                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2005-CA-01280-SCT

GLEN DANCY

v.

EAST MISSISSIPPI STATE HOSPITAL AND THE
MISSISSIPPI DEPARTMENT OF MENTAL
HEALTH


DATE OF JUDGMENT:                        06/01/2005
TRIAL JUDGE:                             HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED:               LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 ROY GREGG ROGERS
                                         CHRISTOPHER MICHAEL FALGOUT
ATTORNEY FOR APPELLEES:                  EUGENE M. HARLOW
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
DISPOSITION:                             ON DIRECT APPEAL: AFFIRMED. ON
                                         CROSS-APPEAL: DISMISSED AS MOOT -
                                         12/07/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      BEFORE SMITH, C.J., DIAZ AND RANDOLPH, JJ.

      RANDOLPH, JUSTICE, FOR THE COURT:

¶1.   A patient taking part in the Clearing House Unit (“CHU”) Day Program at East

Mississippi State Hospital (“EMSH”) was injured after escaping supervision on a field trip

to Wal-Mart and attempting to commit suicide by running into traffic on Highway 19. The

Circuit Court of Lauderdale County found EMSH and its employees immune from liability

under the discretionary function exemption of the Mississippi Tort Claims Act, see Miss.

Code Ann. Section 11-46-9(1)(d). From that ruling comes this appeal and cross-appeal.
                                          FACTS

¶2.    On January 7, 1994, Glen Dancy (“Dancy”) was committed to EMSH by order of the

Chancery Court of Noxubee County. This was the fourth time Dancy had been committed

to EMSH.1 Between his commitment and the incident, Augustus signed five separate

“Permission for Participation in Activities” slips.2 Prior to the incident, Dancy’s last

attempted escape from EMSH occurred on January 3, 2001.

¶3.    According to the Mississippi Department of Health (“MDMH”):

       it is the goal of mental health to place the patient in the least restrictive
       environment that their condition will allow. And that has been scientifically
       proven to be the most effective way to treat a mentally ill patient. And in
       fulfilling that goal they have a program at [EMSH] that is called the Clearing
       House Unit [“CHU”].

The notes of Dancy’s “treatment team” 3 indicate that “[Dancy] voiced a desire to participate

in the [CHU] [D]ay program.”        According to Veliscia City-Jones (“City-Jones”), an

institutional social worker at EMSH, the difference between CHU clients and CHU Day

Program clients is that Day Program clients:




       1
        According to Dancy’s mother, Georgia Augustus, Dancy was first committed to
EMSH in 1989 after intentionally overdosing on pills, suffering from alcohol problems, and
hallucinating frequently.
       2
        The permission slips were signed on September 6, 1997, September 21, 1998, May
5, 1999, September 23, 1999, and August 7, 2001. They provided for “permission to
participate in activities supervised by hospital staff on and off the grounds of [EMSH] while
[Dancy] is a resident of Continuing Care Unit.” The permission slips also provided that,
“participation in such activities is dependent upon approval of the treatment team and
attending physicians.”
       3
        The “treatment team” consisted of a social worker, a psychologist, a nurse, a
recreation worker, and a psychiatrist.

                                               2
       come over, and they attend groups, and they attend activities with the clients
       at [CHU] for us to monitor and let their treatment team know how we see that
       they’re doing; if they’re capable of transitioning from the unit they were on
       over to [CHU] as a full-time resident of [CHU], to then move to the next step
       to progress out of the hospital.[4]

The criteria for admission into the CHU Day Program is:

       (1) Patients are to be referred by their Treatment Team of Continuing Care
       Services.
       (2) Patients should have ground privileges for at least 2-3 months prior to their
       referral to the CHU Day Program.
       (3) Patients should not be exhibiting any acute psychotic features or behavior
       disorders which could not be adequately managed in an open setting.

Dancy was admitted to the CHU Day Program.

