                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2016-CA-01384-SCT

IN THE ESTATE OF PATRAUNA HUDSON:
FANNY HUDSON, INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF PATRAUNA
HUDSON

v.

YAZOO CITY, MISSISSIPPI


DATE OF JUDGMENT:                        08/09/2016
TRIAL JUDGE:                             HON. JANNIE M. LEWIS
TRIAL COURT ATTORNEYS:                   ROBERT S. ADDISON
                                         STEVEN JAMES GRIFFIN
                                         BARRY W. HOWARD
                                         WALTER WILLIAM DUKES
                                         BRADLEY EUGENE DEAN
                                         WILEY JOHNSON BARBOUR
COURT FROM WHICH APPEALED:               YAZOO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 DAVID NEIL McCARTY
                                         BARRY W. HOWARD
ATTORNEYS FOR APPELLEE:                  ROBERT S. ADDISON
                                         STEVEN JAMES GRIFFIN
NATURE OF THE CASE:                      CIVIL - WRONGFUL DEATH
DISPOSITION:                             REVERSED AND REMANDED - 06/28/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.

      BEAM, JUSTICE, FOR THE COURT:

¶1.   This case arises from the tragic 2014 death of nine-year-old Patrauna Hudson, who

drowned in flash-flood waters that swept through a drainage ditch that ran alongside her

family’s residence. Patrauna’s estate (the “Estate”) filed suit against Yazoo City for
wrongful death under the Mississippi Tort Claims Act (MTCA). The Yazoo County Circuit

Court granted summary judgment in favor of Yazoo City (the “City”) on all claims filed

against it by the Estate, having found Yazoo City immune from liability under both the

discretionary-function exception and the open-and-obvious exception contained in

Mississippi Code Section 11-46-9. Miss. Code Ann. § 11-46-9(1)(d) and (v) (Rev. 2012).

¶2.    The Estate appeals, maintaining that Yazoo City violated numerous city ordinances,

along with certain federal regulations, when the City converted a portion of the drainage

ditch downstream from the Hudson residence into a covered tunnel with two side-by-side

culverts in 2007. The Estate argues that these laws imposed a ministerial duty upon Yazoo

City, and the City breached that duty by failing to comply with all the mandatory

requirements prescribed by these laws when the city implemented and carried out the 2007

project. Therefore, the Estate contends, the City is not immune from liability under Section

11-46-9(1)(d).

¶3.    The Estate further maintains the trial court erred in finding that the “open and

obvious” exception provided by Section 11-46-9(1)(v) was applicable in this case. The

Estate says the flood danger caused by the City’s failure to comply with these mandatory

requirements was not open and obvious, and further, subsection (v) is inapplicable to a nine-

year-old child who is incapable of negligence.

¶4.    We find that the Estate’s claim that Yazoo City is liable for the wrongful death of

Patrauna that resulted from Yazoo City’s failure to comply with its ordinances and federal




                                             2
regulations under the National Flood Insurance Program (NFIP), fails as a matter of law for

failure to state a cause of action.

¶5.    We also find that the Estate alleged in its complaint that Yazoo City was liable for

negligently failing to maintain its drainage ditches. The Estate, however, abandoned this

claim under the auspices of the test adopted by this Court in Brantley v. City of Horn Lake,

152 So. 3d 1106 (Miss. 2014), which we recently overruled in Wilcher v. Lincoln County

Board of Supervisors, 2016-CA-01429-SCT, 2018 WL 2371859 (May 24, 2018). Based on

our de novo review of the record, there is slight evidence, which if developed further, may

create a genuine issue of fact with regard to this claim. We find the Estate should be given

the opportunity to do so.

¶6.    Also, we find the trial court’s ruling as to the open-and-obvious exception provided

by Section 11-46-9(1)(v) was premature in this instance because factual questions currently

remain, according to our review of the record.

¶7.    Accordingly, we reverse and remand for further proceedings consistent with this

Court’s opinion.

                        FACTS AND PROCEDURAL HISTORY

¶8.    On April 6, 2014, an intense storm system moved through Yazoo City, pouring five

to six inches of rain on the area in a short amount of time. Patrauna lived at the corner of

Seventh Street and Lamar Avenue with her mother, Fannie Hudson, and several of her

younger brothers and sisters, the family having moved there six months earlier.




