Bailey v. City of Pearl

• Decision Date: 30 July 2019
• Docket Number: NO. 2018-CA-01325-COA,2018-CA-01325-COA
• Citation: 282 So.3d 669
• Parties: Kenneth BAILEY and Elizabeth Lee Shutze, as Wrongful Death Beneficiaries of Bertha Elizabeth Bailey, Deceased, Appellants v. CITY OF PEARL, Mississippi, Appellee
• Court: Mississippi Court of Appeals

282 So.3d 669

Kenneth BAILEY and Elizabeth Lee Shutze, as Wrongful Death Beneficiaries of Bertha Elizabeth Bailey, Deceased, Appellants

v.CITY OF PEARL, Mississippi, Appellee

NO. 2018-CA-01325-COA

Court of Appeals of Mississippi.

July 30, 2019

ATTORNEYS FOR APPELLANTS: STACY EVERETT PEPPER, STEVEN CRAIG PANTER

ATTORNEYS FOR APPELLEE: WALKER REECE GIBSON, REBECCA SUZANNE BLUNDEN

BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

McDONALD, J., FOR THE COURT:

¶1. The Rankin County Circuit Court granted the City of Pearl's (Pearl) motion to dismiss a wrongful death case brought under the Mississippi Tort Claims Act (MTCA) by Kenneth Bailey (Bailey) and the heirs of his wife, Bertha Bailey, deceased. After review of the record and relevant case law, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

¶2. On September 18, 2017, Bailey and his wife, Bertha, went to their grandson's baseball game at the Pearl youth ballpark.¹ A gate to the park on Legion Lake Road was open when they arrived. Allegedly while the Baileys watched their grandson play, the gate was left unsecured and unattended, which allowed it to swing partially closed. Later, when the Baileys left, the gate was swung open in a northerly direction facing the Bailey's oncoming vehicle. Bailey alleged that this created a substantial, unavoidable, hazardous condition. Bailey was driving, and Bertha was in the passenger seat. The Baileys' vehicle collided with the gate in such a manner that the gate "speared" the cab of the vehicle, striking Bertha in the head. She was taken to the hospital but died eleven days later.

¶3. In his complaint, Bailey cited numerous duties that he alleged Pearl owed to visitors to its park, including to properly design and install the gate; properly maintain the gate; have proper equipment in place to secure the gate; properly supervise, hire, and train its employees; establish safety protocols for the safe use of the facility by the public; provide adequate lighting in the area for the public; mark and warn of any dangerous conditions; inspect fixtures upon the property that could create a dangerous condition; provide and allow safe ingress and egress onto the city's property; and refrain from blocking the road with anything that could cause injury. These were in addition to the claim that the gate was left unsecured. Bailey alleged Pearl breached these duties and caused his wife's death.

¶4. After being served with the complaint and summons, Pearl filed an answer and a motion to dismiss based on discretionary-function sovereign immunity. Although Bailey propounded written discovery during briefing, no responses were provided before the motion hearing was held and the order on the motion to dismiss was rendered.²

¶5. The circuit court adopted and incorporated the argument in Pearl's reply and granted the motion to dismiss on September 12, 2018. Applying City of Jackson v. Doe , 68 So. 3d 1285 (Miss. 2011), the court found that the operation and maintenance of a park is a discretionary function, and therefore, Pearl is immune from liability under the MCTA. From that order, Bailey appeals.

STANDARD OF REVIEW

¶6. An appellate court reviews de novo the grant or denial of a motion to dismiss. King v. Bunton , 43 So. 3d 361, 363 (¶10) (Miss. 2010) ; Doe v. Holmes Cty. Sch. Dist. , 246 So. 3d 920, 922 (¶6) (Miss. Ct. App. 2018). "The allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Id.

DISCUSSION

¶7. Because the viability of Bailey's claims turns on the application of discretionary-function immunity to the alleged actions and inactions of Pearl, and because the precedent governing that question has evolved even during the pendency of this case, it is necessary to survey recent guidance from the supreme court as to the proper test with which to filter Bailey's claims. In applying that precedent, it is apparent that several of Bailey's claims are based on Pearl's policy considerations (e.g., decisions about design and installation of the gate at issue; supervision, hiring and training of city employees; lighting and safety protocols) and were correctly dismissed by the circuit court. But Bailey's alleged claim that "the gate was negligently left unsecured and unattended thereby ... creating a substantial, unavoidable, hazardous condition," at least as pled in Bailey's complaint, plausibly sets forth a simple act of negligence that would fall outside discretionary-function immunity shielding Pearl from liability. The allegations of a breach of Pearl's duty "to properly maintain the gate" and "to inspect fixtures on the property that would create a dangerous condition" would do so as well. Accordingly, as to those allegations, the circuit court erred in dismissing Bailey's simple negligence claims at the pleading stage. We address these points in turn.

