William T. Brantley v. City of Horn Lake, Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2012-CA-01555-SCT

WILLIAM T. BRANTLEY

v.

CITY OF HORN LAKE, MISSISSIPPI

DATE OF JUDGMENT: 09/05/2012
TRIAL JUDGE: HON. GERALD W. CHATHAM, SR.
TRIAL COURT ATTORNEYS: KEITH M. ALEXANDER
ROY JEFFERSON ALLEN
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: KEITH M. ALEXANDER
BEN ALEXANDER
ATTORNEY FOR APPELLEE: ROY JEFFERSON ALLEN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 12/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

KITCHENS, JUSTICE, FOR THE COURT:

¶1. William T. Brantley filed a personal injury action against the City of Horn Lake

seeking to recover monetary damages for injuries he sustained due to the alleged negligence

of a member of the City’s fire department. The trial court granted summary judgment to the

City, and Brantley now appeals to this Court. Finding that the City is not entitled to sovereign

immunity under the Mississippi Tort Claims Act (“MTCA”), we reverse the trial court’s

grant of summary judgment and remand for further proceedings.
 FACTS & PROCEDURAL HISTORY

¶2. On May 10, 2010, Brantley lacerated his forehead while repairing his pickup truck at

his residence in Horn Lake. Brantley called for an ambulance to transport him to Baptist-

DeSoto Hospital. Stephen Lowery was a member of the ambulance crew that responded to

Brantley’s call. Lowery was a firefighter for the Horn Lake Fire Department but also was

licensed as an emergency medical technician (EMT) and was trained as an ambulance driver.

Upon arriving at his home, Emergency Medical Services (EMS) personnel bandaged

Brantley’s wound, and he was transported to the hospital in the ambulance. Lowery was the

driver of the ambulance. As the ambulance crew was unloading Brantley at the hospital,

Lowery lost control of the stretcher Brantley was on and dropped him. As a result, Brantley

alleges he sustained damages, including medical bills and expenses.

¶3. Brantley filed a complaint against the City on April 27, 2011, alleging that the

members of the Horn Lake Fire Department’s ambulance crew were negligent in failing to

control the stretcher when it collapsed with him on it. The City moved for summary

judgment, arguing that it was immune from suit under the MTCA, specifically Section 11-46-

9(1)(c) of the Mississippi Code. That section provides immunity from suit for governmental

employees engaged in the performance or execution of duties or activities in relation to

police or fire protection. Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012). In response to the

motion, Brantley filed three items: a response to the City’s asserted undisputed material facts

and a statement of additional material facts, a response in opposition to the motion for

summary judgment, and the affidavit of Brantley.

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¶4. On May 7, 2012, the circuit court judge entered an order denying summary judgment,

holding that Brantley’s affidavits created a genuine issue of material fact. On May 10, 2012,

the City submitted a rebuttal supporting its motion for summary judgment and argued that

the order denying summary judgment and its rebuttal brief had crossed in the mail. On

August 13, 2012, the City filed a renewed motion for summary judgment on the same

grounds. The circuit court granted the City’s renewed motion for summary judgment and

entered an order staying the case.

¶5. Brantley has appealed to this Court, arguing that the trial court improperly granted

summary judgment for two reasons. First, Brantley argues that the conduct that caused his

injury is not protected by the fire-protection exemption of the MTCA. Brantley also argues

that the trial court erred in granting summary judgment despite the existence of genuine

issues of material fact. This Court requested supplemental briefing from the parties to discuss

the applicability of the discretionary-function exemption of the MTCA, Section 11-46-

9(1)(d) of the Mississippi Code.

STANDARD OF REVIEW

¶6. The Mississippi Legislature has determined that governmental entities and their

employees shall be exempt from liability in certain situations outlined in the MTCA. Miss.

Code Ann. § 11-46-9 (Rev. 2012). “This exemption, like that of qualified or absolute

immunity, is an entitlement not to stand trial rather than a mere defense to liability and,

therefore, should be resolved at the earliest possible stage of litigation.” Mitchell v. City of

Greenville, 846 So. 2d 1028, 1029 (¶ 8) (Miss. 2003). Accordingly, “immunity is a question

of law and is a proper matter for summary judgment[.]” Id. This Court reviews the

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application of the MTCA de novo. Lee v. Mem’l Hosp. at Gulfport, 999 So. 2d 1263, 1266

(¶ 8) (Miss. 2008).

DISCUSSION

¶7. At issue in this case are two exceptions to the waiver of sovereign immunity

enumerated in Section 11-46-9 of the Mississippi Code. First, Section 11-46-9(1)(c), the

police-or-fire-protection exception, provides immunity from claims “[a]rising out of any act

or omission of an employee of a governmental entity engaged in the performance or

execution of duties or activities relating to police or fire protection unless the employee acted

in reckless disregard for the safety and well-being of any person not engaged in criminal

activity at the time of injury.” Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012). Second, Section

11-46-9(1)(d), the discretionary-function exception, provides immunity from claims “[b]ased

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[.]” Miss. Code Ann. § 11-46-9(1)(d) (Rev. 2012). We shall discuss

these two exemptions from liability separately.

I. Whether a claim for an injury occurring during a transport by an
ambulance service is subject to the fire-protection exemption of the
MTCA.

¶8. Brantley argues that the MTCA’s fire-protection exemption is inapplicable to this case

because Lowery, although technically a firefighter, was not engaged in an activity directly

related to fire protection when he allegedly caused Brantley’s injury.1 In response, the City

1
The issue of Lowery’s alleged negligence is not before this Court at this stage of the
litigation. Today, we must decide only the initial legal question of whether the MTCA acts

4
argues that Section 11-46-9(1)(c) does not require the action in question to be directly related

to fire protection, and that responding to a 911 injury call fits directly within a firefighter’s

job description.

