IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-IA-00997-SCT
THE MOSS POINT SCHOOL DISTRICT, KIM
STALEY, IN HER OFFICIAL CAPACITY AS
SUPERINTENDENT OF MOSS POINT SCHOOLS,
DAVID RUBENSTEIN, IN HIS OFFICIAL
CAPACITY AS CHIEF FINANCIAL OFFICER OF
MOSS POINT SCHOOLS AND PAMELA D.
PERKINS, IN HER OFFICIAL CAPACITY AS
PRESIDENT OF THE MOSS POINT SCHOOL
BOARD
v.
ZACHARIAH “ZAI” STENNIS
DATE OF JUDGMENT: 12/14/2011
TRIAL JUDGE: HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: WILLIAM E. WHITFIELD, III
JOHNNY L. NELMS
ATTORNEY FOR APPELLEE: DOUGLAS LAMONT TYNES, JR.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 02/27/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, P.J., KING AND COLEMAN, JJ.
RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1. Zachariah “Zai” Stennis sued Moss Point School District and several school-district
officials1 (MPSD) in the Circuit Court of Jackson County for injuries she sustained in an off-
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Stennis joined as defendants Kim Staley (superintendent of MPSD), David
Rubenstein (chief financial officer of MPSD), and Pamela Perkins (president of Moss Point
School Board).
campus assault by a fellow student and the student’s mother. MPSD filed a motion for
summary judgment and a motion to dismiss, which were denied by the circuit court. Upon
denial of its motion for reconsideration, MPSD filed this interlocutory appeal.
FACTS AND PROCEDURAL HISTORY
¶2. Stennis, then a senior at MPHS, and fellow MPHS student Shakara Davis were dating
the same boy. According to Stennis’s deposition, in July 2008, Davis drove by Stennis’s
house and began cursing from the window of her car. Davis did not get out of the car, leaving
only when Stennis’s cousin threatened to call the police. Stennis claimed “that’s how the
situation got started.”
¶3. The new school year began in August without incident between Stennis and Davis.
However, around September 15, 2008, Stennis received a text message from Davis’s mother,
Regayla Woods. Stennis alleged that the message from Woods stated “that when I get out of
school, [she] be waiting [sic] for me outside.” 2 That same day, Stennis presented the text
message to “Officer Williams . . . [who] read it and said he was going to handle it.”
¶4. The following day, another officer removed Stennis from class to inquire about “what
was going on.” Stennis and the officer met for approximately thirty minutes. Stennis
informed the officer about Woods’s text message and the July incident at Stennis’s home. At
the conclusion of that meeting, the officer had Stennis sign a paper acknowledging that she
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Stennis testified, “[i]t was two long messages. I can’t remember everything it said.”
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and Davis “would not fight or else [they would] be expelled or suspended.” 3 Stennis received
no further communication from Davis or Woods after the text of September 15.
¶5. On October 2, 2008, Stennis and Davis attended a seventh-period pep rally at the
school. According to Stennis, Davis and her friends were looking at Stennis and her friends
and talking about them. In response, Stennis claims to have said to Davis, “I ain’t worried[.]”
At the conclusion of the pep rally, students were dismissed from school. Stennis and two
friends walked to her car in the student parking lot without incident. Stennis exited the
student parking lot onto a public street, traveled to a four-way stoplight, and turned right onto
another public street that fronts MPHS. It was there that Woods pulled her car in front of
Stennis’s car and blocked its path. Stennis and Woods exited their vehicles. Stennis allegedly
“asked [Woods] will she let me out.” At that point, Davis appeared.4 Woods then opened her
trunk and handed her daughter a knife and a box cutter. A struggle ensued which resulted in
Stennis being stabbed by Davis and struck in the head with a tire iron by Woods. Woods and
Davis got in separate cars and fled. Stennis returned to her car and drove herself to the
hospital, where she spent three or four days recovering from her injuries. Davis was expelled
from school.
3
According to Stennis, Davis was meeting with another officer in a separate room at
the same time.
4
Stennis testified, “[Davis] didn’t get out of the car. I don’t know where she came
from.”
