Stewart ex Rel. Womack v. City of Jackson

• Citation: 804 So.2d 1041
• Decision Date: 17 January 2002
• Docket Number: No. 1999-IA-01527-SCT.,1999-IA-01527-SCT.
• Parties: Otha STEWART, By and Through Emma WOMACK, Her Daughter and Conservator of Her Person and Her Estate. v. CITY OF JACKSON, Mississippi, and Doris B. Spiller.
• Court: United States State Supreme Court of Mississippi

804 So.2d 1041

Otha STEWART, By and Through Emma WOMACK, Her Daughter and Conservator of Her Person and Her Estate. v. CITY OF JACKSON, Mississippi, and Doris B. Spiller.

No. 1999-IA-01527-SCT.

Supreme Court of Mississippi.

January 17, 2002.

Mark C. Baker, Brandon, James A. Bobo, Pearl, Attorneys for Appellant.

Darla Y. Mannery-Palmer, Patricia Kay Monson, Michael Jeffrey Wolf, Attorneys for Appellee.

Before McRAE, P.J., COBB and DIAZ, JJ.

COBB, Justice, for the court.

¶ 1. After exiting from a van which was managed, operated and controlled by the City of Jackson, Otha Stewart (Stewart) fell and was injured walking towards the adult day care center which she had been attending for several years. The center was managed, operated and controlled by the University of Mississippi Medical Center (UMMC). The driver of the van, Doris Spiller (Spiller), was substituting for the regular driver of the route that day. Stewart filed suit naming the City of Jackson, Spiller, and UMMC as defendants. The City of Jackson and Spiller moved for summary judgment claiming there was no genuine issue of material fact and they were immune from suit under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Supp.2001). The circuit court denied summary judgment in favor of UMMC and granted summary judgment in favor of the City of Jackson and Spiller. Pursuant to M.R.A.P. 5, we granted Stewart's petition to bring this interlocutory appeal. Stewart raises seven issues which are combined into three assignments of error:

I. THE CITY OF JACKSON, MISSISSIPPI IS NOT IMMUNE FROM LIABILITY IN THIS CASE UNDER THE MISSISSIPPI TORT CLAIMS ACT.

II. THE CITY OF JACKSON IS SUBJECT TO A TRIAL ON THE MERITS OF THE CLAIMS BASED UPON ITS BREACH OF CONTRACT.

III. THE LAW DOES NOT AUTHORIZE THE DISMISSAL OF SPILLER AND ALLOWS A JUDGMENT TO BE ENTERED AGAINST HER.

¶ 2. Concluding that the trial court erred in granting the summary judgment in favor of the City and Spiller, we reverse and remand.

FACTS

¶ 3. Otha Stewart was 72 years old at the time this action arose. Nineteen years earlier, she had suffered a stroke that resulted in partial paralysis on the right side of her body. To walk, she needed the assistance of a brace on her right leg and a four-prong cane.

¶ 4. Stewart began attending an adult day care center (care center) operated by the UMMC in 1993. The care center, operated through a contract between UMMC and the Central Mississippi Planning and Development District/Area Agency on Aging (agency), provided care, supervision, activities and services to older ambulatory adults. The goal of the program was to "provide care, supervision and services to individuals who are capable of only limited self-care; meet health maintenance and rehabilitation need and promote maximum level of independent functioning." Stewart and other participants were taken to and from the care center in a van owned and operated by the City of Jackson under its senior transportation contract with the agency.

¶ 5. On August 11, 1997, Doris Spiller was operating the van in the absence of the regular route driver. According to Spiller, after assisting Stewart from the bus and making sure she was steadied, Spiller began assisting the next passenger off the van. Stewart began walking towards the care center with her walker. Spiller turned and noticed Stewart was falling and tried unsuccessfully to break her fall. According to Emma Womack (Womack), Stewart's daughter and care giver, Stewart was taken to the emergency room where X-rays were taken and she was checked out by a doctor. The doctor at the emergency room said Stewart seemed fine, told Womack to watch over her for several days, and discharged Stewart.

