                   IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-IA-01207-SCT

COVINGTON COUNTY SCHOOL DISTRICT

v.

LUTRICIA MAGEE, INDIVIDUALLY AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF LONNIE C. MAGEE, JR.,
DECEASED, AND ALL OTHERS WHO ARE
E N T IT L E D T O R E C O V E R U N D E R T H E
WRONGFUL DEATH AND SURVIVAL STATUTE


DATE OF JUDGMENT:                         06/25/2008
TRIAL JUDGE:                              HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                COVINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  WILLIAM BUCKLEY STEWART, SR.
                                          ROBERT P. THOMPSON
ATTORNEY FOR APPELLEE:                    GERALD PATRICK COLLIER
NATURE OF THE CASE:                       CIVIL - WRONGFUL DEATH
DISPOSITION:                              REVERSED AND RENDERED - 01/28/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE CARLSON, P.J., DICKINSON AND PIERCE, JJ.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Lutricia Magee, individually and on behalf of the wrongful-death beneficiaries of

Lonnie C. Magee, Jr., deceased, and all others who are entitled to recover under the

wrongful-death statute, filed suit against the Covington County School District, alleging

negligence and res ipsa loquitur. The Covington County School District filed its Motion for

Summary Judgment, which the Covington County Circuit Court granted in part and denied
in part. Finding that the circuit court erred by failing to grant the District’s motion for

summary judgment in toto, we reverse the circuit court’s order and render judgment here in

favor of the Covington County School District.

                  FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    On August 8, 2007, Lonnie C. Magee, Jr. (Lonnie), age seventeen, was a student at

Mount Olive Attendance Center and a member of the school’s football team. During the

course of football practice on an admittedly hot August day, Lonnie collapsed. Emergency

medical personnel arrived to find Lonnie unresponsive. CPR and all other lifesaving efforts

ultimately failed, and Lonnie was pronounced dead at the Covington County Hospital in

Collins, Mississippi. Heat stroke allegedly was the cause of Lonnie’s death.

¶3.    On February 25, 2008, Lutricia Magee (Magee), individually and on behalf of the

wrongful-death beneficiaries of Lonnie C. Magee, Jr., deceased, and all others who are

entitled to recover under the wrongful-death statute, filed her First Amended Complaint1 in

the Circuit Court of Covington County, asserting claims of negligence and res ipsa loquitur.

The Covington County School District (the District) subsequently filed its Answer and

Defenses on March 20, 2008, and its Motion for Summary Judgment on May 14, 2008.

Magee filed her response, and the District filed its rebuttal. On June 20, 2008, a hearing was

held on the motion for summary judgment, Judge Robert G. Evans presiding. Judge Evans

ruled: “I believe there does exist genuine issues of material fact. And over-simplifying the



       1
           The original complaint is not part of the record before this Court.

                                                2
questions intentionally, I’ll put it into one and say the question is whether the school district

provided a safe environment.” The trial court subsequently entered an Order, stating “that

genuine issues of material fact exists [sic] and the Defendant’s Motion for Summary

Judgment is denied, but granted, in part, as to Plaintiff’s claim of Res Ipsa Loquitur.” As a

result, the District filed its Petition for Permission to Appeal Interlocutory Order and for Stay

of Trial Court Proceedings, asserting the trial court erred in denying, in part, its motion for

summary judgment.2 This Court granted the District’s petition for interlocutory appeal.

                                        DISCUSSION

¶4.    The District couches the issue before the Court in these terms:

       Whether the claims of the [plaintiff] against the [District] are based upon the
       District’s exercise or performance or the failure to exercise or perform a
       discretionary function or duty, whether or not the discretion be abused, thereby
       entitling the District to immunity from the [p]laintiff’s claims pursuant to [the
       Mississippi Tort Claims Act].

On the other hand, Magee couches the issue(s) before the Court as follows:

       Whether the claims of the [plaintiff] against the [District] are based upon the
       District’s exercise of ordinary care in reliance upon, or the execution or
       performance of or the failure to exercise or perform a statute, ordinance, or
       regulation?