3
¶6. On September 29, 2009, Stennis filed suit under the Mississippi Tort Claims Act
(MTCA) against MPSD in the Circuit Court of Jackson County, Mississippi. Her complaint
alleged, inter alia, that MPSD “breached [its] duty to exercise the necessary supervision on
[MPSD] premises to avoid assaults by other students or interlopers”; “breached [its] duty to
provide a safe place for [Stennis] to attend school”; was “negligent per se due to [its] failure
to protect [Stennis’s] safety as she exited the school and walked to her vehicle”; “negligently
failed to prevent an assault committed on her person”; and “failed to provide adequate
security, failed to adequately train security personnel, and failed to properly supervise
security personnel.”
¶7. On September 21, 2011, MPSD filed a “Motion for Summary Judgment, Motion to
Dismiss, and Itemization of Facts.” MPSD sought summary judgment on two grounds. First,
MPSD claimed immunity under the MTCA. Second, MPSD argued that it owed Stennis no
duty at the time of the incident, for “school was over” and the “assault actually occurred after
she exited her vehicle and was standing on a public street[.]”
¶8. On December 14, 2011, the circuit court entered an “Order Denying Defendant’s
Motion for Summary Judgment and Motion to Dismiss[.]” MPSD filed a “Motion for
Reconsideration[,]” which also was denied. MPSD filed this interlocutory appeal.
ISSUES
¶9. On interlocutory appeal, MPSD challenges the circuit court’s denial of its motion for
summary judgment and motion for reconsideration. Pertinent to the denial of those motions,
MPSD raises the following issues:
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I. Did the defendants have any duty of care to the plaintiff at the time of
the subject incident?
II. Even if the defendants had a duty of care to the plaintiff at the time of
the subject incident, were their actions/inactions discretionary functions
pursuant to Mississippi Code Section 11-46-9(1)(d) such that they have
immunity as to the claims made against them in the plaintiff’s
complaint?
III. Even if the defendants had a duty of care to the plaintiff at the time of
the subject incident, did their actions/inactions relate to an alleged lack
of “control” and “discipline” of students pursuant to Mississippi Code
Section 11-46-9(1)(x) such that they have immunity as to the claims
made against them in the plaintiff’s complaint?
As issue I is dispositive, we will address only that issue.
STANDARD OF REVIEW
¶10. “We review the circuit court’s grant or denial of summary judgment under a de novo
standard.” Liberty Mut. Ins. Co. v. Shoemake, 111 So. 3d 1207, 1209 (Miss. 2013) (citing
Entergy Miss., Inc. v. Burdette Gin Co., 726 So. 2d 1202, 1205 (Miss. 1998)). Summary
judgment should be granted “if the pleadings, depositions, answers to interrogatories and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.”
Miss. R. Civ. P. 56(c). “The evidence must be viewed in the light most favorable to the party
opposing the motion.” Eli Inv., LLC, v. Silver Slipper Casino Venture, LLC, 118 So. 3d
151, 154 (Miss. 2013) (citing Davis v. Hoss, 869 So. 2d 397, 401 (Miss. 2004)).
ANALYSIS
Did the defendants have any duty of care to the plaintiff at the time of the
subject incident?
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¶11. In a claim of negligence, the plaintiff must first establish a duty owed to it by the
defendant. Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So. 2d 413, 416
(Miss. 1988) (citing Burnham v. Tabb, 508 So. 2d 1072 (Miss. 1987)). The existence of a
duty is a question of law. Lyle v. Mladinich, 584 So. 2d 397, 400 (Miss. 1991) (citing Harris
v. Pizza Hut of Louisiana, Inc., 455 So. 2d 1364, 1371 (La. 1984)).
¶12. This Court has stated that the “MTCA provides the exclusive remedy against a
governmental entity or its employee for the act or omission which gave rise to the suit.”
Covington County Sch. Dist. v. Magee, 29 So. 3d 1, 4 (Miss. 2010) (citing Miss. Code Ann.
§ 11-46-7(1) (Rev. 2012)). MPSD “constitutes a ‘governmental entity’ and a ‘political
subdivision’ pursuant to the MTCA.” See id. The MTCA provides, in pertinent part,
(1) A governmental entity and its employees acting within the course and
scope of their employment or duties shall not be liable for any claim:
....
