                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2013-IA-02104-SCT

CITY OF MAGEE

v.

CONNIE D. JONES, DEVIN TYLER JONES, A
MINOR BY CONNIE D. JONES, ADULT AND
NEXT FRIEND; LAURIN JONES, A MINOR BY
CONNIE D. JONES, ADULT AND NEXT FRIEND;
AND KRISTEN JONES, A MINOR BY CONNIE D.
JONES, ADULT AND NEXT FRIEND


DATE OF JUDGMENT:                          11/26/2013
TRIAL JUDGE:                               HON. EDDIE H. BOWEN
TRIAL COURT ATTORNEYS:                     EUGENE C. TULLOS
                                           L. CLARK HICKS, JR.
COURT FROM WHICH APPEALED:                 SIMPSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   L. CLARK HICKS, JR.
                                           R. LANE DOSSETT
ATTORNEY FOR APPELLEES:                    EUGENE C. TULLOS
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               VACATED AND REMANDED - 04/23/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    In this interlocutory appeal, the City of Magee challenges the Simpson County Circuit

Court’s denial of its motion for summary judgment against Connie Jones, arguing that

Jones’s claim is barred by the discretionary-function provision of the Mississippi Tort Claims

Act (MTCA). We vacate the trial court’s denial of Magee’s motion for summary judgment
and remand this case to the trial court for the parties to present evidence in light of this

Court’s new standard for applying discretionary-function immunity.

                         FACTS & PROCEDURAL HISTORY

¶2.    On or about January 5, 2007, raw sewage entered Connie Jones’s house through a

shower drain and flooded several rooms of the house. On March 27, 2008, Jones filed suit

against the City of Magee (“Magee”) and two unnamed defendants, claiming that Magee had

negligently installed and maintained the sewage lines providing service to her home, causing

the sewage overflow. Jones asserted that her family had suffered both property damage and

physical illnesses as a result of Magee’s negligence.

¶3.    On February 10, 2011, this Court handed down its opinion in Fortenberry v. City of

Jackson, 71 So. 3d 1196 (Miss. 2011), holding that a plaintiff’s suit against the City of

Jackson for negligent sewage-system maintenance was barred by the discretionary-function

exception of the MTCA. In response to this decision, on October 1, 2013, Magee filed a

motion for summary judgment,1 arguing that Fortenberry had resolved a dispositive issue

of law. Magee argued that Jones’s suit was barred by the MTCA’s discretionary-function

exception under Fortenberry because her claim was based on acts of sewage-system

maintenance.




       1
        This was Magee’s second motion for summary judgment. Magee also had filed a
motion for summary judgment on December 8, 2009, prior to this Court’s decision in
Fortenberry. On February 12, 2010, after a hearing, the trial court issued an order summarily
denying Magee’s first motion for summary judgment.

                                             2
¶4.    On November 26, 2013, after a hearing,2 the trial court issued an order denying

Magee’s motion for summary judgment. The trial court recognized that Section 21-27-

189(b) of the Mississippi Code authorizes municipal authorities, in their discretion, to

construct, operate, and maintain sewage systems. See Miss. Code Ann. § 21-27-189(b) (Rev.

2007). However, the trial court then held that, once Magee had chosen to operate a sewage

system, it took on a ministerial duty to maintain the system properly. Therefore, the trial

court found that Magee’s maintenance of its sewer lines failed the first prong of the public-

policy function test adopted by this Court in Jones v. Mississippi Department of

Transportation, 744 So. 2d 256 (Miss. 1999), because it did not involve an element of choice

or judgment.

¶5.    On December 17, 2013, Magee filed with this Court a petition for interlocutory appeal

and an emergency motion to stay the trial-court proceedings. On January 16, 2014, this Court

granted Magee’s petition for interlocutory appeal and issued an order staying the proceedings

in the lower court. On appeal, Magee raises only one issue: whether the trial court erred in

finding that Magee was not immune from suit under Section 11-46-9(1)(d) for its alleged acts

and omissions concerning the maintenance of its sewer system.

                                 STANDARD OF REVIEW

¶6.    This Court reviews the application of the MTCA de novo. Lee v. Mem’l Hosp. at

Gulfport, 999 So. 2d 1263, 1266 (Miss. 2008). A trial court’s grant or denial of a motion for

summary judgment also is reviewed de novo. Johnson v. Pace, 122 So. 3d 66, 68 (Miss.



       2
           A transcript of this hearing does not appear in the record.

                                                3
2013). The evidence in the motion is viewed in the light most favorable to the party

opposing the motion. Davis v. Hoss, 869 So. 2d 397, 401 (Miss. 2004). Summary judgment

is appropriate if there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id.

