Boroujerdi v. City of Starkville

• Decision Date: 12 February 2015
• Docket Number: No. 2012–CA–01458–SCT.,2012–CA–01458–SCT.
• Citation: Boroujerdi v. City of Starkville, 158 So. 3d 1106 (Miss. 2015)
• Parties: Taghi “Ted” BOROUJERDI v. CITY OF STARKVILLE.
• Court: Mississippi Supreme Court

158 So.3d 1106

Taghi “Ted” BOROUJERDI

v.CITY OF STARKVILLE.

No. 2012–CA–01458–SCT.

Supreme Court of Mississippi.

Feb. 12, 2015.

Adam Grant Pinkard, Tupelo, attorney for appellant.

Marc Darren Amos, Columbus, attorney for appellee.

EN BANC.

Opinion

KITCHENS, Justice, for the Court:

¶ 1. Ted Boroujerdi's home and yard were flooded with sewage that backed onto his property in February 2009. Boroujerdi filed suit against the City of Starkville (“the City”), alleging that he had suffered property damage and personal injuries as a result of the City's negligent maintenance of its sewage system. The trial court granted summary judgment for the City, finding that the maintenance of the sewage system is a discretionary function and that the City is immune from suit pursuant to Mississippi Code Section 11–46–9(1)(d) and this Court's plurality opinion in Fortenberry v. City of Jackson, 71 So.3d 1196 (Miss.2011).

¶ 2. Boroujerdi appealed, arguing that the maintenance of the sewage system is ministerial and the City is not immune from suit, that summary judgment was therefore inappropriate, and that this Court should overrule its plurality opinion in Fortenberry. We reverse the trial court's grant of summary judgment in favor of the City. Recently, in Brantley v. City of Horn Lake, 152 So.3d 1106 (Miss.2014), this Court overhauled its analysis of discretionary function immunity. Accordingly, we now must revisit our treatment of sewage-system maintenance as a discretionary function. We hold that, while the overall function of maintaining a sewage system may be discretionary, certain narrower functions and duties involved with sewage maintenance may be rendered ministerial through applicable statutes, regulations, and/or ordinances. Accordingly, we remand this case to the Circuit Court of Oktibbeha County for the plaintiff to address whether his premises flooded as a result of the City's fulfilling or its failing to fulfill a ministerial function or duty.

FACTS AND PROCEDURAL HISTORY

¶ 3. On February 27, 2009, the toilets, sinks, and tubs of Boroujerdi's home in Starkville overflowed from sewage backup after a heavy downpour of rain. Boroujerdi called the Starkville water and sewage department to fix the problem. He walked outside to meet with the workers, and as he was walking back to his house to show them the damage, he slipped and fell in the raw sewage that had covered his driveway. Boroujerdi alleges that he suffered serious injuries as a result of the fall. Boroujerdi brought suit against the City of Starkville, averring that its reckless and negligent failure properly to maintain the sewer system had proximately caused his physical injuries and damage to his property. He alleged that similar problems had occurred on his property previously, and that the City “had been put on notice of the problems but recklessly refused to make the necessary repairs.” Boroujerdi sought compensation for medical bills and pain and suffering in the amount of $500,000.

¶ 4. The City moved for summary judgment, arguing that maintaining its sewage system is a discretionary function under Mississippi Code Section 21–27–189(b)¹ and the City was therefore immune from suit pursuant to Mississippi Code Section 11–46–9(1)(d).² The City attached an affidavit from its mayor, Parker Wiseman, stating that, to his knowledge, the City had not violated any ordinance, state or federal regulation, or any waste-removal and treatment permit with respect to its sewage system. In response, Boroujerdi argued that “Starkville accepted the responsibility for repairing Plaintiff's sewage problems and thus owed Plaintiff a duty of reasonable care in their efforts.” He did not cite any potential ordinance, state or federal regulation, or waste-removal or treatment permit, the violation of which may have caused his house and lot to be flooded with sewage.

¶ 5. The trial court granted the City's motion for summary judgment, citing this Court's then-recent holding in Fortenberry, which specifically held that a municipality is immune from suit for negligent maintenance of its sewage system under Section 11–46–9(1)(d) because maintaining such a system is a discretionary function of the municipality. See Fortenberry, 71 So.3d at 1204. Boroujerdi appealed, asking this Court to overrule its holding in Fortenberry and hold instead that a municipality has a ministerial duty to maintain its own sewage system once it decides to construct one.

