author: SMITH, Chief Justice, for the Court. EASLEY, Justice,

text:
    Evelyn FAIRLEY v. GEORGE COUNTY, Mississippi, a Political Subdivision.
    No. 2003-CA-00320-SCT.
    Supreme Court of Mississippi.
    April 22, 2004.

      Ben F. Galloway, Gulfport, attorney for appellant.
    David Michael Ishee, Pascagoula, William M. Rainey, Gulfport, attorneys for appellee.
   SMITH, Chief Justice, for the Court.

¶ 1. This Mississippi Tort Claims Act action for personal injuries arises from the Circuit Court of George County. On May 30, 1996, Evelyn Fairley allegedly sustained injuries when she lost control of her vehicle due to gravel on county-maintained River Road in George County, Mississippi. Fairley’s attorney sent a letter to the George County Board of Supervisors (the Board) on June 19, 1996. The letter referenced a single-vehicle accident on River Road in George County on May 30, 1996, due to gravel on the road. -Moreover, it stated that Fairley sustained personal injuries and/or property damage and asked the Board to forward the letter to its liability insurance carrier. After Fairley filed this suit against George County, process was issued to R. Wayne Christian (Christian), President of the Board, and to each individual supervisor. Fairley’s attorney subsequently filed an amended complaint to which the Board answered, raising immunity and alleging a lack of statutory notice of the claim.

¶ 2. The Board moved for summary judgment, asserting that Fairley did not strictly comply with Miss.Code Ann. § 11-46-11. The trial court granted the Board’s motion for summary judgment. Fairley requested reconsideration of the trial court’s decision which was denied. Fairley appealed the summary judgment to this Court.

¶ 3. This Court reversed the decision of the trial court granting summary judgment. Fairley v. George County, 800 So.2d 1159 (Miss.2001) (Fairley I). We remanded this matter back to the trial court for a determination of whether Fair-ley substantially complied with the Mississippi Tort Claims Act (MTCA) notice provisions, Miss.Code Ann. § 11-46-11. The trial court had applied a strict compliance standard, rather than that of substantial compliance, as to the letter sent by Fair-ley’s attorney. Id.

¶ 4. On remand, the Board filed another motion for summary judgment alleging:

(1) First, Fairley did not file a notice of claim that substantially complies with Miss.Code Ann. § 11-46-11;
(2) Second, that the Board was statutorily immune from liability for all acts relating to the maintenance and upkeep of its roads.

¶ 5. The trial court entered an order granting the Board’s motion for summary finding that:

the notice did not substantially comply with the requirements of § 11-46-11 of the Mississippi Code. Additionally, the Court finds that maintenance of roads is a discretionary function for which sovereign immunity has not been waived for the county. See Coplin v. Francis, 631 So.2d 752 (Miss.1994); Webb v. County of Lincoln, 536 So.2d 1356 (1988). As such, the Court finds that there remain no genuine issues of material fact so that George County is entitled to a judgment as a matter of law.

¶ 6. Fairley raises the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT FAIRLEY FAILED TO SUBSTANTIALLY COMPLY WITH THE NOTICE PROVISIONS OF MISS. CODE ANN. § 11-46-11.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FINDING THAT THE MAINTENANCE OF ROADS BY A COUNTY IS A DISCRETIONARY FUNCTION FOR WHICH SOVEREIGN IMMUNITY APPLIED.

STANDARD OF REVIEW

¶ 7. There are two standards of review we must apply in resolving this dispute. First, “[t]his Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo.” Fairley I, 800 So.2d at 1162. Moreover, we review summary judgments de novo. Grange Mut. Cas. Co. v. U.S. Fidelity & Guar. Co., 853 So.2d 1187, 1190 (Miss.2003). The facts are viewed the light most favorable to the nonmovant. If a genuine issue of material fact exists, summary judgment is inappropriate. A nonmovant must show by specific facts that there exists a genuine issue of material fact; that is, the nonmoving party may not rest on allegations or denials in the pleadings to withstand the motion. Id.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT FAIRLEY FAILED TO SUBSTANTIALLY COMPLY WITH THE NOTICE PROVISIONS OF MISS. CODE ANN. § 11-46-11.

¶ 8. The MTCA notice statute provides:

Every notice of claim required by subsection (1) of this section shall be in writing, and shall be delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

Miss.Code. Ann. § 11-46-11 (Rev.2002). This Court requires “substantial compliance” with the MTCA notice provisions. See Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999); Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss.1998). However, while plaintiffs need only substantially comply with the MTCA notice statute, “we can hardly afford relief under the [MTCA] when there is no effort to comply with the procedural mandates.” Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 12-13 (Miss.2002) (emphasis added). That is, “[t]hough substantial compliance with the notice provisions is sufficient, ‘substantial compliance is not the same as, nor a substitute for, non-compliance.’ ” Gale v. Thomas, 759 So.2d 1150, 1158 (Miss.1999) (plurality) (quoting Carr v. Town of Shubuta, 733 So.2d 261, 265 (Miss.1999)).

¶ 9. Although substantial compliance is a legal question, factual analysis of our cases shows that Fairley’s letter to the County fails to meet even the substantial compliance standard. That is, “[t]he determination of substantial compliance is a legal, though fact-sensitive, question.” Cmr, 733 So.2d at 265. In terms of compliance with the notice provisions of the MTCA, the present case falls in the range between Gale and Carr.

¶ 10. In Gale, the plaintiff did not assert that the MTCA notice provisions were satisfied. 759 So.2d at 1158. Moreover, the plaintiff did not even argue substantial compliance. Rather, she simply argued that the notice provisions were inapplicable to her. Id. This Court affirmed the summary judgment in favor of the defendant city. Id. at 1160. Likewise, the plaintiff in Little failed to meet our substantial compliance requirement. The plaintiff in Little served the Attorney General with process, and there was no evidence that the plaintiff attempted to serve anyone at the agency or the agency’s chief executive officer. Little, 835 So.2d at 12. Moreover, the plaintiff did not meet the statute of limitations requirement. Furthermore, the plaintiff did not file a notice of claim to toll the limitations period. Thus, we concluded that the plaintiff had “not done anything which is required under the Mississippi Tort Claims Act to sue a governmental entity.” Id. However, the plaintiff in Carr substantially complied with the MTCA notice of claim provisions. 733 So.2d at 265. The Court in Carr held:

Carr provided Shubuta with all of the required information except a liquidated amount of damages, although she stated the extent of her injuries in adequate detail. She was given the form by a city employee and assisted in completing the form. Furthermore, once her damages were ascertainable, the adjuster was made aware of same and actively pursued settlement with Carr and her attorney. It is not difficult to find in this case that Ms. Carr substantially complied with the notice of claim provisions of the act.

Id.

¶ 11. These cases exemplify the marked contrast in compliance that we have previously considered. On one hand, we have the plaintiffs in Gale and Little who clearly did not meet our substantial compliance requirement. At the other end of the spectrum is Carr, in which the plaintiff substantially complied with the statute’s simple standards by providing sufficient information about herself and the cause of her injuries.

¶ 12. Here, however, we are unwilling to overlook the clear mandates of the Legislature and our precedents. It is neither possible nor prudent to reduce the determination of substantial compliance to a rigid mathematical test. However, we note that George County argues convincingly that under Fairley’s view of substantial compliance, a plaintiff who complies with only about 25% of the MTCA notice requirement achieves “substantial compliance” for purposes of the statute and our case law. The County argues that Fair-ley’s letter was in writing and gave the time and place of the injury. The letter was not sent to the County, but rather to an attorney. The County also points out the following defects in the letter:

This letter was not (1) sent registered mail or certified mail, nor was it delivered in person; (2) did not contain a short and plain statement of the facts with regard to circumstance of injury; (3) did not give the extent of injuries; (4) did not give the name of all persons; (5) did not list the damages sought; and (6) did not give the residence of the claimant.

¶ 13. The separate opinion argues that the facts in Reaves and those present here are similar or even identical. This is simply not the case. Here, we have a bare attempt at “minimal compliance,” certainly not “substantial compliance” as required by statute and as contemplated by our precedent case law. Fairley made no attempt to comply with at least six statutorily required factors. We recognize “regarding extent of injuries” requirements that on occasion the full extent of such injuries may only become known at a later date. However, a plaintiff is required to reveal the extent of injuries known at the time the notice letter is sent. We hold, as in Gale and Little, that Fairley did not substantially comply with the statute. Our role is one of interpreting the law as passed by the Legislature. Accordingly, this Court will interpret the statute as written, ever mindful that the Legislature has the ultimate authority to further modify the statutes if it deems necessary.

¶ 14. We find that the trial court did not err in finding that Fairley failed to substantially comply with the MTCA notice provisions. Therefore, this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FINDING THAT THE MAINTENANCE OF ROADS BY A COUNTY IS A DISCRETIONARY FUNCTION FOR WHICH SOVEREIGN IMMUNITY APPLIED.

¶ 15. Because we find that Fairley did not substantially comply with the MTCA notice provisions and summary judgment was appropriate, we need not consider this assignment of error.

CONCLUSION

¶ 16. For the foregoing reasons, we find that Fairley’s assignments of error are without merit. Therefore, the judgment of the trial court is affirmed.

