               IN THE SUPREME COURT OF MISSISSIPPI

                       NO. 2008-CT-00270-SCT

JAMES FORTENBERRY AND LINDA
FORTENBERRY

v.

CITY OF JACKSON, MISSISSIPPI AND
NATIONWIDE MUTUAL FIRE INSURANCE
COMPANY

                      ON WRIT OF CERTIORARI

DATE OF JUDGMENT:              06/08/2007
TRIAL JUDGE:                   HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:     HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:       KEN R. ADCOCK
ATTORNEYS FOR APPELLEES:       PIETER JOHN TEEUWISSEN
                               CLAIRE BARKER HAWKINS
NATURE OF THE CASE:            CIVIL - TORTS-OTHER THAN PERSONAL
                               INJURY & PROPERTY DAMAGE
DISPOSITION:                   THE JUDGMENT OF THE COURT OF
                               APPEALS IS REVERSED AND THE
                               JUDGMENTS OF THE HINDS COUNTY
                               CIRCUIT COURT ARE REINSTATED AND
                               AFFIRMED - 02/10/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


                       CONSOLIDATED WITH

                       NO. 2008-CT-00271-SCT

FLYNN WALLACE AND KATHLEEN WALLACE

v.

CITY OF JACKSON, MISSISSIPPI AND STATE
FARM FIRE AND CASUALTY COMPANY
DATE OF JUDGMENT:                          06/11/2007
TRIAL JUDGE:                               BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                   KEN R. ADCOCK
ATTORNEYS FOR APPELLEES:                   PIETER JOHN TEEUWISSEN
                                           CLAIRE BARKER HAWKINS
NATURE OF THE CASE:                        CIVIL - TORTS-OTHER THAN PERSONAL
                                           INJURY & PROPERTY DAMAGE
DISPOSITION:                               THE JUDGMENT OF THE COURT OF
                                           APPEALS IS REVERSED AND THE
                                           JUDGMENTS OF THE HINDS COUNTY
                                           CIRCUIT COURT ARE REINSTATED AND
                                           AFFIRMED - 02/10/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    This case comes before the Court from the Mississippi Court of Appeals, which found

on appeal that the City of Jackson was not immune from liability under the Mississippi Tort

Claims Act, because its duty to maintain the municipal sewage system was a ministerial

function as set forth by its own 1977 Subdivision Ordinance. The City petitioned for

certiorari and asserts that the Court of Appeals erred because: (1) it did not properly apply

portions of the Mississippi Tort Claims Act; (2) it misconstrued the purpose of Mississippi

Code Section 21-27-189; and (3) it erroneously applied a city ordinance retroactively.

Because municipalities are immune from liability for discretionary functions under the

Mississippi Tort Claims Act, we reverse the decision of the Mississippi Court of Appeals and

reinstate and affirm the judgments of the Hinds County Circuit Court.

                                          FACTS

                                             2
¶2.    The homes of James and Linda Fortenberry and Flynn and Kathleen Wallace were

built in the 1960s in a subdivision that was suited with six-inch clay drainage pipes for the

sewage system. In 1971, the subdivision was annexed by the City of Jackson (“City”), and

later, the City passed a Subdivision Ordinance in 1977 (the “Ordinance”), which mandated

that the sewage pipes installed in the City measure eight inches in diameter. The sewage

system in this neighborhood is the subject of both cases.

¶3.    On different dates in April 2003, raw sewage flooded each family’s home.

Specifically, the Fortenberry home flooded with sewage through its toilets and bathtubs to

a depth of six to eight inches. When the Fortenberry home flooded, the Jackson area had

received 7.38 inches of rain. City workers, responding to a complaint submitted by the

Fortenberrys, found that the City’s sewer main had overflowed because of the large amount

of rainwater and that the owner’s cleanout was not working. Almost three weeks later, the

Wallace home flooded to a depth of one foot. On the day their home flooded, the Jackson

area had sustained 3.24 inches of rain. After investigation, City workers found and then

cleared a blockage in the sewer line that was causing it to choke.

