Fanny Hudson v. City of Yazoo City, Mississippi , 246 So. 3d 872 ( 2018 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-CA-01384-SCT
IN THE ESTATE OF PATRAUNA HUDSON:
FANNY HUDSON, INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF PATRAUNA
HUDSON
v.
YAZOO CITY, MISSISSIPPI
DATE OF JUDGMENT: 08/09/2016
TRIAL JUDGE: HON. JANNIE M. LEWIS
TRIAL COURT ATTORNEYS: ROBERT S. ADDISON
STEVEN JAMES GRIFFIN
BARRY W. HOWARD
WALTER WILLIAM DUKES
BRADLEY EUGENE DEAN
WILEY JOHNSON BARBOUR
COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY
BARRY W. HOWARD
ATTORNEYS FOR APPELLEE: ROBERT S. ADDISON
STEVEN JAMES GRIFFIN
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED - 06/28/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.
BEAM, JUSTICE, FOR THE COURT:
¶1. This case arises from the tragic 2014 death of nine-year-old Patrauna Hudson, who
drowned in flash-flood waters that swept through a drainage ditch that ran alongside her
family’s residence. Patrauna’s estate (the “Estate”) filed suit against Yazoo City for
wrongful death under the Mississippi Tort Claims Act (MTCA). The Yazoo County Circuit
Court granted summary judgment in favor of Yazoo City (the “City”) on all claims filed
against it by the Estate, having found Yazoo City immune from liability under both the
discretionary-function exception and the open-and-obvious exception contained in
Mississippi Code Section 11-46-9. Miss. Code Ann. § 11-46-9(1)(d) and (v) (Rev. 2012).
¶2. The Estate appeals, maintaining that Yazoo City violated numerous city ordinances,
along with certain federal regulations, when the City converted a portion of the drainage
ditch downstream from the Hudson residence into a covered tunnel with two side-by-side
culverts in 2007. The Estate argues that these laws imposed a ministerial duty upon Yazoo
City, and the City breached that duty by failing to comply with all the mandatory
requirements prescribed by these laws when the city implemented and carried out the 2007
project. Therefore, the Estate contends, the City is not immune from liability under Section
11-46-9(1)(d).
¶3. The Estate further maintains the trial court erred in finding that the “open and
obvious” exception provided by Section 11-46-9(1)(v) was applicable in this case. The
Estate says the flood danger caused by the City’s failure to comply with these mandatory
requirements was not open and obvious, and further, subsection (v) is inapplicable to a nine-
year-old child who is incapable of negligence.
¶4. We find that the Estate’s claim that Yazoo City is liable for the wrongful death of
Patrauna that resulted from Yazoo City’s failure to comply with its ordinances and federal
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regulations under the National Flood Insurance Program (NFIP), fails as a matter of law for
failure to state a cause of action.
¶5. We also find that the Estate alleged in its complaint that Yazoo City was liable for
negligently failing to maintain its drainage ditches. The Estate, however, abandoned this
claim under the auspices of the test adopted by this Court in Brantley v. City of Horn Lake,
152 So. 3d 1106 (Miss. 2014), which we recently overruled in Wilcher v. Lincoln County
Board of Supervisors, 2016-CA-01429-SCT, 2018 WL 2371859 (May 24, 2018). Based on
our de novo review of the record, there is slight evidence, which if developed further, may
create a genuine issue of fact with regard to this claim. We find the Estate should be given
the opportunity to do so.
¶6. Also, we find the trial court’s ruling as to the open-and-obvious exception provided
by Section 11-46-9(1)(v) was premature in this instance because factual questions currently
remain, according to our review of the record.
¶7. Accordingly, we reverse and remand for further proceedings consistent with this
Court’s opinion.
FACTS AND PROCEDURAL HISTORY
¶8. On April 6, 2014, an intense storm system moved through Yazoo City, pouring five
to six inches of rain on the area in a short amount of time. Patrauna lived at the corner of
Seventh Street and Lamar Avenue with her mother, Fannie Hudson, and several of her
younger brothers and sisters, the family having moved there six months earlier.
