Webb v. Jackson, 90-CA-0188

• Decision Date: 26 June 1991
• Docket Number: No. 90-CA-0188,90-CA-0188
• Citation: 583 So.2d 946
• Parties: Patricia WEBB v. Charles JACKSON and the City of Newton, Mississippi.
• Court: Mississippi Supreme Court

Page 946

583 So.2d 946

Patricia WEBB v. Charles JACKSON and the City of Newton, Mississippi.

No. 90-CA-0188.

Supreme Court of Mississippi.

June 26, 1991.

Laurel G. Weir, Thomas L. Booker, Jr., Weir & Booker, Philadelphia, for appellant.

Gary E. Friedman, Phelps & Dunbar, Victoria W. Thomas, Ott Purdy & Scott, Jackson, for appellee.

Before HAWKINS, P.J., and SULLIVAN and PITTMAN, JJ.

SULLIVAN, Justice, for the Court:

On October 23, 1989, Patricia Webb filed a Complaint in the Newton County Circuit Court charging Charles Jackson, a police officer employed by the City of Newton, with negligence and assault and battery. The Complaint named the City of Newton as a co-defendant since the alleged tortious conduct of Jackson occurred within the scope of his employment. Jackson and the City of Newton denied the charges in their Answer filed December 22, 1989, and asserted Also filed on that date by Jackson and the City of Newton was a Motion to Dismiss, or, in the Alternative, for Summary Judgment. Included with the Motion were affidavits from Charles Jackson, Dr. Jerry O. Bounds, Jr., and Patrick A. Dunne.

the affirmative defenses of qualified immunity and sovereign immunity.

In response, Webb filed an Amended Complaint. She also filed an affidavit objecting to the Motion for Summary Judgment and a brief supporting her position. Jackson and the City of Newton filed an Answer to the Amended Complaint again asserting the affirmative defenses of qualified and sovereign immunity.

The court entered final judgment on February 13, 1990 granting the defendants' Motion for Summary Judgment. Webb appeals that decision contending that there were genuine issues of material fact so as to preclude summary judgment. She assigns three issues as error.

FACTS

Initially, Patricia Webb alleged that on September 6, 1989, she was on the porch of her house holding her dog. While acting within the scope of his employment, Officer Charles Jackson came to her house and shot at Webb and her dog in a grossly negligent, willful, and malicious manner. The shot killed the dog and although Webb was not hit, the shot was so near to her that it caused dirt and debris to strike her.

As a result of the death of her dog, Webb allegedly suffered actual damages in the amount of $1500.00, which amount is a reasonable value of the dog. She also suffered a great deal of pain and suffering and will continue to do so in the future because of the assault and battery upon her person. Other alleged damages in the Complaint included lost wages and medical expenses. Webb asked that she be compensated for actual and punitive damages in the amount of $3,000,000.00.

Charles Jackson and the City of Newton denied the allegations and asserted affirmatively that Jackson was entitled to qualified immunity because, as a police officer, he was privileged to use reasonable force to protect himself in the course of his duties. The City of Newton denied liability on the basis of sovereign immunity.

The defendants filed a Motion to Dismiss, or, in the Alternative, for Summary Judgment. The Motion urged dismissal of the action on the grounds of qualified and sovereign immunity. Attached to the Motion were three affidavits in support thereof.

The first affidavit was from Officer Charles Jackson. The affidavit contained his version of the events which occurred on September 6, 1989. Jackson said that he was instructed by the Police Chief to find the driver of an eighteen-wheeler which was parked on the corner of Shady Grove and South Main Streets. The truck was obstructing the view of drivers and needed to be moved.

In an effort to find the owner, Jackson walked toward the nearest house to the truck. Hearing a dog barking ferociously from inside the house, he turned to retreat. At about that time, the door opened and the dog charged toward him. He was afraid the dog would harm him, so he shot toward the dog thinking the sound of the shot would stop the dog. He hit the dog in its right rear paw. Webb was standing on the porch approximately ten feet from the dog. The dog was in the yard at the time of the shot.

