                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2015-CA-00725-SCT

CYNTHIA RENEE CRIDER

v.

DESOTO COUNTY CONVENTION AND
VISITORS BUREAU


DATE OF JUDGMENT:                        01/12/2015
TRIAL JUDGE:                             HON. GERALD W. CHATHAM, SR.
TRIAL COURT ATTORNEYS:                   JOSEPH M. SPARKMAN, JR.
                                         MICHAEL C. McLAREN
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 GREGORY C. MORTON
                                         JOSEPH M. SPARKMAN, JR.
ATTORNEYS FOR APPELLEE:                  MICHAEL CHRISTOPHER McLAREN
                                         KARI L. SUTHERLAND
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
DISPOSITION:                             AFFIRMED - 08/11/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.   While visiting the DeSoto County Civic Center, Cynthia Crider stepped in a hole that

was obscured by grass. She sued the DeSoto County Convention and Visitors Bureau (the

Bureau), which operates the Civic Center. The circuit judge granted summary judgment to

the Bureau based on discretionary-function immunity. We affirm.
                        FACTS AND PROCEDURAL HISTORY

¶2.    In May 2008, Crider attended a high-school graduation at the Civic Center. At the

ceremony’s conclusion, Crider exited the Civic Center and proceeded across a grassy area

to her car. As she crossed, Crider stepped in a hole obscured by overgrown grass. She fell

and broke her ankle.

¶3.    Crider sued the Bureau, alleging that it failed to maintain the grassy area in a safe

condition. The Bureau moved for summary judgment, claiming it enjoyed Mississippi Code

Section 11-46-9(1)(v)’s immunity from certain premises-liability claims. The Bureau then

filed a supplemental motion for summary judgment, asserting discretionary-function

immunity under Mississippi Code Section 11-46-9(1)(d).

¶4.    In granting summary judgement, the trial judge reasoned that the Bureau enjoyed

discretionary-function immunity because no statute mandated that it operate a civic center

and because Crider failed to show any “laws or regulations . . . which would remove the

Defendants’ particular acts (or inaction) from the ‘umbrella of discretionary function

immunity.’” Crider appealed.

                                        ANALYSIS

¶5.    On appeal, Crider argues that the circuit judge erred by failing to apply the

governmental/proprietary function test which, she claims, precludes immunity. She further

argues that the Bureau was not engaged in a discretionary function, and that this Court should

overrule its decision in Brantley v. City of Horn Lake1 and return to the two-part, public-



       1
           Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014).

                                              2
policy-function test. Finally, she argues that, even if the Bureau enjoyed immunity, we

should hold that it waived that immunity to the extent it was covered by liability insurance.

¶6.    This Court previously and unambiguously has held that, by enacting the Mississippi

Tort Claims Act, the Legislature abrogated the governmental/proprietary function test.2 It

also divested this Court of any authority to graft Crider’s proposed liability-insurance waiver

into the statute.3 And this Court repeatedly has rejected4 Crider’s argument that we should

return to the two-part, public-policy-function test adopted by the United States Supreme

Court in applying the Federal Tort Claims Act, whose provisions materially differ from the

Mississippi Tort Claims Act.5


       2
         City of Tupelo v. Martin, 747 So. 2d 822, 828 (Miss. 1999) (citing Parker v. City
of Philadelphia, 725 So. 2d 782, 784 (Miss. 1998); White v. City of Tupelo, 462 So. 2d
707, 708 (Miss. 1984)) (“Prior to the enactment of the MTCA, we did use the
governmental/proprietary function test in applying sovereign immunity to municipalities.
However, with the enactment of the MTCA, that test is no longer applicable to claims
subject to the MTCA except to the extent which it may be incorporated in the provisions of
the MTCA. We find no such incorporation.”).
       3
        State v. Heard, 246 Miss. 774, 781, 151 So. 2d 417, 420 (1963) (“Ordinarily, an
exception must appear plainly from the express words or necessary intendment of the statute.
Where no exception in positive words is made, the presumption is the legislature intended
to make none.”).
       4
       Miss. Transp. Comm’n v. Adams, 2016 WL 3091194, *9–10 (Miss. June 2, 2016)
(Maxwell, Justice, concurring); Crum v. City of Corinth, 183 So. 3d 847, 853–55 (Miss.
2016) (Randolph, Presiding Justice, concurring); Boroujerdi v. City of Starkville, 158 So.
3d 1106, 1115–17 (Miss. 2015) (Waller, Chief Justice, dissenting); Brantley, 152 So. 3d at
1118–23 (Waller, Chief Justice, dissenting).
       5
         As we pointed out in Brantley:
       the Mississippi Tort Claims Act contains a requirement not present in the
       Federal Tort Claims Act: that the immunity attaches to a “governmental entity
       and its employees acting within the course and scope of their employment or
       duties . . . .”

