                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-CA-01977-SCT

ALESA DAWN CRUM, INDIVIDUALLY, AND AS
MOTHER AND NEXT FRIEND OF HANNAH
BRADDOCK

v.

CITY OF CORINTH, MISSISSIPPI


DATE OF JUDGMENT:                          10/15/2013
TRIAL JUDGE:                               HON. JAMES SETH ANDREW POUNDS
TRIAL COURT ATTORNEYS:                     TACEY CLARK LOCKE
                                           MITCHELL ORVIS DRISKELL, III
COURT FROM WHICH APPEALED:                 ALCORN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   MATTHEW DANIEL WILSON
                                           TACEY CLARK LOCKE
ATTORNEY FOR APPELLEE:                     MITCHELL ORVIS DRISKELL, III
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               REVERSED AND REMANDED - 01/14/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    Alesa Dawn Crum’s home in Corinth, Mississippi, was flooded with backflowed

sewage twice. Crum filed suit against the City of Corinth, alleging damages as a result of the

City’s negligent maintenance of its sewage system. The Alcorn County Circuit Court granted

the City’s motion to dismiss Crum’s complaint, finding that the City was immune under the

discretionary-function exemption of the Mississippi Tort Claims Act (MTCA). Crum appeals,

arguing that the City is not entitled to discretionary-function immunity. Because we find that
the trial court erred in dismissing Crum’s complaint, we reverse the judgment and remand

the case for further proceedings.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Around March 30, 2012, during heavy rains, the Corinth, Mississippi, home of Alesa

Dawn Crum was flooded with approximately twelve inches of sewage over a period of about

six hours. On April 23, 2012, Crum filed a complaint with the Mississippi Department of

Environmental Quality (MDEQ) regarding the overflow. MDEQ investigator Lynne Burrell

traveled to Crum’s home in Corinth to investigate the incident on May 4, 2012. Burrell’s

investigation revealed that the overflow possibly had been caused by root growth in the

manhole into which Crum’s sewage service line emptied.

¶3.    In the early morning of May 7, 2012, sewage overflowed a second time into Crum’s

home and garage. Burrell twice telephoned Billy Glover, the superintendent of the City’s

Sewer Department, and left voicemail messages. Burrell also sent an email message to the

mayor of the City of Corinth with a photograph of the root mass in the manhole. On May 8,

2012, Glover returned Burrell’s telephone calls and informed her that it was likely that an

employee of the City’s Street Department had dislodged a manhole cover while bush hogging

roadside ditch banks in the area. Glover informed Burrell that the City had removed the root

mass from the manhole, and that he would investigate whether the City would pay for sewage

cleanup at Crum’s home. Glover also informed Burrell that he would resubmit the cleanup

bill to MS Municipal Insurance.




                                             2
¶4.    Burrell and Glover spoke again on May 25, 2012, and Glover confirmed his suspicion

that recent road work by the City had “knock[ed] off the ring and manhole cover.” Glover

indicated that, during heavy rains, due to the uncovered manhole, an enormous amount of

rainwater had entered the sewer lines near Crum’s house, causing sewage to back up into the

lines and into Crum’s house. Based on her conversation with Glover, Burrell reported that

“[t]he city is going to fix [Crum’s] home.” On May 29, 2012, Burrell reported that she had

received a letter from Glover to MS Municipal Insurance, dated May 11, 2012, and that his

report to the insurer was consistent with what Glover had told her on May 25, 2012.

¶5.    Crum filed her complaint against the City in the Circuit Court of Alcorn County on

October 3, 2012. She alleged that the City had a “duty to maintain the sewer system in such

a way that [Crum’s] home is not flooded by the sewer system,” and that the City had

breached its duty by failing to maintain the sewer system properly. Crum claimed that her

home was irreparably damaged as a result of the City’s negligence and that she and her

daughter had suffered physical illness due to the sewage overflow.

¶6.    On November 2, 2012, the City filed a Rule 12(b)(6) motion to dismiss Crum’s

complaint. See M.R.C.P. 12(b)(6). The City claimed discretionary-function immunity: “[a]s

it is well settled that the operation and maintenance of a municipal sewage system is a

discretionary function and deals with the provision of adequate governmental services, the

City is immune . . . .” See Fortenberry v. City of Jackson, 71 So. 3d 1196 (Miss. 2011).

Crum responded on March 26, 2013, that the City was not entitled to immunity because




                                            3
federal and state regulations rendered the City’s duty to maintain its sewage system

ministerial.