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¶9. At approximately 8:00 p.m., Fannie instructed the children to go to their rooms and
get ready for bed. When Fannie went to check on the children, Patrauna’s eight-year-old
sister Patrice told Fannie that Patrauna had gone out the back door to go swimming. Patrice
and the clothes she was wearing were soaking wet.
¶10. According to Fannie, the family’s entire back yard was flooded with water from the
ditch that evening, which came up to the back steps of the family home. Fannie did not know
exactly how Patrauna had ended up in the water. She said Patrice told her that Patrauna had
pushed her (Patrice) into the water, and after Patrice got out, Patrice then had pushed
Patrauna into the water. Fannie said according to Patrice, once Patrauna was in the water,
Patrauna tried to come back, but the water pulled her back toward the ditch.
¶11. Patrice later stated in an affidavit: “On the day my sister drowned [Patrauna] was
outside in the backyard playing like she was swimming. When [Patrauna] got out by the
clothes line the water start[ed] to pull her. She tried to come back but the water pulled her
back until it pulled her into the ditch.”
¶12. When Fannie went outside to look for Patrauna, she saw a police officer and other
individuals on the street that runs alongside her house. They all appeared to be searching
around the ditch. Fanny asked them if they had seen a little girl. The officer told Fanny to
go back in the house to make sure she was not inside. Fanny went back inside and searched
but could not find Patrauna.
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¶13. Law enforcement and community members searched for Patrauna throughout the
evening. Her lifeless body was found by a search team the following evening in a drainage
ditch about four blocks from her family’s residence.
¶14. In March 2015, the Estate filed suit against Yazoo City under the MTCA, claiming
Yazoo City had failed to (a) warn Patrauna of the dangerous nature of the Seventh Street
drainage ditch; (b) adequately maintain, repair, and inspect the drainage ditch; and (c) require
construction and improvements be performed to the drainage ditch in accordance with
existing engineering standards, with approval of the appropriate governmental agency.
¶15. Discovery ensued, during which numerous depositions were taken. The Estate
submitted an affidavit from Gillian Butler, a private civil engineer in the field of hydrologic
and hydraulic engineering. For her expert opinion, Butler relied on all the depositions taken
in the case, along with Yazoo City ordinances, flood-insurance study reports, National Flood
Insurance Program (NFIP) regulations, public-safety guidelines, and other information.
¶16. Butler submitted a report with her affidavit, detailing a hydraulic analysis she had
conducted on two, side-by-side culverts installed downstream from Patrauna’s residence in
2007. Each culvert is approximately 405 feet in length, and forty-eight inches and thirty-six
inches in diameter, separately. According to Butler’s report, the two culverts increased the
flood height upstream by approximately two inches and the velocity of flood water at the
culvert inlet by 0.35 feet per second.
¶17. Butler opined that, prior to 2007, “storm water appears to have flowed along Seventh
Street between Lee Street and Prentiss Avenue in an open ditch (save for the Lee Street
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crossing).” Based on board minutes taken from a city council meeting held in February 2007
by the Mayor and Board of Aldermen, action was taken to purchase 800 linear feet of
drainage pipe for the Seventh Street ditch. The project appeared to have begun in late March
or early April 2007.
¶18. In Butler’s opinion, the decision to convert the Seventh Street ditch between Prentiss
and Lee Avenues into culverts should have triggered an application for a “floodplain
development permit.” In turn, the application should have included an engineering analysis,
along with public-safety considerations under the guidelines and standards for the installation
of long culverts. According to Butler, Yazoo City did not follow these guidelines and
standards, and the failure to do so led to the dangerous condition that caused Patrauna’s
drowning.
¶19. James Wayne Morrison, a private civil engineer who provides engineering consulting
services to Yazoo City, explained in his deposition that the Seventh Street drainage ditch is
part of the Willis Creek drainage system, which was dug in the 1940s. This system
originated as a series of open ditches throughout Yazoo City. Morrison said Yazoo City is
protected by a levee, and everything that drains inside the levee eventually makes its way to
Lake Yazoo, where it is then pumped over the levee into the Yazoo River.