¶9. Section 11-46-9(1)(c) does not speak to the precise scope that should be given to the

phrase “fire protection.” We agree with the trial court that this provision is ambiguous and

overly broad. When a statute is ambiguous or silent on a specific issue, this Court must

“carefully review statutory language and apply its most reasonable interpretation and

meaning to the facts of a particular case.” Pope v. Brock, 912 So. 2d 935, 937 (¶ 8) (Miss.

2005). “All words and phrases contained in the statutes are used according to their common

and ordinary acceptation and meaning; but technical words and phrases according to their

technical meaning.” Miss. Code Ann. § 1-3-65 (Rev. 2014). See also Estate of Klaus v.

Vicksburg Healthcare, LLC, 972 So. 2d 555, 557-59 (Miss. 2007) (holding that the MTCA

must be read in pari materia with the provisions of Title 1 of the Mississippi Code).

¶10. This Court has not previously interpreted the scope of the phrase “fire protection” in

Section 11-46-9(1)(c). However, the Court of Appeals recently decided two cases dealing

with the scope of the phrase. First, in Herndon v. Mississippi Forestry Commission, 67 So.

3d 788 (Miss. Ct. App. 2010), the Court of Appeals was asked to determine whether the fire-

protection exemption of the MTCA applied to an employee of the Mississippi Forestry

Commission (“MFC”). In Herndon, the forestry commission employee was tasked with

as a complete bar to Brantley’s claim. In so doing, we view the evidence and all reasonable
inferences drawn therefrom in the light most favorable to Brantley. See Knight v. Terrell,
961 So. 2d 30, 31 (¶ 6) (Miss. 2007); Harris v. Shields, 568 So. 2d 269, 275 (Miss. 1990).

5
driving a transport truck to pick up a bulldozer that “was needed for fire-protection services

as Pearl River County was under a state of emergency as a result of Hurricane Katrina[.]” Id.

at 790 (¶ 2). On his way to pick up the bulldozer, the state employee was involved in an

automobile accident with the plaintiff. Id. at 791 (¶ 4). The plaintiff filed a personal injury

complaint against the forestry commission, and the trial court granted summary judgment to

the agency based in part on immunity under Section 11-46-9(1)(c). Id. (¶ 5). On appeal, the

plaintiff argued that the MFC was not an agency contemplated by the police-or-fire-

protection exemption. Id. (¶ 8). The Court of Appeals rejected that argument, finding that the

MFC is statutorily authorized to “prevent, control, and extinguish forest fires[.]” Id. at 792

(¶ 9) (quoting Miss. Code Ann. § 49-19-3(b) (Supp. 2009)). The MFC employee worked as

a forest ranger, and fire-suppression duties were part of his job description. Id. (¶ 10). Thus,

the Court of Appeals held that “[Section 11-46-9(1)(c)] does not limit such immunity to

police officers and fire departments. It merely states that the duties or activities must relate

“to police or fire protection.” Id. The Court of Appeals also rejected the plaintiff’s argument

that the MFC employee merely was performing “maintenance work,” finding that immunity

under the MTC also applied to “ordinary duties related to police and fire protection.” Id. at

793 (¶ 11).

¶11. More recently, in Land v. Attala County Board of Supervisors, 116 So. 3d 1085

(Miss. Ct. App. 2012), the Court of Appeals was presented with a case involving conduct

with an equally tangential relation to “fire protection.” In Land, a group of county

firefighters was responding in a fire engine to a reported automobile accident. Id. at 1086 (¶

4). Upon reaching the scene of the accident, the firefighters accidentally ran over the

6
decedent, who had been involved in the accident and subsequently had collapsed in the

roadway. Id. The decedent’s beneficiaries filed a wrongful death suit against the county, but

the trial court granted summary judgment to the county based on MTCA immunity. Id. (¶ 5).

The Court of Appeals affirmed the trial court’s grant of summary judgment. Id. at 1088 (¶

11). Interestingly, the only disputed issue before the Court of Appeals was whether the

firefighters had acted in reckless disregard for the safety and well-being of the decedent, a

question not before this Court in the instant case. In its discussion, the Court of Appeals

found that it was undisputed that the firefighters were acting within the course and scope of

their employment and that their conduct was related to fire protection. Id. at 1087 (¶ 7).

¶12. Here, the City cites both Herndon and Land to support its argument that Section 11-

46-9(1)(c) does not require the activity in question to be strictly related to fire protection. We

disagree. Herndon actually supports Brantley’s position that the conduct in question must

bear some reasonable relation to fire protection. Herndon correctly recognized that Section

11-46-9(1)(c) does not provide immunity to police officers and firefighters without requiring

the subject activity to be related “to police or fire protection.” See Herndon, 67 So. 3d at 792

(¶ 10). Thus, the MFC in Herndon was shielded from liability from a claim arising out of an

activity when its employee was acting within the course and scope of his employment,

performing duties that bore some reasonable relation to fire protection. But the inverse of this

conclusion also must be true: a governmental entity is not immune from liability under

Section 11-46-9(1)(c) for the acts of its police officers or firefighters if those acts are not

sufficiently related to police or fire protection. The employee’s job title alone cannot serve

7
as a shield from liability. Land lends no support to the City, as there was no dispute that the

county employees in that case were performing a fire-protection function.

¶13. The MTCA does not contain a provision exempting governmental entities from

liability from claims arising out of the provision of ambulance services. Rather, such claims

are governed by Mississippi’s “Good Samaritan Law,” Section 73-25-37 of the Mississippi

Code, which predates the MTCA. See Miss. Code Ann. § 73-25-37 (Rev. 2012). This Court

has held that, under Section 73-25-37, the standard of care applicable to those rendering

emergency medical assistance, including ambulance services, is “one of reasonableness.”

Willard v. Mayor and Alderman of City of Vicksburg, 571 So. 2d 972, 975 (Miss. 1990).

The Legislature has done nothing to change this area of the law, suggestions of this Court

notwithstanding, see Willard, 571 So. 2d at 975, even after the enactment of the MTCA.

