                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-IA-01172-SCT
BILL O. GANT AND ALCORN COUNTY, MISSISSIPPI
v.
LILA MANESS
                                   ON MOTION FOR REHEARING
DATE OF JUDGMENT:                                   06/30/1999
TRIAL JUDGE:                                        HON. BARRY W. FORD
COURT FROM WHICH APPEALED:                          ALCORN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                           WENDELL H. TRAPP, JR.
                                                    WILLIAM HULL DAVIS, JR
ATTORNEY FOR APPELLEE:                              JAMES C. PATTON, JR.
NATURE OF THE CASE:                                 CIVIL - PERSONAL INJURY
DISPOSITION:                                        REVERSED AND RENDERED - 6/7/2001
MOTION FOR REHEARING FILED:                         4/16/2001
MANDATE ISSUED:                                     6/28/2001

      EN BANC.

      MILLS, JUSTICE, FOR THE COURT:

¶1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are
substituted therefor.

¶2. This interlocutory appeal arises from the Circuit Court of Alcorn County, which on June 19, 1999,
denied the summary judgment motion of Bill Gant and Alcorn County as to their liability in this personal
injury action. The issues certified for interlocutory appeal regard sovereign immunity, qualified immunity,
statutory immunity, and the duty of care owed by a public official to a specific member of the public.

                                                   FACTS

¶3. Danny R. Thompson, who is not a party in this case, pled guilty to second-offense DUI on April 4,
1991. He was sentenced to serve six months in the Alcorn County jail beginning on April 5, 1991. The
justice court judge modified the sentence to allow Thompson to leave the jail for work every day and to
return in the evening. The jail log reads as follows: "Sentence six months; let him go to work every day at
6:00 a.m. and return every evening. J. Norman." Lila Maness alleges that on Sunday, April 7, 1991, at 6:10
p.m., she was involved in an automobile accident with Thompson. According to Maness, the accident
report reveals that Thompson was cited for DUI and for driving without a license. A copy of this report is
not included in the record.

¶4. Maness subsequently pursued a claim against Thompson and his insurance carrier as well as her own
uninsured motorist carrier and recovered a total of $18,657. In addition, on January 21, 1994, Maness filed
suit against Alcorn County and Bill O. Gant, who at the time of the accident was Sheriff of Alcorn County.
Maness asserts that Gant, by releasing Thompson from jail, permitted the automobile accident to occur. It is
undisputed that Thompson was not an employee or agent of either Gant or Alcorn County.

¶5. Maness alleges that Sheriff Gant failed to remain properly informed of the whereabouts and actions of
Thompson during Thompson's incarceration. She refers this Court to Gant's deposition which, she alleges,
reveals Gant's negligence and lack of knowledge regarding Thompson's "comings and goings."
Unfortunately, no excerpts from Gant's deposition are included in the record before this Court.

¶6. Gant and Alcorn County filed their motion for summary judgment on March 3, 1999. The circuit court
denied the motion but subsequently certified issues for interlocutory appeal. We granted this interlocutory
appeal on September 24, 1999.

                                       STANDARD OF REVIEW

¶7. The issues presented on this interlocutory appeal are questions of law. We review questions of law de
novo. See Saliba v. Saliba, 753 So. 2d 1095, 1098 (Miss. 2000).

¶8. The standard for reviewing a grant or denial of summary judgment is the same standard as is employed
by the trial court under M.R.C.P. 56(c). Massachusetts Bay Ins. Co. v. Joyner, 763 So. 2d 877, 878
(Miss. 2000). This Court conducts de novo review of an order granting or denying summary judgment and
examines all the evidentiary matters before it--admissions in pleadings, answers to interrogatories,
depositions, affidavits, etc. Id. The evidence is viewed in the light most favorable to the party against whom
the motion has been made. Id. If, in this view, the moving party is entitled to judgment as a matter of law,
summary judgment should forthwith be entered in his favor. Id. Otherwise, the motion should be denied. Id.

