City of Magee, Mississippi v. Connie D. Jones

161 So. 3d 1047, 2015 Miss. LEXIS 190, 2015 WL 1848083
CourtMississippi Supreme Court
DecidedApril 23, 2015
Docket2013-IA-02104-SCT
StatusPublished
Cited by14 cases

This text of 161 So. 3d 1047 (City of Magee, Mississippi v. Connie D. Jones) 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
City of Magee, Mississippi v. Connie D. Jones, 161 So. 3d 1047, 2015 Miss. LEXIS 190, 2015 WL 1848083 (Mich. 2015).

Opinions

WALLER, Chief Justice,

for the Court:

¶ 1. In this interlocutory appeal, the City of Magee challenges the Simpson County Circuit Court’s denial of its motion for summary judgment against Connie Jones, arguing that Jones’s claim is barred by the discretionary-function provision of the Mississippi Tort Claims Act (MTCA). We vacate the trial court’s denial of Magee’s motion for summary judgment and remand this case to the trial court for the parties to present evidence in light of this Court’s new standard for applying discretionary-function immunity.

FACTS & PROCEDURAL HISTORY

¶ 2. On or about January 5, 2007, raw sewage entered Connie Jones’s house through a shower drain and flooded several rooms of the house. On March 27, 2008, Jones filed suit against the City of Magee (“Magee”) and two unnamed defendants, claiming that Magee had negligently installed and maintained the sewage lines-providing service to her home, causing the sewage overflow. Jones asserted that her family had suffered both property damage and physical illnesses as a result of Ma-gee’s negligence.

¶ 3. On February 10, 2011, this Court handed down its opinion in Fortenberry v. City of Jackson, 71 So.3d 1196 (Miss.2011), holding that a plaintiffs suit against the City of Jackson for negligent sewage-system maintenance was barred by the discretionary-function exception of the MTCA. In response to this decision, on October 1, 2013, Magee filed a motion for summary judgment,1 arguing that Fortenberry had resolved a dispositive issue of law. Magee argued that Jones’s suit was barred by the MTCA’s discretionary-function exception under Fortenberry because her claim was based on acts of sewage-system maintenance.

¶ 4. On November 26, 2013, after a hearing,2 the trial court issued an order denying Magee’s motion for summary judgment. The trial court recognized that Section 21-27-189(b) of the Mississippi Code authorizes municipal authorities, in their discretion, to construct, operate, and maintain sewage systems. See Miss.Code Ann. § 21-27-189(b) (Rev.2007). However, the trial court then held that, once Magee had chosen to operate a sewage system, it took on a ministerial duty to maintain the system properly. Therefore, the trial court found that Magee’s maintenance of its sewer lines failed the first prong of the public-policy function test adopted by this Court in Jones v. Mississippi Department of Transportation, 744 So.2d 256 (Miss.1999), because it did not involve an element of choice or judgment.

¶ 5. On December 17, 2013, Magee filed with this Court a petition for interlocutory [1049]*1049appeal and an emergency motion to stay the trial-court proceedings. On January 16, 2014, this Court granted Magee’s petition for interlocutory appeal and issued an order staying the proceedings in the lower court. On appeal, Magee raises only one issue: whether the trial court erred in finding that Magee was not immune from suit under Section 11 — 46—9(l)(d) for its alleged acts and omissions concerning the maintenance of its sewer system.

STANDARD OF REVIEW

¶ 6. This Court reviews the application of the MTCA de novo. Lee v. Mem’l Hosp. at Gulfport, 999 So.2d 1263, 1266 (Miss.2008). A trial court’s grant or denial of a motion for summary judgment also is reviewed de novo. Johnson v. Pace, 122 So.3d 66, 68 (Miss.2013). The evidence in the motion is viewed in the light most favorable to the party opposing the motion. Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

DISCUSSION

¶ 7. The sole issue before this Court is whether the trial court erred in holding that the discretionary-function exception of the MTCA did not provide Ma-gee with immunity in this case. This exception, codified in Section 11 — 46—9(l)(d) of the Mississippi Code, provides:

(1) A governmental entity and its employees acting within the course and scope of their employment duties shall not be liable for any claim:
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(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]

Miss.Code Ann. § 11-46-9(1)(d) (Rev.2012). Magee argues that the applicability of this provision to cases concerning sewage maintenance was conclusively decided in Fortenberry v. City of Jackson, 71 So.3d 1196 (Miss.2011). The trial court rejected Magee’s reliance on Fortenberry, holding that once the defendant chose to operate a sewage system, it acquired a ministerial duty to maintain the system properly.

¶ 8. In Fortenberry, this Court first addressed the issue of whether sewage-system maintenance is a discretionary function under the MTCA. The plaintiffs in Fortenberry sued the City of Jackson (“Jackson”) after sewage overflows damaged their homes. Id. The trial court granted summary. judgment to Jackson, finding that the maintenance of the city sewer system was a discretionary function under the MTCA. Id. The Court of Appeals reversed, finding that a genuine issue of material fact existed as to whether Jackson had violated a local ordinance requiring sewage pipes to be a certain diameter. Fortenberry v. City of Jackson, 71 So.3d 1211, 1217-18 (Miss.Ct.App.2010). On certiorari review, this Court3 reversed the Court of Appeals’ decision and reinstated the trial court’s grant of summary judgment to Jackson. Fortenberry, 71 So.3d at 1204. This Court first looked to the statute authorizing municipalities to operate sewage systems, which provides, in part:

A municipality, as defined in Section 21-27-163, is authorized and empowered, in [1050]*1050the discretion of its governmental authorities, to exercise the following powers and authority within the area and territories comprising the metropolitan area of which it is a part:
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(b) To construct, operate and maintain sewage systems, sewage treatment facilities and sewage disposal systems in the manner and to the extent required by the metropolitan area plan.

Miss.Code Ann. § 21-27-189(b) (Rev.2007) (emphasis added). This Court found that Section 21 — 27—189(b) expressly gave municipalities discretion in the operation and maintenance of their sewage systems. Fortenberry, 71 So.3d at 1200. This Court then determined that the Court of Appeals had relied incorrectly on the local ordinance regulating sewage-pipe sizes to impose a ministerial duty, as that ordinance did not apply to the neighborhoods where the plaintiffs lived. Id. at 1201. This Court also found that the operation and maintenance of sewage systems necessarily involved economic and social-policy choices. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
161 So. 3d 1047, 2015 Miss. LEXIS 190, 2015 WL 1848083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-magee-mississippi-v-connie-d-jones-miss-2015.