¶8. The MTCA, Mississippi Code Annotated section 11-46-1, et seq. (Rev. 2012), waives sovereign immunity and allows public entities to be sued for certain torts of governmental entities and their employees after receipt of proper notice. But Mississippi Code Annotated section 11-46-9(1) (Rev. 2012) identifies twenty-five types of claims for which a public entity shall not be liable (i.e., for which it remains immune from suit), including claims:

(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).

¶9. For years, courts have grappled with the difference between a "discretionary" function, which provides immunity, and a "ministerial" function, which does not. The Supreme Court's latest definitive discussion of discretionary-function immunity appears in Wilcher v. Lincoln County Board of Supervisors , 243 So. 3d 177 (Miss. 2018). There, a driver was injured when his vehicle crashed into a large hole left in the road overnight during bridge construction. Id. at 181 (¶5). In reversing a grant of summary judgment based on discretionary-function immunity, the Court explained the difficulty of applying what appears to be a clear concept (i.e., discretionary immunity) and how the Court has turned for guidance to the body of law developed under the Federal Tort Claims Act. Id. at 182 (¶11). Citing United States v. Gaubert , 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), Wilcher pointed out that "the purpose of the exemption is to prevent judicial second-guessing of legislative and administrative decisions grounded in" public policy. Wilcher , 243 So. 3d at 182 (¶11) (quoting Gaubert , 499 U.S. at 323, 111 S.Ct. 1267 ). Only functions which by their very nature are policy decisions are protected. Id. at (¶12). Gaubert developed the "public-policy function test" that Wilcher re-adopted. Wilcher , at 187 (¶30). The public-policy function test has two parts:

This Court first must ascertain whether the activity in question involved an element of choice or judgment. Miss. Transp. Comm'n v. Montgomery , 80 So. 3d 789, 795 (Miss. 2012). If so, this Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations. Id. Only when both parts of the test were met did a government defendant enjoy discretionary-function immunity.

Wilcher , 243 So. 3d at 182 (¶12).

¶10. The supreme court had previously mandated the use of the public-policy function test in Jones v. Mississippi Department of Transportation , 744 So. 2d 256, 260 (Miss. 1999), and it was applied in numerous cases until 2014. Then in Brantley v. City of Horn Lake , 152 So. 3d 1106 (Miss. 2014), the Court formulated a different two-step analysis of a public entity's actions, namely to look at the overarching function that led to the action and determine whether it was discretionary or ministerial, and then examine any narrower duty associated with the activity at issue to determine if any statute or regulation renders that duty ministerial. Id. at 1112 (¶17). Wilcher overruled Brantley , noting how tedious and scattered the Brantley analysis had become, stating that the Brantley test

"overcomplicates the process of litigating a claim and places the success of a claim on the ability of the injured party's attorney to sift through myriad and sometimes arcane regulations—creating extra layers of proof, which may have little or no practical effect on the actual negligent act." Crum v. City of Corinth , 183 So. 3d 847, 854 (Miss. 2016) (Randolph, P.J., concurring in result only).

Wilcher , 243 So. 3d at 183 (¶15).

¶11. More importantly, the Wilcher Court said that the purpose of the MTCA exemption is to shield the public entity, id. at 184 (¶17), not make it susceptible to suits for violations of statutes or local codes or ordinances as was attempted in Horton v. City of Vicksburg , 268 So. 3d 504 (Miss. 2018) (finding that MCTA immunity barred a claim based on the city's alleged failure to inspect under its housing code). The Wilcher Court was adamant that violations of statutes and regulations per se do not create causes of action that can be brought against public entities. Wilcher , 243 So. 3d at 184 (¶18).

¶12. But Wilcher clearly provided that public entities are still subject to basic negligence claims, saying:

Wilcher's complaint is evidence of the confusion Brantley has created. According to his factual allegations, the County and City removed a bridge and failed to warn oncoming motorists the road had not yet been replaced. These allegations support a common-law premises-based claim of failure to warn of a dangerous condition created by the County and City. Yet, Wilcher did not plead his claim as negligent failure to warn. Instead, Wilcher apparently found the statutory duty that most closely fit the factual scenario. And he argued

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