Fortenberry v. City of Jackson

Decision Date29 June 2010
Docket Number2008–CA–00271–COA.,Nos. 2008–CA–00270–COA,s. 2008–CA–00270–COA
Citation71 So.3d 1211
PartiesJames FORTENBERRY and Linda Fortenberry, Appellantsv.CITY OF JACKSON, Mississippi and Nationwide Mutual Fire Insurance Company, Appellees.Flynn Wallace and Kathleen Wallace, Appellantsv.City of Jackson, Mississippi and State Farm Fire and Casualty Company, Appellees.
CourtMississippi Court of Appeals

OPINION TEXT STARTS HERE

Ken R. Adcock, Ridgeland, attorney for appellants.Pieter John Teeuwissen, Ridgeland, Claire Barker Hawkins, attorneys for appellees.Before LEE, P.J., GRIFFIS and CARLTON, JJ.CARLTON, J., for the Court:

¶ 1. In April 2003, raw sewage flooded the homes of Flynn and Kathleen Wallace and James and Linda Fortenberry 1 due to blockage in the City of Jackson's (City) sewage lines. The Appellants sued the City for damages. In response, the City moved for summary judgment, which the circuit court granted. The Appellants now timely appeal. We reverse the circuit court's entry of summary judgments in favor of the City and remand the cases for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the 1960s, a developer built the subdivision where the Appellants' homes flooded with sewage. The developer installed six-inch clay drainage pipes in the subdivision sewage system. In 1971, the City annexed the Wallaces' property. In 1977, the City passed its 1977 Subdivision Ordinance, which mandated, among other required criteria, that sewage pipes comply with minimum-design standards, in that the pipes must measure at least eight inches in diameter. Mississippi Code Annotated section 21–27–189(b) (Rev.2007) authorizes the City to pass such ordinances to ensure that sewage operations comply with the metropolitan area plan and federal law. The City's engineer provided that these minimum-design standards in the ordinance were current and that the six-inch pipes installed in the Appellants' subdivision were not compliant with the ordinance.

¶ 3. The Appellants assert that on April 6, 2003, as a result of the City's breach of its duty to repair and maintain the municipal sewage system, raw sewage flooded the Fortenberrys' home to a depth of approximately six to eight inches. On April 24, 2003, raw sewage again flooded the Fortenberrys' home. Also, on April 24, 2003, raw sewage flooded the Wallaces' home. A blockage in the City's sewer line that serviced the Appellants' homes caused all three sewage floods. The Appellants stated in their complaints that experts advised them to immediately evacuate their homes because of the health hazards of living in a home contaminated with raw sewage.

¶ 4. David Willis, the City's designee, stated in his deposition testimony that: “The City should operate [its] [sewerage] system to minimize health risks to the customer or the environment.” Willis also testified about the City's 1977 Subdivision Ordinance, stating that [s]ince 1977, the City adopted minimum-design standards in [its] subdivision ordinance that requires or sets out some allowance for infiltration and inflow [in the City's sewer lines] ...” Willis acknowledged that the pipes servicing the Appellants' homes [did] not meet the current design standards that were adopted in 1977.”

¶ 5. After sewage flooded the Appellants' homes, they gave notice of claim to the City regarding damages. In response, the City denied the Appellants' claims. The Appellants filed suit. In turn, the City moved for summary judgment alleging that the City possessed discretion in determining whether to provide the resources necessary for the construction, maintenance, or repair of sewer lines within its jurisdiction. Additionally, the City contended that it possessed immunity from liability pursuant to the Mississippi Tort Claims Act (MTCA).

¶ 6. The circuit court granted the City's motion for summary judgment, but the Court considered only a portion of section 21–27–189(b) in its ruling. In finding discretionary immunity, the circuit judge stated the following:

The [L]egislature granted the City the authority to construct, operate and maintain [sewerage] systems pursuant to section 21–27–189[b] which states:

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 sewerage systems ...

This statute was enacted prior to the MTCA. However, its plain language gives the governmental authorities the power to maintain their [sewerage] systems using their discretion.

(Ellipsis in original). We note that the remainder of the above-stated statute was absent from the circuit court's opinion.

