RANKIN COUNTY CIRCUIT COURT, HON. WILLIAM E. CHAPMAN III
ATTORNEYS FOR APPELLANT: CLARENCE TERRELL GUTHRIE III OMAR LAMONT NELSON
ATTORNEYS FOR APPELLEE: JOSEPH LEE ADAMS FRED M. HARRELL JR. BENJAMIN LYLE ROBINSON
BEFORE IRVING, P.J., ISHEE AND FAIR, JJ.
¶1. John Doe, on behalf of Jane Doe,  a minor, filed a negligence action in the Rankin County Circuit Court against the Rankin County School District (RCSD) in December 2009. In November 2011, RCSD w as granted summary judgment based on governmental immunity under the Mississippi Torts Claims Act (MTCA). John filed a motion for reconsideration of the decision. The motion was denied. John appeals, arguing: (1) the circuit court erred in granting summary judgment in favor of RCSD based on discretionary immunity, because genuine issues of material fact exist; and (2) the circuit court erred in denying John's motion for reconsideration, because RCSD had waived the affirmative defense of immunity and was not entitled to a judgment as a matter of law.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. On May 16, 2008, Jane, a ninth-grade student at Richland High School (RHS), a school under RCSD's authority, left the school's premises at approximately 1:30 p.m. and visited a nearby McDonald's restaurant. During her visit, Jane met Tyler Trigg, another RHS student, for the first time, and talked with him briefly. After leaving McDonald's, Jane, along with Trigg and three other students, returned to the RHS campus at approximately 3:11 p.m. Upon reaching campus, Trigg forced Jane onto an empty parked school bus and forced her to perform oral sex. Following the assault, Jane went to the restroom until school was dismissed at 3:14 p.m., and then boarded her assigned bus.
¶3. Jane first reported the incident on August 12, 2008, to her teacher, Beth Cook. Cook informed Judy Statham, the school counselor; William Sutton, the RHS principal; and Jane's parents of the incident. Sutton initiated an investigation into the matter. Subsequently, Trigg was transferred to the alternative school on August 15, 2008, and suspended from RHS on August 18, 2008, pending further investigation.
¶4. John, on behalf of Jane, filed a complaint on December 7, 2009, in the circuit court alleging severe and permanent mental and physical pain and suffering, emotional distress, medical expenses, and inconvenience due to the negligence of RCSD. John alleged RCSD, through its agents and employees acting within their scope of employment, had acted negligently by: (1) failing to provide adequate security at RHS; (2) failing to implement reasonable measures for the personal security and safety of Jane; (3) failing to warn Jane of the harm that she suffered; (4) failing to reasonably inspect and secure the premises from the foreseeable harm suffered by Jane. RCSD answered and alleged various defenses, including immunity under the MTCA.
¶5. Following discovery, RCSD moved for summary judgment arguing that the duty to provide a safe environment for students involves discretionary functions that provide RCSD with immunity under the MTCA. John countered arguing the actions of RCSD were ministerial and that the school failed to exercise ordinary care, thereby precluding it from receiving immunity under the MTCA. The circuit court granted summary judgment in favor of RCSD on November 16, 2011, based on governmental immunity under the MTCA. John responded with a motion for reconsideration arguing RCSD waived immunity by actively litigating the case for approximately eighteen months. John also requested clarification regarding discretionary functions under the MTCA.
¶6. The motion was denied. John now appeals arguing: (1) the circuit court erred by granting summary judgment premised on discretionary immunity; and (2) the circuit court abused its discretion in denying the motion for reconsideration when RCSD waived the affirmative defense of immunity.
STANDARD OF REVIEW
¶7. A grant of a motion for summary judgment is reviewed de novo by this Court. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶14) (Miss. 2009). In reviewing a grant of summary judgment, this Court must view the evidence "in the light most favorable to the party against whom the motion has been made." Id. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories[, ] and admissions on file, together with the affidavits, if any, show that there is no genuine issue ...