¶4.    Group therapy notes of March 20, 2002, indicate that Dancy successfully participated

in a field trip. Treatment team notes from April 4, 2002, the day of the incident, reveal

“[p]atient has increased control over his hallucinations ... not exhibiting inappropriate

behavior such as stealing from others.”

¶5.    City-Jones arranged for the CHU to take a field trip to Wal-Mart.5 Clearance to plan

and implement the field trip came from a discussion of the treatment team. Dancy expressed

a desire to participate in the field trip. According to City-Jones “if ... [patients] want to go

and [there is] room, [the CHU] ha[s] the green light to take them without consulting any of

their interdisciplinary team.” Since Dancy had been admitted to the CHU Day Program, a



       4
         The stated purpose of the CHU is “[t]o provide each patient treatment in areas that
will help them grow into a more stable and responsible person. It is our belief that we should
support each of our patients by providing a continuing process of rehabilitation in the least
restrictive environment.” (Emphasis added).
       5
       Claire Sims, Director of Activity and Recreation Services at EMSH, stated a primary
purpose of field trips is “to normalize the patients and get them into the community.”

                                               3
decision within the discretion of the treatment team, she felt “that he was to participate in our

programming.”

¶6.    On field trips, a written policy and procedure requirement mandates a patient:staff

ratio of 5:1. On this trip there were twelve patients and three staff members, thus a ratio of

4:1.

¶7.    Separate written permission slips for each field trip were not required by EMSH.

Sims testified “it has just always been understood,” that they would be obtained on an annual

basis. City-Jones stated if there was not an updated permission slip, “[t]hat person would

have been removed from the trip.” According to Dr. Ramiro Martinez, the chief executive

officer of EMSH, the permission slip is “not really necessary if the treatment team fel[t] like

the individual is progressing to that point.” Although Dancy’s mother had signed permission

slips in the past, she now claims she “informed the hospital that I did not want him removed

for any reason. I was not informed of the trip to Walmart ... .” She asserts that “his mind

wasn’t good at that time.” She now claims to have understood that EMSH needed her

permission to take Dancy on each specific field trip, in spite of the fact that she signed only

one permission slip annually. Two or three days after the incident, Augustus received

another “Permission for Participation in Activities” slip, which she did not sign.

¶8.    Regarding patient observation on field trips, Dr. Martinez stated there were no formal

policies or procedures. EMSH employees explained that on field trips the staff members are

“supposed to be where they can observe.” Recreation assistant Debbie Eggleston stated

“[e]ach staff member that attended Wal-Mart had a certain group of [patients]” to watch.




                                               4
However, such observation did not preclude situations where patients may walk out of sight

of the supervising staff member.

¶9.    The use of physical force by staff members was also not a matter of formal policy.

In most situations, City-Jones stated that “the normal procedure ... would be to contact [the]

security office at [EMSH]. And then they would make the determination of what steps they

take.” Prior to the arrival of security, physical force would be appropriate “where a client

is a danger to self or a danger to others.” According to Sims, “common sense” and

experience were the mandated protocol in such situations. Dr. Martinez provided that a

patient may be physically restrained if such restraint is possible and “the patient is becoming

... markedly disturbed and [it is] for his safety.”

¶10.   Each staff member on the field trip had experience regarding off-grounds trips. The

trip to Wal-Mart was aptly described by the circuit court as follows:

       [w]hile at Wal-Mart, [Dancy] was allowed to browse. After a short while,
       [Dancy] approached [City-Jones] with a Wal-Mart shopping bag, which
       contained a Walkman radio. [City-Jones] asked [Dancy] if he had a receipt
       and [Dancy] responded that he had lost the receipt. [City-Jones] escorted
       [Dancy] to the electronics department and [City-Jones] asked the clerk if
       [Dancy] had purchased the Walkman. The Wal-Mart clerk responded no.
       Then, [City-Jones] escorted [Dancy] to the front of the store to ask the check
       out clerks if [Dancy] had purchased the radio. At that point, [Dancy] tried to
       leave the store with the Wal-Mart shopping bag containing the radio and the
       alarm system activated. [Dancy] then came back into the store and went in the
       opposite direction from [City-Jones].