       Whether [the District] has a statutory duty to provide a safe environment for
       its students and to minimize risks to its students and whether this duty applies
       to decisions and/or conduct related to allowing football practice to be
       conducted in dangerously hot and humid temperatures?

We thus combine and rephrase these issues into one issue for the sake of today’s discussion.


       2
        The trial court’s grant of summary judgment as to the res ipsa loquitur claim is not
before this Court.

                                               3
       WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT,
       IN TOTO, THE DISTRICT’S MOTION FOR SUMMARY JUDGMENT.

¶5.    This Court’s well-established standard of review for a trial court’s grant or denial of

summary judgment is de novo. Waggoner v. Williamson, 8 So. 3d 147, 152 (Miss. 2009)

(citing One South, Inc. v. Hollowell, 963 So. 2d 1156, 1160 (Miss. 2007); Hubbard v.

Wansley, 954 So. 2d 951, 956 (Miss. 2007)). Summary judgment is appropriate where “the

pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). "The

moving party has the burden of demonstrating that no genuine issue of material fact(s) exists,

and the non-moving party must be given the benefit of the doubt concerning the existence

of a material fact." Waggoner, 8 So. 3d at 152-53 (citations omitted). Further, “[p]artial

summary judgment is also permissible under our rules, utilizing the same criteria for a grant

or denial of a summary judgment and the same standard of review on appeal.” Id. at 153

(citations omitted). See Miss. R. Civ. P. 56(d).

¶6.    The District argues that its alleged acts or omissions were not ministerial, but

discretionary in nature, thereby entitling the District to immunity (exemption from liability)

pursuant to Mississippi Code Section 11-46-9(1)(d). Magee, however, contends that the

District failed to perform its statutory duty to provide a safe environment for its students;

therefore, Mississippi Code Section 11-46-9(1)(b) is triggered, and it is an issue of fact as to




                                               4
whether the District exercised ordinary care. See Miss. Code Ann. §§ 11-46-9(1)(d), (b)

(Rev. 2002).

¶7.     The District constitutes a “governmental entity” and a “political subdivision” pursuant

to the Mississippi Tort Claims Act (MTCA). Miss. Code Ann. § 11–46-1 (Rev. 2002). The

MTCA provides the exclusive remedy against a governmental entity or its employee for the

act or omission which gave rise to the suit. Miss. Code Ann. § 11-46-7(1) (Rev. 2002). The

intent of the MTCA is to provide immunity from suit to the state and its political

subdivisions; however, the MTCA waives immunity for claims for money damages arising

out of the torts of government entities and employees while acting within the course and

scope of their employment to the extent set forth in the MTCA. Miss. Code Ann. §§ 11-46-

3(1), 11-46-5(1) (Rev. 2002). This waiver of immunity is subject to exemptions. Miss. Code

Ann. § 11-46-9 (Rev. 2002). Mississippi Code Annotated Section 11-46-9 states, in pertinent

part:

        (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:
        ...
               (b) Arising out of any act or omission of an employee of a
        governmental entity exercising ordinary care in reliance upon, or in the
        execution or performance of, or in the failure to execute or perform, a statute,
        ordinance or regulation, whether or not the statute, ordinance or regulation be
        valid;
        ...
               (d) Based upon the exercise or performance or the failure to exercise or
        perform a discretionary function or duty on the part of a governmental entity
        or employee thereof, whether or not the discretion be abused;
        ...

Miss Code Ann. §§ 11-46-9(1)(b), (d) (Rev. 2002).

                                               5
¶8.    The District submits that its alleged conduct constitutes discretionary behavior,

whereas Magee argues that a school district’s statutory duty to provide a safe environment

has been positively imposed by law, thus its actions and duties are ministerial. “A duty is

discretionary if it requires the official to use her own judgment and discretion in the

performance thereof.” Stewart ex rel. Womack v. City of Jackson, 804 So. 2d 1041, 1048

(Miss. 2002) (citations omitted). On the other hand, “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 dependent upon the officer’s judgment or discretion.’” Id.

