LW v. McComb Separate Mun. School Dist.

• Decision Date: 02 September 1999
• Docket Number: No. 97-CA-01465-SCT.,97-CA-01465-SCT.
• Citation: 754 So.2d 1136
• Parties: L.W., Individually and as Next Friend of Her Son, J.A. v. The McCOMB SEPARATE MUNICIPAL SCHOOL DISTRICT and Unknown John Does 1-5.
• Court: Mississippi Supreme Court

754 So.2d 1136

L.W., Individually and as Next Friend of Her Son, J.A. v. The McCOMB SEPARATE MUNICIPAL SCHOOL DISTRICT and Unknown John Does 1-5.

No. 97-CA-01465-SCT.

Supreme Court of Mississippi.

September 2, 1999.

Rodney G. Tidwell, Alfred Lee Felder, McComb, Attorneys for Appellants.

Alben N. Hopkins, Thomas A. Waller, Gulfport, Attorneys for Appellees.

EN BANC.

ON MOTION FOR REHEARING

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Motion for rehearing denied. The original opinion is withdrawn and this opinion is substituted therefor.

¶ 2. On October 9, 1995, the minor plaintiff/appellant J.A. turned fourteen years old. J.A. is a student at Denman Middle School in the McComb School District. On that morning, J.A. was threatened by a fellow student, Matthew Garner, while in music class. J.A. told Mr. Dykes, a nearby teacher, of the threats. The teacher did nothing in response.

¶ 3. That afternoon, both J.A. and Matthew were in after-school detention. During this time, Matthew again threatened J.A. in front of the detention teacher, Mrs. Paul. As they left detention, Matthew followed J.A. across the school's baseball field. At this point, words were exchanged, and Matthew attacked J.A. Matthew struck him in the face and ordered him to perform oral sex. When J.A. resisted, Matthew continued to beat him and forced him to perform the act. The incident was witnessed by one student and later reported to a coach. Upon knowledge of the incident, J.A. was taken by his mother, L.W., to the hospital.

¶ 4. On January 9, 1997, L.W., individually and as next friend of her son J.A., brought suit in Pike County Circuit Court against the McComb Separate Municipal School District (the "School") and unknown John Does 1-5. L.W. alleges that the School was negligent in failing to maintain a safe environment; in failing to properly monitor its grounds; in failing to properly supervise its students; in failing to have a route of safe departure for detention students; and for other acts of negligence.

¶ 5. On March 21, 1997, the School filed a Motion to Dismiss on grounds that the Mississippi Sovereign Immunity Act, §§ 11-46-1 et seq. (Supp.1998), immunized them from the suit. On June 24, 1997, L.W. responded to the motion to dismiss by denying the absolute immunity of the School, and alternatively, by claiming the School's purchase of liability insurance waived any immunity.

¶ 6. On October 13, 1997, Pike County Circuit Judge Keith Starrett granted the School's Motion to Dismiss pursuant to Miss.R.Civ.Proc. 12(b)(6). He stated that the statute immunizes the School for administrative action or inaction and/or failure to perform a discretionary duty. Furthermore, he held that T.M. v. Noblitt, 650 So.2d 1340 (Miss.1995), cited by L.W., does not apply, because the cause of action in that case occurred prior to the enactment of the statute.

¶ 7. Aggrieved, L.W. now appeals to this Court and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED WHEN IT DISMISSED L.W.'S LAWSUIT BECAUSE DISCRETIONARY ACTS OF NEGLIGENCE WERE ALLEGED TOGETHER WITH A GENERAL ALLEGATION OF NEGLIGENCE.

II. WHETHER THE TRIAL COURT ERRED WHEN IT DISMISSED L.W.'S LAWSUIT BECAUSE SEVERAL OF THE ACTS OF NEGLIGENCE ALLEGED IN THE COMPLAINT WERE DISCRETIONARY.

III. WHETHER THE SOVEREIGN IMMUNITY PROTECTIONS OF SECTION 11-46-9 OF THE MISSISSIPPI CODE ANNOTATED ARE WAIVED WHEN A GOVERNMENTAL ENTITY PURCHASES LIABILITY INSURANCE IN EXCESS OF THE LIMITS IN SECTION 11-46-15.

STANDARD OF REVIEW

¶ 8. A motion to dismiss under Miss.R.Civ.P. 12(b)(6) raises an issue of law. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990); Lester Engineering Co. v. Richland Water and Sewer Dist., 504 So.2d 1185, 1187 (Miss.1987). This Court conducts de novo review on questions of law. UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So.2d 746, 754 (Miss.1987).

¶ 9. 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. Butler v. Bd. of Supervisors for Hinds County, 659 So.2d 578, 581 (Miss.1995); Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990).