¶4.    Due to the flooding, the Fortenberrys and the Wallaces unsuccessfully submitted

claims to the City. Both families also filed claims with their respective insurers. The

Fortenberrys received $6,700 from their insurer, but the Wallaces received nothing from their

insurer. Both families filed suit in Hinds County Circuit Court against the City, seeking

damages for their losses. The City moved for summary judgment in both cases, asserting

that the City was immune from liability under the Mississippi Tort Claims Act (“MTCA”),

and both claims were dismissed. The Hinds County Circuit Court, First Judicial District,


                                             3
found that, because the operation and maintenance of the City’s sewage system was a

discretionary function, the City was immune from liability under the MTCA, granting

summary judgment to the City.

¶5.    Both families timely appealed. The Court of Appeals combined their cases, as the

issues are the same and involve similar facts. In Fortenberry v. City of Jackson, the

Mississippi Court of Appeals concluded that, under the Ordinance, the duty to operate and

maintain the sewer system is ministerial rather than discretionary, thereby defeating the

protection of the MTCA. Fortenberry v. City of Jackson __ So. 3d __, 2010 WL 522647,

at *6 (Miss. Ct. App. Feb. 16, 2010) . The City unsuccessfully filed a motion for rehearing,

and subsequently filed a writ of certiorari, which was granted by this Court.

                                       DISCUSSION

¶6.    Summary judgment should be granted only when “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.” Miss. R. Civ. P. 56(c). This Court utilizes a de novo standard when

examining a grant or denial of summary judgment. Evan Johnson & Sons Constr., Inc. v.

State, 877 So. 2d 360, 364 (Miss. 2004) (citing Short v. Columbus Rubber & Gasket Co.,

535 So. 2d 61, 65 (Miss. 1988)). “The trial court must carefully review all the evidentiary

matters in the light most favorable to the non-moving party.” Id. (citing Brown v. Credit

Ctrs., Inc., 444 So. 2d 358, 362 (Miss. 1983)). “When doubt exits whether there is a fact

issue, the non-moving party gets its benefit. Indeed, the party against whom the summary

judgment has been sought should be given the benefit of every reasonable doubt.” Brown

                                               4
v. Credit Ctrs., Inc., 444 So. 358, 362 (Miss. 1983) (citing Liberty Leasing Co. v. Hillsum

Sales Corp., 380 F.2d 1013, 1015 (5th Cir. 1967); Heyward v. Pub. Hous. Admin., 238 F.2d

689, 696 (5th Cir. 1956)).

¶7.    Review of a government entity’s immunity under the MTCA triggers de novo review,

since immunity is a question of law. City of Jackson v. Harris, 44 So. 3d 927, 931 (Miss.

2010). The three issues before this Court will be discussed together as one, because the main

issue before the Court is whether the City’s operation and maintenance of its sewer system

is a discretionary or ministerial function. If it is discretionary, the City is immune under the

MTCA.

       A.     The City’s operation and maintenance of its sewer system is a
              discretionary function, and neither state nor federal law causes that
              function to be ministerial.

¶8.    The method of determining whether an act is discretionary or ministerial is well-

settled. See Dancy v. East Miss. State Hosp., 944 So. 2d 10, 16-17 (Miss. 2006). A duty is

discretionary when it is not imposed by law and depends upon the judgment or choice of the

government entity or its employee. See Miss. Dep’t of Mental Health v. Hall, 936 So. 2d

917, 924-25 (Miss. 2006); Poyner v. Gilmore, 158 So. 922, 923 (Miss. 1935). However, a

duty is ministerial if it is positively imposed by law and required to be performed at specific

time and place, removing an officer’s or entity’s choice or judgment. Covington County

Sch. Dist. v. Magee, 29 So. 3d 1, 5 (Miss. 2010) (quoting L.W. v. McComb Separate Mun.

Sch. Dist., 754 So. 2d 1136, 1141 (Miss. 1999). This Court employs the public-policy

function test when determining whether an act of a governmental entity or its employee is

discretionary. Jones v. Miss. Dep’t of Transp., 744 So. 2d 256, 260 (Miss. 1999) (citing

                                               5
U.S. v. Gaubert, 499 U.S. 315, 322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991)). Under this

test, the Court must answer two questions: 1) did the conduct or activity involve an element

of choice or judgment; and if so, 2) did that choice or judgment involve social, economic, or

political policy? Dancy, 944 So. 2d at 16.

                 1.   Under the first prong of the public-function test, the City’s
                      decision to operate and maintain its sewage system involved
                      an element of judgment as provided by Mississippi Code
                      Section 21-27-189(b).