                                             3
¶9.    At approximately 8:00 p.m., Fannie instructed the children to go to their rooms and

get ready for bed. When Fannie went to check on the children, Patrauna’s eight-year-old

sister Patrice told Fannie that Patrauna had gone out the back door to go swimming. Patrice

and the clothes she was wearing were soaking wet.

¶10.   According to Fannie, the family’s entire back yard was flooded with water from the

ditch that evening, which came up to the back steps of the family home. Fannie did not know

exactly how Patrauna had ended up in the water. She said Patrice told her that Patrauna had

pushed her (Patrice) into the water, and after Patrice got out, Patrice then had pushed

Patrauna into the water. Fannie said according to Patrice, once Patrauna was in the water,

Patrauna tried to come back, but the water pulled her back toward the ditch.

¶11.   Patrice later stated in an affidavit: “On the day my sister drowned [Patrauna] was

outside in the backyard playing like she was swimming. When [Patrauna] got out by the

clothes line the water start[ed] to pull her. She tried to come back but the water pulled her

back until it pulled her into the ditch.”

¶12.   When Fannie went outside to look for Patrauna, she saw a police officer and other

individuals on the street that runs alongside her house. They all appeared to be searching

around the ditch. Fanny asked them if they had seen a little girl. The officer told Fanny to

go back in the house to make sure she was not inside. Fanny went back inside and searched

but could not find Patrauna.




                                             4
¶13.   Law enforcement and community members searched for Patrauna throughout the

evening. Her lifeless body was found by a search team the following evening in a drainage

ditch about four blocks from her family’s residence.

¶14.   In March 2015, the Estate filed suit against Yazoo City under the MTCA, claiming

Yazoo City had failed to (a) warn Patrauna of the dangerous nature of the Seventh Street

drainage ditch; (b) adequately maintain, repair, and inspect the drainage ditch; and (c) require

construction and improvements be performed to the drainage ditch in accordance with

existing engineering standards, with approval of the appropriate governmental agency.

¶15.   Discovery ensued, during which numerous depositions were taken. The Estate

submitted an affidavit from Gillian Butler, a private civil engineer in the field of hydrologic

and hydraulic engineering. For her expert opinion, Butler relied on all the depositions taken

in the case, along with Yazoo City ordinances, flood-insurance study reports, National Flood

Insurance Program (NFIP) regulations, public-safety guidelines, and other information.

¶16.   Butler submitted a report with her affidavit, detailing a hydraulic analysis she had

conducted on two, side-by-side culverts installed downstream from Patrauna’s residence in

2007. Each culvert is approximately 405 feet in length, and forty-eight inches and thirty-six

inches in diameter, separately. According to Butler’s report, the two culverts increased the

flood height upstream by approximately two inches and the velocity of flood water at the

culvert inlet by 0.35 feet per second.

¶17.   Butler opined that, prior to 2007, “storm water appears to have flowed along Seventh

Street between Lee Street and Prentiss Avenue in an open ditch (save for the Lee Street



                                               5
crossing).” Based on board minutes taken from a city council meeting held in February 2007

by the Mayor and Board of Aldermen, action was taken to purchase 800 linear feet of

drainage pipe for the Seventh Street ditch. The project appeared to have begun in late March

or early April 2007.

¶18.   In Butler’s opinion, the decision to convert the Seventh Street ditch between Prentiss

and Lee Avenues into culverts should have triggered an application for a “floodplain

development permit.” In turn, the application should have included an engineering analysis,

along with public-safety considerations under the guidelines and standards for the installation

of long culverts. According to Butler, Yazoo City did not follow these guidelines and

standards, and the failure to do so led to the dangerous condition that caused Patrauna’s

drowning.

¶19.   James Wayne Morrison, a private civil engineer who provides engineering consulting

services to Yazoo City, explained in his deposition that the Seventh Street drainage ditch is

part of the Willis Creek drainage system, which was dug in the 1940s. This system

originated as a series of open ditches throughout Yazoo City. Morrison said Yazoo City is

protected by a levee, and everything that drains inside the levee eventually makes its way to

Lake Yazoo, where it is then pumped over the levee into the Yazoo River.