                                              3
¶7.    The concurrence chides the Brantley majority based on its erroneous belief that

Section 2680 expressly incorporates Section 1346(b). This is both legally and factually

incorrect.

¶8.    Section 2680 does not “expressly incorporate” Section 1346(b), and nothing in the

language of either statute suggests that Section 2680’s grant of immunity is limited to the

cases mentioned in Section 1346(b). Section 2680 states:

       The provisions of this chapter and section 1346(b) of this title shall not apply
       to:
             (a) 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.6

¶9.    By employing the word “and” in its opening sentence, Section 2680 exempts certain

types of claims from two distinct statutory provisions: (1) the Tort Claims Act’s waiver of

immunity (“this chapter”) and (2) Section 1346(b)’s grant of federal district-court

jurisdiction. Conversely, our statute requires that acts occur in the course and scope of the

actor’s employment before discretionary-function immunity attaches.




Brantley, 152 So. 3d at 1112 (quoting Miss. Code Ann. § 11-46-9(1)(d) (Rev. 2012)).
       6
           28 U.S.C. § 2680 (emphasis added).

                                              4
¶10.   Brantley is settled law, and we reject the dissent’s apocalyptic characterization of it.7

The only question to be addressed is whether the circuit judge properly applied its

requirements to the facts of this case.8 Because he did, we affirm.

¶11.   Mississippi Code Section 11-46-9(1)(d) addresses discretionary-function immunity:

       A governmental entity and its employees acting within the course and scope
       of their employment or duties shall not be liable for any claim . . . [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.9

¶12.   Brantley addressed and clearly set forth the proper test for discretionary-function

immunity, explaining that we first

       consider the broadest function involved in order to make a baseline
       determination of whether the overarching function is discretionary or
       ministerial. The Court then must 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.10


       7
         The dissent suggests that “[t]he sovereign State and its subdivisions are left, in many
situations, unable to know, before engaging in certain conduct, whether their conduct is
protected by immunity.” We reject the notion that “the sovereign and its subdivisions” are
incapable of conforming their conduct to statutory and regulatory requirements. See Miss.
Code Ann. § 11-46-9(1)(d) (Rev. 2012).
       8
         The dissent boldly speculates that “[f]ollowing Brantley and its progeny, only a few
attorneys are capable of evaluating claims and/or defenses related to discretionary
immunity.” We find no difficulty in evaluating such claims, and we note that the Brantley
analysis included in the learned trial judge’s order, as well as the brief submitted by counsel
for the appellee, both applied the law exactly as announced in Brantley and its progeny, and
were precisely correct.
       9
           Miss. Code Ann. § 11-46-9(1)(d) (Rev. 2012).
       10
            Brantley, 152 So. 3d at 1114–15.

                                               5
¶13.   So, even where the State or its subdivision establishes that it was involved in an

overarching discretionary function, it nevertheless may lack immunity if the plaintiff can

establish that, once the State exercised its discretion to engage in the discretionary function,

it was subject to some duty imposed by law, and that the State’s breach of that duty

proximately caused the plaintiff’s injuries and damages.11

¶14.   The Bureau’s powers derive from Mississippi Code Section 17-3-29, which states in

pertinent part:

       A convention bureau established hereunder shall have the authority to promote
       tourism and convention business. In this regard, the commission is
       empowered:
       ...

       (4) To purchase, receive, lease, or otherwise acquire, own, hold, improve, use
       and otherwise deal in real or personal property or enter any interest therein
       wherever situated, subject to the prior approval of the appointing authorities;
       . . . .12

¶15.   In the broadest possible sense, the Bureau engages in an overarching discretionary

function “to promote tourism and convention business.”13 More important to this case,

however, is that the statute empowers, but does not require, the Bureau “[t]o . . . own, hold,

improve, use and otherwise deal in real or personal property . . . .”14




       11
            Id. at 1115.
       12
            Miss. Code Ann. § 17-3-29(4) (Rev. 2012).
       13
            Id.
       14
            Id.