¶9.    The City asserts that its decision to operate and maintain the sewer system is a

discretionary function as provided by statute. The statute on which the City relies reads in

relevant part:

       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.

Miss. Code Ann. § 21-27-189(b) (Rev. 2007) (emphasis added)

¶10.   In this case, Section 21-27-189(b) clearly allows the City to operate and maintain its

sewage system according to its discretion, which alone would satisfy the first prong.

However, the Fortenberrys and the Wallaces assert that the City’s duty became ministerial

once it undertook the obligation to operate and maintain the sewage system, and therefore,

the City cannot escape liability through the MTCA. Both families provide cases in an

attempt to support the proposition that, once the City employs its discretion, a ministerial



                                             6
duty arises to exercise ordinary care in the upkeep of the sewage system in order to provide

reasonably safe conditions. See City of New Albany v. Barkely, 510 So. 2d 805 (Miss.

1987); City of Meridian v. Bryant, 100 So. 2d 860, 862 (Miss. 1958); City of Meridian v.

Sullivan, 45 So. 2d 851 (Miss. 1950); Cain v. City of Jackson, 152 So. 295 (Miss. 1934)

City of Vicksburg v. Porterfield, 145 So. 355 (Miss. 1933); Fewell v. City of Meridian, 43

So. 438 (Miss. 1907); Tyler v. City of Bay St. Louis, 34 So. 215 (Miss. 1903).

¶11.     While the above-cited cases do involve allegedly negligent municipalities and

consequent property damage, none addresses the difference between discretionary and

ministerial functions. Despite the City’s alleged maintenance failures, this Court previously

has held that failing to exercise ordinary care does not remove a governmental act from

immunity under the MTCA. Collins v. Tallahatchie County, 876 So. 2d 284, 289 (Miss.

2004).

¶12.     The Fortenberrys and the Wallaces also rely on City of Jackson v. Internal Engine

Parts Group, Inc., 903 So. 2d 60 (Miss. 2005). In Internal Engine, this Court decided that

the City was negligent for failing to maintain a drainage ditch that had flooded the business

of Internal Engine. Id. at 63. Even though that case is similar, it does not address the central

issue. The neglected maintenance in Internal Engine was not covered by statute, but in this

case, the City’s obligation to operate and maintain its sewage system is specifically made

discretionary by statute. See Miss. Code Ann. § 21-27-189(b) (Rev. 2007). This Court

previously has acknowledged that having a statute bolsters the discretionary distinction. See

State for Use and Benefit of Brazeale v. Lewis, 498 So. 2d 321 (Miss. 1986); see also

Coplin v. Francis, 631 So. 2d 752, 754 (Miss. 1994). In Internal Engine, the issue of

                                               7
whether the City’s decision was discretionary or ministerial was not a question, and here, that

is the central question for the Court. Because the statute clearly permits the City to use its

discretion, the Fortenberrys and the Wallaces cannot rely on the same negligence theory

outlined in Internal Engine to support their claims.

¶13.   While the Fortenberrys and Wallaces further provide statements made by the City

engineer and complaints made by themselves and/or their neighbors over the course of a

three-year period, no authority supports their assertions that the statements and complaints

can convert a statutorily designated discretionary function into a ministerial one. They cite

Mississippi Department of Human Services v. S.W., in which the Court of Appeals had the

difficult task of determining whether DHS was liable to a juvenile who had been sexually

abused by the Department’s employees. Miss. Dep’t of Human Servs. v. S.W. 974 So. 2d

253, 256 (Miss. Ct. App. 2007). There, the court found that the use of a manual, which

outlined preventive procedures, converted the discretionary functions of DHS into ministerial

functions. Id. at 260. This case is different from S.W., because no authority or action

converts the City’s decision from discretionary to ministerial.

¶14.   The Court of Appeals looked to the 1977 Jackson Subdivision Ordinance, which

required larger sewage pipes, to provide that authority, and determined that the City’s

decision was a ministerial function rather than a discretionary function. In making that

determination, the Court of Appeals relied on Mississippi Code Section 21-27-189(b) and

(i) 1 for support. Fortenberry, 2010 WL 522647, at *6. However, Section 205 of the


       1
       Mississippi Code Section 21-27-189(i) authorizes municipalities in their discretion
to “adopt all necessary and reasonable rules and regulations to carry out and effectuate any

                                              8
Ordinance clearly exempts subdivisions established before 1977.2 See Jackson, Miss.,

Ordinances art. II § 205(4) (1977). Nothing in the record establishes that the subdivision in

question is not legally established and recorded, nor is there any indication that this

subdivision has been altered in any way since 1977.

