Fortenberry v. City of Jackson

Decision Date20 October 2011
Docket Number2008–CT–00271–SCT.,Nos. 2008–CT–00270–SCT,s. 2008–CT–00270–SCT
Citation71 So.3d 1196
PartiesJames FORTENBERRY and Linda Fortenberryv.CITY OF JACKSON, Mississippi and Nationwide Mutual Fire Insurance Company.Flynn Wallace and Kathleen Wallacev.City of Jackson, Mississippi and State Farm Fire and Casualty Company.
CourtMississippi Supreme Court


Ken R. Adcock, Ridgeland, attorney for appellants.Pieter John Teeuwissen, Claire Barker Hawkins, attorneys for appellees.EN BANC.


PIERCE, Justice, for the Court:

¶ 1. This case comes before the Court from the Mississippi Court of Appeals, which found on appeal that the City of Jackson was not immune from liability under the Mississippi Tort Claims Act, because its duty to maintain the municipal sewage system was a ministerial function as set forth by its own 1977 Subdivision Ordinance. The City petitioned for certiorari and asserts that the Court of Appeals erred because: (1) it did not properly apply portions of the Mississippi Tort Claims Act; (2) it misconstrued the purpose of Mississippi Code Section 21–27–189; and (3) it erroneously applied a city ordinance retroactively. Because municipalities are immune from liability for discretionary functions under the Mississippi Tort Claims Act, we reverse the decision of the Mississippi Court of Appeals and reinstate and affirm the judgments of the Hinds County Circuit Court.


¶ 2. The homes of James and Linda Fortenberry and Flynn and Kathleen Wallace were built in the 1960s in a subdivision that was suited with six-inch clay drainage pipes for the sewage system. In 1971, the subdivision was annexed by the City of Jackson (“City”), and later, the City passed a Subdivision Ordinance in 1977 (the “Ordinance”), which mandated that the sewage pipes installed in the City measure eight inches in diameter. The sewage system in this neighborhood is the subject of both cases.

¶ 3. On different dates in April 2003, raw sewage flooded each family's home. Specifically, the Fortenberry home flooded with sewage through its toilets and bathtubs to a depth of six to eight inches. When the Fortenberry home flooded, the Jackson area had received 7.38 inches of rain. City workers, responding to a complaint submitted by the Fortenberrys, found that the City's sewer main had overflowed because of the large amount of rainwater and that the owner's cleanout was not working. Almost three weeks later, the Wallace home flooded to a depth of one foot. On the day their home flooded, the Jackson area had sustained 3.24 inches of rain. After investigation, City workers found and then cleared a blockage in the sewer line that was causing it to choke.

¶ 4. Due to the flooding, the Fortenberrys and the Wallaces unsuccessfully submitted claims to the City. Both families also filed claims with their respective insurers. The Fortenberrys received $6,700 from their insurer, but the Wallaces received nothing from their insurer. Both families filed suit in Hinds County Circuit Court against the City, seeking damages for their losses. The City moved for summary judgment in both cases, asserting that the City was immune from liability under the Mississippi Tort Claims Act (“MTCA”), and both claims were dismissed. The Hinds County Circuit Court, First Judicial District, found that, because the operation and maintenance of the City's sewage system was a discretionary function, the City was immune from liability under the MTCA, granting summary judgment to the City.

¶ 5. Both families timely appealed. The Court of Appeals combined their cases, as the issues are the same and involve similar facts. In Fortenberry v. City of Jackson, the Mississippi Court of Appeals concluded that, under the Ordinance, the duty to operate and maintain the sewer system is ministerial rather than discretionary, thereby defeating the protection of the MTCA. Fortenberry v. City of Jackson, 71 So.3d 1211, 1217–18 (Miss.Ct.App.2010). The City unsuccessfully filed a motion for rehearing, and subsequently filed a writ of certiorari, which was granted by this Court.


¶ 6. Summary judgment should be granted only when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). This Court utilizes a de novo standard when examining a grant or denial of summary judgment. Evan Johnson & Sons Constr., Inc. v. State, 877 So.2d 360, 364 (Miss.2004) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988)). “The trial court must carefully review all the evidentiary matters in the light most favorable to the non-moving party.” Id. (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)). “When doubt exits whether there is a fact issue, the non-moving party gets its benefit. Indeed, the party against whom the summary judgment has been sought should be given the benefit of every reasonable doubt.” Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983) (citing Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967); Heyward v. Pub. Hous. Admin., 238 F.2d 689, 696 (5th Cir.1956)).