¶ 6. According to Womack, Stewart stayed home from the Center the next two day because she was still hurting. However, Stewart "was determined, she wanted to go" to the care center on August 14, even though she admitted to Womack that "she was still hurting and her head and legs were still bothering her", so Womack called for transportation and Stewart was picked up and taken to the care center. That day "she [Stewart] basically was able to operate and to walk like she had prior to the accident on her own with the use of a cane" according the care center's director. The next day, August 15th, Stewart again fell, this time while in the bathroom of the care center. However, this fall was not considered serious, from the care center's standpoint, because Stewart's daughter was not called and Stewart remained at the care center for the rest of the day. According to Womack, later that night Stewart began complaining about her head and she was unable to rest. The next morning, Stewart regurgitated her breakfast and "was real disoriented; she couldn't stand up or anything" so Womack called the ambulance to take Stewart again to the St. Dominic emergency room, where they gave her some prescriptions for pain and muscle relaxers, then discharged her. A few days later Womack took Stewart to see Dr. Calvin Ramsey who referred her to Dr. Don Gipson, who had Stewart admitted to the hospital for further tests. According to Womack, Dr. Gipson told her that Stewart had suffered another massive stroke, "far worse than the one she had in the 70's."

¶ 7. Stewart claims that as a result of the August 11th fall, she sustained substantial damages and injuries. Stewart further claims that the City of Jackson and Spiller were negligent in letting her attempt to walk from the van to the Center unassisted and this negligence caused her fall. Stewart also claims that her physician, Dr. Ramsey, will testify at trial that "her medical condition and physical problems since the fall are proximately caused by the fall" and that "it is expected that the other doctors who saw her will concur with Dr. Ramsey." Stewart further claims that she is a third-party beneficiary of the transportation contract between the City and the agency and that the City is liable for breach of contract.

STANDARD OF REVIEW

¶ 8. When the issues presented on an interlocutory appeal are questions of law, this Court will review those issues, as all other questions of law, de novo. Gant v. Maness, 786 So.2d 401, 403 (Miss.2001). "The standard for reviewing a grant or denial of summary judgment is the same standard as employed by the trial court under Miss. R. Civ. P. 56(c)." Gant, 786 So.2d at 403 (citing Massachusetts Bay Ins. Co. v. Joyner, 763 So.2d 877, 878 (Miss.2000)). This Court conducts de novo review of an order granting or denying summary judgment and examines all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence is viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Id. Issues of fact sufficient to require denial of a motion for summary judgment are present where one party swears to one version of the matter in issue and another says the opposite. Leflore County v. Givens, 754 So.2d 1223, 1225 (Miss.2000). "In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt." Id. (citing Quinn v. Mississippi State Univ., 720 So.2d 843, 846 (Miss.1998)).

ANALYSIS

I. IS THE CITY OF JACKSON IMMUNE FROM LIABILITY IN THIS CASE UNDER THE MTCA?

¶ 9. The MTCA provides the exclusive civil remedy against a governmental entity or its employee for acts or omissions which give rise to a suit. L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1138 (Miss.1999); see Miss. Code Ann. § 11-46-7(1)(Supp.2001). Any tort claim filed against a government entity or its employee shall be brought only under the MTCA. The MTCA waives sovereign immunity from claims for money damages arising out of the torts of governmental entities and their employees. However, certain circumstances are exempt from this waiver of immunity. L.W., 754 So.2d at 1139. See Miss.Code Ann. § 11-46-9 (Supp.2001).

¶ 10. Two such exemptions from waiver are germane to the case sub judice:

(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:

. . .

(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;

. . .

i.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 (Supp.2001).

¶ 11. In Jones v. Mississippi Dep't of Transp., 744 So.2d 256, 260 (Miss.1999), this Court addressed the matter of discretionary functions as follows:

The United States Supreme Court has recognized that the majority of acts in the day-to-day operations of governmental activities involve the exercise of some form of discretion, however, not all of these acts are protected under the exception. In determining the scope of the acts protected under the exception, the Supreme Court held that only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected. `[T]he purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.' In discerning whether a function is afforded immunity under the discretionary function, it must first be determined whether the activity involved `an element of choice or judgment.' If so, it must

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