¶7.    A hearing was held on the City’s motion to dismiss on September 16, 2013. On

October 15, 2013, the trial court granted the City’s Rule 12(b)(6) motion and dismissed

Crum’s claims with prejudice, reasoning that the City was immune from suit because Crum’s

claim was based on the City’s maintenance of its sewer system, which the trial court had

determined was a discretionary function under the MTCA. Aggrieved, Crum appealed that

dismissal to this Court.

¶8.    On appeal, Crum argued again that federal and state regulations imposed “a statutory

and a regulatory duty to maintain the City’s sewer system, and, when necessary, to repair any

defective portion thereof.” Alternatively, Crum argued that the manhole cover’s exposure

was caused, not by the exercise of a discretionary function of the City, but by the simple

negligence of the bush hog operator: “the Bush Hog operator exercised no social, economic,

or political policy analysis when he was cutting the grass in the ditch bank.” See

Fortenberry, 71 So. 3d at 1199 (The public-policy function test requires the Court to “answer

two questions: 1) did the conduct or activity involve an element of choice or judgment; and

if so, 2) did that choice or judgment involve social, economic, or political policy?”).

¶9.    After briefing in this case had been completed, this Court, on December 29, 2014,

handed down its decision in Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014).

In Brantley, we announced our abandonment of the public-policy function test. Id. (citing




                                              4
Little v. Miss. Dep’t of Transp., 129 So. 3d 132 (Miss. 2013)). We clarified the standard for

judicial determination of whether a governmental entity is entitled to immunity:

       [A] plaintiff may defeat sovereign immunity, even when a governmental
       entity’s act furthered a discretionary function or duty, when the plaintiff proves
       that the act also furthered a more narrow function or duty which is made
       ministerial by another specific statute, ordinance, or regulation promulgated
       pursuant to lawful authority.

Brantley, 152 So. 3d at 1115. In Brantley’s wake, the City sought leave to file a

supplemental brief “to show why the Trial Court’s decision should be affirmed under” the

new test. This Court granted the City’s motion and ordered supplemental briefing.

                                STANDARD OF REVIEW

¶10.   “A motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure

raises an issue of law, which is reviewed under a de novo standard.” Rose v. Tullos, 994 So.

2d 734, 737 (Miss. 2008) (citing Cook v. Brown, 909 So. 2d 1075, 1077-78 (Miss. 2005)).

A Rule 12(b)(6) motion “tests the legal sufficiency of the complaint.” Little, 129 So. 3d at

135 (quoting Little v. Miss. Dep’t of Human Servs., 835 So. 2d 9, 10-11 (Miss. 2002)).

“‘[I]n order to grant a Rule 12(b)(6) motion to dismiss, there must appear to a certainty that

the plaintiff is entitled to no relief under any set of facts that could be proved in support of

the claim.’” Little, 129 So. 3d at 135 (quoting Little, 835 So. 2d at 11). When considering

a Rule 12(b)(6) motion, “[t]he allegations in the complaint must be taken as true.” Rose, 994

So. 2d at 737 (citing Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 893 (Miss. 2006)).




                                               5
                                       DISCUSSION

¶11.   Mississippi Rule of Civil Procedure 12(b)(6) allows dismissal when a plaintiff has

failed “to state a claim upon which relief can be granted.” M.R.C.P. 12(b)(6). For the movant

to prevail on a Rule 12(b)(6) motion, “‘there must appear to a certainty that the plaintiff is

entitled to no relief under any set of facts that could be proved in support of the claim.’”

Little, 129 So. 3d at 135 (quoting Little, 835 So. 2d at 11) (emphasis added). Crum sued the

City of Corinth, alleging that it had failed to maintain the sewer line and manhole cover, and

that its failure had caused sewage to invade her home. The City moved to dismiss under Rule

12(b)(6), claiming discretionary-function immunity. Crum responded that state and federal

statutes and regulations impose a ministerial duty on the City to maintain its sewer system.

The issue before the Court, therefore, is whether there is any set of facts under which Crum

could prevail.