¶ 17. AFFIRMED.

WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. DIAZ, J., NOT PARTICIPATING.

EASLEY, Justice,

concurring in result:

¶ 18. I respectfully disagree with the majority’s view that Fairley’s letter did not substantially comply with the notice provision of Miss.Code Ann. § 11-46-11(2). Furthermore, the letter in Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss. 1998), submitted to meet the notice provision of the MTCA as prescribed by Miss. Code Ann. § 11-46-11 is virtually identical to the letter provided by Fairley’s attorney to the Board in the case sub judiee. In Reaves, we found that the letter substantially complied. Based on the similarity of the facts of Reaves to the case at bar, I must disagree with the majority’s conclusion. Reaves, 729 So.2d at 1238. I believe that the majority is losing sight of prior case law which no longer requires strict compliance and the fact that these are simple requirements to place the appropriate parties on notice of a claim.

¶ 19. Miss.Code Ann. § 11-46-11(2) states:

(2) Every notice of claim required by subsection (1) of this section shall be in writing, and shall be delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.
I. The Letters
¶ 20. The majority opinion fails to recognize that the facts here and in Reaves are almost identical. In a side by side comparison, Fairley’s attorney Gia Nicole Eubanks, sent the following letter dated June 19, 1996, addressed to the Board:
RE: My Client: Evelyn Fairley
Date of Acc: 05/30/96
Nature: Single motor vehicle accident on River Road in George County, Mississippi — gravel in the road
Please be advised that this firm represents Ms. Fairley with regard to personal injuries and/or property damaged she sustained in the above referenced accident on May 30,1996.
Please forward this letter to your liability insurance company so that the adjuster handling this matter may be in contact with me as soon as possible. In the event that you do not have liability insurance to cover this accident, contact me immediately to discuss your intentions in this matter.

I look forward to hearing from you in the near future, /s/ Gia Nicole Eubanks (emphasis added). In Reaves, the letter sent to the Superintendent by Reaves’s attorney provided:

I have been retained by Rebecca Lou Rouse to represent her daughter, Ashley Renee Reaves, with regard to injuries and damages arising and growing out of a bicycle/motor vehicle accident which occurred on 2/18/96 at approximately 1:30 p.m. on the grounds of Davis School. It would be greatly appreciated if you would have your insurance carrier contact me regarding adjustment of this claim, /s/ Preston Davis Rideout, Jr.

Id.

II. Delivery

A. Fairley

¶21. In the case sub judice, Board president/chairman Christian testified at his deposition taken on November 10, 1997, that Eubanks’s letter regarding Fairley’s accident was handed to him, and he read the letter. Board member Orville H. Cochran (Cochran) also testified in his deposition taken on November 10, 1997, that Christian made him aware of Fairley’s claims regarding her accident that occurred in May 1996. Cochran also stated that the normal procedure for handling the mail was for the purchasing agent to open all correspondence addressed to the Board and give it to the Board President unless specially addressed to one of the other Board members. He also then testified that the County had recently sanded the road at River Road around May 30, 1996.

¶ 22. The Board’s comptroller, Ricky E. Churchwell (Churchwell), in his deposition stated that he was the initial point of contact with the Board’s insurance company once he was made aware of Fair-ley’s accident. At his deposition, Church-well produced Eubanks’s letter that he had received from the Board. Church-well verified that he had sent a facsimile transmission to Jerald Delany at the Board’s insurance company, Titan Indemnity Insurance Company, dated July 3, 1996, on the Board’s letterhead informing them of Fairley’s potential claim and Eu-banks’s representation. Churchwell testified that Board member Cochran informed him of Fairley’s accident and that a claim probably needed to by filed. Churchwell also testified that he dealt with Kristie Henderson (Henderson).

¶23. In Henderson’s deposition, she testified that in her capacity as an insurance adjuster for associated adjusters that she had conversations with Churchwell and Cochran as to Failiey’s pending case. She also discussed the details of Eubanks’s letter with Churchwell and Cochran.

¶ 24. In Eubanks’s affidavit, she stated that she had numerous telephone conversations with the County’s adjuster, Henderson. According to Eubanks’s affidavit, Henderson took a taped statement from Fairley on August 19, 1996, concerning the accident on May 30,1996.

¶ 25. This Court only requires substantial compliance with the notice provisions of the MTCA having abolished the requirement of strict compliance. This Court in City of Pascagoula v. Tomlinson, 741 So.2d 224, 225 (Miss.1999), stated:

In Reaves v. Randall, 729 So.2d 1237 (Miss.1998), this Court adopted a “substantial compliance” scheme, holding that “(w)hen the simple requirements of the Act have been substantially complied with, jurisdiction will attach for the purposes of the Act.” In Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999), this Court approvingly cited the Indiana case of Collier v. Prater, 544 N.E.2d 497, 498 (Ind.1989) for the proposition that:
[N]otice is sufficient if it substantially complies with the content requirements of the statute. What constitutes substantial compliance, while not a question of fact but one of law, is a fact-sensitive determination. In general, a notice that is filed within the [requisite] period, informs the municipality of the claimant’s intent to make a claim and contains sufficient information which reasonable affords the municipality an opportunity to promptly investigate the claim satisfies the purpose of the statute and will be held to substantially comply with it.
Shubuta, at 263.

B. Reaves

¶ 26. Following the letter sent by Reaves’s attorney, an adjuster conducted an interview of Reaves and Rouse. Depositions of several witnesses were also taken. 729 So.2d at 1238. Reaves admitted that the notice letter did not meet the strict construction of Miss.Code Ann. § 11-46-11. However, Reaves contended that “the deficiencies in the notice were waived or cured by either the insurance adjuster’s investigation and rejection of the claim or the participation of the appel-lees in discovery.” Id.

¶ 27. In Reaves this Court, by finding that the letter substantially complied with the notice provision, rejected strict compliance as set forth in City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss.1997), and Carpenter v. Dawson, 701 So.2d 806 (Miss. 1997). The Court concluded:

The Mississippi Tort Claims Act stands in contrast to the old common law principle of sovereign immunity where an injured party was barred from recovery against a political subdivision. The Act was adopted to reduce the harsh effect of the common law. We have held that statutes such as this should be read reasonably. See Bowen v. Flaherty, 601 So.2d 860 (Miss.1992). A letter of notice to the chief executive officer of the governmental entity is the only means the legislature prescribed through which sovereign immunity may be reached. However, the Act leaves the term “chief executive officer of the governmental entity” undefined. This language has proved overly broad and likely has created much hardship. In order to give reasonable meaning to the statute, we hold today that this term may be read to include any of the following: president of the board, chairman of the board, any board member, or such other person employed in an executive capacity by a board or commission who can be reasonably expected to notify the governmental entity of its potential liability. The purpose of the Act is to insure that governmental boards, commissions, and agencies are informed of claims against them. Such notice encourages entities to take corrective action as soon as possible when necessary; encourages pre-litigation settlement of claims; and encourages more responsibility by these agencies.
When the simple requirements of the Act have been substantially complied with, jurisdiction will attach for the purpose of the Act. In this case, we find that Reaves substantially complied with the notice provisions of the Act. Her notice letter, sent to Superintendent Stevenson, lists the persons involved in the accident, when the accident occurred, where the accident occurred, and what vehicles were involved. Superintendent Stevenson is employed in an executive capacity by the school board and through this letter the board was put on notice of the claim. The board had a duty to inquire into the details of the claim.
In order to carry out the legislative purpose of providing relief to injured citizens, we hold that substantial compliance with the notice provisions of the Act is sufficient.

Reaves, 729 So.2d at 1240 (emphasis added).

¶ 28. Clearly, both Reaves and Fairley sent written notice as evidenced by their letters. In addition, both satisfied the delivery, via mail or hand delivery, requirement. In Reaves, the attorney sent the letter to the Superintendent while Fairley sent her letter to the Board. In Reaves, this Court held that “chief executive officer” may include the “president of the board, chairman of the board, any board member, or such other person employed in an executive capacity by a board or commission who can be reasonably expected to notify the governmental entity of its potential liability.” Reaves, 729 So.2d at 1240.

III. Other Factors

¶ 29. In addition to the written notice was in writing delivered to the Superintendent in Reaves and to the Board by Fair-ley, there are a number of other requirements that were met in both the case sub judice and in Reaves. Looking at the two letters together, it is clear that both contain a short and plain statement of the facts under which the claim is based. Breaking this down further, both cases stated (1) the circumstances which brought about the injury: Reaves stated there was “a bicycle/motor vehicle accident” and Fairley stated she received personal injury and property damages in the aforementioned accident (i.e., a single motor vehicle accident and that there was gravel in the road); (2) the extent of the injury: Reaves simply stated there were “injuries and damages arising and growing out of a bicycle/motor vehicle accident”, and Fairley stated there were “personal injuries and/or property damages sustained in the above referenced accident” (i.e., a single motor vehicle accident); (3) the time and place of the injury: Reaves stated that the accident “occurred on 2/18/96 at approximately 1:30 p.m. on the grounds of Davis School” and Fairley stated that she received injuries and damages “in the above referenced accident on May 30, 1996” (i.e., the date of the accident “05/30/96” and the nature of the accident single motor vehicle accident “on River Road in George County, Mississippi”); (4) the names of all persons known to be involved: Reaves stated only that “Ashley Renee Reaves” sustained injuries and Fairley stated that Fairley received injuries and property damage only in the above referenced single motor vehicle accident; (5) the amount of money damages sought: Reaves provides no amount of money damages and simply stated there were “injuries and damages arising and growing out of a bicycle/motor vehicle accident”, likewise Fairley stated there were “personal injuries and/or property damages”; (6) residence of the person making the claim at the time of the injury and at the time of filing the notice: neither Reaves nor Fairley provided their addresses although both were represented by legal counsel whose addresses would be readily available, (emphasis added).

