Gale v. Thomas, No. 1998-CA-01234-SCT.

• Court: United States State Supreme Court of Mississippi
• Citation: 759 So.2d 1150
• Decision Date: 09 December 1999
• Parties: Nancy GALE v. Nathaniel THOMAS and The City of Jackson.
• Docket Number: No. 1998-CA-01234-SCT.

759 So.2d 1150

Nancy GALE
v.
Nathaniel THOMAS and The City of Jackson

No. 1998-CA-01234-SCT.

Supreme Court of Mississippi.

December 9, 1999.

759 So.2d 1151

E. Michael Marks, Michael T. Jaques, Jackson, Attorneys for Appellant

Terry Wallace, Patricia Kay Monson, Jackson, Attorneys for Appellees.

EN BANC.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. This case comes to this Court on appeal by Nancy Gale from the Hinds County Circuit Court, First Judicial District, where Gale's suit against the City of Jackson and Officer Nathaniel Thomas was dismissed upon grant of summary judgment.

¶ 2. Nancy Gale suffered injuries when her automobile collided at an intersection with a City of Jackson police patrol car driven by Officer Nathaniel Thomas. Officer Thomas allegedly ran a red traffic signal. The accident occurred on April 17, 1993. Gale brought suit in the Hinds County Circuit Court, First Judicial District, on October 20, 1995, against the City of Jackson and Officer Thomas, individually, alleging gross and reckless negligence on the part of Officer Thomas. The City and Officer Thomas moved for summary judgment asserting sovereign immunity. Circuit Court Judge Ermea J. Russell granted summary judgment in favor of both defendants and dismissed the suit on June 30, 1998. Gale now appeals to this Court arguing that the trial judge erroneously determined that the City and Officer Thomas were immune from suit.

STATEMENT OF FACTS

¶ 3. Nancy Gale allegedly suffered personal injuries and property damage when her automobile collided with the City of Jackson police patrol car driven by Officer Nathaniel Thomas on April 17, 1993. Gale contends that Officer Thomas ran a red traffic signal. At the time of the accident, Officer Thomas was allegedly on routine patrol. Gale alleges that Officer Thomas did not have his lights or sirens on at the time, and that he was not responding to an emergency nor in pursuit of anyone. Gale brought an action for negligence against the City of Jackson and Officer Thomas, individually.

¶ 4. The defendants moved for summary judgment, asserting sovereign immunity

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pursuant to the Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 et seq. (Supp.1999), and Gressett v. Newton Separate Mun. Sch. Dist., 697 So.2d 444 (Miss. 1997). The trial judge granted summary judgment for both defendants pursuant to the rationale of Gressett. In its order, the trial court noted that the accident occurred in the time period between the enactment of Miss.Code Ann. § 11-46-3 (Supp.1999) on April 1, 1993, and the waiver of immunity as to political subdivisions on October 1, 1993, pursuant to Miss.Code Ann. § 11-46-5 (Supp.1999). The trial judge thus employed the rationale of Gressett to find that because the accident occurred in a time period in which absolute immunity existed, the City and Officer Thomas enjoyed the protection of sovereign immunity at the time of the suit

¶ 5. From this ruling, Gale appeals and raises the following issues:

I. THE TRIAL COURT ERRED IN FAILING TO APPLY THE EXCEPTION TO IMMUNITY PROVIDED IN THE "INTERIM" VERSION OF MISS. CODE ANN. § 11-46-3(3) (SUPP.1993).

II. THE TRIAL COURT ERRED IN EXTENDING THE PROTECTION OF THE CITY'S IMMUNITY TO OFFICER THOMAS.

¶ 6. The City and Thomas, in their reply to Gale's appeal, raise a third issue. They argue that the trial court lacked jurisdiction over Gale's claim because Gale failed to comply with the notice requirements of Miss.Code Ann. § 11-46-11 (Supp.1999). They did not raise this issue in the trial court in either their answer or their motion for summary judgment. In addition, they did not cross-appeal. However, the issue is considered below.

STANDARD OF REVIEW

¶ 7. Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. In reaching this determination, the Court considers evidence such as admissions, affidavits, answers to interrogatories, and depositions. Reaves ex rel. Rouse v. Randall, 729 So.2d 1237, 1239 (Miss.1998). This Court conducts a de novo review of the record on appeal from the lower court's grant of summary judgment. Pace v. Financial Sec. Life of Mississippi, 608 So.2d 1135 (Miss.1992); Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988). The evidence is viewed in the light most favorable to the non-moving party. Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss. 1990). If any triable issues of fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the decision should be affirmed. Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983).