                                       DISCUSSION

¶7.    The sole issue before this Court is whether the trial court erred in holding that the

discretionary-function exception of the MTCA did not provide Magee with immunity in this

case. This exception, codified in Section 11-46-9(1)(d) of the Mississippi Code, provides:

       (1)    A governmental entity and its employees acting within the course and
              scope of their employment 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[.]

Miss. Code Ann. § 11-46-9(1)(d) (Rev. 2012). Magee argues that the applicability of this

provision to cases concerning sewage maintenance was conclusively decided in Fortenberry

v. City of Jackson, 71 So. 3d 1196 (Miss. 2011). The trial court rejected Magee’s reliance

on Fortenberry, holding that once the defendant chose to operate a sewage system, it

acquired a ministerial duty to maintain the system properly.

¶8.    In Fortenberry, this Court first addressed the issue of whether sewage-system

maintenance is a discretionary function under the MTCA. The plaintiffs in Fortenberry sued

the City of Jackson (“Jackson”) after sewage overflows damaged their homes. Id. The trial

court granted summary judgment to Jackson, finding that the maintenance of the city sewer



                                               4
system was a discretionary function under the MTCA. Id. The Court of Appeals reversed,

finding that a genuine issue of material fact existed as to whether Jackson had violated a local

ordinance requiring sewage pipes to be a certain diameter. Fortenberry v. City of Jackson,

71 So. 3d 1211, 1217-18 (Miss. Ct. App. 2010). On certiorari review, this Court3 reversed

the Court of Appeals’ decision and reinstated the trial court’s grant of summary judgment to

Jackson. Fortenberry, 71 So. 3d at 1204. This Court first looked to the statute authorizing

municipalities to operate sewage systems, which provides, in part:

       A municipality, as defined in Section 21-27-163, is authorized and
       empowered, in the discretion of its governmental authorities, to exercise the
       following powers and authority within the area and territories comprising the
       metropolitan area of which it is a part:

              ...

              (b)     To construct, operate and maintain sewage systems, sewage
                      treatment facilities and sewage disposal systems in the manner
                      and to the extent required by the metropolitan area plan.

Miss. Code Ann. § 21-27-189(b) (Rev. 2007) (emphasis added). This Court found that

Section 21-27-189(b) expressly gave municipalities discretion in the operation and

maintenance of their sewage systems. Fortenberry, 71 So. 3d at 1200. This Court then

determined that the Court of Appeals had relied incorrectly on the local ordinance regulating

sewage-pipe sizes to impose a ministerial duty, as that ordinance did not apply to the

neighborhoods where the plaintiffs lived. Id. at 1201. This Court also found that the

operation and maintenance of sewage systems necessarily involved economic and social-



       3
        Justice Pierce authored the opinion of the Court, but this opinion garnered a
majority vote in result only.

                                               5
policy choices. Id. at 1202. Because the plaintiffs did not prove that Jackson had violated

any statutes, regulations, or ordinances that would have converted the maintenance of its

sewage system into a ministerial duty, the majority held that Jackson was entitled to

discretionary-function immunity. Id. at 1203.

¶9.    While Magee relies primarily on Fortenberry to support its claim that it is entitled to

summary judgment in this case, this Court’s analysis of the MTCA’s discretionary-function

exception has changed drastically since Fortenberry was decided. The Fortenberry Court

analyzed the applicability of Section 11-46-9(1)(d) by applying a two-pronged public-policy

function test, which required a determination of “whether the activity in question involved

an element of choice or judgment, and if so, . . . whether that choice or judgment involved

social, economic, or political-policy considerations.” See Miss. Transp. Comm’n v.

Montgomery, 80 So. 3d 789, 795 (Miss. 2012). However, this test has since been overruled.

See Brantley v. City of Horn Lake, 152 So. 3d 1106, 1112 (Miss. 2014) (holding that Section

11-46-9(1)(d) applies to governmental functions, rather than acts, and does not limit

immunity to decisions involving policy considerations). Because Brantley established a new

test for determining the application of discretionary-function immunity, Fortenberry does

not control our review of Magee’s arguments on appeal.

¶10.   Under the new test announced in Brantley, this Court must first determine whether

the overarching governmental function at issue is discretionary or ministerial. Id. at 1114.

“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



                                               6
a ministerial one, notwithstanding that it may have been performed within the scope of a

broader discretionary function.” Id. at 1115. To defeat a claim of discretionary-function

immunity, a plaintiff must prove that an act done in furtherance of a broad discretionary

function “also furthered a more narrow function or duty which is made ministerial by another

specific statute, ordinance, or regulation promulgated pursuant to lawful authority.” Id. This

Court applied this new test to determine whether a city employee’s act of negligently

unloading a stretcher from an ambulance fell within the purview of Section 11-46-9(1)(d).