¶ 30. After viewing the two cases side by side and keeping in mind that this Court ruled that Reaves did substantially comply with the notice provision of Miss. Code Ann. § 11-46-11,1 fail to understand how the majority can rule that Fairley did not also substantially comply with the statute. At most Fairley and Reaves may be distinguished by the fact that Fairley failed to state the time of the accident, but did she state the date of the accident. However, in Reaves the only name referenced in a bicycle/motor vehicle accident, which presumably would involve at least two people, the cyclist and the vehicle driver, was Ashley Renee Reaves, whereas, Fairley only referenced herself in the letter which presumably is correct since it was a single vehicle accident due to gravel on the road. The point of citing these perhaps arguable distinctions, weak as they are, is that even if Fairley failed to state the time, which I believe is less important given the fact that the date and place of the accident is supplied by Fair-ley, Reaves failed to supply as much information as Fairley in other areas yet this Court ruled that the Reaves letter substantially complied with the statute.

¶ 31. Indeed this Court has ruled on the issue of substantial compliance in many cases. See Powell v. City of Pascagoula, 752 So.2d 999 (Miss.1999) (motorist’s failure to include her address and service of notice on city clerk instead of the mayor or city manager substantially complied); Thornburg v. Magnolia Reg'l Health Ctr., 741 So.2d 220, 222-24 (Miss. 1999) (plaintiff substantially complied even though she failed to include her address in letter, but did include the address of the attorney handling the claim, and the opposing party “could have presumably obtained the information regarding Thorn-burg’s residence by conducting a brief investigation”); McNair v. Univ. of Miss. Med. Ctr., 742 So.2d 1078 (Miss.1999) (notice letter sent via United States mail instead of certified or by hand delivered mail substantially complied).

¶ 32. In Thornburg, 741 So.2d at 222-24, this Court addressed two notice deficiencies that are also present in the case at bar. Magnolia argued that Thornburg’s notice was defective because it failed to include Thornburg’s residence either at the time of the injury or at the time of filing the notice as required by Miss.Code Ann. § 11-46-11(2). This Court held that:

It is apparent, however, that the scheme of substantial compliance adopted by this Court in Reaves and Catr does not require that a plaintiff substantially comply with each informational notice requirement set forth in the Tort Claims Act. As noted earlier, this Court held in Catr that “(i)n general, a notice that is filed within the [requisite] period, informs the municipality of the claimant’s intent to make a claim and contains sufficient information which reasonable affords the municipality an opportunity to promptly investigate the claim satisfies the purpose of the statute and will be held to substantially comply with it.” Carr, at 263.
This Court concludes that, notwithstanding Thornburg’s failure to include her address in her letter, her notice letter nevertheless informed Magnolia of the substance of her claim and provided Magnolia with sufficient information to conduct a proper investigation. Thorn-burg’s letter explained in depth the nature of the incident which allegedly gave rise to her injuries, and the letter clearly set forth the claimed damages resulting therefrom. Also, the letter provided the address of the attorney handling the claim, and Magnolia could have presumably obtained the information regarding Thornburg’s residence by conducting a brief investigation. This argument is without merit.

741 So.2d at 222-23.

¶ 33. Here, as in Thornburg and Reaves, the letter sent contained the mailing address of Fairley’s attorney. In fact, the insurance adjuster conducted numerous conversations with Fairley’s attorney and took a taped interview with Fairley. Obviously, this deficiency did not prevent Fairley from being contacted to investigate the claim. Fairley’s letter, like that of Reaves, informed the opposing party about the “substance” of her claim and gave “sufficient” information to conduct a proper investigation. Thornburg, 741 So.2d at 222-23.

¶ 34. Magnolia further alleged that the notice was deficient in that it was sent by first class mail rather than being delivered in person or by registered or certified United States mail as required by Miss. Code Ann. § 11-46-11(2). This Court held that:

Magnolia’s final argument is that Thorn-burg’s notice was deficient in that it was sent by first class mail rather than by being “delivered in person or by registered or certified United States mail,” as required by § 11-46-11(2). The present issue has not been addressed by a prior decision of this Court and it is clear that the present case involves a technical violation of § 11-46-11(2). We conclude however, that, a failure to comply with this provision should not, as a matter of law, serve as a bias for dismissing a lawsuit. We hold that, in cases in which notice is sent by first class mail, a governmental entity must demonstrate actual prejudice resulting from the failure to comply with the “registered or certified mail” requirement in order to be entitled to a dismissal on this basis.

Thornburg, 741 So.2d at 222-23.

¶ 35. Since board chairman Christian, board member Cochran, and board comptroller Churchwell, all acknowledged that they received Fairley’s letter sent by her attorney and forwarded it to their insurance company, the Board has not established that it was prejudiced by the fact that the letter was sent by first class mail.

¶ 36. Based on the previously cited line of cases handed down by this Court which addressed substantial compliance and not losing sight of the fact that the statute is intended to put a party on notice of a claim, I disagree with the majority’s holding that Fairley did not substantially comply with the notice of claim provisions of Miss.Code Ann. § 11-46-11.

IV. Summary Judgment

¶ 37. Since I disagree with the majority’s finding on the notice requirement, I will address why I concur with the trial court’s decision to grant summary judgment which was proper on the grounds of sovereign immunity not on the notice requirement. Fairley contends that the trial court erred in ruling that the maintenance of roads is a discretionary function for which sovereign immunity had not been waived by the county. Fairley argues that due to the loose gravel on the county road the Board had a duty to warn Fairley of the hazard on the road. Fairley cites Jones v. Miss. Dep’t of Transp., 744 So.2d 256 (Miss.1999), in support of her position. In Jones, this Court reversed the Circuit Court of Tunica County holding that the placement of traffic control devices was a discretionary act but the County, as well as the Mississippi Department of Transportation, had a duty to warn of a dangerous condition created by the intersection if they had notice of the danger. Id. at 258. Jones was injured in an one-vehicle accident while traveling as a passenger on Bowden Lost Lake Road in Tunica County. There was no stop sign at the end of Bowden Lost Lake Road nor were there any traffic control signs warning oncoming traffic that they were approaching a “T” intersection. Id.

¶ 38. Here, the trial court relied on Coplin v. Francis, 631 So.2d 752 (Miss. 1994) and Webb v. County of Lincoln, 536 So.2d 1356 (Miss.1988), in determining that sovereign immunity had not been waived under the MTCA. In Coplin, this Court held that:

Boards of supervisors are vested with full jurisdiction over the roads, bridges and ferries in their respective counties. Miss.Code Ann. § 19-3-41 (1972). We long have maintained that a county has no liability except as authorized by statute. Leflore County v. Big Sand Drainage District, 383 So.2d 501 (Miss.1980). In Webb v. County of Lincoln, 536 So.2d 1356, 1359 (Miss.1988) and State for the Use and Benefit of Brazeale v. Lewis, 498 So.2d 321, 323 (Miss.1986), we recognized that Miss.Code Ann. § 19-13-51 partially abrogates the immunity of boards of supervisors in their capacity as “overseers” of a county’s roads and bridges. However, in Lewis, we noted that the statute
does in fact, reinforce the discretionary-ministerial distinction by allowing the board as a whole the authority to make discretionary decisions with regard to the general condition and state of maintenance of county roads and bridges, thus leaving intact the board’s qualified immunity for such decisions.
Id. at 323. In finding that road maintenance and repair are discretionary rather than ministerial functions, we stated in Leiois:
Assuming arguendo that an individual member of the board of supervisors has a ministerial duty or function to maintain the roads of his district, we recognize that, for various reasons, at least some roads may be in a state of disrepair from time to time, particularly due to lack of funds, which would of course, require that the main, heavily-traveled roads receive the supervisor’s immediate attention. Certainly, making the determination as to which roads should be the better maintained under such conditions would be a discretionary matter with the individual member of the board, absent some personal tort committed by him.

Id. at 323.

In Lewis the plaintiff alleged that her injuries were caused by “numerous holes, indentations, and rough spots along the road which culminated in creating a hazardous condition.” Id. at 321-322, and in Webb we relied on Lewis to find that the repair of a fallen stop sign, which the plaintiffs alleged caused the one-car accident in which they were injured, was also a discretionary function.

Coplin, 631 So.2d at 754-55 (citing Webb, 536 So.2d at 1359).

