DATE OF JUDGMENT: 10/20/2011
ADAMS COUNTY CIRCUIT COURT HON. LILLIE BLACKMON SANDERS JUDGE
ATTORNEYS FOR APPELLANT: ROBERT O. ALLEN WILLIAM ROBERT ALLEN JOHN CHADWICK WILLIAMS
ATTORNEYS FOR APPELLEE: PHILIP ELMER CARBY EDGAR HYDE CARBY
¶1. Tina Bruce sued the Natchez-Adams School District (NASD) after she tripped over a section of conduit that protruded from the surface of a driveway in front of NASD's administrative building. After a bench trial, the Adams County Circuit Court awarded Bruce $488, 000 in damages. NASD appeals. According to NASD, it is immune to Bruce's claim under either the discretionary-function exemption or the dangerous-condition exemption of the Mississippi Tort Claims Act (MTCA). Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. In July 2008, Bruce visited NASD's administrative building in Natchez, Mississippi, to deliver a job application. As Bruce was walking across the concrete driveway in front of the administrative building, she tripped over a section of conduit that protruded more than an inch above the driveway's surface. At trial, Bruce testified that she had two bulging discs in her back and leg pain as a result of her fall. She attempted to alleviate her injuries through physical therapy and pain management. When those remedies produced unsatisfactory results, she underwent spinal surgery. Her necessary medical expenses exceeded $143, 000. The circuit court noted that Bruce will have to walk with a cane for the rest of her life. The circuit court further noted that Bruce was permanently impaired and has functional limitations and "work restrictions." Additionally the circuit court stated that Bruce "has endured pain and suffering and will continue to do so for the rest of her life" and "[h]er family life is altered."
¶3. The protruding conduit that caused Bruce's fall contained the power supply to a lit sign and architectural lighting in front of the administrative building. NASD had intended for the conduit to be recessed into an expansion joint in the driveway. But due to the length of the conduit, the pitch of the surface of the driveway, and continued vehicular traffic, the conduit tended to rise above the driveway.
¶4. Before Bruce tripped over the conduit, NASD had attempted to prevent the conduit from protruding above the surface of the driveway. Dr. Wayne Barnett, the former director of operations for NASD, testified that the conduit was a "slip, trip, and fall hazard, " so he "got the ball rolling to get it fixed." Willie Ellis, an electrician for NASD, attempted to prevent the conduit from protruding above the surface of the driveway by drilling a "spike" into the driveway and then bending it over the conduit to hold it in place. Dr. Barnett inspected Ellis's work and became satisfied that the conduit was no longer a trip hazard. However, Dr. Barnett also testified that he did not check on the conduit after his initial inspection to determine whether the "spike" was still preventing the conduit from protruding above the surface of the driveway. Over time, the conduit became dislodged from the "spike" and again protruded approximately two inches above the surface of the driveway.
¶5. NASD employees Isaac King and Jimmy Wilson testified that the conduit made a rattling noise when a car drove over it. They also noticed that the conduit was protruding above the surface of the driveway. They told NASD maintenance supervisor Demestra Winding about the protruding conduit at least once before Bruce fell.
¶6. As previously mentioned, NASD argued that it was entitled to immunity under the discretionary-function-exemption and the dangerous-condition-exemption provisions of the MTCA. The circuit court disagreed and awarded Bruce $488, 000 in damages. NASD appeals.
I. DISCRETIONARY-FUNCTION EXEMPTION
¶7. NASD argues that it was entitled to immunity under the discretionary-function exemption of the MTCA. In the context of a lawsuit alleging that a governmental entity is liable for negligence, the MTCA is a plaintiff's exclusive remedy. S. Cent. Reg'l Med. Ctr. v. Guffy, 930 So.2d 1252, 1255 (¶7) (Miss. 2006). "Questions concerning the application of the MTCA are reviewed de novo." Miss. Dep't of Pub. Safety v. Durn, 861 So.2d 990, 994 (¶7) (Miss. 2003). "Immunity is a question of law." Id. However, we will not disturb the circuit court's factual findings if there is substantial credible evidence to support them. City of Natchez v. Jackson, 941 So.2d 865, 869 (¶9) (Miss. Ct. App. 2006).
¶8. The discretionary-function exemption is set forth in Mississippi Code Annotated section 11-46-9(1)(d) (Rev. 2012), which provides:
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, whether or not the discretion be abused[.]
"A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee." Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 795 (¶19) (Miss. 2012). "A duty is ministerial if it is positively imposed by law and required to be performed at a specific time and place, removing an officer's or entity's choice or judgment." Id.
¶9. In a recent opinion, the Mississippi Supreme Court significantly changed the manner in which we are to analyze questions regarding the discretionary-function exemption to the MTCA. Overruling nine prior decisions, the supreme court held 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." Little v. Miss. Dep't of Transp., 129 So.3d 132, 138 (¶10) (Miss. 2013). In other words, we are required to "look at the function performed – not the acts that are committed in furtherance of that function – to determine whether immunity exists." Id. at 136 (¶8). In Little, the function at issue was the Mississippi Department of Transportation's statutory obligation to maintain and repair state highways.
Id. at 134 (¶2). The applicable statute in Little provides:
It shall be the duty of the state highway commission to have the state highway department maintain all highways which have been or which may be hereafter taken over by the state highway department for maintenance in such a way as to afford convenient, comfortable, and economic use thereof by the public at all times. To this end it shall be the duty of the director, subject to the rules, regulations[, ] and orders of the commission as spread on its minutes, to organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained state highway system, so that [the] highways may be kept under proper maintenance and repair at all times.
Miss. Code Ann. § 65-1-65 (Rev. 2012). The supreme court held that because the Department had a statutory duty "to maintain and repair state highways, that duty – and all acts in furtherance of that duty – are ministerial unless . . . another statute makes a particular act discretionary." Little, 129 So.3d at 138 (¶11). As a result, the supreme court concluded that "[t]he Department [was] not entitled to discretionary-function immunity for failure to properly maintain and repair highways because that function is ministerial." Id.
¶10. NASD argues that it had no statutory duty to remedy the exposed conduit. It reasons that it could use its judgment in determining when and how to alleviate the protruding conduit. But Bruce claims that Mississippi Code Annotated section 37-7-301(d) (Rev. 2013) supports her position that NASD had a ministerial duty to remedy the exposed conduit. We agree.
¶11. Section 37-7-301(d) states that a school board is "responsib[le] for the erection, repairing[, ] and equipping of school facilities and . . . necessary school improvements[.]" Bruce's injuries were caused by the protruding conduit that powered the administrative building's sign and its architectural lighting. To prevent Bruce's injuries, NASD would have had to repair the protruding conduit. It is reasonable to conclude that the NASD administrative building is a "school facility." The conduit that powers the administrative building's sign and a portion of its external lighting, which is located immediately outside of the main entrance to the building, is an integral part of that "school facility."
¶12. Following Little, we find that because NASD has a statutory duty to repair a school facility, all acts in furtherance of that duty are ministerial. Furthermore, the repair of improperly protruding conduit that poses a safety hazard necessarily involves the repair of a school facility. It follows that NASD had a ministerial duty to repair the protruding conduit, and it is not entitled to discretionary immunity. Accordingly, the circuit court ...