Alesa Dawn Crum v. City of Corinth , 183 So. 3d 847 ( 2016 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CA-01977-SCT
ALESA DAWN CRUM, INDIVIDUALLY, AND AS
MOTHER AND NEXT FRIEND OF HANNAH
BRADDOCK
v.
CITY OF CORINTH, MISSISSIPPI
DATE OF JUDGMENT: 10/15/2013
TRIAL JUDGE: HON. JAMES SETH ANDREW POUNDS
TRIAL COURT ATTORNEYS: TACEY CLARK LOCKE
MITCHELL ORVIS DRISKELL, III
COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MATTHEW DANIEL WILSON
TACEY CLARK LOCKE
ATTORNEY FOR APPELLEE: MITCHELL ORVIS DRISKELL, III
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 01/14/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. Alesa Dawn Crum’s home in Corinth, Mississippi, was flooded with backflowed
sewage twice. Crum filed suit against the City of Corinth, alleging damages as a result of the
City’s negligent maintenance of its sewage system. The Alcorn County Circuit Court granted
the City’s motion to dismiss Crum’s complaint, finding that the City was immune under the
discretionary-function exemption of the Mississippi Tort Claims Act (MTCA). Crum appeals,
arguing that the City is not entitled to discretionary-function immunity. Because we find that
the trial court erred in dismissing Crum’s complaint, we reverse the judgment and remand
the case for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2. Around March 30, 2012, during heavy rains, the Corinth, Mississippi, home of Alesa
Dawn Crum was flooded with approximately twelve inches of sewage over a period of about
six hours. On April 23, 2012, Crum filed a complaint with the Mississippi Department of
Environmental Quality (MDEQ) regarding the overflow. MDEQ investigator Lynne Burrell
traveled to Crum’s home in Corinth to investigate the incident on May 4, 2012. Burrell’s
investigation revealed that the overflow possibly had been caused by root growth in the
manhole into which Crum’s sewage service line emptied.
¶3. In the early morning of May 7, 2012, sewage overflowed a second time into Crum’s
home and garage. Burrell twice telephoned Billy Glover, the superintendent of the City’s
Sewer Department, and left voicemail messages. Burrell also sent an email message to the
mayor of the City of Corinth with a photograph of the root mass in the manhole. On May 8,
2012, Glover returned Burrell’s telephone calls and informed her that it was likely that an
employee of the City’s Street Department had dislodged a manhole cover while bush hogging
roadside ditch banks in the area. Glover informed Burrell that the City had removed the root
mass from the manhole, and that he would investigate whether the City would pay for sewage
cleanup at Crum’s home. Glover also informed Burrell that he would resubmit the cleanup
bill to MS Municipal Insurance.
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¶4. Burrell and Glover spoke again on May 25, 2012, and Glover confirmed his suspicion
that recent road work by the City had “knock[ed] off the ring and manhole cover.” Glover
indicated that, during heavy rains, due to the uncovered manhole, an enormous amount of
rainwater had entered the sewer lines near Crum’s house, causing sewage to back up into the
lines and into Crum’s house. Based on her conversation with Glover, Burrell reported that
“[t]he city is going to fix [Crum’s] home.” On May 29, 2012, Burrell reported that she had
received a letter from Glover to MS Municipal Insurance, dated May 11, 2012, and that his
report to the insurer was consistent with what Glover had told her on May 25, 2012.
¶5. Crum filed her complaint against the City in the Circuit Court of Alcorn County on
October 3, 2012. She alleged that the City had a “duty to maintain the sewer system in such
a way that [Crum’s] home is not flooded by the sewer system,” and that the City had
breached its duty by failing to maintain the sewer system properly. Crum claimed that her
home was irreparably damaged as a result of the City’s negligence and that she and her
daughter had suffered physical illness due to the sewage overflow.