¶20.   In describing the course that rainwater runoff takes from Seventh Street to the Yazoo

River, Morrison said the “water drains from the hills in a western direction to a lateral ditch

through the lateral ditches of [Seventh] Street and then to Martin Luther King and traverses




                                              6
on to the south side of [Seventh] Street [where] it intersects the main trunk line of the Willis

Creek Drainage District and then goes south into Lake Yazoo.”

¶21.   According to Yazoo City, the “Drainage District dissolved in 1995, [and] its land

interests within the city limits were conveyed to Yazoo City, including the drainage easement

that runs along Seventh Street.” The only significant improvement project involving the

Seventh Street drainage ditch between the time Yazoo City acquired the drainage easement

in 1994 and the date of Patrauna’s drowning occurred in 2007, when parallel culverts were

installed and covered along the ditch from Lee Avenue to Prentiss Avenue.

¶22.   Morrison said the 2007 project was a joint project with Yazoo County. The county

supplied the culverts, the equipment, and most of the manpower. Morrison said the City

authorized approximately 800 feet of drainage pipe to be laid on Seventh Street, and the City

split the cost with the county. Jimmie Drewery, the county road manager, chose the size of

the pipes to match the size of the pipes that already existed under the roadway, one forty-

eight inches in diameter, and the other thirty-six inches in diameter. The pipes were laid

parallel to each other for approximately 400 feet.

¶23.   Morrison said his only advice in the project was that the county use bituminous coated

pipe “so that the pH of the soil wouldn’t eat up the pipe too quickly.” Morrison said no

hydraulic analysis was performed in 2007. Morrison conducted a hydraulic analysis of the

parallel pipes in November 2014, after Patrauna’s death. He said the results did not show

any increase in the flow of water in the portion of the ditch located beside Patrauna’s

residence. Morrison clarified, however, that his team did not duplicate the rain conditions



                                               7
of the April 6 event. He said they passed a volume of water equivalent to a ten-year rain

event and a twenty-five-year rain event through the pipes. The April 6 event “was a severe

extraordinary rain event[,]” much greater than a twenty-five-year rain event–which,

according to Morrison, “is a 2 and a quarter inch rain an hour.” Morrison said the parallel

pipes were sufficient to handle “about a 20, 21 year rain event[,]” because that was the design

standard of the existing pipes.

¶24.   The record indicates that the Seventh Street drainage ditch in front of Patrauna’s

residence since has been covered. And Yazoo City has been covering other, similar drainage

ditches throughout the city on a step-by-step basis.

¶25.   The trial court granted summary judgment in favor of Yazoo City, finding that the

City is immune from liability because the maintenance of drainage ditches is a discretionary

function, and also because the ditch was an open and obvious danger.

¶26.   Relying on Brantley, the trial court said it is required first to determine whether the

overarching governmental function at issue is discretionary or ministerial. The court must

then examine any narrower duty associated with the activity at issue to determine whether

a statute, regulation, or other binding directive renders that particular duty a ministerial one,

notwithstanding that it may have been performed within the scope of a broader discretionary

function. Brantley, 152 So. 3d at 1114.

¶27.   The trial court found that, while Yazoo City does have ordinances in place that

regulate the development of flood-prevention structures, it does not appear these ordinances

were intended to assign a ministerial function to the City’s ability to build ditches.



                                               8
Therefore, according to the trial court, the city is immune from liability because maintenance

of the ditch is a discretionary function under Section 11-46-9(1)(d).

¶28.   The trial court also found that, based on the MTCA, a “governmental entity shall not

be liable for the failure to warn of a dangerous condition which is obvious to one exercising

due care.” See Miss. Code Ann. § 11-46-9(1)(v) (Rev. 2012). The trial court found that the

drainage ditch was an open and obvious danger in this matter. Fanny repeatedly had warned

Patrauna not to play in or near the ditch, and Fanny had warned Patrauna on the night in

question not to go near the ditch. The court found the fact that Patrauna was nine years old

and that her age possibly affected her ability to appreciate the open and obvious danger did

not serve as a bar to the open-and-obvious defense.