¶ 39. Recently this Court addressed whether the MDOT had immunity under the MTCA pursuant to Miss.Code Ann. § 11-46-9. See Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258 (Miss.2003). In Cargile the Court stated that:

MDOT claims to have exercised reasonable care in maintaining the portion of Highway 528 where the accident took place. MDOT offered the testimony of Thornton who stated that he inspected the road weekly. Thornton testified that the week before the accident his inspection revealed only minor defects which he did not consider dangerous or in need of immediate repair. Finally, MDOT maintains that there was no objection to the evidence that there was a subsequent overlay of this highway because such overlay was not a remedial measure with respect to this accident.
Cargile insists that the trial court was correct in ruling that MDOT was not entitled to immunity under Miss.Code Ann. § 11-46-9. He argues that the act was not discretionary and alternatively that immunity was lost when MDOT received notice of the dangerous condition. Cargile cites Miss.Code Ann. § 65-1-65 (Rev.2001) as providing the ministerial duty of the maintenance of state highways:
It shall be the duty of the State Highway Commission to have the State Highway Department maintain all highways which have been or which may be hereafter taken over by the State Highway Department for maintenance in such a way as to afford convenient, comfortable, and economic use thereof by the public at all times. To this end it shall be the duty of the director, subject to the rules, regulations and orders of the commission as spread on its minutes, to organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained state highway system, so that said highways may be kept under proper maintenance and repair at all times.
Id.
The Mississippi Tort Claims Act provides the exclusive remedy for a party injured by a governmental entity’s tor-tious acts or omissions. City of Tupelo v. Martin, 747 So.2d 822, 826 (Miss. 1999). The relevant statute, Miss.Code Ann. § 11-46-7(1)(b), states that “a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim arising our of any act of omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution” Id. Alternatively, Miss.Code Ann: § 11-46-9(l)(q) provides that “a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim arising out of an injury solely by the effect of weather conditions and the use of streets and highways.” Id.
As before, Jones v. Mississippi Department of Transportation, 744 So.2d 256, 263 (Miss.1999), aids in our present explanation. The Tort Claims Act does not define “discretion.” Id. at 259. Pri- or to abolishment of judicially created sovereign immunity in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), this Court used two tests to determine immunity. The governmental/proprietary function test was used to determine whether a municipality was entitled to immunity. Jones, 744 So.2d at 259. In Parker v. City of Philadelphia, 725 So.2d 782, 784 (Miss.1998), we explained that:
Under pre Pruett common law, whether a city “enjoys the defense of sovereign immunity depends on whether the alleged conduct occurred in the exercise of a governmental function or in the exercise of a proprietary function.” Morgan v. City of Ruleville, 627 So.2d 275, 279 (Miss.1993); Webb v. Jackson, 583 So.2d 946, 952 (Miss. 1991) A city performing a governmental function is immune from a negligence suit, whereas a city performing a proprietary function is not immune from a negligence suit. Morgan, 627 So.2d at 279; Webb, 583 So.2d at 952.
Parker, 725 So.2d at 784 (quoting Hord v. City of Yazoo City, 702 So.2d 121, 123 (Miss.1997).
However, this test is not applicable to the state and its political subdivisions. Jones, 744 So.2d at 259. See also Stokes v. Kemper County Bd. of Supervisors, 691 So.2d 391, 393 (Miss.1997); Miss. Transp. Comm’n v. Rector, 663 So.2d 601, 602 (Miss.1995).
At common law, this Court utilized the discretionary/ministerial test to determine the immunity status of a governmental employee. Jones, 744 So.2d at 259. Governmental employees are entitled to qualified immunity for discretionary acts. Id. Under Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss. 1996), a duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee’s judgment. Jones, 744 So.2d at 259-60 (citing Mohundro, 675 So.2d at 853; L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136 (Miss.1999). See also Barrett v. Miller, 599 So.2d 559, 567 (Miss.1992). The classic definition is found in Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935), where this Court stated:
[t]he most important criterion, is that [if] the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion, the act and discharge thereof is ministerial.
See Coplin v. Francis, 631 So.2d 752, 754 (Miss.1994) (quoting Poyner, 171 Miss, at 865, 158 So. at 923). See also Barrett v. Miller, 599 So.2d at 567; McFadden v. State, 542 So.2d 871, 877 (Miss.1989); Region VII, Mental-Health Mental Retardation Ctr. v. Isaac, 523 So.2d 1013 (Miss.1988).
In Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), we said that the Legislature has “specifically limited the liability of governmental officials to ministerial functions alone, allowing those state employees to continue their basic policymaking decisions without fear of legal retribution.” Id. See also Givens, 754 So.2d at 1223.
We have further clarified the distinction as by defining it as directly correlated to the grant of immunity from negligent acts or omissions. State ex rel. Brazeale v. Lewis, 498 So.2d 321, 322 (Miss.1986). The basis for the immunity given to government officials is in the inherent need to promote efficient and timely decision-making without fear of liability. Id. This distinction is an integral part of the justice system and works to encourage free participation and hinder fear that goes with risk-taking situations and the exercise of sound judgment. Id.
In Brazeale, the plaintiff sued a member of the board of supervisors alleging negligent repair and maintenance of a county road for injuries and damages which she alleged were proximately caused by the condition of the road. Id. She alleged there were numerous holes, indentations and rough spots along the road creating a hazardous condition that caused her accident. Id. at 322. Relevant in the case sub judice, the Court stated that:
[i]f an individual had a ministerial duty or function to maintain the roads of his district, we recognize that, for various reasons, at least some of the roads may be in a state of disrepair from time to time, particularly because of the lack of funds, which would, of course, require that the main heavily traveled roads receive the supervisor’s immediate attention ... Certainly making the determination as to which roads should be the better maintained under such conditions would be a discretionary matter with the individual, absent some personal tort committed by him
Id. at 323.
At common law, prior to the enactment of § ll-46-l(w), upon receipt of notice, a governmental entity had a duty to warn of a dangerous condition. Jones, 744 So.2d at 260 (citing Coplin, 631 So.2d at 755). We have held that even where actions are deemed to be discretionary, rather than ministerial, the question may remain whether the public was afforded adequate warnings of the dangerous condition. Id. at 260. Miss Code Ann. § 11-46-9 requires the actor to exercise a minimum standard of ordinary care to maintain the statutory shield. Id. As in Jones, MDOT has a duty to warn of dangerous conditions if given notice, either actual or constructive, of a dangerous condition. 744 So.2d at 260. MDOT’s duty becomes one of ordinary care in warning and/or providing relief from the dangerous condition to those who use the roads. Id. As previously stated, immunity for discretionary duties is granted only when ordinary care is used. See Brewer v. Burdette, 768 So.2d 920, 923 (Miss.2000); L.W., 754 So.2d at 1142. The government actor’s use of ordinary care is a question for the finder of fact. Brewer, 768 So.2d at 923; L.W., 754 So.2d at 1142.
In Brewer we held that road maintenance and repair are discretionary acts. Id. (citing Mohundro, 675 So.2d at 854). Using all of the relevant facts, the trial court is charged with deciding whether the decision maker used ordinary care. Id at 923 (citing L.W., 754 So.2d at 1141).
In Mohundro, Dixon, an Alcorn County supervisor, failed to use the requisite ordinary care when performing his job of inspecting and maintaining the county roads. 675 So.2d at 848. The supervisor personally observed a large washout in the middle of the county road on Sunday. Id. at 850. He ordered another county employee to place yellow warning signs on the road to the north and south of the washout. Id. The signs were not lit. Id. Furthermore, they were scarcely anchored in place. Id. Although Dixon was worried that someone might drive into the washout and made several trips to the scene, he took no other action. Id. He intended to fix it on Monday. Id.
Mohundro drove his truck into the washout early Monday morning. Id. The darkness and rain prevented him from seeing the pit. Id. Mohundro suffered catastrophic injuries which rendered him a quadriplegic. Id
Even though he was aware of the dangerous condition, by the time Mo-hundro drove into the pit Monday morning Dixon had still made no effort to warn the public. Id at 854. We held that Dixon acted with such gross negligence and/or callous indifference to the safety of the public as a whole his conduct was held to be constructively intentional. Id Dixon was not entitled to immunity. Id. at 854 (citing McFadden v. State, 542 So.2d 871 (Miss.1989)).
Here, the trial court correctly found MDOT’s duty to regularly inspect and maintain Highway 528 to be discretionary. As previously stated, even where actions are deemed to be discretionary, rather than ministerial, the question in this case was whether the public was afforded adequate warnings of the dangerous condition. Miss.Code Ann. § 11-46-9 requires MDOT to exercise a minimum standard of ordinary care to maintain the statutory shield. As in Jones, MDOT has a duty to warn of dangerous conditions if given notice, either actual or constructive, of a dangerous condition. MDOT’s duty became one of ordinary care in warning and/or providing relief from the dangerous condition to those who use the roads. Immunity for discretionary duties is granted only when ordinary care is used. See Breiver v. Bv/rdette, 768 So.2d at 920; L.W., 754 So.2d at 1142.

Cargile, 847 So.2d at 266-69.

¶ 40. Based on the record, Fairley presented no evidence that the Board should have known that a dangerous condition existed. Therefore, I would affirm the trial court’s ruling that the maintenance of the roads is a discretionary function for which the County’s sovereign immunity had not been waived.

