Morgan v. City of Ruleville

• Decision Date: 02 September 1993
• Docket Number: No. 90-CA-1049,90-CA-1049
• Citation: 627 So.2d 275
• Parties: Kathie MORGAN, Representative of the Wrongful Death Beneficiaries of Wyatt Morgan, Deceased v. The CITY OF RULEVILLE, Thomas Edwards and Clyde Pruitt.
• Court: Mississippi Supreme Court

Page 275

627 So.2d 275

Kathie MORGAN, Representative of the Wrongful Death Beneficiaries of Wyatt Morgan, Deceased v. The CITY OF RULEVILLE, Thomas Edwards and Clyde Pruitt.

No. 90-CA-1049.

Supreme Court of Mississippi.

Sept. 2, 1993.

Rehearing Denied Dec. 16, 1993.

Charles Victor McTeer, Shirley C. Byers, McTeer & Byers, Greenville, for appellant.

Stephen L. Thomas, Jenny M. Virden, Lake Tindall Firm, Greenville, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION

In this sovereign immunity case, Kathie Morgan (decedent's plaintiff) appeals from the Circuit Court of Sunflower County's grant of the City of Ruleville's (defendant) motion for summary judgment. The trial court held that Ruleville, Edwards, and Pruitt were immune from suit. On appeal, Morgan asserts the following errors:

(1) The trial court improperly barred Morgan's claims of negligence and gross negligence by the City of Ruleville and its employees under Miss.Code Ann. Sec. 11-46-9(c) and failed to apply the governmental/proprietary function distinction in determining whether the City waived its defense of sovereign immunity.

(2) The trial court failed to recognize that a municipality can be held liable in tort for the negligence or gross negligence of its employees.

(3) The trial court erred in finding that Ruleville's participation in the Mississippi Municipal Liability Plan (MMLP) was not sufficient to waive sovereign immunity.

II. STATEMENT OF THE CASE

A. Facts

The parties give different renditions of the facts in this case. Kathie Morgan claims that on May 30, 1987, her son, seven-year old Wyatt Morgan, paid a fee to enter the Ruleville city pool. Thomas Edwards was the manager of the pool and Clyde Pruitt was the lifeguard on duty. Both Edwards and Pruitt were at the pool on May 30, 1987 when the pool opened at 1:30 p.m. and closed at 4:30 p.m. After Wyatt did not come home that evening, Morgan called the police. Wyatt's body was found in the pool at 9:30 p.m. Morgan alleges that Wyatt drowned because the pool had an inadequate number of lifeguards and attendants, the attendants allowed too many swimmers to enter the pool at one time, and the attendants failed to use the watch towers at the pool to adequately observe the swimmers.

Ruleville does not deny that Wyatt was found drowned in the city pool at 9:30 p.m. on May 30, 1987. However, it claims that Wyatt had surreptitiously entered the pool with some of his friends after the pool had closed and subsequently drowned. According to Ruleville, when the pool closed at 4:30 p.m., both Edwards and Pruitt made a careful examination of the pool and surrounding premises. Edwards again viewed the pool at 6 p.m. and found nothing. Ruleville argues that it was strongly rumored that Wyatt and some friends had "snuck into" the pool after dark, and that the autopsy done on Wyatt found his body unwrinkled, evidence of being in the pool a short while.

B. History of the Proceedings

On October 5, 1987, Morgan filed an action in the Circuit Court of Sunflower County charging the City of Ruleville and its employees, Edwards and Pruitt, with negligence and gross negligence in the operation of the city pool which resulted in the drowning of her son. In May of 1990, Defendants filed a Motion to Dismiss and, alternatively, a Motion for Summary Judgment alleging that: (1) the City and its employees could not be found liable because they were performing governmental and discretionary duties, respectively, under Miss.Code Ann. Sec. 11-46-9(c) ¹; (2) the City was immune under traditional notions of sovereign immunity; (3) the City's participation in the Mississippi Municipal Liability Plan (MMLP) was not a purchase of insurance sufficient to waive immunity under Miss.Code Ann. Sec. 21-15-6; (4) and even if the MMLP was insurance, it did not cover a claim barred by sovereign immunity. On June 11, 1990, the trial court entered summary judgment for Defendants, finding: (1) Miss.Code Ann. Sec. 11-46-9(c) exempts the City from liability; (2) the City is immune under Miss.Code Ann. Secs. 11-46-1(f) and 11-46-5, unless such immunity is waived by the purchase of insurance; and (3) the MMLP is not a purchase of insurance. After Morgan filed a motion to Alter or Amend the Judgment or, Alternatively, Set Aside the Judgment, and was granted some additional time for discovery, the trial court affirmed its grant of Defendants' Motion for Summary Judgment. On September 29, 1990, this appeal was taken by Morgan.

