Parker v. City of Philadelphia

• Decision Date: 14 May 1998
• Docket Number: No. 94-CA-00289-SCT.,94-CA-00289-SCT.
• Citation: 725 So.2d 782
• Parties: Tim PARKER and Denise Parker, Individually, and Danieka Parker, By and Through Her Next Friend and Natural Mother, Denise Parker v. The CITY OF PHILADELPHIA, Mississippi.
• Court: Mississippi Supreme Court

725 So.2d 782

Tim PARKER and Denise Parker, Individually, and Danieka Parker, By and Through Her Next Friend and Natural Mother, Denise Parker v. The CITY OF PHILADELPHIA, Mississippi.

No. 94-CA-00289-SCT.

Supreme Court of Mississippi.

May 14, 1998.

Rehearing Denied August 20, 1998.

David Earl Rozier, Jr., Jackson, for Appellants.

Thomas R. Jones, J. Richard Barry, Michael D. Herrin, Bourdeaux & Jones, Meridian, for Appellee.

En Banc.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. The Circuit Court of Neshoba County granted the City of Philadelphia summary judgment in this personal injury action by finding that the claims against the city were barred under the doctrine of sovereign immunity. Aggrieved, the appellants have timely appealed.

FACTS

¶ 2. On November 4, 1989, Danieka Parker, then four years old, was returning from a friend's house across Evergreen Avenue in Philadelphia, Mississippi. An adult neighbor, Mack Coleman, was escorting his daughter, Kristi Coleman, then six years old, and Danieka across the street. Coleman was holding his daughter's hand, and she was holding Danieka's hand. Coleman looked both ways before crossing the street, and then began to advance. After taking about three or four steps into the street, Coleman said that he again looked up the street, but did not see an approaching vehicle. He testified that overhanging limbs were present which obstructed his view of the road. When Coleman finally saw the car, he stepped back and pulled his own daughter out of the path of the oncoming vehicle. However, he could not get Danieka out of the way of the car's path. The vehicle struck Danieka, paralyzing her from the waist down.

¶ 3. Alice Nunn, driver of the vehicle which hit Danieka, testified that she was traveling at about thirty miles per hour at the time of the accident. She also testified that as she drove down Evergreen Avenue, she saw Coleman and the two children on the side of the street. Just as she came parallel with their position, she saw a little dash out of the corner of her eye and heard a noise. Nunn's daughter, who was traveling with her at the time of the accident remarked, "You hit that child."

¶ 4. On February 19, 1991, Tim Parker and Denise Parker, Danieka's parents, filed a lawsuit individually and on behalf of Danieka, against Mississippi Farm Bureau Insurance Company and the City of Philadelphia, Mississippi. The Parkers settled with Mississippi Farm Bureau Insurance Company and proceeded with the present suit against the City of Philadelphia.

¶ 5. The Parkers argued that their injuries occurred due to the City of Philadelphia's "unsafe and unreasonable maintenance of the street." The city responded by pleading the defense of sovereign immunity. The city later added the defense of contributory negligence of a third party non-defendant, Alice Nunn. On September 11, 1992, the city filed a motion for summary judgment, claiming that sovereign immunity barred the lawsuit from proceeding. After oral argument on November 20, 1992, the trial court granted the defendant's motion for summary judgment. The following issue is now before us.

THE LAW

DOES SOVEREIGN IMMUNITY EXEMPT THE CITY OF PHILADELPHIA FROM LIABILITY.

¶ 6. Our recent decision in Hord v. City of Yazoo City, 702 So.2d 121 (Miss.1997) controls the disposition of this case. We said in Hord:

In 1982, this Court abolished judicially-created sovereign immunity in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss. 1982), ruling that determining the existence and extent of sovereign immunity is the province of the Legislature, not the Court. In 1984, the Legislature responded by enacting a comprehensive tort claims act, providing for a limited waiver of sovereign immunity. Miss.Code Ann. § 11-46-1 et seq. (Supp.1996). However, § 11-46-6 provided that the Act's provisions were not yet effective, and that until such time as they became effective, the law of sovereign immunity would be governed by the common law doctrine as it existed in 1982 before the Pruett decision.

On August 31, 1992, we decided Presley v. Mississippi State Highway Com'n, 608 So.2d 1288 (Miss.1992), wherein we held § 11-46-6 to be unconstitutional because it intended to revive law by reference. Then, in Robinson v. Stewart, 655 So.2d 866 (Miss.1995), we held that Presley was to be applied prospectively only. The Legislature responded to Presley by reaffirming sovereign immunity in Miss.Code Ann. § 11-46-3, but then waived said immunity to a large degree in Miss.Code Ann. § 11-46-5. "Miss.Code Ann. § 11-46-5 provides for a waiver of sovereign immunity as to the State from and after July 1, 1993 and for political subdivisions of the state from and after October 1, 1993, subject to a number of substantive and procedural limitations set forth in later sections of said chapter." Gressett v. Newton Separate Municipal School District, 697 So.2d 444, 445 (Miss.1997).