                               STANDARD OF REVIEW

¶29.   The grant or denial of a motion for summary judgment is reviewed de novo. City of

Magee v. Jones, 161 So. 3d 1047, 1049 (Miss. 2015). The evidence is viewed in the light

most favorable to the party opposing the motion. Id. Only if there is no genuine issue of

material fact is the moving party entitled to summary judgment as a matter of law. Id.

Questions of law, which include proper application of the MTCA, also are reviewed de novo.

Maldonado v. Kelly, 768 So. 2d 906, 908 (Miss. 2000).

                                       DISCUSSION

¶30.   The Estate argues Yazoo City violated numerous ordinances and federal regulations

in its decision to convert a portion of the Seventh Street drainage ditch to culverts in 2007,




                                              9
and this change to the city’s drainage system created the dangerous condition that caused

Patrauna’s death.

¶31.   The Estate maintains that Yazoo City had a ministerial duty to comply with its

ordinances and controlling federal regulations. The Estate argues that because Yazoo City

participates in the National Flood Insurance Program (NFIP), the City, as a participant, is

governed by certain federal regulations, one of which provides: “These regulations must be

legally enforceable, applied uniformly throughout the community to all privately and publicly

owned land with flood-prone . . . areas, and the community must provide the regulations take

precedence over any less restrictive conflicting local laws, ordinances, or codes.” 44 C.F.R.

60.1(b) (2009).

¶32.   The Estate argues that Yazoo City, “in compliance with NFIP federal regulations,”

has adopted numerous ordinances which together required Yazoo City to “(a) obtain a

development permit, (b) submit a plan to the city engineer, (c) conduct a hydraulic analysis,

and (d) obtain an engineer’s certification before implementing the 2007 project.” (Citing

Yazoo City, Miss., Code of Ordinances, §§ 11.5-3, 11.5-4, 11.5-5, 11-5.23, 11-5.32, 11-

5.43(2), 18.7(a) and (b) (2005)). The Estate submits that Butler’s uncontested expert report

sets out that Yazoo City “violated all of these ordinances and this regulation in enacting its

ultimately deadly change in the drainage system of Yazoo City.” For these reasons,

according to the Estate, the duties imposed on Yazoo City were ministerial, not discretionary.




                                             10
¶33.     For authority, the Estate points to Mississippi Transportation Commission v. Adams,

197 So. 3d 406, 412 (Miss. 2016), in which this Court held that the general discretionary

function with respect to placement of traffic control devices was rendered ministerial by the

Mississippi Transportation Commission’s adoption of the Mississippi Standard

Specifications for Road and Bridge Construction (the “Red Book”). Id. at 412-14. Adams

reiterated that, under Brantley, even when a duty might be discretionary, there may be

instances where “narrower duties encompassed in a broad discretionary function may be

rendered ministerial through statute or regulation.” Id. (quoting Brantley, 152 So. 3d at

1113).

¶34.     According to the Estate, as found in Adams, for purposes of Section 11-46-9(1)(d)

immunity, any discretionary function Yazoo City had with the 2007 project was rendered

ministerial by the City’s adoption of the aforementioned ordinances and participation in the

NFIP.

¶35.     Yazoo City argues, however, that maintenance, inspection, and repair of municipal

drainage ditches and channels are discretionary functions as a matter of law. Municipalities

such as Yazoo City are authorized–but not required–under Mississippi Code Section 21-19-

13 to construct and maintain drainage ditches if they choose to do so. That Section provides,

in pertinent part, as follows:

         (1) The governing authorities of municipalities shall have the power to
         establish, alter and change the channels of streams or other water courses, and
         to bridge the same, whenever so to do will promote the health, comfort and
         convenience of the inhabitants of such municipality.




                                               11
       (2) The governing authorities of any municipality shall also have the power
       and authority to incur costs and pay necessary expenses in providing labor,
       materials and supplies to clean or clear drainage ditches, creeks or channels,
       whether on public or private property, and to incur costs and pay necessary
       expenses in providing labor, materials and supplies in order to prevent erosion
       where such erosion has been caused or will be caused by such drainage
       ditches, creeks or channels. This paragraph shall not impose any obligation or
       duty upon the municipality and shall not create any additional rights for the
       benefit of any owner of public or private property.

