State and Local Legal Blog

Mississippi Tort Claims Act — What about discretionary undertakings? | September 17, 2012

In the case of Pratt v. Gulfport-Biloxi Regional Airport Authority (GBRAA), No. 2009-CT-01202-SCT (September 6, 2012) the Mississippi Supreme Court addressed a consideration of whether discretionary or ministerial acts compromised the ability of the Mississippi Tort Claims Act [MTCA] is applicable in actions against a governmental entity.  The MTCA provides an exclusive remedy for claims against governmental entities (See Mississippi Code Annotated, Section 11-46-7 (Rev. 2002)  It is undisputed that the GBRAA is a political subdivision subject to the MTCA.

Under the MTCA, governmental entities are not liable for claims arising from discretionary functions.  There is a two-part public function test which was set forth in Miss. Transp. Comm’n v. Montgomery, 80  So. 3d 789, 795 (Miss. 2012):  did the activity in question (on which the claim for damages is based) involved an element of choice or judgment?  If so, did the choice or judgment involve social, economic or political-policy considerations?

To answer the first question, the Court must consider whether the activity was discretionary or ministerial.  A duty or activity is discretionary if it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.  A ministerial function is one positively imposed by law and required to be performed at a specific time and place, removing the officer’s or entity’s choice or judgment.

Protected discretionary functions can be made at an operational or planning level and include day-to-day decisions made by governmental actors.  While the United State Supreme court has said “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.”  The Mississippi Court, following this logic, said that the fact that day-to-day decisions may be routine or frequent does not remove them from protection as discretionary functions attendant to the operation of the public entity.

When the Court finds that the activity was discretionary, the second step of the public-policy function test requires that the Court decide whether the choice or judgment involved social, economic or policy considerations.  “State tort standards cannot adequately control those government decisions in which, to be effective, the decision maker must look to considerations of public policy and not merely to established professional standards or to general standards of reasonableness.”  Dancy v. E. Miss. State Hosp., 944 So. 2d 10, 17 (Miss. 2006).

Since the cause of action was based on actions occurring as the GBRAA was making improvements to its facility, the authority had taken economic factors into consideration, and the use of airstairs for temporary access to the tarmac, adding anti-slip tape to the stairs, and other decisions made during construction were for the convenience and safety of the airport patrons and are daily decisions that fall under the overall operation of the airport, thus satisfying the second part of the public-policy functions test.  GBRAA is entitled to discretionary-function immunity against this claim under the MTCA.

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