Max Leigh Blair, Individually and on Behalf of the Wrongful Death Statutory Beneficiaries of Heather Michelle Blair and as Administrator of the Estate of Heather Michelle Blair v. Jackson County, Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-CA-01418-COA

MAX LEIGH BLAIR, INDIVIDUALLY AND ON APPELLANT
BEHALF OF THE WRONGFUL DEATH
STATUTORY BENEFICIARIES OF HEATHER
MICHELLE BLAIR AND AS ADMINISTRATOR
OF THE ESTATE OF HEATHER MICHELLE
BLAIR, DECEASED

v.

JACKSON COUNTY, MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/17/2024
TRIAL JUDGE: HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ROBERT G. GERMANY
ATTORNEYS FOR APPELLEE: JAMES H. COLMER JR.
JACKYE C. BERTUCCI
TRISTAN R. ARMER
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 05/12/2026
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., WESTBROOKS AND WEDDLE, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Max Leigh Blair’s wife, Heather Michelle Blair, was struck and killed by a motorist

when she was walking across Lemoyne Boulevard in Jackson County, Mississippi. Blair

brought a wrongful death action under the Mississippi Tort Claims Act (MTCA) against

Jackson County.1 The Jackson County Circuit Court granted summary judgment in Jackson

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Blair also sued the Jackson County Board of Supervisors (Board). The Board was
dismissed by stipulation on July 28, 2021.
County’s favor, determining that it is protected by discretionary-function immunity. Blair

appeals. Upon our de novo review, we likewise find that Jackson County was entitled to

discretionary-function immunity. Accordingly, we affirm.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

¶2. On December 15, 2020, Blair, individually and on behalf of Heather’s wrongful death

beneficiaries and as the administrator of her estate, filed a complaint against Jackson County

for Heather’s death, after she was struck and killed by a motorist when she was attempting

to walk across Lemoyne Boulevard, west of McCann Road. The accident happened about

6:00 p.m. on the evening of December 19, 2019. Blair alleged Jackson County was liable

for failing to adequately light the area where the accident occurred, failing to install a

pedestrian crosswalk in that area, and “failing to properly inspect the area, note and replace

the missing speed limit sign.”

¶3. Jackson County filed its answer and defenses, specifically asserting discretionary-

function immunity pursuant to Mississippi Code Annotated section 11-46-9(1)(d) (Rev.

2019) of the MTCA.2 After the parties exchanged some written discovery, Jackson County

moved for summary judgment, asserting that it was entitled to discretionary-function

immunity for the three claims Blair asserted in the complaint.

¶4. Blair conceded the inadequate lighting and crosswalk claims in his response, but he

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Section 11-46-9(1)(d) provides immunity to “[a] governmental entity and its
employees acting within the course and scope of their employment or duties” for “any
claim . . . [b]ased 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.” Miss. Code Ann. § 11-46-9(1)(d).

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continued to assert that “the [County] violated Miss. Code Ann.§ 11-46-9 (Supp. 2016) . . . in

failing to properly inspect the area, note and replace the missing speed limit sign.” Blair

attached two exhibits to his opposition: the Mississippi Uniform Crash Report (UCR)

completed by deputies from the Jackson County Sheriff’s Office who arrived at the scene of

the accident (Trial Exhibit 1), and a spreadsheet produced by Jackson County entitled:

“Lemoyne Blvd. Sign Maintenance 2017-24” (Trial Exhibit 2).

¶5. Regarding Exhibit 1, page 5 of the UCR contains a box entitled “Traffic Control

Device Types and Statuses,” with three columns entitled, respectively, “Traffic Control

Device Types,” “Devices Present,” and “Devices Inoperative or Missing.” A “000” code,

defined as “None,” was entered under the “Devices Present” column. A “980” code, defined

as “Other,” was entered under the “Devices Inoperative or Missing” column.

¶6. Page 11 of the UCR contained a crash narrative completed by two deputies at the

scene. The crash narrative contained no information concerning “missing” signs or devices.