¶14. Looking to the common meaning of the words and phrases in Section 11-46-9(1)(c),

we find that the phrase fire protection refers to those activities that bear a rational connection

to the performance of firefighting activities. The Legislature has had ample opportunity to

provide a more precise definition of “fire protection,” or to include ambulance services as

an exemption from liability under the MTCA. In the absence of such action, we find that

Lowery’s actions as part of an ambulance crew in the instant case were not related to fire

protection. Discussing the purpose of Section 11-46-9(1)(c), this Court has opined, “Police

officers and fire fighters are more likely to be exposed to dangerous situations and to

liability, and therefore, public policy requires that they not be liable for mere negligence.”

Maldonado v. Kelly, 768 So. 2d 906, 909 (¶ 6) (Miss. 2000). Unloading a patient from a

8
stretcher, under the facts of this case, has no arguable connection to “fire protection.” Thus,

Section 11-46-9(1)(c) does not shield the City from liability.

¶15. Because Lowery was not engaged in an activity related to fire protection when he

allegedly caused Brantley’s injury, we hold that exemption from liability under Section 11-

46-9(1)(c) is inapplicable to this case.

II. Whether the City is entitled to sovereign immunity based on the
discretionary-function exemption of the MTCA.

¶16. Summary judgment was granted to the City based upon the fire-protection immunity

granted under Section 11-46-9(1)(c) and nothing else. This Court, on its own initiative,

requested supplemental briefing on the application of discretionary-function immunity

pursuant to Section 11-46-9(1)(d). “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]ased 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. . . .” Miss. Code

Ann. § 11-46-9(1)(d) (Rev. 2012). This Court has wrestled with the applicability of

discretionary-function immunity for years. We now undertake to articulate a workable rule,

giving effect to the plain language of the statute.

¶17. Historically, this Court has applied a two-part public-policy function test “to

determine if ‘governmental conduct is discretionary so as to afford the governmental entity

immunity.’” Miss. Transp. Comm’n v. Montgomery, 80 So. 3d 789, 795 (¶ 20) (Miss. 2012)

(quoting Jones v. Miss. Dep’t of Transp., 744 So. 2d 256, 260 (Miss. 1999) abrogated on

other grounds). Under the test, the Court first determines “whether the activity in question

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involved an element of choice or judgment[,]” and, if so, “whether that choice or judgment

involved social, economic, or political-policy considerations.” Montgomery, 80 So. 3d at 795

(¶ 20) (citing Jones, 744 So. 2d at 260). If the duty or activity which forms the basis of the

suit “is not imposed by law and depends upon the judgment or choice of the government

entity or its employee[,]” then the duty or activity is discretionary. Pratt v. Gulfport-Biloxi

Reg’l Airport Auth., 97 So. 3d 68, 72 (¶ 9) (Miss. 2012) (quoting Montgomery, 80 So. 3d

at 795).

¶18. This Court adopted its two-part public-function test from the United States Supreme

Court. Jones, 744 So. 2d at 260 (citing United States v. Gaubert, 499 U.S. 315, 322, 111 S.

Ct. 1267, 113 L. Ed. 2d 335 (1991)). The Court did so because it found that “Section 11-46-9

appears to be patterned after 28 U.S.C. § 2680(a), the ‘discretionary function’ exception to

the Federal Tort Claims Act.” Jones, 744 So. 2d at 260 (¶ 10). While our tort claims act may

have been patterned after the federal act to some extent, it includes an important distinction,

and is by no means identical.

¶19. In Jones, this Court failed to account for the fact that the Mississippi Tort Claims Act

contains a requirement not present in the Federal Tort Claims Act: that the immunity attaches

to a “governmental entity and its employees acting within the course and scope of their

employment or duties. . . .” Miss. Code Ann. § 11-46-9(1)(d) (Rev. 2012) (emphasis added).

And the judicial adoption of that test imposed a restriction on immunity neither derived from

nor contemplated by Mississippi’s statutory language: that the activity in question “involved

social, economic, or political policy considerations.” Montgomery, 80 So. 3d at 795 (¶ 20)

(citing Jones, 744 So. 2d at 260). Chief Justice Waller’s separate opinion, in effect,

10
perpetuates that error by its reliance upon additional federal precedent. So today we complete

our return to a strict application of Mississippi’s statutory language and abolish the two-part

public-function test.

¶20. Recently, this Court effectively abandoned the public-policy function test and clarified

the standard for determining whether discretionary-function immunity applies. In Little v.

Mississippi Department of Transportation, 129 So. 3d 132, 138 (¶ 10) (Miss. 2013), the

Court held that it is the function being fulfilled, rather than the act performed in furtherance

of that function, to which discretionary-function immunity does or does not attach. The Court

in that case determined that, because the function of roadway maintenance was mandated by

statute,2 that function was ministerial and immunity did not apply, despite the discretion the

Mississippi Department of Transportation enjoyed in deciding how and when it would

perform the acts of road maintenance. Id. (¶¶ 10-11). In that sense, the Court found that the

discretion in deciding whether to exercise a function or duty is where immunity attaches,

rather than the discretion in deciding how to do it.

¶21. In reaching that decision, the Court did not rely upon the public-policy function test

at all. It relied instead upon the plain language of Section 11-26-9(1)(d), which clearly states

that immunity attaches either to functions or duties, not to acts. However, the Court did note

that ministerial acts can be rendered discretionary. “Because Section 65-1-65 requires the

Department to maintain and repair state highways, that duty–and all acts in furtherance of

that duty–are ministerial unless, as in Montgomery, another statute makes a particular act

2
See Miss. Code Ann. § 65-1-65 (Rev. 2012) (“It shall be the duty of the state
highway commission to have the state highway department maintain all highways. . . .”)

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discretionary.” Id. (¶ 11). Through that statement, the Little Court left one remnant of this

Court’s focus on acts rather than functions in its homeward journey toward our statute’s

language. We therefore take this opportunity to clarify that statement.