¶15.   The Court of Appeals also relied heavily on the testimony of David Willis, the City

engineer, to determine that there was a genuine issue of material fact as to whether the City’s

decision to operate and maintain its sewage system was discretionary or ministerial. Willis

testified that sewer lines in the subdivision did not meet the minimum pipe size for sewer

lines in the City, required by the Ordinance to provide for sufficient sewage flow through the

City. However, as previously stated, the Ordinance does not apply to the subdivision where

the Fortenberry and Wallace homes are located. Therefore, the minimum size requirements

did not impose a duty upon the City to replace the sewer lines that service the Fortenberry

and Wallace homes.

¶16.   A discretionary function clearly granted by statute cannot be converted into a

ministerial function without some factual basis that removes an officer’s and entity’s choice

or judgment regarding its decision. The Ordinance, cited case authority, and the testimony

of the city engineer all fail to persuade us on this point. Therefore, under the first prong of

the public-policy function test, the City’s decision to operate and maintain its sewage system


waste treatment plan adopted for the metropolitan area.” Miss. Code Ann. § 21-27-189(i)
(Rev. 2007).
       2
          “A subdivision legally established and recorded prior to the adoption of this
Subdivision Ordinance, but only if there are no alterations of said subdivision, shall be
exempt from the requirements of this Subdivision Ordinance.” Jackson, Miss., Ordinances
art. II § 205(4) (1977) (emphasis added).

                                              9
as it saw fit involved an element of choice or judgment as clearly was granted to it by the

Legislature.

                 2.    Under the second prong of the public-function test, the
                       City’s exercise of its judgment provided by Mississippi Code
                       Section 21-27-189(b) involved social, economic, and political
                       policy.

¶17.   U.S. v. Gaubert, from which we adopted our public-function test essentially

considered the social, economic, and political policy components of this test under the

umbrella of the more broad term “public policy,” stating that the Federal Tort Claims Act

protects “governmental actions and decisions based on considerations of public policy.” 3

The City’s decision incorporates public policy, because the Legislature clearly has provided

that municipalities can, in their discretion, decide to operate and maintain their sewage

systems. See Miss. Code Ann. § 21-27-189(b) (Rev. 2007). The Legislature is the best

interpreter of public policy. See City of Starkville v. 4-County Elec. Power Ass’n, 909 So.

2d 1094, 1106 (Miss. 2005). Obviously, the Legislature believed that municipalities are

better suited to make decisions with regard to operating and maintaining their sewage

systems. Therefore, operating and maintaining a sewage system is an exercise of public

policy. Once the City took on the sewage system, it could fairly operate and maintain its

system throughout the City with its best interests in mind. See Coplin, 631 So. 2d at 754-55.

¶18.   Further, operating and maintaining sewage systems clearly implicate, specifically,

both economic and social policy. First, operating and maintaining a sewage system affects

social policy, because the City’s sewage must be removed to promote human welfare in the


       3
           U.S. v. Gaubert, 499 U.S. 315, 323, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991).

                                              10
City. It is clear from the record that this was the City’s objective. Every time a complaint

was made, the City investigated each claim and made repairs accordingly. It is undisputed

that the City did fix problems when they arose. The record contains documentation indicating

that the City workers went to both homes and unplugged the lines causing the flooding.

Thus, it is clear that the City put forth an effort to promote human welfare by trying to solve

problems as they arose.

¶19.   Second, the City’s decision relates to economic policy, because the City must have

the funds necessary to operate and maintain its sewage system. See Coplin, 631 So. 2d at

755. The Fortenberrys and the Wallaces claim the City collects $ 20 million in sewage fees,

which further supports the idea that the City’s decisions relate to economic policy.

Municipalities regularly are faced with the tough decision to maintain and repair their sewage

systems or to replace the systems and incur higher costs. In their attempts to be stewards of

taxpayer dollars and sewage fees, municipalities often are forced to use their discretion in

deciding to repair or replace their sewer lines.