¶6. On November 2, 2012, the City filed a Rule 12(b)(6) motion to dismiss Crum’s
complaint. See M.R.C.P. 12(b)(6). The City claimed discretionary-function immunity: “[a]s
it is well settled that the operation and maintenance of a municipal sewage system is a
discretionary function and deals with the provision of adequate governmental services, the
City is immune . . . .” See Fortenberry v. City of Jackson, 71 So. 3d 1196 (Miss. 2011).
Crum responded on March 26, 2013, that the City was not entitled to immunity because
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federal and state regulations rendered the City’s duty to maintain its sewage system
ministerial.
¶7. A hearing was held on the City’s motion to dismiss on September 16, 2013. On
October 15, 2013, the trial court granted the City’s Rule 12(b)(6) motion and dismissed
Crum’s claims with prejudice, reasoning that the City was immune from suit because Crum’s
claim was based on the City’s maintenance of its sewer system, which the trial court had
determined was a discretionary function under the MTCA. Aggrieved, Crum appealed that
dismissal to this Court.
¶8. On appeal, Crum argued again that federal and state regulations imposed “a statutory
and a regulatory duty to maintain the City’s sewer system, and, when necessary, to repair any
defective portion thereof.” Alternatively, Crum argued that the manhole cover’s exposure
was caused, not by the exercise of a discretionary function of the City, but by the simple
negligence of the bush hog operator: “the Bush Hog operator exercised no social, economic,
or political policy analysis when he was cutting the grass in the ditch bank.” See
Fortenberry, 71 So. 3d at 1199 (The public-policy function test requires the Court to “answer
two questions: 1) did the conduct or activity involve an element of choice or judgment; and
if so, 2) did that choice or judgment involve social, economic, or political policy?”).
¶9. After briefing in this case had been completed, this Court, on December 29, 2014,
handed down its decision in Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014).
In Brantley, we announced our abandonment of the public-policy function test. Id. (citing
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Little v. Miss. Dep’t of Transp., 129 So. 3d 132 (Miss. 2013)). We clarified the standard for
judicial determination of whether a governmental entity is entitled to immunity:
[A] plaintiff may defeat sovereign immunity, even when a governmental
entity’s act furthered a discretionary function or duty, when the plaintiff proves
that the act also furthered a more narrow function or duty which is made
ministerial by another specific statute, ordinance, or regulation promulgated
pursuant to lawful authority.
Brantley, 152 So. 3d at 1115. In Brantley’s wake, the City sought leave to file a
supplemental brief “to show why the Trial Court’s decision should be affirmed under” the
new test. This Court granted the City’s motion and ordered supplemental briefing.
STANDARD OF REVIEW
¶10. “A motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure
raises an issue of law, which is reviewed under a de novo standard.” Rose v. Tullos, 994 So.
2d 734, 737 (Miss. 2008) (citing Cook v. Brown, 909 So. 2d 1075, 1077-78 (Miss. 2005)).
A Rule 12(b)(6) motion “tests the legal sufficiency of the complaint.” Little, 129 So. 3d at
135 (quoting Little v. Miss. Dep’t of Human Servs., 835 So. 2d 9, 10-11 (Miss. 2002)).
“‘[I]n order to grant a Rule 12(b)(6) motion to dismiss, there must appear to a certainty that
the plaintiff is entitled to no relief under any set of facts that could be proved in support of
the claim.’” Little, 129 So. 3d at 135 (quoting Little, 835 So. 2d at 11). When considering
a Rule 12(b)(6) motion, “[t]he allegations in the complaint must be taken as true.” Rose, 994
So. 2d at 737 (citing Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 893 (Miss. 2006)).
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DISCUSSION
¶11. Mississippi Rule of Civil Procedure 12(b)(6) allows dismissal when a plaintiff has
failed “to state a claim upon which relief can be granted.” M.R.C.P. 12(b)(6). For the movant
to prevail on a Rule 12(b)(6) motion, “‘there must appear to a certainty that the plaintiff is
entitled to no relief under any set of facts that could be proved in support of the claim.’”