Below the crash narrative were two horizontal dotted lines, setting off the following

disclaimer: “Disclaimer: All information below this line is auto-generated from report data.”

Below that disclaimer was the statement: “ . . . Traffic Control Devices Inoperative or

Missing: Speed Limit Sign.”

¶7. The “Jackson County Lemoyne Boulevard” maintenance report (Trial Exhibit 2)

contained entries dated February 18, 2021, indicating that a “sign and traffic control study”

for the entire length of Lemoyne Boulevard had been performed. Following these entries,

entries on March 16, 2021, provide: “L[e]moyne Blvd intersected with McCann Rd install

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new speed limit signs on new post.”

¶8. The County filed a rebuttal memorandum together with an affidavit from Joe O’Neal,

the Road Manager for Jackson County who had held that position since January 1990.

O’Neal stated that at the time of the accident, based upon his “own personal

knowledge[,] . . . there was no ‘missing’ speed limit sign or any other kind of sign ‘missing’

on Lemoyne Boulevard, in the sense that a sign was previously there and then was absent.”

O’Neal further stated, “On March 16, 2021, a new speed limit sign was installed on a new

post at the intersection of Lemoyne Blvd. and McCann Rd. . . . This was not the

replacement of a sign, but rather a new sign placed at that intersection.”

¶9. The circuit court held a hearing on Jackson County’s motion, and post-hearing the

parties submitted supplemental briefing regarding the admissibility of the UCR and whether

the issue of proximate cause was properly before the court.

¶10. Following briefing, oral argument, and supplemental briefing, the circuit court found

that Blair failed to raise a genuine issue of material fact whether “there was a missing speed

limit sign [on Lemoyne Boulevard at the time of the accident.]” The circuit court further

found that, in any event, “because [the County] has discretion as to where speed limit signs

are placed, [the County] is immune in this case[.]” Accordingly, the circuit court granted

Jackson County’s summary judgment motion and dismissed Blair’s lawsuit with prejudice.

¶11. Blair appeals, asserting one issue on appeal: Whether the circuit court erred in

granting Jackson County’s motion for summary judgment.

STANDARD OF REVIEW

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¶12. We apply “a de novo standard of review to a grant of summary judgment and to issues

involving the interpretation and application of the MTCA.” Slade v. City of Lumberton, 395

So. 3d 1277, 1280 (¶8) (Miss. Ct. App. 2024) (internal quotation marks omitted). In

particular, “immunity is a question of law and is a proper matter for summary judgment.”

Id. at 1281 (¶8) (internal quotation marks omitted). Pursuant to Mississippi Rule of Civil

Procedure 56(c), “[summary] judgment . . . shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). In this regard, we must view

the evidence “in the light most favorable to the party against whom the motion has been

made.” Slade, 395 So. 3d at 1281 (¶8) (internal quotation mark omitted). “The mere

existence of some alleged factual dispute between the parties, however, will not defeat an

otherwise properly supported motion for summary judgment; the dispute must be genuine,

and the facts must be material.” Smith v. City of Southaven, 308 So. 3d 456, 461 (¶16) (Miss.

Ct. App. 2020) (internal quotation marks omitted).

DISCUSSION

Discretionary-Function Immunity

¶13. Blair asserts that Jackson County is liable for Heather’s death based on the County’s

alleged failure to “note and replace [a] missing speed limit sign [in the area where the

accident occurred].” According to Blair, Jackson County is not protected by discretionary-

function immunity in this instance because, “[w]hile the decision whether to initially place

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a speed limit sign . . . may have been discretionary, the inspection and replacement was not.”

¶14. Upon our de novo review, we find that even assuming there was a “missing speed

limit sign,” Blair’s claim against Jackson County is precluded by discretionary-function

immunity under section 11-46-9(1)(d). We therefore conclude that the circuit court did not

err in granting summary judgment in Jackson County’s favor on this basis.