¶20. In describing the course that rainwater runoff takes from Seventh Street to the Yazoo
River, Morrison said the “water drains from the hills in a western direction to a lateral ditch
through the lateral ditches of [Seventh] Street and then to Martin Luther King and traverses
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on to the south side of [Seventh] Street [where] it intersects the main trunk line of the Willis
Creek Drainage District and then goes south into Lake Yazoo.”
¶21. According to Yazoo City, the “Drainage District dissolved in 1995, [and] its land
interests within the city limits were conveyed to Yazoo City, including the drainage easement
that runs along Seventh Street.” The only significant improvement project involving the
Seventh Street drainage ditch between the time Yazoo City acquired the drainage easement
in 1994 and the date of Patrauna’s drowning occurred in 2007, when parallel culverts were
installed and covered along the ditch from Lee Avenue to Prentiss Avenue.
¶22. Morrison said the 2007 project was a joint project with Yazoo County. The county
supplied the culverts, the equipment, and most of the manpower. Morrison said the City
authorized approximately 800 feet of drainage pipe to be laid on Seventh Street, and the City
split the cost with the county. Jimmie Drewery, the county road manager, chose the size of
the pipes to match the size of the pipes that already existed under the roadway, one forty-
eight inches in diameter, and the other thirty-six inches in diameter. The pipes were laid
parallel to each other for approximately 400 feet.
¶23. Morrison said his only advice in the project was that the county use bituminous coated
pipe “so that the pH of the soil wouldn’t eat up the pipe too quickly.” Morrison said no
hydraulic analysis was performed in 2007. Morrison conducted a hydraulic analysis of the
parallel pipes in November 2014, after Patrauna’s death. He said the results did not show
any increase in the flow of water in the portion of the ditch located beside Patrauna’s
residence. Morrison clarified, however, that his team did not duplicate the rain conditions
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of the April 6 event. He said they passed a volume of water equivalent to a ten-year rain
event and a twenty-five-year rain event through the pipes. The April 6 event “was a severe
extraordinary rain event[,]” much greater than a twenty-five-year rain event–which,
according to Morrison, “is a 2 and a quarter inch rain an hour.” Morrison said the parallel
pipes were sufficient to handle “about a 20, 21 year rain event[,]” because that was the design
standard of the existing pipes.
¶24. The record indicates that the Seventh Street drainage ditch in front of Patrauna’s
residence since has been covered. And Yazoo City has been covering other, similar drainage
ditches throughout the city on a step-by-step basis.
¶25. The trial court granted summary judgment in favor of Yazoo City, finding that the
City is immune from liability because the maintenance of drainage ditches is a discretionary
function, and also because the ditch was an open and obvious danger.
¶26. Relying on Brantley, the trial court said it is required first to determine whether the
overarching governmental function at issue is discretionary or ministerial. 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,
notwithstanding that it may have been performed within the scope of a broader discretionary
function. Brantley, 152 So. 3d at 1114.
¶27. The trial court found that, while Yazoo City does have ordinances in place that
regulate the development of flood-prevention structures, it does not appear these ordinances
were intended to assign a ministerial function to the City’s ability to build ditches.
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Therefore, according to the trial court, the city is immune from liability because maintenance
of the ditch is a discretionary function under Section 11-46-9(1)(d).
¶28. The trial court also found that, based on the MTCA, a “governmental entity shall not
be liable for the failure to warn of a dangerous condition which is obvious to one exercising
due care.” See Miss. Code Ann. § 11-46-9(1)(v) (Rev. 2012). The trial court found that the
drainage ditch was an open and obvious danger in this matter. Fanny repeatedly had warned
Patrauna not to play in or near the ditch, and Fanny had warned Patrauna on the night in
question not to go near the ditch. The court found the fact that Patrauna was nine years old
and that her age possibly affected her ability to appreciate the open and obvious danger did
not serve as a bar to the open-and-obvious defense.
