         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-01012-COA

BOBBIE JEAN LOWE                                                           APPELLANT

v.

CITY OF MOSS POINT, MISSISSIPPI,                                             APPELLEE
A MUNICIPAL CORPORATION

DATE OF JUDGMENT:                         06/09/2016
TRIAL JUDGE:                              HON. DALE HARKEY
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   DAVID C. FRAZIER
ATTORNEYS FOR APPELLEE:                   AMY LASSITTER ST. PE’
                                          JAMES EVERETT LAMBERT III
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED - 10/03/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       LEE, C.J., FOR THE COURT:

¶1.    Bobbie Jean Lowe brought a suit against the City of Moss Point (the City) for an

injury she sustained while on municipal property. The Jackson County Circuit Court granted

the City’s motion for summary judgment, finding that the City was entitled to discretionary-

function immunity under Mississippi Code Annotated section 11-46-9(1)(d) (Rev. 2012).

Lowe now appeals. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On October 20, 2012, Lowe attended a breast-cancer-awareness event called “Bras

Across the Bridge” held in Moss Point, Mississippi. During the course of the event, many
participants, including Lowe, congregated at Pelican Landing, a community rental space

owned by the City. After being at the event for a few hours, Lowe began to walk to her car

to leave when she stepped in a grass-covered hole, fell, and injured her ankle.

¶3.    Lowe filed suit against the City, alleging that the City was negligent in its

maintenance of the lawn and facility at Pelican Landing, proximately causing Lowe’s

injuries. The City’s answer denied any negligence on its part and also asserted that it was

immune from suit under the Mississippi Tort Claims Act (MTCA). Miss. Code Ann. §§ 11-

46-1 to -23 (Supp. 2016). After the parties participated in limited discovery, the City filed

a motion for summary judgment, arguing that it was immune from suit specifically under

sections 11-46-9(1)(d) and (v). After a hearing on the motion, the trial court granted the

City’s motion for summary judgment, finding that the City was immune from suit under

section 11-46-9(1)(d). Lowe now appeals.

                               STANDARD OF REVIEW

¶4.    The MTCA provides “that governmental entities and their employees shall be exempt

from liability in certain situations as outlined in the MTCA.” Brantley v. City of Horn Lake,

152 So. 3d 1106, 1108-09 (¶6) (Miss. 2014) (citing § 11-46-9). Whether governmental

immunity applies “is a question of law and is a proper matter for summary judgment.” Id.

(quoting Mitchell v. City of Greenville, 846 So. 2d 1028, 1029 (¶8) (Miss. 2003)). An

appellate court reviews the application of the MTCA under a de novo standard. Id. (citing

Lee v. Mem’l Hosp. at Gulfport, 999 So. 2d 1263, 1266 (¶8) (Miss. 2008)).

¶5.    The grant or denial of summary judgment is also reviewed de novo. Mitchell v.



                                             2
Ridgewood E. Apartments LLC, 205 So. 3d 1069, 1073 (¶13) (Miss. 2016). In viewing the

evidence in the light most favorable to the nonmoving party, summary judgment is proper

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 judgment as a matter of law.” Id. (quoting M.R.C.P. 56(c)).

                                        DISCUSSION

¶6.    The trial court found that the City was immune from suit under section 11-46-9(1)(d).

Section 11-46-9(1)(d) provides governmental entities with immunity when the function

performed is a discretionary one:

       (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:

              (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[.]

Thus, the case hinges on whether the City’s lawn maintenance at Pelican Landing is a

discretionary function.

¶7.    In Boroujerdi v. City of Starkville, 158 So. 3d 1106, 1112 (¶19) (Miss. 2015), the

Mississippi Supreme Court explained that a function is discretionary “[i]f the duty or activity

[that] forms the basis of the suit ‘is not imposed by law and depends upon the judgment or

choice of the government entity or its employee[.]’” (Quoting Pratt v. Gulfport-Biloxi Reg’l

Airport Auth., 97 So. 3d 68, 72 (¶9) (Miss. 2012)). “[A]ll acts performed in furtherance of

a discretionary function or duty are themselves entitled to immunity.” Brantley, 152 So. 3d


                                               3
at 1113 (¶22). In contrast, “[i]f the function is ministerial, rather than discretionary, there is

no immunity for the acts performed in furtherance of the function.” Little v. Miss. Dep’t of

Transp., 129 So. 3d 132, 136 (¶8) (Miss. 2013). “A ministerial function is one that is

‘positively imposed by law.’” Id. (quoting Pratt, 97 So. 3d at 72 (¶9)). Notwithstanding the

distinctions, “narrower duties encompassed in a broad discretionary function may be

rendered ministerial through statute or regulation.” Brantley, 152 So. 3d at 1113 (¶22).

