DICKINSON, Presiding Justice, for the Court:
¶ 1. While visiting the DeSoto County Civic Center, Cynthia Crider stepped in a hole that was obscured by grass. She sued the DeSoto County Convention and Visitors Bureau (the Bureau), which operates the Civic Center. The circuit judge granted summary judgment to the Bureau
FACTS AND PROCEDURAL HISTORY
¶ 2. In May 2008, Crider attended a high-school graduation at the Civic Center. At the ceremony's conclusion, Crider exited the Civic Center and proceeded across a grassy area to her car. As she crossed, Crider stepped in a hole obscured by overgrown grass. She fell and broke her ankle.
¶ 3. Crider sued the Bureau, alleging that it failed to maintain the grassy area in a safe condition. The Bureau moved for summary judgment, claiming it enjoyed Mississippi Code Section 11-46-9(1)(v)'s immunity from certain premises-liability claims. The Bureau then filed a supplemental motion for summary judgment, asserting discretionary-function immunity under Mississippi Code Section 11-46-9(1)(d).
¶ 4. In granting summary judgement, the trial judge reasoned that the Bureau enjoyed discretionary-function immunity because no statute mandated that it operate a civic center and because Crider failed to show any "laws or regulations ... which would remove the Defendants' particular acts (or inaction) from the `umbrella of discretionary function immunity.'" Crider appealed.
¶ 5. On appeal, Crider argues that the circuit judge erred by failing to apply the governmental/proprietary function test which, she claims, precludes immunity. She further argues that the Bureau was not engaged in a discretionary function, and that this Court should overrule its decision in Brantley v. City of Horn Lake
¶ 6. This Court previously and unambiguously has held that, by enacting the Mississippi Tort Claims Act, the Legislature abrogated the governmental/proprietary function test.
¶ 7. The concurrence chides the Brantley majority based on its erroneous belief that Section 2680 expressly incorporates Section 1346(b). This is both legally and factually incorrect.
¶ 8. Section 2680 does not "expressly incorporate" Section 1346(b), and nothing in the language of either statute suggests that Section 2680's grant of immunity is limited to the cases mentioned in Section 1346(b). Section 2680 states:
The provisions of this chapter and section 1346(b) of this title shall not apply to:
¶ 9. By employing the word "and" in its opening sentence, Section 2680 exempts certain types of claims from two distinct statutory provisions: (1) the Tort Claims Act's waiver of immunity ("this chapter") and (2) Section 1346(b)'s grant of federal district-court jurisdiction. Conversely, our statute requires that acts occur in the course and scope of the actor's employment before discretionary-function immunity attaches.
¶ 10. Brantley is settled law, and we reject the dissent's apocalyptic characterization of it.
¶ 11. Mississippi Code Section 11-46-9(1)(d) addresses discretionary-function immunity:
¶ 12. Brantley addressed and clearly set forth the proper test for discretionary-function immunity, explaining that we first
¶ 13. So, even where the State or its subdivision establishes that it was involved in an overarching discretionary function, it nevertheless may lack immunity if the plaintiff can establish that, once the State exercised its discretion to engage in the discretionary function, it was subject to some duty imposed by law, and that the State's breach of that duty proximately caused the plaintiff's injuries and damages.
¶ 14. The Bureau's powers derive from Mississippi Code Section 17-3-29, which states in pertinent part:
¶ 15. In the broadest possible sense, the Bureau engages in an overarching discretionary function "to promote tourism and convention business."
¶ 16. By owning and using the Civic Center, the Bureau engaged in a function the statute authorized but did not require. So the Bureau's operation of the Civic Center was — as the circuit judge found — a discretionary function to which immunity attached. And, as the circuit judge found, Crider failed to point to any more narrow ministerial duty imposed by law.
¶ 17. Because the Bureau engaged in an overarching discretionary function — owning and using real property — to which immunity attached, and because the plaintiff failed to identify any more narrow ministerial function or duty imposed by law to maintain the Civic Center's grass, the learned trial judge properly granted summary judgment for the Bureau based on discretionary-function immunity.
KITCHENS, KING AND COLEMAN, JJ., CONCUR. MAXWELL, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY BEAM, J.; WALLER, C.J., AND RANDOLPH, P.J., JOIN IN PART. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, P.J., DISSENTS WITH SEPARATE
MAXWELL, Justice, concurring in result only:
¶ 19. It is said that "history is written by the victors." And today, the majority is trying to write the history of discretionary-function immunity by declaring "Brantley is settled law."
Brantley was based on a false premise.
¶ 20. Less than two years ago, Brantley was decided by a narrow five-four victory. The majority in that case abandoned long-standing precedent, opting instead to create an entirely new test for determining discretionary-function immunity. Brantley v. City of Horn Lake, 152 So.3d 1106, 1111-18 (Miss.2014). But the concurrence in Brantley adhered to stare decisis and advocated for this Court's continued application of the United States Supreme Court's two-part public-policy-function test. Id. at 1118-23 (Waller, C.J., concurring in part and in result). Since then, the "Brantley test" has drawn continuous fire.
