Lang v. Bay St. Louis/Waveland School District, 97-CA-01612-SCT.

• Decision Date: 29 April 1999
• Docket Number: No. 97-CA-01612-SCT.,97-CA-01612-SCT.
• Parties: Sheila LANG, Individually and as Next Friend and Natural Guardian of Vincent Lang v. BAY ST. LOUIS/WAVELAND SCHOOL DISTRICT.
• Court: Mississippi Supreme Court

764 So.2d 1234

Sheila LANG, Individually and as Next Friend and Natural Guardian of Vincent Lang v. BAY ST. LOUIS/WAVELAND SCHOOL DISTRICT.

No. 97-CA-01612-SCT.

Supreme Court of Mississippi.

April 29, 1999.

Rehearing Denied August 19, 1999.

Harry M. Yoste, Jr., Gulfport, Attorney for Appellant.

Thomas A. Waller, Douglas Bagwell, Gulfport, Attorneys for Appellee.

EN BANC.

SULLIVAN, Presiding Justice, for the Court:

¶ 1. On May 20, 1996, a seventh-grade student was injured on school premises following a school-sponsored band concert. The student alleges the school failed to properly supervise its students and failed to maintain a safe school environment. The issue before this Court is whether the school district is immune from liability under the sovereign immunity statutes expressed in Miss.Code Ann. §§ 11-46-1 to -23 (Supp.1998), specifically subsections 11-46-9(1)(d) and (1)(g).

STATEMENT OF THE CASE

¶ 2. Sheila Lang claims that after a school-sponsored concert, her son, Vincent, and his friend were sitting on top of a brick wall waiting for a ride home. The brick wall was approximately seven feet tall, one brick wide, and built of alternating bricks and spaces which made it easy to climb. The brick wall surrounded the school's air conditioning system.

¶ 3. According to Lang, three other students started an altercation with her son's friend, and her son attempted to escape the hostilities by scrambling off the wall. In doing so, her son fell inside the enclosure formed by the wall and injured his hip. Her son was later diagnosed with a displaced hip that required surgery and the placement of three pins in his leg. Sheila Lang claims she has incurred over $25,000 in medical expenses for treatment of her son.

¶ 4. On May 2, 1997, Lang filed suit against the Bay St. Louis/Waveland School District claiming the school district was liable for her son's injuries because it failed to adequately supervise the premises so as to avoid such assaults by others, and failed to provide a safe place to attend school and school-sponsored functions. Lang alleges that as a result of the district's negligence, she and her son have suffered damages in the amount of $250,000.

¶ 5. The school district filed a motion to dismiss on July 7, 1997, asserting it was immune from suit for the asserted claims. By order dated October 21, 1997, the Circuit Court of Hancock County, Judge Jerry O. Terry, presiding, granted the district's motion and stated the following:

Since there is no statutory requirement that a School District provide security on school premises, the Court finds as a matter of law that any duty to do so requires the exercise and judgment [sic] of the School District. The duty allegedly breached in this case is therefore one which is discretionary with the School District, and for which the School District enjoys absolute immunity under Miss.Code Ann. § 11-46-9(1)(d) and (g).

¶ 6. Aggrieved by the decision of the lower court, Lang perfected an appeal to this Court and assigns the following issues for review:

1. WERE THE DISTRICT'S ALLEGEDLY NEGLIGENT ACTS DISCRETIONARY?

2. DID THE TRIAL COURT IGNORE A POTENTIALLY VIABLE CLAIM AGAINST THE DISTRICT IN ITS OPINION?

3. SHOULD THE TRIAL COURT HAVE DELAYED A DECISION ON THE MOTION TO DISMISS PENDING DISCOVERY?

LEGAL ANALYSIS

Standard of Review

¶ 7. Our familiar standard of review for a dismissal for failure to state a claim under Miss. R. Civ. P. 12(b)(6) is as follows:

A motion to dismiss under Miss. R. Civ. P. 12(b)(6) raises an issue of law. This Court conducts de novo review on questions of law.

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.

T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995) (citations omitted).

I.

¶ 8. The question of law before this Court is whether Bay St. Louis/Waveland School District is immune from liability under the Mississippi Torts Claims Act ("MTCA"), Miss.Code Ann. §§ 11-46-1 to -23, specifically subsections 11-46-9(1)(d) and (1)(g).

¶ 9. The MTCA provides the exclusive civil remedy against a governmental entity and its employees for acts or omissions which give rise to a suit. Miss.Code Ann. § 11-46-7(1) (Supp.1998); L.W. v. McComb Separate Mun. School Dist., 754 So.2d 1136, 1146, at ¶ 11 (Miss.1999). Any claim filed against a governmental entity and its employees must be brought under this statutory scheme. Id.

