Glover v. Jackson State University, 2005-CA-02328-SCT.

• Decision Date: 06 December 2007
• Docket Number: No. 2005-CA-02328-SCT.,2005-CA-02328-SCT.
• Citation: 968 So.2d 1267
• Parties: Malikah GLOVER, By and Through her Parents and Next of Kin, Greguick GLOVER and Sandra Glover v. JACKSON STATE UNIVERSITY.
• Court: Mississippi Supreme Court

968 So.2d 1267

Malikah GLOVER, By and Through her Parents and Next of Kin, Greguick GLOVER and Sandra Glover v. JACKSON STATE UNIVERSITY.

No. 2005-CA-02328-SCT.

Supreme Court of Mississippi.

December 6, 2007.

Robert Farley Wilkins, Barry W. Howard, Jennifer Paige Wilkins, attorneys for appellant.

Barry Douglas Hassell, Michael Wayne Baxter, Ridgeland, attorneys for appellee.

EN BANC.

ON MOTION FOR REHEARING

DICKINSON, Justice, for the Court.

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. This fourteen-year-old case has a curious and interesting history which will not end with today's decision. The matter presented for review is a summary judgment granted to Jackson State University ("JSU") in a suit for damages caused to a fourteen-year-old girl who was raped by two fifteen-year-old boys on JSU's campus. The issue presented and briefed by the parties is whether JSU bears any legal responsibility for the rapes.

FACTUAL BACKGROUND

¶ 3. The National Youth Sports Program ("NYSP") was established in 1969 for the purpose of providing sports programs for economically disadvantaged children across the United States. The NYSP operates under the auspices of the National Collegiate Athletic Association to administer federal funding and provide guidelines to 160 institutions of higher education which, in turn, host and operate the programs.

¶ 4. For several years up to and including 1993, JSU hosted, staffed, and operated a NYSP program on its campus. JSU employee L.V. Donnell served as Activity Director of the 1993 NYSP program at JSU. Lohorace Cannada and Chris Chase, both fifteen years old, had participated in the program at JSU for several years. Both boys had been involved in numerous fights on the NYSP bus and on the JSU campus.¹ In 1992, Cannada was expelled from the NYSP program because of his fighting. Chase also had been involved in numerous fights, prompting the staff to threaten to expel him from the program.

¶ 5. The NYSP bus was leased to JSU by C.H. Epps, and was driven by the driver for the NYSP program, Douglas Luster, who picked up the children each day. Luster also worked in the NYSP program on the JSU campus as a Senior Aide. Luster testified that he was aware of the two boys' violent history. He also testified that his most important job was to supervise the children in the NYSP program. JSU had instructed that, once the children got on the bus, he was responsible for delivering the children to JSU, and that the program was responsible for the children from the time they boarded the bus.

¶ 6. On Monday, June 14, 1993, the children were assembled in the Athletic and Assembly Center ("AAC") on the JSU campus. One of the boys approached Luster to inform him that a girl was in the boys' restroom. Luster went to the hallway outside the restroom and found fourteen-year-old Malikah Glover and another girl standing outside the boys' restroom. When both girls denied being in the boys' restroom, Luster ordered everyone to clear the hallway, but conducted no further investigation, even though the boy who had reported the incident continued to insist that the girls were not telling the truth. Cannada² was later to testify that he and Glover had, in fact, been in the boys' bathroom having sex on that occasion.

¶ 7. Cannada testified that, at around 7:00 a.m. on the morning of Friday, June 18, 1993, the bus (with Luster driving) picked him up in front of his house to take him to the program. Chase and Glover were on the bus. Cannada stood next to Luster, and they talked as he drove the bus to the JSU campus. In addition to Luster's knowledge that both Cannada and Chase had a violent history, the record also reflects that, during the ten months preceding the rape, sixty-three crimes were reported to have occurred on the JSU campus, twenty-one of which were violent crimes and four of which were rape and sexual battery.

¶ 8. According to Cannada, Luster arrived on campus with the children around 7:30 a.m. and dropped them off at the AAC building, where the boys' restroom incident had occurred on the previous Monday. However, upon learning that he had dropped the children off at the wrong building, he told them to get back on the bus. Luster did not notice that Glover, Cannada, and Chase did not get back on the bus. Leaving the three children behind unattended and unsupervised, Luster drove away, taking the other children to the old gym, where the children were supposed to be. Soon thereafter, Cannada and Chase took Glover into a building and raped her. After Glover reported the rape, Cannada and Chase were arrested, and both boys pleaded guilty.