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED WHEN IT DISMISSED L.W.'S LAWSUIT BECAUSE DISCRETIONARY ACTS OF NEGLIGENCE WERE ALLEGED TOGETHER WITH A GENERAL ALLEGATION OF NEGLIGENCE.

¶ 10. L.W. contends that her complaint was sufficient under notice pleadings, because she alleged negligence and demanded relief both generally and specifically. Therefore, she continues, if the trial court found some of those acts barred as discretionary duties under sovereign immunity, there still should remain sufficient allegations under notice pleadings to allow the lawsuit to proceed. This is not true.

¶ 11. The Mississippi Tort Claims Act ("MTCA") provides the exclusive civil remedy against a governmental entity or its employee for acts or omissions which give rise to a suit. Miss.Code Ann. § 11-46-7(1) (Supp.1998)¹; Moore v. Carroll County, Mississippi, 960 F.Supp. 1084, 1088 (N.D.Miss.1997)("The remedy provided pursuant to the MTCA is exclusive of any other state law remedy sought against a governmental entity or its employee."). Any tort claim filed against a governmental entity or its employee shall be brought only under the MTCA. Id.

¶ 12. The MTCA waives sovereign immunity from claims for money damages arising out of the torts of governmental entities and their employees from and after October 1, 1993, for political subdivisions. Miss.Code Ann. § 11-46-5(1) (Supp.1998); Chamberlin v. City of Hernando, 716 So.2d 596, 600 (Miss.1998). The MTCA defines a "school district" as a "political subdivision" and a "governmental entity." Miss.Code Ann. § 11-46-1(g), (i) (Supp.1998); see also Gressett v. Newton Separate Mun. Sch. Dist., 697 So.2d 444, 446(¶ 4) (Miss.1997). However, certain circumstances are exempted from this waiver of immunity. Miss.Code Ann. § 11-46-9 (Supp.1998).

¶ 13. In Stanton & Associates v. Bryant Const. Co., this Court stated:

Rule 8(a), Miss.R.Civ.P., requires only that in its complaint a plaintiff provide (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and, (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. Rule 8(e), Miss. R.Civ.P., then provides (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. When a complaint is tested via a motion under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the sufficiency of the complaint is in substantial part determined by reference to Rule 8(a) and (e). The leading federal case, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957), construing an identically worded provision of the Federal Rules of Civil Procedure, states that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief."

464 So.2d 499, 505 (Miss.1985)(emphasis added & footnotes omitted). If the exemptions to waiver of sovereign immunity under the MTCA apply as the trial court concluded, then it is "beyond doubt" that L.W. can prove no set of facts to support his claim and entitle him to relief. The MTCA is the exclusive remedy for L.W.'s claims.

II. WHETHER THE TRIAL COURT ERRED WHEN IT DISMISSED L.W.'S LAWSUIT BECAUSE SEVERAL OF THE ACTS OF NEGLIGENCE ALLEGED IN THE COMPLAINT WERE DISCRETIONARY.

A. The Trial Court Erred in Dismissing L.W.'s Lawsuit Since the Acts of Negligence Alleged in the Complaint Are Not Governmental Policy Decisions.

1. Section 11-46-9(1)(d) Is In Derogation of the Common Law Right and Should Be Read Narrowly.

¶ 14. The trial court's order stated, in part:

... That the allegations as set forth in the complaint, except for the one stating "other acts of negligence," allege something that would be provided for by administrative action or inaction of a legislative nature and/or failure to perform a discretionary function or a duty; and

That the exercise of discretion was called for in the acts of negligence alleged and therefore, the McComb School District is absolutely immune from suit;

* * * *

... That the allegations as set forth in the complaint require use of discretion and therefore the school district is immune pursuant to Section 11-46-9(d) [sic] ...

Subsection (d) states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

* * * *

(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

Miss.Code Ann. § 11-46-9(1)(d) (Supp. 1998).

¶ 15. One of this Court's maxims of statutory construction is that the legislative intent must be determined from the total language of the act and not from one section considered apart from the remainder. Lee v. Alexander, 607 So.2d 30, 36 (Miss.1992); Pearl River Valley Water Supply Dist. v. Hinds County, 445 So.2d 1330 (Miss.1984). Therefore, in this analysis, it will be necessary to determine the application of subsections in their relation to the whole.

¶ 16. L.W. argues that subsection (d) is a continuation of the common law public officials' sovereign immunity, but with the additional constraint to the plaintiff of allowing the defendant to abuse his discretion. Evans v. Trader, 614 So.2d 955, 957 (Miss.1993). However, Evans does not cite the subsection, section, or the statute at issue, because it predates the effective date of implementation of the MTCA....