Mississippi Supreme Court Revisits the Mississippi Torts Claim Act, Again

By Jeff Wagner, Shareholder
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.

Sovereign immunity is a legal doctrine under which the government is immune from civil claims or lawsuits. The doctrine had at its roots the antiquated notion that “the King can do no wrong.” The Mississippi Supreme Court ended common law (judicially-created) sovereign immunity in its decision in Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss. 1982), stating that, if the Mississippi Legislature desired for governmental entities in the state to have immunity, it would need to enact a statutory immunity scheme. 

In response, the Mississippi Legislature adopted the Mississippi Tort Claims Act, §11-46-1 et seq. (the “MTCA”) in 1984. In adopting the MTCA, the Legislature confirmed that “the State of Mississippi and its political subdivisions…are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract.” After confirming that the state and political subdivisions are protected by sovereign immunity, the MTCA waives immunity, with certain exceptions, in an amount of up to $500,000 per claim.

One of the more commonly used exceptions (defenses) to liability under the MTCA is set forth in §11-46-9(1)(d) which provides that neither the governmental entity, nor any of its employees (when acting in the course and scope of employment), shall be liable “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.”

Since enactment of the MTCA, the Mississippi Supreme Court has struggled with this exception, adopting various tests to determine whether a public body is involved in a “discretionary function.” In Wilcher v. Lincoln County Board of Supervisors, 243 So. 3d 177 (Miss. 2018), the Mississippi Supreme Court announced that it was again changing direction, returning to a two-part discretionary function test that it had just replaced in 2013. 

Under the reinstituted two-part test, the activity must involve a matter of choice or judgment (i.e., it cannot be mandated by law) and, second, the choice or judgment must involve social, economic or political-policy decisions; each to be determined with a narrow focus on the alleged wrongdoing and the decision-making involved. Previously, the court had taken an expansive view of “discretionary function” which often shielded governmental entities from simple negligence.  As an example, the court in Wilcher criticized its own decision in Pratt v. Gulfport-Biloxi Regional Airport Authority, 97 So. 3d 68 (Miss.  2012) (where the court determined that, since operation of an airport is a discretionary function, nearly every decision made by the Authority, including a decision made by maintenance personnel to apply non-slip tape to only the center portion of metal stairs rather than the full-width of each step, to be a policy decision) as “strain[ing] credulity.”

Although the actual test being used is still a little murky, what is clear is that the Mississippi Supreme Court is not looking to excuse governmental entities from liability for negligent decisions if those decisions are not at the heart of policy-making.

Jeff Wagner is a shareholder in the Jackson, Mississippi, office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., and may be reached at 601-973-3610 or by email at [email protected]