                                               6
¶16.   By owning and using the Civic Center, the Bureau engaged in a function the statute

authorized but did not require. So the Bureau’s operation of the Civic Center was—as the

circuit judge found—a discretionary function to which immunity attached. And, as the

circuit judge found, Crider failed to point to any more narrow ministerial duty imposed by

law.

                                        CONCLUSION

¶17.   Because the Bureau engaged in an overarching discretionary function—owning and

using real property—to which immunity attached, and because the plaintiff failed to identify

any more narrow ministerial function or duty imposed by law to maintain the Civic Center’s

grass, the learned trial judge properly granted summary judgment for the Bureau based on

discretionary-function immunity.

¶18.   AFFIRMED.

      KITCHENS, KING AND COLEMAN, JJ., CONCUR. MAXWELL, J.,
CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED
BY BEAM, J.; WALLER, C.J., AND RANDOLPH, P.J., JOIN IN PART. LAMAR,
J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN
OPINION. RANDOLPH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY WALLER, C.J.; MAXWELL AND BEAM, JJ., JOIN IN PART.

       MAXWELL, JUSTICE, CONCURRING IN RESULT ONLY:

¶19.   It is said that “history is written by the victors.” And today, the majority is trying to

write the history of discretionary-function immunity by declaring “Brantley is settled law.”15

Brantley, however, is not “settled law.” Rather, it is a recent departure from settled law,

predicated solely on a false premise.

       15
            Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014).

                                               7
       I.     Brantley was based on a false premise.

¶20.   Less than two years ago, Brantley was decided by a narrow five-four victory. The

majority in that case abandoned long-standing precedent, opting instead to create an entirely

new test for determining discretionary-function immunity. Brantley v. City of Horn Lake,

152 So. 3d 1106, 1111-18 (Miss. 2014). But the concurrence in Brantley adhered to stare

decisis and advocated for this Court’s continued application of the United States Supreme

Court’s two-part public-policy-function test. Id. at 1118-23 (Waller, C.J., concurring in part

and in result). Since then, the “Brantley test” has drawn continuous fire.16

¶21.   Most recently, in Mississippi Transportation Commission v. Adams, “I join[ed the]

other voices from this court that disagree with the recent break from precedent.” Adams,

2014-IA-01419-SCT, 2016 WL 3091194, at *9 (Miss. June 2, 2016) (on rehearing)

(Maxwell, J., concurring in result only). “In my view, Brantley marked an unwise and

unworkable departure from longstanding precedent.” Id. And a prominent omission from

the newly crafted Brantley test is its failure to consider whether the alleged activity involved

       16
          Soon after Brantley, Chief Justice Waller, joined by three justices, echoed his
disapproval of the new Brantley test when it was applied in Boroujerdi. See Boroujerdi v.
City of Starkville, 158 So. 3d 1106, 1115-17 (Waller, C.J., dissenting). Specifically, Chief
Justice Waller characterized the majority opinion as “depart[ing] from . . . precedent without
regard for the fundamental legal doctrine of stare decisis.” Id. at 1115. And when the
Brantley test was applied in City of Magee v. Jones, 161 So. 3d 1047 (Miss. 2015), Justice
Pierce criticized the majority for “fail[ing] to appreciate the purpose” of discretionary-
function immunity is “to limit judicial ‘second-guessing’ of the state Legislature.” City of
Magee, 161 So. 3d at 1052 (Pierce, J., dissenting). More recently, in Crum v. City of
Corinth, 183 So. 3d 847 (Miss. 2016), Presiding Justice Randolph “did not agree that
Brantley’s test was correct when [this Court] adopted it.” Crum, 183 So. 3d at 853
(Randolph, P.J., concurring in result only). Further “Brantley convolutes the process by
requiring both the plaintiff and the defendant to look outside the alleged negligent act to
establish immunity or lack thereof.” Id. (citing Jones, 744 So. 2d at 260).

                                               8
a policy decision.        This undermines the very purpose of discretionary-function

immunity—“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.”17



¶22.   Moreover, as Presiding Justice Randolph has pointed out, Brantley “places the

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

sometimes arcane regulations—creating extra layers of proof, which may have little or no

practical effect on the actual negligent act.” Crum v. City of Corinth, 183 So. 3d 847, 854

(Miss. 2016) (Randolph, J., concurring in result only).