                                                ANALYSIS

     I. WHETHER SHERIFF GANT CAN BE SUBJECT TO LIABILITY FOR COMPLYING
     WITH THE ORDER OF THE JUSTICE COURT OF ALCORN COUNTY, MISSISSIPPI.

¶9. Gant asserts that he cannot be subject to liability for Thompson's actions because he strictly adhered to
the sentencing instructions given by the Alcorn County Justice Court. He relies on Miss. Code Ann. § 19-
25-79 (1995), which states: "The sheriff of any county shall receive and keep any prisoner committed by a
justice of the peace according to the order of commitment."

¶10. Maness argues that Gant has interpreted this statute in a manner that relieves him of any responsibility
for ensuring that the sentence and commitment order are properly enforced. She asserts that the facts as
revealed through Gant's deposition (which is not included in this record) do not show that Gant made a
good faith effort to obey the order of the Alcorn County Justice Court. Maness alleges that Gant did not
"keep up with the comings and goings of his prisoners." She emphasizes the fact that the automobile
accident occurred on a Sunday evening, not a regular workday.

¶11. Thompson's order of commitment states: "Sentence six months; let him go to work every day at 6:00
a.m. and return every evening. J. Norman." The order does not specify certain days of the week while
excluding others. Sheriff Gant was required to permit Thompson to leave every day. Had he failed to allow
Thompson to leave, Gant would have been subject to charges of contempt. See DeWitt v. Thompson,
192 Miss. 615, 7 So. 2d 529, 532 (1942) (stating, "Here we have an order of the court issued to the
sheriff, who had to obey the order or subject himself to punishment for contempt.").
¶12. In Simpson v. Wells Lamont Corp., 494 F.2d 490, 494 (5th Cir. 1974), the Fifth Circuit held that
public officials were duty-bound to execute an order which was valid on its face. In that case a pastor had
been relieved of his duties with a Methodist church in Eupora. Id. at 492. When he refused to leave the
parsonage, church officials obtained an eviction order which was executed by the sheriff and his deputies.
Id. Simpson later sued the law enforcement officers for executing the order of the justice of the peace. Id.
The Fifth Circuit found that the officers' "good faith compliance with [their] duty relieves them of liability."
Id. at 495.

¶13. Maness acknowledges that "the general premise that the sheriff would not be liable for a tort as a result
of obeying a court order pursuant to the aforesaid § 19-25-79 of our codified state laws is applicable to the
subject factual scenario." She asserts, however, that according to Simpson Gant must show that he made a
"good faith effort" to comply with the order. She argues that he fails to do so. Her only method of
supporting this argument, however, is her reference to Gant's deposition where he allegedly reveals his
negligence and lack of involvement in Thompson's incarceration. As previously noted, this deposition is not
included in this record. Therefore, we are left to examine the order on its face in conjunction with the
undisputed facts. The order required Gant to allow Thompson to leave every day. It is undisputed that he
made this allowance. There is no evidence before this Court indicating that Thompson did not work on
Sundays; nor is there evidence that Gant was negligent in his supervision and awareness of Thompson's
"comings and goings." Therefore, we find that Gant complied with the justice court order and is not subject
to liability for doing so.

      II. WHETHER SHERIFF GANT OWED A DUTY OF CARE TOWARD THE PLAINTIFF
      INDIVIDUALLY.

¶14. Maness asserts that Sheriff Gant had a duty to protect third parties from foreseeable injury at the
hands of Thompson. She argues that Gant knew or should have known that Thompson had a propensity to
drive under the influence of alcohol, that he was incarcerated to protect the public from his driving while
intoxicated, and that his driving while intoxicated would pose a risk to other drivers.