              3.     Federal law does not cause the City’s decision to be
                     ministerial.

¶20.   The Court of Appeals also relied on Mississippi Code Section 21-27-163(m), which

defines a “metropolitan area plan.” Fortenberry, 2010 WL 522647, at *6 (citing Miss. Code

Ann. § 21-27-163 (m) (Rev. 2007)). That section states:

       “Metropolitan area plan” means a comprehensive plan for water quality
       management and the control and abatement of pollution within the
       metropolitan area, consistent with applicable water quality standards
       established pursuant to the Federal Water Pollution Control Act.




                                              11
Miss. Code Ann. § 21-27-163(m) (Rev. 2007). This definition, in addition to statements

made at oral argument, prompted the Court of Appeals to acknowledge federal law. The

Court of Appeals chose not to reach so far as to find a material question of fact, but decided

it was clear that the City’s duty was ministerial. Fortenberry, 2010 WL 522647, at *7.

Because this Court finds that, under Mississippi law, the City’s decision to operate and

maintain its sewage system is discretionary, this Court still must determine whether federal

law transforms the City’s decision into a ministerial function. We find that it does not.

¶21.   Argument was not provided on this issue, but as the Court of Appeals correctly points

out, we can look to other legal authority, because de novo review applies. Id. The Federal

Water Pollution Control Act (the “Act”) makes it unlawful to discharge sewage into the

environment. See 33 U.S.C.A. §§ 1311(a)(1995) and 1362(6)(2008). However, the Act is

a set of goals and policies of Congress, and it does not provide a set of standards that a

municipality must follow in operating and maintaining its sewage system. See 33 U.S.C.A.

§ 1251(1987).4 In fact, the Act defers to the states and their respective municipalities in

deciding how to prevent and eliminate pollution. 33 U.S.C.A. § 1251(b). The plaintiffs

made no allegations that the City was dispersing pollutants into the environment. Here, an

aging sewer line backed up due to excessive rainwater and flooded two homes. Therefore,

this Court must return to the regulations and guidelines as set forth by Mississippi regarding

pollution.




       4
        Mississippi Code Section 21-27-163(n) refers to the Act as 33 U.S.C.S. § 1151.
However, the Act has been amended, and the numbering has been changed to 1251 rather
than 1151. Miss. Code Ann. § 21-27-163(n) (Rev. 2007).

                                             12
¶22.   As previously discussed, Mississippi law provides a municipality with discretion to

operate and maintain its sewage system, but Mississippi has established an agency to monitor

pollution, the Mississippi Department of Environmental Quality (“MDEQ”). The plaintiffs

alleged no law or regulation established by the MDEQ which sets forth a specific procedure

for operating and maintaining sewage systems. Moreover, no allegations were made that the

City is in violation of any state or federal regulation or law or of any of its waste-removal and

treatment permits. Accordingly, the City’s decision remains a discretionary function.

       B.     Liability under the MTCA for discretionary functions

¶23.   The history of sovereign immunity in Mississippi shows that municipalities were not

given immunity with regard to proprietary functions until recently.5 Presley v. Miss. State

Highway Comm’n, 608 So. 2d 1288, 1291 (Miss. 1992); see also Miss. Transp. Comm’n

v. Rector, 663 So. 2d 601, 602 (Miss. 1995). This Court considers a municipality a political

subdivision, which entitles it to the protections of the MTCA. Wayne Gen. Hos. v. Hayes,

868 So. 2d 997, 1003 (Miss. 2004). One of the protections with which a municipality can

shield itself is the waiver-of-immunity exemption based upon the exercise of a discretionary

function. See Robinson v. Indianola Mun. Separate Sch. Dist., 467 So. 2d 911, 915 (Miss.

1985); see also Miss. Code Ann. § 11-46-9(1)(d) (Rev. 2002).                Therefore, when a

municipality, such as the City, otherwise could be liable for a discretionary decision that




       5
         Proprietary functions are somewhat similar to discretionary functions. Proprietary
functions are those not required by statute or law, giving the municipality freedom to carry
out the function or not. Anderson, By and Through Doss v. Jackson Mun. Airport Auth.,
419 So. 2d 1010, 1014 (Miss. 1982).

                                               13
resulted in damage to another, it is shielded from liability through the protections of the

MTCA. See Harris ex rel Harris v. McCray, 867 So. 2d 188, 189-90 (Miss. 2003).

