COURT FROM WHICH APPEALED: SIMPSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 11/26/2013. TRIAL JUDGE: HON. EDDIE H. BOWEN. TRIAL COURT ATTORNEYS: EUGENE C. TULLOS, L. CLARK HICKS, JR.
FOR APPELLANT: L. CLARK HICKS, JR., R. LANE DOSSETT.
FOR APPELLEE: EUGENE C. TULLOS.
BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ. DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
WALLER, CHIEF JUSTICE
¶1. In this interlocutory appeal, the City of Magee challenges the Simpson County Circuit Court's denial of its motion for summary judgment against Connie Jones, arguing that Jones's claim is barred by the discretionary-function provision of the Mississippi Tort Claims Act (MTCA). We vacate the trial court's denial of Magee's motion for summary judgment and remand this case to the trial court for the parties to present evidence in light of this Court's new standard for applying discretionary-function immunity.
FACTS & PROCEDURAL HISTORY
¶2. On or about January 5, 2007, raw sewage entered Connie Jones's house through a shower drain and flooded several rooms of the house. On March 27, 2008, Jones filed suit against the City of Magee (" Magee" ) and two unnamed defendants, claiming that Magee had negligently installed and maintained the sewage lines providing service to her home, causing the sewage overflow. Jones asserted that her family had suffered both property damage and physical illnesses as a result of Magee's negligence.
¶3. On February 10, 2011, this Court handed down its opinion in Fortenberry v. City of Jackson, 71 So.3d 1196 (Miss. 2011), holding that a plaintiff's suit against the City of Jackson for negligent sewage-system maintenance was barred by the discretionary-function exception of the MTCA. In response to this decision, on October 1, 2013, Magee filed a motion for summary judgment, arguing that Fortenberry had resolved a dispositive issue of law. Magee argued that Jones's suit was barred by the MTCA's discretionary-function exception under Fortenberry because her claim was based on acts of sewage-system maintenance.
¶4. On November 26, 2013, after a hearing, the trial court issued an order denying Magee's motion for summary judgment. The trial court recognized that Section 21-27-189(b) of the Mississippi Code authorizes municipal authorities, in their discretion, to construct, operate, and maintain sewage systems. See Miss. Code Ann. § 21-27-189(b) (Rev. 2007). However, the trial court then held that, once Magee had chosen to operate a sewage system, it took on a ministerial duty to maintain the system properly. Therefore, the trial court found that Magee's maintenance of its sewer lines failed the first prong of the public-policy function test adopted by this Court in Jones v. Mississippi Department of Transportation, 744 So.2d 256 (Miss. 1999), because it did not involve an element of choice or judgment.
¶5. On December 17, 2013, Magee filed with this Court a petition for interlocutory
appeal and an emergency motion to stay the trial-court proceedings. On January 16, 2014, this Court granted Magee's petition for interlocutory appeal and issued an order staying the proceedings in the lower court. On appeal, Magee raises only one issue: whether the trial court erred in finding that Magee was not immune from suit under Section ...