Fortenberry v. City of Jackson
| Docket Number: | 2008-CA-00270-COA Linked Case(s): 2008-CA-00270-COA2008-CT-00270-SCT2008-CT-00270-SCT2008-CT-00270-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-16-2010 Opinion Author: Carlton, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Property damage - Tort Claims Act - Section 11-46-9(1)(d) - Maintenance of sewage system - Discretionary function - Ministerial function - Section 21-27-189 - Section 21-27-161 - Section 21-27-163(m) Judge(s) Concurring: Lee and Myers, P.JJ., Griffis and Ishee, JJ. Non Participating Judge(s): Maxwell, J. Dissenting Author : King, C.J., with separate written opinion. Dissent Joined By : Irving, Barnes and Roberts, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 06-08-2007 Appealed from: Hinds County Circuit Court Judge: Bobby DeLaughter Disposition: GRANTED CITY OF JACKSON’S MOTION FOR SUMMARY JUDGMENT Case Number: 251-05-939CIV |
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| Consolidated: Consolidated with 2008-CA-00271-COA Flynn Wallace and Kathleen Wallace v. City of Jackson, Mississippi and State Farm Fire and Casualty Company; Hinds Circuit Court 1st District; LC Case #: 251-05-941CIV; Ruling Date: 06/11/2007; Ruling Judge: Bobby DeLaughter | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JAMES FORTENBERRY AND LINDA
FORTENBERRY |
KEN R. ADCOCK |
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| Appellee: | CITY OF JACKSON, MISSISSIPPI AND NATIONWIDE MUTUAL FIRE INSURANCE COMPANY | PIETER JOHN TEEUWISSEN, CLAIRE BARKER HAWKINS | ||
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| Topic: | Property damage - Tort Claims Act - Section 11-46-9(1)(d) - Maintenance of sewage system - Discretionary function - Ministerial function - Section 21-27-189 - Section 21-27-161 - Section 21-27-163(m) |
| Summary of the Facts: | In April 2003, raw sewage flooded the homes of Flynn and Kathleen Wallace and James and Linda Fortenberry due to blockage in the City of Jackson’s sewage lines. They sued the City for damages. The City moved for summary judgment, which the circuit court granted. The homeowners appeal. |
| Summary of Opinion Analysis: | The City argues that maintenance of the City’s sewerage system is discretionary in nature and therefore, the City enjoys immunity from suit pursuant to section 11-46-9(1)(d). The homeowners argue that the challenged conduct is ministerial in nature and is not subject to the discretionary-function exception. In determining whether governmental conduct is discretionary, the court looks at whether the activity involved an element of choice or judgment and if so, whether the choice or judgment in supervision involves social, economic or political policy alternatives. The circuit court based its ruling upon a partial analysis of section 21-27-189(b) in finding that the duty to maintain the sewerage system constituted a discretionary function. Section 21-27-161 of the Metropolitan Area Waste Disposal Act authorizes the City to provide for the safe transportation of sewage “in order to prevent and control the pollution of the waters in this state.” Additionally, section 21-27-189, which the Legislature enacted in 1975, provides that a municipality is authorized to exercise various powers and authorities within its metropolitan area. This case requires a reading of section 21-27-189 in its entirety, as well as the related statutes that provide definitions to the terms set forth in section 21-27-189. Section 21-27-163(m) addresses the same subject matter as section 21-27-189 and defines the metropolitan area plan as “a comprehensive plan for water quality management and the control and abatement of pollution within the metropolitan area, consistent with applicable water quality standards established pursuant to the Federal Water Pollution Control Act.” Hence, in reading the two statutes together, if the City chooses to exercise the authority granted by the Legislature to operate and maintain a municipal sewage system, then the City must do so in a manner consistent with the water-quality standards established by the Federal Water Pollution Control Act, in accordance with its metropolitan-area plan, and with any rules and regulations adopted by the City itself. Subsection (i) of section 21-27-189, which was not evaluated by the circuit court, states that the City is authorized “[t]o adopt all necessary and reasonable rules and regulations to carry out and effectuate any waste treatment plan adopted for the metropolitan area” to ensure compliance with the metropolitan-area plan. In 1977, the City outlined in detail the mandatory-design standards for the City’s sanitary sewage system in its 1977 Subdivision Ordinance to ensure compliance with the federal water-quality standards. In doing so, the City exercised the executive authority provided in section 21-27-189(i). The ordinance relevant to this case provides for minimum-design standards of the sanitary sewer system for each subdivision and requires a minimum pipe size of eight inches. By virtue of this municipal ordinance, the City imposed upon itself a mandatory duty to ensure that all pipes conform to the eight-inch requirement. Thus, the circuit court erred in its interpretation and application of only a portion of section 21-27-189(b) and in failing to apply the related statutes referred to in the text of section 21-27-189. Additionally, the court also erred in ignoring the City’s requirement to abide by the Act when it granted the City’s motion for summary judgment. The City’s 1977 Subdivision Ordinance sets forth a ministerial duty in that all sewage pipes must comply with minimum design standards in that they must measure at least eight inches in diameter. Such a requirement eliminates the element of choice or judgment by city employees. The City’s sewer lines servicing the homeowners’ property only measure six-inches in diameter. Evidence may show that the municipal-sewage operations may have also violated other requirements, including ministerial requirements, imposed by the Act, state law, and municipal-sewage-permitting standards. To this extent, a question of material fact exists as to whether the City breached a ministerial duty, and as a result, the discretionary-function exemption does not bar a claim against the City. |
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