¶15. Before an individual defendant may be found to be negligent, thereby entitling a plaintiff to recover
from that defendant, the plaintiff must show the existence of a legal duty owed by the defendant to the
plaintiff. J.C. Penney Co. v. Sumrall, 318 So. 2d 829, 832 (Miss. 1975). In Robinson v. Estate of
Williams, 721 F. Supp. 806 (S.D. Miss. 1989), the district court applied Mississippi law to determine
whether a sheriff was subject to suit by the estate of an individual who had been murdered by inmates who
had escaped from the county jail. The court held that the statutorily-imposed duties of a sheriff in
Mississippi are duties owed to the public as a whole and are, therefore, not actionable by a specific plaintiff,
absent a compelling showing of extraordinary circumstances. Id. at 808. The court stated:

      As far as the Court can determine, no Mississippi court has squarely addressed the duty issues
      presented herein. However, from the Mississippi authorities discussed, the Court finds it highly
      unlikely that the Mississippi courts would consider the sheriff to have owed a duty of care to plaintiff's
      decedent. The sole factor which distinguishes plaintiff's decedent from the populace of Clarke County
      is the harm he suffered allegedly as a result of the sheriff's negligence. This, according to longstanding
      Mississippi law, is clearly insufficient to establish a duty of care owing to him in particular:

      when the duty imposed upon an officer is one solely to the public, the failure to perform it, or an
      erroneous or negligent performance, is regarded as an injury to the public and not to an individual
      member of the public; and an individual harmed thereby may not have redress against the officer
      unless the individual had in it such a direct and distinctive interest as to set him apart from all others of
      the public in respect to it, and the fact of the injury does not in itself serve to make out the direct and
      distinctive interest which is essential.

Id. (quoting State ex rel. Boyle v. Mathews, 196 Miss. 833, 18 So. 2d 156, 158 (1944)). The
Robinson court granted the sheriff's motion for summary judgment and held that even if the sheriff was
negligent as alleged, he was nonetheless protected from liability. Id.

¶16. The facts of the case sub judice reveal that Maness is not within a category of persons setting her apart
from members of the public as a whole with respect to Gant's duty as sheriff. Excerpts from her deposition
(which, unlike Gant's, are found in the record) include her admissions that she did not know Thompson, had
never met him before the accident, had never spoken with him in person or by telephone, had no
knowledge of his criminal or court record, had never been in a court proceeding involving Thompson, and
had never testified against him. Thus, Maness cannot establish "such a direct and distinctive interest as to set
[her] apart from all others of the public in respect to" the sheriff's duty owed to the public as a whole. Id.
Because Gant owed no duty to Maness as an individual, we find that he cannot be liable to her under the
facts of this case.

      III. WHETHER SHERIFF GANT IS ENTITLED TO QUALIFIED IMMUNITY TO
      PLAINTIFF'S CLAIMS.

¶17. Under this issue, Sheriff Gant contradicts a portion of his previous argument. In asserting that he
cannot be subject to liability for strictly obeying the order of the justice court, Gant argued, in effect, that his
responsibilities in adhering to commitment orders are ministerial. In fact, he referred this Court to the
following statement at 60 Am. Jur. 2d, Penal and Correctional Institutions § 22, at 1140-41 (1987):

      The duty of an officer in executing the mandate of a judicial order in the nature of a commitment is
      purely ministerial and his power with respect thereto is limited and restricted to compliance with its
      terms.... The custodian of a prison on receiving a commitment can do only what the commitment
      orders him to do, that is, receive and safely keep the prisoner, so that the latter may then be
      discharged in due course of law.

(footnotes omitted). He also pointed to United States v. Hoffman, 13 F.2d 269 (N.D. Ill. 1925), aff'd,
13 F.2d 278 (7th Cir. 1926). There the court stated, "In cases where a person is committed to prison
pursuant to his conviction of a prison offense, the jailer has no discretion (except in cases of emergency) but
to obey the warrant of commitment." Id. at 271.

