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Hall v. Mississippi Department of Public Safety4/9/1998
thin the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance of 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.
This section extends the coverage of sovereign immunity to discretionary functions or duties on the part of employees. This Court has stated, with reference to discretionary and ministerial duties, that discretionary duties are those done in the performance of lawful duties which require personal deliberation, decision and judgment. White v. City of Tupelo, 462 So. 2d 707, 709 (Miss. 1984) (citing Davis v. Little, 362 So.2d 642, 643 (Miss.1978); Prosser, Law of Torts § 132 (4th ed. 1971)). According to Cox's testimony, MDPS vehicles must go in for scheduled maintenance, as is clearly indicated in their handbook. Proper maintenance of vehicles is, therefore, mandated for the MDPS. As such, the maintenance of vehicles by the MDPS is clearly not a discretionary duty. The import of this is that any liability on the part of the MDPS due to negligent maintenance of this vehicle, whether under the theory of res ipsa loquitur or common law negligence, is not negated by sovereign immunity.
The trial Judge, in his order, failed to address in any way this element of Hall's claim. The majority posits that even though the Judge did not specifically address this issue, the Judge's Conclusion that " o act or omission on the part of the State's employee caused the patrol car to roll forward" is an implicit finding of no negligence on the part of any employee. However, the context of that statement in the Judge's order makes very clear that the Judge is referring only to Officer Cox and only within the context of Mississippi Code 11-46-9 (1) (c) dealing with an officer's action or omission within the course and scope of police work. The failure on the part of the Judge to address the issue of negligent maintenance of the vehicle causing Hall's injury, which was indeed raised by Hall at trial(5), is error because he failed to apply the appropriate statute to this matter and in so doing terminated the best course of recovery available to Hall, i.e., res ipsa loquitur.
The facts of this case present a classic application of res ipsa loquitur as articulated by this Court(6). The three elements which comprise res ipsa loquitur are : (1) the instrumentality causing the damage must be under the exclusive control of the defendant, (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. Read v. Southern Pine Elec. Power Ass'n, 515 So. 2d 916, 919-20 (Miss. 1987).
In the case sub judice, the vehicle was under the exclusive control of the Mississippi Department of Public Safety, through its employee , Officer Cox. In the instant case, Officer Cox testified that when he exited and re-entered the vehicle, the car was in park. Therefore, the assertion of negligence shifts to the failure of the MDPS to properly maintain this particular vehicle. An automobile left in park does not roll forward unless there is a maintenance problem. Suffice it to say, Hall did nothing to cause the vehicle to roll forward, as he was handcuffed at the time, and instructed to stay put or else the dog would be released.
Because the trial Judge failed to apply the appropriate statute to the facts of this case, thereby terminating Hall's best avenue of recovery, res ips loquitur, his cause should be reversed and remanded for
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