Williams v. City of Batesville

• Decision Date: 18 March 2021
• Docket Number: NO. 2019-CA-01300-SCT,2019-CA-01300-SCT
• Citation: 313 So.3d 479
• Parties: Sherry WILLIAMS v. CITY OF BATESVILLE, Mississippi
• Court: Mississippi Supreme Court

313 So.3d 479

Sherry WILLIAMS

v.CITY OF BATESVILLE, Mississippi

NO. 2019-CA-01300-SCT

Supreme Court of Mississippi.

March 18, 2021

ATTORNEYS FOR APPELLANT: JOHN THOMAS LAMAR, III, Senatobia, TAYLOR ALLISON HECK

ATTORNEY FOR APPELLEE: ROY JEFFERSON ALLEN

BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.

BEAM, JUSTICE, FOR THE COURT:

¶1. Sherry Williams sued the City of Batesville for negligence in maintaining its sewer system after her home and property were flooded by raw sewage. The circuit court granted the City's summary-judgment motion, finding the City immune from suit.

FACTS AND PROCEDURAL HISTORY

¶2. In the spring of 2015, sewage began backing up into Williams's home and property in the City of Batesville. Williams contacted City officials, who made numerous visits to her home during the twelve months that flooding on Williams's property persisted. After a year of the City's making numerous cost-conscious attempts to alleviate the problem, the City authorized and paid for the installation of a $10,000 separate lift-station pump solely to ensure that sewage did not continue affecting Williams's home.

¶3. On July 12, 2016, Williams filed suit in the Circuit Court of the Second Judicial District of Panola County to recover for extensive property damage, health concerns, and emotional distress. She asserted a claim for negligence, specifically negligent or deliberate failure to properly operate, maintain, supervise, and/or design the sewer system. On September 4, 2018, Williams amended her complaint to include a constitutional inverse-condemnation claim.

¶4. The City filed its summary-judgment motion on November 30, 2018, arguing that it is protected by the Mississippi Tort Claims Act, specifically Mississippi Code Section 11-46-9(1)(d), the discretionary-conduct exception, and Mississippi Code Section 11-46-9(1)(g), the discretionary-purchases exception.¹ Additionally, the City argued the inverse-condemnation claim was unwarranted because the property was not taken and, even if it had been taken, it was not used by the public or for public benefit.

¶5. Williams responded that the City's maintenance of its sewer system is not discretionary and that her property was damaged for the public benefit because the City continued to allow her property to be flooded with raw sewage to save money. Williams attached an affidavit of an engineering consultant, which supported her claim that the City's negligent failure to properly maintain its sewage system caused the extensive and repeated damage to her home.

¶6. The circuit court ruled in favor of the City, finding the City immune from liability under the Mississippi Tort Claims Act.² The court also found that a taking had not occurred. Williams appeals.

LAW AND ANALYSIS

I. Standard of Review

¶7. "[O]n appeal, we review de novo the trial court's dismissal based on MTCA immunity." Wilcher v. Lincoln Cnty. Bd. of Supervisors , 243 So. 3d 177, 181 (Miss. 2018) (citing Fortenberry v. City of Jackson , 71 So. 3d 1196, 1199 (Miss. 2011), overruled on other grounds as recognized in City of Magee v. Jones , 161 So. 3d 1047 (Miss. 2015) ). "Additionally, when reviewing a grant of summary judgment, this Court employs a de novo standard of review." Boroujerdi v. City of Starkville , 158 So. 3d 1106, 1109 (Miss. 2015) (citing Anglado v. Leaf River Forest Prods. , 716 So. 2d 543, 547 (Miss. 1998) ), overruled on other grounds by Wilcher , 243 So. 3d 177.

¶8. "We must consider all of the evidence ‘in the light most favorable to the non-moving party.’ " Id. (quoting Palmer v. Anderson Infirmary Benevolent Ass'n , 656 So. 2d 790, 794 (Miss. 1995) ). "However, the nonmoving party ‘must set forth specific facts showing that there is a genuine issue for trial,’ and cannot simply ‘rest upon the mere allegations or denials of his pleadings.’ " Id. (quoting M.R.C.P. 56(e) ).

II. Whether the circuit court erred by holding that the City was immune under the MTCA.

¶9. The Mississippi Tort Claims Act generally provides sovereign immunity to the state. Miss. Code Ann. § 11-46-3 (Rev. 2019). But the Legislature waived sovereign immunity for "claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment[.]" Miss. Code Ann. § 11-46-5(1) (Rev. 2019). The Legislature then established some exceptions to that limited waiver of immunity. Miss. Code Ann. § 11-46-9 (Rev. 2019).