Y. Conclusion

¶ 41. For the above and foregoing reasons, I conclude that the trial court erred in finding that Fairley did not substantially comply with the notice provisions of Miss. Code Ann. § 11-46-11. However, I believe that the trial court correctly ruled that sovereign immunity had not been waived for the discretionary act of maintaining the roads.

¶ 42. For the foregoing reasons, I do not concur with the majority opinion as to summary judgment based on the notice requirement. However, I concur that summary judgment was proper as to sovereign immunity.

GRAVES, J., joins this opinion.

      . At the time the trial court considered Fair-ley I, strict compliance with the notice provisions of the MTCA was necessary to provide adequate notice. On December 31, 1998, this Court changed the notice standard to substantial compliance with the MTCA in Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss. 1998).

      . This first sentence is part of the short and plain statement of the facts. Of great significance to this statement is the language pertaining to "the above referenced accident” which of course is plainly stated in the regards section directly above the first sentence beginning with "Please be advised....” This referenced section stated that the client is Fairley, the date of the accident was May 30, 1996, and the nature of the accident was a "[sjingle motor vehicle accident on River Road in George County, Mississippi — gravel in the road.”


source: Caselaw Access Project

author: SMITH, Chief Justice, for the Court.

license: Public Domain

text:
    Steve JASPER v. STATE of Mississippi.
    No. 2002-CT-00317-SCT.
    Supreme Court of Mississippi.
    April 29, 2004.
    Leslie D. Roussell, Collins, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   SMITH, Chief Justice, for the Court.

¶ 1. Steve Jasper was convicted in the Circuit Court of Wayne County of felony shoplifting and sentenced as a habitual offender to five years in the custody of the Mississippi Department of Corrections. Jasper appealed, and the Court of Appeals affirmed. Jasper v. State, 858 So.2d 149 (Miss.Ct.App.2003). Jasper filed his petition for writ of certiorari asserting that the Court of Appeals “side-stepped” the issues raised in his direct appeal, and this Court granted certiorari.

¶2. The claim of error in sentencing Jasper as a habitual offender and the claim of error in denying Jasper’s request for a lesser included jury instruction have no merit, and this Court will not address those issues. Only Issue II of Jasper’s claims merits discussion here. The trial court erred in admitting the testimony of a jailer who overheard remarks made between Jasper and his attorney and the district attorney in the course of plea negotiations. However, we find the error to be harmless under the facts of this case.

FACTS AND PROCEDURAL HISTORY

¶ 3. The following facts are taken from the Court of Appeals’ opinion:

On April 10, 2001, Jasper entered Hutto Furniture in Waynesboro. Jasper looked around the furniture store at various items. One of the employees asked Jasper if he needed assistance. According to Mr. Hutto, owner of the store, Jasper was the only individual in the store besides the employees.
Mr. Hutto and the employees “heard some racket, like something had jarred the door.” The buzzer sounded on the door. Jasper was no longer in the store. One of the employees noticed a red Grand Am had pulled out of the parking area next to the store. Mr. Hutto indicated that while looking outside the store, he and one of the employees noticed that “part of the mounting brackets and all of the air conditioner was on the side walk. At that time we realized that — and then we looked and seen the air conditioner was gone.” The mounting brackets were located on the sidewalk just outside the door. Mr. Hutto and one of the employees saw the vehicle leaving the parking area and followed it. Mr. Hutto followed the vehicle to the parking lot of the local Wal-Mart and called the sheriffs department which put him through to the police department.
The occupants of the vehicle came out of Wal-Mart, got in the vehicle and left. Mr. Hutto was on his cell phone with the dispatcher giving information regarding the vehicle’s direction of travel. Officer Robert Owen of the Waynesboro Police Department was directed to the area and pulled the vehicle over, with Jasper the driver.
Officer Owen testified that “[w]hen I got the vehicle stopped, as I was getting out and walking up to the vehicle, the driver stepped out of the vehicle and began walking back toward me. I asked him for his driver’s license and identification. He didn’t have any. He gave me a name of Steve Jasper and said that he did not have a driver’s license. And at the time, I placed him under arrest for driving without a driver’s license.” Officer Owen, along with other officers on the scene, did an impound inventory of the vehicle prior to it being towed. Officer Owen indicated that “there was a GE air conditioner in the trunk of the vehicle.” While at the scene, Mr. Hutto looked at the air conditioner and indicated that he thought it was one of his air conditioners missing from the display shelf. Officer Owen photographed the air conditioner at the scene, both in the trunk of the vehicle and after it was removed from the vehicle and turned it back over to Mr. Hutto.
Mr. Hutto testified that once he took the air conditioner back to the store, he confirmed the serial number and model number off that air-conditioner with the store’s records. He indicated that the information matched. Mr. Hutto stated that the price of this particular GE air conditioner was $379.

Jasper, 858 So.2d at 150-51.

ANALYSIS

I. Whether the Trial Court Erred by Allowing Deputy Kevin Stevens to Give Testimony Regarding Privileged Information.

¶ 4. The admission of Stevens’s testimony was error; however, the evidence was more than sufficient for conviction without that testimony.' Therefore, in view of our case law in this area, the admission of the testimony was harmless error.

¶ 5. At trial, the State called Deputy Kevin Stevens to testify that he heard Jasper say that the air conditioner that he had stolen was not worth more than $250.00. Jasper objected to this testimony because the comment was overheard during plea negotiations, at the time when Deputy Stevens’s presence was not known or expected. Jasper cites Evans v. State, 725 So.2d 613 (Miss.1997), and M.R.E. 410 for the proposition that that this statement was a communication made by a client to an attorney and District Attorney during plea negotiations and, as such, was not admissible.

¶ 6. The only evidence in the record with regard to this testimony is the trial transcript and the defense counsel’s objection to Stevens as a witness. Stevens testified that he believed the parties were discussing a plea petition when he entered the courtroom and overheard the remark. Jasper also testified that he was discussing and considering a plea agreement at the time this comment was overheard. The District Attorney claimed not to remember engaging in a plea negotiation with Jasper on that day.

¶ 7. As Jasper correctly argues, a statement made during plea negotiations is privileged and its admission is prohibited by M.R.E. 410(4), which provides, in pertinent part:

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussion:
(4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty later withdrawn.

This Court has held that statements made by the defendant during plea negotiations are inadmissible where the following two-tiered analysis is satisfied: the accused exhibits an actual subjective expectation to negotiate a plea at the time of the discussion, and; where the accused’s expectation was reasonable given the totality of the circumstances. Barnett v. State, 725 So.2d 797, 800 (Miss.1998); Evans v. State, 725 So.2d at 640.

¶ 8. The trial court erred in allowing Stevens to testify about what he overheard in a discussion between the defendant, defense counsel and the District Attorney. The testimony of both Jasper and Stevens indicates that both men believed that the parties were engaged in plea negotiations at the time that the remark was overheard. The District Attorney could not remember. In finding the testimony admissible, the trial court and the Court of Appeals appear to rely on the fact that Jasper was not making the remark directly to Stevens or in response to a question by Stevens. However, this is not the correct analysis of admissibility under our case law.

¶ 9. The admission of Stevens’s testimony as to what he overheard when Jasper, his attorney and the prosecutor were engaged in plea negotiations was error and, arguably, violates Jasper’s constitutional right to a fair trial. In that regard, reversal of the conviction is required unless the Court determines that the error was harmless. Hoover v. State, 552 So.2d 834, 840 (Miss.1989). In Hoover, the exclusion of a prior inconsistent statement sought to be admitted by the defendant was found to be an error “harmless beyond a reasonable doubt.” Id. at 841. The U.S. Supreme Court established the determination of harmless error for violations of constitutional rights, holding that “the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967) (citing Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963)). The error in Chapman involved the prosecution’s comments on the defendant’s failure to testify, and the Court declined to find the error harmless, holding that the State failed to demonstrate that the prosecution’s comments did not contribute to the conviction. The Court noted that such violations of fundamental rights as denial of right to counsel and introduction of a coerced confession are not harmless errors. 386 U.S. at 26, 87 S.Ct. 824.

¶ 10. Under the facts of this case it is certainly reasonable and more probable that Jasper would have been convicted despite Stevens’s testimony where the air conditioner was found in the trunk of his car only minutes after it was taken from Hutto’s. We hold that the trial court should have excluded Stevens’s testimony; however, we find, beyond a reasonable doubt, that the evidence was sufficient for conviction without that testimony. Therefore, the admission of the testimony was harmless error.

CONCLUSION

¶ 11. The trial court erred in admitting the testimony of a jailer who overheard remarks made between Jasper and his attorney and the District Attorney in the course of plea negotiations. However, other evidence was sufficient for conviction without that testimony and the admission of the testimony was harmless error. Jasper’s other issues are not addressed as the claim of error in sentencing Jasper as a habitual offender and the claim of error in denying Jasper’s request for a lesser-included offense jury instruction have no merit. Therefore, the judgments of the Court of Appeals and the circuit court are affirmed.

¶ 12. AFFIRMED.