(quoting L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136, 1141 (Miss. 1999)).

If the District’s conduct is deemed ministerial, it is then protected from liability only if

ordinary care is exercised in performing or failing to perform the statutory duty or regulation.

Id. (quoting Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So. 2d 1234, 1240 (Miss.

1999)).

¶9.    Magee argues that the District failed to exercise ordinary care in reliance upon, or in

the execution or performance of, or in the failure to execute or perform, a statute, ordinance

or regulation.   See Miss. Code Ann. § 11-46-9(1)(b) (Rev. 2002).             Magee relies on

Mississippi Code Section 37-9-69 as well as this Court’s mandate that school personnel are

required to use ordinary care in administering public schools, and “[s]chools have the

responsibility to use ordinary care to provide a safe school environment.” L.W., 754 So. 2d

at 1142-43 (citations omitted). See also Pearl Pub. Sch. Dist. v. Groner, 784 So. 2d 911,

                                               6
915 (Miss. 2001); Henderson ex rel. Henderson v. Simpson County Pub. Sch. Dist., 847

So. 2d 856, 857 (Miss. 2003). Magee’s reliance, however, is misplaced. Section 37-9-69

states:

          It shall be the duty of each superintendent, principal and teacher in the public
          schools of this state to enforce in the schools the courses of study prescribed
          by law or by the state board of education, to comply with the law in
          distribution and use of free textbooks, and to observe and enforce the statutes,
          rules and regulations prescribed for the operation of schools. Such
          superintendents, principals and teachers shall hold the pupils to strict account
          for disorderly conduct at school, on the way to and from school, on the
          playgrounds, and during recess.

Miss. Code Ann. § 37-9-69 (Rev. 2007) (emphasis added).

¶10.      This Court has applied this statute only in a limited context, mainly in cases

concerning the disorderly conduct of students, or intentional acts on the part of individuals,

and has never applied it to the timing or oversight of football practice. In reference to

Section 37-9-69, this Court stated that “[t]his statute mandates that school personnel maintain

appropriate control and discipline of students while the children are in their care.” L.W., 754

So. 2d at 1142. L.W. involved a student assault on another student. Id. at 1142-43. See also

Henderson, 847 So. 2d at 857-58 (student taunted and assaulted by another student); Lang,

764 So. 2d at 1240-41 (fighting students caused injury to innocent student). Consistent with

our caselaw interpreting this statute, and based on the facts and circumstances before us as

revealed in the record, Mississippi Code Section 37-9-69 does not impose a statutory duty

on the District in today’s case.




                                                 7
¶11.   Before moving on, we note that Magee asserts that the District has admitted the

applicability of Section 37-9-69 in response to her (Magee’s) requests for admission

propounded during discovery. We disagree. In Request For Admission No. 12, Magee

requested the District to admit that it had “a statutory duty to provide a safe environment for

its students,” and the District admitted this fact. However, in Request For Admission No.

17, Magee requested the District to admit that it had “a statutory duty to use ordinary care

in administering public schools and to take ordinary and reasonable steps to minimize risks

for its students.” In its response to this request for admission, the District stated:

       Responding to Request No. 17, Defendant admits only that from Miss. Code
       Ann. § 37-9-69, the Courts of this state have fashioned a ministerial duty to
       maintain a safe environment for the students that has been applied by the
       Courts in a limited context. . . .

(Emphasis in original). We have stated that Mississippi Rule of Civil Procedure 36 “is to be

enforced according to its terms.” Educ. Placement Sers. v. Wilson, 487 So. 2d 1316, 1318

(Miss. 1986) (citations omitted). However, this Court likewise has stated that “[w]hile Rule

36 is to be applied as written, it is not intended to be applied in Draconian fashion.”