¶22. While immunity attaches to functions or duties, it is conspicuously obvious that

governmental entities and their employees engage in their respective functions and duties

only through their acts. Accordingly, all acts performed in furtherance of a discretionary

function or duty are themselves entitled to immunity. Our holding in Little stands for the

principle that all acts in furtherance of a ministerial function lack immunity notwithstanding

that the act itself may involve an element of discretion. That said, while one statute may

render a broad function ministerial, another statute or regulation may render a duty involved

with that function discretionary, thus allowing the performance of such a duty to enjoy

immunity.3 And clearly, the converse must be true, such that narrower duties encompassed

in a broad discretionary function may be rendered ministerial through statute or regulation.

Accordingly, although Little requires us to look at the broad governmental function to

determine whether it is discretionary, it still is necessary to examine any narrower duty that

may have formed the basis of the claim against the governmental entity to determine whether

that particular duty has been rendered discretionary or ministerial by statute or regulation.

This was unnecessary in Little, as the Legislature already had affirmatively created a

3
Such was recognized by this Court in Montgomery. “Occasionally . . . the
Legislature will mandate that a political subdivision fulfill some particular function, but then
specifically set forth that some portion or aspect of that function is discretionary. When that
happens, acts fulfilling the discretionary portion of the governmental function enjoy
immunity.” Miss. Transp. Comm’n v. Montgomery, 80 So. 3d 789, 798 (¶ 31) (Miss. 2012).

12
ministerial duty to maintain the roads through its enactment of Section 65-1-65. However,

many other situations in which this issue arises will not be so easily determined.

¶23. This Court has examined the broad governmental function implicated by the suit to

determine whether immunity applied, rather than the specific activity involved, in several

prior cases. In the pre-Little case of Pratt, a plurality of the Court determined that a

municipality was entitled to discretionary-function immunity for a suit based upon the

alleged improper placement of nonslip tape on temporary airstairs at a municipal airport.

Pratt, 97 So. 3d at 75-76 (¶ 19). The plurality opined that the act of placing the tape on the

stairs was performed in furtherance of the discretionary function of a municipality’s

operation of an airport. Id. at 72 (¶ 10). The parties in that case had agreed that placing

nonslip tape on airstairs “was not a ministerial function, as there [we]re no laws or

regulations pertaining to th[at] activity.” Id. The plurality concluded that, “barring a rule or

regulation pertaining to a certain activity, decisions that are part of the airport’s day-to-day

operations are also discretionary.” Id. Importantly, the plurality noted “that there are many

laws, rules, and regulations pertaining to aviation and airports, so not every day-to-day

decision or activity at an airport will be discretionary.” Id. at 73 (¶ 14).

¶24. While it is true, as the dissent contends, that the plurality in Pratt applied the public-

policy function test, it was clear that the overarching discretion involved with operating an

airport was the dispositive factor in finding immunity. The plurality held that certain day-to-

day decisions such as the placement of nonslip tape on airstairs fell “under the overall

operation of the airport.” Id. at 75 (¶ 18). The regional airport authority’s “operation of the

airport involve[d] social and economic policy considerations, satisfying the second part of

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the public-policy function test.” Id. (emphasis added). Any concept of the sort of policy

decisions implicit in deciding how to place nonslip tape on airstairs was completely

subsumed by the fact that the decision to operate an airport was discretionary and implicated

economic policy considerations. Clearly, this Court looked at the broad governmental

function of airport operation implicated by the suit when it determined that discretionary-

function immunity applied, rather than analyzing the specific activity of placing nonslip tape

on stairs.

¶25. Further, in City of Jackson v. Doe ex rel. J.J., 68 So. 3d 1285, 1288 (¶ 12) (Miss.

2011), in which Chief Justice Waller joined the majority opinion, this 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.4 Instead, the Court stated that the “creation and operation of a city

park is within the discretion of the municipality[,]” and thus immunity applied. Id. 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. So, while the dissent in the present case may argue

that this approach arises from some novel understanding of the law, in actuality, this Court

has been focusing on the function, rather than on the act, for some time now.

4
The opinion in Doe clearly states that the plaintiffs alleged that their children “were
injured because the defendants had failed to maintain the park in a reasonably safe
condition.” City of Jackson v. Doe ex rel. J.J., 68 So. 3d 1285, 1287 (¶ 3). The Court did
not examine any specific activity which could have prevented the injury alleged, but simply
and directly determined that the overall operation of a city park was a discretionary function.
Id. at 1288 (¶ 11).

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¶26. In Pratt, Montgomery, and Little, this Court recognized that, although a broad

function, such as the operation of an airport, may be discretionary, or that road maintenance

may be ministerial, within those functions may lie more narrowly defined duties which may

be rendered ministerial or discretionary through other legislative enactments or through

regulations. Accordingly, the language in Little which provides that the Court must look only

at the function can be misunderstood. The Court first must consider the broadest function

involved in order to make a baseline determination of whether the overarching function is

discretionary or ministerial. The Court then must examine any narrower duty associated with

the activity at issue to determine whether a statute, regulation, or other binding directive

renders that particular duty a ministerial one, notwithstanding that it may have been

performed within the scope of a broader discretionary function.

¶27. For example, in the context of Pratt, operators of an airport are, of course, required

to conduct security screenings of passengers who are attempting to board airplanes. A

municipality’s decision to operate an airport may be discretionary; but once that discretion

has been exercised to operate the airport, the municipality must comply with security

regulations promulgated by the Transportation Security Administration. In this way, it is

useful to think of the operation of an airport as an overarching discretionary function that

shelters several narrower functions or duties, many of which, such as the provision of

security and compliance with federal security regulations, are ministerial.

¶28. Because sovereign immunity attaches when the governmental function involved is

discretionary, the plaintiff bears the burden of proving that the narrower function or duty at

issue has lost its discretionary-function immunity. Therefore, we hold that a plaintiff may

15
defeat sovereign immunity, even when a governmental entity’s act furthered a discretionary

function or duty, when the plaintiff proves that the act also furthered a more narrow function

or duty which is made ministerial by another specific statute, ordinance, or regulation

promulgated pursuant to lawful authority.