¶12.   Mississippi Administrative Code Section 11-6-1.1.4(A)(18) imposes a ministerial duty

on permitted sewage system operators to properly “operate, maintain, and when necessary,

promptly replace all facilities and systems of collection, treatment and control (and related

appurtenances) which are installed or used by the permittee to achieve compliance with the

conditions of [the] permit.” See Boroujerdi v. City of Starkville, 158 So. 3d 1106, 1113

(Miss. 2015). Taking as true Crum’s allegation that “[t]he backflow of sewage into [her]

home was due to the fault of [the City in] not properly maintaining the sewer system and/or

its manholes and/or the City of Corinth causing the sewer system and/or manholes to flood




                                              6
by action of the City of Corinth and/or its employees,” it cannot be said to a certainty that

Crum would not prevail under any set of facts that could be proved in support of her claim.

¶13.   Under this Court’s standard for Rule 12(b)(6) dismissal, assuming that everything

alleged in Crum’s complaint was true, the City bore the burden to show that Crum would be

entitled to no relief under any set of facts. Little, 129 So. 3d at 135 (quoting Little, 835 So.

2d at 11). It did not. Therefore, Crum has stated an adequate claim, and the trial court erred

in granting the City’s motion to dismiss.

¶14.   But even if the dissent is correct that Crum failed to allege that the “duty was

ministerial in nature, as would be required to defeat a claim of governmental immunity under

the MTCA” and that Crum failed to prove, in her response to the City’s motion to dismiss,

“that her injury was caused by an act done in furtherance of some more narrow duty made

ministerial by statute or regulation,” Crum ought to be given the opportunity to redraft her

pleadings in accordance with this Court’s recent decisions in Brantley v. City of Horn Lake,

152 So. 3d 1106 (Miss. 2014), and Boroujerdi v. City of Starkville, 158 So. 3d 1106 (Miss.

2015). Diss. Op. ¶32 (emphasis added).

¶15.   In Brantley, the trial court granted summary judgment to the City. Brantley, 152 So.

3d at 1108. This Court reversed the judgment and remanded the case to the Circuit Court of

DeSoto County, holding the following:

       Because this Court has injected the aspect of discretionary-function immunity
       into the proceedings, the plaintiff has had no opportunity to tailor his discovery
       or strategy to address the possibility of a rule, regulation, or statute which may
       render the duty of removing a person from an ambulance a ministerial one, and
       thus could remove such duty from the umbrella of discretionary-function
       immunity. On remand, if the plaintiff can prove that the defendant was

                                               7
       fulfilling a function or duty mandated by a specific statute, ordinance, or
       regulation promulgated pursuant to lawful authority, then he may proceed with
       his claim.

Id. at 1118.

¶16.   In Boroujerdi, the trial court had “granted summary judgment for the City, finding

that maintenance of the sewage system is a discretionary function and that the City is immune

from suit pursuant to Mississippi Code Section 11-46-9(1)(d) and this Court’s plurality

opinion in Fortenberry v. City of Jackson, 71 So. 3d 1196 (Miss. 2011).”1 Boroujerdi, 158

So. 3d at 1108. This Court reversed the judgment and remanded the case to the Circuit Court

of Oktibbeha County, finding “that it would be patently unfair to affirm summary judgment

in the City’s favor without Boroujerdi’s having an opportunity to attempt to conform his

complaint and proof to this Court’s current approach to discretionary function immunity.”

Id. at 1114.

¶17.   At the time Crum filed her complaint and at the time she responded to the City’s

motion to dismiss, neither Brantley nor Boroujerdi had been decided by this Court. Crum

filed her complaint on October 23, 2012. Her response to the City’s motion to dismiss was

filed on March 26, 2013. The trial court entered its order granting the City’s Rule 12(b)(6)

Motion to Dismiss on October 23, 2013. Crum filed her notice of appeal on November 14,

2013. This Court’s mandate in Brantley issued on December 29, 2014; our mandate in

Boroujerdi issued on March 5, 2015.



       1
        Fortenberry “specifically held that a municipality is immune from suit for negligent
maintenance of its sewage system under Section 11-46-9(1)(d) because maintaining such a
system is a discretionary function of the municipality.” Boroujerdi, 158 So. 3d at 1109.

                                             8
¶18.   Although this Court ordered, and the parties filed, supplemental briefing in this case

to address the applicability of Brantley, Crum has not been provided the opportunity in the

trial court to attempt to “conform [her] complaint and proof to this Court’s current approach

to discretionary function immunity.” Boroujerdi, 158 So. 3d at 1114. As the majority stated

in Boroujerdi, depriving Crum of this opportunity would be “patently unfair.” Id. Even if

Crum’s complaint does not adequately state a claim, the affirmance of the Rule 12(b)(6)

dismissal in this case would be premature.