Miss. Code Ann. § 21-19-13 (Rev. 2015).

¶36.   Yazoo City maintains that because no statutes, ordinances, or regulations impose any

affirmative duty on Yazoo City to maintain, repair, or inspect its drainage ditches, Yazoo

City officials must use their judgment and discretion in determining whether, when, how, and

to what extent these activities are conducted, in accordance with available funding and other

resources. Yazoo City further contends that the Estate’s reliance upon several provisions in

Section 11.5 of the Yazoo City Code of Ordinances and the Yazoo County Flood Prevention

Ordinance is misplaced. These ordinances require private developers to obtain from the City

(or county, if applicable) a development permit before conducting construction activities

within areas designated as special flood hazard areas and specify how to obtain such a

permit. The City argues that these ordinances did not place a ministerial duty on Yazoo City

to obtain a development permit from itself, nor did they place a ministerial duty on the city

engineer to obtain his own authorization before commencing the 2007 project.

¶37.   As mentioned, this Court recently overruled the Brantley test for determining when

a claim against a governmental entity enjoys discretionary-function immunity under Section

11-46-9(1)(d), and restored the two-part, public-policy function test adopted by this Court



                                             12
in Jones v. Mississippi Department of Transportation, 744 So. 2d 256 (Miss. 1999), for

making that determination. See Wilcher, 2018 WL 2371859.

¶38.   Under the two-part, public-policy function test, courts were directed to consider (1)

whether the act involved “an element of choice or judgment; and if so (2) whether the choice

of judgment involved social, economic or political policy [considerations].” Jones, 744 So.

2d at 262. Brantley abandoned this test and instead instructed the courts first to “consider

the broadest function involved in order to make a baseline determination of whether the

overarching function is discretionary or ministerial.” Brantley, 152 So. 3d at 1112-13. After

this determination, further examination was then required to determine whether “any

narrower duty associated with the activity at issue to determine whether a statute, regulation,

or other binding directive renders that particular duty a ministerial one, notwithstanding that

it may have been performed within the scope of a broader discretionary function.” Id. at

1114-15.

¶39.   As Wilcher explained, Brantley’s aim was to create a more workable rule for

determining discretionary-function immunity. Wilcher, 2018 WL 2371859, *3. But while

well-intentioned, the new rule manifested an “unworkable departure from longstanding

precedent,” and overlooked the legislative intent behind Section 11-46-9(1)(d)–most

importantly, “policy” considerations. Id.

¶40.   Wilcher noted that Brantley’s analysis “overcomplicates the process of litigating a

claim and places the success of a claim on the ability of the injured party’s attorney to sift

through the myriad and sometimes arcane regulations–creating extra layers of proof, which



                                              13
may have little or no practical effect on the actual negligent act.” Id. (quoting Crum v. City

of Corinth, 183 So. 3d 847, 854 (Miss. 2016) (Randolph, P.J., concurring in result only)

(emphasis in original)).

¶41.   The other (and probably most significant) result of Brantley was the all-too-apparent

and prevalent misunderstanding among practitioners, based on their reliance on Brantley,

that Section 11-46-9(1)(d) allows for “actions based solely on violations of statutes and/or

local ordinances or regulations, which [practitioners] argue impose ‘ministerial’ duties.”

Wilcher, 2018 WL 2371859, *4. But as Wilcher explained, “this practice is certainly not

what the Legislature intended[, and is in fact] completely backwards.” Id.

¶42.   Wilcher reiterated as follows:

       Section 11-46-9(1) restores sovereign immunity. Simpson Cty. v. McElroy,
       82 So. 3d 621, 624 (Miss. Ct. App. 2011). It does not in itself create duties.
       Id. Furthermore, regulations do not create causes of action, and the MTCA
       does not grant a right to recover based on a mere violation of statute or
       regulation. Taylor v. Delta Reg’l Med. Ctr., 186 So. 3d 384, 390-91 (Miss. Ct.
       App. 2016). The general rule is that ‘a mere violation of a statute or regulation
       will not support a claim where no private cause of action exists.’” Id.
       (quoting Tunica Cty. v. Gray, 13 So. 3d 826, 829 (Miss. 2009)).

