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IN THE CIRCUIT COURT OF TUNICA COUNTY, MISSISSIPPI | |
| JAMES JOHNSON, INDIVIDUALLY AND ON BEHALF OF APRIL JOHNSON AND JENNA JOHNSON, MINORS, MARLENE JOHNSON AND JULIE JOHNSON, ALL HEIRS AT LAW OF MATTHEW JOHNSON, DECEASED | PLAINTIFFS |
| VS. 94-0214 | |
| MISSISSIPPI DEPARTMENT OF TRANSPORTATION, MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, CLASSIC COACH, INC., AND ALBERT RUSH, SR. | DEFENDANTS |
| RACHEL MCBRIDE, NEXT OF KIN, HEIR AND ADMINISTRATRIX OF THE ESTATE OF LARRY MCBRIDE, DECEASED, INDIVIDUALLY AND WRONGFUL DEATH BENEFICIARY OF LARRY MCBRIDE, DECEASED | PLAINTIFFS |
| VS. 94-0217 | |
| MISSISSIPPI DEPARTMENT OF TRANSPORTATION, MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, CLASSIC COACH, INC., AND ALBERT RUSH, SR. | DEFENDANTS |
FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came to be heard on February 15, 1999, in the Tunica County Circuit Court before the Honorable John L. Hatcher. Impaneling of a jury was waived by all parties, as the cause of action involved a claim arising out of the Mississippi Tort Claims Act. The cases were consolidated prior to trial as the claims involved common operative facts. Having received and reviewed all exhibits and evidence, this Court now finds as follows: INTRODUCTION In the early morning hours of December 13, 1993, a vehicular accident occurred between an automobile, driven by Larry McBride, with James Johnson as a passenger, and a bus owned and operated by Classic Coach, Inc., driven by Albert Rush, Sr., at the intersection of U.S. Highway 61 and Mississippi Highway 304. Suit was filed alleging negligence, wrongful death, and loss of consortium. FINDINGS OF FACT The Missing Stop Sign and Directional Signs The double fatality wreck from which this action arises occurred in the intersection of Highway 304 and Highway 61 in Tunica County, Mississippi. All the parties considered this intersection to be misleading and dangerous. Vehicles traveling west on Highway 304 were originally controlled by a stop sign placed at the intersection of Highways 304 and 61. This stop sign and directional signs adjacent to the stop signs had been knocked down on December 11, 1993, in a prior accident. The Mississippi Department of Transportation, local personnel of the State Public Safety Commission, and the Mississippi Department of Public Safety ("the State Defendants") were notified that the signs had been knocked down by the December 11, 1993 accident. The State Defendants knew that the intersection of Highways 304 and 61 was a misleading and dangerous intersection and knew that these signs were critical. Despite their knowledge of such, the State Defendants failed to replace the stop sign until Monday, December 13, 1993, around 10:00 A.M. The MDOT had plenty of stop signs available in Tunica County which it could have used to replace the stop sign. According to the testimony of a representative of the MDOT, it took only twenty (20) minutes for a work crew to erect a temporary stop sign at the intersection on December 13, 1993. The road supervisor for the Tunica County office of the MDOT, Calvin Norwood, testified that he considered himself to be on duty at all times and would have replaced the stop sign immediately if he had been notified that it was down. Norwood was not notified of the downed stop sign until Monday, December 13, 1993. This notification came from a subordinate, Williams, and not the MDOT headquarters in Batesville, Mississippi. Walter Lyons, representative of the MDOT, testified that the department had adopted the Manual of Uniform Traffic Control Devices ("MUTCD"). This manual is considered to be the "Bible" for maintenance and construction of traffic control devices on highways in the State of Mississippi. According to the MUTCD, "all traffic signs should be kept in proper position, clean and legible at all times ... and that damaged signs should be replaced without undue delay." The representative of the MDOT testified that he considered "without undue delay" to mean that the downed stop signs should be replaced "right away" and that he understood this to be the policy and procedure of the MDOT at the time of the wreck. Mississippi Highway Patrol Officer Andrew Richardson testified that the MDOT failed to perform it's duty by not replacing the stop sign when they were notified that it was down. It was undisputed that the traffic control, i.e. stop sign, was not functioning properly at the time of the wreck from which this cases arises. The Intersection At the time of the wreck, Highway 304 and Highway 61 were two (2) lane highways. Highway 61 actually widened to a four lane roadway before the intersection. This four lane roadway continued through the intersection. This intersection was not a true ninety (90) degree angle. Highway 304 actually crosses Highway 61 in a southwesterly direction. This angle makes it difficult for drivers to judge the true distance of vehicles approaching the intersection of Highway 61 from Highway 304. As Larry McBride and Matthew Johnson approached the intersection of Highway 304 and Highway 61, they would have encountered a "stop sign ahead" sign. This sign was not the traditional "stop ahead" sign that motorists have come to expect. The words "stop ahead" were not spelled out on the sign. The sign consisted of a red octagon resembling a stop sign and an arrow. This "stop ahead sign" is not a regulatory sign requiring vehicles to stop. As McBride and Johnson proceeded southwesterly on Highway 304, the next thing they would encounter was a two lane roadway on the right. This area actually formed a triangular island. This two lane road served as a merge lane for vehicles exiting Highway 304 to the northwest onto Highway 61, and vehicles exiting Highway 61 to the southeast onto Highway 304. There was a stop sign and cross bar located on the northeast quadrant of this intersection requiring vehicles exiting Highway 61 to stop at the intersection with Highway 304. The Defendants contended at trial that the aforesaid triangular island was clearly painted and outlined at the time of the wreck. However, photographs taken on Monday, December 13, 1993, before the signs were replaced show that paint on the curb of this triangular island and the curb on the southeast