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TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................ i
STATEMENT OF THE ISSUES .......................... , ........................................ I
STATEMENT OF THE CASE ..................................................................... I
SUMMARY OF THE ARGUMENT.. ............................................................ 3
ARGUMENT ......................................................................................... .4
I.
THE TRIAL COURT NEITHER COMMITTED MANIFEST ERROR BY
APPLYING THE ASSUMPTION OF THE RISK DOCTRINE NOR IGNORED
EVIDENCE IN FINDING THAT THE JACKSON PUBLIC SCHOOL
DISTRICT WAS NOT NEGLIGENT.. ................................................ .4
A.
The trial court applied the correct legal standard .............................. 6
B.
The trial court considered the evidence in rendering its decision that the
Jackson Public School District was not negligent .............................. 7
II.
JACKSON PUBLIC SCHOOL DISTRICT DID NOT WAIVE THEIR RIGHT
TO MOVE FOR A DIRECTED VERDICT ON THE GROUND OF
SOVEREIGN IMMUNITY PURSUANT TO MISS. CODE ANN. §11-46-9(d) .. 8
III.
THE TRIAL COURT DID NOT ERR IN FINDING THAT THE DEFENDANT
JACKSON PUBLIC SCHOOL DISTRICT WAS NOT NEGLIGENT.. .......... 13
CONCLUSION ...................................................................................... 17
CERTIFICATE OF SERVICE ................................................................... .19
TABLE OF AUTHORITIES
CASES
A.B. ex reI. CD. v. Stone County School District, 14 So. 3d 794 (Miss. Ct. App.
2009) ............................................................................................. 13,15
All Types Truck Sales, Inc. v. Carter & Mullings, Inc. 2012 WL 3932730 (Miss. Ct. App.
Sept. 11,2012) ......................................................................................... 5
Anderson v. Jaegar, 317 So. 2d 902 (Miss. 1975) ................................................ 9
Bakerv. BriarclifJSch. Dist, N.Y.S. 2d 660 (1994) ............................................. 15
Beecham v. City of Starkville School System, 984 So. 2d 1073 (Miss. Ct. App. 2008) .... 13
Dept. Human Services v. Moore, 632 So. 2d 929 (Miss. 1994) ................................. 9
Dorrough v. Wilkes, 817 So. 2d 567 (Miss. 2002) ............................................... 9
Dunn v. Jack Walker's Audio Visual Center, 544 So. 2d 829 (Miss. 1989) .................. 7
East Mississippi State Hosp. v. Adams, 947 So. 2d 887 (Miss. 2007) ................... 10, 11
Estate of Grimes v. Washington, 982 So. 2d 365 (Miss. 2008) ........................... 11,12
GuljjJort-Biloxi Reg 'I Airport Auth. V. Montclair Travel Agency, Inc., 937 So. 2d 1000
(Miss. Ct. App. 2006) .............................................................................. 5, 6
Harris v. Harris, 867 So. 2d 188 (Miss. 2003) ............................................. 13, 14
Harris v. Lewis, 755 So. 2d 1199 (Miss. Ct. App. 1999) ........................................ 9
Hudson v. Palmer, 977 So. 2d 369 (Miss. Ct. App. 2007) ...................................... 5
Johnson v. Alcorn State University, 929 So. 2d 398 (Miss. Ct. App. 2006) .................. 5
Kroger Co. v. Scott, 809 So. 2d 679 (Miss. 2001) ................................................ 9
Lynch v. Board of Education of Collinsville Community Unit District No. 10,412 N.E. 2d
447 (111.1980) .................................................................................... 15, 16
Marshall Durbin Food Corp. v. Baker, 909 So. 2d 1267 (Miss. 2005) ........................ 9
11
McLeodv. Whitten, 413 So. 2d 1020 (Miss. 1982) ............................................... 7
McCullough v. McCullough, 2008-CA-00029 CO A,
~
25 (Miss. Ct. App. 2009) ........... 9
MS Credit Center, Inc. v. Horton, 926 So. 2d 167 (Miss. 2006) ........................... 9, 10
Murphy v. Fairport Cent. School Dist., 850 N.Y.S. 2d 752 (N.Y. 2008) ..................... 15
Parisi v. Harpursville Cent. School Dist., 553 N .Y.S. 2d 566 (1990) ................... 15, 16
Parker v. Mississippi Game and Fish Commission, 555 So. 2d (Miss. 1989) .............. .4
Southern v. Mississippi State Hasp., 853 So. 2d 1212 (Miss. 2003) .......................... .4
Strange v. Itawamba County School District, 9 So. 3d 1187 (Miss. Ct. App. 2009) ...... 14
Stuart v. University of Mississippi Medical Center, 21 So. 3d 544 (Miss. 2009) ........... 12
Todd v. First Baptist Church of West Point, 993 So. 2d 827 (Miss. 2008) .................. 13
Wilson v. Wilson, 975 So. 2d 261 (Miss. Ct. App. 2007) ........................................ 6
Yanero v. Davis,65 S.W. 3d 510 (Ky. 2001) ............................................... 16, 17
STATUTES
Mississippi Code Annotated §11-46-9 .................. 1, 2, 3, 4, II, 12, 13, 14, 15, 16, 17
11l
STATEMENT OF THE ISSUES
I.