¶23.   Despite these real concerns, this majority refuses to address any of Crider’s arguments

against the Brantley test. In her appeal, Crider argues this court’s “abandonment of the

public policy function test in Brantley was unwarranted and improper” for a variety of

reasons. First, Crider claims the new test “ignores the U.S. Supreme Court’s directive [in

United States v. Gaubert] that only those functions which by nature are policy decisions,

whether made at the operation or planning level, should be afforded immunity.”18 Second,

she argues “the Brantley holding nullifies the very purpose of the discretionary function

exemption which is to protect ‘second guessing’ of legislative and administrative decisions




       17
         United States v. Gaubert, 499 U.S. 315, 323, 111 S. Ct. 1267, 1273-74, 113 L. Ed.
2d 335 (1991) (emphasis added) (citation omitted) (holding that, “when properly construed,
the [discretionary-function] exception protects only governmental actions and decisions
based on considerations of public policy”).
       18
            See Gaubert, 499 U.S. at 323, 111 S. Ct. at 1273-74, 113 L. Ed. 2d 335.

                                              9
grounded in social, economic and political policy through the medium of an action in tort.”19

And third, she echos the dissent in Boroujerdi, which argued the abolishment of the public-

policy-function test violated stare decisis.20

¶24.   Still, these truths aside, the majority dismisses Crider’s argument because, in its view,

“Brantley is settled law.”         But what the majority leaves out is the fact that

Brantley—building on its predecessor Little21—itself unsettled fifteen years of precedent.



                  A.   Discretionary Function and the Public-Policy-Function Test

¶25.   In 1999, recognizing that Section 11-46-9(1)(d) “appears to be patterned after 28

U.S.C. § 2680(a), the‘discretionary function’ exception to the Federal Tort Claims Act,” this

Court adopted the United States Supreme Court’s two-part public-policy-function test for

determining discretionary-function immunity. Jones v. Miss. Dep’t of Transp., 744 So. 2d

256, 260 (Miss. 1999) (adopting the test set forth in United States v. Gaubert, 499 U.S. 315,

322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991)).

¶26.   Eight years after we adopted the United States Supreme Court’s test in Jones, our

Legislature reenacted Section 11-46-9(1)(d). Boroujerdi, 158 So. 3d at 1115 (Waller, C.J.,

dissenting). This unmodified reenactment signaled the Legislature’s approval of our

interpretation of the Mississippi Tort Claims Act as being patterned after the Federal Tort



       19
            Id.
       20
            See Boroujerdi, 158 So. 3d at 1115 (Waller, C.J., dissenting).
       21
            Little v. Miss. Dep’t of Transp., 129 So. 3d 132 (Miss. 2013).

                                                 10
Claims Act. See McDaniel v. Cochran, 158 So. 3d 992, 1000 (Miss. 2014). And under the

doctrine of stare decisis, it should have served to constrain this Court from further tinkering.

See Caves v. Yarbrough, 991 So. 2d 142, 154 (Miss. 2008)).

¶27.   Yet, two years ago, five members of this Court decided to reassess the comparison

between Section 11-46-9(1)(d) and Section 2680(a). Claiming to have found “a requirement

not present in the Federal Tort Claims Act,” the five-four majority in Brantley disavowed

any similarity between Section 11-46-9(1)(d) and Section 2680(a). Brantley, 152 So. 2d at

1112. The majority then abolished the federal two-part public-policy-function test and, in

its place, crafted a completely new test. Id. at 1112-1115. The majority in this case

continues to justify using the test it invented two years ago by perpetuating the fallacy that

the Federal Tort Claims Act’s “provisions materially differ from the Mississippi Tort Claims

Act.” Maj. Op. ¶ 6. But when properly construed, there is no material difference.

              B.      Comparing the State and Federal Statutes

¶28.   Section 11-46-9(1)(d) of the Mississippi Tort Claims Act 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 . . . [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. § 11-46-9(1)(d) (Rev. 2012). Its federal counterpart, Section 2680(a), is

extremely similar:

       The provisions of this chapter and section 1346(b) of this title shall not apply
       to – . . . [a]ny claim . . . based upon the exercise or performance or the failure
       to exercise or perform a discretionary function or duty on the part of a federal



                                              11
       agency or an employee of the Government, whether or not the discretion
       involved be abused.