¶24.   The City’s decision is discretionary because it meets both prongs of the public-policy

function test. In addition, the decision made by the City to operate and maintain its sewage

system was a discretionary function granted by statute. Therefore, the Court of Appeals’

decision relying on the Ordinance to find that the City had a ministerial duty to operate and

maintain the sewage system at issue is misplaced. The City’s decision is discretionary under

the principles of the public-policy function test, and the applicable statute allows the City to

operate and maintain its sewer system according to its discretion and without rigid

guidelines.

¶25.   Applicability under any one of the provisions of Mississippi Code Section 11-46-9

provides immunity for a governmental entity and its employees. Miss. Code Ann. § 11-46-9

(Rev. 2002); See State v. Hinds County Bd. of Supervisors, 635 So. 2d 839, 842 (Miss.

1994) (“the State cannot be held liable for damages if the conduct falls within one of the

exceptions found in Miss. Code Section 11-46-9”) (emphasis added). The City’s argument

that the Court of Appeals overlooked Mississippi Code Section 11-46-9(1)(b) is not

necessary, because Section 11-46-9(1)(d) provides the City with immunity. Therefore, the

Court finds that the City has immunity under Mississippi Code Section 11-46-9(1)(d) alone,

without discussion of Mississippi Code Section 11-46-9(1)(b).

                                       CONCLUSION

¶26.   Because the City’s decision to operate and maintain its sewage system is

discretionary, the MTCA applies with full force and purpose. Therefore, the City is immune

                                              14
from liability. There is no material question of fact in that regard, and summary judgment

in the City’s favor is affirmed. Accordingly, we reverse the Court of Appeals and reinstate

and affirm the ruling of the Hinds County Circuit Court.

¶27. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
JUDGMENTS OF THE HINDS COUNTY CIRCUIT COURT ARE REINSTATED
AND AFFIRMED.

      WALLER, C.J., CARLSON, P.J., AND DICKINSON, J., CONCUR. GRAVES,
P.J., CONCURS IN RESULT ONLY.          RANDOLPH, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY LAMAR, KITCHENS AND
CHANDLER, JJ.


       RANDOLPH, JUSTICE, DISSENTING:

¶28.   According to the circuit court, “[w]hen to repair, how to repair, where to repair, and

how much money to spend on repairs are all decisions better left to the city governments of

this state.” In my opinion, the circuit court’s conclusion, upheld by the Majority, is

overbroad and misconstrues the plain language of Mississippi Code Section 21-27-189(b).

(Maj. Op. at ¶ 26). Therefore, I respectfully dissent.

¶29.   Under Section 21-27-189(b), there is no question that the City had the discretionary

authority “[t]o construct, operate and maintain sewage systems . . . .” Miss. Code Ann. § 21-

27-189(b) (Rev. 2007). Stated otherwise, the City was empowered to engage in such

activities by itself, or to defer such functions to the private sector. This decision was indeed

discretionary. But there is a vast difference between the statutorily supported discretion to

engage in such activities, and the practical, mundane, day-to-day operation and maintenance

actions which arise after the exercise of such discretion, to which the statute does not speak.

For example, does the City have the discretion to decline to take water samples to determine

                                              15
its fitness for consumption? Can the City refuse to stop raw sewage from entering its water

supply? May the City simply decline to replace a broken water main on High Street? Once

the City exercises its discretionary “powers and authority” to “construct, operate and

maintain[,]” it is then incumbent that its employees exercise concomitant duties in operation

and maintenance. Miss. Code Ann. § 21-27-189(b) (Rev. 2007). Such duties are neither

exclusively discretionary nor ministerial. Instead, a case-by-case analysis is appropriate.

¶30.   Following the adoption of the Mississippi Tort Claims Act (“MTCA”), this Court

considered a factually analogous case in which Internal Engine Parts Group (“Engine Parts”)

sought damages “for alleged acts of negligence and breach of contract against the City of

Jackson for property damage sustained during a period of heavy rainfall and flooding.” City

of Jackson v. Internal Engine Parts Group, Inc., 903 So. 2d 60, 62 (Miss. 2005). Engine

