Beverly v. Powers, 92-CA-00637-SCT

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: PRATHER; DAN M. LEE; McRAE
• Citation: 666 So.2d 806
• Parties: Sandra Anderson BEVERLY v. Myrtle POWERS, Individually and in Her Official Capacity as Director of the Holmes County Welfare Department and the State Department of Human Services.
• Docket Number: No. 92-CA-00637-SCT,92-CA-00637-SCT
• Decision Date: 14 December 1995

Page 806

666 So.2d 806 Sandra Anderson BEVERLY
v.
Myrtle POWERS, Individually and in Her Official Capacity as
Director of the Holmes County Welfare Department
and the State Department of Human Services. No. 92-CA-00637-SCT. Supreme Court of Mississippi. Dec. 14, 1995.

Page 807

Frederick B. Clark, Greenwood, for Appellant.

Michael C. Moore, Attorney General, Onetta Whitley, Sp. Asst. Attorney General, Jackson, and James H. Powell, III, Durant, for Appellee.

Before PRATHER, P.J., and BANKS and McRAE, JJ.

PRATHER, Presiding Justice, for the Court:

I. STATEMENT OF THE CASE

This slander case involves statements made by Myrtle Powers, the director of the Holmes County office of the Mississippi Department of Human Services (DHS). The appellant, Sandra Anderson Beverly, filed suit against Powers, individually, and in her official capacity. Beverly alleged that Powers maliciously and recklessly stated that Beverly had Acquired Immune Deficiency Syndrome (AIDS). The trial court granted a summary judgment in favor of Powers, individually, and in her official capacity. He held that DHS and Powers in her official capacity were protected by sovereign immunity. He also held that, because Powers acted in good

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faith and without malice, she was protected as an individual by qualified immunity.

On appeal, Beverly raises the following issues:

A. WHETHER THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT TO THE STATE DEPARTMENT OF HUMAN SERVICES, WHERE THE STATE DID NOT PROPERLY PLEAD SOVEREIGN IMMUNITY AS AN AFFIRMATIVE DEFENSE?

B. WHETHER THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT TO MYRTLE POWERS ON THE GROUND OF QUALIFIED PRIVILEGE, WHERE THE SLANDEROUS INFORMATION HAD BEEN COMMUNICATED TO SOMEONE OTHER THAN AN EMPLOYEE OF THE STATE DEPARTMENT OF HUMAN SERVICES?

C. WHETHER THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT TO ALL DEFENDANTS ON ALL CLAIMS, INCLUDING PLAINTIFF'S CLAIM OF NEGLIGENCE?

This Court affirms the trial court's judgment with regard to DHS and Powers in her official capacity. However, because Beverly's case presents factual issues which should be submitted to the jury, this Court reverses and remands with regard to the allegations against Powers, individually.

II. STATEMENT OF THE FACTS

In October 1989, Beverly and Powers were working at a DHS office in Holmes County. Around that time, Powers' supervisor, Joan Ellis, told her of a rumor that someone in the office had AIDS. Powers contacted Dr. Shrock, her personal physician, and asked if there was anything the office staff could do to protect themselves against AIDS. He advised her that he did not know much about AIDS, and that they should just take the usual sanitary precautions. Apparently, Charles Araujo, Powers' supervisor, had told Powers to leave the situation alone, but Powers felt that she owed a responsibility to the other employees.

Powers then told "most of the ladies in the office" that "someone in our office might have AIDS," including Beverly. Powers also admitted that she told several people that it was reported to her that Beverly had AIDS. Powers did not investigate the report, because she had "no legal right to do so," and thought an investigation would slander Beverly. She advised the office workers to take sanitary precautions. According to Powers, she was genuinely concerned about stopping the transmission of AIDS to anyone else in the office.

According to Patricia Jernigan, State DHS Director, discussions with employees concerning another employee's health were not authorized by DHS, and were outside the scope of Powers' employment. However, the record reflects that a directive had been circulated by DHS regarding precautionary measures to be used when a DHS worker had contact with a person who had AIDS. Beverly argued that the memorandum made the containment of AIDS a part of Powers' duties, thus placing Powers within the course and scope of her employment. Beverly also asserted that the gross negligence with which Powers handled this problem demonstrated malice.

III. ANALYSIS

The standard of review with regard to a summary judgment is well-settled:

We review de novo the record on appeal from a grant of a motion for...