¶29. Chief Justice Waller would have us overrule our recent holding in Little, a decision

which commanded the votes of seven members of this Court. The Chief Justice’s opinion is

well reasoned in its application of the public-policy function test, and its logic is not without

appeal. Would that it were that simple. However, we are bound by the explicit language of

the Mississippi statute which establishes discretionary-function immunity. See Miss. Code

Ann. § 11-46-9(1)(d) (Rev. 2012).

¶30. The question is whether–as Chief Justice Waller posits–immunity attaches to

discretionary acts; or–as the majority holds–immunity attaches to the acts committed in the

exercise of discretionary functions. To settle the issue, one need only consider the language

of the statute that is quoted in the Waller opinion. He writes: “Section 11-46-9(1)(d) clearly

requires this Court to look at the specific activity in question, because it is the performance

of a discretionary function that is guaranteed immunity.” The word “discretionary” is an

adjective that modifies the noun “function.” The Chief Justice insists that “discretionary”

modifies the noun “act.” But neither the word “acts” nor the phrase “discretionary acts” is

found in the subsection establishing discretionary-function immunity. See Miss. Code Ann.

§ 11-46-9(1)(d) (Rev. 2012).

¶31. The confusion stems from the fact that functions can be furthered only through

engagement in acts. The statute grants immunity “based upon the exercise or performance

16
or failure to exercise or perform a discretionary function or duty. . . .”Id. How does one do

what the statute requires? That is to say, how does one “exercise or perform” a discretionary

function? The answer, of course, is by engaging in acts. And in granting immunity, the

statute draws no distinction between discretionary acts and mandatory acts, as long as the

acts are undertaken in the performance of “a discretionary function or duty. . . .” Id. So it is

the nature of the function that must be determined, and not the nature of the act.

¶32. Further, Chief Justice Waller relies on federal cases applying the two-part public-

function test created by the United States Supreme Court in its interpretation of the Federal

Tort Claims Act, 28 U.S.C. § 2680 (Rev. 2009). That Court has explained that the application

of the public-function test will necessitate an analysis of an act involving some discretion to

determine whether a particular act shares the immunity of the function it furthers. Were

Mississippi to maintain that test, the federal precedent that the Chief Justice cites might be

persuasive. But the Mississippi statute’s explicit language requires us to abandon the public-

function test, because its language does not limit the immunity enjoyed in the exercise of a

discretionary function to discretion involving policy judgments. Instead, the statute requires

only that the discretion be exercised in the course and scope of the entity or employee’s

employment or duty.

¶33. Now, in the case before us, Brantley alleges that he was injured when he was

improperly removed from an ambulance and caused to fall to the ground. We must determine

what function the governmental entity, in this case the City, was performing. Clearly, the

overarching function being performed was the operation of a city-run ambulance service. The

Legislature has declared that a municipality, in its discretion “and upon finding that adequate

17
public ambulance service would not otherwise be available, may own, maintain, and operate

a public ambulance service as a governmental function, fix and collect charges therefor, and

adopt, promulgate and enforce reasonable rules and regulations for the operation of said

service.” Miss. Code Ann. § 41-55-1 (Rev. 2013). So, when a city determines that inadequate

ambulance service is available within its corporate limits, it may, in its discretion, own,

maintain, and operate an ambulance service. The function of operating an ambulance service

explicitly is discretionary, according to state statute. Accordingly, all acts in furtherance of

that function are presumptively discretionary.

¶34. However, the Court now must also consider the fact that, once a municipality has

decided to operate and maintain its own ambulance service, it is subject to several ministerial

statutes and regulations which remove the municipality’s discretion from many functions and

duties and render such functions and duties ministerial.5 In this case, the provision of

ambulance services falls completely under the ambit of the State Board of Health.

¶35. The Board of Health is wholly responsible for regulating emergency services in

Mississippi.

The State Board of Health shall establish and maintain a program for the
improvement and regulation of emergency medical services (hereinafter EMS)
in the State of Mississippi. The responsibility for implementation and conduct
of this program shall be vested in the State Health Officer of the State Board
of Health along with such other officers and boards as may be specified by law
or regulation.

5
In a similar way, persons may exercise their discretion in whether to have a child.
However, once that child is born, there are certain nondelegable and mandatory duties that
the parent must peform.

18
Miss. Code Ann. § 41-59-5(1) (Rev. 2013). The rules governing the operation of emergency

services require absolute compliance.6 The governing authorities of Horn Lake have no

choice but to adhere to the mandatory edicts of the State Board of Health governing the

operation of its ambulance service. A city must obtain a license and permit to operate

ambulances on the streets and highways of Mississippi,7 it must submit its ambulance service

to inspections at least twice a year,8 and it must utilize ambulances that conform to the

ambulance standards dictated by the Board of Health. 9 The public ambulance service must

be staffed by certified emergency medical technicians (“EMTs”) who have been certified

according to the “board’s approved emergency medical technical training program,” 10 and

the board has exclusive authority for developing the EMT training program.11 The Board of

Health is further empowered “to suspend or revoke a license whenever it determines that the

holder no longer meets the requirements prescribed for operating an ambulance service.”

Miss. Code Ann. § 41-59-17(1) (Rev. 2013).

6
“The board shall provide for the regulation and licensing of public and private
ambulance service, inspection and issuance of permits for ambulance vehicles, training and
certification of EMS personnel, including drivers and attendants, the development and
maintenance of a statewide EMS records program, development and adoption of EMS
regulations, the coordination of an EMS communications system, and other related EMS
activities.” Miss. Code Ann. § 41-59-5(2) (Rev. 2013).
7
Miss. Code Ann. § 41-59-9 (Rev. 2013).
8
Miss. Code Ann. § 41-59-15 (Rev. 2013).
9
Miss. Code Ann. § 41-59-25 (Rev. 2013).
10
Miss. Code Ann. § 41-59-33 (Rev. 2013). In that sense, the duty to have properly
trained EMTs would be a ministerial one.
11
Miss. Code Ann. § 41-59-31 (Rev. 2013).