¶ 10. Section 11-46-3 declares it is the intent of the Legislature that the state and its political subdivisions shall be immune from suit at law or in equity. Section 11-46-1 specifically provides that a school district constitutes a "political subdivision" as well as "governmental entity" of the state. Miss.Code Ann. § 11-46-1(i) (Supp.1998); see also L.W. v. McComb Separate Municipal School Dist., 754 So.2d at 1147, at ¶ 12. As a political subdivision, the Bay St. Louis/Waveland School District is generally protected from negligence suits by sovereign immunity.

¶ 11. Section 11-46-5, however, waives immunity for actions for money damages based upon the torts of governmental entities and their employees to the extent of the maximum amount of liability provided for in Section 11-46-15 (which shall not exceed $50,000 for the time Lang's son suffered his injuries). See Miss.Code Ann. § 11-46-15 (Supp.1998). This waiver is expressly subject to the exclusions or exemptions enumerated in Section 11-46-9.

¶ 12. Section 11-46-9 provides a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim based upon an act or omission enumerated therein. Miss.Code Ann. 11-46-9 (Supp.1998). Consequently, if this Court finds the school district's acts or omissions fall under the subsections of § 11-46-9, then the school district would be exempt from liability.

II. WERE THE DISTRICT'S ALLEGEDLY NEGLIGENT ACTS DISCRETIONARY?

¶ 13. Lang alleges "[t]he defendant is liable for the plaintiff's damages and her son's injuries because it breached its duty to exercise the necessary supervision on the defendant's premises during a school function to avoid assaults by other students or interlopers." Additionally, Lang alleges "[t]he defendant is also liable for the plaintiff's damages and her son's injuries because it breached its duty to provide a safe place for [her son] to attend school and school sponsored functions." According to Lang, the question before this Court is whether any of the numerous provisions of Section 11-46-9, and specifically subsections (1)(d) and (1)(g), protect the Bay St. Louis/Waveland School District from liability for failing to protect her son or to provide him with a safe place to attend school functions.

¶ 14. Lang claims the problem that arises from exempting governmental entities from liability for negligence because of performance of discretionary functions is that any act of any entity is ultimately traceable back to some arguably discretionary function. Lang argues that if the law is construed in such a manner, then this Court will be saying that the government has discretion to be negligent, or that its choice to be negligent is a discretionary act under the sovereign immunity statutes.

¶ 15. Lang further argues that while the statutory provisions that grant governmental entities and their employees an exemption from liability for certain acts may be broad, the law does not shield school districts of this state from an obligation to protect students from reasonably foreseeable harm or an obligation to provide them with safe places to attend school. In support of this argument, Lang cites to the common law of Mississippi. See Board of Trustees v. Doe, 508 So.2d 1081, 1085 (Miss.1987)

("As always, the schools retain the responsibility in insuring a safe school environment"). Accord, L.W., 754 So.2d at 1143, at ¶¶ 24-29.

¶ 16. Lang also asserts that because "it is not always easy to determine whether a public official or public body's conduct is ministerial or discretionary," Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (Miss.1935) and T.M. v. Noblitt, 650 So.2d 1340, 1345, the Court should carefully analyze the underlying differences between conduct which should be protected by sovereign immunity and conduct which should not be protected. Lang asks this Court to enunciate a workable standard for deciding questions concerning the statutory waiver of sovereign immunity.

¶ 17. Lang offers for this Court's consideration the following definition of discretion, with a caveat for its use:

Definition: Discretion implies the exercise of discriminating judgment within the bounds of reason. It involves the choice of exercising of the will, a determination made between competing and sometimes conflicting considerations. Discretion imparts that a choice of action is determined, and that action should be taken with reason and good conscience in the interest of protecting the rights of all parties and serving the ends of justice. It has been defined as the power and privilege to act unhampered by legal rule, or the capacity to distinguish between what is right and wrong, lawful and unlawful, wise or foolish.

Caution: The test for a discretionary function is not a test for whether the function involved traditional governmental functions, since the exercise of choice and judgment and the making of responsible decisions take place daily in all human activities without respect to the government context. Moreover, since virtually all human endeavors involve some type of discretion as commonly defined, the discretionary function exception does not include functions which merely involve any element of choice, judgment, or ability to make responsible decisions. Otherwise, every function would fall within the exception.

57 Am.Jur.2d, ...