side of Highway 304 was in disrepair, faded, and covered with grass and mud. The next marking that McBride and Johnson would be confronted with is a white cross bar approximately four (4) feet from the intersection of Highway 304 and Highway 61. This bar is a clearance line that is used in conjunction with a stop sign. The cross bar was faded or blocked out in sections by black tire marks and dirt. It was not visible in photographs taken by Officer Richardson on the night of the wreck from the west side of the intersection of Highway 304 and Highway 61 near the northeast bound stop sign. In fact, Richardson could not identify the white cross bar in photographs taken by the Defendants in broad day light. Defendant Rush would have been confronted with the same signs that faced McBride and Johnson with the exception of the "stop sign ahead" sign as he proceeded north on Highway 61. At trial, Rush contended for the first time that there was a service station in the southwest quadrant of the intersection which obscured his vision of vehicles approaching Highway 61 from his left as they headed northeast on Highway 304. In his deposition, Rush asserted that his vision was not obstructed to the left or right. Rush readily admitted that once his vehicle passed this obstruction, there was no visual obstruction on the left. Defendant Rush noted that the service station extended to the tip of the southwest corner of Highway 304 and 61, and that once he passed the obstruction, he would actually be past the intersection. Rush's contention that the service station obstructed his view of vehicles approaching on his left is not supported by the physical evidence in this case. Plaintiff's photographs of the scene of the wreck clearly show that the service station that Rush testifies of sets well off Highway 61 and to the south of Highway 304, not on the tip of the southwest quadrant of the intersection. The entrance to the service station is to the south of the area where Highway 61 begins to widen. There was a road which traveled in front of the service station to the southeast from Highway 304 forming another triangular area in the southwest quadrant of the intersection. In fact, an aerial photograph shows that there is an unobstructed view to the left along this road prior to a north bound vehicle entering the four lane portion of Highway 61. This unobstructed view extends at least 300 feet to the south on Highway 61. In fair weather, the driver of a vehicle headed north on Highway 61 would have no problem seeing vehicles approaching from the right on Highway 304 for basically an unlimited distance. The angle of the intersection is about 135 degrees which would create a wide field of vision to the right for Defendant Rush as he headed north on Highway 61, and allow him to see vehicles approaching the intersection from the southeast on Highway 304 without turning his head to the right. At the time of the wreck, the intersection was wet, dark, and no street lights were present. The Wreck The wreck occurred some time in the early morning hours of Monday, December 13, 1993, after 3:00 A.M. The accident report indicates that the wreck occurred at 3:48 A.M. However, the wreck had to occur closer to 3:00 A.M. Defendant Rush testified that his bus departed the Splash Casino at 3:00 A.M. Defendant Rush estimated that it took no more than an hour and fifteen minutes to reach his destination in Memphis, Tennessee. At the location of the wreck, Defendant Rush had not even made it a quarter of the way to Memphis. If he had left around 3:00 A.M., there is no way that it took him forty-eight (48) minutes to reach the crash site. At the time of the wreck, Larry McBride was operating a 1994 maroon Honda automobile in a southwesterly direction on Highway 304. Matthew Johnson was a passenger in this automobile. This was the first time Larry McBride had been through this intersection. At the time of the wreck, Defendant Rush was operating a forty (40) foot long passenger bus owned and operated by Classic Coach, Inc. Defendant Rush's job duties required him to pickup and deliver passengers to and from Memphis, Tennessee, and the Splash Casino in Tunica, Mississippi. Defendant Rush was familiar with this intersection and Highway 61. Prior to the accident, Defendant Rush had been warned that this was a dangerous intersection by another driver with Classic Coach during his training run and Rush considered it to be a dangerous intersection. On a regular night, Rush would pass through this intersection six (6) times. On the night of the wreck, Defendant Rush had passed through the intersection three (3) times prior to the collision. Despite passing through this intersection three (3) times prior to the collision on the night of the wreck, Rush contended that he was unaware that the stop sign facing east on Highway 304 and large directional signs facing south on Highway 61 had been knocked down. These large directional signs were immediately adjacent to the stop sign and faced Defendant Rush as he approached the intersection from south to north on Highway 61. Rush testified that he did not look for the signs because he had the "right of way." Rush testified that he saw the McBride vehicle approaching the intersection from the right for the first time when McBride and Johnson were four (4), maybe five (5), bus lengths from the intersection. This would be approximately 160 to 200 feet from the intersection. At this time, the Defendant's bus was also approximately the same distance from the intersection. Defendant Rush testified that he took his foot off the accelerator and placed it over the brake because he was approaching the intersection of Highways 61 and 304, not because of the presence of the McBride vehicle. At the point Rush placed his foot over the brake pedal, the car and bus were within 160 to 200 feet of the intersection, and Rush was traveling at approximately 50-55 miles per hour. Defendant Rush did not apply his brakes at this time. Rush testified that placing his foot over the brake would reduce his reaction time. Rush then testified that he looked to the left because he was worried about the service station obstructing his view to the left. He then looked back to the right and saw the lights of the car approaching the intersection. He characterized