(b) Arising out of any act or omission of an employee of a governmental entity
exercising ordinary care in reliance upon, or in the execution or performance
of, or in the failure to execute or perform, a statute, ordinance or regulation,
whether or not the statute, ordinance or regulation be valid[.]
Miss. Code Ann. § 11-46-9 (Rev. 2012) (emphasis added). Section 11-46-9(1)(b)
encompasses ministerial duties – those duties “which ha[ve] been positively designated[,]”
by “statute, ordinance or regulation.” Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.
2d 1234, 1240 (Miss. 1999) (quoting Mosby v. Moore, 716 So. 2d 551, 557 (Miss. 1998));
Miss. Code Ann. § 11-46-9(1)(b) (Rev. 2012).
¶13. Mississippi Code Section 37-9-69 provides, in pertinent part,
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[i]t shall be the duty of each superintendent, principal and teacher in the public
schools . . . to observe and enforce the statutes, rules and regulations
prescribed for the operation of schools. Such superintendents, principals and
teachers shall hold the pupils to strict account for disorderly conduct at school,
on the way to and from school, on the playgrounds, and during recess.
Miss. Code Ann. § 37-9-69 (Rev. 2013). This Court has recognized that Section 37-9-69
creates a ministerial duty wherein “public schools have the responsibility to use ordinary care
and to take reasonable steps to minimize foreseeable risks to students thereby providing a
safe school environment.” Henderson v. Simpson County Pub. Sch. Dist., 847 So. 2d 856,
857 (Miss. 2003) (quoting L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136,
1143 (Miss. 1999)), overruled on other grounds; see also Lang, 764 So. 2d 1234 (Miss.
1999); Pearl Pub. Sch. Dist. v. Groner, 784 So. 2d 911, 916 (Miss. 2001). It was this
ministerial duty for which the circuit court (citing L. W.) found MPSD had a responsibility
of ordinary care and denied summary judgment.
¶14. However, the circuit court’s reliance on this ministerial duty was misplaced. In cases
where public schools have been held to have a ministerial duty to provide a safe school
environment under Section 37-9-69, the student’s (or nonstudents’ in some cases) injuries
occurred on school property. This Court has explicitly stated that Section 37-9-69 “requires
that school personnel maintain control and discipline over students while they are at school.”
Pearl Pub. Sch. Dist. v. Groner, 784 So. 2d 911, 916 (Miss. 2001) (emphasis added) (citing
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L. W., 754 So. 2d at 1142). The case sub judice is clearly distinguishable, as the incident
occurred off school property, after Stennis and Davis had been dismissed from school.5
¶15. The Court of Appeals addressed the duties owed by a school to individuals on a public
street in Gammel v. Tate County School District, 995 So. 2d 853 (Miss. Ct. App. 2008).
Gammel was taking his children to a carnival event at an elementary school. Id. at 855. He
parked his car in a school bus parking lot across the street from the school. Id. While he was
crossing the public street between the bus parking lot and the school, a passing vehicle struck
and killed Gammel. Id. Gammel’s estate sued the school district, among others, for wrongful
death. Id. The trial court granted summary judgment to the school district. Id. On appeal, the
Court of Appeals examined the case under the theory of premises liability, finding that
Gammel held the status of trespasser when he parked in the school bus parking lot. Although
it noted that the school had a “statutory duty of ordinary care to provide a safe environment
for its patrons” under Section 37-9-69, the Court of Appeals did not extend that duty beyond
school property. Thus, when Gammel “stepped off the bus parking lot” onto the public street,
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Stennis argues that “MPSD had control of the area that included the road where [she]
was attacked[,]” and “whether or not this happened on school property is a question of fact.”
In a related code section, the Legislature has defined “school property” as “includ[ing] any
public school building, bus, public school campus, grounds, recreational area or athletic field
in the charge of the superintendent.” Miss. Code Ann. § 37-11-29 (Rev. 2013). Stennis
admitted in her deposition that the incident occurred on a public street. A public street does
not fit the definition of “school property.” Furthermore, even though the school used the
public street for bus drop-off and pick-up, the public at large used the street as well. The
authority to police the street rested with the Moss Point Police Department, not MPSD. No
issue of material fact exists as to whether this incident occurred on school property.