III. ANALYSIS

This Court conducts a de novo review of the record on appeal from a grant of a motion for summary judgment. Pace v. Financial Sec. Life of Miss., 608 So.2d 1135, 1138 (Miss.1992); Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988).

A trial court may grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56. A fact is material if it "tends to resolve any of the issues, properly raised by the parties." Webb v. City of Newton, 583 So.2d 946, 949 (Miss.1991) (citing Mink v. Andrew Jackson Casualty Ins. Co., 537 So.2d 431, 433 (Miss.1988) (quoting Mississippi Road Supply v. Zurich-American Insurance Co., 501 So.2d 412, 414 (Miss.1987))). The evidence must be viewed in the light most favorable to the non-moving party. If, in this view, the moving party is entitled to a judgment as a matter of law, then summary judgment should be granted in his favor. Otherwise, the motion should be denied. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983).

The City, Edwards, and Pruitt claim that Morgan did not properly raise the issues now on appeal. This argument lacks merit. The issues that Morgan raises are all in her original complaint. Thus, on appeal, she does not raise new issues which should have surprised Appellees. Morgan's appeal seeks reversal of the decision made by the trial court on summary judgment. The issues on appeal are properly before this Court.

Issue A: The trial court improperly barred Morgan's claims of negligence and gross negligence by the City of Ruleville and its employees under Miss.Code Ann. Sec. 11-46-9(c) and failed to apply the governmental/proprietary function distinction in determining whether the City waived its defense of sovereign immunity.

1.

On October 5, 1987, Morgan filed suit against Ruleville and its employees. At the time, the law concerning sovereign immunity was governed by Miss.Code Ann. Sec. 11-46-6 (Supp.1987):

Section 4. This act, being Chapter 495, Laws of 1984, as reenacted and amended by Chapter 474, Laws of 1985, as amended by Senate Bill No. 2166, 1986 Regular Session, shall apply only to causes of action that accrue on or after July 1, 1987, as to the state, and on or after October 1, 1987, as to political subdivisions. Causes of action that accrue prior to July 1, 1987, as to the state or, prior to October 1, 1987 as to political subdivisions, shall not be affected by this act but shall continue to be governed by the case law governing sovereign immunity immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So.2d 1046, and by the statutory law governing sovereign immunity in effect from and after the passage of Chapter 474, Laws of 1985.

Section 11-46-6 instructs the Court to apply the sovereign immunity case law prior to Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982). However, in August of 1992, this Court decided the case of Presley v. Mississippi State Highway Commission, 608 So.2d 1288 (Miss.1992).

In Presley, this Court held Section 11-46-6 unconstitutional. However, there is a question as to whether this decision should be applied retroactively or prospectively. Justice Banks, in Part II of Presley, wrote that the decision would apply only prospectively. His opinion was joined by three other justices. Justice McRae penned a dissent, arguing that Presley should be applied retroactively. Two justices joined him. Chief Justice Roy Noble Lee, joined by this justice, dissented to the entire opinion, arguing that Section 11-46-6 was not unconstitutional. Thus, as to Part II of the decision in Presley, four justices agreed to apply it prospectively, three justices wanted to apply it retroactively, and two justices dissented altogether. Because this vote can possibly be construed as five votes against Part II of Presley (three justices specifically dissenting to that section and two justices dissenting to all parts of the opinion), Presley's effect on this case must be closely scrutinized.

In Churchill v. Pearl River Basin Development District, 619 So.2d 900 (Miss.1993), Justice McRae interprets Part II of the Presley opinion as having a plurality vote of four, but does not address whether Chief Justice Lee and Justice Prather's general dissent is a vote for retroactive application of Presley, a vote against applying Presley prospectively, or simply a non-vote because they did not reach the issue of retroactive or prospective application. In any event, assuming that Part II of Presley received a plurality vote, it still cannot be used as authority to apply Part I of Presley in the instant case. As the Justices in Churchill discussed, the U.S. Supreme Court noted that it is settled jurisprudence that "when no single rationale commands a majority, 'the holding of the Court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds.' Marks v. United States, 430 U.S. 188, 51 L.Ed.2d 260, 97 S.Ct. 990 (1977)." Churchill, 619 So.2d at 903 (citing Lakewood v. Plain Dealer, 486 U.S. 750, 764, 108 S.Ct. 2138, 2148, 100 L.Ed.2d 771, 787 n. 9 (1988)). The narrowest holding in Presley is simply that Miss.Code Ann. Sec. 11-46-6 is unconstitutional. This...