TAGHI “TED” BOROUJERDI v. CITY OF STARKVILLE
NO. 2012-CA-01458-SCT
IN THE SUPREME COURT OF MISSISSIPPI
02/12/2015
HON. LEE J. HOWARD
DATE OF JUDGMENT: 03/07/2012; TRIAL COURT ATTORNEYS: ANDREW WALLACE STUART, II, M. JAY NICHOLS, MARC D. AMOS; COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT; ATTORNEY FOR APPELLANT: ADAM GRANT PINKARD; ATTORNEY FOR APPELLEE: MARC DARREN AMOS; NATURE OF THE CASE: CIVIL - PERSONAL INJURY; DISPOSITION: REVERSED AND REMANDED - 02/12/2015
KITCHENS, JUSTICE, FOR THE COURT:
¶1. Ted Boroujerdi‘s home and yard were flooded with sewage that backed onto his property in February 2009. Boroujerdi filed suit against the City of Starkville (“the City“), alleging that he had suffered property damage and personal injuries as a result of the City‘s negligent maintenance of its sewage system. The trial court granted summary judgment for the City, finding that the maintenance of the sewage system is a discretionary function and that the City is immune from suit pursuant to
¶2. Boroujerdi appealed, arguing that the maintenance of the sewage system is ministerial and the City is not immune from suit, that summary judgment was therefore inappropriate, and that this Court should overrule its plurality opinion in Fortenberry. We reverse the trial court‘s grant of summary judgment in favor of the City. Recently, in Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014), this Court overhauled its analysis of discretionary function immunity. Accordingly, we now must revisit our treatment of sewage-system maintenance as a discretionary function. We hold that, while the overall function of maintaining a sewage system may be discretionary, certain narrower functions and duties involved with sewage maintenance may be rendered ministerial through applicable statutes, regulations, and/or ordinances. Accordingly, we remand this case to the Circuit Court of Oktibbeha County for the plaintiff to address whether his premises flooded as a result of the City‘s fulfilling or its failing to fulfill a ministerial function or duty.
FACTS AND PROCEDURAL HISTORY
¶3. On February 27, 2009, the toilets, sinks, and tubs of Boroujerdi‘s home in Starkville overflowed from sewage backup after a heavy downpour of rain. Boroujerdi called the Starkville water and sewage department to fix the problem. He walked outside to meet with the workers, and as he was walking back to his house to show them the damage, he slipped and fell in the raw sewage that had covered his driveway. Boroujerdi alleges that he suffered serious injuries as a result of the fall. Boroujerdi brought suit against the City of Starkville, averring that its reckless and negligent failure properly to maintain the sewer system had
¶4. The City moved for summary judgment, arguing that maintaining its sewage system is a discretionary function under
¶5. The trial court granted the City‘s motion for summary judgment, citing this Court‘s then-recent holding in Fortenberry, which specifically held that a municipality is immune
¶6. This Court requested and received supplemental briefing from the parties to address our intervening decision regarding discretionary function immunity in Little v. Mississippi Department of Transportation, 129 So. 3d 132 (Miss. 2013), and what effect, if any, state and federal statutes and regulations related to the disposal of sewage may have upon our determination of whether sewage-system maintenance is a ministerial or discretionary function.
STANDARD OF REVIEW
¶7. This Court conducts de novo review of a trial court‘s determination that a governmental entity is immune under the Mississippi Tort Claims Act (MTCA). Fortenberry, 71 So. 3d at 1199 (¶ 7) (citing City of Jackson v. Harris, 44 So. 3d 927, 931 (Miss. 2010)). Additionally, when reviewing a grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So. 2d 543, 547 (¶ 13) (Miss. 1998). We must consider all of the evidence “in the light most favorable to the non-moving party.” Palmer v. Anderson Infirmary Benevolent Ass‘n, 656 So. 2d 790, 794 (Miss. 1995) (internal citations omitted). However, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial,” and cannot simply “rest upon the mere allegations or denials of his pleadings.”
