Crider v. Desoto Cnty. Convention & Visitors Bureau
| Decision Date | 11 August 2016 |
| Docket Number | No. 2015–CA–00725–SCT.,2015–CA–00725–SCT. |
| Citation | 201 So.3d 1063 |
| Parties | Cynthia Renee CRIDER v. DESOTO COUNTY CONVENTION AND VISITORS BUREAU. |
| Court | Mississippi Supreme Court |
Gregory C. Morton, Olive Branch, Joseph M. Sparkman, Jr., attorneys for appellant.
Michael Christopher McLaren, Kari L. Sutherland, attorneys for appellee.
EN BANC.
¶ 1. While visiting the DeSoto County Civic Center, Cynthia Crider stepped in a hole that was obscured by grass. She sued the DeSoto County Convention and Visitors Bureau (the Bureau), which operates the Civic Center. The circuit judge granted summary judgment to the Bureau based on discretionary-function immunity. We affirm.
¶ 2. In May 2008, Crider attended a high-school graduation at the Civic Center. At the ceremony's conclusion, Crider exited the Civic Center and proceeded across a grassy area to her car. As she crossed, Crider stepped in a hole obscured by overgrown grass. She fell and broke her ankle.
¶ 3. Crider sued the Bureau, alleging that it failed to maintain the grassy area in a safe condition. The Bureau moved for summary judgment, claiming it enjoyed Mississippi Code Section 11–46–9(1)(v)'s immunity from certain premises-liability claims. The Bureau then filed a supplemental motion for summary judgment, asserting discretionary-function immunity under Mississippi Code Section 11–46–9(1)(d).
¶ 4. In granting summary judgement, the trial judge reasoned that the Bureau enjoyed discretionary-function immunity because no statute mandated that it operate a civic center and because Crider failed to show any “laws or regulations ... which would remove the Defendants' particular acts (or inaction) from the ‘umbrella of discretionary function immunity.’ ” Crider appealed.
¶ 5. On appeal, Crider argues that the circuit judge erred by failing to apply the governmental/proprietary function test which, she claims, precludes immunity. She further argues that the Bureau was not engaged in a discretionary function, and that this Court should overrule its decision in Brantley v. City of Horn Lake1 and return to the two-part, public-policy-function test. Finally, she argues that, even if the Bureau enjoyed immunity, we should hold that it waived that immunity to the extent it was covered by liability insurance.
¶ 6. This Court previously and unambiguously has held that, by enacting the Mississippi Tort Claims Act, the Legislature abrogated the governmental/proprietary function test.2 It also divested this Court of any authority to graft Crider's proposed liability-insurance waiver into the statute.3 And this Court repeatedly has rejected4 Crider's argument that we should return to the two-part, public-policy-function test adopted by the United States Supreme Court in applying the Federal Tort Claims Act, whose provisions materially differ from the Mississippi Tort Claims Act.5
¶ 7. The concurrence chides the Brantley majority based on its erroneous belief that Section 2680 expressly incorporates Section 1346(b). This is both legally and factually incorrect.
¶ 8. Section 2680 does not “expressly incorporate” Section 1346(b), and nothing in the language of either statute suggests that Section 2680's grant of immunity is limited to the cases mentioned in Section 1346(b). Section 2680 states:
The provisions of this chapter and section 1346(b) of this title shall not apply to:
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.6
¶ 9. By employing the word “and” in its opening sentence, Section 2680 exempts certain types of claims from two distinct statutory provisions: (1) the Tort Claims Act's waiver of immunity (“this chapter”) and (2) Section 1346(b)'s grant of federal district-court jurisdiction. Conversely, our statute requires that acts occur in the course and scope of the actor's employment before discretionary-function immunity attaches.
¶ 10. Brantley is settled law, and we reject the dissent's apocalyptic characterization of it.7 The only question to be addressed is whether the circuit judge properly applied its requirements to the facts of this case.8 Because he did, we affirm.
¶ 11. Mississippi Code Section 11–46–9(1)(d) addresses discretionary-function immunity:
¶ 13. So, even where the State or its subdivision establishes that it was involved in an overarching discretionary function, it nevertheless may lack immunity if the plaintiff can establish that, once the State exercised its discretion to engage in the discretionary function, it was subject to some duty imposed by law, and that the State's breach of that duty proximately caused the plaintiff's injuries and damages.11
¶ 14. The Bureau's powers derive from Mississippi Code Section 17–3–29, which states in pertinent part:
¶ 15. In the broadest possible sense, the Bureau engages in an overarching discretionary function “to promote tourism and convention business.”13 More important to this case, however, is that the statute empowers, but does not require, the Bureau “[t]o ... own, hold, improve, use and otherwise deal in real or personal property....”14
¶ 16. By owning and using the Civic Center, the Bureau engaged in a function the statute authorized but did not require. So the Bureau's operation of the Civic Center was—as the circuit judge found—a discretionary function to which immunity attached. And, as the circuit judge found, Crider failed to point to any more narrow ministerial duty imposed by law.
¶ 17. Because the Bureau engaged in an overarching discretionary function—owning and using real property—to which immunity attached, and because the plaintiff failed to identify any more narrow ministerial function or duty imposed by law to maintain the Civic Center's grass, the learned trial judge properly granted summary judgment for the Bureau based on discretionary-function immunity.
¶ 18. AFFIRMED.
RANDOLPH, P.J., DISSENTS WITH SEPARATE
¶ 19. It is said that “history is written by the victors.” And today, the majority is trying to write the history of discretionary-function immunity by declaring “Brantley is settled law.”15 Brantley, however, is not “settled law.” Rather, it is a recent departure from settled law, predicated solely on a false premise.
¶ 20. Less than two years ago, Brantley was decided by a narrow five-four victory. The majority in that case abandoned long-standing precedent, opting instead to create an entirely new test for determining discretionary-function immunity. Brantley v. City of Horn Lake, 152 So.3d 1106, 1111–18 (Miss.2014). But the concurrence in Brantley adhered to stare decisis and advocated for this Court's continued application of the United States Supreme Court's two-part public-policy-function test. Id. at 1118–23 (Waller, C.J., concurring in part and in result). Since then, the “Brantley test” has drawn continuous fire.16
¶ 21. Most recently, in Mississippi Transportation Commission v. Adams, “I join[ed the] other voices from this court that disagree with the recent break from precedent.” Adams, 2014–IA–01419–SCT, 2016 WL 3091194, at *9 (Miss. June 2, 2016) (on rehearing) (Maxwell, J., concurring in result only). “In my view, Brantley marked an unwise and unworkable departure from longstanding precedent.” Id. And a prominent omission from the newly crafted Brantley test is its failure to consider whether the alleged activity involved a policy decision. This undermines the very purpose of discretionary-function immunity—“to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”17
¶ 22. Moreover, as Presiding Justice Randolph has pointed out, Brantley “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...
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