                                      CONCLUSION

¶19.   Assuming that everything alleged in Crum’s complaint was true, the City failed to

show to a certainty that Crum would be entitled to no relief under any set of facts. Because

Crum adequately has stated a claim, we hold that the trial court erroneously entered dismissal

pursuant to Rule 12(b)(6). We therefore reverse and remand the case to the Alcorn County

Circuit Court for proceedings consistent with this opinion.

¶20.   REVERSED AND REMANDED.

      KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN
RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY
PIERCE, J. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT
SEPARATE WRITTEN OPINION. WALLER, C.J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY PIERCE, J. DICKINSON, P.J., AND MAXWELL,
J., NOT PARTICIPATING.

       RANDOLPH, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶21.   While the result reached by the plurality is correct, I maintain that the analysis first

adopted by this Court in Jones v. Mississippi Department of Transportation2 simplifies the

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

                                              9
inquiry and would result in more predictive results for plaintiffs and defendants alike. I agree

that the trial court erred in granting immunity under the discretionary-function exception of

the Mississippi Tort Claims Act. The fact remains that an employee of the City’s street

department dislodged a manhole cover while mowing, which caused water to enter and flood

Crum’s house. I fail to see how mowing grass requires any governmental judgment or lends

itself to the discretion of an employee. As an eight-year-old, I never would have imagined

that to choose whether to mow around an object or to mow over an object (a ministerial

decision) would later become the subject of debate in the highest court of any state.

¶22.   Were we still using the public-policy function test—the test of immunity advanced by

the United States Supreme Court more than two decades ago—the resolution of this case

would be quite simple. I did not agree that Brantley’s3 test was correct when we adopted it.

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. As such, I propose a

return to the public-policy function test as adopted by this Court in Jones, 744 So. 2d at 260.

¶23.   The discretionary-function exceptions of the Federal Tort Claims Act and the

Mississippi Tort Claims Act are practically identical.4 For determining the application of



       3
        Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014).
       4
        See 28 U.S.C. § 2680(a) (granting immunity for “[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 agency or an employee of the Government, whether or not the
discretion involved be abused”); Miss. Code Ann. § 11-46-9(d) (Rev. 2012) (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”).

                                              10
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 our

analysis of the MTCA’s discretionary-function exception in Jones, recognizing that the

provision in the MTCA was patterned after the identical provision in the FTCA. The

Legislature amended the MTCA after we adopted the public-policy function test in Jones and

made no intimation that we had adopted an incorrect test or interpretation of the statute. See

McDaniel v. Cochran, 158 So. 3d 992, 1000 (Miss. 2014) (“The Legislature is assumed to

be aware of judicial interpretations of its statutes, and . . . we must conclude that the

legislative silence amounts to acquiescence.”) (internal citations omitted). “[A]bsent

legislative action, [our interpretations] become a part of the statute.” Id. The Legislature’s

decision not to change the language of the MTCA should be honored, as should the Jones

decision. Brantley inappropriately altered the legislatively endorsed test.

¶24.   For more than fifteen years, this Court applied the public-policy function test to

determine whether the discretionary-function exception applied in a given case. Granted, that

test was abrogated in Brantley. I echo Chief Justice Waller’s lament that its abrogation was

both impractical and irrational:

       Based on the almost identical language of the MTCA and [the] FTCA, I
       believe there is a practical and rational basis for the Mississippi Supreme Court
       to interpret the MTCA’s discretionary-function exception as the United States
       Supreme Court has done for its identically worded federal counterpart.
       Consistency and clarity should be the watchwords in analyzing this heavily
       litigated area of law.




                                              11
Brantley, 152 So. 3d at 1119 (Waller, C.J., concurring in part and in result). I would rescind

the Brantley analysis because it 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 myriad and

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

practical effect on the actual negligent act. I would therefore readopt the simpler and more

direct public-policy function test. See State ex rel. Moore v. Molpus, 578 So. 2d 624, 635

(Miss. 1991) (explaining that cases may be overruled when their application is “impractical,”

“mischievous in effect,” or “detriment[al] to the public”).

¶25.   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. Dancy v. East Miss. State Hosp., 944 So. 2d

10, 16 (Miss. 2006).

¶26.   Section 21-27-189(b) granted the City discretionary authority “[t]o construct, operate

and maintain sewage systems . . . .” Miss. Code Ann. § 21-27-189(b) (Rev. 2015). However,

once the City 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. See Fortenberry v. City of Jackson 71 So. 3d 1196,

1204-05 (Miss. 2011) (Randolph, J., dissenting). I maintain that “there is a vast difference

between the statutorily supported discretion to [construct, operate, and maintain sewage

systems] 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 1204.