Little, 129 So. 3d at 135 (quoting Little, 835 So. 2d at 11) (emphasis added). Crum sued the
City of Corinth, alleging that it had failed to maintain the sewer line and manhole cover, and
that its failure had caused sewage to invade her home. The City moved to dismiss under Rule
12(b)(6), claiming discretionary-function immunity. Crum responded that state and federal
statutes and regulations impose a ministerial duty on the City to maintain its sewer system.
The issue before the Court, therefore, is whether there is any set of facts under which Crum
could prevail.
¶12. Mississippi Administrative Code Section 11-6-1.1.4(A)(18) imposes a ministerial duty
on permitted sewage system operators to properly “operate, maintain, and when necessary,
promptly replace all facilities and systems of collection, treatment and control (and related
appurtenances) which are installed or used by the permittee to achieve compliance with the
conditions of [the] permit.” See Boroujerdi v. City of Starkville, 158 So. 3d 1106, 1113
(Miss. 2015). Taking as true Crum’s allegation that “[t]he backflow of sewage into [her]
home was due to the fault of [the City in] not properly maintaining the sewer system and/or
its manholes and/or the City of Corinth causing the sewer system and/or manholes to flood
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by action of the City of Corinth and/or its employees,” it cannot be said to a certainty that
Crum would not prevail under any set of facts that could be proved in support of her claim.
¶13. Under this Court’s standard for Rule 12(b)(6) dismissal, assuming that everything
alleged in Crum’s complaint was true, the City bore the burden to show that Crum would be
entitled to no relief under any set of facts. Little, 129 So. 3d at 135 (quoting Little, 835 So.
2d at 11). It did not. Therefore, Crum has stated an adequate claim, and the trial court erred
in granting the City’s motion to dismiss.
¶14. But even if the dissent is correct that Crum failed to allege that the “duty was
ministerial in nature, as would be required to defeat a claim of governmental immunity under
the MTCA” and that Crum failed to prove, in her response to the City’s motion to dismiss,
“that her injury was caused by an act done in furtherance of some more narrow duty made
ministerial by statute or regulation,” Crum ought to be given the opportunity to redraft her
pleadings in accordance with this Court’s recent decisions in Brantley v. City of Horn Lake,
152 So. 3d 1106 (Miss. 2014), and Boroujerdi v. City of Starkville, 158 So. 3d 1106 (Miss.
2015). Diss. Op. ¶32 (emphasis added).
¶15. In Brantley, the trial court granted summary judgment to the City. Brantley, 152 So.
3d at 1108. This Court reversed the judgment and remanded the case to the Circuit Court of
DeSoto County, holding the following:
Because this Court has injected the aspect of discretionary-function immunity
into the proceedings, the plaintiff has had no opportunity to tailor his discovery
or strategy to address the possibility of a rule, regulation, or statute which may
render the duty of removing a person from an ambulance a ministerial one, and
thus could remove such duty from the umbrella of discretionary-function
immunity. On remand, if the plaintiff can prove that the defendant was
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fulfilling a function or duty mandated by a specific statute, ordinance, or
regulation promulgated pursuant to lawful authority, then he may proceed with
his claim.
Id. at 1118.
¶16. In Boroujerdi, the trial court had “granted summary judgment for the City, finding
that 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).”1 Boroujerdi, 158
So. 3d at 1108. This Court reversed the judgment and remanded the case to the Circuit Court
of Oktibbeha County, finding “that it would be patently unfair to affirm summary judgment
in the City’s favor without Boroujerdi’s having an opportunity to attempt to conform his
complaint and proof to this Court’s current approach to discretionary function immunity.”
Id. at 1114.