STANDARD OF REVIEW
¶29. The grant or denial of a motion for summary judgment is reviewed de novo. City of
Magee v. Jones, 161 So. 3d 1047, 1049 (Miss. 2015). The evidence is viewed in the light
most favorable to the party opposing the motion. Id. Only if there is no genuine issue of
material fact is the moving party entitled to summary judgment as a matter of law. Id.
Questions of law, which include proper application of the MTCA, also are reviewed de novo.
Maldonado v. Kelly, 768 So. 2d 906, 908 (Miss. 2000).
DISCUSSION
¶30. The Estate argues Yazoo City violated numerous ordinances and federal regulations
in its decision to convert a portion of the Seventh Street drainage ditch to culverts in 2007,
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and this change to the city’s drainage system created the dangerous condition that caused
Patrauna’s death.
¶31. The Estate maintains that Yazoo City had a ministerial duty to comply with its
ordinances and controlling federal regulations. The Estate argues that because Yazoo City
participates in the National Flood Insurance Program (NFIP), the City, as a participant, is
governed by certain federal regulations, one of which provides: “These regulations must be
legally enforceable, applied uniformly throughout the community to all privately and publicly
owned land with flood-prone . . . areas, and the community must provide the regulations take
precedence over any less restrictive conflicting local laws, ordinances, or codes.” 44 C.F.R.
60.1(b) (2009).
¶32. The Estate argues that Yazoo City, “in compliance with NFIP federal regulations,”
has adopted numerous ordinances which together required Yazoo City to “(a) obtain a
development permit, (b) submit a plan to the city engineer, (c) conduct a hydraulic analysis,
and (d) obtain an engineer’s certification before implementing the 2007 project.” (Citing
Yazoo City, Miss., Code of Ordinances, §§ 11.5-3, 11.5-4, 11.5-5, 11-5.23, 11-5.32, 11-
5.43(2), 18.7(a) and (b) (2005)). The Estate submits that Butler’s uncontested expert report
sets out that Yazoo City “violated all of these ordinances and this regulation in enacting its
ultimately deadly change in the drainage system of Yazoo City.” For these reasons,
according to the Estate, the duties imposed on Yazoo City were ministerial, not discretionary.
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¶33. For authority, the Estate points to Mississippi Transportation Commission v. Adams,
197 So. 3d 406, 412 (Miss. 2016), in which this Court held that the general discretionary
function with respect to placement of traffic control devices was rendered ministerial by the
Mississippi Transportation Commission’s adoption of the Mississippi Standard
Specifications for Road and Bridge Construction (the “Red Book”). Id. at 412-14. Adams
reiterated that, under Brantley, even when a duty might be discretionary, there may be
instances where “narrower duties encompassed in a broad discretionary function may be
rendered ministerial through statute or regulation.” Id. (quoting Brantley, 152 So. 3d at
1113).
¶34. According to the Estate, as found in Adams, for purposes of Section 11-46-9(1)(d)
immunity, any discretionary function Yazoo City had with the 2007 project was rendered
ministerial by the City’s adoption of the aforementioned ordinances and participation in the
NFIP.
¶35. Yazoo City argues, however, that maintenance, inspection, and repair of municipal
drainage ditches and channels are discretionary functions as a matter of law. Municipalities
such as Yazoo City are authorized–but not required–under Mississippi Code Section 21-19-
13 to construct and maintain drainage ditches if they choose to do so. That Section provides,
in pertinent part, as follows:
(1) The governing authorities of municipalities shall have the power to
establish, alter and change the channels of streams or other water courses, and
to bridge the same, whenever so to do will promote the health, comfort and
convenience of the inhabitants of such municipality.
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(2) The governing authorities of any municipality shall also have the power
and authority to incur costs and pay necessary expenses in providing labor,
materials and supplies to clean or clear drainage ditches, creeks or channels,
whether on public or private property, and to incur costs and pay necessary
expenses in providing labor, materials and supplies in order to prevent erosion
where such erosion has been caused or will be caused by such drainage
ditches, creeks or channels. This paragraph shall not impose any obligation or
duty upon the municipality and shall not create any additional rights for the
benefit of any owner of public or private property.
