The Mississippi Supreme Court, again seeing it the defendant’s way, reversed an intermediate appellate court’s reversal of summary judgment in a slip and fall case at Gulfport-Biloxi Regional Airport.
The plaintiff, an Air Force doctor (a plaintiffs’ lawyer’s dream), sued the airport after he slipped and tripped down a wet set of aluminum steps. It was a real fall: he fell down two stories of steps.
The airport sought summary judgment under the dreadful Mississippi Tort Claims Act. The argument was twofold. First, they alleged that the airport had immunity under the MTCA because the dangerous condition plaintiff alleged was open and obvious to one exercising due care. The second – and more annoying – is that the airport is immune from suit because the alleged acts or omissions of the airport were discretionary functions.
One of the biggest exceptions to governmental liability under the local government tort claims act is the discretionary function exception. The Federal Tort Claims Act has the same exception. The doctrine is controversial and has lead to just a ton of lawsuits. The discretionary function exception protects the government from liability 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 a government employee. The idea was to prevent judicial second-guessing of legislative and administrative decisions for which there was a good reason – grounded in social, economic, and political policy – regardless of whether a personal injury claim might be implicated.
The parties agreed that the omission that formed the basis of plaintiff’s case – the failure to lay anti-slip tape on the temporary stairs – was not a ministerial function because there is obviously no regulation on point to putting on anti-slip tape. Plaintiff did not argue that the problem was failing to order anti-slip tape on the stairs, instead, the doctor claimed that the airport was liable because it did not place the anti-slip tape on a sufficient portion of the stairs. In other words, Dr. Pratt’s lawsuit was not the question of whether to apply the tape, instead, it was based on the failure to apply the tape they decided to apply. So, seemingly, this would take the case out of the discretionary function ballpark.
The Mississippi high court disagreed, finding that the “day-to-day operational activities at issue in this case involved choice and judgment, because there are no laws or regulations dictating how those activities are to be performed.” So, without a statute to guide the employee, the court did not want to second guess his judgment, even though it was, you know, awful.
Under this interpretation, I think the exception engulfs the rule.
You can find the opinion in Gulfport-Biloxi Regional Airport Authority v. Pratt here.
Other Discretionary Rule Cases
- United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 813-14 (1984) (Justice Burger provides the legislative history of discretionary function exception)
- John W. Bagby & Gary L. Gittings, The Elusive Discretionary Function Exception from Government Tort Liability: The Narrowing Scope of Federal Liability, 30 Am. Bus. L.J. 223, 254-58 (1992) (common sense – at least to me – ideas to limit this draconian rule)
- Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986) (planning/operational dichotomy distinction that might have helped the plaintiff is this case)