¶17. At the time Crum filed her complaint and at the time she responded to the City’s
motion to dismiss, neither Brantley nor Boroujerdi had been decided by this Court. Crum
filed her complaint on October 23, 2012. Her response to the City’s motion to dismiss was
filed on March 26, 2013. The trial court entered its order granting the City’s Rule 12(b)(6)
Motion to Dismiss on October 23, 2013. Crum filed her notice of appeal on November 14,
2013. This Court’s mandate in Brantley issued on December 29, 2014; our mandate in
Boroujerdi issued on March 5, 2015.
1
Fortenberry “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.” Boroujerdi, 158 So. 3d at 1109.
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¶18. Although this Court ordered, and the parties filed, supplemental briefing in this case
to address the applicability of Brantley, Crum has not been provided the opportunity in the
trial court to attempt to “conform [her] complaint and proof to this Court’s current approach
to discretionary function immunity.” Boroujerdi, 158 So. 3d at 1114. As the majority stated
in Boroujerdi, depriving Crum of this opportunity would be “patently unfair.” Id. Even if
Crum’s complaint does not adequately state a claim, the affirmance of the Rule 12(b)(6)
dismissal in this case would be premature.
CONCLUSION
¶19. Assuming that everything alleged in Crum’s complaint was true, the City failed to
show to a certainty that Crum would be entitled to no relief under any set of facts. Because
Crum adequately has stated a claim, we hold that the trial court erroneously entered dismissal
pursuant to Rule 12(b)(6). We therefore reverse and remand the case to the Alcorn County
Circuit Court for proceedings consistent with this opinion.
¶20. REVERSED AND REMANDED.
KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN
RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY
PIERCE, J. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT
SEPARATE WRITTEN OPINION. WALLER, C.J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY PIERCE, J. DICKINSON, P.J., AND MAXWELL,
J., NOT PARTICIPATING.
RANDOLPH, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:
¶21. While the result reached by the plurality is correct, I maintain that the analysis first
adopted by this Court in Jones v. Mississippi Department of Transportation2 simplifies the
2
Jones v. Miss. Dep’t of Transp., 744 So. 2d 256 (Miss. 1999).
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inquiry and would result in more predictive results for plaintiffs and defendants alike. I agree
that the trial court erred in granting immunity under the discretionary-function exception of
the Mississippi Tort Claims Act. The fact remains that an employee of the City’s street
department dislodged a manhole cover while mowing, which caused water to enter and flood
Crum’s house. I fail to see how mowing grass requires any governmental judgment or lends
itself to the discretion of an employee. As an eight-year-old, I never would have imagined
that to choose whether to mow around an object or to mow over an object (a ministerial
decision) would later become the subject of debate in the highest court of any state.
¶22. Were we still using the public-policy function test—the test of immunity advanced by
the United States Supreme Court more than two decades ago—the resolution of this case
would be quite simple. I did not agree that Brantley’s3 test was correct when we adopted it.
Brantley convolutes the process by requiring both the plaintiff and the defendant to look
outside the alleged negligent act to establish immunity or lack thereof. As such, I propose a
return to the public-policy function test as adopted by this Court in Jones, 744 So. 2d at 260.
¶23. The discretionary-function exceptions of the Federal Tort Claims Act and the
Mississippi Tort Claims Act are practically identical.4 For determining the application of
3
Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014).
4
See 28 U.S.C. § 2680(a) (granting immunity for “[a]ny claim . . . based upon the
exercise or performance or the failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the Government, whether or not the
discretion involved be abused”); Miss. Code Ann. § 11-46-9(d) (Rev. 2012) (granting
immunity 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”).