the car's lights as dipping which indicated to him that the car was stopping. However, in his deposition, he first testified that the car's lights dimmed, not dipped. At this point, the McBride and Johnson vehicle was within 100 feet of the intersection and still moving toward the intersection. Defendant Rush was not able to estimate the speed of the McBride vehicle. At this point, Defendant Rush testified that he was 90% certain that he could have avoided any collision by steering into the right hand lane of the intersection. Despite the closeness of the Plaintiff's car to the intersection, the fact that the car was still moving toward the intersection, Rush's difficulty in judging distance, Rush's inability to judge the speed of the McBride car, and the poor visibility, Defendant Rush looked back to the left again. When Defendant Rush looked back to the right, he saw the McBride car two (2) feet in front of the bus. At this point, Rush applied his brakes for the first time. This was too late. At trial, Rush testified that he did not turn his bus to the left prior to impact to try to avoid the collision. This is in direct conflict with his deposition testimony introduced at trial where he stated that he swerved "to the left because he was coming from the right." This statement is also in direct conflict with Defendant's contention that "the moment Albert Rush realized that Larry McBride was not going to stop, he hit his brakes and maneuvered his vehicle to the left in an effort to avoid the collision, but was unable to do so." Defendant Rush's denial that he swerved left is also in direct conflict with the physical evidence at the scene of the wreck. According to the accident report, the bus and car ended up on the left or south bound shoulder of Highway 61 approximately 238 feet from the intersection. The bus' size and mass make it physically impossible for the car to pull the bus that great a distance to the left on impact. At trial, Rush estimated his speed to be 40 miles per hour at the point of impact. This testimony is in direct conflict with what Rush told Officer Richardson on the night of the wreck. On the night of the wreck, Rush estimated his speed to be 50-55 miles per hour at the time of the collision. Defendant Rush placed the point of impact in the center of the inside north bound lane of highway 61. This is in conflict with the testimony of Officer Richardson who placed the area of impact near a gouge mark within one foot of the center line in the northbound lane of Highway 61. Richardson could not say whether the gouge was caused by the car or the bus. Richardson could also not say which part of the bus or car caused the gouge mark. Defendant Rush's testimony about the point of impact is also not supported by the physical evidence in this case. Photographs of the vehicles involved in the wreck which were taken by Officer Richardson on the night of the wreck indicate that the left driver's side quarter panel of the bus collided with the middle of the Plaintiff's car. The area of impact to the car was from the driver's side front tire to the rear tire. The impact actually wrapped the driver's side front quarter panel of the car around the driver's side front quarter panel of the bus. The front of the car actually ended up almost touching the driver's side front tire of the bus. The physical evidence indicates that the front of the car had crossed the two north bound lanes of Highway 61 and that the front quarter of the car was across the center line at the time of impact. At that point, Defendant Rush turned his vehicle to the left and into the McBride car, instead of away from the car. The Weather and Road Conditions Two impartial witnesses, Curtis Byrd and Ronald Flowers, testified to the inclement weather conditions on the night of the accident. Byrd testified that he was a passenger on the bus at the time of the wreck. Byrd testified that when he got off the bus shortly after the wreck, it was cold and possibly sleeting. According to Byrd, the road was wet and slick. Flowers testified that he was also a passenger on the bus at the time of the wreck. Flowers testified that when he got off the bus it was raining. He characterized the weather as inclement. These witnesses departed the bus within seconds of the wreck. Officer Richardson testified that the bus and car left no skid marks prior to or after impact. Richardson further explained that the reason this probably occurred was because the road was wet and slick. In addition to this testimony, photographs taken by Richardson on the night of the wreck show a substantial reduction in visibility. The visibility is reduced to a point that you can not see the white cross bar for northeastern bound vehicles at the intersection of Highway 304. There was inclement weather at the time of the wreck. This evidence is in direct conflict with the testimony of Defendant Rush. Rush testified that it had rained while he was in the casino waiting for the return trip. He estimates that he was in the casino no more than fifteen (15) minutes. Rush testified that when he came out of the casino after this fifteen minute time frame, the streets were wet but it was not raining. According to Defendant Rush, at no time did it mist or drizzle rain or any kind of precipitation occur while he was driving in Tunica County. Rush characterized the evening as a "fair night." This is not supported by the testimony or the physical facts in this case. According to Rush, he would have unlimited visibility of vehicles approaching to the right on Highway 304 as he was heading north on Highway 61. If this was a "fair night" as Defendant Rush characterized the weather conditions, then he certainly would have seen the McBride vehicle before it was within 160 to 200 feet from the intersection. Despite this reduced visibility and slick roads, Defendant Rush never sounded his horn, never applied his brakes, and never decreased his speed to the statutory minimum speed of forty-five (45) miles per hour. The Substances In The Plaintiff's Post Mortem Fluids After the accident, blood and urine samples were taken from Larry McBride and Matthew Johnson. No sample was taken from Albert Rush. A metabolite of marijuana was found in the urine samples and a metabolite of methamphetamine were found in the