¶ 21. Most recently, in Mississippi Transportation Commission v. Adams, "I join[ed the] other voices from this court that disagree with the recent break from precedent." Adams, 2014-IA-01419-SCT, 2016 WL 3091194, at *9 (Miss. June 2, 2016) (on rehearing) (Maxwell, J., concurring in result only). "In my view, Brantley marked an unwise and unworkable departure from longstanding precedent." Id. And a prominent omission from the newly crafted Brantley test is its failure to consider whether the alleged activity involved a policy decision. This undermines the very purpose of discretionary-function immunity — "to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort."
¶ 22. Moreover, as Presiding Justice Randolph has pointed out, Brantley "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
¶ 23. Despite these real concerns, this majority refuses to address any of Crider's arguments against the Brantley test. In her appeal, Crider argues this court's "abandonment of the public policy function test in Brantley was unwarranted and improper" for a variety of reasons. First, Crider claims the new test "ignores the U.S. Supreme Court's directive [in United States v. Gaubert] that only those functions which by nature are policy decisions, whether made at the operation or planning level, should be afforded immunity."
¶ 24. Still, these truths aside, the majority dismisses Crider's argument because, in its view, "Brantley is settled law." But what the majority leaves out is the fact that Brantley — building on its predecessor Little
A. Discretionary Function and the Public-Policy-Function Test
¶ 25. In 1999, recognizing that Section 11-46-9(1)(d) "appears to be patterned after 28 U.S.C. § 2680(a), the `discretionary function' exception to the Federal Tort Claims Act," this Court adopted the United States Supreme Court's two-part public-policy-function test for determining discretionary-function immunity. Jones v. Miss. Dep't of Transp., 744 So.2d 256, 260 (Miss.1999) (adopting the test set forth in United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)).
¶ 26. Eight years after we adopted the United States Supreme Court's test in Jones, our Legislature reenacted Section 11-46-9(1)(d). Boroujerdi, 158 So.3d at 1115 (Waller, C.J., dissenting). This unmodified reenactment signaled the Legislature's approval of our interpretation of the Mississippi Tort Claims Act as being patterned after the Federal Tort Claims Act. See McDaniel v. Cochran, 158 So.3d 992, 1000 (Miss.2014). And under the doctrine of stare decisis, it should have served to constrain this Court from further tinkering. See Caves v. Yarbrough, 991 So.2d 142, 154 (Miss.2008).
¶ 27. Yet, two years ago, five members of this Court decided to reassess the comparison between Section 11-46-9(1)(d) and Section 2680(a). Claiming to have found "a requirement not present in the Federal Tort Claims Act," the five-four majority in Brantley disavowed any similarity between Section 11-46-9(1)(d) and Section 2680(a). Brantley, 152 So.3d at 1112. The majority then abolished the federal two-part public-policy-function test and, in its place, crafted a completely new test. Id. at 1112-1115. The majority in this case continues to justify using the test it invented two years ago by perpetuating the fallacy that the Federal Tort Claims Act's "provisions
B. Comparing the State and Federal Statutes
¶ 28. Section 11-46-9(1)(d) of the Mississippi Tort Claims Act provides:
Miss.Code Ann. § 11-46-9(1)(d) (Rev. 2012). Its federal counterpart, Section 2680(a), is extremely similar:
28 U.S.C. § 2680(a).
¶ 29. The Brantley majority makes much hay over the fact Section 2680 does not contain the phrase "acting within the course and scope of their employment or duties." Brantley, 152 So.3d at 1112 (emphasis added). It goes so far as to call it "a requirement not present in the Federal Tort Claims Act." Id. But this is factually and legally not true.
¶ 30. First, from a purely textual perspective, Section 2680 expressly incorporates Section 1346(b) by cross-reference, reinstating immunity for claims brought under that provision. 28 U.S.C. § 2680. And guess what types of claims Section 1346(b) covers? None other than "claims against the United States, for money damages... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment [.]" 28 U.S.C. § 1346(b) (emphasis added).
¶ 31. So by incorporating Section 1346(b), Section 2680(a) attaches immunity to claims "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment" when those claims are "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." 28 U.S.C. § 1346(b); 28 U.S.C. § 2680. This is the exact same requirement found in Section 11-46-9(1)(d), which immunizes claims against "[a] governmental entity and its employees acting within the course and scope of their employment or duties" when that claim is "[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[.]" Miss.Code Ann. § 11-46-9(1)(d).
¶ 32. Second, common sense rejects the notion that, by using the phrase "acting within the course and scope of their employment or duties," our Legislature was adding a unique requirement to our Tort Claims Act and, thus, narrowing the scope of discretionary-function immunity. The majority emphasizes that "our statute requires that acts occur in the course and scope of the actor's employment before discretionary-function immunity attaches." Well, of course it does.