A. Applicable Law

¶15. “[T]he MTCA provides the exclusive civil remedy against a governmental entity or

its employee for acts or omissions which give rise to a suit.” Horton ex rel. Est. of Erves v.

City of Vicksburg, 268 So. 3d 504, 508 (¶13) (Miss. 2018). The MTCA, however, “also

provides immunity to governmental entities in specified circumstances, enumerated in section

11-46-9(1) (Rev. 2019).” Short v. Polles, 416 So. 3d 118, 129 (¶52) (Miss. Ct. App. 2025)

(internal quotation marks omitted), reh’g denied (Aug. 19, 2025).

¶16. As applied here, section 11-46-9(1)(d) provides immunity for a government entity and

its employees from claims that are “[b]ased 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[.]” Miss. Code Ann.

§ 11-46-9(1)(d).

¶17. In order “[t]o determine if actions are covered by discretionary-function immunity,

we apply the public-policy function test resurrected in Wilcher [v. Lincoln Cnty. Bd. of

Supervisors & City of Brookhaven,] 243 So. 3d [177,] 187 [(¶30) (Miss. 2018)].” Smith v.

Miss. Transp. Comm’n, 292 So. 3d 231, 233-34 (¶8) (Miss. 2020).

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¶18. The public-policy function test has two elements: “first, whether the alleged wrongful

act involves an element of choice or judgment and, if so, then, second, whether the choice

or judgment had a bearing on public policy.” Id. at 234 (¶8). As the supreme court

explained, “[d]ecisions that bear on public policy are decisions made by individuals charged

with responsibility for making those decisions that consider economic, political, or social

grounds.” Id. “The purpose of this test is to discern between actual policy decisions of

government made by policymakers versus simple acts of negligence by government

employees or agents.” Id.; see also J.S. ex. rel. Segroves v. Ocean Springs Sch. Dist., 414

So. 3d 47, 61 (¶47) (Miss. 2025) (recognizing that the supreme court “has established

that . . . [in determining whether discretionary-function immunity applies], we must

distinguish between real policy decisions made by policymakers and simple negligence”).

B. Application of the Public-Policy Function Test

¶19. Section 63-3-305 governs the placement and maintenance of traffic-control devices

for local authorities. This statute specifically provides that “[l]ocal authorities in their

respective jurisdictions shall place and maintain such traffic control devices upon highways

under their jurisdiction as they may deem necessary . . . to regulate, warn, or guide traffic.”

Miss. Code Ann. § 63-3-305 (Rev. 2022) (emphasis added). Based upon this statute and the

authorities discussed above, we find that even if there was a “missing speed limit sign” at the

scene of the accident, Jackson County is still immune.

¶20. We begin by addressing Blair’s assertion that “replacement” differs from “place and

maintain” such that section 63-3-305 is not applicable here. We disagree. “[I]t is

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well-settled law in Mississippi that the ‘placement or non-placement of traffic control

devices or signs is a discretionary governmental function.’” Aultman v. Lawrence County,

95 So. 3d 702, 705 (¶7) (Miss. Ct. App. 2012) (emphasis added) (quoting Barrentine v. Miss.

Dep’t of Transp., 913 So. 2d 391, 393 (¶8) (Miss. Ct. App. 2005)). Indeed, in Wall v. City

of Gulfport, 252 So. 2d 891 (Miss. 1971), the supreme court held that the City’s decision

whether to replace a stop sign that had been blown away by a hurricane was a governmental

function, and thus the City was not liable for failing to replace it. Id. at 893. In particular,

the supreme court held that the City’s decision “whether to replace a traffic control device

. . . which has been completely removed is a governmental function,” and thus the City was

immune from liability. Id. (emphasis added);3 see Barrentine, 913 So. 2d at 393 (¶8) (citing

Wall for this point). In light of these cases, we find that the language “place and maintain”

found in section 63-3-305 encompasses the alleged “replacement” of the speed limit sign in

this case.

