public-policy function test in Mississippi

2022Instead, this Court readopted the two-part public-policy function test put forth by United States Supreme Court in United States v. Gaubert, 499 U.S. 315 (1991), and initially adopted by this Court in Jones v. Mississippi Department of Transportation, 744 So. 2d 256 (Miss. 1999).

2021This Court has recently returned to using the public-policy function test articulated in Jones v. Mississippi Department of Transportation, 744 So. 2d 256 (Miss. 1999), after finding the test adopted in Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014), unworkable.

2021In Magee, our Supreme Court 2 Magee and Clein apply the two-part public-policy-function test that the Supreme Court “abolish[ed]” in Brantley v. City of Horn Lake, 152 So. 3d 1106, 1112 (¶19) (Miss. 2014), but then re-adopted in Wilcher, 243 So. 3d at 188-89 (¶36). 6 considered coaching responsibilities from the perspective of the school district.

2021This Court has recently returned to using the public-policy function test articulated in Jones v. Mississippi Department of Transportation, 744 So. 2d 256 (Miss. 1999), after finding the test adopted in Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014), unworkable.

2025To set the stage, we first address Wilcher v. Lincoln County Board of Supervisors, 243 So. 3d 177 (Miss. 2018), wherein we returned to the two-part public-policy function test to determine the applicability, if any, of discretionary immunity.

2024The Court stated, “the trial court’s application of the public-policy function test to determine if a governmental entity enjoys discretionary-function immunity comes after an important pre-test step—namely, identifying ‘the allegedly tortious act giving rise to the claim.’” Id. at 945 (quoting Wilcher, 243 So. 3d at 187 ). ¶23.

2018The regional airport authority’s “operation of the airport involve[d] social and economic policy considerations, satisfying the second part of the public-policy function test.” Id. (emphasis added).

2018The regional airport authority's "operation of the airport involve[d] social and economic policy considerations, satisfying the second part of the public-policy function test." Id. (emphasis added).

2016See also Boroujerdi, 158 So.3d at 1115 (“A thorough review of the majority opinion reveals no mention of the Legislature’s reenactment of Section 11-46-9 eight years after this Court’s holding in Jones, which serves as evidence of the Legislature’s approval and incorporation of the public-policy function test into the statute.”) (Waller, C.J., dissenting). ¶ 43.

2016See also Boroujerdi, 158 So. 3d at 1115 (“A thorough review of the majority opinion reveals no mention of the Legislature’s reenactment of Section 20 11–46–9 eight years after this Court’s holding in Jones, which serves as evidence of the Legislature’s approval and incorporation of the public-policy function test into the statute.”) (Waller, C.J., dissenting). ¶43.

2022Instead, this Court readopted the two-part public-policy function test put forth by United States Supreme Court in United States v. Gaubert, 499 U.S. 315 (1991), and initially adopted by this Court in Jones v. Mississippi Department of Transportation, 744 So. 2d 256 (Miss. 1999).

2018Jones , 744 So.2d at 260 ("adopt[ing] the public policy function test" from Gaubert , 499 U.S. at 322 , 111 S.Ct. at 1273 ).

2016On appeal, Crum argued again that federal and state regulations imposed “a statutory and a regulatory duty to maintain the City’s, sewer system, and, when necessary, to repair any defective portion thereof.” Alternatively, Crum argued that the manhole cover’s exposure was caused, not by the exercise of a discretionary function of the City, but by the simple negligence of the bush hog operator: “the Bush Hog operator exercised no social, economic, or political policy analysis when he was cutting the grass in the ditch bank.” See Fortenberry, 71 So.3d at 1199 (The public-policy function test req

2016On appeal, Crum argued again that federal and state regulations imposed “a statutory and a regulatory duty to maintain the City’s sewer system, and, when necessary, to repair any defective portion thereof.” Alternatively, Crum argued that the manhole cover’s exposure was caused, not by the exercise of a discretionary function of the City, but by the simple negligence of the bush hog operator: “the Bush Hog operator exercised no social, economic, or political policy analysis when he was cutting the grass in the ditch bank.” See Fortenberry, 71 So. 3d at 1199 (The public-policy function test req

2012This Court has explained that the policy underlying the second part of the public-policy function test is that “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 standards of general reasonableness.” Dancy, 944 So.2d at 17 (internal citations omitted). “[T]his Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.” Id. at 17-18 (

2012In analyzing the public-policy function test, the Mississippi Supreme Court has stated that the focus is not on the decision maker’s “subjective intent in exercising the discretion conferred by statute^] but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Id. (quoting United States v. Gaubert, 499 U.S. 315, 325 , 111 S.Ct. 1267 , 113 L.Ed.2d 335 (1991)). ¶ 9.

2016Employing 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.

2016“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 (citing Dancy v. E.

2019See City of Magee v. Jones, 161 So. 3d 1047, 1050 (¶9) (Miss. 2015) (stating that Fortenberry applied the “two-pronged public-policy function test,” which had “since been overruled” in Brantley v. City of Horn Lake, 152 So. 3d 1106, 1112 (¶19) (Miss. 2014)).

2016Brantley, 152 So.3d at 1112; see also City of Magee v. Jones, 161 So.3d 1047, 1050-51 (Miss.2015) (discussing how “this Court’s rules for determining discretionary-function immunity have changed drastically ... in light of the new test set out ... .in Brant-ley ”). ¶ 36.