DeBlanc v. Stancil, 814 So. 2d 796, 801 (Miss. 2002). The District states that, while it was

duty-bound to respond truthfully to Request For Admission No. 12, couched in general

language, this admission cannot be viewed in a vacuum, but instead must be read together

with its Response to Request For Admission No. 17. Consistent with DeBlanc, we agree.

Id. The District, while acknowledging the existence of the provisions of Section 37-9-69 and

our caselaw interpreting this statute, likewise qualified its admission that the mandatory duty


                                               8
placed upon public schools and their employees by statute has been applied by this Court in

a limited context.3    Thus, in the end, the District’s responses to certain requests for

admissions are of no moment concerning this Court’s determination as a matter of law on the

issue of whether Section 37-9-69 is applicable to today’s case.

¶12.   Magee also argues that Mississippi Code Section 37-9-14 gives rise to a statutory duty

based on the facts of this case. This argument is simply without merit. Section 37-9-14 sets

forth the responsibilities and powers of the superintendent, and in no way does this statute

imply any duties pertaining to the oversight of athletic practices. See Miss. Code Ann. § 37-

9-14 (Rev. 2007).

¶13.   The District asserts, based on both Prince v. Louisville Municipal School District,

741 So. 2d 207 (Miss. 1999), and Harris v. McCray, 867 So. 2d 188 (Miss. 2003), that the

District’s alleged conduct was discretionary, and summary judgment should have been

granted pursuant to Mississippi Code Section 11-46-9(1)(d). In Prince and Harris, this

Court deemed the coaching responsibilities of coordinating and supervising practice to be

discretionary acts. See Prince,4 741 So. 2d at 212 (affirmed trial court’s grant of summary


       3
        In its arguments before the trial court, the District, through counsel, stated that
“[Magee’s counsel]’s asked us to admit in a vacuum admission or denial concerning general
duties governed by Mississippi law. We don’t deny that there is a duty to take care of these
students, Your Honor. That would be foolish for us to sit here and suggest otherwise. What
we’re saying is, these specific allegations that they are alleged [sic] invoke discretionary acts
as stated in the Harris and in the Prince case. The [supreme] court has spoken on this.”
       4
       As we stated in Harris, “[w]hile admittedly involving application of ‘pre-Pruett’
common law concerning whether the act involved was a discretionary or ministerial
function, our decision in Prince is enlightening.” Harris, 867 So. 2d at 191. See Pruett v.

                                               9
judgment based on qualified immunity); Harris, 867 So. 2d at 192-93 (“trial court did not

err in its determination that the School District and Coach McCray were exempted from

liability”). This Court stated in Harris:

       We must balance the serious negative repercussions which could result for all
       extra-curricular school activities if the discretionary decisions of coaches are
       not exempt from liability pursuant to Miss. Code Ann. § 11-46-9(1)(d) with
       the need for providing a well-rounded education. There is nothing in the
       record to imply that Coach McCray's actions as a football coach on August 21,
       1995, violated any statute, ordinance, or regulation.

Harris, 867 So. 2d at 192. Likewise, in today’s case, nothing in the record indicates that the

District and/or the football coaches (or any District employee or staff member) violated any

statute, ordinance, or regulation concerning conducting football practice, and the conduct at

issue constitutes discretionary behavior.

¶14.   Further, Magee contends that, even if the acts or omissions of the District are

discretionary, they still do not invoke the protection of social, economic, or political policy.

This Court adopted the public-policy-function test and stated “only those functions which by

nature are policy decisions, whether made at the operational or planning level, are protected.”

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

discretionary acts at issue are grounded in public policy. In the Harris case, discussed supra,

this Court reasoned:

       Who knew the football players of the 1995 Jefferson County High School
       football team better than Coach McCray? He knew what players would
       complain only when hurt and what players would complain at a drop of a hat


City of Rosedale, 421 So. 2d 1046 (Miss. 1982).

