Westbrook v. City of Jackson

• Decision Date: 14 September 1995
• Docket Number: No. 92-CA-00382-SCT,92-CA-00382-SCT
• Citation: 665 So.2d 833
• Parties: Jack L. WESTBROOK, Jr., Individually and as Executor of the Estate of Thelma P. Westbrook, Deceased, and Cambridge Mutual Fire Insurance Company v. CITY OF JACKSON, Mississippi; Russell C. Davis, Dale Danks, Jr., and Kane Ditto, Individually and in Their Official Capacities as Mayor or Former Mayors of the City of Jackson, Mississippi; Thomas B. Kelly, Edward L. Cates, Douglas W. Shanks, Nielsen H. Cochran, Fred C. Johnson, Luther L. Roan, Jr., and George Porter, Individually and in Their Official Capacities as Former City Commissioners of the City of Jackson, Mississippi; Louis E. Armstrong, Margaret C. Barrett, Derwood R. Boyles, E.C. Foster, Luther L. Roan, Jr., Doris P. Smith, Marcia Weaver, and Kenneth I. Stokes, Individually and in Their Official Capacities as Members or Former Members of the City Council for the City of Jackson, Mississippi.
• Court: Mississippi Supreme Court

Page 833

665 So.2d 833

Jack L. WESTBROOK, Jr., Individually and as Executor of the Estate of Thelma P. Westbrook, Deceased, and Cambridge Mutual Fire Insurance Company v. CITY OF JACKSON, Mississippi; Russell C. Davis, Dale Danks Jr., and Kane Ditto, Individually and in Their Official Capacities as Mayor or Former Mayors of the City of Jackson Mississippi; Thomas B. Kelly, Edward L. Cates, Douglas W Shanks, Nielsen H. Cochran, Fred C. Johnson, Luther L. Roan Jr., and George Porter, Individually and in Their Official Capacities as Former City Commissioners of the City of Jackson, Mississippi; Louis E. Armstrong, Margaret C. Barrett, Derwood R. Boyles, E.C. Foster, Luther L. Roan, Jr., Doris P. Smith, Marcia Weaver, and Kenneth I. Stokes, Individually and in Their Official Capacities as Members or Former Members of the City Council for the City of Jackson, Mississippi.

No. 92-CA-00382-SCT.

Supreme Court of Mississippi.

Sept. 14, 1995.

Rehearing Denied Dec. 21, 1995.

Paul Roger Googe, Jr., Gerald & Brand, L. Pepper Cossar, Markow Walker Reeves & Anderson, Jackson, for appellant.

Michele M. Purvis, Terry Wallace, William A. Gowan, Jr., Jackson, for appellee.

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

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION

This opinion addresses principally the issue of a city's claim of sovereign immunity in the providing of water for fire protection within the city, and the assertion that the city had waived its immunity through the maintenance of a claims fund. Thelma Westbrook's home burned, allegedly from lack of water for fire protection, and her estate sued the City of Jackson for damages. The trial court granted a M.R.C.P. 12(b)(6) motion to dismiss or alternatively a M.R.C.P. 56 motion for summary judgment, from which Westbrook appeals, asserting the following grounds:

1) WHETHER UNDER THESE CIRCUMSTANCES THE CITY OF JACKSON'S ACTS ARE PROPRIETARY OR GOVERNMENTAL UNDER MUNICIPAL SOVEREIGN IMMUNITY; WHETHER THE CITY'S OFFICIALS ARE PROTECTED BY QUALIFIED IMMUNITY; AND WHETHER SOVEREIGN IMMUNITY VIOLATES STATE OR FEDERAL CONSTITUTIONAL PRINCIPLES.

2) WHETHER THE CLAIMS FUND IS A WAIVER OF SOVEREIGN IMMUNITY, AND WHETHER ITS OPERATION IS A VIOLATION OF STATE OR FEDERAL CONSTITUTIONAL GUARANTEES.

II. STATEMENT OF THE FACTS

In 1971, the City of Jackson annexed an area which included a home owned by Thelma Westbrook. In the agreed annexation order, the chancellor directed the City of Jackson to provide the proper level of municipal services, including fire protection. The enabling ordinance proposed for the annexation stated that the City of Jackson would install any water lines within five years of the annexation, "where necessary and economically feasible." The City of Jackson determined that the cost in materials alone to provide fire protection through a water line and main, with domestic water through a water line to the Westbrook property, would be $32,100. Mayor Dale Danks and George Porter, a city commissioner, addressed Mrs. Westbrook's concerns, and stated that the City of Jackson regretted not providing that service because of the cost.

On February 12, 1989, the Westbrook home burned. The fire report noted that the house was a total loss, and that water supply would prevent a possible loss to nearby homes in the future. The fire report also stated that the closest water source was 1000 feet away, with the closest fire main being over 1/2 of a mile away. A later calculation determined the nearest fire main was 7/10 of a mile away. The fire investigator's report noted that the fire department had begun to suppress the flames when they ran out of water. The fire investigator's report concluded that the delayed response and shortage of water caused the fire to destroy the home. The Chief of the Jackson Fire Department stated that the lack of water was a problem in controlling the fire. The investigator's report estimated the loss at $550,000. A later estimate calculated losses at $715,560.