The second affidavit was from Dr. Jerry O. Bounds, Jr., a veterinarian in Newton. Dr. Bounds stated that he treated a dog belonging to Webb on or about September 6, 1989. The dog had been shot in the right rear paw which necessitated amputation of the outside toe. Dr. Bounds removed the sutures from the amputation on or about September 18, 1989, and at that time, the dog was in good health and had full use of the leg.

The last affidavit was from Patrick Dunne, the Executive Director of the Mississippi Municipal Authority. He stated that the City of Newton is a member of the Mississippi Municipal Liability Plan which was created to set up a reserve fund to protect municipalities from claims not covered In response, Webb filed an Amended Complaint changing her claim that her dog was dead. She said, instead, that the paw of the dog had to be operated on and the cost of the operation was $55.00. However, she alleged that the dog had been a hunting dog with a value of over $1000.00 and had now no value because of the injury. She also inserted a new paragraph alleging that she had permission from the Sunflower Store to park the truck in its parking lot and that the defendants, for no reason at all, demanded that the truck be moved. This allegedly caused great inconvenience which in turn resulted in travel expenses, pain and suffering, worry and anxiety, medical expenses, and lost income.

by a general policy of liability insurance and from claims for which the municipality does not enjoy immunity under the law. Included with his affidavit was a copy of the Bylaws of the Mississippi Municipal Liability Plan.

Webb also filed an affidavit to support her objection to the Motion for Summary Judgment. She denied that she allowed the dog to charge at Officer Jackson and said that there was no reason for Jackson to shoot at the dog or at her since she was holding the dog. She also denied that the truck was obstructing the view of traffic.

The court held a telephonic conference with the parties' attorneys on January 24, 1990. At the close of the conference, the judge ruled in favor of the defendants' Motion for Summary Judgment on the basis that Jackson was entitled to qualified immunity and the City of Newton was entitled to sovereign immunity.

LAW

According to Rule 56 of the Mississippi Rules of Civil Procedure, a 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." A fact is material if it "tends to resolve any of the issues, properly raised by the parties." Mink v. Andrew Jackson Casualty Insurance 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 trial court must view the evidence before it in the light most favorable to the non-moving party, and the non-moving party should be allowed every reasonable doubt. "Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite." Foldes v. Hancock Bank, 554 So.2d 319, 321 (Miss.1989) [quoting Clark v. Moore Memorial United Methodist Church, 538 So.2d 760, 762 (Miss.1989) ]. Where the grant or denial of summary judgment is involved on appeal, we conduct de novo review. Parham v. Moore, 552 So.2d 121, 122-123 (Miss.1989); Short v. Columbus Rubber & Gasket Co., Inc., 535 So.2d 61, 63 (Miss.1988).

I. DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF POLICEMAN CHARLES JACKSON?

Public officials have qualified immunity in a civil action when they have been performing functions which are discretionary in nature. However, three exceptions exist to that rule which, if present, result in the loss of immunity. As stated in McFadden v. State, 542 So.2d 871 (Miss.1989),

When an individual who is a state government official is named as a defendant in a civil action, our law thus directs that he or she enjoy

no immunity to a civil action for damages if his breach of a legal duty causes injury and (1) that duty is ministerial in nature, or (2) that duty involves the use of discretion and the governmental actor greatly or substantially exceeds his authority and in the course thereof causes harm, or (3) the governmental actor commits an intentional tort. Beyond that, a government official has no immunity when sued upon a tort that has nothing to do McFadden, 542 So.2d at 877 [quoting Grantham v. Mississippi Department of Corrections, 522 So.2d 219, 225 (Miss.1988) ].

with his official position or decision-making function and has been committed outside the course and scope of his office.

The difference between a ministerial function and a discretionary function was explained in Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935). A duty or function is ministerial "if the duty is one that has been positively imposed by law and its performance required at a time and 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." Marshall v. Chawla, 520 So.2d 1374, 1375 (Miss.1988) [quoting Poyner v. Gilmore, 171 Miss. 859, 864-865, 158 So. 922, 923 (1935) ].

Webb has asserted two causes of action against Officer Jackson. They are negligence and assault and battery. These are considered separately.

A. NEGLIGENCE

Negligence is not an intentional tort. Therefore, Officer Jackson enjoys qualified immunity unless he was involved in a ministerial duty or the duty was discretionary but he greatly exceeded his authority.

If Officer Jackson loses his immunity under one...