                                              12
¶27.   An employee of Corinth’s Street Department dislodged a manhole cover while bush-

hogging the ditch banks. These facts put this case squarely in line with City of Jackson v.

Internal Engine Parts Group, Inc., 903 So. 2d 60 (Miss. 2005). Engine Parts sustained flood

damage when the city failed to inspect and maintain a drainage ditch. Id. at 64. This Court

(erroneously) distinguished Engine Parts from Fortenberry because, unlike the operation

and maintenance of a sewage system, the neglected maintenance of a drainage ditch is not

made discretionary by statute. Fortenberry, 71 So. 3d at 1200-01. As in Engine Parts, the

neglected bush-hogging of a ditch bank in this case is not made discretionary by statute.

¶28.   I fail to see how the mower’s choice involved social, economic, or political policy. His

job was to cut the grass. Operating a tractor or bush-hog entails no budgetary considerations

or resource allocations. Deciding to steer left or right, how high to cut, or what pattern to cut

implicates no policy considerations. Operating a bush-hog in the scope of one’s employment

should be no more protected by discretionary-function immunity than if the operator had run

over a child.

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

function test, the employee’s dislodging a manhole cover while mowing did not implicate

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

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

       PIERCE, J., JOINS THIS OPINION IN PART.

       WALLER, CHIEF JUSTICE, DISSENTING:




                                               13
¶30.   Because I believe that the City has met its burden of proving that Crum is not entitled

to relief in this case, I respectfully dissent.

¶31.   The plurality correctly recites this Court’s well-established standard of review for a

motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6). However, the

plurality fails to point out this Court’s recent pronouncement that, to defeat a claim of

immunity under the Mississippi Tort Claims Act, the plaintiff must prove that the

governmental act in question “furthered a more narrow function or duty which is made

ministerial by another specific statute, ordinance, or regulation promulgated pursuant to

lawful authority.’” Brantley v. City of Horn Lake, 152 So. 3d 1106, 1115 (Miss. 2014). I

would find that the City presented sufficient evidence in its motion to dismiss that no set of

facts would entitle Crum to relief, as she has cited no statute or regulation creating a

ministerial duty that is implicated in this case.

¶32.   In her complaint, Crum alleged that the City “has a duty to maintain the sewer system

in such a way that Plaintiff’s home is not flooded by the sewer system.” Notably, Crum did

not allege that the above duty was ministerial in nature, as would be required to defeat a

claim of governmental immunity under the MTCA, nor did she even mention the MTCA in

her complaint. Nevertheless, this Court has held that the general duty of sewer-system

maintenance is discretionary in nature. See Boroujerdi v. City of Starkville, 158 So. 3d 1106,

1112 (Miss. 2015). Thus, in response to the City’s motion to dismiss based on the MTCA,

Crum bore the burden of proving that her injury was caused by an act done in furtherance of

some more narrow duty made ministerial by statute or regulation. She has failed to do so.



                                                  14
¶33.   In her response to the City’s motion to dismiss, Crum first couched her claim as one

for negligent road maintenance, claiming that the City was not entitled to discretionary-

function immunity because “[t]he city employee’s act of knocking the lid and ring of the

sewer manhole off was not a discretionary act.” Essentially, she argued that “[t]here could

hardly be a less ministerial job than a street employee bushogging [sic] ditches.” This

argument clearly is without merit. This Court has held that the Mississippi Department of

Transportation has a ministerial duty, specifically created by statute, to maintain and repair

state highways. Little v. Miss. Dep’t of Transp., 129 So. 3d 132, 138 (Miss. 2013). But no

concomitant duty exists for municipalities with respect to municipal roadways. On the

contrary, “the governing authorities of municipalities shall have the power to exercise full

jurisdiction in the matter of streets, sidewalks, sewers and parks, to open and lay out and

construct the same; and to repair, maintain, pave, sprinkle, adorn, and light the same.” Miss.

Code Ann. § 21-37-3(1) (Rev. 2015). Crum fails to cite a statute that creates a ministerial

duty of maintenance or repair for municipal roads similar to the statute cited in Little.

Therefore, under Brantley, the City is immune from Crum’s claim that her injury was caused

by negligent road maintenance. See Brantley, 152 So. 3d at 1116 (finding that the function

of providing ambulance services is discretionary, because no statute requires a governmental

entity to perform that function).