THE TRIAL COURT NEITHER COMMITTED MANIFEST ERROR BY APPLYING
THE ASSUMPTION OF THE RISK DOCTRINE NOR IGNORED EVIDENCE IN
FINDING THAT THE JACKSON PUBLIC SCHOOL DISTRICT WAS NOT
NEGLIGENT.
A.
The trial court applied the correct legal standard.
B.
The trial court considered the evidence in rendering its decision that the Jackson
Public School District was not negligent.
II.
JACKSON PUBLIC SCHOOL DISTRICT DID NOT WAIVE THEIR RIGHT TO
MOVE FOR A DIRECTED VERDICT ON THE GROUND OF SOVEREIGN
IMMUNITY PURSUANT TO MISS. CODE ANN. §11-46-9(d).
III.
THE TRIAL COURT DID NOT ERR IN FINDING THAT THE DEFENDANT
JACKSON PUBLIC SCHOOL DISTRICT WAS NOT NEGLIGENT.
STATEMENT OF THE CASE
On April 25, 2008, the Plaintiff Derrick Amos, Jr., a then student at Chastain Middle
School broke his thumb while playing tackle football with other male students. (T. 30). On that
date, then Jackson Public School District teacher Anthony Burkett decided to allow his prealgebra students a day outside of the classroom as a reward for the hard work the students put
into passing an examination by taking them outside onto the school's soccer field. (T. 65, 80).
The Plaintiff and other male students began playing tackle football after they were instructed by
the teacher Anthony Burkett not to tackle during the course of playing football. (T. 76). The
Plaintiff tackled another student who fell on Plaintiffs thumb, breaking it. (T. 30).
The Plaintiffs father Derrick Amos, Sr. filed a complaint on his behalf on October 24,
2008. The Defendant Jackson Public School District filed an answer on November 24, 2008,
asserting among its defenses immunity under the Mississippi Tort Claims Act pursuant to Miss.
Code Ann. § 11-46-9( d).
1
On January 27, 2010, a bench trial was conducted before the Honorable Houston J.
Patton in the County COUli of the First Judicial District of Hinds County, Mississippi. According
to testimony given during the trial, Mr. Burkett decided to allow his pre-algebra students a day
off by taking them outside. (T. 65, 80). When they alTived outside, the male students began to
play football while the female students sat in the bleachers. (T. 28-29). Although the Mr. Burkett
instructed the male students not to play tackle football, they did so anyway. (T. 76). The Plaintiff
tackled another student who landed on the Plaintiffs thumb, breaking it. (T. 30). Mr. Burkett
escorted the Plaintiff to the front administrative office. (T. 31"32). The Plaintiffs parents were
contacted.
At the close of the Plaintiffs testimony, the Defendant moved for a directed verdict in
Defendant's favor on the grounds of immunity provided under the Mississippi Tort Claims Act
(MTCA) pursuant to Miss. Code Ann. §11-46-9(d). (T. 81). On January 28, 2010, the trial court
filed its' Judgment determining that the Defendant was not negligent on the date of said incident,
April 25, 2008.
On February 4, 2010, the Plaintiff filed a motion for judgment notwithstanding the
verdict or for new trial raising the exact same issues that it raises in this appeal. On February 23,
2010, the Defendant filed its response to Plaintiffs motion. On March 1, 2010, the trial court
entered an order denying Plaintiffs motion. Plaintiff appealed the trial court's decision to the
circuit court. The circuit court affirmed the trial court's decision on February 29, 2012. (R. 4).
2
SUMMARY OF THE ARGUMENT
The Plaintiff argues that the trial judge committed manifest error by applying the
assumption of the risk doctrine and ignoring evidence in finding that the Jackson Public School
District was not negligent. However, the Plaintiff failed to assert this issue at the trial of this
matter. Issues not raised at trial cannot be raised on appeal. Therefore, Plaintiff s argument is
procedurally barred.
Procedural bar notwithstanding, the trial court did not utilize the assumption of risk
doctrine in rendering its decision that the Defendant was not negligent. .Although the trial court
referenced the assumption of risk doctrine, finding a party not guilty of negligence precludes the
notion of any erroneous application of the assumption of risk doctrine.