28 U.S.C. § 2680(a).

¶29.   The Brantley majority makes much hay over the fact Section 2680 does not contain

the phrase “acting within the course and scope of their employment or duties.” Brantley, 152

So. 3d at 1112 (emphasis added). It goes so far as to call it “a requirement not present in the

Federal Tort Claims Act.” Id. But this is factually and legally not true.

¶30.   First, from a purely textual perspective, Section 2680 expressly incorporates Section

1346(b) by cross-reference, reinstating immunity for claims brought under that provision.

28 U.S.C. § 2680. And guess what types of claims Section 1346(b) covers? None other than

“claims against the United States, for money damages . . . caused by the negligent or

wrongful act or omission of any employee of the Government while acting within the scope

of his office or employment[.]” 28 U.S.C. § 1346(b) (emphasis added).

¶31.   So by incorporating Section 1346(b), Section 2680(a) attaches immunity to claims

“caused by the negligent or wrongful act or omission of any employee of the Government

while acting within the scope of his office or employment” when those claims are “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. § 1346(b); 28 U.S.C. § 2680. This is

the exact same requirement found in Section 11-46-9(1)(d), which immunizes claims against

“[a] governmental entity and its employees acting within the course and scope of their

employment or duties” when that claim is “[b]ased upon the exercise or performance or the

                                              12
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.

§ 11-46-9(1)(d).

¶32.   Second, common sense rejects the notion that, by using the phrase “acting within the

course and scope of their employment or duties,” our Legislature was adding a unique

requirement to our Tort Claims Act and, thus, narrowing the scope of discretionary-function

immunity. The majority emphasizes that “our statute requires that acts occur in the course

and scope of the actor’s employment before discretionary-function immunity attaches.”

Well, of course it does.

¶33.   Section 11-46-9(1), like Section 2680, is about restoring sovereign immunity in

limited circumstances. And sovereign immunity requires a “sovereign”—i.e., a government

actor. By definition, to have a tort claim against a government actor, the actor must have

been acting within the scope of his or her government employment or duties. Otherwise, it

would not be a tort claim against a government actor. It would be a run-of-the-mill

negligence claim against a person who, incidentally, happens to be employed by the

government. And the Mississippi Tort Claims Act, which abolished the common-law

doctrine of sovereign immunity and replaced it with statutory immunity in certain

circumstances, would not come into play.

¶34.   The Federal Tort Claims Act functions no differently. Both acts cover tort claims

against the government actors. And both acts necessarily limit discretionary-function

immunity to discretionary actions taken by governmental actors acting within the course and



                                             13
scope of their employment or duties. If anything, Section 11-46-9(1)(d)’s phrase “acting

within the course or scope of their employment or duties” makes explicit what is implicit in

Section 2680—because a discretionary action taken by a government employee while not

acting within the course and scope of his employment or duties is just a personal decision,

not attributable to the government and not eligible for the protective cloak of sovereign

immunity under either statutory scheme.

¶35.   So in reality, there is no difference between the discretionary-function immunity

provisions in Section 11-46-9(1)(d) and Section 2680(a)—let alone a material difference

justifying abolishing the two-part public-policy-function test.

¶36.   Here, when asked by Crider to return to the old test, the majority has chosen to

disregard Crider’s legitimate concerns and instead further perpetuate Brantley’s false

premise that our discretionary-function-immunity provision is somehow unique. In doing

so, the majority misses a golden opportunity to right the ship and return to the longstanding

two-part public-policy-function test. As I refuse to follow the majority down this errant path,

I join the majority in result only.

       II.     The Bureau is still immune.

¶37.   That said, in Crider’s case, such a return would not change the fact that the Bureau

is immune.

¶38.   As Presiding Justice Randolph points out, DeSoto County is not immune under the

public-policy-function test. However, as part of our de novo review, we must affirm the

grant of summary judgment “[i]f any ground raised and argued below will support the lower



                                              14
court’s decision.” Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss.

1996) (citing Kirksey v. Dye, 564 So. 2d 1333, 1336–37 (Miss. 1990)). And here, as the

majority pointed out, discretionary-function immunity was not the only—nor even the

first—ground for immunity the Bureau asserted.

