Region VII, Mental Health-Mental Retardation Center v. Isaac, HEALTH-MENTAL

Decision Date13 April 1988
Docket NumberNo. 57619,HEALTH-MENTAL,57619
Citation523 So.2d 1013
PartiesREGION VII, MENTALRETARDATION CENTER: H.H. Bagwell, Ben Rosenkrans, Dr. Joe N. Robinson, Mrs. Marion Cole, James Landrum, Sandra Cummings, Laurline Tabor, Commissioners of Regional Mental Health-Mental Retardation Commission, Region VII, and George Renaker v. Mary Laura ISAAC, Dennis Isacc, Tannie Isaac, and Billie Isaac, a Minor, and Annette Isaac, a Minor, By and Through their Next Friend, Mary Laura Isaac.
CourtMississippi Supreme Court

Joseph L. McCoy, Senith C. Tipton, McCoy, Wilkins, Noblin & Stephens, Jackson, Gary R. Parvin, Starkville, for appellants.

Wayne Milner, Binder, Milner & Milner, Michael L. Knapp, Jackson, for appellees.

Before DAN M. LEE, P.J., and ANDERSON and GRIFFIN, JJ.

GRIFFIN, Justice, for the Court:

Region VII, Mental Health-Mental Retardation Center, et al., were granted interlocutory appeal by the Oktibbeha County Circuit Court, from that court's order denying their motions for summary judgment. As error, appellants and defendants below allege that denial of said motions, based upon sovereign and public official immunity, was contrary to the controlling principles of Mississippi law. We agree, and will address the claims of the individual parties in turn.


The instant litigation is a wrongful death action by the family of John Isaac, seeking to recover $1,000,000 actual and $1,000,000 punitive damages for the death of Isaac, who was stabbed to death by one James Bishop, on March 5, 1981. Isaac and Bishop were roommates in the Supervised Apartment Program established by the Region VII Mental Health-Mental Retardation Commission ("Region VII"), wherein commercially available apartment units in Starkville, Oktibbeha County, Mississippi, were provided for lease to certain disabled adults enrolled in the program. Apparently, a minimum of supervision was exercised over the "clients" in the program, entailing a daily half-hour meeting period between the program's staff members and their "clients". The "clients" would set goals for themselves--such as finding a job, etc.--which the parties would meet to discuss.

Following Bishop's indictment for murder on March 5, 1981 (a wholly separate cause of action from the case at bar), Isaac's mother and siblings (his heirs) filed a complaint against Region VII, its individual commissioners, and George Renaker, an employee of Region VII in the Supervised Apartment Program, alleging among other things that defendants owed a duty of reasonable care with regard to protection of John Isaac, had negligently breached this duty in the scope and course of their employment, and as such were jointly and severally liable for damages for the wrongful death of John Isaac.

After extensive discovery had been conducted, defendants filed motions for summary judgment, based upon the defense of sovereign immunity, and qualified public official immunity, to the charges filed by plaintiffs against them. Memorandum briefs in support of these motions for summary judgment were filed as well.

Oral argument was heard on the motions and, upon the request of the court, submitted on the aforementioned written briefs.

On June 1, 1986, the lower court denied the motions for summary judgment as to all defendants.

Upon petition of the defendants, the lower court granted their motion for interlocutory appeal, allowing appeal of the denial of the motions for summary judgment to come before this Court.


Was there no genuine issue of material fact that Region VII Mental Health-Mental Retardation Center is entitled to summary dismissal on the basis of sovereign immunity?

The sole basis for Region VII's motion for summary judgment rests in a defense of protection from liability for damages sought via the doctrine of sovereign immunity. As such, Region VII claims that there is no issue of genuine fact material to any element in plaintiffs' claim, and its motion for summary judgment was thus improperly denied.

This is an area of the law which has received a great deal of attention, and as recently as this past week this Court handed down three decisions regarding the immunity of the state and its agencies and subdivisions from suit as well as the qualified immunity owing to the public officials employed therein. 1

The seminal decision of Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982) set the stage: that opinion provided that sovereignty would be abolished only for causes accruing after July 1, 1984, and anything accruing prior to that date was to be governed by the traditional common law immunities. 2

The Isaacs' claim arose on March 5, 1981, and thus is controlled by pre-Pruett case law and statutory law in effect prior to July 1, 1984. Under this law, the State and its subdivisions are not subject to suit in absence of express statutory authority, and such authority cannot merely be implied unless the implication is made clear and unambiguous by the enabling statute. Strait, supra. See also, Lowndes County District 5 v. Miss. State Hwy. Comm'n., 220 So.2d 349 (Miss.1969); French v. Pearl River Valley Water Supply District, 394 So.2d 1385 (Miss.1981); City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223 (1940).

