IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01012-COA
BOBBIE JEAN LOWE APPELLANT
v.
CITY OF MOSS POINT, MISSISSIPPI, APPELLEE
A MUNICIPAL CORPORATION
DATE OF JUDGMENT: 06/09/2016
TRIAL JUDGE: HON. DALE HARKEY
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DAVID C. FRAZIER
ATTORNEYS FOR APPELLEE: AMY LASSITTER ST. PE’
JAMES EVERETT LAMBERT III
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 10/03/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
LEE, C.J., FOR THE COURT:
¶1. Bobbie Jean Lowe brought a suit against the City of Moss Point (the City) for an
injury she sustained while on municipal property. The Jackson County Circuit Court granted
the City’s motion for summary judgment, finding that the City was entitled to discretionary-
function immunity under Mississippi Code Annotated section 11-46-9(1)(d) (Rev. 2012).
Lowe now appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On October 20, 2012, Lowe attended a breast-cancer-awareness event called “Bras
Across the Bridge” held in Moss Point, Mississippi. During the course of the event, many
participants, including Lowe, congregated at Pelican Landing, a community rental space
owned by the City. After being at the event for a few hours, Lowe began to walk to her car
to leave when she stepped in a grass-covered hole, fell, and injured her ankle.
¶3. Lowe filed suit against the City, alleging that the City was negligent in its
maintenance of the lawn and facility at Pelican Landing, proximately causing Lowe’s
injuries. The City’s answer denied any negligence on its part and also asserted that it was
immune from suit under the Mississippi Tort Claims Act (MTCA). Miss. Code Ann. §§ 11-
46-1 to -23 (Supp. 2016). After the parties participated in limited discovery, the City filed
a motion for summary judgment, arguing that it was immune from suit specifically under
sections 11-46-9(1)(d) and (v). After a hearing on the motion, the trial court granted the
City’s motion for summary judgment, finding that the City was immune from suit under
section 11-46-9(1)(d). Lowe now appeals.
STANDARD OF REVIEW
¶4. The MTCA provides “that governmental entities and their employees shall be exempt
from liability in certain situations as outlined in the MTCA.” Brantley v. City of Horn Lake,
152 So. 3d 1106, 1108-09 (¶6) (Miss. 2014) (citing § 11-46-9). Whether governmental
immunity applies “is a question of law and is a proper matter for summary judgment.” Id.
(quoting Mitchell v. City of Greenville, 846 So. 2d 1028, 1029 (¶8) (Miss. 2003)). An
appellate court reviews the application of the MTCA under a de novo standard. Id. (citing
Lee v. Mem’l Hosp. at Gulfport, 999 So. 2d 1263, 1266 (¶8) (Miss. 2008)).
¶5. The grant or denial of summary judgment is also reviewed de novo. Mitchell v.
2
Ridgewood E. Apartments LLC, 205 So. 3d 1069, 1073 (¶13) (Miss. 2016). In viewing the
evidence in the light most favorable to the nonmoving party, summary judgment is proper
where “the pleadings, depositions, answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” Id. (quoting M.R.C.P. 56(c)).
DISCUSSION
¶6. The trial court found that the City was immune from suit under section 11-46-9(1)(d).
Section 11-46-9(1)(d) provides governmental entities with immunity when the function
performed is a discretionary one:
(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:
(d) 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[.]
Thus, the case hinges on whether the City’s lawn maintenance at Pelican Landing is a
discretionary function.
¶7. In Boroujerdi v. City of Starkville, 158 So. 3d 1106, 1112 (¶19) (Miss. 2015), the
Mississippi Supreme Court explained that a function is discretionary “[i]f the duty or activity
[that] 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[.]’” (Quoting Pratt v. Gulfport-Biloxi Reg’l
Airport Auth., 97 So. 3d 68, 72 (¶9) (Miss. 2012)). “[A]ll acts performed in furtherance of
a discretionary function or duty are themselves entitled to immunity.” Brantley, 152 So. 3d
3
at 1113 (¶22). In contrast, “[i]f the function is ministerial, rather than discretionary, there is
no immunity for the acts performed in furtherance of the function.” Little v. Miss. Dep’t of
Transp., 129 So. 3d 132, 136 (¶8) (Miss. 2013). “A ministerial function is one that is
‘positively imposed by law.’” Id. (quoting Pratt, 97 So. 3d at 72 (¶9)). Notwithstanding the
distinctions, “narrower duties encompassed in a broad discretionary function may be
rendered ministerial through statute or regulation.” Brantley, 152 So. 3d at 1113 (¶22).