Furthermore, the Defendant did not waive its right to the affirmative defense of MTCA
immunity pursuant to Miss. Code Ann. § 11-46-9 by failing to assert it prior to the close of the
Plaintiffs trial testimony and by actively participating in the lawsuit. Specifically, courts have
held that a defendant waives their right to raise an affirmative defense if pursuing that defense
would have terminated or stayed the litigation, coupled with active participation in the litigation
process. However, the Defendant's pursuance of this affirmative defense of MTCA immunity
would not have necessarily stayed or terminated the litigation as the lower court would have
been charged with the duty to determine whether or not Defendant's conduct was discretionary
or ministerial and whether or not the Defendant was entitled to the defense of MTCA immunity.
Furthermore, pursuant to Miss. Code Ann. §11-46-9(1)(d), a school district and its employees
acting within the course and scope of their employment or duties are not liable for any claim
based upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of the school district or employee, regardless of whether or not the
3
discretion was abused. The Defendant's conduct was discretionary as the conduct of the teacher
Anthony Burkett involved an element of choice and judgment. Therefore, the Defendant was
entitled to MTCA immunity.
However, even if the Plaintiff waived its right to assert the affirmative defense of MTCA
immunity, the trial court was proper in finding that the Defendant was not negligent. The
Defendant met its duty of ordinary care by taking reasonable steps to reduce the risks to the
Plaintiff. Specifically, the teacher Anthony Burkett informed the students that they were not
allowed to tackle each other. Furthermore, it was not foreseeable that the Plaintiff would tackle a
larger student thereby causing the larger student to fall on Plaintiff's thumb. The Defendant was
not the proximate cause of the Plaintiff's injuries as the Plaintiff was told not to tackle but chose
to do so anyway. Accordingly, the judgment of the trial court and the decision of the circuit court
should be affirmed.
ARGUMENT
I.
THE TRIAL COURT NEITHER COMMITTED MANIFEST ERROR BY
APPLYING THE ASSUMPTION OF THE RISK DOCTRINE NOR IGNORED
EVIDENCE IN FINDING THAT THE JACKSON PUBLIC SCHOOL DISTRICT
WAS NOT NEGLIGENT.
The Plaintiff's first argument on appeal is that the trial court judge committed manifest
error by applying the assumption of the risk doctrine and ignoring evidence in finding that the
Jackson Public School District was not negligent. However, the Plaintifffailed to assert this
issue at the trial of this matter. (T. 91-93). The Plaintiff filed a motion for judgment
notwithstanding the verdict or for new trial. However, Plaintiffs failed to raise this issue in said
motion. Additionally, Plaintiffs failed to raise this issue in the circuit court appeal. This Court
has held that "issues not raised at trial cannot be raised on appeal." Southern v. Mississippi State
Hasp., 853 So. 2d 1212, 1213 (Miss. 2003) (citing Parker v. Mississippi Game_and Fish
4
Commission, 555 So. 2d 725, 730 (Miss. 1989)); see also Johnson v. Alcorn Siale University,
929 So. 2d 398, 407 (Miss. Ct. App. 2006) ("Appellate courts may not rule upon material matters
which the trial judge did not have the opportunity to judge."); Hudson v. Palmer, 977 So. 2d 369,
380 (Miss. Ct. App. 2007) (holding that a point is moot if not raised before the trial court and
argued for the first time on appeal.) As such, Plaintiffs argument is moot and procedurally barred
because Plaintifffailed to raise this argument at the trial of this matter.
Procedural bar notwithstanding, for the sake of good argument only, the Defendant
addresses this argument. Plaintiff argues that because this matter was a bench trial, the
Defendant's motion for a directed verdict should be treated as a motion for involuntary dismissal
pursuant to Rule 41 (b) of the Mississippi Rules of Civil Procedure. Even if the Plaintiffs timely
raised this issue in the trial court, the standard for granting a motion for involuntary dismissal
weighs in the Defendant's favor. "A judge should grant a motion for involuntary dismissal if,
after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge
would find for the defendant." All Types Truck Sales, Inc. v. Carter & Mullings, Inc. 2012 WL
3932730 at *3 (Miss. Ct. App. Sept. 11,2012) (quoting GulfPort-Biloxi Reg'! Airport Auth. v.
Montclair Travel Agency, Inc., 937 So.2d 1000, 1004 (Miss.Ct.App.2006)).
