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Hall v. Mississippi Department of Public Safety4/9/1998
together leads to the conclusion that the Mississippi legislature did not intend to insulate MDPS under the circumstances involved in the case at bar since Hall's actions were non-discretionary in nature. The statute reads in pertinent part:
(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
....
(d) 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;...
Miss. Code Ann. § 11-46-9(1)(d) (Supp. 1997)(3) (emphasis added).
Once again, a review of the record indicates the discretionary versus ministerial analysis was raised for the first time on appeal. Hall did not submit this theory in his Complaint nor assert it at trial, therefore this Court will not address this issue on appeal beyond pointing out that the statute is written in the disjunctive which indicates that subsections (1)(c) and (1)(d) should not be read together but should be read as alternatives separate and apart from one another.
It should also be noted that Hall alleges that since Cox's duties were non-discretionary, his negligence is not protected under sovereign immunity. Hall alleged in his Complaint that Cox's actions were negligent in the following manner: (1) allowing the vehicle to remain running while interviewing Hall; (2) failing to position the vehicle where it would not harm Hall if the gear engaged; and (3) failing to properly secure his vehicle. However, at trial, Hall failed to provide any evidence of how Cox's actions constituted negligence. Instead, Hall's counsel made it clear that this case was not based on the theory of negligence against Officer Cox, but was based on res ipsa loquitur against the state for negligent maintenance of the patrol vehicle. Therefore, Hall cannot now claim that the trial court erred in not finding MDPS negligent by way of analysis to Officer Cox's actions. Consequently, the trial court's finding that there was no negligence on MDPS's part will not be disturbed.
III. WHETHER THE TRIAL COURT ERRED IN FAILING TO RENDER JUDGMENT IN PLAINTIFF'S FAVOR BASED ON A RES IPSA LOQUITUR THEORY.
Hall cites Read v. Southern Pine Elec. Power Ass'n, 515 So. 2d 916 (Miss. 1987) in support of his contention that the facts of this cause present a classic res ipsa loquitur case and since MDPS failed to rebut the presumption of liability, the circuit court erred in not rendering a judgment in Hall's favor. Three (3) elements comprise the res ipsa loquitur doctrine:
(1) the instrumentality causing the damage must be under the exclusive control of the defendant [MDPS];
(2) the occurrence must be such as in the ordinary course of things would not happen if those in control of the instrumentality used proper care; and
(3) the occurrence must not be due to any voluntary act on the part of the plaintiff [Hall].
Id. at 919-20. Hall maintains that " nder Mississippi jurisprudence, where those three elements are met, a presumption of negligence in favor of the plaintiff automatically arises--not only inviting, but requiring the defendant to come forward with an explanation to defeat such presumption of its negligence, or else take the risk that negligence will be inferred." Unfortunately for Hall, the operative words in Hall's argument are "risk" and "inferred." What Hall's argument glosses over is the fact that "the jury may, but is not bound to, infer negligence on the part of the defendant ...." Read, 515 So. 2d at 920 (citing
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