.

¶43. The majority cites Campbell for the premise that Simmons can feasibly be allocated

one hundred percent of the fault for his accident, but Campbell differs dramatically from the

present case. In Campbell, a man walking on the beach at night without a flashlight fell into

a drainage channel that was sixteen to eighteen feet wide. Id. at 1271, 1274 (¶¶1, 16). In that

case, the circuit court held that Campbell was the sole proximate cause of the injury because

not only had Campbell chosen to walk in an unfamiliar area late at night without a flashlight,

but also no other accidents had been reported in the channels since they were built

approximately sixty-eight years before. Id. at 1275-76 (¶¶20, 24). The court noted that

“common sense must occasionally prevail” and that the injury in this case, though serious,

“belong[s] to a class of ordinary accidents which are properly imputed to the carelessness

[and] misfortune of the one injured.” Id. at 1276 (¶25).

¶44. This is the antithesis of our present case, where White, the witness who passed

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Simmons on the road on the night of the accident, testified his trailer got “hung up on the

edge” of the road as he tried to turn his truck and trailer around to assist Simmons. White

testified further that he had almost “run off” the edge of Old River Road himself prior to the

night of the accident, due to the steep drop-off. There were also previous accidents here. A

patrol deputy with Jackson County Sheriff’s Office testified by proffer to another car

accident just ten days before Simmons’ accident. Two cars had passed each other in opposite

directions on the road and the “mirrors clipped.” His narrative in the accident report stated

that it appeared the lack of lines in the roadway was a contributing circumstance of the

accident. And as discussed above, locals knew the area was dangerous.

¶45. Jackson County, in its appellant brief, suggested that Simmons should have just

avoided driving on the road that he lived on at night, as some testified they tried to do. But

when looking at Old River Road on a map, it becomes apparent that not many alternate

routes are available on this long county road. This is especially true for Simmons, who was

driving a distance of a few miles from his deer camp to his home. As Simmons’ friend Joey

Rocco affirmed, the Old River Road construction-zone area extended “[l]iterally from where

the Simmons lived all the way almost up to the hunting club.” To avoid this area would be

nearly impossible for Simmons that night. These circumstances differ wildly from the wide

channel on the beach that Campbell stumbled into on a dark night. Because I believe that the

circuit court misapplied the open-and-obvious principle in the negligence portion of

Simmons’ case, I believe this too rises to the level of manifest error.

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¶46. In summary, the circuit court manifestly erred when it failed to recognize Jackson

County as contributing proximate cause to Simmons’ accident and when it incorrectly

applied an “open and obvious” standard to the analysis of this case. Accordingly, I would

reverse the circuit court’s judgment that Simmons was the sole proximate cause of the

accident and remand so that a portion of fault could properly be allocated to Jackson County.

Because of the foregoing, I respectfully dissent.

CARLTON, P.J., AND McDONALD, J., JOIN THIS OPINION.

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