Id.

¶43.   Wilcher then pointed out:

       Despite this, Brantley’s analysis wrongly zeroes in on applicable regulations
       and ordinances. And if a regulation is ‘ministerial,’ this Court began to
       presume that the alleged violation of that regulation or ordinance, itself,
       establishes a viable cause of action without even questioning if a claim would
       exist without the regulation.




                                              14
Id. “As a result of Brantley, what the Legislature intended as a shield–discretionary-function

immunity under Section 11-46-9(1)(d)–is flipped on its head and is being used as a sword.”

Id.

¶44.   This is what we have in the case before us. Again, the Estate claims that the NFIP’s

federal regulations and the ordinances adopted by Yazoo City in furtherance of those federal

regulations as part of the City’s participation in the NFIP program, impose a “ministerial

duty” upon the City to comply with those laws, the breach of which–in this instance–allows

for a tortious cause of action arising from wrongful death. But we find that neither the

NFIP’s regulations nor Yazoo City’s related ordinances create any such cause of action.

¶45.   First, as the Fifth Circuit Court of Appeals has explained, the NFIP is a voluntary

insurance program, and its rules do not provide a private right of action. United States v. St.

Bernard Parish, 796 F.2d 1116 (5th Cir. 1985). “[T]he principal purpose in enacting the

NFIP was to reduce through the implementation of adequate land use controls and the

availability of subsidized flood insurance, the massive and ever increasing burden of federal

flood disaster assistance.” Id. But nowhere in the NFIP’s language and its legislative history

“can we find evidence that Congress had any intent to allow a private cause of action, either

expressly or by implication.” Id. As the Supreme Court commented in Touche Ross & Co.

v. Redington, 442 U.S. 560, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979), “when Congress wished

to provide a private damages remedy, it knew how to do so and did so expressly.”

¶46.   The same goes for the ordinances adopted by Yazoo City in furtherance of its

participation in the NFIP. While Yazoo City is required to comply with these ordinances



                                              15
as part of its participation in the NFIP, none of these ordinances establishes a private right

of action against Yazoo City either in personal-injury tort or wrongful death.

¶47.   Nor does Section 21-19-13. This section merely authorizes municipalities to construct

and maintain drainage ditches; it does not create a right of action or establish a duty of care

owed by a municipality to its inhabitants. Miss. Code Ann. § 21-19-13 (Rev. 2015).

¶48.   For these reasons, the Estate’s claim that Yazoo City is liable for the wrongful death

of Patrauna, resulting from Yazoo City’s failure to comply with its ordinances and federal

regulations under the NFIP, fails as a matter of law for failure to state a cause of action.

¶49.   That said, the Estate also alleged in its complaint that the Seventh Street drainage

ditch constituted a dangerous condition because Yazoo City had failed to properly maintain

the ditch by keeping it free of vegetation, trash and debris. This claim is predicated on

ordinary negligence, and is entirely different from the Estate’s theory of liability with regard

to Yazoo City’s failure to comply with ordinances and federal regulations associated with the

NFIP. The Estate, however, appeared to disregard this claim along the way.

¶50.   Based upon our de novo review of the record, we cannot tell whether the Estate did

so based upon its investigation into the facts of the case, or based upon its reliance on

Brantley.

¶51.   Given that the Estate’s case was still pending when Wilcher handed down, overruling

the Brantley test and reinstituting the public-policy function test for purposes of Section 11-

46-9(1)(d), the applicability of subsection (d) must be decided under the reinstituted public-

policy function test. And out of fairness to the Estate, we find the Estate should be allowed



                                              16
the opportunity to fully present its negligence claim, beyond its reliance on the overruled

Brantley test.

¶52.    Furthermore, following careful de novo review of this record, we continue to have

questions with regard to the applicability of both subsections (d) and (v) to the current facts

in this case. And in fairness to both parties, we decline to enter into a discussion with regard

to either exemption under the record in this case.