blood samples. These samples were then destroyed by the State of Mississippi six months after the accident. They were not available for re-testing at the date of the trial. Dr. Stafford and Dr. Hume, expert toxicologists testified on behalf of the Defendants and Plaintiffs respectively. Both acknowledged that it was necessary to have a quantitative amount of drugs reported in the test in order to determine the effect of the drugs. Neither could testify to a reasonable degree of scientific certainty as to the effect of the drugs on the driving ability of McBride. Dr. David T. Stafford, director of the toxicology lab at the University of Tennessee in Memphis, agreed on the blood tests. The State of Mississippi laboratory that performed the tests did not quantify the level of methamphetamine in Larry McBride's system. Furthermore, he could not testify that Larry McBride was under the influence of marijuana at the time of the accident. Dr. Stafford could not testify as to any degree of impairment that may have been attributable to methamphetamine based on the lab report. He agreed that the symptoms were not definitive but that it was the drug test that was definitive in making the diagnosis and prediction of how much impairment there is. Dr. Hume, Director of the University of Mississippi Medical Center Poison Control Center and Analytical Toxicology Laboratory, testified that a blood level is needed to determine whether a person's driving ability is affected by marijuana or methamphetamine. No blood test was performed for marijuana. The laboratory report did not include a blood level for methamphetamine. Dr. Stafford and Dr. Hume agreed that the effects of marijuana and methamphetamine could offset each other. The issue presented is whether McBride's actions were influenced by the drugs so as to impair his abilities to the extent of being causally related to the collision. Neither expert could provide such an opinion based on the drug tests. Dr. Stafford and Dr. Hume agreed that methamphetamine is a stimulant while marijuana is a depressant and that the two could work together to cancel the effects. This proof is insufficient to support a finding that McBride's actions and ability to drive were affected by the drugs identified in the lab results. Because of the foregoing, the Court has entirely disregarded any testimony regarding the use of drugs. Larry McBride's Damages Larry McBride was a bright and talented 21 year old man at the time of his death. McBride was survived by a 20 year old widow and a five month old child. He was dedicated to his family. As Rachel McBride explained, she not only lost a husband and the father of her child, she lost her best friend. Rachel and Larry met and become close friends while Rachel was attending the University of Central Arkansas. Larry was about to enter U.C.A. and was working in his home town. Once Larry entered U.C.A., he gained employment at the same place where Rachel was working. The two were inseparable from the first date. They dated for approximately seven months before they got married. Rachel was nineteen when she married Larry. A year later, she became pregnant with their only child, Larry McBride, III, who they called Trey. Rachel was hesitant and scared when she became pregnant because she was so young, but her husband was excited about their child. Larry would read to Rachel's abdomen because he had read that would help in the child's development. When Trey was born, Larry would not allow him to be kept in day care. He and Rachel arranged their work and school schedules to allow one of them to be with Trey at all times. It was after Trey's birth that Larry loaded up on his courses. At the time of his death, Larry was taking twenty-one (21) hours of school subjects in an effort to finish school early so he could care for his family. Rachel explained her loss by stating that she was married at 19, a mother at 20, and a widow at 21. After Larry's death, Rachel had to rely on Larry's family and her family to help her care for Trey. At the same time, she was having to carry a heavy burden financially and emotionally. Rachel sought counseling to help her deal with Larry's death. As she testified, she had to carry on because Larry would not want someone else to care for their son. The most telling testimony was when Rachel told of the time her son, at 18 months of age, asked where his daddy was. All Rachel could tell him was that she would explain it to him when he was older but to never forget that his daddy loved him. At the time of the wreck, Larry McBride was a 21 year old white male. According to the life expectancy tables of the U.S. National Center for Health Statistics, the average remaining life expectancy of a 21 year old white male is 53.4 years. Larry McBride had accomplished a lot in his short life. He was an accomplished musician. Larry enjoyed hunting, fishing, and camping. These are all things that he could have passed on to his son but will no longer have the opportunity to do so. In high school, Larry participated in sports, plays, band, student council and served as vice president in numerous clubs. He received numerous awards and achievements. The last achievement was a full tuition academic scholarship to U.C.A. Larry was majoring in biology at U.C.A. He excelled in school and was nominated by his professors at U.C.A. for the honors college. Larry was from a loving and well educated family. His mother has a masters degree in special education and is now the principal of a local high school in his home town. Larry's father also graduated from college with a history degree. His parents submitted a poem to his senior year book which summed up his life which praised Larry. Rachel and Trey became a part of this man's life and responsibility. As a result of this wreck and Larry's death, there are no more future trophies and no more watching this man grow. Larry McBride's life was cut short and now Rachel is without a husband and best friend and Trey will never know his father. The Plaintiffs have lost the love, affection and companionship of Larry McBride. It is extremely difficult to place a dollar value on this loss. It is difficult to compensate someone for the loss of friendship, love, affection, advice, and support for so many years. Larry was such a young