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discretionary-function immunity, the United States Supreme Court formulated the “public-
policy function test.” See United States v. Gaubert, 499 U.S. 315, 322-23, 111 S. Ct. 1267,
113 L. Ed. 2d 335 (1991). This Court adopted the same public-policy function test in our
analysis of the MTCA’s discretionary-function exception in Jones, recognizing that the
provision in the MTCA was patterned after the identical provision in the FTCA. The
Legislature amended the MTCA after we adopted the public-policy function test in Jones and
made no intimation that we had adopted an incorrect test or interpretation of the statute. See
McDaniel v. Cochran, 158 So. 3d 992, 1000 (Miss. 2014) (“The Legislature is assumed to
be aware of judicial interpretations of its statutes, and . . . we must conclude that the
legislative silence amounts to acquiescence.”) (internal citations omitted). “[A]bsent
legislative action, [our interpretations] become a part of the statute.” Id. The Legislature’s
decision not to change the language of the MTCA should be honored, as should the Jones
decision. Brantley inappropriately altered the legislatively endorsed test.
¶24. For more than fifteen years, this Court applied the public-policy function test to
determine whether the discretionary-function exception applied in a given case. Granted, that
test was abrogated in Brantley. I echo Chief Justice Waller’s lament that its abrogation was
both impractical and irrational:
Based on the almost identical language of the MTCA and [the] FTCA, I
believe there is a practical and rational basis for the Mississippi Supreme Court
to interpret the MTCA’s discretionary-function exception as the United States
Supreme Court has done for its identically worded federal counterpart.
Consistency and clarity should be the watchwords in analyzing this heavily
litigated area of law.
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Brantley, 152 So. 3d at 1119 (Waller, C.J., concurring in part and in result). I would rescind
the Brantley analysis because it overcomplicates the process of litigating a claim and places
the success of a claim on the ability of the injured party’s attorney to sift through myriad and
sometimes arcane regulations—creating extra layers of proof, which may have little or no
practical effect on the actual negligent act. I would therefore readopt the simpler and more
direct public-policy function test. See State ex rel. Moore v. Molpus, 578 So. 2d 624, 635
(Miss. 1991) (explaining that cases may be overruled when their application is “impractical,”
“mischievous in effect,” or “detriment[al] to the public”).
¶25. Employing the public-policy function test, we determine (1) whether the activity
involved an element of choice or judgment, and if so, (2) whether that choice or judgment
involved social, economic, or political policy. Dancy v. East Miss. State Hosp., 944 So. 2d
10, 16 (Miss. 2006).
¶26. Section 21-27-189(b) granted the City discretionary authority “[t]o construct, operate
and maintain sewage systems . . . .” Miss. Code Ann. § 21-27-189(b) (Rev. 2015). However,
once the City exercised that discretionary authority, it became incumbent on its employees
to exercise concomitant duties in operation and maintenance—duties which are neither
exclusively discretionary nor ministerial. See Fortenberry v. City of Jackson 71 So. 3d 1196,
1204-05 (Miss. 2011) (Randolph, J., dissenting). I maintain that “there is a vast difference
between the statutorily supported discretion to [construct, operate, and maintain sewage
systems] and the practical, mundane, day-to-day operation and maintenance actions which
arise after the exercise of such discretion, to which the statute does not speak.” Id. at 1204.
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¶27. An employee of Corinth’s Street Department dislodged a manhole cover while bush-
hogging the ditch banks. These facts put this case squarely in line with City of Jackson v.
Internal Engine Parts Group, Inc., 903 So. 2d 60 (Miss. 2005). Engine Parts sustained flood
damage when the city failed to inspect and maintain a drainage ditch. Id. at 64. This Court
(erroneously) distinguished Engine Parts from Fortenberry because, unlike the operation
and maintenance of a sewage system, the neglected maintenance of a drainage ditch is not
made discretionary by statute. Fortenberry, 71 So. 3d at 1200-01. As in Engine Parts, the
neglected bush-hogging of a ditch bank in this case is not made discretionary by statute.
¶28. I fail to see how the mower’s choice involved social, economic, or political policy. His
job was to cut the grass. Operating a tractor or bush-hog entails no budgetary considerations
or resource allocations. Deciding to steer left or right, how high to cut, or what pattern to cut
implicates no policy considerations. Operating a bush-hog in the scope of one’s employment
should be no more protected by discretionary-function immunity than if the operator had run
over a child.