                                              10
       simply to be able to take a break from football practice on a hot August day.
       Coaches have to know what motivates their players and what does not.
       Coaches know that in order to discipline football players, each one is a
       different human being – one player may be disciplined by a mere stern look
       from the coach, while a military-style drill sergeant chewing out will not faze
       another player. Coaches will know their players well enough to know who
       may holler “wolf” and who will not. When Victor Harris complained of
       feeling weak and needing a water break, Coach McCray told Harris he was
       “faking it.” Unfortunately, he was not. Harris's injuries and resulting damages
       are not to be treated flippantly. However, we cannot fast-forward past the
       facts of this case and the applicable law just to arbitrarily impose liability in
       an attempt to right a perceived wrong.

       While the facts of Victor Harris's case are no doubt tragic, we must realize the
       consequences of our decision today were we to find Coach McCray and the
       school district liable on the facts of this case. High school football coaches
       around the state would lose their ability to control their football teams.
       Discipline of a football team would become non-existent. If a coach refused
       a player's request to have a water break – to see a trainer – to not have to run
       any more wind-sprints – to not have to do any more one-on-one
       blocking/tackling drills, because of that player's complaint of “feeling weak”
       or “not feeling good” or simply “not feeling like it,” that coach would be very
       much aware of the fact that he/she would be running the risk of being
       successfully sued along with other school officials and the school district,
       should that player later suffer physical/medical problems related to the coach's
       failure to cow to the player's every whim and wish. On the other hand, if the
       coach, in fear of a successful lawsuit, should cow to the player's every whim,
       wish and demand, then the coach would lose the respect of the players, and
       discipline and morale would be lost.

Harris, 867 So. 2d at 192-93. The District’s discretionary decision to allow coaches the

ability to set and conduct practices is rooted in policy – coaches know their players and must

be able to control their teams.

¶15.   Although this Court is once again faced with a devastating and tragic situation

because of the untimely death of a high-school student, we are constrained to find that the

applicable provisions of the MTCA “operated to shield [the District and its coaches and

                                              11
employees] from any liability.” Harris, 867 So. 2d at 193. The exemption from liability

found in Mississippi Code Section 11-46-9(1)(d) is applicable to today’s case. As a result,

the trial court’s denial, in part, of the District’s motion for summary judgment must be

reversed.

                                      CONCLUSION

¶16.   For the reasons stated, the Covington County Circuit Court’s denial, in part, of the

District’s motion for summary judgment is reversed, and judgment is rendered here, in toto,

in favor of the Covington County School District, thus granting summary judgment in full.

¶17.   REVERSED AND RENDERED.

     WALLER, C.J., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ.,
CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY GRAVES, P.J. CHANDLER, J., DISSENTS WITH SEPARATE
WRITTEN OPINION.

       KITCHENS, JUSTICE, DISSENTING:

¶18.   I agree with the majority and this Court’s precedent that, as it stands, coordinating and

supervising high school football practice are discretionary acts within the meaning of

Mississippi Code Section 11-46-9(1)(d). Prince v. Louisville Mun. Sch. Dist., 741 So. 2d

207 (Miss. 1999); Harris v. McCray, 867 So. 2d 188 (Miss. 2003). However, I respectfully

dissent from the majority opinion’s conclusion that the discretionary acts at issue in the

present case were grounded in social, economic, or political policy, which would have to

have been the case in order for statutory immunity to apply.




                                              12
¶19.   It is well-settled that Mississippi Code Section 11-46-9(1)(d) does not bestow

immunity for all discretionary governmental acts. See, e.g., Jones v. Miss. Dep’t of Transp.,

744 So. 2d 256 (Miss. 1999); Stewart v. City of Jackson, 804 So. 2d 1041 (Miss. 2002);

Harris v. McCray, 867 So. 2d 188 (Miss. 2004); Miss. Code Ann. § 11-46-9(1)(d) (Rev.