¶ 9. Notwithstanding that its own bus driver had left the three children on campus, unattended and unsupervised, JSU informed parents by letter dated June 21 1993, (three days after the rape occurred) that they should not drop off their children on the JSU campus before 10:30 a.m. because JSU had no supervision or security prior to that time. Furthermore, the NCAA informed JSU by letter dated June 28, 1993, that it was in violation of federal guidelines with respect to proper staffing of the NYSP program at JSU.

PROCEDURAL HISTORY

¶ 10. The procedural history of this case was set forth in meticulous detail seven years ago in Presiding Justice Waller's majority opinion in Glover v. Jackson State Univ., 755 So.2d 395 (Miss.2000) ("Glover I"). Glover filed suit against numerous defendants, including Epps, Luster, and JSU. All the defendants have been dismissed by summary judgment and collateral estoppel, with the exception of JSU,³ and this Court reversed the summary judgment granted to JSU, and remanded to the trial court

for a determination of the liability of JSU, such liability being contingent upon whether JSU had in effect a policy of liability insurance which would cover a tort suit for Glover's injuries.

Id. at 404-05. In reaching its conclusion, the Glover I majority noted that Glover's injuries

occurred on June 18, 1993, prior to the waiver of sovereign immunity for the state and its political subdivisions. The Tort Claims Act took effect in April, 1993, but immunity was not waived for the state until July 1, 1993. Therefore, this case is governed by Gressett v. Newton Separate Mun. Sch. Dist., 697 So.2d 444 (Miss.1997). In Gressett, this Court held that a school district was immune from suit in a tort that arose after the April 1993 date of the Mississippi Tort Claims Act, but before immunity was waived for the state's political subdivisions on October 1, 1993. Id. at 446.

However, our holding in Gressett is tempered by the recent decision in Lincoln County Sch. Dist. v. Doe, 749 So.2d 943 (Miss.1999), where we held that, pursuant to § 11-46-16(2) of the Tort Claims Act, a governmental entity which has in effect a policy of liability insurance which covers the tort sued upon will waive immunity to the extent of the liability coverage.

755 So.2d at 400.

¶ 11. In briefing Glover I, JSU did not deny that a policy of liability insurance was in force, but rather argued that the policy "was not provided for or approved by the Board of Trustees of State Institutions of Higher Learning," but that it "was provided by the National Youth Sports Program as part of the agreement between it and JSU." Id. at 401. This Court rejected JSU's argument, finding that such approval was not required for the waiver of immunity provided under Section 11-46-16(2) of the Mississippi Code. Id. The Glover I Court then pointed out that "the issue of whether the insurance policy in dispute would cover Glover's injuries was not addressed by the trial court and, therefore, [was] not properly before this Court. . . ." Id. Thus, we remanded "to the trial court for such a determination." Id.

¶ 12. With respect to the suit against Luster and Epps, the Glover I majority noted:

Before Glover's third complaint was filed, Epps' liability insurance carrier, National Fire & Marine Insurance Company, filed a declaratory judgment action (Civil Action No. 3:96cv176BN) in the United States District Court for the Southern District of Mississippi, Jackson Division, against Epps d/b/a Ace Rental Service, Luster and Glover. National Fire claimed that its policy did not provide coverage to Epps for the payment or defense of Glover's claims in state court. United States District Judge William H. Barbour, Jr., granted National Fire's motion for summary judgment, ruling that National Fire was not liable to Glover and had no duty to defend Epps and Luster in the state actions. Judge Barbour stated, "Glover has submitted no evidence that the bus driver could have foreseen that the male students on the bus would rape Glover when he transported the youths to the wrong location. In the present case, the Court finds that no jury could reasonably find that the intervening criminal act was foreseeable." National Fire & Marine Ins. Co. v. Epps, et al., No. 3:96cv176BN (S.D.Miss.), aff'd mem., 127 F.3d 35 (5th Cir.1997). After the federal court made the ruling, Epps and Luster added res judicata and/or collateral estoppel claims to their motions for summary judgment pending in state court. Judge Hilburn granted all the defendants' motions for summary judgment, from which ruling Glover appeals. Judge Hilburn denied the motion to change the dismissal of the consolidated cases to one with prejudice and/or award attorney fees, from which ruling defendants appeal. The cases were consolidated on appeal to this Court.

Glover I, 755 So.2d at 397-98. Because of the federal court's decision, the Glover I majority held that this Court was collaterally estopped from allowing the case to go to trial against Epps and Luster.

¶ 13. The remand in Glover I was handed down on January 27, 2000. We are not told what transpired over the next five years, but on July 8, 2005, JSU filed a new motion for summary judgment which failed to address...