The DOT took some of the Garretsons' land, and the construction of the bypass highway which necessitated the taking ended up flooding the Garretsons' remaining land, so they sued, alleging the damage was caused by the DOTS's "gross negligence in the constructon and change of drainage." The trial court dismissed, because the DOT is statutorily immune if its negilgent design of a highway improvement results in damage.
Although the Garretsons argued on appeal that their complaint included a takings claim (which as a constitutional claim, is not subject to government immunity), the Mississippi Court of Appeals in Garretson v. Mississippi DOT, No. 2013-CA-01511 (Nov 20, 2014) held that their complaint was framed in terms of the DOT's negligence, and nowhere used the word "taking" or similar. Even under liberal pleading rules, the complaint wasn't pleaded with enough specificity to put the DOT on notice. Slip op. at 11.
The argument looked to the court of appeals like a post-hoc attempt to save a floundering case, after the plaintiffs had doubled down on their tort theory: "[t]he first time the Garretsons mentioned [their constitutional takings claim under the Mississippi takings clause], was in response to MDOT's motion for summary judgment." Id. And in the years in which the case was pending in the trial court, the plaintiffs did not seek leave to amend their complaint. See this recent case for the same result (allthough in that case, the court remanded the case to allow the plaintiffs to amend).
In other words, when you choose a line, the court is going to hold you to it. At least if you are a private party.
Garretson v. Mississippi DOT, No. 2013-CA-01511-SCT (Miss. App. Nov. 20, 2014)