¶8.    To determine whether the City’s lawn maintenance at Pelican Landing is a ministerial

or discretionary duty, we must apply the following test as set forth in Brantley:

       The Court first must consider the broadest function involved in order to make
       a baseline determination of whether the overarching function is discretionary
       or ministerial. The Court then must examine any narrower duty associated
       with the activity at issue to determine whether a statute, regulation, or other
       binding directive renders that particular duty a ministerial one, notwithstanding
       that it may have been performed within the scope of a broader discretionary
       function.

Id. at (¶26).

¶9.    Lowe asserts that lawn maintenance constitutes the broadest function involved here

and the ownership, operation, and care of Pelican Landing, the narrower function. Lowe,

however, confuses and inverts the two. In the instant case, the broadest function involved

is the City’s ownership and holding of Pelican Landing—the premises at issue. Mississippi

Code Annotated section 21-17-1(1) (Rev. 2015) provides, in pertinent part, that “[e]very

municipality . . . shall have [the] power . . . to purchase and hold real estate . . . for all proper

municipal purposes . . . .” Lowe argues that section 21-17-1, when read together with

Mississippi Code Annotated sections 21-17-3 (Rev. 2015 ), 21-17-5 (Supp. 2016), and 21-37-


                                                 4
3 (Rev. 2015), renders the care, management, and control of municipal property an

affirmative ministerial duty to which immunity does not apply. This is incorrect. Section 21-

17-1 empowers the City to purchase and hold real estate, such as Pelican Landing. It does

not require the City to do so. Similarly, section 21-17-5 provides municipalities with general

authority and jurisdiction in regard to the care, management, and control of their property.

Section 21-17-3 instructs that municipalities must exercise their powers lawfully. None of

the statutes cited by Lowe require or impose an affirmative duty on the City to purchase,

maintain, care, or control the property. Rather, the statutes empower the City with the

authority to do so. Thus, the overarching function—the City’s ownership and holding of

Pelican Landing—is a discretionary one.

¶10.   Again, notwithstanding that the broader function is discretionary, the supreme court

has explained that

       while one statute may render a broad function ministerial, another statute or
       regulation may render a duty involved with that function discretionary, thus
       allowing the performance of such a duty to enjoy immunity. And clearly, the
       converse must be true, such that narrower duties encompassed in a broad
       discretionary function may be rendered ministerial through statute or
       regulation.

Miss. Transp. Comm’n v. Adams, 197 So. 3d 406, 412 (¶14) (Miss. 2016) (quoting Brantley,

152 So. 3d at 1113 (¶22)).

¶11.   Lowe does not cite, and this Court does not find, any statute, regulation, or other

binding directive that imposes a duty on the City to maintain the grass, lawn, grounds, or

premises of its properties. Where a duty is not imposed by law, it is discretionary. City of

Natchez v. De la Barre, 145 So. 3d 729, 732 (¶12) (Miss. Ct. App. 2014). Thus, the City’s

                                              5
maintenance of its lawn at Pelican Landing—the narrower duty at issue—is a discretionary

one. Curiously, Lowe admits as much in her brief before this Court: “To be sure, the

decision . . . of when and under what circumstances the [City] performs lawn maintenance

at Pelican Landing is a discretionary function.” Yet Lowe attempts to circumvent the

outcome of Brantley’s application by asserting that lawn maintenance is the broad

discretionary function, while the power to purchase, hold, care for, and control Pelican

Landing as municipal property is a narrower ministerial duty. The categorization is illogical

and lacks authoritative support.

¶12.   Here, Lowe has wholly failed to meet the “burden of proving that the narrower

function or duty at issue has lost its discretionary-function immunity[,]” . . . as she has failed

to show “that the [discretionary] act also furthered a more narrow function or duty that is

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

to lawful authority.” Brantley, 152 So. 3d at 1115 (¶28). Both the governmental function

in this case and the activity at issue in furtherance of that function are discretionary, and

accordingly, are entitled to immunity. Thus, summary judgment in favor of the City pursuant

to section 11-46-9(d)(1) was proper.         Because immunity has been established, it is

unnecessary for us to address the parties’ alternative arguments, which were, likewise, not

relied upon or addressed by the trial court.

¶13.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND
WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.



                                                6