2002). “[O]nly those functions which by nature are policy decisions, whether made at the

operational or planning level, are protected.” Stewart, 804 So. 2d at 1048 (quoting Jones,

744 So. 2d at 260). Therefore, it must be determined “whether the [discretionary conduct]

involved social, economic or political policy” before a discretionary act qualifies for

immunity pursuant to Section 11-46-9. Stewart, 804 So. 2d at 1047 (quoting Jones, 744 So.

2d at 160); Miss. Code Ann. § 11-46-9 (Rev. 2002).

¶20.   In this case, in order to decide whether qualified immunity pursuant to Section 11-46-

9 applies to the school district and its coaches, it must be determined whether the

discretionary acts or omissions which led to the tragic death of Lonnie Magee were grounded

in social, economic, or political policy. Jones, 744 So. 2d at 261.

¶21.   Stewart v. City of Jackson, 804 So. 2d 1041 (Miss. 2002), is helpful in making such

a determination. The plaintiff in Stewart alleged that she fell and was injured when a bus

driver employed by the City of Jackson failed to assist her into an adult day-care center. Id.

at 1047-48. The plaintiff contended that, although the defendant bus driver was acting with

discretion when she decided not to assist the plaintiff into the adult day-care center, the acts

or omissions of the City of Jackson and the bus driver were not policy-based, and that,

therefore, the City of Jackson was not immune pursuant to Section 11-46-9. Id. at 1048.

                                              13
¶22.   This Court agreed with the plaintiff, noting that it “must distinguish between real

policy decisions implicating governmental functions and simple acts of negligence which

injure innocent citizens.” Id. (quoting Gale v. Thomas, 759 So. 2d 1150, 1162 (Miss. 1999)).

The Court held that, because the acts or omissions of the city’s bus driver did not involve real

policy decisions implicating governmental functions, the Mississippi Tort Claims Act did not

afford immunity protection to the City of Jackson. Id.

¶23.   Here, it cannot be determined whether the defendant’s discretionary acts were rooted

in policy, because the record does not contain sufficient information. Given that this case

is before us by way of interlocutory appeal from a partial denial of summary judgment, the

plaintiff has not had sufficient opportunity to discover exactly what acts or omissions, if any,

caused or contributed to the sudden demise of Lonnie Magee. The record is incomplete, as

neither the plaintiff nor this Court knows what the coaches did or did not do on the day of

Lonnie’s death.

¶24.   This Court cannot rule out that some discretionary conduct by some athletic coaches

may be comparable to that of the bus driver in Stewart: neither rooted in social, economic,

nor political policy nor contemplated by the Legislature when it enacted the MTCA. Given

this Court’s precedent and the limited record before us, I am unable to determine whether the

relevant acts or omissions of the school district and the coaches of Mount Olive Attendance

Center were rooted in social, economic, or political policy. I would hold that the trial judge

did not err in denying the school district’s summary judgment motion, and I would remand

the case for further proceedings.

                                              14
       GRAVES, P.J., JOINS THIS OPINION.

       CHANDLER, JUSTICE, DISSENTING:

¶25.   I respectfully dissent. Because I believe the trial court properly denied summary

judgment at this stage of the litigation, I would affirm the trial court.

                                               I.

¶26.   Mississippi Code Section 11-46-9 provides that a state governmental entity and its

employees shall not be liable for any claim while acting within the course and scope of their

employment and duties. Miss. Code Ann. § 11-46-9(1) (Rev. 2002). The statute provides

for immunity, in part, for a claim “[a]rising out of any act or omission of an employee of a

governmental entity exercising ordinary care in reliance upon, or in the execution or

performance of, or in the failure to execute or perform, a statute, ordinance or regulation.”

Miss. Code Ann. § 11-46-9(1)(b) (Rev. 2002).            As the majority correctly holds, a

governmental entity and its employees have immunity, provided that ordinary care is used

when performing a duty under a statute, ordinance, or regulation. Harris v. McCray, 867 So.

2d 188, 189 (Miss. 2003); Miss. Code Ann. § 11-46-9(1)(b) (Rev. 2002). Section 11-46-

9(1)(d) provides immunity for discretionary acts performed within the course and scope of

employment. The immunity is “[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. 2002).