Miss. Code Ann. § 21-19-13 (Rev. 2015).
¶36. Yazoo City maintains that because no statutes, ordinances, or regulations impose any
affirmative duty on Yazoo City to maintain, repair, or inspect its drainage ditches, Yazoo
City officials must use their judgment and discretion in determining whether, when, how, and
to what extent these activities are conducted, in accordance with available funding and other
resources. Yazoo City further contends that the Estate’s reliance upon several provisions in
Section 11.5 of the Yazoo City Code of Ordinances and the Yazoo County Flood Prevention
Ordinance is misplaced. These ordinances require private developers to obtain from the City
(or county, if applicable) a development permit before conducting construction activities
within areas designated as special flood hazard areas and specify how to obtain such a
permit. The City argues that these ordinances did not place a ministerial duty on Yazoo City
to obtain a development permit from itself, nor did they place a ministerial duty on the city
engineer to obtain his own authorization before commencing the 2007 project.
¶37. As mentioned, this Court recently overruled the Brantley test for determining when
a claim against a governmental entity enjoys discretionary-function immunity under Section
11-46-9(1)(d), and restored the two-part, public-policy function test adopted by this Court
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in Jones v. Mississippi Department of Transportation, 744 So. 2d 256 (Miss. 1999), for
making that determination. See Wilcher, 2018 WL 2371859.
¶38. Under the two-part, public-policy function test, courts were directed to consider (1)
whether the act involved “an element of choice or judgment; and if so (2) whether the choice
of judgment involved social, economic or political policy [considerations].” Jones, 744 So.
2d at 262. Brantley abandoned this test and instead instructed the courts first to “consider
the broadest function involved in order to make a baseline determination of whether the
overarching function is discretionary or ministerial.” Brantley, 152 So. 3d at 1112-13. After
this determination, further examination was then required to determine whether “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, notwithstanding that
it may have been performed within the scope of a broader discretionary function.” Id. at
1114-15.
¶39. As Wilcher explained, Brantley’s aim was to create a more workable rule for
determining discretionary-function immunity. Wilcher, 2018 WL 2371859, *3. But while
well-intentioned, the new rule manifested an “unworkable departure from longstanding
precedent,” and overlooked the legislative intent behind Section 11-46-9(1)(d)–most
importantly, “policy” considerations. Id.
¶40. Wilcher noted that Brantley’s analysis “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 the myriad and sometimes arcane regulations–creating extra layers of proof, which
13
may have little or no practical effect on the actual negligent act.” Id. (quoting Crum v. City
of Corinth, 183 So. 3d 847, 854 (Miss. 2016) (Randolph, P.J., concurring in result only)
(emphasis in original)).
¶41. The other (and probably most significant) result of Brantley was the all-too-apparent
and prevalent misunderstanding among practitioners, based on their reliance on Brantley,
that Section 11-46-9(1)(d) allows for “actions based solely on violations of statutes and/or
local ordinances or regulations, which [practitioners] argue impose ‘ministerial’ duties.”
Wilcher, 2018 WL 2371859, *4. But as Wilcher explained, “this practice is certainly not
what the Legislature intended[, and is in fact] completely backwards.” Id.
¶42. Wilcher reiterated as follows:
Section 11-46-9(1) restores sovereign immunity. Simpson Cty. v. McElroy,
82 So. 3d 621, 624 (Miss. Ct. App. 2011). It does not in itself create duties.
Id. Furthermore, regulations do not create causes of action, and the MTCA
does not grant a right to recover based on a mere violation of statute or
regulation. Taylor v. Delta Reg’l Med. Ctr., 186 So. 3d 384, 390-91 (Miss. Ct.
App. 2016). The general rule is that ‘a mere violation of a statute or regulation
will not support a claim where no private cause of action exists.’” Id.