In the case at bar, the trial court viewed the evidence fairly and rendered a verdict in
favor of the Defendant. From the record, in rendering his oral opinion, the trial judge considered
all of the evidence and testimony. (T. 91). Specifically, the trial judge cited trial testimony by
stating that the purpose of rewarding the students with outside play was for their success on a
math examination. (T. 91). The judge further reasoned that it was not foreseeable that the
Plaintiff would try to tackle a larger student causing the student to fall on the Plaintiffs thumb.
(T. 92). The trial judge also reasoned that according to the evidence and testimony, the Plaintiff
5
was on the football field playing voluntarily and that each student voluntarily chose his or her
own activity. (T. 92). The trial judge viewed the evidence fairly in finding that Mr. Burkett did
not abuse his discretion because the school principal approved the move from the classroom to
outside as a reward for excellence on the math examination and thus found that the Defendant
was not negligent. (T. 91-92). The trial judge clearly considered the evidence in rendering his
opmIOn.
It is certain that in reviewing a trial court's grant or denial of a motion for involuntary
dismissal, courts apply the substantial evidence/manifest error standards. GulfPort-Biloxi
Regional Airport Authority v. Montclair Travel Agency, Inc., 937 So. 2d 1000, 1005 (Miss. Ct.
App. 2006). In applying this standard, an appellate court will not disturb the judgment of a lower
court unless the lower court's findings were "manifestly wrong, clearly erroneous, or an
erroneous legal standard was applied." Wilson v. Wilson, 975 So. 2d 261, 264 (Miss. Ct. App.
2007). Accordingly, even if this Court reviewed the trial court's granting of Defendant's motion
for a directed verdict applying the substantial evidence/manifest error standard, there was no
manifest error in the trial judge's assessment of the evidence at the close of the trial and the
evidence was substantial to find that the Defendant was not negligent. (R. 3).
A.
The trial court applied the correct legal standard.
As stated above, the Plaintiff is procedurally barred from raising this argument for the
first time on appeal because the Plaintiff failed to raise this argument at the trial of this matter.
Procedural bar notwithstanding, Plaintiff argues that the trial court incorrectly applied the
assumption of the risk doctrine as a complete bar to recovery. First and foremost, the Plaintiff is
incorrect in his contention that the trial court utilized the assumption of risk doctrine as a
complete bar to recovery.
6
The trial court held that the Defendant was not negligent. The trial court specifically held
that "The district was not negligent in what wrong did the district commit? None. Even though
the district employee had permission to take the children outside, there is no negligence in taking
children outside." (T. 91). The trial court further stated that Plaintiffs injury was not foreseeable.
(T. 91-92). Finally, the trial court stated that the Plaintiff assumed the risk and Mr. Burkett did
not abuse his discretion. (T. 92). Although the trial court did consider whether or not the Plaintiff
assumed the risk, it is clear from the record that the trial court did not utilize this doctrine as a
complete bar to recovery nor used this doctrine in rendering its decision. (T. 91-93).
Furthermore, this Court has specifically held that finding a party not guilty of negligence
precludes the notion of any erroneous application of the assumption of risk doctrine. Dunn v.
Jack Walker's Audio Visual Center, 544 So. 2d 829, 831 (Miss. 1989); see also McLeod v.
Whitten, 413 So.2d 1020 (Miss.l982) ("In view of fact that jurors returned a verdict stating that
they found for the defendant, "not guilty of negligence," jury was not misled by any assumption
ofrisk instruction.") Therefore, the Plaintiff is incorrect in his argument. Although the Plaintiff is
procedurally barred from asserting this claim for the first time on appeal, the decision of the trial
court and circuit court should be affirmed.
B.
The trial court considered the evidence in rendering its decision that the
Jackson Public School District was not negligent.
Plaintiff argues that the trial judge ignored a great amount of evidence in making a
simple conclusion that the Defendant was not negligent. Again, the Defendant renews its
argument that the Plaintiff is procedurally barred from raising this argument for the first time on
appeal because the Plaintiff failed to raise this argument at the trial of this matter.
Procedural bar notwithstanding, the trial court did not ignore the evidence in rendering its
decision that the Jackson Public School District was not negligent. As stated above, the trial
7
judge viewed both the facts and testimony. (T. 91). Specifically, the trial judge cited trial
testimony by stating that the purpose of rewarding the students with outside play was for their
success on a math examination. (T. 91). The judge further reasoned that it was not foreseeable
that the Plaintiff would try to tackle a larger student causing the student to fall on the Plaintiff s
thumb. (T. 92). The trial judge also reasoned that according to the evidence and testimony, the
Plaintiff was on the football field playing voluntarily and while there was no specific instruction,
each student voluntarily chose his or her own activity. (T. 92). The trial judge viewed the
evidence fairly in finding that Mr. Burkett did not abuse his discretion because the school
principal approved the move from the classroom to outside as a reward for excellence on the
math examination. (T. 91-92).
