Sovereign immunity in Mississippi – a Big Change in the Law.

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For many years, a person injured by the negligence of a government employee in Mississippi simply had no remedy. The state and its political subdivisions (such as cities and counties) enjoyed “sovereign immunity.” That meant they were simply immune from a lawsuit.

Over time, the courts began creating some exceptions to this rule. Then, in 1984, the Mississippi Legislature decided to pass a series of laws that would explain when sovereign immunity was available and when it was not. Those laws are known as the Mississippi Tort Claims Act (the “MTCA”).

The MTCA creates a general rule that eliminates sovereign immunity for many types of negligence committed by government employees.

Yet, the Act also creates a list of exceptions to that rule. So, if the injury was caused by one of the exceptions, then sovereign immunity still applies.

This post addresses one of those exceptions, the discretionary function exception found at Miss. Code Ann. Section 11-46-9(1)(d). This statute creates an exception for negligence claims:

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.

Although this statute has not been changed since it was originally adopted, the manner in which the Mississippi Supreme Court has interpreted it has changed dramatically. And, the most recent change makes it far easier for an injured party to overcome sovereign immunity and obtain a remedy.

Three cases.

To understand the significance of the recent change, we will look at three Supreme Court decisions. Those are:

Jones v. Mississippi Department of Transportation, 744 So.2d 256 (Miss. 1999) (hereinafter “Jones“)

Brantley v. City of Horn Lake, 152 So.3d 1106 (Miss. 2014) (hereinafter “Brantley“)

Wilcher v. Lincoln County Board of Supervisors, et al., No. 2016-CA-01429-SCT (May 24, 2018) (hereinafter “Wilcher“).

All three decisions address the meaning of the term “discretionary function” in Section 11-46-9(1)(d).

The Jones decision

Roadword and sovereign immunity

Accidents caused by roadwork

We begin with the 1999 decision in Jones, which appears to be the first time the Mississippi Supreme Court was called upon to interpret the phrase “discretionary function.”

In that case, the plaintiff was injured in a one-vehicle accident when she approached a T-intersection at which the stop sign had been removed while MDOT did roadwork. MDOT claimed that it was immune from suit because the decision of the placement of road signs was a “discretionary function.”

In seeking guidance on how to define “discretionary function,” the Supreme Court looked to federal case law interpreting the same phrase in the Federal Tort Claims Act. Jones at 260.

The decision was made to adopt the two-part test set forth in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). That test was:

First, determine whether the activity at issue involved an element of choice or judgment.

Second, if so, then determine whether the choice involved social, economic or political policy.

Jones at 260.

The Jones court explained further that:

“In determining the scope of the acts protected under the exception, the [United States] Supreme Court held that only those functions which by nature or policy decisions, whether made at the operational or planning level, are protected.”

“The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”

Jones at 260.

Thus, in Jones, the focus was upon the actual activity giving rise to the plaintiff’s claim.

The Brantley decision

Let us move forward to the year 2014, when the Mississippi Supreme Court handed down its decision in Brantley.

In that case, the plaintiff claimed that a member of the municipality’s fire department negligently dropped him while he was on a stretcher going into the hospital.

The municipality first argued for the “fire protection” exception in Section 11-46-9. The Supreme Court rejected that argument.

Next, the Supreme Court undertook an analysis of the “discretionary function” exception. In doing so, the Court provided an extensive analysis of prior case law on that subject.

The Brantley court began by examining the 1999 decision in Jones. The court concluded that Jones had been wrongly decided because, it said, the interpretation of “discretionary function” should not have been based upon the United States Supreme Court’s decision in Gaudert. Brantley at 1112.

As a result, the Brantley court abolished the two-part public-function test that had been adopted in Jones. Brantley at 1112.

Next, the Brantley Court reviewed several of its recent decisions and concluded that the Supreme Court had, in fact, already begun moving away from the two-part test in Jones even though such had not been formally stated.

Specifically, Brantley court noted that its recent decisions had not focused upon the activity giving rise to the claim, but instead had looked to the “broad governmental function implicated by the suit.” Brantley at 1113.

Put another way, the Supreme Court had started looking at the question of whether the overall operation was discretionary and, if it was, then holding that all activities conducted as a part of that operation were also discretionary.

As one example of this, the Brantley court discussed (with approval) its recent opinion in Pratt v. Gulfport–Biloxi Regional Airport Authority, 97 So.3d 68 (Miss. 2012). In Pratt, the plaintiff was injured when he fell down a temporary set of stairs at the airport. He contended that the stairs had not been maintained in a sufficiently safe manner.

In rejecting the plaintiff’s claims, the Pratt court chose not to look at the activity giving rise to the injury (i.e., the maintenance of the steps) but instead at the overall operation of an airport. Pratt at 72.