Charles Westbrook became the executor of the Westbrook estate after Thelma Westbrook's death. Westbrook filed suit, alleging that the City of Jackson had failed to provide water line extensions for fire protection to the Westbrook property. Cambridge Mutual Fire Insurance Company, the insurer of the Westbrooks' home, joined in this suit to recoup its insurance payment of $300,000 to the Westbrooks. The City of Jackson denied having failed its duty to carry out the terms of the annexation, contending that it was economically infeasible to provide the water lines. Also, the City of Jackson denied that it failed to provide municipal level fire service to the Westbrook property, contending the city provided fire trucks which responded to the fire call.

Westbrook asserts that the city maintains a claims fund from which claims made against the city are paid. Westbrook attempted to remove his action to federal court, since his complaint alleged federal causes of action in addition to supplemental state causes. The federal court dismissed the federal law causes of action, and remanded the remaining causes to the state court. Westbrook v. City of Jackson, 772 F.Supp. 932, 935-43 (S.D.Miss.1991).

The City of Jackson made a M.R.C.P. 12(b)(6) motion to dismiss this case, asserting immunity from suit for both the municipality and its officers. The trial court judge granted the motion on sovereign immunity grounds against both the City of Jackson and its officials. The trial court also found no waiver of immunity.

III. ANALYSIS

Standard of Review

This action is reviewed as a M.R.C.P. 56 summary judgment motion, despite Westbrook's assertions of error indicating this appeal is from a M.R.C.P. 12(b)(6) motion to dismiss judgment. Both M.R.C.P. 12(b) and M.R.C.P. 12(c), when dealing with judgment on the pleadings, state if "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." There are over 400 pages in the court papers in this case, including the responses to interrogatories and other supporting documents. As several courts hold that the responses of interrogatories and other discovery tools constitute matters presented outside the pleadings, this matter is appropriate for summary judgment. Storey v. United States, 629 F.Supp. 1174, 1180 (N.D.Miss.1986); Calacino v. McCutcheon, 177 W.Va. 684, 356 S.E.2d 23, 24 n. 1 (1987); see Walton v. Bourgeois, 512 So.2d 698, 700 (Miss.1987).

This Court employs a de novo review on grants of summary judgment. Owen v. Pringle, 621 So.2d 668, 670 (Miss.1993). The trial court must review the evidence in a means most favorable to the nonmoving party. Sanford v. Federated Guaranty Ins. Co., 522 So.2d 214, 217 (Miss.1988). Only if the moving party "is entitled to summary judgment as a matter of law," should the trial court grant summary judgment. Sanford, 522 So.2d at 217; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214 (1986).

1) WHETHER UNDER THESE CIRCUMSTANCES THE CITY OF JACKSON'S ACTS ARE PROPRIETARY OR GOVERNMENTAL UNDER MUNICIPAL SOVEREIGN IMMUNITY; WHETHER THE CITY'S OFFICIALS ARE PROTECTED BY QUALIFIED IMMUNITY; AND WHETHER SOVEREIGN IMMUNITY VIOLATES STATE OR FEDERAL CONSTITUTIONAL PRINCIPLES.

A.

Sovereign immunity cloaks all governmental functions a city performs. Webb v. Jackson, 583 So.2d 946, 952 (Miss.1991). This Court defines governmental functions as those which the city is required to undertake. Anderson v. Jackson Mun. Airport Auth., 419 So.2d 1010, 1014 (Miss.1982). ¹

This Court has determined that the operation of a fire department is a governmental function. Jones v. City of Amory, 184 Miss. 161, 167, 185 So. 237, 238 (1939); City of Hattiesburg v. Geigor, 118 Miss. 676, 685, 79 So. 846, 847 (1918). More specifically, this Court has determined that the supply of water to combat fires, and fire fighting in general, is a governmental function. City of Columbus v. McIlwain, 205 Miss. 473, 487, 38 So.2d 921, 923 (1949). This principle holds regardless of whether the same supply provides drinking water, which is a proprietary activity. City of Columbus, 205 Miss. at 487, 38 So.2d at 923. In Mississippi, the governmental/proprietary distinction for cities still exists. As a result, Mississippi maintains sovereign immunity for its municipalities' fire protection, since governmental function immunity still protects that service.

Westbrook also raises the question of a city losing sovereign immunity through negligence per se. ² Wall v. City of Gulfport, 252 So.2d 891, 893 (Miss.1971), stands for the proposition that a city's failure to follow its own ordinance may convert a governmental function into a proprietary action. The City of Gulfport was made liable because the ordinance specifically directed the city to place a traffic control light or sign at a certain spot, which it failed to do. Wall, 252 So.2d at 893. The annexation ordinance in this case is distinguishable, because it does not require the specific placement of water lines or mains in a certain point. Negligence per se is not applicable here.

B.

The next question is whether the City of Jackson's officers have immunity in this case. Governmental officers are immune from personal liability if the decision to provide water lines to a property, or certain aspects of fire protection to a property, is a discretionary matter involving "public policy decisions." Sullivan v. Sumrall, 618 So.2d 1274, 1276 (Miss.1993).

Westbrook argues that the annexation ordinance required the City of Jackson to provide municipal level fire protection, making its provision ministerial in nature, as there was no choice but to provide that protection. Furthermore, Westbrook asserts that the City of Jackson's failure to provide service in the face of this ordinance was an intentional tort. Either assertion would serve...