2016See Caves, 991 So. 2d at 154 .

2016See Caves, 991 So.2d at 154 .

2016See McDaniel v. Cochran, 158 So. 3d 992, 1000 (Miss. 2014) (“The Legislature is assumed to be aware of judicial interpretations of its statutes, and . . . we must conclude that the legislative silence amounts to acquiescence.”) (internal citations omitted). “[A]bsent legislative action, [our interpretations] become a part of the statute.” Id.

2016See McDaniel v. Cochran, 158 So. 3d 992, 1000 (Miss. 2014) (“The Legislature is assumed to be aware of judicial interpretations of its statutes, and . . . we must conclude that the legislative silence amounts to acquiescence.”) (internal citations omitted). “[A]bsent legislative action, [our interpretations] become a part of the statute.” Id.

1999Also in King v. City of Jackson, 667 So.2d 1315, 1316 (Miss.1995), this Court held that "as a matter of public policy the decision of a city whether to place traffic or warning signs is a governmental function, not proprietary." The outcome would be the same under the public policy function test. ¶ 13.

1998Also in King v. City of Jackson, 667 So. 2d 1315, 1316 (Miss. 1995), this Court held that "as a matter of public policy the decision of a city whether to place traffic or warning signs is a governmental function, not proprietary." The outcome would be the same under the public policy function test. ¶13.

2021If the court finds that the activity was discretionary, the second step of the public- policy function test requires the court to “decide whether that choice or judgment involved social, economic, or political-policy considerations.” Wilcher, 243 So. 3d at 187 (citing Montgomery, 80 So. 3d at 795 . ¶21.

2018Under the public policy function test, "the Court first determines 'whether the activity in question involved an element of choice or judgment[,]" and, if so, 'whether that choice or judgment involved social, economic, or political-policy considerations.' " Brantley , 152 So.3d at 1112 (citing Montgomery , 80 So.3d at 795 ) (citing Jones , 744 So.2d at 260 ).

2016In reaching that decision, the Court did not rely upon the public-policy function test at all.”) (citing Little, 129 So.3d at 138 ). ¶ 42.

2016In reaching that decision, the Court did not rely upon the public-policy function test at all.”) (citing Little, 129 So.3d at 138 ). ¶ 42.

2015See Berkovitz by Berkovitz v. U.S., 486 U.S. 531, 537 , 108 S.Ct. 1954 , 100 L.Ed.2d 581 (1988).

2015See Berkovitz by Berkovitz v. U.S., 486 U.S. 531, 537 , 108 S.Ct. 1954 , 100 L.Ed.2d 581 (1988).

2014See Shaw, 45 So. 3d at 659 (“Governmental acts can be discretionary, ministerial, or neither . . . .

2012In the Shaw case, the proceeds from the fundraiser aided the school in fulfilling its “purpose of providing care for, and treatment of, mentally retarded persons.” Shaw, 45 So.3d at 660 .

2012The supreme court ultimately determined that the “[district’s discretionary decision to allow coaches the ability to set and conduct practices is rooted in policy— coaches know their players and must be able to control their teams,” and held that the applicable provisions of the MTCA “operated to shield [the District and its coaches and employees] from any liability.” Id. at 8 (¶ 15) (citing Harris, 867 So.2d at 193 ). ¶ 16.

2009Strange cites the dissent from Harris v. McCray, 867 So.2d 188, 196 (¶ 29) (Miss.2003) (McRae, P.J., dissenting) for the proposition that there is a “third step” in the determination of whether an act is discretionary — whether the act was conducted using ordinary care.

2018Instead, the statute requires only that the discretion be exercised in the course and scope of the entity or employee's employment or duty." Today's majority exhumes the public policy function test because federal courts, including the United States Supreme Court, have construed the Federal Tort Claims Act, Title 28, Section 2680(a) of the United States Code, to include "actions for personal injuries '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 ...." Sheridan v. United States , 487 U.S. 392 , 40

2018Instead, the statute requires only that the discretion be exercised in the course and scope of the entity or employee's employment or duty." Today's majority exhumes the public policy function test because federal courts, including the United States Supreme Court, have construed the Federal Tort Claims Act, Title 28, Section 2680(a) of the United States Code, to include "actions for personal injuries '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 ...." Sheridan v. United States , 487 U.S. 392 , 40

2018This Court “has declined to continue applying an incorrect interpretation when we find that it is ‘pernicious,’ ‘impractical,’ or ‘mischievous in . . . effect, and resulting in detriment to the public.’” Bester v. State, 188 So. 3d 526, 529 (Miss. 2016) (quoting Payne v. Tennessee, 501 U.S. 808, 828 , 111 S. Ct. 2597 , 115 L.

2018This Court "has declined to continue applying an incorrect interpretation when we find that it is 'pernicious,' 'impractical,' or 'mischievous in ... effect, and resulting in detriment to the public.' " Bester v. State , 188 So.3d 526 , 529 (Miss. 2016) (quoting Payne v. Tennessee , 501 U.S. 808 , 828, 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991) (internal quotations omitted) ).

2016However, 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 14 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)).

2016However, 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)).

2016However, 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 14 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)).

2016However, 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)).

2016In reaching that decision, the Court did not rely upon the public-policy function test at all.”) (citing Little, 129 So. 2d at 138). ¶42.

2016In reaching that decision, the Court did not rely upon the public-policy function test at all.”) (citing Little, 129 So. 2d at 138). ¶42.