STANDARD OF REVIEW

¶ 7. For a summary judgment motion to be properly granted, the court must determine that no genuine issue of material fact exists and that the moving party must be entitled to a judgment as a matter of law. M.R.C.P. 56(c). “The moving party has the burden of demonstrating that no genuine issue of material fact[ ] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Howard v. City of Biloxi, 943 So.2d 751, 754 (¶ 4) (Miss.Ct.App.2006). We apply a de novo standard of review to a trial court's grant of summary judgment. Moss v. Batesville Casket Co., 935 So.2d 393, 398 (¶ 15) (Miss.2006).

WHETHER THE CITY WAS IMMUNE FROM SUIT PURSUANT TO SECTION 11–46–9(1)(d)

¶ 8. The City argues on appeal that maintenance of the City's sewerage system is discretionary in nature; therefore, the City enjoys immunity from suit pursuant to Mississippi Code Annotated section 11–46–9(1)(d) (Supp.2009). The Appellants, however, argue that the challenged conduct in this case is ministerial in nature; thus, it is not subject to the discretionary-function exception as set forth in section 11–46–9(1)(d).

¶ 9. The MTCA authorizes suits against the State and its political subdivisions for damages “arising out of the torts of such governmental entities and the torts of their employees while acting within the scope of their employment....” Miss.Code Ann. § 11–46–5(1) (Rev.2002). However, the MTCA provides enumerated exceptions to the State's waiver of immunity.

¶ 10. The exception relied upon by the circuit court and the City in this case falls under the discretionary-function exemption, which is found in section 11–46–9(1)(d) and enunciates that neither the State nor its employees are liable for any claim based upon the performance or the failure to perform a discretionary function, “whether or not the discretion be abused.”

¶ 11. “In determining whether governmental conduct is discretionary[,] the Court must answer two questions: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives.” Dancy v. E. Miss. State Hosp., 944 So.2d 10, 16 (¶ 18) (Miss.2006) (citation omitted). The Court has explained the difference between discretionary and ministerial duties in the following manner:

A duty is discretionary if the government actor is required to exercise his or her judgment or discretion in performing the duty. Dancy v. East Miss. State Hosp., 944 So.2d 10, 17–18 (¶ 19) (Miss.2006) [ (citation omitted) ]. On the other hand, “a duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee's judgment.” Mississippi Dep't of Transp. v. Cargile, 847 So.2d 258, 267 (¶ 35) (Miss.2003) [ (citation omitted) ]. The United States Supreme Court has explained that “the requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’ United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 ... (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 ... (1988)).

Miss. Dep't of Human Servs. v. S.W., 974 So.2d 253, 258 (¶ 11) (Miss.Ct.App.2007).

¶ 12. Our inquiry, thus, turns on whether the City's duty to maintain the City's sewerage system required the City to exercise policy-based judgment, or whether the City was instead bound to perform its duties in accordance with mandatory directives imposed by law, policy, or regulation. See id.

¶ 13. Because the circuit court based its ruling upon a partial analysis of section 21–27–189(b) in finding that the duty to maintain the sewerage system constituted a discretionary function, we must construe the plain language of the statute that forms the basis of the circuit court's opinion. In so doing, we borrow basic principles of statutory construction, which we find very useful to our analysis. First, [t]he primary rule of construction is to ascertain the intent of the [L]egislature from the statute as a whole and from the language used therein.” MIC Life Ins. Co. v. Hicks, 825 So.2d 616, 621 (¶ 12) (Miss.2002). If ambiguity is found, we resolve the meaning of the ambiguous statute by applying the statute consistently with other statutes addressing the same or similar subject matter. State ex rel. Hood v. Madison County ex rel. Madison County Bd. Of Supervisors, 873 So.2d 85, 90 (¶ 19) (Miss.2004). If statutes are irreconcilably inconsistent, a specific statute controls over a general statute. Id. at 91 (¶ 22). With these rules of statutory interpretation to guide us, we now examine the statute at issue and the City's various duties.

¶ 14. As stated, we must begin by reviewing the statute partially considered by the circuit judge. Mississippi Code Annotated section 21–27–161 (Rev.2007) of the Metropolitan Area Waste Disposal Act authorizes the City to provide for the safe transportation of sewage ...

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