                                              15
¶27.   This Court has distinguished what constitutes ministerial and discretionary acts. A

ministerial act is a duty that “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 dependent upon the officer's

judgment or discretion.” Dancy v. East Miss. State Hosp., 944 So. 2d 10, 16 (Miss. 2006)

(quoting L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136, 1141 (Miss. 1999)).

On the other hand, “[a] duty is discretionary if it requires the official to use her own

judgment and discretion in the performance thereof.” Id. (quoting T.M. v. Noblitt, 650 So.

2d 1340, 1343 (Miss. 1995)).

¶28.   In order to determine whether the conduct at issue is discretionary in nature, this Court

has imparted a two-prong test. The two-prong test to determine whether the governmental

conduct is discretionary is: (1) does the conduct involve an element of choice or judgment

on the part of the entity or employee; and if so, (2) does the choice or judgment involve

social, economic, or political policy. Dancy, 944 So. 2d at 16; Bridges v. Pearl River Valley

Water Supply Dist., 793 So. 2d 584, 588 (Miss. 2001).

                                              II.

¶29.   Magee claims, in part, that the District had a duty to provide a safe environment for

its students pursuant to Mississippi Code Sections 37-9-69 and 11-46-9(1)(b). The majority

opined that “[s]ection 37-9-14 sets forth the responsibilities and powers of the

superintendent, and in no way does this statute infer any duties pertaining to the oversight

of athletic practices.”

                                              16
¶30.   Section 37-9-69 provides:

       It shall be the duty of each superintendent, principal and teacher in the public
       schools of this state to enforce in the schools the courses of study prescribed
       by law or by the state board of education, to comply with the law in
       distribution and use of free textbooks, and to observe and enforce the statutes,
       rules and regulations prescribed for the operation of schools. Such
       superintendents, principals and teachers shall hold the pupils to strict account
       for disorderly conduct at school, on the way to and from school, on the
       playgrounds, and during recess.

Miss. Code Ann. § 37-9-69 (Rev. 2007) (emphasis added). While the statute does not

explicitly define the duties of a superintendent, principal, or teacher to oversee athletic

practices, the statute does provide that they must “enforce the statutes, rules and regulations

prescribed for the operation of schools.” Miss. Code Ann. § 37-9-69.

¶31.   The Court of Appeals in Dotts v. Pat Harrison Waterway District, 933 So. 2d 322,

324 (Miss. Ct. App. 2006), held that an employee’s duties are deemed ministerial if local

agency rules impose specific guides to be followed. In Dotts, the mother of a deceased boy

brought a wrongful-death action against the Pat Harrison Waterway District (PHWD)

pursuant to the Mississippi Torts Claim Act (MTCA) after his drowning death at Dunn’s

Falls. Id. at 324. The Court of Appeals upheld the trial court’s finding that PHWD had no

statutory obligation for the operation of its swimming facility because Mississippi had no

statute in place. Id. at 326. However, the trial court did not end its analysis at this juncture.

¶32.   In Dotts, the trial court also considered PHWD’s actions in regard to the operation of

its facility. Dotts, 933 So. 2d at 326. “[T]he trial court found that PHWD had discretion in

making judgments regarding the exercise of its powers and functions in operating” the


                                               17
swimming facility. Id. PHWD had a written, swimming policy in place. Id. at 326-27. In

its analysis of whether the activity was discretionary in nature, the Court of Appeals

summarized the trial court’s decision by stating:

       The park manager of Dunn's Falls at the time of Holly's accident was Raford
       Williams. He was the only employee on duty that day. Although the trial
       court found that the PHWD was utilizing a discretionary function, the court
       held that Williams did not have any discretion regarding the operation of
       Dunn's Falls. Because of PHWD's policy, Williams' actions were ministerial.
       Therefore, any evidence of Williams' knowledge that the back buoy line was
       missing or knowledge that the swimming area's configuration had changed
       would be violations of the policies of PHWD that would trigger liability under
       the MTCA.

