Pratt v. Gulfport–Biloxi Reg'l Airport Auth.

97 So.3d 68

Dr. Jerry PRATT

v.GULFPORT–BILOXI REGIONAL AIRPORT AUTHORITY d/b/a Gulfport–Biloxi International Airport.

No. 2009–CT–01202–SCT.

Supreme Court of Mississippi.

Sept. 6, 2012.

Kenneth M. Altman, Jason Joseph Ruiz, Gulfport, attorneys for appellant.

Cy Faneca, Trace D. McRaney, Gulfport, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

CARLSON, Presiding Justice, for the Court:

¶ 1. Dr. Jerry Pratt slipped and fell down a set of stairs at the Gulfport–Biloxi Regional Airport. Pratt filed suit against the Gulfport–Biloxi Regional Airport Authority (GBRAA) in the Circuit Court for the First Judicial District of Harrison County, alleging negligence and claiming he suffered injuries as a result of the fall. GBRAA moved for summary judgment, claiming immunity under the Mississippi Tort Claims Act (MTCA), and the circuit court granted the motion. Pratt appealed, and we assigned the case to the Court of Appeals. The Court of Appeals, finding that genuine issues of material fact existed, reversed the trial court's grant of summary judgment and remanded the case. GBRAA filed a petition for writ of certiorari, which we granted. For the reasons discussed below, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court for the First Judicial District of Harrison County.

FACTS AND PROCEDURAL HISTORY

¶ 2. While construction was underway at the airport, GBRAA borrowed a set of metal “airstairs” from Northwest Airlines to use as a temporary means of accessing the tarmac from the terminal. The airstairs were placed at Gate 5, and certain modifications were made to attach the stairs and ensure passenger safety. Once passengers exited the terminal, there was no cover over the platform directly outside the door or over the airstairs. The airstairs were metal and had a raised diamond pattern that was intended to provide traction and prevent slipping, according to the manufacturer. Out of an abundance of caution, GBRAA added anti-slip tape to the platform and the stairs. The anti-slip tape covered the entire width of the platform. On the stairs, GBRAA employees put a two-foot piece of anti-slip tape in the middle of each step. The stairs were four feet wide, so twelve inches of metal were exposed on each side of the anti-slip tape.

¶ 3. On October 24, 2004, Pratt was at the airport to board a flight, which was loading at Gate 5. Pratt exited the terminal and was directed to use the airstairs to access the tarmac. When he stepped outside, he noticed that it had begun to rain. He crossed the platform and approached the airstairs. Pratt took the first step by placing his left foot to the side of the anti-slip tape on the top step. He slipped and fell down the entire length of the stairs. On April 14, 2006, Pratt filed suit against GBRAA in the Circuit Court for the First Judicial District of Harrison County, claiming that GBRAA had failed to maintain the temporary metal stairwell in a reasonably safe condition and had failed to warn him of a hidden dangerous condition.¹ GBRAA moved for summary judgment on the basis that it had immunity under the MTCA because the alleged dangerous condition was open and obvious to one exercising due care and the alleged acts or omissions of the airport were discretionary functions. SeeMiss.Code Ann. §§ 11–46–9(1)(d), (g), and (v) (Rev.2002). The circuit court granted GBRAA's motion for summary judgment. Pratt appealed, and we assigned the case to the Court of Appeals.

¶ 4. With a five-to-four vote, the Court of Appeals reversed and remanded, holding that “the presence of genuine issues of material fact preclude[d] summary judgment under both rationales.” Pratt v. Gulfport–Biloxi Reg'l Airport Auth., 97 So.3d 80 (¶ 1) (Miss.Ct.App.2011). The four dissenting judges opined that GBRAA's placement of the anti-slip tape on the stairs was a discretionary function involving a policy decision, thus GBRAA was immune from liability under the MTCA.² After the Court of Appeals denied GBRAA's motion for rehearing, GBRAA petitioned this Court for certiorari, which we granted.

DISCUSSION

¶ 5. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). This Court applies a de novo standard of review to a circuit court's grant or denial of summary judgment. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (Miss.2009). This Court views the evidence “in the light most favorable to the party against whom the motion has been made.” Id. (quoting Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)). However, the opposing party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Miss. R. Civ. P. 56(e).

¶ 6. The MTCA provides the exclusive remedy for claims against government entities. Miss.Code Ann. § 11–46–7 (Rev.2002). “Governmental entity” is defined as “the state and political subdivisions.” Miss.Code Ann. § 11–46–1(g) (Rev.2002). “Political subdivision” is defined as “any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any ... airport authority ...” Miss.Code Ann. § 11–46–1(i) (Rev.2002). It is undisputed that GBRAA is a political subdivision subject to the MTCA.

¶ 7. In the circuit court and Court of Appeals, GBRAA claimed that it was immune from liability because the relevant activity was a discretionary function and because the alleged dangerous condition was open and obvious to one exercising due care. SeeMiss.Code Ann. §§ 11–46–9(1)(d), (g), and (v) (Rev.2002). In its petition for writ of certiorari, GBRAA has abandoned the “open and obvious” claim, so we will not address it here.

Whether GBRAA is entitled to immunity under the Mississippi Tort Claims Act, because the activity at issue was a discretionary function.

¶ 8. According to the MTCA, governmental entities are not liable for claims arising from discretionary functions, specifically, any claim:

(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; [or] ...

(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services[.]

Miss.Code Ann. §§ 11–46–9(1)(d), (g) (Rev.2002). A two-part “public-policy function” test is applied to determine whether conduct is considered a discretionary function subject to immunity. Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 795 (Miss.2012). “This Court first must ascertain whether the activity in question involved an element of choice or judgment. If so, this Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations.” Id. (internal citations omitted).

1. Whether the activity involved an element of choice or judgment.

¶ 9. The first step of the public-policy function test requires the Court to determine “whether the activity in question involved an element of choice or judgment.” Id. To make this determination, the Court must first ascertain whether the activity was discretionary or ministerial. Dancy v. E. Miss. State Hosp., 944 So.2d 10, 16–18 (Miss.2006). A duty or an activity is discretionary if “it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.” Montgomery, 80 So.3d at 795. A ministerial function is one “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.

¶ 10. At the summary judgment hearing, the parties agreed that the activity at issue—placing anti-slip tape on the temporary airstairs—was not a ministerial function, as there are no laws or regulations pertaining to this activity. The parties were correct that the act of placing anti-slip tape on the stairs would not be a ministerial function. However, that is not the “function” at issue. The function with which we are concerned is the operation of the airport. The state does not have a statutory obligation to provide and operate airports for its citizens. A decision by the state, county, municipality, or other governmental entity to operate an airport is discretionary. Therefore, barring a rule or regulation pertaining to a certain activity, decisions that are part of the airport's day-to-day operations are also discretionary.

¶ 11. Protected discretionary functions can be made at the “operational or planning level” and include the “day-to-day decisions” made by governmental actors.Willing v. Estate of Benz, 958 So.2d 1240, 1252–53 (Miss.Ct.App.2007) (citing U.S. v. Gaubert, 499 U.S. 315, 322, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). “Day-to-day management ... regularly requires judgment as to which of a range of permissible courses is the wisest. Discretionary conduct is not confined to the policy or planning level.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. The United States Supreme Court has stated, “If the routine or frequent nature of a decision were sufficient to remove an otherwise discretionary act from the scope of the exception, then countless policy-based decisions by regulators exercising day-to-day supervisory authority would be actionable. This is not the rule of our cases.” Id. at 334, 111 S.Ct. 1267. Day-to-day operational decisions, such as actions...