Id. at 1116. This Court determined that the overarching function at issue, the provision of

ambulance services, was rendered explicitly discretionary by statute. Id. (citing Miss. Code

Ann. § 41-55-1). However, this Court also noted that many duties related to the overarching

function are subject to ministerial regulations promulgated by the State Board of Health. Id.

This Court remanded the case to the trial court for a determination of whether the plaintiff

could prove that the defendant had violated a narrower ministerial duty within the otherwise

discretionary function of providing ambulance services. Id. at 1118.

¶11.   This Court’s reasoning in Brantley is particularly instructive to the instant case, as the

underlying circumstances in Brantley are analogous to those presented here. Just like the

function of ambulance services in Brantley, the overarching functions of sewage-system

construction, operation, and maintenance in this case are not imposed by any law. See

Montgomery, 80 So. 3d at 795 (holding that a governmental function is discretionary if it is

“not imposed by law and depends on judgment or choice of the government entity or

employee.”). On the contrary, Section 21-27-189 gives municipal authorities complete



                                               7
discretion in exercising these functions. See Miss. Code Ann. § 21-27-189(b) (Rev. 2007).

Thus, the overarching governmental functions in this case are discretionary under Section 11-

46-9(1)(d). However, there are numerous statutes and regulations that render various narrow

duties related to sewage-system maintenance ministerial. Jones points out that Section 21-

27-189 requires municipalities to maintain their sewage systems “in the manner and to the

extent required by the metropolitan area plan” and to “adopt all necessary and reasonable

rules and regulations to carry out and effectuate any waste treatment plan adopted for the

metropolitan area.” Miss. Code Ann. § 21-27-189(b),(i). In addition, the Mississippi

Department of Environmental Quality strictly regulates the issuance of permits required to

operate wastewater-treatment facilities. See, e.g., Miss. Admin. Code. 11-6:1.1.4(A)(18).

These statutory and regulatory mandates are analogous to the Board of Health regulations

in Brantley, in that they create narrow ministerial duties within the broad discretionary

function of sewage-system maintenance.

¶12.   Because this Court’s rules for determining discretionary-function immunity have

changed drastically during the pendency of this litigation, the interests of justice demand that

this case be remanded for the parties to present evidence and arguments in light of the new

test set out in this Court’s holding in Brantley. On remand, Jones must present evidence that

her claim arises out of Magee’s performance or failure to perform an act which “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




                                               8
1115. If she cannot present such evidence, Magee is entitled to discretionary-function

immunity.

                                       CONCLUSION

¶13.   For the foregoing reasons, we vacate the trial court’s denial of Magee’s motion for

summary judgment and remand this case to the trial court for further proceedings consistent

with this opinion.

¶14.   VACATED AND REMANDED.

    DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, KING AND
COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. PIERCE, J., DISSENTS WITH
SEPARATE WRITTEN OPINION.

       PIERCE, JUSTICE, DISSENTING:

¶15.   I respectfully dissent. The only limitation in this case that could make a narrower

action ministerial, even if it is performed pursuant to a generally discretionary statute, is the

city’s metropolitan plan. The City of Magee’s metropolitan plan is two paragraphs.

¶16.   Absent alleging a municipality’s noncompliance with a regulatory statute, as brought

out by the aggrieved parties, or the presence of a ministerial directive in a metropolitan plan,

the operative statute makes maintenance discretionary. Moreover, absent a requirement to

institute a comprehensive metropolitan plan, the majority fails to appreciate the purpose of

the Mississippi Tort Claim Act’s discretionary-immunity function to limit judicial “second-

guessing” of the state Legislature.

¶17.   Through Section 21-27-189(b), the Legislature has made explicitly clear that a

municipality’s treatment of sewage matters is discretionary–including the maintenance, or

                                               9
lack thereof at issue in the instant case. See Miss. Code Ann. § 21-27-189(b) (Rev. 2007).

It is also clear that compliance with federal and Mississippi Department of Environmental

Quality (MDEQ) regulations is not optional. But, as was the case in Fortenberry v. City of

Jackson, 71 So. 3d 1196 (Miss. 2011), the plaintiffs in the instant matter failed to locate a

federal or MDEQ regulation with which Magee was not compliant. In light of the fact that

Magee’s metropolitan plan does not make any additional acts ministerial, that is, beyond

federal or MDEQ requirements, Magee is immune. Therefore, I would reverse the trial

court’s denial of summary judgment and render judgment in favor of Magee, finding Magee

immune to liability in this case.




                                             10