                                               5
       Then [City-Jones] called the CHU to advise them of the situation.[6 ] [City-
       Jones] stayed at the front of the store in an attempt to ensure that [Dancy] did
       not leave the store. At some point, Debbie Eggleston, another EMSH
       employee, came to the front of the store and [City-Jones] informed her of the
       situation. A few minutes afterward, [Dancy] came back to the front of the
       store, without the shopping bag, and had the Walkman radio out of its box,
       attached to his body with the headphones on. [Dancy] made another attempt
       to leave [the] store and Ms. Eggleston got his attention. At that point, one of
       the Wal-Mart customer service managers tried to talk to [Dancy]. Ms.
       Eggleston and the customer service manager convinced [Dancy] to relinquish
       the Walkman. As a result, [Dancy] became agitated and his behavior began
       to escalate.[7 ] [City-Jones] and Ms. Eggleston attempted to talk to [Dancy].
       However, [Dancy] walked out of the Wal-Mart store exit. [City-Jones]
       followed [Dancy] out of the store and called for him to return. Despite her
       efforts, [Dancy] continued to walk through the Wal-Mart parking lot. [City-
       Jones] continued in her efforts to call after [Dancy], while watching him leave
       the parking lot, cross over Highway 19 and proceed up the [h]ighway until he
       was out of her sight.

       [City-Jones] called the [CHU] back to inform them that [Dancy] had left the
       Wal-Mart parking lot.[8 ] Thereafter, [Dancy] jumped in front of a vehicle [on]
       Highway 19 ... .

Dancy later claimed that he was trying to kill himself “[b]ecause [he] wanted a radio.” As

a result of his injuries, Dancy alleges that he cannot run or jump. He has since been

readmitted to EMSH and is currently a patient there.


       6
        Specifically, City-Jones called CHU nurse Pamela Watkins and told her “we need
somebody to come get [Dancy], because he is trying to take this Walkman.” This was in
accordance with applicable policy and procedure mandating the notification of a CHU nurse
in escape situations. The nurse then calls security, which Watkins informed City-Jones she
would do. The Wal-Mart was approximately a three-to-four minute drive from EMSH.
       7
     According to City-Jones, “[Dancy] was standing there demanding that they give [the
Walkman] back to him, it was his, he had bought it, he wanted it back ... .”
       8
        This occurred five to ten minutes after her initial call. She told nurse Watkins that
Dancy “had left the actual physical parking lot, and that we needed somebody to get him.
Told her which way he was going on [Highway] 19.” City-Jones stated that she did not see
Dancy’s escape as a threat to his health “until he got to where he was going to go out into
the highway.”

                                              6
¶11.   Dancy filed a complaint against EMSH alleging that “[t]he actions of [EMSH] were

negligent and in reckless disregard for the safety and well being of [Dancy]. The actions of

[EMSH] proximately caused [Dancy’s] injuries ... .” Additionally, the complaint asserted

that Augustus “affirmatively informed [EMSH] that she did not want [Dancy] removed from

the facility for any reason, due to his mental condition and subsequent behavior.”

¶12.   MDMH pled, inter alia, that “[Dancy’s] claims are barred by the provisions of the

Mississippi Code Annotated Section 11-46-9 and in particular subsections (1)(b), (c), (d), (e),

(f), (g), (h), (m), and (r).” MDMH filed a motion to dismiss and/or in the alternative motion

for summary judgment in the circuit court. In support of its motion, MDMH argued that “the

actions of EMSH were discretionary; therefore, MDMH is entitled to immunity pursuant to

Miss. Code Ann. Section 11-46-9(1)(d).”