man and left behind such a young family. At the time of his death, Larry McBride was in college. He excelled in school and was in the honors program at U.C.A. His parents were college graduates and Larry was well becoming a college graduate in biology. The present economic value of income lost was $958,472.00 according to the testimony of the economic expert. Taking into consideration all of the elements of damages for wrongful death and other losses, the total damages for the death of Larry McBride is set at $2.6 Million Dollars . Matthew Johnson's Damages Prior to trial, the Johnson's amended the Pretrial Order to include a claim for the conscious pain and suffering by Matthew Johnson. Curtis Byrd testified that the passenger (Matthew Johnson) was still alive and was trying to exit the vehicle slowly, but was seriously hurt. Ronald Flowers testified that there was no question in his mind that the passenger (Matthew Johnson) was alive at the time Flowers got off the bus. Flowers also heard Johnson moaning. Officer Richardson checked the pulse of the driver but not the passenger. He did not ask the passengers of the bus if either the driver or the passenger of the car was conscious and alive after the accident. Defendant Rush did not see the movements or hear the moans but he was extremely occupied with his passengers who had "gone wild" after the accident. Trial concluded on what would have been Matthew Johnson's 27th birthday. His father, James Johnson, testified as the family representative. Matthew is survived by his mother, father, and three sisters. The Johnson family lives in the small community of Possum Grape, Arkansas, just outside of Bradford, Arkansas. Matthew grew up on the family farm raising animals with his dad. They were "partners" on many cows and hogs. They did all the things fathers and sons do such as hunting, fishing, canoeing, and working around the farm. The family took vacations together in a converted school bus made into a camper. Matthew Johnson met Larry McBride in the seventh grade. They had very similar backgrounds. After they became friends, James felt like he had two sons. Larry vacationed with the Johnsons as well as being Matthew's eventual partner in a series of musical groups. Larry was friends with the rest of the Johnson family as well, he took Julie Johnson to the high school prom. Matthew was pursuing a degree in art education but was sitting out a semester to earn money to return to school at the time of the fatal accident. He had purchased one and one half acres of real estate and had moved two houses onto the property for renovation and rental to other college students. He planned to finish college at the University of Central Arkansas with a degree in art education; his mother's degree. Matthew was a popular boy in Bradford and others recognized his talent. He was asked to draw the logo for the school newspaper as well as designing the T-shirts for the high school swim team. He participated in 4-H, sports, the art club, band and several other organizations while in high school. The Life Expectancy Tables of the U.S. Center for Health Statistics calculate that as a 21 year old male, Matthew Johnson had a remaining life expectancy of 53.4 years. Matthew Johnson was a talented artist, poet and musician. He was industrious. He had worked part time jobs even in high school. He continued to work to support himself in college. Indeed he and his best friend were looking for work when the accident occurred. Dr. David Channel calculated the economic loss of Matthew Johnson to be $947,508.00. It is difficult to calculate the damages for the loss of one's only son as well as for the pain and suffering Matthew endured after the accident. Taking into consideration all of the elements of wrongful death as well as other losses, the total damages for the death of Matthew Johnson is set at $2.0 Million Dollars . CONCLUSIONS OF LAW Liability of Classic Coach, Inc., and Albert Rush, Sr. The issue presented to the Court is whether, based on the preponderance of the evidence, this Court can say that these Defendant's negligence in no way caused or contributed to this wreck and the fatal injuries suffered by Larry McBride and Matthew Johnson. Defendant Rush testified that he assumed that he had the right of way at the intersection. As a result of this assumption, Defendant Rush failed to maintain a proper lookout for the traffic control signs at the intersection of Highways 61 and 304. Defendant Rush had passed through this intersection on three occasions that night prior to the collision and his inattention apparently caused him to overlook the fact that the stop sign and the large directional signs adjacent to it had been knocked down. This is despite the fact that these large directional signs faced his direction on the night of the wreck. Defendant Rush is not entitled to pass through an intersection with blinders on simply because he assumes that he has the right of way. This is true even where there is a stop sign erected. Jobron v. Whatley , 250 Miss. 792, 128 So. 2d 279, 284-85 (1964). Even where a stop sign is erected, Defendant Rush is under a duty to maintain control of the bus, maintain a proper lookout, drive the vehicle at a reasonable speed, sound his horn, and turn his bus to avoid an accident when he knew, or in the exercise of reasonable care should have known, that the McBride car would not slow down or stop for the stop sign, or be able to avoid the danger until it was too late. Jobron, 168 So. 2d at 285. Defendant Rush by his own admission saw the McBride vehicle in time to take evasive action but failed to do so. Additionally, Rush testified that he knew the car would not stop. Rush should have attempted to avoid the wreck. With such knowledge, Rush continued to travel at a speed of approximately 50-55 miles per hour as the McBride vehicle continued to approach the intersection. Defendant Rush never applied his brake, sounded his horn, nor turned the bus from a direct impact course on Highway 61 until the car was only two (2) feet in front of him. This in spite of Defendant Rush's own knowledge that this was a dangerous and misleading intersection which by his own admission made it difficult for him to judge the speed and distance of the McBride vehicle approaching from