In rendering its decision, the trial court specifically held that "The district was not
negligent in what wrong did the district commit? None. Even though the district employee had
permission to take the children outside, there is no negligence in taking children outside." (T.
91). The trial court further stated that Plaintiffs injury was not foreseeable. (T. 91-92). Finally,
the trial court stated that the Plaintiff assumed the risk and Mr. Burkett's did not abuse his
discretion. (T. 92). As such, the trial court did not ignore the evidence. Accordingly, this Court
should uphold the judgment of the trial court and the decision of the circuit court.
II.
JACKSON PUBLIC SCHOOL DISTRICT DID NOT WAIVE THEIR RIGHT TO
MOVE FOR A DIRECTED VERDICT ON THE GROUND OF SOVEREIGN
IMMUNITY PURSUANT TO MISS. CODE ANN. §11-46-9(d).
The Plaintiff s next argument on appeal is that the trial court erred in granting the
Defendant's motion for a directed verdict and thereby dismissing the charges against the
Defendant on the ground of sovereign immunity, because the Defendant waived its right to assert
the defense of sovereign immunity by failing to assert it prior to the close of the Plaintiffs trial
8
testimony. Specifically, the Plaintiff alleges that by actively participating in the lawsuit, the
Defendant waived the affinnative defense of immunity.
It is well settled that a failure to raise a contemporaneous objection constitutes waiver of
the issue on appeal. See Marshall Durbin Food Corp. v. Baker, 909 So. 2d 1267, 1278 (Miss.
2005); Kroger Co. v. Scott, 809 So. 2d 679, 686 (Miss. 2001); McCullough v. McCullough 2008-
CA-00029 COA, ~ 25 (Miss. Ct. of Appeals 2009); and Dorrough v. Wilkes, 817 So. 2d 567, 573
(Miss. 2002). The Plaintiff did not raise a contemporaneous objection as to whether or not the
Defendant waived its right to assert the affirmative defense of immunity during the trial phase of
the instant case. (T. 81-93). Instead of objecting to the Defendant's raising this issue, the Plaintiff
argued that the courts no longer recognized the distinction between the ministerial and
discretionary function. (T. 84-85). Furthennore, waiting to raise issues in a motion for a
judgment notwithstanding the verdict or a new trial that should have been raised or objected to
during the trial bars consideration of those issues on appeal. Harris v. Lewis, 755 So. 2d 1199,
1202 (Miss. Ct. App. 1999) (citing Dept. Human Services v. Moore, 632 So. 2d 929, 933 (Miss.
1994); Anderson v. Jaegar, 317 So. 2d 902, 907 (Miss. 1975).
The Plaintiff cites several cases that are distinguishable from the case at bar. Particularly,
in MS Credit Center, Inc., supra, the Plaintiff signed an arbitration agreement in connection with
a loan from the Defendants. Plaintiff subsequently filed suit alleging breach of fiduciary duties.
Although the Defendants asserted their right to compel arbitration in their answers, the
Defendants failed to file a motion to compel arbitration and the Defendants substantially engaged
in the litigation process.
The Court held that the Defendants waived their right to compel
arbitration because of their undue delay in pursuing an action that could have tenninated or
stayed the litigation, coupled with the Defendants' active participation in the litigation process.
9
The operative words the Court used are, "which would serve to terminate or stay the litigation."
Had the Defendants in MS Credit Center, Inc. filed a motion to compel arbitration instead of
actively paliicipating in the litigation, the litigation would have been terminated because it was
undisputed that the Plaintiff signed an arbitration agreement to appear before an arbitrator in any
disputes with the Defendant.
The Plaintiffs case is distinguishable from MS Credit Center, Inc. In the present case, a
motion to dismiss based on immunity pursuant to Miss. Code Ann. § 11-46-9(d) would not have
necessarily terminated or stayed the litigation as the trial court had the duty to determine whether
or not the Defendant's conduct constituted a discretionary or ministerial act. Contrarily, in MS
Credit Center, Inc., supra, it was undisputed that the parties had both entered into an arbitration
agreement. Because the trial judge had the duty to determine whether or not the Defendant's
conduct constituted a discretionary or ministerial act, the Defendants' pursuance of this
affirmative defense of immunity would not have necessarily stayed or terminated the litigation.
Therefore, the ruling in MS Credit Center, Inc. is not applicable to the facts of this case.
In East Mississippi State Hasp., supra, the Defendant moved for dismissal of the lawsuit
based on insufficient process and insufficient service of process, because the plaintiff served the
Defendant's chief executive officer (CEO) rather than the Attorney General, as required by law.