¶39.   The Bureau also argued to the trial court that it was immune under Section 11-46-

9(1)(v).22 And the undisputed facts in the record support this claim. So even if Brantley had

not “greatly changed the manner in which this Court analyzes discretionary function

immunity,”23 Crider would still be facing the same result—the Visitors Bureau is entitled to

immunity.

¶40.   For these reasons I concur in the result only.

     BEAM, J., JOINS THIS OPINION. WALLER, C.J., AND RANDOLPH, P.J.,
JOIN THIS OPINION IN PART.

       RANDOLPH, PRESIDING JUSTICE, DISSENTING:



       22
            Under Section 11-46-9(1)(v)—

       (1) A governmental entity and its employees acting within the course and
       scope of their employment or duties shall not be liable for any claim . . .

       (v) Arising out of an injury caused by a dangerous condition on property of the
       governmental entity that was not caused by the negligent or other wrongful
       conduct of an employee of the governmental entity or of which the
       governmental entity did not have notice, either actual or constructive, and
       adequate opportunity to protect or warn against; provided, however, that a
       governmental entity shall not be liable for the failure to warn of a dangerous
       condition which is obvious to one exercising due care[.]

Miss. Code Ann. § 11-46-9(1)(v).
       23
            Boroujerdi, 158 So. 3d at 1111.

                                              15
¶41.   In 2014, by a five-four decision, this Court abrogated fifteen years of precedent

regarding discretionary-function immunity under the Mississippi Tort Claims Act (MTCA),24

a decision Chief Justice Waller later described as “a careless measure that will likely create

chaos for the trial bench and bar, which have a right to expect consistency from this Court.”

Boroujerdi v. City of Starkville, 158 So. 3d 1106, 1116 (Miss. 2015) (Waller, C.J.,

dissenting).

¶42.   While the majority describes Brantley as “settled law,”25 Brantley is considered by

many to be “settled” only within the confines of the walls surrounding the Mississippi

Supreme Court. For the lawyers and judges working in the proverbial trenches, the law

regarding discretionary immunity is barely short of chaotic. Brantley jettisoned what once

was a workable solution. The Court has rejected multiple opportunities to return to the

original analysis,26 instead offering opinions bereft of standardization. Plaintiffs and

defendants, along with the trial bench and bar, deserve predictability in the application of our

law. Following Brantley and its progeny, only a few attorneys are capable of evaluating

claims and/or defenses related to discretionary immunity. Brantley and its progeny leave our

trial judges to randomly guess how their discretionary-immunity judgments will be evaluated

on appeal. The sovereign State and its subdivisions are left, in many situations, unable to



       24
            See Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014).
       25
         See Maj. Op. at ¶ 10.
       26
        See Crum v. City of Corinth, 183 So. 3d 847, 853-55 (Miss. 2016) (Randolph, P.J.,
concurring in result only); Boroujerdi, 158 So. 3d at 1115-17 (Waller, C.J., dissenting);
Brantley, 152 So. 3d at 1118-23 (Waller, C.J., concurring in part and in result).

                                              16
know, before engaging in certain conduct, whether their conduct is protected by immunity.

Injured parties are left with uncertainty as to whether they may claim money damages, or

whether the governmental entity is exempt from liability. See Miss. Code Ann. §§ 11-46-

5(1), 11-46-9(1)(d) (Rev. 2012). These developments dictate a return to the public-policy

function test27 that preceded Brantley. The very reason we apply stare decisis is “so that trial

courts can make correct decisions and lawyers can properly advise their clients.” United

Servs. Auto Ass’n v. Stewart, 919 So. 2d 24, 30 (Miss. 2005). And when attorneys are left

unable to advise their clients on the applicability of discretionary-function immunity in the

wake of Brantley, the whole argument for upholding “the new test” based on stare decisis

is undermined.

¶43.   It was the majority in Brantley that disregarded stare decisis. See Boroujerdi, 158 So.

3d at 1115 (Waller, C.J., dissenting). The proponents of the Brantley test have yet to justify

why such a break with precedent was warranted or necessary, notwithstanding Chief Justice

Waller’s arguments to the contrary.

       [E]ven where this Court determines a prior interpretation of a statute to be
       incorrect, “we will nevertheless continue to apply the previous interpretation,
       pursuant to the doctrine of stare decisis, upon finding the Legislature amended
       or reenacted the statute without correcting the prior interpretation.” Caves v.
       Yarbrough, 991 So. 2d 142, 154 (Miss. 2008) (holding that stare decisis
       required adherence to a judicially created discovery rule under the MTCA,
       where the Legislature had reenacted the statute in question without
       countermanding this Court’s prior interpretations).