¶8. To determine whether the City’s lawn maintenance at Pelican Landing is a ministerial
or discretionary duty, we must apply the following test as set forth in Brantley:
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.
Id. at (¶26).
¶9. Lowe asserts that lawn maintenance constitutes the broadest function involved here
and the ownership, operation, and care of Pelican Landing, the narrower function. Lowe,
however, confuses and inverts the two. In the instant case, the broadest function involved
is the City’s ownership and holding of Pelican Landing—the premises at issue. Mississippi
Code Annotated section 21-17-1(1) (Rev. 2015) provides, in pertinent part, that “[e]very
municipality . . . shall have [the] power . . . to purchase and hold real estate . . . for all proper
municipal purposes . . . .” Lowe argues that section 21-17-1, when read together with
Mississippi Code Annotated sections 21-17-3 (Rev. 2015 ), 21-17-5 (Supp. 2016), and 21-37-
4
3 (Rev. 2015), renders the care, management, and control of municipal property an
affirmative ministerial duty to which immunity does not apply. This is incorrect. Section 21-
17-1 empowers the City to purchase and hold real estate, such as Pelican Landing. It does
not require the City to do so. Similarly, section 21-17-5 provides municipalities with general
authority and jurisdiction in regard to the care, management, and control of their property.
Section 21-17-3 instructs that municipalities must exercise their powers lawfully. None of
the statutes cited by Lowe require or impose an affirmative duty on the City to purchase,
maintain, care, or control the property. Rather, the statutes empower the City with the
authority to do so. Thus, the overarching function—the City’s ownership and holding of
Pelican Landing—is a discretionary one.
¶10. Again, notwithstanding that the broader function is discretionary, the supreme court
has explained that
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. 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.
Miss. Transp. Comm’n v. Adams, 197 So. 3d 406, 412 (¶14) (Miss. 2016) (quoting Brantley,
152 So. 3d at 1113 (¶22)).
¶11. Lowe does not cite, and this Court does not find, any statute, regulation, or other
binding directive that imposes a duty on the City to maintain the grass, lawn, grounds, or
premises of its properties. Where a duty is not imposed by law, it is discretionary. City of
Natchez v. De la Barre, 145 So. 3d 729, 732 (¶12) (Miss. Ct. App. 2014). Thus, the City’s
5
maintenance of its lawn at Pelican Landing—the narrower duty at issue—is a discretionary
one. Curiously, Lowe admits as much in her brief before this Court: “To be sure, the
decision . . . of when and under what circumstances the [City] performs lawn maintenance
at Pelican Landing is a discretionary function.” Yet Lowe attempts to circumvent the
outcome of Brantley’s application by asserting that lawn maintenance is the broad
discretionary function, while the power to purchase, hold, care for, and control Pelican
Landing as municipal property is a narrower ministerial duty. The categorization is illogical
and lacks authoritative support.
¶12. Here, Lowe has wholly failed to meet the “burden of proving that the narrower
function or duty at issue has lost its discretionary-function immunity[,]” . . . as she has failed
to show “that the [discretionary] act also furthered a more narrow function or duty that is
made ministerial by another specific statute, ordinance, or regulation promulgated pursuant
to lawful authority.” Brantley, 152 So. 3d at 1115 (¶28). Both the governmental function
in this case and the activity at issue in furtherance of that function are discretionary, and
accordingly, are entitled to immunity. Thus, summary judgment in favor of the City pursuant
to section 11-46-9(d)(1) was proper. Because immunity has been established, it is
unnecessary for us to address the parties’ alternative arguments, which were, likewise, not
relied upon or addressed by the trial court.
¶13. AFFIRMED.
IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND
WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.
6
Bobbie Jean Lowe v. City of Moss Point, Mississippi, a Municipal Corporation
Combined Opinion