Brewer v. BurdetteBrewer v. Burdette
BANKS, Presiding Justice, for the Court:
¶ 1. The motion for rehearing is granted. The originаl opinion is withdrawn, and these opinions are substituted therefor.
I.
¶ 3. On April 24, 1997, Jeremy D. Brewer (“Brewer“), filed a complaint against Anna L. Burdette (“Burdette“) and Pass Christian Sеparate School District (“PCSD“), alleging they were jointly and severally liable for Brewer‘s damages arising from an automobile collision between Brewer and Burdette on October 4, 1996.
¶ 4. On that day, Brewer was operating his motorcycle south on West Wittman Road in the City of Pass Christian. Burdette drove her 1984 Chevrolet automobile out of the PCSD‘s Delisle Elementary School parking lot on to West Wittman Road. Brewer crashed into the left side of Burdette‘s vehicle with his body coming to rest inside her vehicle. Brewer‘s body was extricated from the interior of the car with the help of the “jaws of life.” Brewer received extensive injuries including the loss of his right leg. He is now permanently disabled and disfigured.
¶ 5. On May 28, 1997, the PCSD filed a Motion for Protective Order and to Hold Future Discovery in Abeyance in conjunction with a Motion to Dismiss on the grounds that PCSD was a political subdivision entitled to absolute immunity from suit pursuant to
¶ 6. A hearing was held in the Circuit Court of Harrison County on PCSD‘s Motion to Dismiss following which that court dismissed Brewer‘s suit with prejudice. Brewer and Burdette settled their claims. Brewer appeals to this Court asserting that the circuit court erred in dismissing his action against PCSD. He argues that PCSD waived the provisions of the MTCA because it acquired liability insurance coverage and that, in any event, PCSD is not exempt for the activity here complained of undеr the act.
II.
A.
¶ 7. As the incident in question occurred on October 4, 1996, after the effective date of the Mississippi Torts Claim Act, this case is governed by this Court‘s recent pronouncement in L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1143-45 (Miss.1999), with regard to the insurance waiver theory. There this Court held that
B.
¶ 8. The trial court granted PCSD‘s M.R.C.P. 12(b)(6) mоtion to dismiss on the basis that PCSD had absolute immunity in
¶ 9. This Court‘s standard of review is well established. The scope of review of an M.R.C.P. 12(b)(6) motion is that the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990); Grantham v. Mississippi Dep‘t of Corrections, 522 So.2d 219, 220 (Miss.1988); Lester Eng‘g Co. v. Richland Water & Sewer Dist., 504 So.2d 1185, 1187 (Miss.1987); Stanton & Assocs., Inc. v. Bryant Constr. Co., 464 So.2d 499, 505 (Miss.1985). This Court employs the same standard on appeal in determining whethеr a trial court‘s granting a motion to dismiss was error. McFadden v. State, 542 So.2d 871, 874-75 (Miss.1989).
¶ 10. Brewer argues that the trial court should not have granted PCSD‘s 12(b)(6) motion to dismiss. Brewer argues that the MTCA does not grant PCSD immunity because the maintenance of Delisle Elementary School‘s drivewаy is a ministerial, not discretionary, function.
¶ 11. The MTCA provides governmental entities with absolute immunity if those agencies are performing a discretionary function.
¶ 12. This Court has had recent opportunities to consider the discretionary function of governmentаl entities in more detail. L.W., 754 So.2d at 1139-43; Jones v. Mississippi Dep‘t of Transp., 744 So.2d 256, 259-64 (Miss.1999); Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234 (¶ 33) (Miss.1999).