¶10. At the summary-judgment hearing, the City argued, and the court agreed, that two of those exceptions apply here. The exceptions, codified in Sections 11-46-9(1)(d) and (g), provide:

(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:

....

(d) 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;

....

(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

Miss. Code Ann. § 11-46-9(1)(d), (g) (Rev. 2019).

¶11. Williams argues that these exceptions do not apply because the City was not performing a discretionary function.

¶12. This Court has recently returned to using the public-policy function test articulated in Jones v. Mississippi Department of Transportation , 744 So. 2d 256 (Miss. 1999), after finding the test adopted in Brantley v. City of Horn Lake , 152 So. 3d 1106 (Miss. 2014), unworkable. Wilcher , 243 So. 3d at 181.

¶13. The public-policy function test has two parts. Id. at 187. "This Court first must ascertain whether the activity in question involved an element of choice or judgment." Id. (internal quotations marks omitted) (quoting Miss. Transp. Comm'n v. Montgomery , 80 So. 3d 789, 795 (Miss. 2012) ). "If so, this Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations." Id. (quoting Montgomery , 80 So. 3d at 795 ). "Only when both parts of the test are met does a government defendant enjoy discretionary-function immunity." Id.

¶14. Before employing the test, the Court must "correctly identif[y] ‘the activity in question’—the allegedly tortious act giving rise to the claim." Id. Here, the circuit court found that "the specific activity in this case is the decision to install a lift station in a timely manner, or to fix the issue with Williams's house."

¶15. Williams contends that, as in Wilcher , the circuit court here was mistaken about the tortious activity. In Wilcher , a construction crew removed a bridge to install a culvert and left a giant hole overnight. Id. at 187. The county insisted that the placement of the traffic-control devices was the problem. Id. The Court found that the "tortious act was the construction crew's alleged failure to barricade or warn against the significant drop-off in the road—a condition it created." Id. at 188.

¶16. Williams contends that she does not challenge the City's specific decision about the remedy of installing a lift pump. She concedes that the lift pump ultimately solved the problem. Rather, she challenges the complete initial failure and subsequent failures of the City to properly maintain its sewage lines, which was the sole cause of her damage.

A. Element of Choice or Judgment

¶17. Citing Fortenberry , the City argues that it was performing a discretionary function because maintaining a sewage system involves an element of judgment as provided by Mississippi Code Section 21-27-189(b) (Rev. 2015). Fortenberry , 71 So. 3d at 1201.

¶18. In Fortenberry , the plaintiffs' home was flooded with sewage repeatedly after heavy rains. Id. at 1198. An investigation revealed that a blocked sewer line was causing the backup. Id. This Court held that under the first prong of the public-policy function test, the city's decision to operate and maintain its sewage system involved an element of judgment as provided by Mississippi Code 21-27-189(b). Id. at 1201.³

A municipality, as defined in Section 21-27-163, is authorized and empowered, in the discretion of its governmental authorities , to exercise the following powers and authority within the area and territories comprising the metropolitan area of which it is a part:

.... (b) to construct, operate and maintain sewage systems , sewage treatment facilities and sewage disposal systems in the manner and to the extent required by the metropolitan area plan.

Id. at 1200 (quoting Miss. Code Ann. § 21-27-189(b) (Rev. 2007)).

¶19. We agree that Section 21-27-189 is clear that municipalities have the discretion to create and maintain a sewer system. Miss. Code Ann. § 21-27-189 (Rev. 2015). We now discuss whether the alleged activity here involved social, economic, or political policy considerations.

B. Whether the choice or judgment involved social, economic, or political policy considerations.

¶20. If the court finds that the activity was discretionary, the second step of the public-policy function test requires the court to "decide whether that choice or judgment involved social, economic, or political-policy considerations." Wilcher , 243 So. 3d at 187 (citing Montgomery , 80 So. 3d at 795.

¶21. The City argues that it should not be forced to spend the most money right out of the gate. Further, its decision to use a sliding-scale approach to fix the backup at Williams's house was a discretionary function subject to immunity because it involves financial decisions.

¶22. The circuit court agreed that the City's analysis of how to best, most expediently, most efficiently, and most cost-effectively repair the sewer lines falls under the discretionary-function exception. Therefore, the court found that the approach to the solution...