19
¶36. In other words, once a city has decided to operate an ambulance service, many aspects

of the operation of that service are dictated to the city by the Board of Health, and

noncompliance with those mandatory regulations can result in the revocation of the city’s

authority to operate that service. The Mississippi Administrative Code provides several

mandatory requirements for the licensure of ambulance services, individual ambulances,

emergency medical technicians, and ambulance drivers. See generally Miss. Admin. Code

15-12-31. Accordingly, this Court must look closely at any of the narrower functions or

duties underlying the claim at issue and determine whether a statute or other regulation

removes it from the umbrella of discretionary function immunity.

¶37. Here, Brantley alleges that he was improperly unloaded from an ambulance and

dropped on the ground. On the one hand, it would seem that the duty incumbent upon

ambulance services of actually delivering someone to a hospital via ambulance would

require, without discretion, the duty of actually removing that person from the ambulance

safely. However, this Court does not know whether the emergency medical technicians, as

a part of their training, or under some other duty established by regulation or ordinance, were

required or trained how to fulfill the duty of unloading a patient from an ambulance safely.

And, as pointed out by Brantley in his supplemental brief, he does not know either. Summary

judgment was granted on the theory of fire-protection services immunity. The trial court did

not consider discretionary-function immunity, and the plaintiff did not tailor his discovery

to address possible rules or regulations that would make the duty to remove someone safely

from an ambulance a ministerial one. If such a regulation exists, the plaintiff will be able to

proceed on his claim. If not, Horn Lake will be entitled to discretionary-function immunity.

20
 CONCLUSION

¶38. Stephen Lowery was not engaged in an activity related to fire-protection services

when the alleged injury to William Brantley occurred. Accordingly, we hold that the

exemption provided by Section 11-46-9(1)(c) is inapplicable in this case, and summary

judgment as granted by the DeSoto County Circuit Court on those grounds was

inappropriate.

¶39. The City of Horn Lake’s operation of an ambulance service is a discretionary

function. As such, acts performed as part of its engagement in such a function generally

entitle it to discretionary-function immunity pursuant to Section 11-46-9(1)(d). However,

when engaged in that function, several duties involved with the operation of the ambulance

service are ministerial, as the service is closely regulated by the State Board of Health

through its administrative regulations. Because this Court has injected the aspect of

discretionary-function immunity into the proceedings, the plaintiff has had no opportunity

to tailor his discovery or strategy to address the possibility of a rule, regulation, or statute

which may render the duty of removing a person from an ambulance a ministerial one, and

thus could remove such duty from the umbrella of discretionary-function immunity. On

remand, if the plaintiff can prove that the defendant was fulfilling a function or duty

mandated by a specific statute, ordinance, or regulation promulgated pursuant to lawful

authority, then he may proceed with his claim. Accordingly, we reverse the grant of summary

judgment by the DeSoto County Circuit Court, and remand for further proceedings consistent

with this opinion.

¶40. REVERSED AND REMANDED.

21
 DICKINSON, P.J., LAMAR, KING AND COLEMAN, JJ., CONCUR.
RANDOLPH, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION. WALLER, C.J., CONCURS IN PART AND IN RESULT
WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.,
CHANDLER AND PIERCE, JJ.

WALLER, CHIEF JUSTICE, CONCURRING IN PART AND IN RESULT:

¶41. I fully concur with the majority’s holding that Horn Lake is not entitled to immunity

under Section 11-46-9(1)(c) in this case. I also agree with the majority’s ultimate conclusion

that this case must be reversed and remanded to the trial court for further proceedings.

However, I do not agree with the majority’s position that, on remand, the trial court must

make a threshold determination of the applicability of Section 11-46-9(1)(d), the

discretionary-function exception, as I believe that provision does not apply in this case. I

write separately to state what I believe to be the proper analysis for determining the

applicability of the discretionary-function exception.

¶42. The MTCA’s discretionary-function exception is patterned on federal law. The

Federal Tort Claims Act (FTCA) was enacted roughly forty years prior to the enactment of

the MTCA. The FTCA waived the federal government’s sovereign immunity against claims

“arising or resulting from the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employment[.]” See 28 U.S.C. §

2679(b)(1) (1988). Like the MTCA, the FTCA contains numerous exceptions to this waiver

of immunity. See 28 U.S.C. § 2680 (2006). Among these exceptions is the so-called

discretionary-function exception, which provides governmental entities and their employees

acting in the scope of their employment with immunity from claims “based upon the exercise

or performance or the failure to exercise or perform a discretionary function or duty on the

22
part of a federal agency or an employee of the Government, whether or not the discretion

involved be abused.” 28 U.S.C. § 2680(a) (2006).

¶43. In the 1980s, the United States Supreme Court formulated a two-part “public-policy

function test” for determining the application of discretionary-function immunity. See

Gaubert v. United States, 499 U.S. 315, 322-23, 111 S. Ct. 1167, 113 L. Ed. 2d 33d (1991).

This test is a manifestation of the legislative intent behind the discretionary-function

exception, which is to “prevent ‘second-guessing’ of legislative and administrative decisions

grounded in social, economic, and political policy through the medium of an action in tort.”

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.

797, 813-14, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984) (emphasis added). The United States

Supreme Court and the federal circuit and district courts continue to utilize this test to this

day.

¶44. In 1993, the Mississippi Legislature abrogated the state’s prior common-law and

statutory sovereign immunity through the enactment of the MTCA. See Miss. Code Ann. §

11-46-5(1) (Rev. 2012). The provisions of the MTCA parallel those of the FTCA, allowing

claims “arising out of the torts of such governmental entities and the torts of their employees

while acting within the course and scope of their employment.” See id. Of particular

importance to this case, the Legislature also enacted a discretionary-function exception that

is identical to the one found in the FTCA. Compare Miss. Code Ann. § 11-46-9(1)(d) (Rev.