¶18. Now, in developing his argument for qualified immunity, Gant asserts that his duties regarding
Thompson's incarceration were discretionary and that he is, thus, entitled to qualified immunity. Indeed, the
doctrine of qualified immunity has generally been perceived to shield from liability public officials acting in
good faith in the performance of lawful duties requiring personal deliberation, decision, and judgment.
Davis v. Little, 362 So. 2d 642, 643 (Miss. 1978). Ignoring for the moment Gant's apparent
contradiction, we must simply determine whether Gant's acts in regard to the incarceration and release of
Thompson were discretionary or ministerial.
¶19. McQueen v. Williams, 587 So. 2d 918 (Miss. 1991), is a companion case to Robinson, which is
discussed above. In McQueen, the family of another individual murdered by the same escaped inmates in
Robinson brought a wrongful death action against the sheriff for his negligence in securing the inmates. Id.
Directing this Court to various Mississippi statutes which impose upon a sheriff the duty to "keep prisoners
confined," the plaintiffs argued that the sheriff had violated a ministerial duty. Id. at 922. We rejected the
plaintiffs' argument and found that, though there is a duty to keep prisoners confined, there is discretion,
deliberation, and judgment involved in the manner in which such a duty is performed. Id. We held that,
notwithstanding the plaintiffs' ability to demonstrate a duty owed by the sheriff to the public, because the
duty regarding the incarceration of prisoners was one involving discretion, the sheriff was shielded from
liability by the doctrine of qualified immunity. Id.

¶20. The facts of the case at bar more strongly compel a finding of qualified immunity than those in
McQueen. Gant was specifically ordered by the justice court to "let [Thompson] go to work every day." If
qualified immunity shielded the sheriff in McQueen, who had unequivocal orders to confine two convicted
murderers, then the protection of that doctrine should be available to Gant, who was adhering to the justice
court's specific orders to release the inmate. Thus, despite Gant's previous contradictory indication that
Thompson's confinement was a ministerial duty, we find that Gant was performing a discretionary act in
allowing Thompson's release and is, therefore, entitled to qualified immunity.

      IV. WHETHER ALCORN COUNTY IS ENTITLED TO ASSERT SOVEREIGN
      IMMUNITY.

¶21. In her brief submitted to this Court, Maness concedes "that Alcorn County as a separate defendant is
entitled to the defense of sovereign immunity based on the state of the law at the time of the subject
collision."(1) Thus, we find no reason to address this issue.

                                                CONCLUSION

¶22. We find that Sheriff Gant is entitled to the protection of qualified immunity and to the defense of
"absence of duty." As Gant's counsel notes, "These are not novel arguments based upon contorted
extrapolation of obscure dicta in an ancient case." We have addressed these issues under very similar
factual settings, and our previous findings compel a holding that Gant is shielded by qualified immunity and is
not subject to liability for Thompson's actions. Consequently, Gant is then entitled to judgment as a matter
of law; for, this case does not turn upon the resolution of conflicting factual issues. Rather, it is simply a case
which depends upon the application of existing law clearly indicating the defendants' entitlement to summary
judgment. Therefore, we reverse the circuit court's denial of Gant's and Alcorn County's summary judgment
motion and render judgment in their favor.

¶23. REVERSED AND RENDERED.

      SMITH, WALLER, DIAZ AND EASLEY, JJ., CONCUR. BANKS, P.J., CONCURS IN
      PART I AND IN THE RESULT. COBB, J., CONCURS IN RESULT ONLY. McRAE, P.J.,
      DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, C.J.

      McRAE, PRESIDING JUSTICE, DISSENTING:

¶24. The majority opinion states that Gant is immune from liability for the accident caused by Thompson.
Thompson should not have been allowed to drive a car because he had been convicted of his second DUI
offense. Thompson, having his license suspended for his second DUI conviction, should not have been
allowed to drive by Sheriff Gant. This was a clear violation of the law as his driving privileges were
suspended for two years. Thompson could not have even applied for a hardship exception to his license
suspension, under Miss. Code Ann. § 63-11-30(2)(a) (1996 & Supp. 2000), until after thirty days of his
conviction. Thompson entered his plea on April 4, 1991, and the accident happened on April 7, 1991.
Sheriff Gant, being well aware of the situation, acted in gross negligence and in clear violation of our
precedent set forth mainly in Turner v. City of Ruleville, 735 So. 2d 226, 227-28 (Miss. 1999).
Thompson had to make his own arrangements for transportation or Gant should have driven Thompson or
had him escorted to work by another deputy or law enforcement official. Accordingly, I dissent.