¶13.   In response to the motion for summary judgment, Dancy argued that the functions of

the defendants were ministerial, not discretionary, and, therefore, they were not entitled to

immunity. Dancy also asserted if one assumed the functions were discretionary:

       it is clear and convincing from the testimony of the employees of the
       Defendant that ordinary care was not used and that the employees of the
       Defendant showed reckless disregard for the safety of [Dancy] in the execution
       of the policies and procedures of the Defendant on this field trip.

¶14.   In its memorandum opinion and judgment, the circuit court concluded that:

       the actions of the employees in the handling of the patients and the
       implementation of the policy w[as] discretionary. ... [W]here the employee is
       required to rely upon his own judgment in the performance of a duty, that duty
       is discretionary. The employees had to use their own judgment in how the
       patients were allowed to roam around the store ... . [T]he Court is of the
       opinion that taking patients on field trips is discretionary and that the
       employees of EMSH are immune even if that discretion is abused. [See Miss.
       Code Ann. Section 11-46-9(1)(d)]. Therefore, this Court is of the opinion that


                                              7
       the Motion for Summary Judgment is well taken and that the MDMH is
       immune from liability under Section 11-46-9[(1)](d), MCA. As such, the
       Court finds the MDMH is entitled to a judgment as a matter of law.

(Emphasis added).9

                                          ISSUES

¶15.   The following two issues were raised, the first on appeal and the second on cross-

appeal:

       I. Whether the circuit court erred in dismissing all of Dancy’s claims as barred
       by discretionary function immunity.
       II. Whether the circuit court erred in denying MDMH’s motion to dismiss for
       improper and/or insufficient service of process.

This Court finds Issue I is dispositive, and therefore, addresses only that issue. This Court

dismisses the cross-appeal as moot.

                               STANDARD OF REVIEW

¶16.   This appeal involves whether a governmental entity is exempt from liability under the

Mississippi Tort Claims Act. In Mitchell v. City of Greenville, 846 So. 2d 1028 (Miss.

2003), this Court stated:

       [i]mmunity is a question of law and is a proper matter for summary judgment
       under Miss. R. Civ. P. 56.
       This Court reviews de novo a trial court’s summary judgment. Short v.
       Columbus Rubber & Gasket Co., 535 So. 2d 61, 65 (Miss. 1988). All
       evidence is viewed in the light most favorable to the non-movant. Palmer v.
       Biloxi Reg’l Med. Ctr., Inc., 564 So. 2d 1346, 1354 (Miss. 1990).

Mitchell, 846 So. 2d at 1029-30. Therefore, we review de novo.




       9
        The circuit court additionally concluded that “[n]one of the evidence before the Court
indicates that EMSH employees acted with reckless disregard for the safety of the Plaintiff.”

                                              8
                                        ANALYSIS

       I.     Whether the circuit court erred in dismissing all of Dancy’s claims
              as barred by discretionary function immunity.

¶17.   “The [Mississippi Tort Claims Act] waives sovereign immunity from claims for

money damages arising out of the torts of governmental entities and their employees ... .”

L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136, 1138 (Miss. 1999). However,

certain circumstances are exempt from this waiver of immunity. One such exemption

provides:

       [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) [b]ased
       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. Section 11-46-9(1)(d) (emphasis added).10 This Court has stated that:

       Section 11-46-9 appears to be patterned after 28 U.S.C. § 2680(a), the
       ‘discretionary function’ exception to the Federal Tort Claims Act. 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


       10
        The Federal Tort Claims Act has a similar exemption which provides that the United
States Government is not liable for:

       any claim based upon an act or omission of an employee of the Government,
       exercising due care, in the execution of a statute or regulation, whether or not
       such statute or regulation be valid, or based upon the exercise or performance
       or the failure to exercise or perform a discretionary function or duty on the
       part of a federal agency or an employee of the Government, whether or not the
       discretion involved be abused.

