COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 03/07/2012. TRIAL JUDGE: HON. LEE J. HOWARD.
ATTORNEY FOR APPELLANT: ADAM GRANT PINKARD.
ATTORNEY FOR APPELLEE: MARC DARREN AMOS.
KITCHENS, JUSTICE. DICKINSON, P.J., LAMAR, KING AND COLEMAN, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., CHANDLER AND PIERCE, JJ. WALLER, CHIEF JUSTICE, DISSENTING. RANDOLPH, P.J., CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.
¶1. Ted Boroujerdi's home and yard were flooded with sewage that backed onto his property in February 2009. Boroujerdi filed suit against the City of Starkville (" the City" ), alleging that he had suffered property damage and personal injuries as a result of the City's negligent maintenance of its sewage system. The trial court granted summary judgment for the City, finding that the maintenance of the sewage system is a discretionary function and that the City is immune from suit pursuant to Mississippi Code Section 11-46-9(1)(d) and this Court's plurality opinion in Fortenberry v. City of Jackson, 71 So.3d 1196 (Miss. 2011).
¶2. Boroujerdi appealed, arguing that the maintenance of the sewage system is ministerial and the City is not immune from suit, that summary judgment was therefore inappropriate, and that this Court should overrule its plurality opinion in Fortenberry. We reverse the trial court's grant of summary judgment in favor of the City. Recently, in Brantley v. City of Horn Lake, 152 So.3d 1106 (Miss. 2014), this Court overhauled its analysis of discretionary function immunity. Accordingly, we now must revisit our treatment of sewage-system maintenance as a discretionary function. We hold that, while the overall function of maintaining a sewage system may be discretionary, certain narrower functions and duties involved with sewage maintenance may be rendered ministerial through applicable statutes, regulations, and/or ordinances. Accordingly, we remand this case to the Circuit Court of Oktibbeha County for the plaintiff to address whether his premises flooded as a result of the City's fulfilling or its failing to fulfill a ministerial function or duty.
FACTS AND PROCEDURAL HISTORY
¶3. On February 27, 2009, the toilets, sinks, and tubs of Boroujerdi's home in Starkville overflowed from sewage backup after a heavy downpour of rain. Boroujerdi called the Starkville water and sewage department to fix the problem. He walked outside to meet with the workers, and as he was walking back to his house to show them the damage, he slipped and fell in the raw sewage that had covered his driveway. Boroujerdi alleges that he suffered serious injuries as a result of the fall. Boroujerdi brought suit against the City of Starkville, averring that its reckless and negligent failure properly to maintain the sewer system had proximately caused his physical injuries and damage to his property. He alleged that similar problems had occurred on his property previously, and that the City " had been put on notice of the problems but recklessly refused to make the necessary repairs." Boroujerdi sought compensation for medical bills and pain and suffering in the amount of $500,000.
¶4. The City moved for summary judgment, arguing that maintaining its sewage system is a discretionary function under Mississippi Code Section 21-27-189(b) and the City was therefore immune from suit pursuant to Mississippi Code Section 11-46-9(1)(d). The City attached an affidavit
from its mayor, Parker Wiseman, stating that, to his knowledge, the City had not violated any ordinance, state or federal regulation, or any waste-removal and treatment permit with respect to its sewage system. In response, Boroujerdi argued that " Starkville accepted the responsibility for repairing Plaintiff's sewage problems and thus owed Plaintiff a duty of reasonable care in their efforts." He did not cite any potential ordinance, state or federal regulation, or waste-removal or treatment permit, the violation of which may have caused his house and lot to be flooded with sewage.
¶5. The trial court granted the City's motion for summary judgment, citing this Court's then-recent holding in Fortenberry, which specifically held that a municipality is immune from suit for negligent maintenance of its sewage system under Section 11-46-9(1)(d) because maintaining such a system is a discretionary function of the municipality. See Fortenberry, 71 So.3d at 1204. Boroujerdi appealed, asking this Court to overrule its holding in Fortenberry and hold ...