¶25. Miss. Code Ann. § 63-11-30(2)(b) states the penalties for a second conviction of a DUI offense as
follows:

      Upon any second conviction of any person violating subsection (1) of this section, the offenses being
      committed within a period of five (5) years...The minimum penalties shall not be suspended or
      reduced by the court and no prosecutor shall offer any suspension or sentence reduction as part of a
      plea bargain....Except as may otherwise be provided by paragraph (d) of this subsection(2), the
      Commissioner of Public Safety shall suspend the driver's license of such person for two (2) years.

(insertion of footnote & emphasis added).

¶26. Although § 63-11-30(2)(a) provides for a hardship exception and for a reduction of the suspension
period, it further states,

      [N]o court may issue such an order reducing the suspension of driving privileges under this
      subsection until thirty (30) days have elapsed from the effective date of the suspension.
      Hardships shall only apply to first offenses under Section 63-11-30(1), and shall not apply to
      second, third or subsequent convictions of any person violating subsection (1) of this section.

(emphasis added.)

¶27. Gant and Alcorn County do acknowledge, however, that "[O]n or about April 4, 1991, Thompson
entered a plea of guilty in Alcorn County Justice Court to the offense of DUI-2nd." The fact that Thompson
was a second-time offender is also reflected in the "Defendants Petition for Interlocutory Appeal by
Permission." The accident between Maness and Thompson occurred on April 7, 1991, four days after his
conviction.

¶28. Even if Thompson's conviction was considered a first DUI offense, the least amount of time his license
could have been suspended would have been thirty (30) days, pursuant to the hardship exception above.
Gant was on notice of this sentence and that by law, he could not drive. This is gross negligence. Gant erred
by allowing Thompson to drive himself to and from work. It was proper under the court's order to allow
Gant to leave for work every day, but not to drive. Therefore, Gant is not protected by qualified immunity.

¶29. The present facts are similar to the facts of Turner v. City of Ruleville, 735 So. 2d 226, 227-28
(Miss. 1999). In Turner, the appellant was injured in an automobile accident by a person driving under the
influence of alcohol and without a driver's license. Turner also alleged that immediately prior to the accident,
the other driver had been stopped by an officer of the City of Ruleville Police Department for "operating the
vehicle in an erratic fashion and failing to have the vehicle's headlights." Id. at 227. Turner filed suit against
the City of Ruleville, asserting its responsibility for the actions of a police officer who allowed a driver to
continue to drive, even though he knew that the driver was intoxicated.

¶30. In Turner, we held that Turner's claim did meet the standard of "reckless disregard," thereby
exempting the officer from immunity protection under the Mississippi Tort Claims Act. Id. at 231. In this
case, Gant acted recklessly by allowing Thompson to drive, with his knowledge that Thompson's license
had been suspended due to a second DUI conviction. Until further notice, Gant should have had Thompson
escorted to and from work and returned promptly to the jail. Gant and Alcorn County are not exempt
under our Tort Claims Act.

¶31. For the above reasons, I dissent.

      PITTMAN, C.J., JOINS THIS OPINION.

1. The facts of the case sub judice occurred in April, 1991, prior to the Legislature's adoption of the
Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to -23 (Supp. 2000).

2. Paragraph (d) of this subsection provides for the suspension to be reduced to one (1) year if the
convicted person receives an "in-depth diagnostic assessment" and successfully completes a treatment
program for "alcohol and/or drug abuse." Miss. Code Ann. § 63-11-30(2)(d).