¶ 13. In L.W., this Court held that maintaining a safe environment and properly supervising students are within the sphere of a school‘s discretionary function. 754 So.2d at 1141. However, this Court further stated that immunity for such duties or functions will only be granted when that governmental entity exercises ordinary care. Id. at 1142 (citing
¶ 14. In Lang, this Court reversed the trial court‘s judgment of dismissal. There, this Court found that the school district has a statutory duty to maintain school facilities. 764 So.2d at 1241 (¶ 33). Specifically,
¶ 15. Similarly, Brewer has alleged a set of facts that support a claim that he was owed a duty. Brewer argues that Pass Christian Separate School District is liable because obstructions on the school ground created a hazardous and dangerous condition that was negligence on part of Pass Christian School District. Brewer asserted facts in his claim that may be used to determine whether PCSD exercised ordinary care in performing its discretionary function. Brewer argues that there are some major obstructions that prevented the drivers of the two vehicles from seeing each other at the time so as to avoid the collision. Brewer‘s complaint allеges that the obstructions that obscured the driver‘s view were a large Delisle Elementary School sign, hedge, a metal fence, a utility pole, and other vegetation. Also, Brewer asserts that failing to have proper warnings, speed signs and other devices to warn motorists of the existence of PCSD‘s driveway is a dangerous and hazardous condition. Brewer‘s complaint asserts that these things created an unreasonable and hazardous condition fоr motorists using the parking lot driveway and attempting to enter Wittman Road.
¶ 16. Pass Christian argues that the express language of
¶ 17. PCSD points out that this Court has ruled that “road maintenance and repair are discretionary rather than ministerial functions....” Mohundro v. Alcorn County, 675 So.2d 848, 854 (Miss.1996) (citations omitted). Further, this Court has ruled that “whether or not to erect a barricade or some other type of warning device” was discretionary. Id. (citations omitted). Whatever may be the duties of those in charge of our public streets and roads howevеr, parking lots on school property are a different matter. Lang, 764 So.2d at 1241 (¶ 33).
¶ 18. Moreover, characterizing the duty as discretionary alone does not end the inquiry of whether PCSD has absolute immunity. It must be determined whether PCSD has exercised ordinаry care in both not erecting signs or warnings on the approaches to the driveway and in its construction and maintenance of the parking lot and abutting improvements at the Delisle Elementary School.
¶ 19. The issue of ordinary care is a fact question. L.W., 754 So.2d at 1142; Lang, 764 So.2d at 1241 (¶ 33); see
¶ 20. The trial court‘s dismissal turned on whether PCSD had absolute immunity in performing a discretionary duty. Our precedents in Lang and L.W. dictate that we reverse and remand for further proceedings.
III.
¶ 21. For the foregoing reasons, the judgment of the Harrison County Circuit Court granting PCSD‘s motion to dismiss is reversed, and this case is remanded to that court for further proceedings consistent with this opinion.
¶ 22. REVERSED AND REMANDED.
PRATHER, C.J., McRAE, MILLS, COBB AND DIAZ, JJ., CONCUR. PITTMAN, P.J., CONCURS IN RESULT ONLY. SMITH, J., CONCURS WITH SEPARATE WRITTEN OPINION
SMITH, Justice, concurring:
¶ 23. Although I agree with the majority‘s hоlding and result, it is my view that the majority does not fully explain why Pass Christian Separate School District‘s reliance on
¶ 24. Section 11-46-9(1)(g) provides that a governmental entity and its employees acting within the coursе and scope of their employment or duties shall not be liable for any claim “[a]rising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental serviсes.”
¶ 25. This Court held in Lang that while Section 11-46-9(1)(g) provides that the school district is immune for certain policy decisions such as the amount of money to аllocate for certain projects and activities, it does not immunize the school district for failure to fulfill its statutory obligations. Id. The school board has the responsibility for erecting, repairing, equipping school facilitiеs and for making necessary school improvements.
¶ 26. This Court held in Lang:
Section 11-46-9(1)(b) provides the school district and its employees are protected from liability while performing or failing to perform such statutory duties so long as ordinary care is exercised. Whether ordinary care was, in fact, exercised is a question for the trial court, sitting without a jury, to decide.
Id. at 1241 (citing