28 U.S.C. § 2680(a).

                                              9
       decisions, whether made at the operational or planning level, are protected.
       United States v. Gaubert, 499 U.S. 315, 322, 113 L. Ed. 2d 335, 111 S.Ct.
       1267 (1991). ‘The 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.’ Id. at
       323 (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct.
       2755, 81 L. Ed. 2d 660 (1984)).

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

¶18.   “In determining whether governmental conduct is discretionary the Court must answer

two questions: (1) whether the activity involved an element of choice or judgment; and if so,

(2) whether the choice or judgment in supervision involves social, economic or political

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

(Miss. 2001) (citing Jones, 744 So. 2d at 260).11

¶19.   Regarding question (1), this Court must determine whether the function “involved an

element of choice or judgment,” id., i.e. is the function discretionary or ministerial? This

Court has stated that “[a] duty is discretionary if it requires the official to use her own

judgment and discretion in the performance thereof.” T.M. v. Noblitt, 650 So. 2d 1340, 1343

(Miss. 1995) (citing Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (1935)). By

contrast, an act is ministerial “[if] the duty is one which has been positively imposed by law

and its performance required at a time and in a manner or under conditions which are

specifically designated, the duty to perform under the conditions specified not being




       11
        The ordinary care standard is not a consideration under this test as “Miss. Code Ann.
§ 11-46-9(1)(d) exempts governmental entities from liability of a discretionary function or
duty ‘whether or not the discretion be abused.’” Collins v. Tallahatchie County, 876 So. 2d
284, 289 (Miss. 2004).

                                             10
dependent upon the officer’s judgment or discretion.” L.W., 754 So. 2d at 1141. See also

Collins, 876 So. 2d at 289.

¶20.   The functions at issue in this case include: (I) admitting Dancy to the CHU Day

Program; (ii) permitting Dancy to attend the field trip to Wal-Mart; (iii) observing Dancy in

Wal-Mart; and (iv) permitting Dancy to leave Wal-Mart without attempting physical

restraint. Neither party alleges that any of these functions lacked “an element of choice or

judgment.” See Bridges, 793 So. 2d at 588. Admission of Dancy to the CHU Day Program,

which included permission to attend Day Program field trips, was within the discretion of the

treatment team. Patient observation on field trips was flexible and did not require staff

members to constantly have patients in sight. The use of physical restraint requires staff

members to make assessment of the situation and then to exercise common sense in making

a judgment call based upon their experience. Therefore, this Court concludes that question

(1) is answered in the affirmative, as the activities involved elements of choice or judgment.

¶21.   Therefore, we address question (2), “whether the choice or judgment in supervision

involves social, economic or political policy alternatives.” Id. There are no economic or

political policy alternatives at issue here, leaving only an analysis of the social policy

alternative. Thus, we are left with a singular inquiry: did the choice or judgment in

supervision involve social policy? Unquestionably, the choice and judgments required of

these state workers emanate from, or relate to, matters of human welfare. The CHU Day

Program seeks to integrate these patients into society as a whole, requiring a multitude of

discretionary decisions by staff members, as opposed to the ministerial functions of the




                                             11
nurses aides in Mississippi Department of Mental Health v. Hall, 936 So. 2d 917 (Miss.

2006).12

¶22.   The policy underlying question (2) is that “[s]tate tort standards cannot adequately

control those government decisions in which, to be effective, the decision maker must look

to considerations of public policy and not merely to established professional standards or to

standards of general reasonableness.” Womble v. Singing River Hosp., 618 So. 2d 1252,

1263 (Miss. 1993) (quoting Pruett v. City of Rosedale, 421 So. 2d 1046, 1051-52 (Miss.