WALLER AND COBB, P. JJ., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Jasper also asserts that he did not say that he had stolen an air-conditioner of lesser value- — but, instead that the air-conditioner found in his trunk that day was a 5,000 BTU unit rather than an 8,000 BTU unit, as the indictment charges.


text:
    Samuel ADKINS, Individually and on Behalf of the Statutory Wrongful Death Beneficiaries of Linda Kay Adkins, Deceased v. Curren J. SANDERS, M.D., and Sanders Clinic for Women, P.A.
    No. 2000-CT-01885-SCT.
    Supreme Court of Mississippi.
    April 29, 2004.

      Bo Russell, William B. Gill, III, Jackson, Richard Massie, Martin Donna S. Cummings, attorneys for appellants.
    Donna M. Barnes, L.F. Sams, Jr., Flo-wood, John G. Wheeler, Tupelo, attorneys for appellees.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice, for the Court.

¶ 1. After the death of his wife, Linda Kay Adkins, Samuel Adkins, individually and on behalf of Linda’s wrongful death beneficiaries (“Adkins”), filed this medical malpractice action in the Circuit Court of Lee County, Mississippi, against defendants Curren J. Sanders, M.D., Sanders Clinic for Women P.A., and North Mississippi Medical Center. After a trial, the jury returned a verdict in favor of the defendants, and judgment was entered accordingly. Adkins appealed claiming the trial court committed reversible error in denying plaintiffs jury instruction P-21 on the applicable standard of care. Moreover, Adkins asserted that the trial court committed reversible error in refusing to excuse Juror No. 22, a patient of the defendant, for cause. The Court of Appeals reversed and remanded the case. The defendants filed a petition for writ of cer-tiorari claiming the Court of Appeals improperly found the trial court in error with regards to the refusal of the jury instruction and the refusal to excuse Juror No. 22. We agree and find that the trial court did not commit reversible error in denying plaintiff’s jury instruction regarding the applicable standard of care. Nor did the trial judge commit reversible error in refusing to excuse Juror No. 22. Accordingly, we reverse the judgment of the Court of Appeals, and we affirm the trial court’s judgment.

FACTS

¶ 2. In 1991, Linda Kay Adkins (“Linda”) was diagnosed with lupus by Dr. Jean Gispen in Oxford, Mississippi. In 1993, Linda and her husband Sam Adkins discovered they were expecting their first child. Dr. Curren J. Sanders (“Dr. Sanders”), her obstetrician-gynecologist, knew of her coñdition. Dr. Sanders assured Linda that her lupus would not cause a problem with her pregnancy.

¶ 3. On March 31, 1994, Linda was placed in North Mississippi Medical Center (“NMMC”) to undergo a caesarian section. Linda gave birth to a son, Logan Adkins. Following the birth, Linda began experiencing fever. Dr. Sanders assured Linda that all women experience fever after having a baby. Linda continued to have fevers, chills, and sweats. On April 7, one week after delivery, Linda died.

¶ 4. On October 12, 1995, Adkins timely filed a complaint in the Circuit Court of Lee County. The complaint named as defendants Dr. Sanders, the Sanders Clinic for Women, P.A. (“Sanders Clinic”), and the North Mississippi Medical Center (“NMMC”).

¶ 5. During voir dire at the beginning of the trial, the parties discovered that some of the prospective jurors were either patients of Dr. Sanders or another physician in Sanders Clinic., or had loved ones who had been patients of Dr. Sanders. Juror No. 22 (“No. 22”), Ms. Palmer, stated during voir dire that Dr. Sanders delivered two of her children and that she continues to see him for regular yearly checkups. Other prospective jurors stated that they had ill feelings regarding medical malpractice civil actions since they themselves were in the medical field, or they had loved ones in the medical filed. Adkins was limited to four peremptory challenges under Miss. R. Civ. P. 47(c). Dissatisfied with the potential composition of the jury, Adkins made a general oral motion to remove all “persons who had been ... a patient of the physician, [Dr. Sanders], [or] at least to the extent that someone has had a baby delivered.” The circuit court denied the motion finding that “the record in this case clearly indicate[s] that I have, on my own initiative, excluded those who I considered to have any predisposition one way or the other, including those who said they didn’t believe in this kind of proceeding at all.”

¶ 6. At trial, Adkins submitted jury instruction P-21 (“P-21”), which provided:

When a defendant tells a patient he can achieve a good result thereby claiming he possesses the skill necessary to perform the medical care involved, the standard of care to be applied in this case is that of an rheumatologist rather than a physician having a speciality in obstetrics. Where a defendant admits that he did not possess the training or skill of a rheumatologist but, nevertheless, undertook treatment of a complicated pregnancy which requires special training and skill not possessed by the defendant, the defendant must be held to the standard of care exercised in the field in which he has claimed to be qualified.

During the instruction conference, the defendants objected to P-21 claiming it is “peremptory and does not ... furnish any guidance to the jury as to how it should make a determination in the case.” The circuit court found P-21 was peremptory and refused the instruction. The jury returned a verdict in favor of the defendants, and the trial court entered final judgment accordingly.

¶ 7. Adkins filed a Motion For A New Trial Or, Alternatively, For Judgment Notwithstanding The Verdict. Adkins asserted that it was error to deny the P-21 Jury Instruction and that the trial court erred in allowing Juror No. 22 to sit on the jury. Further, Adkins asserted that “there were at least 75 additional persons who could have served had this baby patient juror been excused for cause.” The circuit court denied the motion.

¶ 8. Adkins timely filed a notice of appeal. The appeal was assigned to the Court of Appeals which reversed and remanded the ease. Adkins v. Sanders, 823 So.2d 550 (Miss.Ct.App.2002). In a 6 to 3 decision the Court of Appeals held that the trial court did not err in granting defendant’s motion in limine; the trial court erred in refusing to grant plaintiffs jury instruction P-21 which held Dr. Sanders to a heightened standard of care; and the trial court erred in allowing Juror No. 22, a patient of Dr. Sanders, to be placed on the jury. On June 4, 2002, the defendants filed a Petition For Writ of Certiorari. Aggrieved by the judgment below, the defendants raise the following issues on appeal:

I. Whether The Court of Appeals Properly Found The Trial Court in Error For Refusing Plaintiffs Jury Instruction No. P-21, Which Sets Out a Heightened Standard of Care For Dr. Sanders.
II. Whether The Court of Appeals Properly Found The Trial Court in Error For Not Removing Juror No. 22, a Patient of Dr. Sanders, From The Jury Panel.

DISCUSSION

I. Standard of Care.

¶ 9. This Court does not review jury instructions in isolation. Jackson v. Daley, 739 So.2d 1031, 1037 (Miss.1999). Rather, we read the instructions as a whole. Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1054 (Miss.2003). We will not find reversible error “where the instructions actually given, when read together as a whole, ‘fairly announce the law of the case and create no injustice.’ ” Id. (quoting Coleman v. State, 697 So.2d 777, 782 (Miss.1997)). If the instructions granted “adequately instruct the jury, a party may not complain of the refused instruction.” Turner v. Temple, 602 So.2d 817, 823 (Miss.1992) (citing Purina Mills, Inc. v. Moak, 575 So.2d 993, 996 (Miss.1990); Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40 (Miss.1989)). Furthermore, the trial court need not charge the jury with an “instruction that ‘incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.’ ” Bolden, 854 So.2d at 1054.

¶ 10. Dr. Sanders claims that the Court of Appeals erred in ruling that the trial court committed reversible error in refusing the plaintiffs jury instruction P-21. Relying on West v. Sanders Clinic for Women, P.A., 661 So.2d 714 (Miss.1995), Dr. Sanders argues that the heightened standard of care contained in instruction P-21 is inapplicable to this case.

¶ 11. “To have an instruction granted the proponent must show that (1) the instruction is supported by the evidence and that (2) the instruction is a correct statement of the law.” Turner, 602 So.2d at 823 (citing Copeland v. City of Jackson, 548 So.2d 970, 973 (Miss.1989); Hill v. Dunaway, 487 So.2d 807, 809 (Miss. 1986); Lewis Grocer Co. v. Williamson, 436 So.2d 1378, 1380 (Miss.1983)). See also West, 661 So.2d at 721. Requested Instruction P-21 provided:

When a defendant tells a patient he can achieve a good result thereby claiming he possesses the skill necessary to perform the medical care involved, the standard of care to be applied in this case is that of a rhuematologist rather than a physician having a speciality in obstetrics. Where a Defendant admits that he did not possess the training or skill of a rheumatologist but, nevertheless, undertook treatment of a complicated pregnancy which requires special training and skill not possessed by the defendant, the defendant must be held to the standard of care exercised in the field in which he has claimed to be qualified.

¶ 12. While the Court of Appeals found that P-21 was identical to a jury instruction previously approved by this Court in Lewis v. Soriano, 374 So.2d 829, 831 (Miss. 1979), we find that our decision in Lewis is inapplicable under the facts presented here. In Lewis, this Court determined whether a physician’s treatment of a patient’s injuries was to be measured by the accepted standard of care of a general family physician or the standard of care of a specialist in orthopedic surgery. Id. at 830. The doctor testified that the patient refused to accept his recommendations to transfer to a qualified orthopedic surgeon which were allegedly made during the first examination and frequently following treatment. The physician admitted that the standard of care was inferior to that of an orthopedic surgeon. Id. However, since he saw no alternative, he undertook and continued treatment. It was uncon-tradicted that the physician’s recommendation was qualified as he represented that he could obtain a good result in treating the patient. Id. at 831.

