KENNETH BAILEY AND ELIZABETH LEE SHUTZE, AS WRONGFUL DEATH BENEFICIARIES OF BERTHA ELIZABETH BAILEY, DECEASED APPELLANTS
CITY OF PEARL, MISSISSIPPI APPELLEE
OF JUDGMENT: 09/12/2018
COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN III TRIAL JUDGE
ATTORNEYS FOR APPELLANTS: STACY EVERETT PEPPER STEVEN CRAIG
ATTORNEYS FOR APPELLEE: WALKER REECE GIBSON REBECCA SUZANNE
BARNES, C.J., McDONALD AND C. WILSON, JJ.
The Rankin County Circuit Court granted the City of
Pearl's (Pearl) motion to dismiss a wrongful death case
brought under the Mississippi Tort Claims Act (MTCA) by
Kenneth Bailey (Bailey) and the heirs of his wife, Bertha
Bailey, deceased. After review of the record and relevant
case law, we affirm in part, reverse in part, and remand for
On September 18, 2017, Bailey and his wife, Bertha, went to
their grandson's baseball game at the Pearl youth
ballpark. A gate to the park on Legion Lake Road was
open when they arrived. Allegedly while the Baileys watched
their grandson play, the gate was left unsecured and
unattended, which allowed it to swing partially closed.
Later, when the Baileys left, the gate was swung open in a
northerly direction facing the Bailey's oncoming vehicle.
Bailey alleged that this created a substantial, unavoidable,
hazardous condition. Bailey was driving, and Bertha was in
the passenger seat. The Baileys' vehicle collided with
the gate in such a manner that the gate "speared"
the cab of the vehicle, striking Bertha in the head. She was
taken to the hospital but died eleven days later.
In his complaint, Bailey cited numerous duties that he
alleged Pearl owed to visitors to its park, including to
properly design and install the gate; properly maintain the
gate; have proper equipment in place to secure the gate;
properly supervise, hire, and train its employees; establish
safety protocols for the safe use of the facility by the
public; provide adequate lighting in the area for the public;
mark and warn of any dangerous conditions; inspect fixtures
upon the property that could create a dangerous condition;
provide and allow safe ingress and egress onto the city's
property; and refrain from blocking the road with anything
that could cause injury. These were in addition to the claim
that the gate was left unsecured. Bailey alleged Pearl
breached these duties and caused his wife's death.
After being served with the complaint and summons, Pearl
filed an answer and a motion to dismiss based on
discretionary-function sovereign immunity. Although Bailey
propounded written discovery during briefing, no responses
were provided before the motion hearing was held and the
order on the motion to dismiss was rendered.
The circuit court adopted and incorporated the argument in
Pearl's reply and granted the motion to dismiss on
September 12, 2018. Applying City of Jackson v. Doe,
68 So.3d 1285 (Miss. 2011), the court found that the
operation and maintenance of a park is a discretionary
function, and therefore, Pearl is immune from liability under
the MCTA. From that order, Bailey appeals.
An appellate court reviews de novo the grant or denial of a
motion to dismiss. King v. Bunton, 43 So.3d
361, 363 (¶10) (Miss. 2010); Doe v. Holmes Cty. Sch.
Dist., 246 So.3d 920, 922 (¶6) (Miss. Ct. App.
2018). "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."
Because the viability of Bailey's claims turns on the
application of discretionary- function immunity to the
alleged actions and inactions of Pearl, and because the
precedent governing that question has evolved even during the
pendency of this case, it is necessary to survey recent
guidance from the supreme court as to the proper test with
which to filter Bailey's claims. In applying that
precedent, it is apparent that several of Bailey's claims
are based on Pearl's policy considerations (e.g.,
decisions about design and installation of the gate at issue;
supervision, hiring and training of city employees; lighting
and safety protocols) and were correctly dismissed by the
circuit court. But Bailey's alleged claim that "the
gate was negligently left unsecured and unattended thereby .
. . creating a substantial, unavoidable, hazardous
condition," at least as pled in Bailey's complaint,
plausibly sets forth a simple act of negligence that would
fall outside discretionary-function immunity shielding Pearl
from liability. The allegations of a breach of Pearl's
duty "to properly maintain the gate" and "to
inspect fixtures on the property that would create a
dangerous condition" would do so as well. Accordingly,
as to those allegations, the circuit court erred in
dismissing Bailey's simple negligence claims at the
pleading stage. We address these points in turn.
The MTCA, Mississippi Code Annotated section 11-46-1, et seq.
(Rev. 2012), waives sovereign immunity and allows public
entities to be sued for certain torts of governmental
entities and their employees after receipt of proper notice.
But Mississippi Code Annotated section 11-46-9(1) (Rev. 2012)
identifies twenty-five types of claims for which a public
entity shall not be liable (i.e., for which it remains immune
from suit), including claims:
(d) Based 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 . . . .
Miss. Code Ann. § 11-46-9(1)(d).
For years, courts have grappled with the difference between a
"discretionary" function, which provides immunity,
and a "ministerial" function, which does not. The
Supreme Court's latest definitive discussion of
discretionary-function immunity appears in Wilcher v.
Lincoln County Board of Supervisors, 243 So.3d 177
(Miss. 2018). There, a driver was injured when his vehicle
crashed into a large hole left in the road overnight during
bridge construction. Id. at 181 (¶5). In
reversing a grant of summary judgment based on
discretionary-function immunity, the Court explained the
difficulty of applying what appears to be a clear concept
(i.e., discretionary immunity) and how the Court has turned
for guidance to the body of law developed under the Federal
Tort Claims Act. Id. at 182 (¶11). Citing
United States v. Gaubert, 499 U.S. 315, 322 (1991),
Wilcher pointed out that "the purpose of the
exemption is to prevent judicial second-guessing of
legislative and administrative decisions grounded in"
public policy. Wilcher, 243 So.3d at 182 (¶11)
(quoting Gaubert, 499 U.S. at ...