The Court held that the Defendant waived those affirmative defenses by failing to pursue them
for almost two years after they were raised in the Defendant's answer and because the Defendant
actively participated in the litigation. Had the Defendant in East Mississippi State Hasp. filed a
motion to dismiss on the grounds of insufficient service of process and insufficient process
instead of actively participating in the litigation, the action would have either terminated or
stayed the litigation because it was undisputed that the Plaintiff served the Defendant's CEO
10
rather than the Attorney General.
However, even if the Defendant Jackson Public School
District had filed a motion to dismiss based on immunity pursuant to Miss. Code Ann. §11-469( d), that action would not have necessarily stayed or terminated the litigation because the trial
court would have had the duty of determining whether the Defendant was immune pursuant to
Miss. Code Ann. § ll-46-9( d). On the other hand, there was no dispute in East Mississippi State
Hasp. regarding insufficiency of process and insufficiency of service of process, because it was
undisputed as to who was improperly served.
Because the trial court in this case had to
determine whether or not the Defendant was immune pursuant to Miss. Code Ann. § 11-46-9(d),
the Defendant's pursuance of this affirmative defense would not have necessarily stayed or
terminated the litigation. Likewise, the ruling in East Mississippi State Hasp. is not applicable to
the facts of this case. The instant case does not have a decisive undisputed fact as do the East
Mississippi State Hasp. and Ms. Credit Center, Inc. cases.
In Estate of Grimes, supra, the Plaintiff brought a wrongful death suit against a physician
who was entitled to immunity pursuant to the Mississippi Tort Claims Act (MTCA) because he
was employed with a government entity, working within the course and scope of his employment
when the cause of action occurred. Although the Defendant physician raised MTCA immunity
in his answer, the Court held the Defendant waived this immunity because he waited five years
before he filed his motion for summary judgment and because the Defendant actively
participated in the litigation.
The Defendant's motion for summary judgment would have
terminated the litigation because it was undisputed that the Defendant was working within the
course and scope of his employment when he treated the Plaintiffs now deceased husband. It
was undisputed that the Defendant was entitled to MTCA immunity. Accordingly, in Estate of
Grimes, no issue existed to dispute that the Defendant was entitled to MTCA immunity.
11
Because it was to be determined by the trial cou11 whether or not the Jackson Public School
District was entitled to immunity, the District's pursuance of this affirmative defense would not
have necessarily stayed or terminated the litigation, and Estate of Grimes is inapplicable.
The Plaintiff also relies on Stuart v. University of Mississippi Medical Center, 21 So. 3d
544 (Miss. 2009). In Stuart, the Plaintiff filed a wrongful death lawsuit against the Defendant
hospital. The Defendant hospital moved for summary judgment, arguing that the Plaintiff's
lawsuit should be dismissed because the Plaintiff failed to comply with the MTCA's notice
requirements when the plaintiff did not wait the requisite 90 days after serving the defendant
with the notice of claim before filing the complaint. The Court held that the Defendant waived
this affirmative defense because the Defendant waited two and a half years to move for smnmary
judgment. If the Jackson Public School District had filed its motion for surrunary judgment
instead of actively participating in the litigation, the litigation would have been stayed or
terminated because it was undisputed that the Plaintiff did not wait the requisite 90 days. It was
undisputed that the Plaintiff did not wait the mandatory 90 days. However, the District's
pursuance of this affirmative defense would not have necessarily stayed or terminated the
litigation; therefore the ruling in Stuart is not applicable to the facts of this case.
The cases the Plaintiff relied on in its motion for judgment notwithstanding the verdict
and relies on in its Brief of Plaintiff, to assert that the Defendant waived its right to raise the
issue of MTCA immunity pursuant to Miss. Code Ann. § 11-46-9(d), are all distinguishable from
the facts in this case. Clearly, the important fact distinguishing the cases relied upon by the
Plaintiff is that in those cases, if the Defendant had moved for dismissal instead of actively
participating in the litigation, the litigation would have been automatically terminated or stayed.
However in this case, the trial court had to determine whether or not Defendant was entitled to
12
immunity pursuant to §11-46-9(d). Therefore, the Defendant's pursuance of the affirmative
defense of immunity would not have necessarily stayed or terminated the litigation. Because the
Defendant's pursuance of this affirmative defense would not have necessarily stayed or
terminated the litigation, the Defendant did not waive its right to raise the issue of immunity
pursuant to § ll-46-9( d).
III.
THE TRIAL COURT DID NOT ERR IN FINDING THAT THE DEFENDANT
JACKSON PUBLIC SCHOOL DISTRICT WAS NOT NEGLIGENT.