¶ 13. Since the physician himself said he could achieve “a good result thereby claiming he possesses the skill necessary to perform” the medical care involved, this Court found that recommendation to be qualified rather than unequivocal. Id. (emphasis added). Because of this qualified recommendation, the physician was held to a standard of care expected of an orthopedic surgeon rather than a physician having a specialty in family practice Id. The crucial factor was the physician’s admission “that he did not possess the training or skill” of an orthopedic surgeon “but, nevertheless undertook treatment of a complicated” fracture and dislocation “which requires special training and skill not possessed by the defendant.” Id. (emphasis added).

¶ 14. Unlike the physician in Lewis, Dr. Sanders did not admit that he assumed responsibility as a specialist in another medical discipline, i.e., as Linda’s rheuma-tologist. He did not admit that the care that was given was inferior to the treatment she could have gotten from a specialist. Dr. Sanders did not assure that he could obtain a good result nor did he claim to possess the skills necessary to treat her condition which resulted from lupus. In fact, Dr. Sanders made significant efforts by referrals to other physicians in an effort to determine the nature of Linda’s complications and the appropriate treatments. Further, the issue of whether he undertook treatment of a complicated pregnancy which required special training and skills was an issue for the jury.

¶ 15. This instruction effectively instructs the jury that Dr. Sanders assumed the responsibilities of a rheumatologist and undertook treatment of Linda’s complicated pregnancy without having the necessary special training and skill. We find that proposed instruction P-21 was properly refused because it is peremptory.

¶ 16. Moreover, Plaintiffs instruction P-21 is clearly not supported by the evidence. Dr. Sanders was only responsible for Linda’s obstetrical care and treatment, not treatment related to lupus nor any other rheumatological condition. Dr. Jean Gispen, a rheumatological specialist, remained primarily responsible for such treatment. Her medical records on Linda referred to the lupus as “very well controlled for years.” The record also reveals that Linda declined a follow-up appointment with Dr. Gispen. Instead, with Dr. Gispen’s agreement, Linda chose to keep in touch with her rheumatologist via telephone during the pregnancy. Linda chose this method instead of choosing to follow Dr. Gispen’s recommendation that she come to the rheumatologist’s office for a follow up visit. Although not Dr. Gispen’s “first choice of management,” the doctor said she was “comfortable” with Linda’s choice. She also indicated approval in the decision for Dr. Sanders to be the only physician who would personally see Linda during the pregnancy.

¶ 17. Dr. Sanders saw Linda on Thursday, the day the baby was delivered, and again on Friday. At these times, her postoperative condition was excellent. She showed no signs of a possible lupus flare. He was not “on call” that following weekend. Instead, Dr. White was “on call” and responsible for all of their clime’s patients, including those of Dr. Sanders.

¶ 18. After Dr. Sanders’s visit on Friday and while Dr. White was on call, Dr. White received the report indicating that Linda’s temperature was 101.3. With knowledge of Linda’s smoking habit and the general anesthesia which she received during delivery, he diagnosed the source of the fever as a pulmonary complication common to smokers, not a lupus flare. He prescribed antibiotics for possible infection, Tylenol to reduce the fever, and a urinalysis to check for infection. Linda’s temperature returned to normal.

¶ 19. When Dr. White examined Linda the next day, again, her temperature was normal. The urinalysis report indicated no infection and a normal result. Dr. White reported that, he heard “rales” (or “rattles”) when listening to her lungs a common condition in smokers who have undergone general anesthesia. He encouraged mobility and cessation of smoking. He indicated no need for steroids. He reported no evidence of lupus.

¶ 20. On Sunday, Dr. White examined Linda again. He reported that Tylenol had eliminated the fever. He remarked that he heard fewer rales when listening to her lungs. On Sunday, Dr. White again mentioned no evidence of a lupus flare. From Sunday’s visit until Monday morning when his duties to the patients of the clinic ended, Dr. White received no reports of Linda’s having medical problems or complications.

¶ 21. Dr. Sanders dropped in to see Linda on Sunday. This visit is referred to as a “courtesy visit,” since at that time his responsibility to his patients had been transferred to the doctor on call. Sunday was the first time Dr. Sanders had any knowledge that Linda was not feeling well. During this Sunday courtesy visit, she told him that she did not feel well. He told her that he would call an internist who would examine her for problems associated with the delivery, especially in light of her history with lupus.

¶22. That was the first indication to Dr. Sanders of a possible lupus flare. Even though not on call, Dr. Sanders consulted a specialist immediately upon suspecting any complications related to lupus. Per Dr. Sanders’s request, the internal medicine specialist, Dr. Ken Davis, Dr. Sanders, examined Linda the next day. He reported “no evidence of active disease at this time” and found Linda to be “stable rheumatologieally.” Dr. Davis labeled her fever as “post operative atelectasis.” Dr. Davis encouraged her to follow up with her regular rheumatologist, Dr. Gispen, when she was discharged. He warned Linda “that her rheumatologic condition may change in her post delivery state.” Dr. Sanders referred Linda to Dr. Davis. Dr. Sanders expected that Dr. Davis would assume responsibility for any internal complications from the delivery. Dr. Sanders considered Dr. Davis more specialized and better equipped to treat Linda if he detected signs or symptoms of a lupus flare.

¶ 23. The next day, Dr. Sanders saw Linda again. Linda complained of shortness of breath. Dr. Sanders ordered a chest x-ray, an EKG and a SMA-18 (a chemical profile of her blood). To assure complete and competent diagnosis and treatment, he called in Dr. Ben Moore, a pulmonary specialist, to examine her and treat any problems that he found. He expected that Linda would rely on Dr. Moore for treatment related to pulmonary problems.

¶ 24. Dr. Sanders called Dr. Davis, the internal medicine specialist, a second time after he learned of significant changes in Linda’s EKG. As a precaution, Dr. Davis recommended Linda’s transfer to intensive care. In compliance with that advice, Linda was transferred to intensive care. Dr. Sanders relinquished to Dr. Davis all responsibility for diagnosis and treatment of Linda.

¶ 25. While a patient in the intensive care unit, a cardiologist, a hematologist, a nephrologist and a gastroenterologist, along with Dr. Davis examined and treated Linda. However, in spite of the attention from these physicians who represented a broad range of special knowledge, her condition deteriorated until she died on April 7. In a discharge summary written by Dr. Davis, he reported that Linda had chronic pulmonary hypertension which resulted in renal failure, hepatic failure and irreversible pulmonary disease.

¶ 26. As Linda’s obstetrician, Dr. Sanders never intended to have nor did he assume the responsibility for treatment and management of Linda’s lupus. When finding possible symptoms, he called in and expected that Dr. Davis would become responsible to evaluate and treat Linda for lupus. He referred Linda to -a nephrologist who was to become responsible for the diagnosis and treatment of possible hypertension. The cardiologist was expected to be responsible for evaluating her EKG response and rendering treatment for any associated problems. Further, Dr. Sanders anticipated that the pulmonary specialist would take on all responsibility to detect problems and administer any necessary treatment for conditions related to Linda’s lungs.

¶27. Based on these facts, the trial court properly refused proposed instruction 21 which incorrectly draws an inference that Dr. Sanders breached a heightened duty and the expected rheu-matological standard of care. Instruction 21 would have effectively instructed the jury that Dr. Sanders assumed the responsibilities of a rheumatologist and undertook treatment of Linda’s complicated pregnancy without having the necessary special training and skill. There is insufficient evidence to support this instruction. In fact, the overwhelming evidence, as noted herein, is just the opposite.

¶ 28. Furthermore, the slight, joking remark made by Dr. Sanders to Linda in the delivery room does not justify such an instruction. All parties agree that in light of the close relationship between Linda and Dr. Sanders, the remark was made “jokingly.” Dr. Sanders surely did not intend to assume the duty of Linda’s rheu-matologist in the delivery room. Additionally, the evidence does not indicate any need for rheumatological treatment at that time.

¶ 29. Dr. Sanders should not be held to a standard of care required of a rheuma-tologist simply because he knew about Linda’s lupus when he undertook to treat her during her pregnancy as her obstetrician. His knowledge of a potential lupus flare does not result in his assumption of the rheumatologist’s duties; nor does it raise the standard of care expected of Dr. Sanders to that of such a specialist.

¶ 30. We find that Plaintiffs instruction P-21 is unsupported by evidence and is inappropriate under the law. Therefore, the trial court properly refused this instruction, and the Court of Appeals erred in holding that the trial court should have allowed this instruction.

II. Juror No. 22.

¶ 31. “The selection of jurors is a ‘judgment call peculiarly within the province of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion.’ ” Brown ex rel. Webb v. Blackwood, 697 So.2d 763, 771 (Miss.1997) (quoting Scott v. Ball, 595 So.2d 848, 850 (Miss. 1992)) See also Davis v. State, 660 So.2d 1228, 1258 (Miss.1995). “This Court is required to reverse the trial court when this court clearly is of the opinion that a juror was not competent.” Fleming v. State, 732 So.2d 172, 181 (Miss.1999) (citing Dennis v. State, 91 Miss. 221, 229, 44 So. 825, 826 (1907)).