2012) with 28 U.S.C. § 2680(a). The MTCA’s discretionary-function provision provides

immunity against claims “[b]ased upon the exercise or performance or failure to exercise or

perform a discretionary function or duty on the part of a governmental entity or employee

23
thereof, whether or not the discretion be abused.” Miss. Code Ann. § 11-46-9(1)(d) (Rev.

2012).

¶45. In 1999, this Court adopted the United States Supreme Court’s public-policy function

test as a means of analyzing the MTCA’s discretionary-function exception, recognizing that

the MTCA exception was patterned on the identical FTCA exception. See Jones v. Miss.

Dep’t of Transp., 744 So. 2d 256, 260 (Miss. 1999) (citing Gaubert, 499 U.S. at 322),

abrogated on other grounds by Strange ex rel. Strange v. Itawamba Cnty. Sch. Dist., 9 So.

3d 1187, 1192 (Miss. 2009). Since then, this Court has applied the public-policy function

test to determine whether the discretionary-function exception applies to a given case by

looking to the governmental conduct that gave rise to the plaintiff’s claim. See, e.g., Miss.

Dep’t of Mental Health and Ellisville State Sch. v. Shaw, 45 So. 3d 656, 659 (Miss. 2010)

(“Simply put, discretionary acts which enjoy immunity are those acts which promote some

social, economic, or political policy.”) (emphasis added). Based on the almost identical

language of the MTCA and FTCA, I believe there is a practical and rational basis for the

Mississippi Supreme Court to interpret the MTCA’s discretionary-function exception as the

United States Supreme Court has done for its identically worded federal counterpart.

Consistency and clarity should be the watchwords in analyzing this heavily litigated area of

law.

¶46. Recently, though, this Court created a distinction between governmental “acts,” and

“functions,” holding that “[i]t is the function of a governmental entity – not the acts

performed in order to achieve that function – to which immunity does or does not ascribe

under the MTCA.” See Little v. Miss. Dep’t of Transp., 129 So. 3d 132, 138 (Miss. 2013).

24
The majority asserts that this Court’s holdings in Pratt v. Gulfport-Biloxi Regional Airport

Authority, 97 So. 3d 68 (Miss. 2012), and City of Jackson v. Doe ex rel. J.J., 68 So. 3d 1285

(Miss. 2011), also support the proposition that this Court must look solely to the broad

governmental function, rather than the conduct giving rise to the plaintiff’s claim, in

determining whether discretionary-function immunity applies. But each of these cases is

distinguishable. The plurality in Pratt actually applied the public-policy function test to the

specific governmental conduct in question – an employee’s placement of nonslip tape on a

staircase – and found it to be discretionary. Pratt, 97 So. 3d at 74-75. And Doe is

completely inapposite and inapplicable to the instant case. In Doe, the governmental

function and the conduct giving rise to the plaintiff’s claim were one and the same – the City

of Jackson’s decision to operate a public park. Doe, 68 So. 3d at 1289. There was no

narrower governmental conduct to which the public-policy function test could be applied,

because the plaintiff’s injuries were caused by a private third party. The Doe majority

correctly held that the City of Jackson’s decision to create and operate a public park met both

prongs of the public-policy function test because that decision was not mandated by any law

and was guided only by the policy of promoting “the public interests and welfare.” Id. at

1288. Horn Lake’s decision to provide ambulance services to its residents can be likened to

the City of Jackson’s decision to create a public park, but such a decision is not at issue in

the instant case.

¶47. Section 11-46-9(1)(d) clearly requires this Court to look at the specific activity in

question, because it is the performance of a discretionary function that is guaranteed

immunity. See Miss. Code Ann. 11-46-9(1)(d) (Rev. 2012). I would hold that our analysis

25
of discretionary-function immunity must focus on the conduct giving rise to the plaintiff’s

claims – in this case, the alleged negligent operation of a stretcher. The contrary assertion,

that we must look at the“function” or “duty” of the operation of a stretcher, is a distinction

of semantics rather than substance. Thus, I believe the proper course is for the Mississippi

Supreme Court to apply the public-policy function test in the manner prescribed by the

United States Supreme Court.

¶48. As to the first prong of the public-policy function test, “it is the nature of the conduct,

rather than the status of the actor,” that governs the application of the exception. Varig

Airlines, 467 U.S. at 813. “[I]f the employee’s conduct cannot appropriately be the product

of judgment or choice, then there is no discretion in the conduct for the discretionary function

exception to protect.” Berkovitz, 486 U.S. at 536. For example, the first prong is not

satisfied if a “statute, regulation, or policy specifically prescribes a course of action for an

employee to follow,” because “the employee has no rightful option but to adhere to the

directive.” Id. at 537. See Little v. Miss. Dep’t of Transp., 129 So. 3d 132, 138 (Miss. 2013)

(“Because Section 65-1-65 requires the Department to maintain and repair the state

highways, that duty – and all acts in furtherance of that duty – are ministerial unless . . .

another statute makes a particular act discretionary.”).

¶49. In this case, with respect to the first prong of the public-policy function test, Brantley

has not presented any evidence that his injury was the result of a violation of some

mandatory course of action by the EMT. On this issue, it is instructive to look to the statutes

and regulations governing the provision of emergency services to determine if the Legislature

has prescribed a specific course of action in this type of case. See Berkovitz, 486 U.S. at 537.

26
See also Gaubert, 499 U.S. at 324 (“If the employee violates [a] mandatory regulation, there

will be no shelter from liability because there is no room for choice and the action will be

contrary to policy.”) However, the nonexistence of a mandatory statute or regulation does

not automatically equate to immunity in every case, because this Court still must analyze the

conduct in question under the second prong of the public-policy function test. See Shaw, 45

So. 3d at 659 (“Governmental acts can be discretionary, ministerial, or neither . . . . Just

because a governmental act was not ministerial does not mean it was discretionary.”).