Parts maintained that the flood damage it sustained was caused by a nearby drainage ditch,

maintained by the City, “that was filled with pre-existing debris and materials which

obstructed the flow of water.” Id. This Court addressed “[w]hether the City was negligent

for failing to inspect and maintain the drainage ditch, and consequently allowing a

dangerous condition to exist.” Id. at 64 (emphasis added). In affirming the circuit court’s

judgment in favor of Engine Parts, this Court stated that “Section 11-46-9 is the applicable

statute to determine the immunity of the City, and § 11-46-9 fails to establish such

immunity.” Id. at 62, 64. Both the circuit court and the Majority attempt to distinguish

Internal Engine by arguing that, unlike the operation and maintenance of a sewage system,

the neglected maintenance of a drainage ditch is not made discretionary by statute. (Maj. Op.

at ¶ 12). But as noted in ¶ 29 supra, the City’s obligations in operation and maintenance of

                                             16
a sewage system are not automatically rendered discretionary by Section 21-27-189(b).

Therefore, I would find that Internal Engine is in direct conflict with the Majority’s holding,

and that it supports reversing the circuit court’s entry of summary judgment on behalf of the

City.6

¶31.     In some instances, the City’s operation and maintenance actions will involve “an

element of choice or judgment” which implicates “social, economic or political policy

alternatives.” Bridges v. Pearl River Valley Water Supply Dist., 793 So. 2d 584, 588 (Miss.

2001) (citing Jones v. Miss. Dep’t of Transp., 744 So. 2d 256, 260 (Miss. 1999)). For

example, the municipality’s annual budgeting meetings addressing system improvements

would likely be discretionary. As the circuit court stated, “[t]his [c]ourt will not mandate

which particular sewage pipes the City should fix, and what amount of monies it should

expend on its sewage repair.” But such logic does not authorize the City to operate and

maintain the sewage system in place with unfettered discretion “and without rigid

guidelines.” (Maj. Op. at ¶ 24). Surely, many day-to-day operation and maintenance




         6
         Moreover, prior to the adoption of the MTCA, this Court repeatedly held
municipalities liable for the negligent maintenance of drains and sewage systems. See City
of Meridian v. Bryant, 232 Miss. 892, 895, 100 So. 2d 860, 861 (1958) (affirming judgment
against the City of Meridian for water damage to the Bryants’ property resulting from the
City permitting debris to accumulate around nearby storm sewers, noting that “the tendency
of drains to become obstructed must be kept in view, and . . . the situation must be remedied
from time to time so as to maintain adequate drainage in each case”); City of Meridian v.
Sullivan, 209 Miss. 61, 68-69, 45 So. 2d 851, 852-53 (1950) (affirming judgment against the
City of Meridian for water damage to Sullivan’s property resulting from the City breaking
a large hole in Sullivan’s culvert and “negligently fail[ing] to keep its own culverts free from
obstructions . . . ”).

                                              17
decisions can be ministerial.7 See ¶ 29 supra (examples provided). The Majority’s approach

paints with too broad a brush, foreclosing the possibility that any (not one) of the City’s

operation and maintenance decisions involving its sewage system may be ministerial. (Maj.

Op. at ¶ 12) (“the City’s obligation to operate and maintain its sewage system is . . . made

discretionary by statute.”).

¶32.   In conclusion, the circuit court erred in granting summary judgment on the “one-size-

fits-all” basis that Section 21-27-189(b) rendered discretionary all of the City’s operation and

maintenance decisions.        In so concluding, I pass no judgment on the cause and/or

forseeability of the backflow of raw sewage at issue, i.e., whether that result was precipitated

by an “act of God” (the heavy rainfall), the disrepair of a homeowner’s cleanout, a blockage

in the homeowners’ service lines and the City’s main sewer line, and/or surface water

entering the sewer lines through cracks. But if the City’s operation or maintenance of the

sewage system is implicated as a cause, then the circuit court must consider whether the

surrounding actions of the City were discretionary or ministerial. That issue cannot be

resolved by Section 21-27-189(b), such that summary judgment predicated thereon was

improper. Therefore, I respectfully dissent.



       7
           This Court has stated that if:

       the duty is one which has been positively imposed by law and its performance
       required at a time 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, the act and discharge
       thereof is ministerial.

Collins v. Tallahatchie County, 876 So. 2d 284, 289 n.9 (Miss. 2004) (quoting Miss. Dep’t
of Transp. v. Cargile, 847 So. 2d 258, 267-68 (Miss. 2003)).

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LAMAR, KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.




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