¶21. We next turn to the application of the two-part public-policy function test “resurrected

in Wilcher.” Smith, 292 So. 3d at 233-34 (¶¶8-9). The supreme court applied this test in

Smith. Id. There, Rhonda Smith was injured when she rear-ended a loaded logging truck

that had slowed down when the driver noticed a Mississippi Transportation Commission

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Blair attempts to cast doubt on the supreme court’s holding in Wall because that
case was decided before the MTCA went into effect. We are unconvinced by this point. As
Justice Coleman noted in Smith, “discretionary-function immunity preexisted the Tort
Claims Act. . . . In short, the Tort Claims Act . . . carried forward the already-existing
discretionary-function immunity.” Smith, 292 So. 3d at 236 (¶19) (Coleman, J., concurring)
(emphasis added). We find nothing in subsequent caselaw that abrogates this immunity as
applied to the circumstances here.

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(MTC) employee holding a stop sign on the side of a highway. Id. at 233 (¶2). Smith

alleged, among other claims, that the MTC was negligent in determining the placement of

traffic-control devices. Id. at (¶4). The supreme court determined that discretionary-function

immunity applied to these claims, as we discuss below. Id. at 233-34 (¶¶8-9).

¶22. In applying the first element of the public-policy function test—“whether the alleged

wrongful act involves an element of choice or judgment”—the supreme court examined

Mississippi Code Annotated section 63-3-303.4 Id. at 234 (¶8). Relevant here, section 63-3-

303 contains language substantively identical to section 63-3-305, except that it sets forth the

MTC’s (rather than local authorities’) authority regarding the placement and maintenance of

traffic control devices. Id. at (¶9). The supreme court held that “[section 63-3-305]’s

assignment of authority clearly meets the first prong of the [public-policy function] test

because it is phrased as a choice or decision.” Id.

¶23. Similarly, in Alabama Great Southern Railroad Company v. Jobes, 156 So. 3d 871

(Miss. 2015), the supreme court found that the Mississippi Department of Transportation

(MDOT) was entitled to discretionary-function immunity with respect to plaintiff’s claim that

MDOT failed to maintain “reasonable signs, signals, [or] warning devices” in the area where

she was injured after crashing into a concrete railroad trestle. Jobes, 156 So. 3d at 873, 881-

82 (¶¶1, 27-29). The supreme court recognized that the identical language, “as it shall deem

necessary,” contained in section 63-3-303, “allows MDOT, in its discretion, to determine the

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Section 63-3-303 provides that “[t]he commissioner of public safety and the state
highway commission shall place and maintain such traffic-control devices . . . upon all state
and county highways as it shall deem necessary . . . to regulate, warn, or guide traffic.”
Miss. Code Ann. § 63-3-303 (Rev. 2022).

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appropriate type, number, and location of traffic-control devices, making it immune from

liability for this claim under Section 11-46-9(1)(d).” Id. at 882 (¶29).

¶24. As in these cases, we likewise find that section 63-3-305, which delineates Jackson

County’s authority to “place and maintain” traffic control devices “is phrased as a choice or

decision” and, thus, “clearly meets the first prong of the [public-policy function] test.”

Smith, 292 So. 3d at 234 (¶9); see Jobes, 156 So. 3d at 882 (¶29).

¶25. In applying the second element of the public-policy function test—“whether the

choice or judgment had a bearing on public policy”—the Smith court “reiterate[d] that

‘installing warning lights or signs at dangerous intersections’ and other instances of

installation of traffic-control devices do carry with them economic, political, or social

concerns.” Smith, 292 So. 3d at 234 (¶9) (quoting Wilcher, 243 So. 3d at 187 (¶30)). The

supreme court then concluded that “any claims Smith brings that the MTC through its

policymakers erred in its decision regarding placement of traffic-control devices are

ineffective because the MTC can invoke discretionary-function immunity.” Id.