¶29. In sum, I would revive the public-policy function test. Applying the public-policy
function test, the employee’s dislodging a manhole cover while mowing did not implicate
public-policy considerations. I would find the circuit court erred in granting summary
judgment in favor of the City based on discretionary-function immunity.
PIERCE, J., JOINS THIS OPINION IN PART.
WALLER, CHIEF JUSTICE, DISSENTING:
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¶30. Because I believe that the City has met its burden of proving that Crum is not entitled
to relief in this case, I respectfully dissent.
¶31. The plurality correctly recites this Court’s well-established standard of review for a
motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6). However, the
plurality fails to point out this Court’s recent pronouncement that, to defeat a claim of
immunity under the Mississippi Tort Claims Act, the plaintiff must prove that the
governmental act in question “furthered a more narrow function or duty which is made
ministerial by another specific statute, ordinance, or regulation promulgated pursuant to
lawful authority.’” Brantley v. City of Horn Lake, 152 So. 3d 1106, 1115 (Miss. 2014). I
would find that the City presented sufficient evidence in its motion to dismiss that no set of
facts would entitle Crum to relief, as she has cited no statute or regulation creating a
ministerial duty that is implicated in this case.
¶32. In her complaint, Crum alleged that the City “has a duty to maintain the sewer system
in such a way that Plaintiff’s home is not flooded by the sewer system.” Notably, Crum did
not allege that the above duty was ministerial in nature, as would be required to defeat a
claim of governmental immunity under the MTCA, nor did she even mention the MTCA in
her complaint. Nevertheless, this Court has held that the general duty of sewer-system
maintenance is discretionary in nature. See Boroujerdi v. City of Starkville, 158 So. 3d 1106,
1112 (Miss. 2015). Thus, in response to the City’s motion to dismiss based on the MTCA,
Crum bore the burden of proving that her injury was caused by an act done in furtherance of
some more narrow duty made ministerial by statute or regulation. She has failed to do so.
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¶33. In her response to the City’s motion to dismiss, Crum first couched her claim as one
for negligent road maintenance, claiming that the City was not entitled to discretionary-
function immunity because “[t]he city employee’s act of knocking the lid and ring of the
sewer manhole off was not a discretionary act.” Essentially, she argued that “[t]here could
hardly be a less ministerial job than a street employee bushogging [sic] ditches.” This
argument clearly is without merit. This Court has held that the Mississippi Department of
Transportation has a ministerial duty, specifically created by statute, to maintain and repair
state highways. Little v. Miss. Dep’t of Transp., 129 So. 3d 132, 138 (Miss. 2013). But no
concomitant duty exists for municipalities with respect to municipal roadways. On the
contrary, “the governing authorities of municipalities shall have the power to exercise full
jurisdiction in the matter of streets, sidewalks, sewers and parks, to open and lay out and
construct the same; and to repair, maintain, pave, sprinkle, adorn, and light the same.” Miss.
Code Ann. § 21-37-3(1) (Rev. 2015). Crum fails to cite a statute that creates a ministerial
duty of maintenance or repair for municipal roads similar to the statute cited in Little.
Therefore, under Brantley, the City is immune from Crum’s claim that her injury was caused
by negligent road maintenance. See Brantley, 152 So. 3d at 1116 (finding that the function
of providing ambulance services is discretionary, because no statute requires a governmental
entity to perform that function).
¶34. Next, Crum argued that the MTCA did not provide the City with immunity because
the failure to properly maintain the sewer manhole in question violated federal law. This
argument also is flawed. First, the federal regulations on which Crum relies were
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promulgated pursuant to the Federal Water Pollution Prevention Act, which applies only to
“navigable waters,” which does not include the groundwater that Crum now speculates was
polluted by the discharge in this case. 33 U.S.C. §§ 1311(a), 33 U.S.C. § 1362(7); 40 C.F.R.
§ 122.2. See Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir.