¶ 7. Review of a government entity's immunity under the MTCA triggers de novo review, since immunity is a question of law. City of Jackson v. Harris, 44 So.3d 927, 931 (Miss.2010). The three issues before this Court will be discussed together as one, because the main issue before the Court is whether the City's operation and maintenance of its sewer system is a discretionary or ministerial function. If it is discretionary, the City is immune under the MTCA.

A. The City's operation and maintenance of its sewer system is a discretionary function, and neither state nor federal law causes that function to be ministerial.

¶ 8. The method of determining whether an act is discretionary or ministerial is well-settled. See Dancy v. East Miss. State Hosp., 944 So.2d 10, 16–17 (Miss.2006). A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee. See Miss. Dep't of Mental Health v. Hall, 936 So.2d 917, 924–25 (Miss.2006); Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (1935). However, a duty is ministerial if it is positively imposed by law and required to be performed at specific time and place, removing an officer's or entity's choice or judgment. Covington County Sch. Dist. v. Magee, 29 So.3d 1, 5 (Miss.2010) (quoting L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141 (Miss.1999)). This Court employs the public-policy function test when determining whether an act of a governmental entity or its employee is discretionary. Jones v. Miss. Dep't of Transp., 744 So.2d 256, 260 (Miss.1999) (citing U.S. v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). Under this test, the Court must answer two questions: 1) did the conduct or activity involve an element of choice or judgment; and if so, 2) did that choice or judgment involve social, economic, or political policy? Dancy, 944 So.2d at 16.

1. Under the first prong of the public-function test, the City's decision to operate and maintain its sewage system involved an element of judgment as provided by Mississippi Code Section 21–27–189(b).

¶ 9. The City asserts that its decision to operate and maintain the sewer system is a discretionary function as provided by statute. The statute on which the City relies reads in relevant part:

A municipality, as defined in Section 21–27–163, is authorized and empowered, in the discretion of its governmental authorities, to exercise the following powers and authority within the area and territories comprising the metropolitan area of which it is a part:


(b) To construct, operate and maintain sewage systems, sewage treatment facilities and sewage disposal systems in the manner and to the extent required by the metropolitan area plan.

Miss.Code Ann. § 21–27–189(b) (Rev.2007) (emphasis added)

¶ 10. In this case, Section 21–27–189(b) clearly allows the City to operate and maintain its sewage system according to its discretion, which alone would satisfy the first prong. However, the Fortenberrys and the Wallaces assert that the City's duty became ministerial once it undertook the obligation to operate and maintain the sewage system, and therefore, the City cannot escape liability through the MTCA. Both families provide cases in an attempt to support the proposition that, once the City employs its discretion, a ministerial duty arises to exercise ordinary care in the upkeep of the sewage system in order to provide reasonably safe conditions. See City of New Albany v. Barkley, 510 So.2d 805 (Miss.1987); City of Meridian v. Bryant, 232 Miss. 892, 100 So.2d 860, 862 (1958); City of Meridian v. Sullivan, 209 Miss. 61, 45 So.2d 851 (1950); Cain v. City of Jackson, 169 Miss. 96, 152 So. 295 (1934) City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355 (1933); Fewell v. City of Meridian, 90 Miss. 380, 43 So. 438 (1907); Tyler v. City of Bay St. Louis, 34 So. 215 (Miss.1903).

¶ 11. While the above-cited cases do involve allegedly negligent municipalities and consequent property damage, none addresses the difference between discretionary and ministerial functions. Despite the City's alleged maintenance failures, this Court previously has held that failing to exercise ordinary care does not remove a governmental act from immunity under the MTCA. Collins v. Tallahatchie County, 876 So.2d 284, 289 (Miss.2004).

¶ 12. The Fortenberrys and the Wallaces also rely on City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60 (Miss.2005). In Internal Engine, this Court decided that the City was negligent for failing to maintain a drainage ditch that had flooded the business of Internal Engine. Id. at 63. Even though that case...

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