City of Jackson, et al. v. Doe


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Docket Number: 2010-IA-00341-SCT

Supreme Court: Opinion Link
Opinion Date: 09-08-2011
Opinion Author: Dickinson, P.J.
Holding: Reversed and Rendered

Additional Case Information: Topic: Personal injury - Tort Claims Act - Section 11-46-9(1)(d) & (v) - Discretionary function - Section 55-9-29 - Operation of city park
Judge(s) Concurring: Waller, C.J., Carlson, P.J., Randolph, Lamar, Pierce and King, JJ.
Concurs in Result Only: Kitchens, J., Concurs in Result Only With Separate Written Opinion Joined by Chandler, J.
Procedural History: Interlocutory Appeal
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 02-05-2010
Appealed from: Hinds County Circuit Court
Judge: Winston Kidd
Disposition: Denied motion for summary judgment.
Case Number: 251-02-1058
  Consolidated: Consolidated with 2010-IA-00342-SCT City of Jackson, Mississippi, Mayor Harvey Johnson and Ramie Ford v. Jane Doe, A Minor, By and Through Her Natural Mother and Adult Next Friend, J.J., and Lisa Doe, A Minor, By and Through Her Natural Mother and Adult Next Friend, L.L.; Hinds Circuit Court 1st District; LC Case #: 251-02-1058CIV; Ruling Date: 02/05/2010; Ruling Judge: Winston Kidd

  Party Name: Attorney Name:  
Appellant: City of Jackson, Mississippi, Mayor Harvey Johnson and Ramie Ford




JAMES RICHARD DAVIS, JR., PIETER TEEUWISSEN



 

Appellee: Jane Doe, A Minor, By and Through Her Natural Mother and Adult Next Friend, J.J., and Lisa Doe, A Minor, By and Through Her Natural Mother and Adult Next Friend, L.L. JOHN G. HOLADAY  

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Topic: Personal injury - Tort Claims Act - Section 11-46-9(1)(d) & (v) - Discretionary function - Section 55-9-29 - Operation of city park

Summary of the Facts: Two girls sued the City of Jackson after they were molested in a public park operated by the City. The City moved for summary judgment, arguing that it was immune from suit. The trial court denied the motion. The Supreme Court granted an interlocutory appeal.

Summary of Opinion Analysis: Section 11-46-9(1)(d) of the Tort Claims Act provides that a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim 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. The defendants argue that, because the operation of a city park is a discretionary function, the City is immune from suit. A governmental duty is discretionary when the government or municipal official is required to use his or her own judgment in performing the duty. But where the duty is one which has been positively imposed by law and in a manner or upon conditions which are specifically designated, the duty to perform under the condition specified, not being dependent upon the officer’s judgment or discretion, the act and discharge thereof is ministerial. A two-part test used to identify a discretionary function includes 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 plain language of section 55-9-29, the statute that gives a county or municipality the authority to create public parks, indicates that the creation and operation of a city park is within the discretion of the municipality and that the acquisition, development, provisions, and improvements of city parks are made to promote the public interests and welfare of the municipality. Thus, the operation of a city park is a discretionary function of the city. The plaintiffs argue that, even if the operation of a city park is a discretionary function that provided immunity to the defendants, that immunity can be overcome under section 11-46-9(1)(v). But section 11-46-9(1)(v) provides an independent basis for immunity, separate and apart from section 11-46-9(1)(d). Because the City qualifies for immunity under subsection (d), the conditions for immunity under subsection (v) are irrelevant.


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