The enabling statute authorizing regional commissions such as Region VII is Miss.Code Ann. Sec. 41-19-33 (1972). This statute provides for the establishment of the regional commissions for mental health retardation centers and programs and enumerates the duties and authorities of the appointed commissioners therein.

However, while acquisition of liability insurance is provided for under the statute (sub-sections (i) and (j)), there is by no means any indication of explicit waiver as required by our case law. 3 The mere purchase of liability insurance by a governmental entity does not waive sovereign immunity. Strait, supra, quoting French v. Pearl River Valley Water Supply District, supra.

In Joseph v. Tennessee Partners, Inc., 501 So.2d 371 (Miss.1987), this Court said:

A government entity has not waived immunity from suit simply because it has obtained liability insurance without express statutory authority.

501 So.2d at 375 (emphasis added)

The Fifth Circuit in applying our law to cases before that court in which it examined whether the purchase of liability insurance by a governmental unit waives immunity has held that:

... the majority of jurisdictions have held that the procurement of insurance by a governmental unit to protect it from tort liability does not effect a waiver of immunity. See, e.g., McKenzie v. City of Florence, 234 S.C. 428, 108 S.E.2d 825 (1959); Annot., Municipal Immunity Insurance, 68 A.L.R. 1438. In addition, we recently held in Reeves v. City of Jackson, 608 F.2d 644 (5th Cir.1979), that under Mississippi law, a state municipality did not waive its immunity by purchasing liability insurance.

Karpovs v. State of Miss., 663 F.2d 640 (5th Cir.1981).

There is no genuine issue of material fact in the case at bar, and the motion for summary judgment made by defendant Region VII was improperly denied.


Was there no genuine issue of material fact that the individual defendant commissioners are entitled to summary dismissal on the basis of public official immunity?

The Region VII commissioners named as individual defendants in this action and also appealing denial of their motions for summary judgment were appointed pursuant to Miss.Code Ann. Sec. 41-19-33 (1972). The sum of their argument for reversal of denial rests in a claim for qualified immunity, in that they engaged in no ministerial acts regarding plaintiff's decedent, John Isaac, or his roommate, James Bishop.

The duties enumerated under Sec. 41-19-33 are fairly broad: they include the administration of programs set out under sections following; the establishing, owning, leasing, etc. of mental health facilities; the entering into contracts with state and federal governments, and their agencies, for the aforementioned purposes and duties; the employment of personnel therein; and the promotion of the general mental health of the people of the region. Miss.Code Ann. Sec. 41-19-33(f) (1972).

Immunity is extended to public officials acting in their official capacity unless they are performing merely ministerial duties. Davis v. Little, 362 So.2d 642 (Miss.1978). In Davis, supra at 644, we held that:

The immunity of a public official is limited, not an absolute immunity. Since the purpose of the immunity is to protect the official in his decision-making role, we have held the immunity will not apply unless the action involves a discretionary decision-making process. Phrased otherwise, if the action is merely ministerial, there is no immunity.

This distinction between "discretionary" and "ministerial" duties has been recognized on many occasions. See, e.g., Karpovs, supra at 647; State for the Use and Benefit of Brazeale v. Lewis, 498 So.2d 321, 322 (Miss.1986); White v. City of Tupelo, 462 So.2d 707, 710 (Miss.1984); Davis, supra at 645; State, ex rel. Russell v. McRae, 169 Miss. 169, 179, 152 So. 826, 828 (1934).

In Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935), the means of distinguishing between the two official capacities was this:

While no flexible rule can be laid down for determining in every case whether or not an act of a public officer is ministerial or judicial, the most important criterion, perhaps, is that [if] the duty is one which has been positively imposed by law and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion.

171 Miss. at 864-5, 158 So. at 925.

In Lewis, supra, we determined that a member of the county board of supervisors retained qualified immunity from liability for plaintiff's injuries arising from a poorly maintained road in the county of defendant's jurisdiction. 498 So.2d at 323.

In White, supra, we held that the...

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