The Plaintiff argues that because the Defendant waived the affirmative defense of
immunity, the trial court erred in finding that the Defendant was not negligent. Elements of a
prima facie case of negligence requires a showing of a duty or standard of care, a breach of that
duty or standard of care, proximate cause, and damages or injury. Todd v. First Baptist Church of
West Point, 993 So. 2d 827, 829 (Miss. 2008).
A school district has a duty to protect students from foreseeable harm or injury under the
ordinary care standard. Beecham v. City of Starkville School System, 984 So. 2d 1073 (Miss. Ct.
App. 2008). However, when the school district's conduct is a discretionary function, the ordinary
care standard is inapplicable and the school district is thus immune to liability for negligence.
A.B. ex rei. CD. v. Stone County School District, 14 So. 3d 794, 798 (Miss. Ct. App. 2009).
Pursuant to Miss. Code Ann. §11-46-9(1 ) (d), a school district and its' employees acting within
the course and scope of their employment or duties shall not be liable for any claim based upon
the exercise or performance or the failure to exercise or perform a discretionary function or duty
on the part of the school district or employee thereof, regardless of whether or not the discretion
was abused. A.B. ex rei. CD 14 So. 3d at 797. When a teacher is required to use his or her own
judgment or discretion in carrying out their duties, that duty is discretionary. Harris v. Harris,
13
867 So. 2d J88, 191 (Miss. 2003). In determining whether or not a school district's conduct is
discretionary, courts apply the two-part "public policy function." Strange v. ltawamba County
School District, 9 So. 3d 1187, 1190 (Miss. Ct. App. 2009). That test requires an analysis of
whether the activity involved an element of choice or judgment and if so, whether the choice or
judgment involved social, economic, or political policy.ld.
In Strange, supra, the Plaintiff brought suit alleging that the school district was negligent
when her son was injured when he fell from the back of a pickup truck he had been riding to
football practice. The trial court granted the school district's motion for summary judgment, in
which the district argued that that because the act involved was discretionary, they were immune
from liability pursuant to the Miss. Code Ann. § 11-46-9(1)(d). The Court applied the two-part
public policy function test to determine whether or not the school district's conduct was
discretionary. The Court held that while the school district's conduct involved safety issues,
there was no statutory prohibition of that conduct in Mississippi. The Court further held that the
school district's decision satisfied the second prong to the public policy function test as the
school district's decision involved a policy decision.
Based on the evidence presented at trial in the present case, there was sufficient evidence
to find that the Defendant's conduct was discretionary. From the record, the Defendant's conduct
involved an element of choice and judgment. The Defendant's teacher made a choice to reward
his class, who had done well on a pre-algebra exam, by taking them outside. (T. 65, 80). There
is no statute that prohibits such conduct. Furthermore, the teacher's conduct involved a policy
decision made by the teacher on behalf of the school district to reward successful students and it
involved a policy decision on the Defendant's part to allow teachers the autonomy to determine
appropriate rewards for students and to determine appropriate activities for students. Therefore,
14
the ordinary care standard is inapplicable to Defendant's discretionary conduct. The trial court
was proper in granting the Defendant's motion for a directed verdict. Accordingly, the Defendant
was entitled to immunity pursuant to Miss. Code Ann. § 11-46-9(d).
The Defendant further presents to this Court that even if the ordinary care standard was
applicable to the present case the Defendant's conduct was not the cause of the Plaintiffs
injuries. The Court of Appeals of Mississippi explained that:
Proximate cause is a concept which is more accurately defined by
reference to the distinct concepts of which it is comprised, which
are: (I). cause in fact; and (2) foreseeability. Cause in fact means
that the act or omission was a substantial factor in bringing about
the injury, and without it the harm would not have occurred.
Foreseeability means that a person of ordinary intelligence should
have anticipated the dangers that his negligent act created for
others.
A.B. ex rei. CD 14 So. 3d at 800. The Plaintiff presents no evidence that demonstrates that the
Defendant should have anticipated that the Plaintiffs injury would occur. Furthermore, the
Plaintiff presents no evidence that demonstrates that the Defendant was the proximate cause of
Plaintiffs injuries. As a matter of fact, the Plaintiff was told not to play tackle football by the
teacher Anthony Burkett. (T. 76). However, the Plaintiff tackled another student. (T. 30).
Finally, the Plaintiffs reliance on Lynch v. Board ofEducation of Collinsville Community
Unit District No. 10,412 N.E. 2d 447 (Ill. 1980); Parisi v. Harpursville Cent. School Dist., 553
N.Y.S. 2d 566 (1990); Murphy v. Fairport Cent. School Dist., 850 NYS 2d 752 (N.Y.S. 2d 752
(N.Y. 2008); and Baker v. BriarclifJSch. Dist., 613 N.Y.S. 2d 660 (1994) is misplaced as neither
of these opinions in other state courts address whether or not a school district is immune to
charges of negligence pursuant to a statutorily imposed' immunity defense.