¶53.   For these reasons, we reverse the trial court’s decision granting summary judgment

in favor of Yazoo City, and we remand the case for further proceedings, allowing for

additional discovery, as necessary, under the trial court’s discretion.

                                       CONCLUSION

¶54.   The trial court’s judgment is reversed, and this case is remanded for further

proceedings consistent with this opinion.

¶55.   REVERSED AND REMANDED.

    WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, CHAMBERLIN
AND ISHEE, JJ., CONCUR. KITCHENS, P.J., CONCURS IN RESULT ONLY
WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

       KITCHENS, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶56.   In Wilcher v. Lincoln County Board of Supervisors, I predicted that “upon this

court’s return to the public policy function test, litigants and courts will continue to be

required to ‘scour the state manual’ and ‘hunt for other regulations and ordinances’ in order

to make arguments about whether the activity in question involved any policy

considerations.” Wilcher v. Lincoln Cty. Bd. of Supervisors, 2018 WL 2371859 (Miss. May



                                              17
24, 2018) (Kitchens, J., concurring in result only). While I abstain from reiterating my

arguments in opposition to the overruling of Brantley v. City of Horn Lake, 152 So. 3d 1106

(Miss. 2014), I write here to observe that my prediction regarding the public-policy function

test has come to pass.

¶57.   The majority is correct that Mississippi Code Section 21-19-13 authorizes, but does

not require, the governing authority of a municipality to “establish, alter and change the

channels of streams or other water courses, and to bridge the same, whenever so to do will

promote the health, comfort and convenience of the inhabitants of such municipality” and

to “pay necessary expenses in providing labor, materials and supplies to clean or clear

drainage ditches, creeks or channels . . . and to incur costs and pay necessary expenses in

providing labor, materials and supplies in order to prevent erosion . . . .” Miss. Code Ann.

§ 21-19-13(1), (2) (Rev. 2015). But that discretionary function is rendered ministerial by

narrower requirements that are mandated by city and county ordinances:

       1.     Yazoo City, Miss., Flood Damage Prevention Ordinance art. I, § 11.5-
              23 – requiring a development permit “prior to the commencement of
              any development activities in the areas of special flood hazard.”

       2.     Yazoo City, Miss., Flood Damage Prevention Ordinance art. III, § 11.5-
              32 – establishing required procedures for applying for and obtaining a
              development permit.

       3.     Yazoo City, Miss., Flood Damage Prevention Ordinance art. III, § 11.5-
              43(2) – requiring, in special flood hazard areas, that “no
              encroachments, including fill material or structures, shall be permitted
              unless certification by a professional engineer is provided
              demonstrating that the cumulative effect of the proposed development,
              when combined with all other existing and anticipated development,
              will not increase the water surface elevation of the base flood more than
              one foot at any point within the community. The engineering

                                             18
              certification must be supported by technical data that conforms to
              standard hydraulic engineering principles.”

       4.     Yazoo City, Miss., Ordinance 18.7(a) and (b) – requiring a written
              permit prior to excavation or “any work on or under the surface of the
              right-of-way of any dedicated street . . . .”

       5.     Yazoo Cty, Miss., Flood Damage Prevention Ordinance art. 3, § C –
              requiring a development permit “in conformance with the provision of
              this ordinance prior to the commencement of any development
              activities in the areas of special flood hazard.”

       6.     Yazoo Cty., Miss., Flood Damage Prevention Ordinance art. 3, § D –
              “[n]o structure or land shall hereafter be located, extended, converted
              or structurally altered without full compliance with the terms of this
              ordinance and other applicable regulation.”

       7.     Yazoo Cty., Miss., Flood Prevention Ordinance art. 4, § B – detailing
              the requirements for obtaining a permit.

       8.     Yazoo City, Miss., Flood Damage Prevention Ordinance art. I, §§ 11.5-
              3, 11.5-4, and 11.5-5 – setting forth general requirements “to promote
              the public health, safety and general welfare and to minimize public and
              private losses due to flood conditions in specific areas . . . .”

       9.     Yazoo Cty., Miss., Flood Prevention Ordinance art. 1, §§ C and D –
              requiring the county “to promote the public health, safety and general
              welfare and to minimize public and private losses due to flood
              conditions in specific areas . . . .”

