Duncan ex rel. Duncan v. Chamblee, 98-CA-00603-SCT.

• Decision Date: 03 June 1999
• Docket Number: No. 98-CA-00603-SCT.,98-CA-00603-SCT.
• Citation: 757 So.2d 946
• Parties: Raymond DUNCAN, a minor, by Ester DUNCAN, adult mother and next friend v. Mrs. Lynn CHAMBLEE and Leake County School District.
• Court: Mississippi Supreme Court

757 So.2d 946

Raymond DUNCAN, a minor, by Ester DUNCAN, adult mother and next friend v. Mrs. Lynn CHAMBLEE and Leake County School District.

No. 98-CA-00603-SCT.

Supreme Court of Mississippi.

June 3, 1999.

Rehearing Denied August 12, 1999.

Thomas L. Booker, Jr., Laurel G. Weir, Philadelphia, Attorneys for Appellant.

Dexter C. Nettles, Jr., Carthage, Attorney for Appellees.

EN BANC.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. This case came to this Court as an appeal of Raymond Duncan, a minor, by his mother Ester Duncan from an adverse ruling of the Circuit Court of Leake County. The court dismissed the Leake County School District and its teacher, Ms. Lynn Chamblee, under Miss.R.Civ.P. 12(b)(6).

¶ 2. On January 20, 1999, this Court granted Duncan's Motion to Voluntarily Dismiss Leake County School District With Prejudice under Mississippi Rule of Appellate Procedure (M.R.A.P.) 42(b). Thus, we must only decide whether the dismissal as to Chamblee by the trial court was proper.

¶ 3. We hold that Duncan failed to state a claim upon which relief can be granted because she alleged that Chamblee was acting within the course and scope of her employment. Thus, Miss.Code Ann. § 11-46-7(2) (Supp.1998) mandates that Chamblee cannot be held personally liable. The circuit court is affirmed, albeit for reasons other than those relied upon by the circuit judge.

FACTS

¶ 4. On April 5, 1996, Raymond Duncan, a minor, by next friend, Ester Duncan, his mother, filed a Complaint against Ms. Lynn Chamblee, a teacher and employee of the Leake County School District, and against the Leake County School District (hereinafter as the "School"). Duncan alleges that on February 27 and 28, 1996, he was physically injured when Chamblee administered excessive corporal punishment to him while in the course and scope of her employment and in the furtherance of the business of Leake County School District. On May 3, 1996, the Defendants, Chamblee and Leake County School District, filed their Answer, in which one of the affirmative defenses raised was Duncan's failure to provide the ninety (90) day notice of claim as required by Miss.Code Ann. § 11-46-11(1) (Supp.1998).

¶ 5. Thereafter, discovery was had over the next year by both parties in the form of interrogatories, requests for admissions and documents, etc. During discovery, Duncan received a copy of the School's Policy Manual, which outlines the official school policy on corporal punishment, as well as his disciplinary records. Duncan also learned that the School had a liability insurance policy for $1 million. The Defendants received Duncan's hospital records during discovery.

¶ 6. The Defendants filed Motions for Continuances on three separate occasions which were granted in order to complete discovery. Finally, on April 9, 1997, the Defendants first filed a Motion to Dismiss on sovereign immunity grounds. Due to scheduling conflicts and other matters, the Defendants refiled the Motion to Dismiss on February 27, 1998, again raising sovereign immunity as an absolute defense for Duncan's failure to comply with the notice of claim provisions of Miss.Code Ann. § 11-46-11(1) and (2).

¶ 7. A hearing was held on March 9, 1998, and the trial judge heard arguments on the Motion to Dismiss. On March 25, 1998, the trial judge entered an Order Sustaining the Motion to Dismiss, and Final Judgment was entered on April 1, 1998.

¶ 8. Aggrieved, Duncan appealed this matter to this Court on April 15, 1998, and raised the following issues:

I. THE LOWER COURT ERRED IN DISMISSING THE CAUSE AS TO DEFENDANT CHAMBLEE.

II. THE LOWER COURT ERRED IN DISMISSING THE CAUSE AS TO DEFENDANT LEAKE COUNTY SCHOOL DISTRICT.

III. THE DECISION OF THE LOWER COURT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE LAW AND NOT SUPPORTED BY ANY LAW OR EVIDENCE.

¶ 9. However, under M.R.A.P. 42(b), this Court granted Duncan's Motion to Voluntarily Dismiss Leake County School District on January 20, 1999, with prejudice. Therefore, Issue II as raised by the Appellant Duncan is moot and will not be addressed.