15
In Lynch, the Court held that the Defendant school district was negligent for a student's
injury in failing to furnish appropriate equipment to students who participated in a powder-puff
football game held each year during the school's homecoming half-time show. The Court
reasoned that such an injury was foreseeable. The facts of Lynch are distinguishable from the
present case as this was an organized game of football that occurred on a yearly basis. The
present case included no organized game of football as the teacher Anthony Burkett decided to
give students a day outside of the classroom by taking them outside. (T. 65, 80). This did not
occur on a consistent basis. Therefore, the Plaintiffs injuries were not foreseeable and Defendant
is not liable for negligence.
The Plaintiff also relies on Parisi, supra, in its' argument. In Parisi, a parent filed an
action against a school district for injuries the student received during a baseball practice session.
The Plaintiff was hit by a ball in the face. The Plaintiff was not wearing the appropriate
protective equipment. The Court held that the Defendant was not entitled to summary judgment
as a question existed as to whether Defendants exercised reasonable care. The Court found that
the appropriate protective equipment was available. The Court found further that the State Public
High School Athletic Association prohibited players from participating in this type of conduct
without the appropriate conduct. Again, the facts of the present case are distinguishable from the
facts in Parisi as the subject incident was an extra-curricular, organized sports activity.
FUl1herrnore, such activity was regulated, which means that such activity was not a discretionary
function. In the present case, the subject conduct was a discretionary function and thus allows the
Defendant immunity protection pursuant to Miss. Code Ann. § 11-46-9(1 ) (d).
In Plaintiffs brief, the Plaintiff misstates the finding in Yanero v. Davis, 65 S.W.3d 510
(Ky. 2001). The Plaintiff states that the Court held that the "school was not entitled to summary
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judgment on negligence action brought against it by a baseball player who was not wearing
batting helmet and was injured when he was struck in the head by a baseball thrown by his
teammate." However, in Yanero, the Supreme Court of Kentucky affirmed the lower court's
granting a motion for summary judgment on behalf of the local board of education. The Court
held that because the local board of education was a political subdivision, it was entitled to
immunity. However, the Court held that the coaches involved in the subject incident were
individually liable for negligence.
The evidence presented at the trial was sufficient to support a verdict that the Defendant
was not negligent. Additionally, there was sufficient evidence to find that the Defendant was
entitled to immunity pursuant to Miss. Code Ann. §11-46-9(d). Accordingly, the Defendant
requests that this Court affirm the trial court and circuit court ruling.
CONCLUSION
The Defendant Jackson Public School District respectfully requests that this Honorable
Court affirm the trial court's judgment and the circuit court's decision. The trial court did not
commit manifest error by applying the assumption of the risk doctrine, because the trial court did
not utilize the assumption of risk doctrine as a complete bar to Plaintiff s recovery. Instead the
trial court found specifically that the Defendant was not negligent. Furthermore, the trial court
did not ignore the evidence in rendering its decision that the Jackson Public School District was
not negligent. Additionally, the trial court did not err in granting Defendant's motion for a .
directed verdict and thereby dismissing the charges against the Defendant on the ground of
sovereIgn immunity and the trial court did not err in finding that the Defendant was not
negligent.
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Respectfully submitted,
Jackson Public School District and
Superintendent Dr. Lonnie Edwards
By:
OF COUNSEL:
JOANNE N. SHEPHERD, ESQ.
KASHONDA L. DAY, ESQ.
JACKSON PUBLIC SCHOOL DISTRICT
P.O. BOX 2338
JACKSON, MS 39225-2338
TEL: (601) 960-8917
FAX: (601) 973-8545
LULA M. ANDERSON, ESQ.
ATTORNEY AT LAW
P.O. BOX 31147
JACKSON, MS 39286
TEL: (601) 206-9450
FAX: (601) 206-9451
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CERTIFICATE OF SERVICE
J, the undersigned counsel, do hereby certify that J have this day caused to be served a true and
correct copy of the foregoing Brief of Appellee via U.S. Mail postage prepaid to the following
Precious T. Martin, Sr., Esq.
Suzanne G. Keys, Esq.
Precious Martin, Sr. & Associates, PLLC
821 North Congress Street
P.O. Box 373
Jackson, Mississippi 39205
The Honorable Houston Patton
County Court Judge
P.O. Box 327
Jackson, MS 39205
The Honorable William A. Gowan, Jr.
Circuit Court Judge
P.O. Box 22711
Jackson, MS 39225
This the 1st day of October 2013.
~6Ctty
JoAnne N. Shepherd
KaShonda L. Day
Lula M. Anderson
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