Because the municipality was not required by law to build or operate an airport, the Pratt court held that such was a discretionary function. Then, the court held that all other activities associated with the operation of the airport (including maintenance of the stairs) were also discretionary functions. The only exception to that would be if some other rule or regulation made that particular activity ministerial. Pratt at 72.

In the Brantley decision, the court also discussed (with approval) City of Jackson v. Doe. In that case:

“[T]his Court held that a city was not liable for a dangerous condition in one of its parks because the “operation of a city park is a discretionary function of the city.” In so holding, the Court did not examine the specific conduct which had led to the injuries involved, i.e., maintaining the park in a reasonably safe condition.”

Instead, the Court stated that the “creation and operation of a city park is within the discretion of the municipality[,]” and thus immunity applied. Again, the Court did not focus on the specific activity in question, but rather on the overarching function of the operation of a public park.

Brantley at 1114.

What the Brantley court did, then, was formally announce a rule that the Supreme Court had already been using – – if the “broad governmental function implicated by the suit” was a discretionary one (such as operating an airport or a park), then all other activities carried out in furtherance of that function were also discretionary (unless another law made that activity ministerial, i.e., mandatory).

Wilcher overrrules Brantley

On May 24, 2018, the Supreme Court issued its opinion in Wilcher. In that case, the plaintiff was driving at night and crashed into a large hole left in the road where the county and city had been repairing the bridge. There were no warning signs or other indications that the hole had been left in the road.

Both defendants argued for immunity under the “discretionary function” test announced in Brantley. Specifically, they argued that Miss. Code Ann. Section 63-3-305 gives local authorities discretion as to the placement of traffic-control devices. Thus, they reasoned, the particular act of failing to post a warning sign about the hole was also discretionary.

In rejecting the defendants’ argument, the Wilcher court began with an acknowledgment that the Brantley test was “well-intentioned” but “unworkable”. The Supreme Court concluded that the test:

“… forces parties and judges to wade through an ever-deepening quagmire of regulations and ordinances to locate “ministerial” or “discretionary” duties, over complicating the process of litigating and deciding claims involving governmental entities.”

As a result, the Supreme Court overruled Brantley and abandoned the “broad governmental function” test that had been used in Pratt and City of Jackson v. Doe (and that was formally adopted in Brantley).

In its place, the Supreme Court reaffirmed the original two-part public-policy function test that had been adopted in 1999 in Jones. Wilcher at ¶ 23.

In returning to the original Jones test, the Wilcher court made it clear that the focus was no longer on the “broad governmental function implicated by the suit” but instead was on the activity giving rise to the plaintiff’s claim.

 “Brantley’s stated intention was to create a more ‘workable rule’ for when discretionary-function immunity applies. But in reality, the new test ‘marked an unwise and unworkable departure from long-standing precedent,’ and by failing to consider whether the activity in question involved policy, ignored the Legislative intent behind discretionary-function immunity.”

Wilcher at ¶ 14 (citations omitted; emphasis added).

Thus, rather than looking at the broad question of whether the city and County had discretion with regard to the placement of traffic-control devices, the Supreme Court looked specifically at the activity that gave rise to the claim – – leaving a large hole in the middle of the road with no warning signs.

“Both common sense and the common-law dictate that if a road crew removes a bridge to install a covert, leaves a giant hole overnight, and fails to either barricade or sufficiently warn about the gaping hole they created, then the entity in charge could be liable in tort if someone drives his car into the hole.” Wilcher at ¶ 16.

“This would certainly be true in the context of the premises-liability claim against a private property owner. So why should it be any different when the government owns or controls the premises?” Id.

“In other words, the government does not have the “discretion” – let alone legislatively conferred dscretion – to create a dangerous condition and leave it exposed without warning.” Id.

The discretionary function immunity protects only governmental actions and decisions “based on considerations of public policy.” Wilcher at ¶ 34. The alleged failure to barricade or warn about the hole “certainly was not the result of a policy decision. Rather, if indeed there was such a failure, it was the result of straight-up negligence.” Wilcher at ¶ 32.

Thus, when applying the discretionary function exception “this Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.” Id. (emphasis in original). The focus must be upon “the nature of the actions taken and whether they are susceptible to policy analysis.” Id.

Because the plaintiff in Wilcher had alleged that his injuries were caused by a simple act of negligence and not a policy decision, “the County and City cannot take refuge in the discretionary-function immunity.” Wilcher at ¶ 34.

Wilcher creates a significant shift in the law of “discretionary function,” and any case decided prior to Wilcher must be carefully analyzed to determine if it is still good law.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.


Craig Painter