       27
        For determining the application of discretionary-function immunity, the United
States Supreme Court formulated the “public-policy function test.” See United States v.
Gaubert, 499 U.S. 315, 322-23, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991). This Court
adopted the same public-policy function test in Jones v. Miss. Dep. of Transp., 744 So. 2d
256 (Miss. 1999).

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       A thorough review of the majority opinion reveals no mention of the
       Legislature’s reenactment of Section 11–46–9 eight years after this Court’s
       holding in Jones, which serves as evidence of the Legislature’s approval and
       incorporation of the public-policy function test into the statute. See Caves, 991
       So. 2d at 154. The majority does not explain how our established rule for
       analyzing discretionary-function immunity is erroneous as an initial matter.
       And even assuming arguendo that our prior interpretation of the law has been
       incorrect, the majority fails to point out how our continued adherence to
       precedent is in any way impractical, pernicious, mischievous in effect, or
       detrimental to the public. On the contrary, I view our adoption of the
       public-policy function test as a well-reasoned decision that should not be
       abandoned simply because some members of this Court do not agree on its
       intricacies.

Boroujerdi, 158 So. 3d at 1115-16 (Waller, C.J., dissenting).

¶44.   In applying the Brantley test, the majority looks to the “broadest function involved

in order to make a baseline determination” and then examines “any narrower duty” to

determine whether a governmental entity enjoys discretionary-function immunity. See Maj.

Op. at ¶ 12 (citing Brantley, 152 So. 3d at 1114-15). But the statute does not speak to “broad

functions,” “baseline determinations,” or “narrow duties.” See Miss. Code Ann. § 11-46-

9(1)(d) (granting immunity for any claim “[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”). Brantley and its

progeny grafted those terms into the statute—without definition or guidance in their

application. The result is an amalgamation of various interpretations, from a multitude of

justices on this Court and judges on the Court of Appeals, lacking a modicum of consistency

and predictability.




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¶45.   Discretionary immunity is one of the most misunderstood and oft-criticized areas of

law in our state. The need to return to the public-policy function test is self-evident. We

should accept Crider’s invitation to do so. Employing the public-policy function test, we

determine (1) whether the activity involved an element of choice or judgment, and if so, (2)

whether that choice or judgment involved social, economic, or political policy.” Crum, 183

So. 3d at 854 ( Randolph, P.J., concurring in result only) (citing Dancy v. E. Miss. State

Hosp., 944 So. 2d 10, 16 (Miss. 2006)).

¶46.   Crider alleges the Bureau failed to properly inspect and maintain a grassy area on its

grounds, and as a result, she was injured when she stepped into a hole obscured by

overgrowth, fell, and broke her ankle. I still “fail to see how mowing grass requires any

governmental judgment or lends itself to the discretion of an employee.” Id. at 853. While

the decision whether to construct and operate a visitors bureau may be discretionary,

       once the [county] exercised that discretionary authority, it became incumbent
       on its employees to exercise concomitant duties in operation and
       maintenance—duties which are neither exclusively discretionary nor
       ministerial. I maintain that “there is a vast difference between the statutorily
       supported discretion to [construct, operate, and maintain a building] 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.”

Id. at 854 (citing Fortenberry v. City of Jackson, 71 So. 3d 1196, 1204–05 (Miss. 2011)

(Randolph, J., dissenting)).

¶47.   Moreover, I fail to see how the lawn-mower operator’s choice involved social,

economic, or political policy. His job was to cut the grass and inspect the grounds. Operating

a lawn mower entails no budgetary considerations or resource allocations. Deciding to steer



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left or right, how high to cut, or what pattern to cut implicates no policy considerations.

Crider alleges a simple act of negligence which is not protected by discretionary-function

immunity.

¶48.   In sum, I would revive the public-policy function test. Applying the public-policy

function test, the Bureau’s alleged failure to inspect and maintain its grounds did not

implicate public-policy considerations. I would find the circuit court erred in granting

summary judgment in favor of the Bureau based on discretionary-function immunity.

     WALLER, C.J., JOINS THIS OPINION. MAXWELL AND BEAM, JJ., JOIN
THIS OPINION IN PART.




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