¶8. The sole issue on appeal, as stated by Boroujerdi, is “whether a municipality that controls and operates a sewage system has a ministerial duty to repair and maintain the sewage system . . . or whether . . . the municipality has discretion . . . to repair and maintain the sewage system so as to provide the municipality with immunity from liability under
¶9. The City argues that this issue was conclusively decided in Fortenberry, and that the facts in this case are even more compelling for a finding of immunity under the MTCA than those in that case. In Fortenberry, 71 So. 3d at 1201 (¶ 14), the plaintiffs relied in part on an ordinance which required all sewage pipes in the City of Jackson to be of a certain diameter. Here, “there was no city ordinance which positively imposed upon the City of Starkville the duty to operate and maintain a sewage system.” The City included an affidavit of Starkville‘s mayor, Parker Wiseman, stating that “no city ordinance had been violated with respect to Starkville‘s operation of its sewage system. . . .” The affidavit further stated that, to the mayor‘s knowledge, “the City of Starkville has not violated any state or federal regulation or law or any of its waste-removal and treatment permits with respect to its operation of the sewage system, and no such violation has been alleged.” The City argues
1. Fortenberry v. City of Jackson
¶10. Since Boroujerdi asks this Court to overrule Fortenberry, a summary of that case will be instructive. The properties of two sets of plaintiffs were damaged when sewage backup flooded their homes due to heavy rain.3 Id. at 1198 (¶ 3). The plaintiffs sued the City of Jackson (Jackson), and the trial court granted summary judgment because it found that Jackson‘s maintenance of its sewage system was a discretionary function and, therefore, the MTCA immunized the City from tort liability. Id. at 1198 (¶ 4). The Court of Appeals held that an ordinance that mandated the size of sewage pipes that could be installed in the municipality made the duty to maintain the sewage system ministerial rather than discretionary and reversed the grant of summary judgment. Fortenberry v. City of Jackson, 71 So. 3d 1211, 1217-18 (Miss. Ct. App. 2010). This Court granted certiorari and reversed the Court of Appeals, with a plurality of four justices holding that the ordinance mandating pipe diameters did not apply to the neighborhoods in which the plaintiffs lived, that the duty to maintain the sewage system was discretionary, and that Jackson was therefore immune under the MTCA. Fortenberry, 71 So. 3d at 1203-04.
¶11. In reaching its decision, the plurality relied on the application of the two-part public-policy function test. Id. at 1199-1202. Historically, this Court has used that test “to determine if governmental conduct is discretionary so as to afford the governmental entity immunity.”
¶12. In Fortenberry, the Court determined that the first prong of the two-part test was satisfied because the plain language of
2. Discretionary function immunity since Fortenberry.
¶13. This Court‘s treatment of discretionary function immunity pursuant to
¶14. This Court reversed, holding that, while the acts involved in maintaining rights-of-way are discretionary, the function of maintaining the rights-of-way was ministerial, and therefore, under the facts presented in Little, MDOT was not immune from civil liability. There, the statute at issue,
¶15. More recently, we decided Brantley, 152 So. 3d at 1106, which greatly changed the manner in which this Court analyzes discretionary function immunity. After analyzing the plain language of the discretionary function immunity statute,
¶16. The Court‘s task in Brantley, therefore, was to determine whether the alleged act of negligently unloading a patient from a city-owned ambulance fell under a discretionary function entitling the municipality to immunity. Id. at 1116 (¶ 33). The Court held that, initially, a city was imbued with the discretion to “own, maintain, and operate an ambulance service” pursuant to the clear statutory language of
¶17. Our abolition of the public-policy function test is at odds with our analysis of sewage-system maintenance in Fortenberry. As we no longer utilize the test which the Court employed to hold that sewage maintenance was a discretionary function in that case, we now
3. Sewage maintenance as a discretionary function
¶18. Sewage maintenance is rendered discretionary by statute.
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.
¶19. If the duty or activity which 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,” then the duty or activity is discretionary. Pratt, 97 So. 3d at 72 (¶ 9) (quoting Montgomery, 80 So. 3d at 795). The duty to maintain a sewage system is not imposed by law upon municipalities. The language of
¶20. There are. Sewage systems must comply with the Federal Water Pollution Control Act (the “Act“), a statute which makes it unlawful to discharge raw sewage into the environment. The Act requires publicly owned sewage-treatment works to establish effluent limitations and to abide by those limitations.
¶21. Additionally, the Mississippi Department of Environmental Quality (MDEQ) regulates the permits required to operate wastewater-treatment facilities and wastewater
¶22. These administrative, ministerial regulations apply in much the same way with regard to sewage maintenance as do the Department of Health regulations to city ambulance services referenced in Brantley. The overarching discretionary function of sewage-system maintenance, therefore, shelters several smaller functions and duties which may be ministerial according to statute, regulation, or ordinance. Pursuant to Brantley, in order to defeat sovereign immunity provided by the discretionary nature of sewage-system maintenance in this case, the plaintiff must prove that the act which caused his property to flood with sewage “furthered a more narrow function or duty . . . made ministerial by another specific statute, ordinance, or regulation promulgated pursuant to lawful authority.” Brantley, 152 So. 3d at 1115 (¶ 28).