¶ 32. Dr. Sanders argues that the Court of Appeals adopted a jury selection standard contrary to the authorities pronounced by this Court. He argues that a circuit court’s decisions with regard to jury selection are entitled to great deference and should not be easily disturbed. Dr. Sanders refers this Court to Davis v. State, 660 So.2d 1228 (Miss.1995); Scott v. Ball, 595 So.2d 848, (Miss.1992); Hansen v. State, 592 So.2d 114 (Miss.1991); Hudson v. Taleff, 546 So.2d 359 (Miss.1989); and Ortman v. Cain, 811 So.2d 457 (Miss. Ct.App.2002).

¶ 33. Adkins exhausted his allowance of four peremptory challenges. All were legitimate challenges. The four challenges were insufficient to remove individuals who had been patients of Dr. Sanders, had wives who had been patients of Dr. Sanders, or had close relatives who had been patients of Dr. Sanders. Following voir dire, Adkins made a general motion to “remove any person who has been ... a patient of the physicians for more — at least to the extent that someone has had a baby delivered.” Adkins reasoned that the jurors who had themselves had babies delivered by Dr. Sanders or had close relatives who had babies delivered by Dr. Sanders were at heightened risk for impartiality. The circuit court denied this motion, finding that there was no direct evidence of impartiality among these jurors. The juror at issue in this appeal is Juror No. 22, Palmer.

¶ 34. The extent of the contact, the treating physician and other relevant details about the relationship between the clinic and the two prospective jurors who were excluded through peremptory challenges cannot be determined from the record. As in Scott, counsel for Adkins did not see fit to elicit relevant details about those relationships. See Scott, 595 So.2d at 851. Under our holding in Scott, there can be no abuse of discretion in the trial court’s failure to exclude these potential jurors for cause.

¶ 35. When confronted with whether to accept Palmer as a juror, Adkins had two unused peremptory challenges. The failure to use these challenges to remove Palmer from the panel bars this claim of error.

¶ 36. It is well settled in this state that:

Before an appellant may challenge a trial court’s refusal to excuse a juror for cause, he must show that he used all of his peremptory challenges. The reason for the rule is that the appellant had the power to cure substantially any error as long as he has remaining unused peremptory challenges. We would put the integrity of the trial process at risk were we to allow a litigant to refrain from using his peremptory challenges, and suffering an adverse verdict at trial, secure reversal on appeal on grounds that the Circuit Court did not do what the appellant wholly had power to do.

Davis v. State, 660 So.2d 1228, 1243-44 (Miss.1995) (quoting Hansen v. State, 592 So.2d 114, 129-30 (Miss.1991)). This rule had been applied by this Court both where the appellant had not used all of his peremptory challenges at the time he was confronted with whether to accept the juror in question and also where he chose to exercise a peremptory challenge on a juror whom he had not challenged for cause.

¶ 37. In Davis, the appellant who was convicted of capital murder and sentenced to death argued on appeal allowing Dorothy Hill to sit on the jury violated his constitutional rights to have mitigating circumstances properly considered because Hill’s sister had been murdered in a robbery and her killer tried and sentenced to death. Id. at 1243. This issue was without merit because the appellant had one peremptory challenge left when confronted with whether to accept Hill as a juror and did not exercise that challenge to exclude her from the jury. Id. at 1243^4.

¶ 38. In Chase v. State, 645 So.2d 829 (Miss.1994), the appellant was sentenced to death for killing a man during a robbery. He challenged the trial court decision not to exclude Mary Welch for cause. Welch assured the court that her ability to remain impartial or objective would not be affected even though she had been robbed three times. Id. at 845. Because the appellant accepted Welch as a juror when his peremptory challenges were not yet exhausted, we refused to reverse the decision of the trial court and found the claim of error to be without merit. Id. at 846^17.

¶ 39. We have consistently found no error in refusal to excuse jurors who are challenged for cause when the complaining party has chosen not to exhaust his peremptory challenges. Scott, 595 So.2d at 851 (citing Calper v. City of Greenville, 207 So.2d 339, 341 (Miss.1968); Chisolm v. State, 529 So.2d 635, 639 (Miss.1988); Nixon v. State, 533 So.2d 1078, 1085 (Miss.1987); Johnson v. State, 512 So.2d 1246, 1255 (Miss.1987)). When an opportunity is presented to challenge a prospective juror for cause, a party may not remain silent, simply exercising a peremptory challenge, and then complain because the court refused to excuse another juror for cause upon whom he did exercise a peremptory challenge. Scott, 595 So.2d at 851. To allow this practice would enable a party to increase the allotted number of peremptory challenges. Id.

¶ 40. Additionally, “varied imponderables” make the selection of a jury a “judgment call particularly within the province of the circuit court, and one which we will not on appeal second guess in the absence of a record showing a clear abuse of discretion, in jury selection.” Id. The trial court has broad discretion to determine whether to excuse prospective jurors, even those who are challenged for cause. Id. Even so, that discretion is narrowed when a reasonable challenge is made and the summons of other jurors is not a great inconvenience. Id. at 850 (citing Hudson v. Taleff, 546 So.2d 359 (Miss.1989)). In a medical malpractice action, the trial judge must carefully evaluate the qualifications of a juror who is or has been treated by the physician or who has family who is or has been treated by the physician. Id. The promise of a prospective juror that he will remain impartial and that his verdict will not be affected is given great deference even given circumstances which raise questions about his qualifications. Id. at 850.

¶ 41. In Scott, after the court excused several potential jurors, a panel of 43 jurors remained. Id. at 849. When voir dire responses indicated that potential jurors or their family members had relationships with Dr. Ball or his partners, Scott challenged 12 of them for cause. Id. The trial court sustained seven of his challenges and denied the other five. Id.

¶ 42. Scott appealed arguing that the four statutory peremptory challenges were insufficient to excuse all jurors who should have been excused for cause. Id. One peremptory challenge was used to exclude a juror who was not challenged for cause. Id. at 849-50. We upheld the trial court’s refusal to dismiss a prospective juror who had been challenged for cause as the appellant chose to exercise a peremptory challenge on a juror who was not.

¶ 43. In Herrington v. Spell, 692 So.2d 93, 101 (Miss.1997), the Herringtons asserted that allowing patients of the defendant and a witness to sit on the jury constituted reversible error. Id. The Her-ringtons contended that they were forced to exercise all their available peremptory challenges to challenge patients and former patients of the defendant and other doctors testifying. Id. However, the record differed with this contention as it showed that the Herringtons’s attorney exercised peremptory challenges to jurors 1, 13, 15, and 19, none of whom were shown to be connected in any way to the doctors on trial or the medical profession. Id. During voir dire, none of the jurors showed any propensity to favor the defendant or any other member of the healthcare profession in a malpractice case. Id. Even so, the Herringtons chose to exercise their peremptory challenges on these individuals who were not challenged for cause instead of on the jurors about which they complained should have been excused for cause. Id. We refused to reverse the trial court’s refusal to dismiss those individuals.

¶ 44. In the case at bar, Adkins clearly exercised two peremptory challenges on prospective jurors who were not challenged for cause. If there was any objection to these two jurors, it was counsel’s obligation to call it to the court’s attention in a challenge for cause. While the record does reflect some unspecific undetermined contact between the disputed jurors and the clinic, it also confirms there was no suggestion of automatic exclusion of individuals who reported one visit or visits unrelated to childbearing and the child rearing. Having exercised his peremptory challenges on jurors who were not challenged for cause, Adkins may not complain that the trial court erred in refusing to dismiss Juror No. 22 for cause.

¶ 45. This case is distinguishable from Toyota Motor Corp. v. McLaurin, 642 So.2d 351, 358 (Miss.1994), where we held that the appellant’s failure to exercise two of his peremptory challenges on prospective jurors who had been challenged for cause did not bar reversal because of a statistical aberration. A high number of prospective jurors or them family members had been represented by counsel for the appellee. Id. at 355. This resulted in a problem which could not be cured. Id. at 358-59. If the appellant had exercised his peremptory challenges in accordance with his challenges for cause, each of the individuals challenged for cause would have been excluded from the jury. However, that is not the case here. In the case at bar, counsel for Adkins exercised two peremptory challenges on jurors who were not challenged for cause. At the same time, Adkins complains of the seating of two jurors whom he claims should have been excused for cause.

¶ 46. We find that the ruling of the learned trial judge concerning the composition of the jury should not have been set aside. We will not second guess the trial judge because the record does not show a clear abuse of discretion. Further, we are unconvinced that Juror 22 was not competent to serve as a juror.

CONCLUSION

¶ 47. The Court of Appeals erred in finding that the circuit court committed reversible error by refusing Plaintiffs jury instruction P-21. Moreover, we find that the Court of Appeals erred in holding that the circuit court committed reversible error by failing to excuse those jurors who were patients of Dr. Sanders or who had close relatives who were patients of Dr. Sanders. For these reasons, the judgment of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.

¶ 48. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS AFFIRMED.

WALLER AND COBB, P. JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.