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“he lost his status[,]” and the school owed him no “duty whatsoever at the time of the
accident.” 6 Id. at 859.
¶16. Consistent with Gammel, Section 37-9-69 does not impose a duty of ordinary care on
schools to provide a safe environment to students who have been dismissed from school and
are injured off school property. The circuit court erred in denying summary judgment on that
basis.
¶17. However, our analysis cannot end there, for Stennis contends that the MPHS Student
Handbook created a “duty that MPSD owed to [her] . . . to notify law enforcement of the
threats when they were made aware of the threats.” MPSD responds that “the student
handbook is not a ‘statute, ordinance, or regulation’” contemplated by Section 11-46-9(1)(b);
therefore, it “does not create a ministerial duty for which MPHS would be required to show
‘ordinary care.’” This court has never addressed whether a student handbook could impose
a ministerial duty upon a school.7
6
Stennis argues that Gammel is not applicable, as Gammel was a trespasser – a status
clearly distinguishable from that of a student attending school. Yet, Gammel’s status when
he was in the school bus parking lot is irrelevant to the Court of Appeals’ holding. The
critical aspect was that Gammel relinquished any status he possessed when he exited the
school property – the result being the same had he been an invitee or licensee.
7
In Groner, this Court explicitly held that a “regulation” created by the Mississippi
High School Activities Association imposed a duty on Pearl High School. Groner, 784 So.
2d at 915; see also Mississippi Dep’t of Human Servs. v. S.W, 111 So. 3d 630, 639 (Miss.
Ct. App. 2012) (holding that the Department of Human Services’ policy manual set forth
ministerial duties to act to care for and protect children in its custody).
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¶18. The Legislature has provided that “school boards . . . shall have the . . . power . . . [t]o
prescribe and enforce rules and regulations . . . for the government of schools . . . .” Miss.
Code Ann. § 37-7-301(l) (Rev. 2013) (emphasis added). If the school board exercises its
authorized power and prescribes a regulation(s) positively imposing a duty on the school,
then Section 11-46-9(1)(b) requires that the school exercise ordinary care in the execution
or performance of that regulation. See Miss. Code Ann. § 11-46-9 (Rev. 2012). Moreover,
Section 37-9-69 explicitly states, in pertinent part, “[i]t shall be the duty of each
superintendent, principal and teacher in the public schools . . . to observe and enforce the
statutes, rules and regulations prescribed for the operation of schools. Miss. Code. Ann. § 37-
6-69 (Rev. 2013). As such, the Legislature has granted the school district the authority to
create a rule or regulation, e.g., through a student handbook, which imposes a positive duty
on a school.
¶19. The excerpt presented by Stennis to be a provision of the student handbook provides:
THREATS[:] Anyone who threatens violence is guilty of a serious criminal act
and will be immediately reported to the proper authorities. Any threat made
against a teacher, student, staff member or any other person should be reported
immediately to the principal or designee. If on investigation the principal
determines that a serious threat has been made, the offender will be reported
to campus security, the city police and the juvenile authorities.
¶20. Although the applicable standard of review is de novo, this Court cannot adequately
assess, based on the record excerpt before it, whether a purported provision of the handbook
required the school officer to report the threat to police. The record contains only a three-
page excerpt on which is handwritten “Student Handbook[.]” Furthermore, the trial court
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made no reference to the student handbook in finding that MPSD owed a duty of ordinary
care. While the provision may have imposed upon the school a positive duty to report the
threat to police, this Court risks declaring that it does so when the handbook as a whole is not
before this Court.
¶21. We are constrained to remand this case to the circuit court to develop the record and
make a determination of whether the student handbook positively imposed a duty on the
school to report Woods’s text message.
CONCLUSION
¶22. The circuit court erroneously found that MPSD’s duty of ordinary care to provide a
safe school environment applied in this case. However, the student handbook excerpt
arguably imposed a duty on the school to report the threat. Based on the record before it, this
Court cannot to make that determination. As such, we remand this case to the Circuit Court
of Jackson County to consider whether the student handbook imposed such a duty.
¶23. REVERSED AND REMANDED.
DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND
COLEMAN, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.
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