¶50. If the conduct in question meets the first prong of the test, the court must then

determine “whether that judgment is of the kind that the discretionary function exception was

designed to shield.” Gaubert, 499 U.S. at 323 (citing Berkovitz, 486 U.S. at 537). The

purpose of the discretionary-function exemption is to “prevent ‘second-guessing’ of

legislative and administrative decisions grounded in social, economic, and political policy

through the medium of an action in tort.” Varig Airlines, 467 U.S. at 813-14. For example,

the United States Supreme Court has applied the FTCA’s discretionary-function exception

to the Federal Aviation Administration’s procedures for inspecting and certifying aircraft,

because those actions represent a policy determination as to how best to “accommodat[e] the

goal of air transportation safety and the reality of finite agency resources.” Id. at 820. The

Court in Varig Airlines held that, in implementing the agency’s inspection and certification

procedures, FAA employees had the discretion to “make policy judgments regarding the

degree of confidence that might reasonably be placed in a given manufacturer, the need to

maximize compliance with FAA regulations, and the efficient allocation of agency

resources.” Id. On the other hand, “[t]here are obviously discretionary acts performed by

27
a Government agent that are within the scope of his employment but not within the

discretionary function exception because these acts cannot be said to be based on the

purposes that the regulatory regime seeks to accomplish.” Gaubert, 499 U.S. at 325 n.7. As

an example of a discretionary act that would not be afforded discretionary-function

immunity, the Court provided the hypothetical situation where a government employee

negligently crashed into another vehicle while driving on a mission connected with her work

duties. Id. “Although driving requires the constant exercise of discretion, the official’s

decisions in exercising that discretion can hardly be said to be grounded in regulatory

policy.” Id.

¶51. The primary focus of the second prong of the test is on “the nature of the actions taken

and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325. In this

regard, the instant case is analogous to Fang v. United States, 140 F.3d 1238, 1241-42 (9th

Cir. 1998), where the Ninth Circuit Court of Appeals held that the discretionary-function

exception of the FTCA did not apply to a claim based on the negligent provision of medical

treatment by employees of the National Park Service. In Fang, the decedent was traveling

through a national park when her car ran off the road and plummeted more than 200 feet

down the side of a mountain. Id. at 1240. Two National Park Service emergency personnel

arrived at the scene shortly thereafter and provided medical assistance to the decedent. Id.

Unfortunately, the decedent died as a result of her injuries. Id. The decedent’s wrongful-

death beneficiaries filed suit against the United States, claiming the EMTs had negligently

failed to stabilize the decedent’s broken spine and to render proper CPR. Id. In response,

the government moved for summary judgment, arguing that it was immune from suit under

28
the discretionary-function exception of the FTCA. Id. The district court granted the

government’s motion for summary judgment, and the plaintiff appealed to the Ninth Circuit

Court of Appeals. Id.

¶52. On appeal, the Ninth Circuit reversed the district court’s grant of summary judgment

to the government, holding that a “mere medical error or mistake” is not the type of policy-

driven decision the discretionary-function exception was designed to protect. Id. at 1241.

The Ninth Circuit found that the discretionary-function exception would provide immunity

for the National Park Service employees’ regulatory decisions regarding the type of

equipment to be kept at various sites throughout the park or the required level of training of

the park’s emergency personnel, because those decisions require the use of policy-based

judgment in determining how to best allocate limited government resources. Id. at 1241. On

the other hand, the court reasoned,

[O]nce the designated EMTs arrive at an accident scene and begin using the
equipment and administering medical care, the policy shield of the
discretionary function exception disappears. Whether an EMT properly
applies a splint, administers CPR, or transports a patient has nothing to do with
the allocation of policy considerations discussed above.

Id. at 1242. Applying the public-policy function test to the plaintiff’s claims, the Ninth

Circuit found that the EMTs’ decisions concerning the stabilization of the decedent’s spine

and their methods of performing CPR involved personal choice and judgment, as no statute,

regulation, or National Park Service policy demanded a specific course of action. Id. at

1243. However, the EMTs’ actions failed the second prong of the test, because no social,

economic, or political policy is implicated by the decision of whether and how to stabilize

a person’s spine or perform CPR. Id. Notably, the Ninth Circuit affirmed the district court’s

29
holding that the discretionary-function exception barred the plaintiff’s claim that the National

Parks Service was negligent in failing to provide additional medical equipment, such as

cervical collars and backboards, at all emergency stations within the park. Id. The National

Park Service’s internal regulations did not require this particular equipment to be kept at the

emergency station where the EMTs in question were located, and the court held that the

plaintiff could not challenge this policy-based decision regarding how to allocate emergency

equipment throughout the park. Id.

¶53. In this case, under the second prong of the public-policy function test, the decision by

Horn Lake to operate an ambulance service for the benefit of its citizens undoubtedly

involved the consideration of social and economic policy. However, this is not the conduct

that gave rise to Brantley’s suit. Applying this Court’s precedent and the Ninth Circuit’s

analogous reasoning in Fang to the instant case, it is clear that the conduct in question – an

EMT’s alleged negligent handling of Brantley’s stretcher – implicates no arguable economic,

social, or political policies. Brantley’s claim does not ask this Court to “second-guess” the

policy-based decisions of Horn Lake’s governmental authorities. On the contrary, Brantley’s

claim is based upon “an ordinary judgment made by EMTs in applying their training and

expertise to an emergency situation,” which the discretionary-function exception was not

meant to shield from liability. Fang, 140 F. 3d at 1243. Accordingly, I would hold that the

discretionary-immunity exception of the MTCA does not apply in this case. I would find that

the trial court erred in granting Horn Lake’s motion for summary judgment and would

remand this case for further proceedings.

RANDOLPH, P.J., CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.

30