¶34.   Next, Crum argued that the MTCA did not provide the City with immunity because

the failure to properly maintain the sewer manhole in question violated federal law. This

argument also is flawed.      First, the federal regulations on which Crum relies were



                                             15
promulgated pursuant to the Federal Water Pollution Prevention Act, which applies only to

“navigable waters,” which does not include the groundwater that Crum now speculates was

polluted by the discharge in this case. 33 U.S.C. §§ 1311(a), 33 U.S.C. § 1362(7); 40 C.F.R.

§ 122.2. See Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir.

1994) (affirming dismissal of claim based on alleged violation of the Federal Act, where

alleged discharge occurred in groundwater, rather than navigable water). Moreover, the

Federal Act does not create any general day-to-day operational duties, but leaves this

regulatory authority to the states. See District of Columbia v. Schramm, 631 F.2d 854, 860

(D.C. Cir. 1980).

¶35.    In addition, the state regulations on which Crum relies do not create a ministerial

duty that is applicable to the instant case. Crum attached twenty pages of Mississippi

Department of Environmental Quality permitting regulations to her response to the City’s

motion to dismiss, but she did not explain how any of these regulations applied to her case.

On appeal, Crum now relies on MDEQ regulations promulgated under the Mississippi Air

and Water Pollution Control Law (“the State Law”), which require sewage-control operators

at all times to “properly operate, maintain, and when necessary, promptly replace all facilities

and systems of collection (and related appurtenances) which are installed or used by the

permittee to achieve compliance with the conditions of the permit.” Miss. Admin. Code §

11-6-1.1.4(A)(18). Crum does not explain how the City’s alleged act of damaging a manhole

cover equates to a violation of these statutes and regulations. Instead, she simply argues that

these statutes and regulations create a continuous ministerial duty of maintenance, which



                                              16
negates the protections of the MTCA. Crum makes no allegation that the discharge in

question affected any of the state’s waters or otherwise violated applicable water-quality

standards. Simply put, under Brantley, the City’s duty under the State Law to prevent

unnecessary water pollution is not “at issue” in this case. Brantley, 152 So. 3d at 1115 (“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[.]”). Because the State Law is inapplicable to this case, so are the regulations

promulgated thereunder.

¶36.   Finally, Crum supported her response to the City’s motion to dismiss with the

MDEQ’s Wastewater Treatment Facilities Operations and Training Manual, 5th edition. She

argued that provisions of this manual created a ministerial duty of inspection and

maintenance. But the training manual in question specifically provides that it was not

intended to create any legal duties or requirements. Rather, the training manual simply

provides guidance and instruction on best practices for sewage-facility operators. Thus, the

City’s alleged noncompliance with this manual cannot serve as the basis of Crum’s claim.

See, e.g., Chisolm v. Miss. Dep’t of Transp., 942 So. 2d 136, 143 (Miss. 2006) (holding that

the provisions of the Manual on Uniform Traffic Control Devices are advisory in nature and

cannot be used to create a legal obligation).

¶37.   After a review of Crum’s complaint, the City’s motion to dismiss, and Crum’s

response to the motion, I believe that Crum failed to defeat the City’s defense of immunity

by presenting the trial court with a relevant statute or regulation creating a ministerial duty



                                                17
in this case. The plurality posits, as an alternative disposition, that this case should be

remanded to the trial court to allow Crum to conform her complaint to this Court’s holding

in Brantley, which was not decided until after Crum had perfected her appeal. But this Court

already has given the parties the opportunity to address the impact of Brantley on the trial

court’s dismissal in this case. In her response to the City’s request for supplemental briefing,

Crum argued that “her Appellant’s Brief sufficiently anticipates the holding in Brantley,

making further briefing in view thereof unnecessary.” And in her supplemental brief, Crum

claimed that “no matter how Brantley is viewed – be it from the perspective of the majority

opinion or from that of the dissent – the Brantley opinion strongly supports Ms. Crum’s

contention that the City of Corinth lacks sovereign immunity in this matter.” Thus, the

parties agree that Crum’s claims are squarely before this Court, and that further analysis of

Brantley in the trial court is unnecessary.

¶38.   Because the City met its burden of proving that there is no set of fact which would

afford Crum relief in this case, I would affirm the trial court’s dismissal of Crum’s

complaint.

       PIERCE, J., JOINS THIS OPINION.




                                              18