(quoting Tunica Cty. v. Gray, 13 So. 3d 826, 829 (Miss. 2009)).
Id.
¶43. Wilcher then pointed out:
Despite this, Brantley’s analysis wrongly zeroes in on applicable regulations
and ordinances. And if a regulation is ‘ministerial,’ this Court began to
presume that the alleged violation of that regulation or ordinance, itself,
establishes a viable cause of action without even questioning if a claim would
exist without the regulation.
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Id. “As a result of Brantley, what the Legislature intended as a shield–discretionary-function
immunity under Section 11-46-9(1)(d)–is flipped on its head and is being used as a sword.”
Id.
¶44. This is what we have in the case before us. Again, the Estate claims that the NFIP’s
federal regulations and the ordinances adopted by Yazoo City in furtherance of those federal
regulations as part of the City’s participation in the NFIP program, impose a “ministerial
duty” upon the City to comply with those laws, the breach of which–in this instance–allows
for a tortious cause of action arising from wrongful death. But we find that neither the
NFIP’s regulations nor Yazoo City’s related ordinances create any such cause of action.
¶45. First, as the Fifth Circuit Court of Appeals has explained, the NFIP is a voluntary
insurance program, and its rules do not provide a private right of action. United States v. St.
Bernard Parish, 796 F.2d 1116 (5th Cir. 1985). “[T]he principal purpose in enacting the
NFIP was to reduce through the implementation of adequate land use controls and the
availability of subsidized flood insurance, the massive and ever increasing burden of federal
flood disaster assistance.” Id. But nowhere in the NFIP’s language and its legislative history
“can we find evidence that Congress had any intent to allow a private cause of action, either
expressly or by implication.” Id. As the Supreme Court commented in Touche Ross & Co.
v. Redington, 442 U.S. 560, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979), “when Congress wished
to provide a private damages remedy, it knew how to do so and did so expressly.”
¶46. The same goes for the ordinances adopted by Yazoo City in furtherance of its
participation in the NFIP. While Yazoo City is required to comply with these ordinances
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as part of its participation in the NFIP, none of these ordinances establishes a private right
of action against Yazoo City either in personal-injury tort or wrongful death.
¶47. Nor does Section 21-19-13. This section merely authorizes municipalities to construct
and maintain drainage ditches; it does not create a right of action or establish a duty of care
owed by a municipality to its inhabitants. Miss. Code Ann. § 21-19-13 (Rev. 2015).
¶48. For these reasons, the Estate’s claim that Yazoo City is liable for the wrongful death
of Patrauna, resulting from Yazoo City’s failure to comply with its ordinances and federal
regulations under the NFIP, fails as a matter of law for failure to state a cause of action.
¶49. That said, the Estate also alleged in its complaint that the Seventh Street drainage
ditch constituted a dangerous condition because Yazoo City had failed to properly maintain
the ditch by keeping it free of vegetation, trash and debris. This claim is predicated on
ordinary negligence, and is entirely different from the Estate’s theory of liability with regard
to Yazoo City’s failure to comply with ordinances and federal regulations associated with the
NFIP. The Estate, however, appeared to disregard this claim along the way.
¶50. Based upon our de novo review of the record, we cannot tell whether the Estate did
so based upon its investigation into the facts of the case, or based upon its reliance on
Brantley.
¶51. Given that the Estate’s case was still pending when Wilcher handed down, overruling
the Brantley test and reinstituting the public-policy function test for purposes of Section 11-
46-9(1)(d), the applicability of subsection (d) must be decided under the reinstituted public-
policy function test. And out of fairness to the Estate, we find the Estate should be allowed
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the opportunity to fully present its negligence claim, beyond its reliance on the overruled
Brantley test.
¶52. Furthermore, following careful de novo review of this record, we continue to have
questions with regard to the applicability of both subsections (d) and (v) to the current facts
in this case. And in fairness to both parties, we decline to enter into a discussion with regard
to either exemption under the record in this case.