1982)). In making the discretionary function determination, this Court has adopted the




       12
         This case is clearly distinguishable from this Court’s recent decision in Hall. There
a patient in a locked unit at EMSH, who had been described in recent progress notes as a
“danger to herself and others,” 936 So. 2d at 923, was seriously injured after falling from a
third-story window during an escape attempt. See id. at 921. The injured patient, along with
two other patients had taken sheets from a linen closet; freely entered an unlocked, off-limits
conference room adjoining the nurse’s station; removed a window pane (which lacked a
security screen); and attempted to escape. See id. at 923-24. During the escape, most of the
nurse’s aides were watching television. See id. at 924. This Court stated:

       East Mississippi is required by statute to provide patients with mental health
       care and treatment in accord with contemporary professional standards. Miss.
       Code Ann. § 41-21-102(6) (Rev. 2005). Adhering to the mandates of this
       statute is not discretionary, and, therefore, it is ministerial. Dr. Hiatt testified
       that contemporary professional standards dictate that: (1) the doors to rooms
       where a patient might be present and unsupervised should be locked; (2)
       security screens should be placed on windows in rooms where a patient might
       be present and unsupervised; and (3) patients should be monitored in a way so
       that any out-of-the-ordinary actions on the part of the patients might be
       detected.

       We find that the duties East Mississippi owed to its patients were not
       discretionary and that the discretionary function immunity provisions of the
       Mississippi Tort Claims Act do not shield East Mississippi from liability ... .

936 So. 2d at 925 (emphasis added).

                                               12
“public policy function test” announced by the United States Supreme Court in United States

v. Gaubert, 499 U.S. at 322. See Jones, 744 So. 2d at 260. Applying that test, “this Court

must distinguish between real policy decisions implicating governmental functions and

simple acts of negligence which injure innocent citizens.” Gale v. Thomas, 759 So. 2d 1150,

1162 (Miss. 1999). See also Gaubert, 499 U.S. at 323 (quoting Berkovitz v. United States,

486 U.S. 531, 537, 108 S.Ct. 1954, 1959, 100 L. Ed. 2d 531, 541 (1988)) (“when properly

construed, the exception ‘protects only governmental actions and decisions based on

considerations of public policy.’”).

¶23.   In Gaubert, the United States Supreme Court stated “[i]f the routine or frequent nature

of a decision were sufficient to remove an otherwise discretionary act from the scope of the

exception, then countless policy-based decisions by regulators exercising day-to-day

supervisory authority would be actionable. This is not the rule of our cases.” 499 U.S. at

334. Therefore, the mere fact that patient observation and physical restraint are routine or

frequent decisions does not render them devoid of policy implications. Moreover, “[w]hen

established governmental policy, as expressed or implied by statute, regulation, or agency

guidelines, allows a Government agent to exercise discretion, it must be presumed that the

agent’s acts are grounded in policy when exercising that discretion.” Id. at 324 (emphasis

added). Applied here, this standard involves two steps. First, Miss. Code Ann. Section 41-4-

7(g) gives MDMH discretion “[t]o establish and promulgate reasonable minimum standards”

and policies. Second, MDMH has “establish[ed] and promulgate[d]” standards which

authorize discretion on the part of its agents. Patient observation and the physical restraint

of patients provide two examples of such discretion in practice. Therefore, this Court

                                             13
concludes that MDMH’s overall policy of authorized discretion was implicated here. The

choice or judgment involved in patient observation and the physical restraint of patients

“involves social ... policy,” Bridges, 793 So. 2d at 588, such that the governmental functions

at issue were discretionary.

¶24.   Having reached this conclusion, the cross-appeal, Issue II, is moot.

                                      CONCLUSION

¶25.   Accordingly, this Court (1) affirms on direct appeal the circuit court’s judgment that

the governmental functions at issue were discretionary and, therefore, immune from liability

under Miss. Code Ann. Section 11-46-9(1)(d) and (2) dismisses the cross-appeal as moot.

¶26. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: DISMISSED AS
MOOT.

    SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON AND
DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.




                                             14
