Fortenberry v. City of Jackson
| Docket Number: | 2008-CT-00270-SCT Linked Case(s): 2008-CA-00270-COA ; 2008-CA-00270-COA ; 2008-CT-00270-SCT ; 2008-CT-00270-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-10-2011 Opinion Author: Pierce, J. Holding: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENTS OF THE HINDS COUNTY CIRCUIT COURT ARE REINSTATED AND AFFIRMED |
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| Additional Case Information: |
Topic: Property damage - Tort Claims Act - Discretionary duty - Section 21-27-189(b) Judge(s) Concurring: Waller, C.J., Carlson, P.J., and Dickinson, J. Dissenting Author : Randolph, J. Dissent Joined By : Lamar, Kitchens and Chandler, JJ. Concurs in Result Only: Graves, P.J. Procedural History: Summary Judgment Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE Writ of Certiorari: Granted Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 06-08-2007 Appealed from: Hinds County Circuit Court Judge: Bobby DeLaughter Disposition: The City moved for summary judgment in both cases, asserting that the City was immune from liability under the Mississippi Tort Claims Act (“MTCA”), and both claims were dismissed. The Hinds County Circuit Court, First Judicial District, found that, because the operation and maintenance of the City’s sewage system was a discretionary function, the City was immune from liability under the MTCA, granting summary judgment to the City. Case Number: 251-05-939CIV |
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| Consolidated: Consolidated with 2008-CT-00271-SCT 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 | ||
| Note: | The judgment of the Court of Appeals is reversed. See the original COA opinion at http://www.mssc.state.ms.us/Images/Opinions/CO56768.pdf | |
| 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 | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Property damage - Tort Claims Act - Discretionary duty - Section 21-27-189(b) |
| Summary of the Facts: | The homes of James and Linda Fortenberry and Flynn and Kathleen Wallace were built in the 1960s in a subdivision that was suited with six-inch clay drainage pipes for the sewage system. In 1971, the subdivision was annexed by the City of Jackson, and later, the City passed a Subdivision Ordinance in 1977, which mandated that the sewage pipes installed in the City measure eight inches in diameter. On different dates in April 2003, raw sewage flooded each family’s home. Due to the flooding, the Fortenberrys and the Wallaces unsuccessfully submitted claims to the City. Both families also filed claims with their respective insurers. The Fortenberrys received $6,700 from their insurer, but the Wallaces received nothing from their insurer. Both families filed suit against the City, seeking damages for their losses. The City moved for summary judgment and both claims were dismissed. On appeal, the Court of Appeals that, under the Ordinance, the duty to operate and maintain the sewer system is ministerial rather than discretionary, thereby defeating the protection of the Tort Claims Act. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee. However, a duty is ministerial if it is positively imposed by law and required to be performed at specific time and place, removing an officer’s or entity’s choice or judgment. When determining whether an act of a governmental entity or its employee is discretionary, the court considers whether the conduct or activity involves an element of choice or judgment and if so, whether that choice or judgment involves social, economic, or political policy. The City argues that its decision to operate and maintain the sewer system is a discretionary function as provided by statute. Section 21-27-189(b) clearly allows the City to operate and maintain its sewage system according to its discretion, which alone would satisfy the first prong. Operating and maintaining sewage systems clearly implicate both economic and social policy. It is clear that the City put forth an effort to promote human welfare by trying to solve problems as they arose. The City’s decision relates to economic policy, because the City must have the funds necessary to operate and maintain its sewage system. The City’s decision is discretionary because it meets both prongs of the public-policy function test. In addition, the decision made by the City to operate and maintain its sewage system was a discretionary function granted by statute. Therefore, the Court of Appeals’ decision relying on the Ordinance to find that the City had a ministerial duty to operate and maintain the sewage system at issue is misplaced. The City’s decision is discretionary under the principles of the public-policy function test, and the applicable statute allows the City to operate and maintain its sewer system according to its discretion and without rigid guidelines. |
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