¶53. For these reasons, we reverse the trial court’s decision granting summary judgment
in favor of Yazoo City, and we remand the case for further proceedings, allowing for
additional discovery, as necessary, under the trial court’s discretion.
CONCLUSION
¶54. The trial court’s judgment is reversed, and this case is remanded for further
proceedings consistent with this opinion.
¶55. REVERSED AND REMANDED.
WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, CHAMBERLIN
AND ISHEE, JJ., CONCUR. KITCHENS, P.J., CONCURS IN RESULT ONLY
WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.
KITCHENS, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:
¶56. In Wilcher v. Lincoln County Board of Supervisors, I predicted that “upon this
court’s return to the public policy function test, litigants and courts will continue to be
required to ‘scour the state manual’ and ‘hunt for other regulations and ordinances’ in order
to make arguments about whether the activity in question involved any policy
considerations.” Wilcher v. Lincoln Cty. Bd. of Supervisors, 2018 WL 2371859 (Miss. May
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24, 2018) (Kitchens, J., concurring in result only). While I abstain from reiterating my
arguments in opposition to the overruling of Brantley v. City of Horn Lake, 152 So. 3d 1106
(Miss. 2014), I write here to observe that my prediction regarding the public-policy function
test has come to pass.
¶57. The majority is correct that Mississippi Code Section 21-19-13 authorizes, but does
not require, the governing authority of a municipality to “establish, alter and change the
channels of streams or other water courses, and to bridge the same, whenever so to do will
promote the health, comfort and convenience of the inhabitants of such municipality” and
to “pay necessary expenses in providing labor, materials and supplies to clean or clear
drainage ditches, creeks or channels . . . and to incur costs and pay necessary expenses in
providing labor, materials and supplies in order to prevent erosion . . . .” Miss. Code Ann.
§ 21-19-13(1), (2) (Rev. 2015). But that discretionary function is rendered ministerial by
narrower requirements that are mandated by city and county ordinances:
1. Yazoo City, Miss., Flood Damage Prevention Ordinance art. I, § 11.5-
23 – requiring a development permit “prior to the commencement of
any development activities in the areas of special flood hazard.”
2. Yazoo City, Miss., Flood Damage Prevention Ordinance art. III, § 11.5-
32 – establishing required procedures for applying for and obtaining a
development permit.
3. Yazoo City, Miss., Flood Damage Prevention Ordinance art. III, § 11.5-
43(2) – requiring, in special flood hazard areas, that “no
encroachments, including fill material or structures, shall be permitted
unless certification by a professional engineer is provided
demonstrating that the cumulative effect of the proposed development,
when combined with all other existing and anticipated development,
will not increase the water surface elevation of the base flood more than
one foot at any point within the community. The engineering
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certification must be supported by technical data that conforms to
standard hydraulic engineering principles.”
4. Yazoo City, Miss., Ordinance 18.7(a) and (b) – requiring a written
permit prior to excavation or “any work on or under the surface of the
right-of-way of any dedicated street . . . .”
5. Yazoo Cty, Miss., Flood Damage Prevention Ordinance art. 3, § C –
requiring a development permit “in conformance with the provision of
this ordinance prior to the commencement of any development
activities in the areas of special flood hazard.”
6. Yazoo Cty., Miss., Flood Damage Prevention Ordinance art. 3, § D –
“[n]o structure or land shall hereafter be located, extended, converted
or structurally altered without full compliance with the terms of this
ordinance and other applicable regulation.”
7. Yazoo Cty., Miss., Flood Prevention Ordinance art. 4, § B – detailing
the requirements for obtaining a permit.
8. Yazoo City, Miss., Flood Damage Prevention Ordinance art. I, §§ 11.5-
3, 11.5-4, and 11.5-5 – setting forth general requirements “to promote
the public health, safety and general welfare and to minimize public and
private losses due to flood conditions in specific areas . . . .”
9. Yazoo Cty., Miss., Flood Prevention Ordinance art. 1, §§ C and D –
requiring the county “to promote the public health, safety and general
welfare and to minimize public and private losses due to flood
conditions in specific areas . . . .”