¶ 6. This Court requested and received supplemental briefing from the parties to address our intervening decision regarding discretionary function immunity in Little v. Mississippi Department of Transportation, 129 So.3d 132 (Miss.2013), and what effect, if any, state and federal statutes and regulations related to the disposal of sewage may have upon our determination of whether sewage-system maintenance is a ministerial or discretionary function.

STANDARD OF REVIEW

¶ 7. This Court conducts de novo review of a trial court's determination that a governmental entity is immune under the Mississippi Tort Claims Act (MTCA). Fortenberry, 71 So.3d at 1199 (¶ 7) (citing City of Jackson v. Harris, 44 So.3d 927, 931 (Miss.2010) ). Additionally, when reviewing a grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶ 13) (Miss.1998). We must consider all of the evidence “in the light most favorable to the non-moving party.” Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 794 (Miss.1995) (internal citations omitted). However, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial,” and cannot simply “rest upon the mere allegations or denials of his pleadings.” M.R.C.P. 56(e).

ANALYSIS

¶ 8. The sole issue on appeal, as stated by Boroujerdi, is “whether a municipality that controls and operates a sewage system has a ministerial duty to repair and maintain the sewage system ... or whether ... the municipality has discretion ... to repair and maintain the sewage system so as to provide the municipality with immunity from liability under Mississippi Code Section 11–46–9.” Boroujerdi urges this Court to adopt the reasoning of Presiding Justice Randolph's dissent in Fortenberry, 71 So.3d at 1204 (¶ 28), and overrule the Court's decision, which held that a municipality's duty to maintain its sewage system is a discretionary one, and thus is one that provides immunity from tort liability to the municipality under the MTCA.

¶ 9. The City argues that this issue was conclusively decided in Fortenberry, and that the facts in this case are even more compelling for a finding of immunity under the MTCA than those in that case. In Fortenberry, 71 So.3d at 1201 (¶ 14), the plaintiffs relied in part on an ordinance which required all sewage pipes in the City of Jackson to be of a certain diameter. Here, “there was no city ordinance which positively imposed upon the City of Starkville the duty to operate and maintain a sewage system.” The City included an affidavit of Starkville's mayor, Parker Wiseman, stating that “no city ordinance had been violated with respect to Starkville's operation of its sewage system....” The affidavit further stated that, to the mayor's knowledge, “the City of Starkville has not violated any state or federal regulation or law or any of its waste-removal and treatment permits with respect to its operation of the sewage system, and no such violation has been alleged.” The City argues that this Court's holding in Fortenberry is directly applicable to this case, and that the trial court was therefore correct in holding that summary judgment for the City was appropriate.

1. Fortenberry v. City of Jackson

¶ 10. Since Boroujerdi asks this Court to overrule Fortenberry, a summary of that case will be instructive. The properties of two sets of plaintiffs were damaged when sewage backup flooded their homes due to heavy rain.³ Id. at 1198 (¶ 3). The plaintiffs sued the City of Jackson (Jackson), and the trial court granted summary judgment because it found that Jackson's maintenance of its sewage system was a discretionary function and, therefore, the MTCA immunized the City from tort liability. Id. at 1198 (¶ 4). The Court of Appeals held that an ordinance that mandated the size of sewage pipes that could be installed in the municipality made the duty to maintain the sewage system ministerial rather than discretionary and reversed the grant of summary judgment. Fortenberry v. City of Jackson, 71 So.3d 1211, 1217–18 (Miss.Ct.App.2010). This Court granted certiorari and reversed the Court of Appeals, with a plurality of four justices holding that the ordinance mandating pipe diameters did not apply to the neighborhoods in which the plaintiffs lived, that the duty to maintain the sewage system was discretionary, and that Jackson was therefore immune under the MTCA. Fortenberry, 71 So.3d at 1203–04.

¶ 11. In reaching its decision, the plurality relied on the application of the two-part public-policy function test. Id. at 1199–1202. Historically, this Court has used that test “to determine if governmental conduct is discretionary so as to afford the governmental entity immunity.” Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 795 (¶ 20) (Miss.2012) (quotation omitted). Under the test, the Court first determines “whether the activity in question involved an element of choice or judgment[,]” and, if so, “whether that choice or judgment involved social, economic, or political-policy considerations.” Id. If the duty or activity which forms the basis of the suit “is not imposed by law and depends upon the judgment or choice of the government entity or its employee[,]” then the duty or activity is discretionary. Pratt v. Gulfport–Biloxi Reg'l Airport Auth., 97 So.3d 68, 72 (¶ 9) (Miss.2012) (citing Montgomery, 80 So.3d at 795 ).

¶ 12. In Fortenberry, the Court determined that the first prong of the two-part test was satisfied because the...