1994) (affirming dismissal of claim based on alleged violation of the Federal Act, where
alleged discharge occurred in groundwater, rather than navigable water). Moreover, the
Federal Act does not create any general day-to-day operational duties, but leaves this
regulatory authority to the states. See District of Columbia v. Schramm, 631 F.2d 854, 860
(D.C. Cir. 1980).
¶35. In addition, the state regulations on which Crum relies do not create a ministerial
duty that is applicable to the instant case. Crum attached twenty pages of Mississippi
Department of Environmental Quality permitting regulations to her response to the City’s
motion to dismiss, but she did not explain how any of these regulations applied to her case.
On appeal, Crum now relies on MDEQ regulations promulgated under the Mississippi Air
and Water Pollution Control Law (“the State Law”), which require sewage-control operators
at all times to “properly operate, maintain, and when necessary, promptly replace all facilities
and systems of collection (and related appurtenances) which are installed or used by the
permittee to achieve compliance with the conditions of the permit.” Miss. Admin. Code §
11-6-1.1.4(A)(18). Crum does not explain how the City’s alleged act of damaging a manhole
cover equates to a violation of these statutes and regulations. Instead, she simply argues that
these statutes and regulations create a continuous ministerial duty of maintenance, which
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negates the protections of the MTCA. Crum makes no allegation that the discharge in
question affected any of the state’s waters or otherwise violated applicable water-quality
standards. Simply put, under Brantley, the City’s duty under the State Law to prevent
unnecessary water pollution is not “at issue” in this case. Brantley, 152 So. 3d at 1115 (“The
Court must then examine any narrower duty associated with the activity at issue to determine
whether a statute, regulation, or other binding directive renders that particular duty a
ministerial one[.]”). Because the State Law is inapplicable to this case, so are the regulations
promulgated thereunder.
¶36. Finally, Crum supported her response to the City’s motion to dismiss with the
MDEQ’s Wastewater Treatment Facilities Operations and Training Manual, 5th edition. She
argued that provisions of this manual created a ministerial duty of inspection and
maintenance. But the training manual in question specifically provides that it was not
intended to create any legal duties or requirements. Rather, the training manual simply
provides guidance and instruction on best practices for sewage-facility operators. Thus, the
City’s alleged noncompliance with this manual cannot serve as the basis of Crum’s claim.
See, e.g., Chisolm v. Miss. Dep’t of Transp., 942 So. 2d 136, 143 (Miss. 2006) (holding that
the provisions of the Manual on Uniform Traffic Control Devices are advisory in nature and
cannot be used to create a legal obligation).
¶37. After a review of Crum’s complaint, the City’s motion to dismiss, and Crum’s
response to the motion, I believe that Crum failed to defeat the City’s defense of immunity
by presenting the trial court with a relevant statute or regulation creating a ministerial duty
17
in this case. The plurality posits, as an alternative disposition, that this case should be
remanded to the trial court to allow Crum to conform her complaint to this Court’s holding
in Brantley, which was not decided until after Crum had perfected her appeal. But this Court
already has given the parties the opportunity to address the impact of Brantley on the trial
court’s dismissal in this case. In her response to the City’s request for supplemental briefing,
Crum argued that “her Appellant’s Brief sufficiently anticipates the holding in Brantley,
making further briefing in view thereof unnecessary.” And in her supplemental brief, Crum
claimed that “no matter how Brantley is viewed – be it from the perspective of the majority
opinion or from that of the dissent – the Brantley opinion strongly supports Ms. Crum’s
contention that the City of Corinth lacks sovereign immunity in this matter.” Thus, the
parties agree that Crum’s claims are squarely before this Court, and that further analysis of
Brantley in the trial court is unnecessary.
¶38. Because the City met its burden of proving that there is no set of fact which would
afford Crum relief in this case, I would affirm the trial court’s dismissal of Crum’s
complaint.
PIERCE, J., JOINS THIS OPINION.
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