DISCUSSION OF LAW

I. THE TRIAL COURT ERRED IN FAILING TO APPLY THE EXCEPTION TO IMMUNITY PROVIDED IN THE "INTERIM" VERSION OF MISS. CODE ANN. § 11-46-3(3) (SUPP.1993).

¶ 8. This Court abolished judicial sovereign immunity in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), stating that the Legislature and not the Court should control the issue of one's right to bring suit against the sovereign. The Legislature then enacted a sovereign immunity statute. See Miss.Code Ann. §§ 11-46-1 to -23 (Supp.1984). The statute purported to continue sovereign immunity as it existed prior to Pruett. In Part I of Presley v. Mississippi State Highway Comm'n, 608 So.2d 1288 (Miss.1992), this Court held that § 11-46-6 was unconstitutional in that it purported to revive law by reference. Presley, 608 So.2d at 1298-1301. A plurality of four justices held that the Presley holding applied only prospectively. Id.

¶ 9. The Legislature responded by enacting § 11-46-3, effective April 1, 1993. Miss.Code Ann. § 11-46-3 (Supp.1993).

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That statute had largely the same effect as § 11-46-6, but omitted the provisions regarding revival of law by reference. Section 11-46-3 states the intent of the Legislature to immunize the State and its political subdivisions from liability. Miss. Code Ann. § 11-46-3 (Supp.1998). Section 11-46-5 provides a limited waiver of immunity as to the State, effective July 1, 1993, and as to political subdivisions of the State, effective October 1, 1993. Miss. Code Ann. § 11-46-5 (Supp.1999)

¶ 10. The claim in this case arose after § 11-46-3 went into effect on April 1, 1993, but prior to the date waiver was effective as to political subdivisions on October 1, 1993. The alleged negligence of Office Thomas occurred on April 17, 1993, and, as the trial court stated, the immunity of the City of Jackson had not been waived at that time.

¶ 11. Gale argues that because the accident occurred on April 17, 1993, the trial court should have applied subsection (3) of the "interim" version of § 11-46-3, but instead erroneously applied the rationale of Gressett. Gale did not raise this argument before the trial court, and it should therefore be procedurally barred. Ballenger v. State, 667 So.2d 1242, 1259 (Miss. 1995); Foster v. State, 639 So.2d 1263, 1270 (Miss.1994); Mitchell v. State, 609 So.2d 416, 422 (Miss.1992). However, it is here considered on the merits.

¶ 12. Section 11-46-3, as it exists today, contains two subsections. See Miss. Code Ann. § 11-46-3 (Supp.1999). However, the original version of that section, as it was enacted April 1, 1993, contained a third subsection, which provided:

(3) The immunity recognized and reenacted under this section shall not be applicable to an incorporated municipality for any wrongful or tortious act or omission by such municipality or any employee of such municipality that arises out of the exercise or failure to exercise any duty, obligation or function of a proprietary nature.

Miss.Code Ann. § 11-46-3(3) (Supp.1993) (emphasis added). This third subsection was effective, per legislative directive at the time § 11-46-3 was enacted, only from April 1, 1993, until October 1, 1993. See id. The injury in the case at bar occurred within this period. Thus, Gale is correct in her assertion that the "interim" version of § 11-46-3 applies to her claim. If the exception to immunity contained in subsection (3) applies, summary judgment was improper and Gale may maintain an action against the City of Jackson. If the exception does not apply, because immunity as to political subdivisions was not waived at the time of the accident, Gale may not maintain an action against the City, and summary judgment was proper.

¶ 13. In granting the defendants' motion for summary judgment, the trial court applied the rationale of Gressett v. Newton Separate Mun. Sch. Dist., 697 So.2d 444 (Miss.1997). Gressett involved a suit filed by a high school student against a school district for its allegedly negligent failure to protect him from an attack by a fellow student. Like the accident in the case at hand, the attack in Gressett occurred on April 26, 1993, while the "interim" version of § 11-46-3 was in effect and prior to the waiver of immunity for political subdivisions. This Court affirmed the trial court's grant of summary judgment in favor of the school district, finding that the school district was protected by the provisions of § 11-46-3. Gressett at 445-46. The Court noted that immunity was not waived for political subdivisions until October 1, 1993, and that, according to § 11-46-1(i), a school district is a political subdivision. Gressett at 445-46. The trial court in the case sub judice applied the same rationale.

¶ 14. Gale argues that the trial judge erred in applying the rationale of Gressett. Gale asserts that this Court's decision in City of Jackson v. Brown, 729 So.2d 1231 (Miss.1998), is on point. In Brown, the heirs of a drowning victim filed an action against the City of Jackson, alleging that adequate guardrails had not been placed along the tributary in which the decedent

759 So.2d 1154

drowned. The drowning incident occurred on May 1, 1993. The Brown Court distinguished Gresset...