Id. at 327 (emphasis added).

¶33.   The Court of Appeals also upheld the trial judge’s finding of fact concerning

conflicting evidence. Id. at 327. In other words, the Court of Appeals upheld the trial

court’s determination that while PHWD had discretion in adopting its policy concerning rules

for public swimming areas, its employee had no discretion, and the employee’s conduct in

implementing the policy was ministerial in nature. Id. Further, any knowledge the employee

had that any activity or circumstances was contrary to the policy would have been a violation

of the policy that would have exposed PHWD to liability pursuant to the MTCA. Id. In

Dotts, the employee overseeing the swimming facility died prior to taking a deposition,

therefore, the trial court determined that the issue of whether the employee had actual

knowledge of the swimming conditions could not be determined and PHWD was not liable

in that case. Id. As noted, above, the Court of Appeals upheld the trial court’s decision. Id.



                                             18
¶34.   Here, the discovery conducted was incomplete. Further, discovery is required in this

case to allow the parties time to complete depositions at a minimum.              This case is

distinguishable from Harris and Prince v. Louisville Municipal School District, 741 So. 2d

207 (Miss. 1999), because the issue of whether a statute, regulation, or rule was violated was

not considered by the Court in either of those cases.5 At best, the record reveals a copy of

the Mississippi High School Activities Association, Inc. (MHSAA) handbook, which

pertains to the regulations of high school sporting activity. Indeed, this Court has recognized

the MHSAA handbook as being a handbook that “regulates and provides guidelines for the

schools to follow.” Pearl Pub. Sch. Dist. v. Groner, 784 So. 2d 911, 915 (Miss. 2001).

¶35.   Further, the parties have not had an opportunity to determine, for instance, whether

the Covington County School District has a county operational policy similar to the written,

operational policy in place in Dotts and whether it has operational procedures for athletics.

Provided the District had a written, operational policy in place, the superintendent, principal,

and teachers, including coaches, had a duty to enforce any rule or regulation pertaining to the

operation of the schools in the district. See Miss. Code Ann. § 37-9-69 (Rev. 2007). These

rules and regulations often are in the form of a school district’s operational policy.

¶36.   Unlike Dotts, however, Mississippi has a statute for school personnel, Section 37-9-

69, which states in part that “[i]t shall be the duty of each superintendent, principal and

teacher in the public schools of this state . . . to observe and enforce the statutes, rules and


       5
           Both Harris and Prince involved injury to a student during a school athletics
program.

                                              19
regulations prescribed for the operation of schools. Miss. Code Ann. § 37-9-69 (Rev. 2007).

The trial court recognized that total summary judgment in favor of the District was premature

given the early stage of the case. Upholding the trial court’s decision allows the parties an

opportunity to discover whether the District had any county operational policy in place, what

the policy stated in regard to athletics, and whether the procedures were followed. Further,

it provides an opportunity to depose appropriate personnel.

¶37.   This case has implications of both ministerial and discretionary functions. See Dotts,

933 So. 2d at 326-27. Provided the District had a county operational policy, the District,

similar to the PHWD, would have used discretion in making the policy. Id. at 327. A school

district’s operational policy, which is promulgated in accordance with the board’s authority

found in Section 37-9-67, would have to be reviewed to determine whether the employees,

such as the superintendent, principal, teachers, and coaches, were implementing and

following it on the date of this tragic incident. Id. at 327. Consequently, the issue of whether

the personnel had only a ministerial function and either followed the policy or knowingly

disregarded the policy also would have to be determined through depositions and other

discovery. Id. Because of this, the trial court correctly determined that summary judgment

on all issues was premature. Discovery is critical to determine whether the District had

information such as an operational policy, what the policy terms stated, and whether

personnel followed the policy or knowingly disregarded the policy.

                                             III.

¶38.   For the above reasons, I dissent with the majority’s opinion today.

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