Highway 304. In fact, Defendant Rush was not interested in the speed or distance of the McBride vehicle. Defendant Rush contends that all he was interested in were the headlights of the car. When he saw those headlights dim, he looked to the left allegedly because he was worried about the service station. In fact, if he were within 300 feet of the intersection, the service station would not have obstructed his view to the left. Defendant Rush looked to the left at a time when he knew that the McBride car was within 100 feet of the intersection, if not closer, still moving toward the intersection, and when he should have known that the McBride vehicle was dangerously close to the intersection so as to constitute an immediate hazard. The unabated speed of the bus carried the car and the bus some 238 feet from the area of impact to their final resting point. There were no skid marks from either of the vehicles prior to impact. Defendant Rush's sole precautionary act was to take his foot off the accelerator, not for the oncoming car, but because of the intersection. Defendant Rush's actions in releasing his foot from the accelerator do not acquit his negligent acts. Williams v. Weeks , 268 So. 2d 340, 341-42 (Miss. 1972). According to Defendant Rush, he placed his foot over the brake pedal to give himself more reaction time to apply his brakes. At this point, Defendant Rush must have felt that the McBride vehicle was an immediate hazard for him to place his foot over the brake in order to gain more reaction time to brake. Defendant Rush's failure to apply his brakes, to sound his horn, bring the bus to a stop, or to turn his bus from a direct course on Highway 61 until the car was two feet in front of the bus was negligence. Jobron, 168 So. 2d at 283; MCA §63-7-65. The area of impact occurred within one foot of the center line of Highway 61. Photographs of the bus and the car show that the McBride vehicle must have crossed the center line prior to impact. This is supported by the fact that Rush turned his bus to the left before impact. At this point, the decedents would have crossed two lanes of travel on Highway 61, the front of the car would have crossed the center line and traveled over 50 feet from the white cross bar. Defendant Rush by his own admission had a whole lane of travel on his right within which he could have turned his bus to avoid the collision. Yet, Defendant Rush took absolutely no evasive action prior to impact. The wreck occurred on a dark cloudy night in an unlit intersection. Impartial witnesses testified that it was raining, sleeting, and the roads were wet at the time of the accident. Flowers testified that he considered the weather to be inclement. Photographs taken by Officer Richardson on the night of the wreck clearly show a substantial reduction in visibility. The lack of skid marks indicate that the road was slick. Under these conditions, Mississippi Statutory Law and Federal Law impose certain duties on Defendant Rush because he is operating a commercial bus. Defendant Rush was under a duty "to use extreme caution in the operation of his bus. . . when hazardous conditions, such as those caused by. . . sleet, fog, mist, rain. . . adversely affecting visibility or traction." 49 C.F.R. §392.14. Defendant Rush was under a duty to reduce his speed as he approached an intersection and to further reduce his speed to a statutorily maximum speed of 45 miles per hour "during inclement weather when visibility is reduced." MCA §63-3-505. Defendant Rush never exercised extreme caution. All he did was to release his foot from the accelerator. Defendant Rush never reduced his speed below 50 to 55 miles per hour. These failures by Defendant Rush are negligence which would have provided the decedents the time they needed to cross the intersection. The absence of a stop sign places a statutory duty on Defendant Rush to yield the right of way to a vehicle entering an intersection from the right at approximately the same time, and to yield the right of way to a vehicle which has already entered the intersection. MCA §63-3-801. Defendant Rush failed in these duties and as a result, McBride and Johnson were fatally injured. The McBride vehicle traveled over 50 feet from the white cross bar and crossed the center line of Highway 61. In doing so, the McBride vehicle preempted the intersection or at least entered the intersection at the same time Defendant Rush entered the intersection. At trial, Defendants Classic Coach and Albert Rush, Sr. contended that Highway 61 was a through highway and that even without the stop sign, the McBride vehicle had a duty to yield the right of way to Defendant Rush and Classic Coach. Even if Highway 61 was a through highway, it was not operating as a through highway at the time of the wreck because the stop sign was missing and the traffic control device was not functioning properly. In making this argument, the Defendants relied upon MCA §63-3-805. This statute requires cars to stop "as required by this chapter" at the entrance of a through highway. MCA §63-3-805. Title 63 Chapter 3 of the Mississippi Code provides the following instances where vehicles must stop: (1) In obedience of a stop sign, [there was none - MCA §63-3-805]; (2) At designated stop highways where stop signs are erected with the word "'Stop' in letters not less than 8' in height" which are "self-illuminated at night" or "reflectorized", [there was none - MCA §63-3-1001]; (3) At designated yield right of way intersections where "yield-right-of-way" signs are erected in lieu of stop signs, [there was none - MCA §63-3-1003]; (4) In response to a red traffic control light, [there was none - MCA §§63-3-309 and 63-3-311]. In each of these instances, Chapter 3 requires a vehicle to stop in response to a sign or red traffic light which is visible at night. The undisputed evidence in this case establishes that the traffic control sign, i.e. stop sign, at this intersection was missing and therefore not functioning. In addition, McBride and, Johnson, unlike Defendant Rush, had never been through this intersection before. This is a key factor which has been considered by Mississippi Courts in determining negligence for failure to stop at an intersection when the stop signs are not visible. Meridian Hatcheries, Inc., v. Troutman , 230 Miss. 493, 93 So. 2d 472, 479 (1957). The whole purpose of a stop sign is to provide notice of where a car is supposed to stop. Without a stop sign on a dark, unlit and unfamiliar road with reduced visibility, the McBride vehicle had no knowledge that they were required to stop. However, Defendant Rush had ample warning that this was a dangerous intersection and if he were keeping a proper lookout, should have known that the McBride vehicle would not stop with every foot their vehicle traveled closer to that intersection. Defendant Rush was guilty of negligence which was a proximate contributing cause of the accident. Since agency was admitted before and during the trial, Defendant Classic Coach, Inc., is thus liable through vicarious liability and the judgment against owner, Classic Coach, Inc., and driver, Albert Rush, Sr. is joint and several. Liability of the Mississippi Public Safety Commission Officer Andrew Richardson testified as a representative of the Mississippi Public Safety Commission. Richardson is a Mississippi Highway Safety Patrol officer. The Mississippi Highway Safety Patrol is a division of the Mississippi Public Safety Commission. However, the Mississippi Legislature has imposed certain statutory duties on the highway patrol in addition to the rules and regulations issued by the Mississippi Public Safety Commission. Mississippi Code Annotated §45-3-21 deals with "the powers and duties of patrol." This statute provides that "the powers and duties of the Highway Safety Patrol shall be . . . (i) To enforce all of the traffic laws, rules and regulations of the State of Mississippi upon all highways of the state highway system and the rights-of-way of such highways. . ." MCA §45-3-21(l)(a)(i). The evidence establishes that this wreck occurred within the intersection of two highways on the state highway system. The stop sign which was missing on the night of the wreck was within the right-of-way of these highways. Officer Richardson had prior notice that the stop sign was down having worked the wreck on December 11, 1993, when the signs were originally knocked down. Richardson called the Highway Safety Patrol's dispatcher who in turn called and notified the MDOT dispatcher on the night of the December 11, 1993 wreck. Officer Richardson continued to patrol these highways on December 12, 1993. He passed through this intersection on several occasions and had notice that the stop signs had not been replaced. Richardson's duties were to protect the motoring public and ensure safety on highways inside the state of Mississippi. The very nature of his office, "Highway Safety Patrol" and the "Department of Public Safety" establishes this. Although Richardson's actions may have been less than desired, it does not rise to the level of a preponderance of the evidence to constitute negligence in this case. As such, the Mississippi Public Safety Commission is not liable for any of the damages sustained by McBride and Johnson and should be dismissed. Liability of the Mississippi Department of Transportation Among others, the Mississippi Department of Transportation ("MDOT") is statutorily required to place and maintain all traffic-control devices "conforming to its manual and specifications, upon all state and county highways." MCA §§63-3-301 and 63-3-303. The manual adopted by the State Defendants is the Manual of Uniform Traffic Control Devices ("MUTCD"). The MUTCD requires that stop signs be replaced without undue delay which, according to the a MDOT Representative Lyons, meant immediately at the time of the wreck. The MDOT dispatcher received notice that the stop sign was down on December 11, 1993. However, all the dispatcher did was to place a note on the work board. MDOT's local personnel in Tunica County had notice that the stop sign and directional signs at the intersection were down on December 11, 1993, but did nothing. MDOT's road supervisor in Tunica County testified that he was on duty at all times and that he would have replaced the stop sign immediately had been notified. MDOT's representative testified that they had plenty of stop signs available in Tunica County which could have been used to replace the downed stop signs before the wreck. In fact, MDOT personnel testified that it took no more than twenty (20) minutes to replace the stop sign on December 13, 1993. Despite MDOT's rule that the stop sign should be replaced immediately, MDOT's notice that the stop sign was down; MDOT's adequate supply of stop signs in the location of the wreck; the small amount of time required to replace the stop sign; and MDOT's knowledge that this was a dangerous, misleading, and highly traveled intersection, MDOT failed to replace the stop sign until almost thirty (30) hours after it was knocked down. MDOT's failure to take any action in replacing the stop sign until after the McBride/Johnson - Classic Coach/Rush accident is negligence. The State Defendants' Claim of Sovereign Immunity The defense of sovereign immunity is an affirmative defense which must be pled and proved by the State Defendants. Beverly v. Powers , 666 So. 2d 806 (Miss. 1995) (recognizing sovereign immunity as an affirmative defense). "The basic principal of sovereign immunity is that the 'king can do no wrong.' Consequently, the state is free from liability unless it carves an exception. The exception applicable here comes in the form of the Mississippi State Tort Claims Act. City of Jackson v. Williamson , 95-CT-01072-SCT, ¶8 (Miss. 2/25/99). In 1993, the State of Mississippi legislatively waived the sovereign immunity of the State and its political subdivisions for torts. MCA §11-46-5. In doing so, the State of Mississippi became amenable to the same laws imposed on its citizens. As the law stands today, the "State and its political subdivisions are immune only to the extent that the Legislature declares" them immune by statute. City of Jackson , ¶32. The State Defendants have failed to bring forth any evidence to support their affirmative defense of sovereign immunity. The only applicable exemption that applies to limit their liability comes through the Mississippi Tort Claims Act. The actions of the agents and employees of the Mississippi Department of Transportation, as above mentioned, constitute negligence. However, under the provisions of the Tort Claims Act, liability cannot exceed the statutory limit of $50,000. Apportionment of Fault Prior to 1989 all judgments against two or more persons were joint and several regardless of the amount of the judgment. However in 1989, an attempt was made in the legislature to completely eliminate joint and several liability. As is so often the case this resulted in a compromise where joint and several liability was retained as to fifty percent (50%) of the recoverable damages and apportionment was provided for the other fifty percent (50%) of recoverable damages. Section 85-5-7(2), Mississippi Code of 1972, as amended, provides:
