The opinion of the court was delivered by: Smith, Justice
DATE OF JUDGMENT: 10/13/97
TRIAL JUDGE: HON. KEITH STARRETT
COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED
MOTION FOR REHEARING FILED:
¶1. On October 9, 1995, the minor plaintiff/ appellant J.A. turned fourteen years old. J.A. is a student at Denman Middle School in the McComb School District. On that morning, J.A. was threatened by a fellow student, Matthew Garner, while in music class. J.A. told Mr. Dykes, a nearby teacher, of the threats. The teacher did nothing in response.
¶2. That afternoon, both J.A. and Matthew were in after-school detention. During this time, Matthew again threatened J.A. in front of the detention teacher, Mrs. Paul. As they left detention, Matthew followed J.A. across the school's baseball field. At this point, words were exchanged, and Matthew attacked J.A. Matthew struck him in the face and ordered him to perform oral sex. When J.A. resisted, Matthew continued to beat him and forced him to perform the act. The incident was witnessed by one student and later reported to a coach. Upon knowledge of the incident, J.A. was taken by his mother, L.W., to the hospital.
¶3. On January 9, 1997, L.W., individually and as next friend of her son J.A., brought suit in Pike County Circuit Court against the McComb Separate Municipal School District (the "School") and unknown John Does 1-5. L.W. alleges that the School was negligent in failing to maintain a safe environment; in failing to properly monitor its grounds; in failing to properly supervise its students; in failing to have a route of safe departure for detention students; and for other acts of negligence.
¶4. On March 21, 1997, the School filed a Motion to Dismiss on grounds that the Mississippi Sovereign Immunity Act, §§ 11-46-1 (Supp. 1998), immunized them from the suit. On June 24, 1997, L.W. responded to the motion to dismiss by denying the absolute immunity of the School, and alternatively, by claiming the School's purchase of liability insurance waived any immunity.
¶5. On October 13, 1997, Pike County Circuit Judge Keith Starrett granted the School's Motion to Dismiss pursuant to Miss.R.Civ.Proc. 12(b)(6). He stated that the statute immunizes the School for administrative action or inaction and/or failure to perform a discretionary duty. Furthermore, he held that T.M. v. Noblitt, 650 So.2d 1340 (Miss. 1995), cited by L.W., does not apply, because the cause of action in that case occurred prior to the enactment of the statute.
¶6. Aggrieved, L.W. now appeals to this Court and raises the following issues:
"I. WHETHER THE TRIAL COURT ERRED WHEN IT DISMISSED L.W.'S LAWSUIT BECAUSE DISCRETIONARY ACTS OF NEGLIGENCE WERE ALLEGED TOGETHER WITH A GENERAL ALLEGATION OF NEGLIGENCE. "II. WHETHER THE TRIAL COURT ERRED WHEN IT DISMISSED L.W.'S LAWSUIT BECAUSE SEVERAL OF THE ACTS OF NEGLIGENCE ALLEGED IN THE COMPLAINT WERE DISCRETIONARY. "III. WHETHER THE SOVEREIGN IMMUNITY PROTECTIONS OF SECTION 11-46-9 OF THE MISSISSIPPI CODE ANNOTATED ARE WAIVED WHEN A GOVERNMENTAL ENTITY PURCHASES LIABILITY INSURANCE IN EXCESS OF THE LIMITS IN SECTION 11-46-15."
¶7. A motion to dismiss under Miss.R.Civ.P. 12(b)(6) raises an issue of law. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990); Lester v. Engineering Co. v. Richland Water and Sewer Dist., 504 SO.2d 1185, 1187 (Miss. 1987). This Court conducts de novo review on questions of law. UHS-Quali-care, Inc. v. Gulf Coast Community Hosp., Inc., 525 So.2d 746, 754 (Miss. 1987).
¶8. When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Butler v. Bd. of Supervisors for Hinds County, 659 So.2d 578, 581 (Miss. 1995); Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss. 1990).
I. WHETHER THE TRIAL COURT ERRED WHEN IT DISMISSED L.W.'S LAWSUIT BECAUSE DISCRETIONARY ACTS OF NEGLIGENCE WERE ALLEGED TOGETHER WITH A GENERAL ALLEGATION OF NEGLIGENCE.
¶9. L.W. contends that her complaint was sufficient under notice pleadings, because she alleged negligence and demanded relief both generally and specifically. Therefore, she continues, if the trial court found some of those acts barred as discretionary duties under sovereign immunity, there still should remain sufficient ...