¶ 33. Section 11-46-9(1), like Section 2680, is about restoring sovereign immunity
¶ 34. The Federal Tort Claims Act functions no differently. Both acts cover tort claims against the government actors. And both acts necessarily limit discretionary-function immunity to discretionary actions taken by governmental actors acting within the course and scope of their employment or duties. If anything, Section 11-46-9(1)(d)'s phrase "acting within the course or scope of their employment or duties" makes explicit what is implicit in Section 2680 — because a discretionary action taken by a government employee while not acting within the course and scope of his employment or duties is just a personal decision, not attributable to the government and not eligible for the protective cloak of sovereign immunity under either statutory scheme.
¶ 35. So in reality, there is no difference between the discretionary-function immunity provisions in Section 11-46-9(1)(d) and Section 2680(a) — let alone a material difference justifying abolishing the two-part public-policy-function test.
¶ 36. Here, when asked by Crider to return to the old test, the majority has chosen to disregard Crider's legitimate concerns and instead further perpetuate Brantley's false premise that our discretionary-function-immunity provision is somehow unique. In doing so, the majority misses a golden opportunity to right the ship and return to the longstanding two-part public-policy-function test. As I refuse to follow the majority down this errant path, I join the majority in result only.
II. The Bureau is still immune.
¶ 37. That said, in Crider's case, such a return would not change the fact that the Bureau is immune.
¶ 38. As Presiding Justice Randolph points out, DeSoto County is not immune under the public-policy-function test. However, as part of our de novo review, we must affirm the grant of summary judgment "[i]f any ground raised and argued below will support the lower court's decision." Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss. 1996) (citing Kirksey v. Dye, 564 So.2d 1333, 1336-37 (Miss.1990)). And here, as the majority pointed out, discretionary-function immunity was not the only — nor even the first — ground for immunity the Bureau asserted.
¶ 39. The Bureau also argued to the trial court that it was immune under Section 11-46-9(1)(v).
¶ 40. For these reasons I concur in the result only.
BEAM, J., JOINS THIS OPINION. WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION IN PART.
RANDOLPH, Presiding justice, dissenting:
¶ 41. In 2014, by a five-four decision, this Court abrogated fifteen years of precedent regarding discretionary-function immunity under the Mississippi Tort Claims Act (MTCA),
¶ 42. While the majority describes Brantley as "settled law,"
¶ 43. It was the majority in Brantley that disregarded stare decisis. See Boroujerdi, 158 So.3d at 1115 (Waller, C.J., dissenting). The proponents of the Brantley test have yet to justify why such a break with precedent was warranted or necessary, notwithstanding Chief Justice Waller's arguments to the contrary.
Boroujerdi, 158 So.3d at 1115-16 (Waller, C.J., dissenting).
¶ 44. In applying the Brantley test, the majority looks to the "broadest function involved in order to make a baseline determination" and then examines "any narrower duty" to determine whether a governmental entity enjoys discretionary-function immunity. See Maj. Op. at ¶ 12 (citing Brantley, 152 So.3d at 1114-15). But the statute does not speak to "broad functions," "baseline determinations," or "narrow duties." See Miss.Code Ann. § 11-46-9(1)(d) (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"). Brantley and its progeny grafted those terms into the statute — without definition or guidance in their application. The result is an amalgamation of various interpretations, from a multitude of justices on this Court and judges on the Court of Appeals, lacking a modicum of consistency and predictability.
¶ 45. Discretionary immunity is one of the most misunderstood and oft-criticized areas of law in our state. The need to return to the public-policy function test is self-evident. We should accept Crider's invitation to do so. "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." Crum, 183 So.3d at 854 (Randolph, P.J., concurring in result only) (citing Dancy v. E. Miss. State Hosp., 944 So.2d 10, 16 (Miss.2006)).
Id. at 854 (citing Fortenberry v. City of Jackson, 71 So.3d 1196, 1204-05 (Miss. 2011) (Randolph, J., dissenting)).
¶ 47. Moreover, I fail to see how the lawn-mower operator's choice involved social, economic, or political policy. His job was to cut the grass and inspect the grounds. Operating a lawn mower 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. Crider alleges a simple act of negligence which is not protected by discretionary-function immunity.
¶ 48. In sum, I would revive the public-policy function test. Applying the public-policy function test, the Bureau's alleged failure to inspect and maintain its grounds did not implicate public-policy considerations. I would find the circuit court erred in granting summary judgment in favor of the Bureau based on discretionary-function immunity.
WALLER, C.J., JOINS THIS OPINION. MAXWELL AND BEAM, JJ., JOIN THIS OPINION IN PART.
Brantley, 152 So.3d at 1112 (quoting Miss. Code Ann. § 11-46-9(1)(d) (Rev.2012)).
Miss.Code Ann. § 11-46-9(1)(v).