¶23. Clearly, although the legislature granted to municipalities the discretion to maintain their sewage systems initially, there remain many statutes and regulations which render
4. Boroujerdi‘s Suit
¶24. In Brantley, the act which caused the injury—unloading a patient from an ambulance—was easy to identify. In this case, it is the City‘s alleged failure to act which Boroujerdi claims caused his damages. He alleges that the City acted recklessly and with gross negligence by “failing to make adequate, necessary repairs to the sewer system while having knowledge of the necessity of same.” The City moved for summary judgment and attached an affidavit from its mayor stating that no ordinance required the city to maintain the sewage system, and that he knew of no ordinance, state or federal regulation, or permit requirement which had been violated in relation to Boroujerdi‘s flooded home and injuries. In response to the motion for summary judgment, Boroujerdi failed to identify any ordinance or regulation or permit requirement which would have rendered the City‘s inaction subject
¶25. Boroujerdi has failed to point to any statute, regulation, or ordinance which would render the City‘s alleged negligent inaction subject to a ministerial function. He had the opportunity to do so in response to Mayor Wiseman‘s affidavit stating that the City had not violated any statutes or regulations in relation to Boroujerdi‘s flooding. Instead, Boroujerdi chose simply to argue that the City‘s duty to maintain its sewage system was ministerial once it had decided to create a sewage system. Under our holding in Brantley, Boroujerdi‘s claim must fail unless he can prove that the City‘s negligence in failing to repair the sewage system involved a function or duty made ministerial by a statute, regulation, or other binding directive.
¶26. Boroujerdi has failed to do so, thus far. However, as our treatment of discretionary function immunity changed significantly in consequence of Brantley, we find 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. Sewage-system maintenance is presumptively discretionary and entitled to immunity. But on remand, if Boroujerdi can prove that the City‘s alleged inaction in repairing the sewage system was related to a more narrow function made ministerial by statute, ordinance, regulation, or other binding directive, then he may proceed with his claim. If not, the City is entitled to immunity under
¶27. Municipal sewage maintenance generally is a discretionary function. However, several narrower functions and duties associated with sewage maintenance are mandated by statute or regulation and thus are ministerial and removed from discretionary function immunity. If Boroujerdi can prove that the City was engaged in a ministerial function, as described in this decision, in relation to his flooding and damages, he may proceed with his claim. Accordingly, the grant of summary judgment in favor of the City of Starkville is reversed, and the case is remanded to the Circuit Court of Oktibbeha County for further proceedings consistent with this opinion.
¶28. REVERSED AND REMANDED.
DICKINSON, P.J., LAMAR, KING AND COLEMAN, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., CHANDLER AND PIERCE, JJ.
WALLER, CHIEF JUSTICE, DISSENTING:
¶29. Because I would find that Starkville is not entitled to discretionary-function immunity in this case, I must respectfully dissent.
¶30. As explained in my separate opinion in Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014), this Court has followed the analysis of the federal courts in analyzing discretionary-function immunity under the Mississippi Tort Claims Act (“MTCA“) for the last fifteen years. See Jones v. Miss. Dep‘t of Transp., 744 So. 2d 256, 260 (Miss. 1999) (citing U.S. v. Gaubert, 499 U.S. 315, 322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991), abrogated on other grounds by Strange ex rel. Strange v. Itawamba County Sch. Dist., 9 So. 3d 1187, 1192 (Miss. 2009)). The reason for this decision is simple: the MTCA‘s
¶31. The majority‘s opinion today departs from this precedent without regard for the fundamental legal doctrine of stare decisis. The doctrine of stare decisis “proceeds from that first principle of justice, that, absent powerful countervailing considerations, like cases ought to be decided alike.” State ex rel. Moore v. Molpus, 578 So. 2d 624, 634 (Miss. 1991). “Our application of stare decisis is necessary, inter alia, so that trial courts can make correct decisions and lawyers can properly advise their clients.” United Servs. Auto. Ass‘n v. Stewart, 919 So. 2d 24, 30 (Miss. 2005).
In stare decisis generally, we look for error, but, finding that, we look for more and we look largely in the area of public or widespread disadvantage. Ordinarily, we do not overrule erroneous precedent unless it is “pernicious,” Stone v. Reichman-Crosby Co., 43 So. 2d 184, 190 (Miss. 1949); “impractical,” Robinson v. State, 434 So. 2d 206, 210 (Miss. 1983) (Hawkins, J., concurring); or is “mischievous in its effect, and resulting in detriment to the public.” Childress v. State, 188 Miss. 573, 577, 195 So. 583, 584 (1940). We look for “evils attendant upon a continuation of the old rule.” Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454, 467 (Miss. 1983).
Molpus, 578 So. 2d at 635. Furthermore, even where this Court determines a prior interpretation of a statute to be incorrect, “we will nevertheless continue to apply the previous interpretation, pursuant to the doctrine of stare decisis, upon finding the Legislature amended or reenacted the statute without correcting the prior interpretation.” Caves v. Yarbrough, 991 So. 2d 142, 154 (Miss. 2008) (holding that stare decisis required adherence to a judicially created discovery rule under the MTCA, where the Legislature had reenacted the statute in question without countermanding this Court‘s prior interpretations).
¶32. A thorough review of the majority opinion reveals no mention of the Legislature‘s reenactment of
¶33. Under the first prong of our public-policy function test, a duty is considered ministerial rather than discretionary if “its performance [is] required at a time and in a
¶34. For the foregoing reasons, I respectfully dissent.
RANDOLPH, P.J., CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.