Alesa Dawn Crum v. City of Corinth

183 So. 3d 847, 2016 Miss. LEXIS 15, 2016 WL 159399
CourtMississippi Supreme Court
DecidedJanuary 14, 2016
Docket2013-CA-01977-SCT
StatusPublished
Cited by22 cases

This text of 183 So. 3d 847 (Alesa Dawn Crum v. City of Corinth) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alesa Dawn Crum v. City of Corinth, 183 So. 3d 847, 2016 Miss. LEXIS 15, 2016 WL 159399 (Mich. 2016).

Opinions

KITCHENS, Justice,

for the Court:

111. Alesa Dawn Crum's home in Corinth, Mississippi, was flooded with back-flowed sewage twice. Crum filed suit against the City of Corinth, alleging damages as a result of the City’s negligent maintenance of its sewage system. The Alcorn County Circuit Court granted the City’s motion to dismiss Crum’s complaint, finding that the City was immune under the discretionary-function exemption of the Mississippi Tort Claims Act (MTCA). Crum appeals, arguing that the City is not entitled to discretionary-function immunity. Because we find that the trial court erred in dismissing Crum’s complaint, we reverse the judgment and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2. Around March 30, 2012, during heavy rains, the Corinth, Mississippi, home of Alesa Dawn Crum was flooded with approximately twelve inches of sewage over a period of about six hours. On April 28, 2012, Crum filed a complaint with the Mississippi Department of Environmental Quality (MDEQ) regarding the overflow. MDEQ investigator Lynne Bur-rell traveled to Crum’s home in Corinth to investigate the incident on May 4, 2012. Burrell’s investigation revealed that the overflow possibly had been caused by root growth in the manhole into which Crum’s sewage service line emptied.

¶ 3. In the early morning of May 7, 2012, sewage overflowed a second time into Crum’s home and garage. Burrell twice telephoned Billy Glover, the superintendent of the City’s Sewer Department, and left voicemail messages. Burrell also sent an email message to the mayor of the City of Corinth with a photograph of the root mass in the manhole. On May 8, 2012, Glover returned Burrell’s telephone calls and informed her that it was likely that an employee of the City’s Street Department had dislodged a manhole cover while bush-hogging roadside ditch banks in the area. Glover informed Burrell that the City had removed 'the root mass from the manhole, and that he would investigate whether the City would pay for sewage cleanup at Crum’s home. Glover also informed Bur-rell that he would resubmit the cleanup bill to MS Municipal Insurance.

¶ 4. Burrell and Glover spoke again on May 25, 2012, and Glover confirmed his suspicion that recent road work by the City had “knock[ed] off the ring and manhole cover.” Glover indicated that, during heavy rains, due to the uncovered manhole, an enormous amount of rainwater had entered the sewer lines near Crum’s house, causing sewage to back up into the lines and into Crum’s house. Based on her conversation with Glover, Burrell reported that “[t]he city is going to fix [Crum’s] home.” On May 29, 2012, Bur-rell reported that she had received a letter from Glover to MS Municipal Insurance, dated May 11, 2012, and that his report to the insurer was consistent with what Glover had told her on May 25, 2012.

¶ 5. Crum filed her complaint against the City in the Circuit Court of Alcorn County on October 3, 2012. She alleged that the .City had a “duty to maintain the sewer system in such a way that [Crum’s] home is not flooded by the sewer system,” and that the City had breached its duty by failing to maintain the sewer system properly. Crum claimed that her home was irreparably damaged as a result of the City’s negligence and that she and her daughter had suffered physical illness due to the sewage overflow.

[850]*850¶ 6. On. November 2, 2012, the City filed a Rule 12(b)(6) motion to dismiss Crum’s complaint. See M.R.C.P. 12(b)(6). The City claimed discretionary-function immunity: “[a]s it is well settled that the operation and. maintenance of a municipal sewage system is a discretionary function and deals with the provision of adequate governmental services, the City, is immune .... ” See Fortenberry v. City of Jackson, 71 So.3d 1196 (Miss.2011). Crum responded on March 26, 2013, that the City was not entitled to immunity because federal and state regulations rendered the City’s duty to maintain its sewage system ministerial.

¶7. A hearing was held on the City’s motion to dismiss on September 16, 2013. On October 15, 2013, the trial court granted the City’s Rule 12(b)(6) motion and dismissed Crum’s claims with prejudice, reasoning that the City was immune from suit because Crum’s claim was based on the City’s maintenance of, its sewer system, which the trial court had determined was a discretionary function under the MTCA. Aggrieved, Crum appealed that dismissal to this Court.

¶ 8. On appeal, Crum argued again that federal and state regulations imposed “a statutory and a regulatory duty to maintain the City’s, sewer system, and, when necessary, to repair any defective portion thereof.” Alternatively, Crum argued that the manhole cover’s exposure was caused, not by the exercise of a discretionary function of the City, but by the simple negligence of the bush hog operator: “the Bush Hog operator exercised no social, economic, or political policy analysis when he was cutting the grass in the ditch bank.” See Fortenberry, 71 So.3d at 1199 (The public-policy function test requires the Court to “answer two questions: 1) did the conduct or activity involve an element of choice or judgment; and if so, 2) did that choice or judgment involve social, economic, or political policy?”).

¶ 9. After briefing in this case had been completed, this Court, on December 29, 2014, handed down its decision in Brantley v. City of Horn Lake, 152 So.3d 1106 (Miss.2014). In Brantley, we announced our abandonment of the public-policy function test. Id. (citing Little v. Miss. Dep’t of Transp., 129 So.3d 132 (Miss.2013)). We clarified the standard for judicial determination of whether a governmental entity is entitled to immunity:

[A] plaintiff may defeat sovereign immunity, even when a governmental entity’s act furthered a discretionary function or duty, when the plaintiff proves that the act also furthered a more narrow !function or duty which is made ministerial by another specific statute, ordinance, or regulation promulgated pursuant to lawful authority.

Brantley, 152 So.3d at 1115. In Brantley’s wake, the City sought leave to file a supplemental brief “to show why the Trial Court’s decision should be affirmed under” the new test. This Court granted the City’s motion and ordered- supplemental briefing.

STANDARD OF REVIEW

1Í10. “A motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure raises an issue of law, which is reviewed under a de novo standard.” Rose v. Tullos, 994 So.2d 734, 737 (Miss.2008) (citing Cook v. Brown, 909 So.2d 1075, 1077-78 (Miss.2005)). A Rule 12(b)(6) motion “tests the legal sufficiency of the complaint.” Little, 129 So.3d at 135 (quoting Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 10-11 (Miss.2002)). “ ‘[I]n order to grant a Rule 12(b)(6) motion to dismiss, there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be [851]*851proved in- support of the claim.’” Little, 129 So.3d at 135 (quoting Little, 835 So.2d at 11). When considering a. Rule 12(b)(6) motion, “[t]he allegations in the complaint must be taken as true.” Rose, 994 So.2d at 737 (citing Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006)).

DISCUSSION

¶ 11.

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Bluebook (online)
183 So. 3d 847, 2016 Miss. LEXIS 15, 2016 WL 159399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alesa-dawn-crum-v-city-of-corinth-miss-2016.