Dotts v. Pat Harrison Waterway Dist.

933 So. 2d 322, 2006 WL 1737851
CourtCourt of Appeals of Mississippi
DecidedJune 27, 2006
Docket2004-CA-02279-COA
StatusPublished
Cited by12 cases

This text of 933 So. 2d 322 (Dotts v. Pat Harrison Waterway Dist.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dotts v. Pat Harrison Waterway Dist., 933 So. 2d 322, 2006 WL 1737851 (Mich. Ct. App. 2006).

Opinion

933 So.2d 322 (2006)

Teresa T. DOTTS, Individually and as Mother and Personal Representative of Christopher Brad Holly, Deceased, Appellant
v.
PAT HARRISON WATERWAY DISTRICT, Appellee.

No. 2004-CA-02279-COA.

Court of Appeals of Mississippi.

June 27, 2006.

*324 Donald C. Dornan, James F. Steel, Biloxi, attorneys for appellant.

David L. Martindale, Laurel, attorney for appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

KING, C.J., for the Court.

¶ 1. On August 27, 2002, Teresa Dotts, filed a wrongful death action on behalf of herself and all other wrongful death beneficiaries of Christopher Brad Holly against the Pat Harrison Waterway District (PHWD), under the Mississippi Tort Claims Act (MTCA), seeking monetary damages for the death of her son, Holly. The Lauderdale County Circuit Court held a bench trial on August 3 and 4, 2004. On October 25, 2004, the court found that PHWD was immune from liability under Mississippi Code Annotated Section 11-46-9(1)(d)(g)(v) and (w)(Rev.2002). Aggrieved by the court's findings, Dotts raises two issues on appeal:

1. WHETHER THE DISCRETIONARY PROTECTIONS OF MISSISSIPPI CODE ANNOTATED § 11-46-9(1)(d) WERE PROPERLY APPLIED IN THIS CASE; AND
2. WHETHER THE TRIAL COURT ERRED WHEN IT IGNORED SUBSTANTIAL, CREDIBLE, AND REASONABLE EVIDENCE THAT PARK RANGER RAFORD WILLIAMS KNEW OR SHOULD HAVE KNOWN THAT A DANGEROUS CONDITION EXISTED AT DUNN'S FALLS WATER PARK.

Finding no error in the court's judgment, we affirm.

FACTS

¶ 2. PHWD is an agency of the State of Mississippi, created by Mississippi Code Annotated Section 51-15-101 (Rev.2003). Included in its permissible actions is the organization and maintenance of parks for recreational purposes. PHWD maintains nine parks for recreational purposes. Of those nine parks, eight have swimming areas, which include lakes or open waters. Two of the parks, Flint Creek Water Park and Okatibbee Creek Water Park, have water slides. Only the two parks with water slides employ lifeguards. None of the eight lakes employs lifeguards.

¶ 3. Dunn's Falls Water Park (Dunn's Falls) opened in 1985.[1] The area includes a mill, spillway, and lake created by the flow of the Chunky River. Dunn's Falls is one of the nine parks open to the public for recreation. The facilities include cabins, paddle boats, and a designated swimming area.

¶ 4. On July 2, 2001, Christopher Brad Holly and his family rented a cabin at Dunn's Falls. While swimming across the Dunn's Falls mill pond with his brother and cousins, Holly began to struggle and eventually drowned. Emergency personnel performed CPR, but were unable to revive Holly. Holly was pronounced dead at the Anderson Hospital in Meridian.

¶ 5. On June 25, 1999, PHWD published a policy delineating rules concerning its public swimming areas. In the policy, the Board of Directors recommended that all public swimming areas be maintained at a depth not to exceed four feet. The Board also prescribed buoys and ropes to be used in order to outline this recommended depth. At the time of Holly's drowning, the signs at Dunn's Falls did not state that the public should stay within the buoys. *325 The back buoy line that enclosed the swimming area was also absent. There was also no reach pole, shepherd's hook, ring buoy, or flotation device provided at Dunn's Falls. Because PHWD did not employ lifeguards at Dunn's Falls, and because Raford Williams, the park manager, did not possess lifeguard training, there was no lifeguard on duty the day of the accident. Dotts filed her complaint alleging that the PHWD was liable for Holly's death.

¶ 6. At trial on August 3 and 4, 2004, the trial court considered arguments from PHWD and Dotts. In his memorandum opinion, the trial judge found PHWD immune from liability under Mississippi Code Annotated Section 11-46-9(1)(d)(g)(v) and (w) (Rev.2002), which reads:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
. . . .
(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;
. . . .
(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
. . . .
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care; or
(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning devise, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or construction notice.

Aggrieved by the trial court's findings, Dotts appeals. Finding no error in the court's decision, we affirm.

DISCUSSION

¶ 7. A circuit court judge sitting without a jury gets the same deference with regards to his findings as a chancellor; his findings are safe on appeal where supported by substantial, credible, and reasonable evidence. Davis v. Latch, 873 So.2d 1059, 1061(¶ 6) (Miss.Ct.App.2004) (citing Maldonado v. Kelly, 768 So.2d 906, 907(¶ 4) (Miss.2000)). The circuit court's findings will not be disturbed unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. (citing City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000)). Errors of law, however, including the proper application of the MTCA, are reviewed de novo. Fairley v. George County, 800 So.2d 1159, 1162(¶ 6) (Miss.2001).

1. Whether the discretionary protections of Mississippi Code Annotated § 11-49-6(1)(d) were properly applied.

¶ 8. The trial court found that PHWD was immune from liability pursuant *326 to Mississippi Code Annotated Section 11-47-9(1)(d). Because Mississippi has no statutory requirements regarding the operation of swimming facilities, the trial court held that PHWD's actions concerning the operation of Dunn's Falls were a discretionary function. When a governmental actor is required to use his own judgment or discretion in performing a duty, that duty is discretionary. Harris ex. rel Harris v. McCray, 867 So.2d 188, 191(¶ 12) (Miss.2003). If the duty is one that has been positively imposed by law and in a manner or upon conditions which are specifically designated, the duty to perform under those conditions is ministerial. Mosby v. Moore, 716 So.2d 551, 558(¶ 32) (Miss.1998). However, not all discretionary duties enjoy governmental immunity. Only those functions which are by nature policy decisions, whether made at the operational or planning level, are protected.

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933 So. 2d 322, 2006 WL 1737851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dotts-v-pat-harrison-waterway-dist-missctapp-2006.