In Gressett, we decided that a cause of action that arose on August 26, 1993, over four months after § 11-46-3 went into effect, was surely governed by the statutory immunity annunciated in that statute. We reasoned that the Presley holding was not controlling because § 11-46-3 does not contain the constitutionally offensive language present in § 11-46-6.

§ 11-46-6, however, still applies to post-Pruett, pre-Presley causes of action. In the case sub judice, [the plaintiffs'] cause of action arose on [November 4, 1989], before Presley, so under Robinson, we apply § 11-46-6, which directs us to apply pre-Pruett common law. Morgan v. City of Ruleville, 627 So.2d 275, 278-79 (Miss. 1993) (holding that since cause of action arose in 1987, before Presley, the trial court erred in applying the tort claims act, but instead should have applied pre-Pruett common law).

Under pre-Pruett common law, whether a city "enjoys the defense of sovereign immunity depends upon whether the alleged conduct occurred in the exercise of a governmental function or in the exercise of a proprietary function." Morgan, 627 So.2d at 279; Webb v. Jackson, 583 So.2d 946, 952 (Miss.1991). A city performing a governmental function is immune from a negligence suit, whereas a city performing a proprietary function is not immune from a negligence suit. Morgan, 627 So.2d at 279; Webb, 583 So.2d at 952.

The classifications of those functions which are governmental and those which are proprietary are very general, and are often difficult to define. We have described governmental functions applicable to cities as "activities or services which a municipality is required by state law to engage in and to perform." Anderson v. Jackson Municipal Airport Authority, 419 So.2d 1010, 1014 (Miss.1982). Conversely, proprietary functions are "activities in which a municipal corporation engages, not required or imposed upon it by law, about which it is free to perform or not." Anderson, 419 So.2d at 1014. "Proprietary activities are those which, while beneficial to the community and very important, are not vital to a City's functioning." Morgan, 627 So.2d at 279.

Hord, 702 So.2d 121, 123.

¶ 7. The placing of warning signs is within the purview of a city's governmental functions. Therefore, the city is immune from liability under the facts established in this case. Accordingly, we affirm the decision of the trial court.

¶ 8. AFFIRMED.

PRATHER, C.J., PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.

McRAE, J., dissents with separate written opinion joined by SULLIVAN, P.J., and BANKS and WALLER, JJ.

McRAE, Justice, dissenting:

¶ 9. Contrary to the majority's conclusion, the trial court did err in its analysis. The trial court erred in finding that sovereign immunity precluded suit against the City of Philadelphia in this case. The judgment below should be reversed and this case remanded for a trial on the merits.

I.

¶ 10. The Parkers contend that the circuit court erred in analyzing individual components of their negligence claim to determine whether sovereign immunity would be available to the City. The Parkers' position is that the breaches of duty and claims of negligence should be viewed en toto, not as individual claims. The City responds by arguing that the circuit court correctly analyzed the individual claims against the City, that sovereign immunity does apply in this situation, and that the award of summary judgment was wholly proper.

¶ 11. The threshold question is whether the circuit court properly addressed the City's sovereign immunity defense by looking at individual claims of breach and negligence as presented by the Parkers. However, the City complains that the Parkers have abandoned any assignment of error regarding the City's alleged failure to post signs of warning, erect sidewalks, and enforce speed limits. The Parkers' assignment of error to this Court is singular. Nonetheless, "an assignment of error brings before the Court all matters necessarily incident to the issue specifically assigned." Gray v. Baker, 485 So.2d 306, 307 (Miss.1986).

¶ 12. Regarding negligence, the Parkers' amended complaint alleged the following:

COUNT ONE

6. Plaintiffs reallege and hereby incorporate by reference and make a part hereto each and every one of the above-numbered paragraphs, inclusive of the above grounds, and would further show unto the Court the following:

7. That Defendant City owes the general public and the Plaintiffs in particular certain duties including, but not limited to, the following:

a. The duty to warn the operators of motor vehicles of applicable speed limitations on roadways;

b. The duty to warn operators of motor vehicles of pedestrians and more specifically of children in the area at play;

c. The duty to warn operators of motor vehicles of changes in conditions of the roadway (i.e., slope, curve, etc.);

d. The duty to warn pedestrians of oncoming motor vehicles;

e. The duty to maintain a sufficiently wide roadway for motorists to take evasive measures or tactics when

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