In addition, the National Flood Insurance Program (NFIP), in which Yazoo City and Yazoo
County participate, provides that: “These regulations must be legally-enforceable, applied
uniformly throughout the community to all privately and publicly owned land within
flood-prone . . . areas, and the community must provide that the regulations take precedence
over any less restrictive conflicting local laws, ordinances or codes.” 44 C.F.R. § 60.1(b)
(2009).
19
¶58. In response to the motion for summary judgment filed by Yazoo City and Yazoo
County, Hudson presented uncontradicted expert testimony by Gillian Butler, a civil engineer
in the field of hydrologic and hydraulic engineering, in the form of an affidavit. Butler stated
that “[t]he standard of care requires that Yazoo County and the City of Yazoo City comply
with the provisions of these ordinances” and that “Yazoo County and Yazoo City’s failure
to comply with the provisions of these ordinances constituted a breach of the standard of
care.” This breach of the standard of care, Butler opined, “led to the dangerous condition
which resulted in the drowning of Patrauna Hudson.”
¶59. The majority argues that Hudson has failed to state a cause of action because “neither
the NFIP’s’s regulations nor Yazoo City’s related ordinances create any such a cause of
action.” Maj. Op. ¶ 44. The majority continues: “[w]hile Yazoo City is required to comply
with these ordinances as part of its participation in the NFIP, none of these ordinances
establishes a private right of action against Yazoo City either in personal-injury tort or
wrongful death.” Maj. Op. ¶ 46. Both of those regulations, however, which create ministerial
duties, establish a standard of care and, concomitantly, remove the cloak of immunity from
the governmental entity.
¶60. In Mississippi Transportation Commission v. Adams, this Court held that, while
Mississippi Code Section 63-3-303 is discretionary, the Mississippi Transportation
Commission’s adoption of the Mississippi Standard Specifications for Road and Bridge
Construction (the “Red Book”) imposed narrower ministerial duties on the Mississippi
Transportation Commission entitling the plaintiff to proceed with her claims. Miss. Transp.
20
Comm’n v. Adams, 197 So. 3d 406, 413 (Miss. 2016). The Adams Court held that the
plaintiff had “produced evidence that the defendants had breached certain specific ministerial
duties imposed by their own duly adopted regulations.” Id.1 Here, as in Adams, the plaintiff
has presented uncontradicted expert testimony establishing that Yazoo City and Yazoo
County “breached certain ministerial duties imposed by their own duly adopted regulations.”
¶61. The majority reiterates Wilcher: “‘[a]s a result of Brantley, what the Legislature
intended as a shield—discretionary-function immunity under Section 11-46-9(1)(d)—is
flipped on its head and is being used as a sword.’” Maj. Op. ¶ 43 (quoting Wilcher, 2018 WL
2371859, at * 4). In his Mississippi Rule of Appellate Procedure 28(k) letter sent following
this Court’s decision in Wilcher on May 24, 2018, Hudson’s counsel stated the following:
Under Wilcher, a municipality must still ensure that unsafe conditions or
health hazards are not created through flooding. In this case, Ms. Hudson’s suit
does not second-guess Yazoo City’s decision to spend municipal funds to
regulate water runoff. Instead, Ms. Hudson filed suit under the theory that the
City created a dangerous condition through its failure to follow a ministerial
statute, and then failed to warn or correct this dangerous condition. Indeed the
city’s engineer admitted under oath that the City never did a site plan or an
engineering drawing, as required by law. The lone expert testified that the
City’s failure to follow its own laws directly led to the dangerous condition
which killed the little girl.
It is clear, even under the public-policy function test, that plaintiffs will continue to search
out and rely upon the narrowest regulations, statues, and ordinances in order to establish the
existence of a standard of care and the breach thereof.
¶62. The quagmire of confusion which has resulted from Wilcher continues. Accordingly,
I respectfully concur in result only.
1
While this Court, in Wilcher, overruled Brantley, Adams remains untouched.
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KING, J., JOINS THIS OPINION.
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