Beverly v. Powers
| Decision Date | 14 December 1995 |
| Docket Number | No. 92-CA-00637-SCT,92-CA-00637-SCT |
| 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. |
| Court | Mississippi Supreme Court |
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.
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 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 summary judgment. In Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983), we interpreted Rule 56 and the standards that the trial courts should use in considering a motion for summary judgment. We explained that
The trial court must review carefully all of the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied.
Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995) (citations omitted).
A. WHETHER THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT TO THE STATE DEPARTMENT OF HUMAN SERVICES, WHERE DHS DID NOT PROPERLY PLEAD SOVEREIGN IMMUNITY AS AN AFFIRMATIVE DEFENSE?
Beverly contends that the trial court committed reversible error by allowing DHS to amend its answer to include the defense of sovereign immunity. The record reflects that DHS failed to plead the defense of sovereign immunity in its October 6, 1989, answer to Beverly's complaint. On March 31, 1992, DHS moved for summary judgment, and asserted sovereign immunity as a defense. Beverly objected, and, on May 19, 1992, DHS moved to supplement its pleadings to include the defense of sovereign immunity. Noting that amendments should be liberally allowed, the trial judge granted this motion.
The trial court did not commit reversible error in allowing an amendment to DHS' pleading. Under Mississippi Rule of Civil Procedure 15(a), "leave (to amend) shall be freely given when justice so requires." The Comment to Rule 15 states that "amended pleadings have been liberally permitted throughout Mississippi legal history." An amendment must "cause actual prejudice to the opposite party" in order to be denied. M.R.C.P. 15 Comment; see Rector v. Mississippi State Highway Com'n, 623 So.2d 975, 978 (Miss.1993).
Beverly does not show how DHS' amendment...
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