In addition, the National Flood Insurance Program (NFIP), in which Yazoo City and Yazoo

County participate, provides that: “These regulations must be legally-enforceable, applied

uniformly throughout the community to all privately and publicly owned land within

flood-prone . . . areas, and the community must provide that the regulations take precedence

over any less restrictive conflicting local laws, ordinances or codes.” 44 C.F.R. § 60.1(b)

(2009).



                                             19
¶58.   In response to the motion for summary judgment filed by Yazoo City and Yazoo

County, Hudson presented uncontradicted expert testimony by Gillian Butler, a civil engineer

in the field of hydrologic and hydraulic engineering, in the form of an affidavit. Butler stated

that “[t]he standard of care requires that Yazoo County and the City of Yazoo City comply

with the provisions of these ordinances” and that “Yazoo County and Yazoo City’s failure

to comply with the provisions of these ordinances constituted a breach of the standard of

care.” This breach of the standard of care, Butler opined, “led to the dangerous condition

which resulted in the drowning of Patrauna Hudson.”

¶59.   The majority argues that Hudson has failed to state a cause of action because “neither

the NFIP’s’s regulations nor Yazoo City’s related ordinances create any such a cause of

action.” Maj. Op. ¶ 44. The majority continues: “[w]hile Yazoo City is required to comply

with these ordinances as part of its participation in the NFIP, none of these ordinances

establishes a private right of action against Yazoo City either in personal-injury tort or

wrongful death.” Maj. Op. ¶ 46. Both of those regulations, however, which create ministerial

duties, establish a standard of care and, concomitantly, remove the cloak of immunity from

the governmental entity.

¶60.   In Mississippi Transportation Commission v. Adams, this Court held that, while

Mississippi Code Section 63-3-303 is discretionary, the Mississippi Transportation

Commission’s adoption of the Mississippi Standard Specifications for Road and Bridge

Construction (the “Red Book”) imposed narrower ministerial duties on the Mississippi

Transportation Commission entitling the plaintiff to proceed with her claims. Miss. Transp.



                                              20
Comm’n v. Adams, 197 So. 3d 406, 413 (Miss. 2016). The Adams Court held that the

plaintiff had “produced evidence that the defendants had breached certain specific ministerial

duties imposed by their own duly adopted regulations.” Id.1 Here, as in Adams, the plaintiff

has presented uncontradicted expert testimony establishing that Yazoo City and Yazoo

County “breached certain ministerial duties imposed by their own duly adopted regulations.”

¶61.   The majority reiterates Wilcher: “‘[a]s a result of Brantley, what the Legislature

intended as a shield—discretionary-function immunity under Section 11-46-9(1)(d)—is

flipped on its head and is being used as a sword.’” Maj. Op. ¶ 43 (quoting Wilcher, 2018 WL

2371859, at * 4). In his Mississippi Rule of Appellate Procedure 28(k) letter sent following

this Court’s decision in Wilcher on May 24, 2018, Hudson’s counsel stated the following:

       Under Wilcher, a municipality must still ensure that unsafe conditions or
       health hazards are not created through flooding. In this case, Ms. Hudson’s suit
       does not second-guess Yazoo City’s decision to spend municipal funds to
       regulate water runoff. Instead, Ms. Hudson filed suit under the theory that the
       City created a dangerous condition through its failure to follow a ministerial
       statute, and then failed to warn or correct this dangerous condition. Indeed the
       city’s engineer admitted under oath that the City never did a site plan or an
       engineering drawing, as required by law. The lone expert testified that the
       City’s failure to follow its own laws directly led to the dangerous condition
       which killed the little girl.

It is clear, even under the public-policy function test, that plaintiffs will continue to search

out and rely upon the narrowest regulations, statues, and ordinances in order to establish the

existence of a standard of care and the breach thereof.

¶62.   The quagmire of confusion which has resulted from Wilcher continues. Accordingly,

I respectfully concur in result only.

       1
           While this Court, in Wilcher, overruled Brantley, Adams remains untouched.

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KING, J., JOINS THIS OPINION.




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