¶26. We find that the same analysis applies here. As noted, section 63-3-305, like section

63-3-303, allows Jackson County, “as it deems necessary” to determine “the appropriate type,

number, and location of traffic-control devices,” see Jobes, 156 So. 3d at 882 (¶29). And,

as plainly stated in Smith, this function “carr[ies] with [it] economic, political, or social

concerns.” Smith, 292 So. 3d at 234 (¶9). We find that this is particularly true here, where

the Jackson County maintenance report for Lemoyne Boulevard, attached to Blair’s

opposition as Exhibit 2, shows that a “sign and traffic control study” for the entire length of

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Lemoyne Boulevard was performed in February 2021, just prior to the March 16, 2021

installation of a “new speed limit sign[] on a new post” near the intersection of Lemoyne

Boulevard and McCann Road. Accordingly, we find that the circuit court did not err in

granting summary judgment based on discretionary-function immunity.

¶27. Blair asserts, however, that Wilcher supports his claim that Jackson County’s alleged

failure to “replace” a “missing speed limit sign” is not protected by discretionary-function

immunity. We are unconvinced by Blair’s argument. Although the supreme court addressed

the evolution and application of the discretionary-function immunity principles in Wilcher,

the court also specifically noted that whether “the placement of traffic-control devices is a

‘discretionary function’ under Section 63-3-305 . . . [was] not the government function being

challenged” in that case. Wilcher, 243 So. 3d at 187 (¶31). As such, on its facts, we find

Wilcher inapplicable here.

¶28. To explain, in Wilcher, Samuel Wilcher was driving at night and was injured “when

his vehicle suddenly crashed into a big hole.” Id. at 181 (¶5). The hole was left in the road

where Lincoln County (County) and the City of Brookhaven (City) employees had been

“repairing or constructing a bridge.” Id. There were no warning signs or any other devices

warning motorists of the hole. Id. Wilcher sued the County and the City for negligence. Id.

at 181 (¶6).

¶29. After analyzing the factual allegations of Wilcher’s complaint, the supreme court, as

noted, explicitly pointed out “that the placement or lack of placement of a traffic-control

device is not the government function being challenged” by Wilcher; instead, “the allegedly

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tortious act was the construction crew’s alleged failure to barricade or warn against the

significant drop-off in the road—a condition it created.” Id. at 187-88 (¶¶31-32) (emphasis

added). The supreme court added, “This alleged failure . . . was not the result of a policy

decision. Rather, if indeed there was such a failure, it was the result of straight-up

negligence.” Id. at 188 (¶32). As the supreme court concluded, “Wilcher has alleged a

simple act of negligence, and not a real policy decision, caused his injury. Therefore, the

County and City cannot take refuge in discretionary-function immunity.” Id. at 188 (¶35)

(quotation marks and brackets omitted).

¶30. In contrast, Blair asserts that discretionary-function immunity does not apply here

because Jackson County allegedly failed to “replace” a “missing speed limit sign”—a

function squarely within the County’s discretionary authority to perform pursuant to section

63-3-305. As we have detailed above, Jackson County’s decision regarding the placement

or non-placement of a speed limit sign was a discretionary decision “carry[ing] with [it]

economic, political, or social concerns.” Smith, 292 So. 3d at 234 (¶9). Thus, unlike Lincoln

County and the City of Brookhaven in Wilcher, we find that Jackson County is entitled to

discretionary-function immunity in this case.

¶31. In sum, for the reasons and pursuant to our analysis set forth above, we find no error

in the circuit court granting summary judgment in Jackson County’s favor based upon

discretionary-function immunity. Accordingly, we affirm the judgment.

¶32. AFFIRMED.

BARNES, C.J., WESTBROOKS, McCARTY, EMFINGER, WEDDLE AND
LASSITTER ST. PÉ, JJ., CONCUR. WILSON, P.J., AND McDONALD, J., CONCUR

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IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
LAWRENCE, J., NOT PARTICIPATING.

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