Section 85-5-7(3), Mississippi Code of 1972, as amended, provides:
A. JOINT AND SEVERAL JUDGMENT Therefore judgment will be rendered in favor of the Johnson Plaintiffs against Mississippi Department of Transportation, Classic Coach, Inc., and Albert Rush, Sr., jointly and severally , in the amount of Nine Hundred Thousand Dollars ($900,000.00), being fifty percent (50%) of the recoverable damages, and in favor of the McBride Plaintiffs against Mississippi Department of Transportation, Classic Coach, Inc., and Albert Rush, Sr., jointly and severally , in the amount of One Million One Hundred Seventy Thousand Dollars ($1,170,000.00), being fifty percent (50%) of the recoverable damages. B. APPORTIONED JUDGMENT The remaining judgment shall be apportioned and judgment shall be rendered in favor of the Johnson Plaintiffs against Classic Coach, Inc. and Albert Rush, Sr. in the amount of Five Hundred Forty Thousand Dollars ($540,000.00), being sixty percent (60%) of the remaining recoverable damages and the amount hereby apportioned by the Court. Judgment shall be rendered in favor of the Johnson Plaintiffs against Mississippi Department of Transportation in the amount of Three Hundred Sixty Thousand Dollars ($360,000.00), being forty percent (40%) of the remaining recoverable damages and the amount hereby apportioned by the Court. The remaining judgment shall be apportioned and judgment shall be rendered in favor of the McBride Plaintiffs against Classic Coach, Inc. and Albert Rush, Sr. in the amount of Seven Hundred Two Thousand Dollars ($702,000.00), being sixty percent (60%) of the remaining recoverable damages and the amount hereby apportioned by the Court. Judgment shall be rendered in favor of the McBride Plaintiffs against Mississippi Department of Transportation in the amount of Four Hundred Sixty-Eight Thousand Dollars ($468,000.00), being forty percent (40%) of the remaining recoverable damages and the amount hereby apportioned by the Court. In the Johnson case recoverable damages would consist of the total damages of $2,000,000.00 to the Plaintiffs less $200,000.00 or ten percent (10%) hereby apportioned by the Court against Larry McBride, a non-party tortfeasor. In the McBride case recoverable damages would consist of the total damages of $2,600,000.00 to the Plaintiffs less $260,000.00 or ten percent (10%) hereby apportioned by the Court against the plaintiff driver as contributory negligence. As previously found and determined the liability of the Mississippi Department of Transportation is limited to $50,000.00 for each of the Johnson and McBride judgments, and when paid shall be allocated to its obligation under the joint and several portions of each judgment. It seems only fair that all of the remaining defendants equally bear the consequences arising from the assertion of sovereign immunity. SO ORDERED and ADJUDGED on this the 21st day of December, 1999. /S/ IN THE CIRCUIT COURT OF TUNICA COUNTY, MISSISSIPPI RACHEL MCBRIDE, NEXT OF KIN, V. No. 94-0217 MISSISSIPPI DEPARTMENT OF TRANSPORTATION, FINAL JUDGMENT THIS CAUSE having come on to be heard upon a complaint filed herein by Plaintiffs, Rachel McBride, Next of Kin, Heir and Administratrix of the Estate of Larry McBride, deceased, Individually and Wrongful Death Beneficiary of Larry McBride, deceased, and answer to same filed herein by Defendants, Mississippi Department of Transportation, Mississippi Department of Public Safety, Classic Coach, Inc., and Albert Rush, Sr., the case proceeding to a bench trial, the state defendants being entitled to said bench trial as a matter of law, and other non-state defendants having waived trial by jury; and the Court having heard and considered all testimony and evidence received at said bench trial, together with written and oral argument of all parties; after which the Court filed its written Findings of Fact and Conclusions of Law; and, the Court now being fully advised in the premises does hereby enter its final judgment, as follows; This judgment shall consist of two parts, Part I being that which is "joint and several to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages" pursuant to Section 85-5-7(2), Mississippi Code of 1972, as amended, and Part II being that which is apportioned based on fault for the remaining fifty percent (50%) of recoverable damages pursuant to Section 85-5-7(3), Mississippi Code of 1972, as amended. The "recoverable damages" in this case is $2,340,000.00, which consists of $2,600,000.00 in total damages to the Plaintiffs, less $260,000.00, or ten percent (10%) of the total negligence involved assessed by the Court as contributory negligence by the plaintiff driver. PART I (JOINT AND SEVERAL JUDGMENT): The Plaintiffs, Rachel McBride, Next of Kin and Administratrix of the Estate of Larry McBride, deceased, Individually and Wrongful Death Beneficiary of Larry McBride, deceased, shall have and recover jointly and severally from Mississippi Department of Transportation, Classic Coach, Inc. and Albert Rush, Sr. the sum of One Million One Hundred Seventy Thousand Dollars ($1,170,000.00), being fifty percent (50%) of the recoverable damages. PART II (APPORTIONED JUDGMENT):
The liability of the Mississippi Department of Transportation is limited to $50,000.00, and when paid, shall be allocated to its obligation under the joint and several portion of Part I rather than the apportioned Part II(B). The Plaintiffs shall have and recover nothing from the Defendant, Mssissippi Department of Public Safety, said claim being hereby dismissed with prejudice. FOR ALL OF WHICH LET EXECUTION ISSUE HEREIN. ORDERED and ADJUDGED on this the 21st day of December, 1999. /S/ | |