STANDARD OF REVIEW

¶ 10. A motion to dismiss under Miss.R.Civ.P. 12(b)(6) raises an issue of law. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990); Lester Eng'g Co. v. Richland Water & Sewer Dist., 504 So.2d 1185, 1187 (Miss.1987). This Court conducts de novo review on questions of law. Mississippi Transp. Comm'n v. Fires, 693 So.2d 917, 920 (Miss.1997); UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So.2d 746, 754 (Miss.1987).

¶ 11. When considering a motion to dismiss, 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. Butler v. Board of Supervisors for Hinds County, 659 So.2d 578, 581 (Miss.1995); Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990).

DISCUSSION OF LAW

I. WHETHER THE LOWER COURT ERRED IN DISMISSING THE CAUSE AS TO DEFENDANT CHAMBLEE.

and

III. WHETHER THE DECISION OF THE LOWER COURT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE LAW AND NOT SUPPORTED BY ANY LAW OR EVIDENCE.

¶ 12. Not at issue here are the notice of claim provisions, Section 11-46-11(1) and (2), because Duncan chose to voluntarily dismiss the sovereign School with prejudice.¹ Therefore, the issue of whether Duncan substantially complied with the pre-suit notice of claim requirements of the act is no longer before the Court.

¶ 13. Because Chamblee is now the only remaining defendant/Appellee before the Court, we must determine whether Duncan has stated a claim upon which relief may be granted. In other words, we must decide whether Chamblee was acting within the course and scope of her employment at the time of the alleged tort(s). If so, Chamblee is protected by the MTCA just as the governmental entity (see discussion below). If not, Chamblee can be sued in an individual capacity.

¶ 14. Duncan argues that the trial court improperly dismissed Chamblee pursuant to the notice of claim provisions of Miss. Code Ann. § 11-46-11, because assault and battery are intentional torts for which no defendant can claim immunity. Duncan's complaint however only alleged gross negligence. For this proposition, Duncan cites Webb v. Jackson, 583 So.2d 946 (Miss. 1991). There, this Court stated:

As stated in McFadden v. State, 542 So.2d 871 (Miss.1989), as follows:

When an individual who is a state government official is named as a defendant in a civil action, our law thus directs that he or she enjoy

no immunity to a civil action for damages if his breach of a legal duty causes injury and (1) that duty is ministerial in nature, or (2) that duty involves the use of discretion and the governmental actor greatly or substantially exceeds his authority and in the course thereof causes harm, or (3) the governmental actor commits an intentional tort. Beyond that, a government official has no immunity when sued upon a tort that has nothing to do with his official position or decision-making function and has been committed outside the course and scope of his office.

McFadden, 542 So.2d at 877 (quoting Grantham v. Mississippi Department of Corrections, 522 So.2d 219, 225 (Miss. 1988)

).

583 So.2d at 949-50 (emphasis added).

¶ 15. Despite being correct statements of law at the time, these cases are pre-tort claims act and are thus not controlling. The Mississippi Tort Claims Act ("MTCA") provides the exclusive civil remedy against a governmental entity or its employee for acts or omissions which give rise to a tort suit.² Miss.Code Ann. § 11-46-7(1) (Supp.1998); L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1138 (Miss. 1999); Moore v. Carroll County, Mississippi, 960 F.Supp. 1084, 1088 (N.D.Miss.1997)("The remedy provided pursuant to the MTCA is exclusive of any other state law remedy sought against a governmental entity or its employee."). Any tort claim filed against a governmental entity or its employee shall be brought only under the MTCA. In fact, Miss.Code Ann. § 11-46-7(2) states:

(2) An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties. For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.

Miss.Code Ann. § 11-46-7(2) (Supp.1998) (emphasis added).

¶ 16. The MTCA waives sovereign immunity from claims for money damages arising out of the torts of governmental entities and their employees from and after October 1, 1993, for political subdivisions. Miss.Code Ann. § 11-46-5(1) (Supp.1998); Chamberlin v. City of Hernando, 716 So.2d 596, 600 (¶ 10) (Miss. 1998). The MTCA defines a "school district" as a "political subdivision" and a "governmental entity." Miss.Code Ann. § 11-46-1(g), (i) (Supp.1998); see also Gressett v. Newton Separate Mun. Sch. Dist., 697 So.2d 444, 446

(¶ 4) (Miss.1997). However, certain circumstances are exempted from this waiver of immunity. Miss.Code Ann. § 11-46-9 (Supp.1998).

¶ 17. Here, the trial judge cited City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss.1997) (holding 11-46-11 is to be strictly complied with), overruled, Carr v. Town of Shubuta, 733 So.2d 261, 263 (Miss.1999), and Duncan's failure to strictly comply with Section 11-46-11's notice of claim requirements as the reason for the dismissal as to both Defendants. Importantly, the trial judge correctly noted that the complaint had no allegation of assault and battery, but only for gross...