DOE DOE v. RANKIN COUNTY SCHOOL DISTRICT (2014)

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. This case is before the Court on motion for rehearing. The motion for rehearing is denied. The previous opinion of this court is withdrawn, and this opinion is substituted in lieu thereof. We reverse and remand for further proceedings consistent with this opinion.

¶ 2. John Doe, on behalf of Jane Doe,¹ a minor, filed a negligence action in the Rankin County Circuit Court against the Rankin County School District (RCSD) in December 2009. In November 2011, RCSD was granted summary judgment based on governmental immunity under the Mississippi Torts Claims Act (MTCA). John filed a motion for reconsideration of the decision. The motion was denied. John appeals, arguing: (1) the circuit court erred in granting summary judgment in favor of RCSD based on discretionary immunity, because genuine issues of material fact exist; and (2) the circuit court erred in denying John's motion for reconsideration, because RCSD had waived the affirmative defense of immunity and was not entitled to a judgment as a matter of law.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On May 16, 2008, Jane, a ninth-grade student at Richland High School (RHS), a school under RCSD's authority, left the school's premises at approximately 1:30 p.m. and visited a nearby McDonald's restaurant. During her visit, Jane met Tyler Trigg, another RHS student, for the first time, and talked with him briefly. After leaving McDonald's, Jane, along with Trigg and three other students, returned to the RHS campus at approximately 3:11 p.m. Upon reaching campus, Trigg forced Jane onto an empty parked school bus and forced her to perform oral sex. Following the assault, Jane went to the restroom until school was dismissed at 3:14 p.m., and then boarded her assigned bus.

¶ 4. Jane first reported the incident on August 12, 2008, to her teacher, Beth Cook. Cook informed Judy Statham, the school counselor; William Sutton, the RHS principal; and Jane's parents of the incident. Sutton initiated an investigation into the matter. Subsequently, Trigg was transferred to the alternative school on August 15, 2008, and suspended from RHS on August 18, 2008, pending further investigation.

¶ 5. John, on behalf of Jane, filed a complaint on December 7, 2009, in the circuit court alleging severe and permanent mental and physical pain and suffering, emotional distress, medical expenses, and inconvenience due to the negligence of RCSD. John alleged RCSD, through its agents and employees acting within their scope of employment, had acted negligently by: (1) failing to provide adequate security at RHS; (2) failing to implement reasonable measures for the personal security and safety of Jane; (3) failing to warn Jane of the harm that she suffered; (4) failing to reasonably inspect and secure the premises from the foreseeable harm suffered by Jane. RCSD answered and alleged various defenses, including immunity under the MTCA.

¶ 6. Following discovery, RCSD moved for summary judgment arguing that the duty to provide a safe environment for students involves discretionary functions that provide RCSD with immunity under the MTCA. John countered arguing the actions of RCSD were ministerial and that the school failed to exercise ordinary care, thereby precluding it from receiving immunity under the MTCA. The circuit court granted summary judgment in favor of RCSD on November 16, 2011, based on governmental immunity under the MTCA. John responded with a motion for reconsideration arguing RCSD waived immunity by actively litigating the case for approximately eighteen months. John also requested clarification regarding discretionary functions under the MTCA.

¶ 7. The motion was denied. John now appeals arguing: (1) the circuit court erred by granting summary judgment premised on discretionary immunity; and (2) the circuit court abused its discretion in denying the motion for reconsideration when RCSD waived the affirmative defense of immunity.

STANDARD OF REVIEW

¶ 8. A grant of a motion for summary judgment is reviewed de novo by this Court. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174(¶ 14) (Miss.2009). In reviewing a grant of summary judgment, this Court must view the evidence “in the light most favorable to the party against whom the motion has been made.” Id. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 9. “A motion for reconsideration is treated as a motion to amend the judgment pursuant to Rule 59(e) of the Mississippi Rules of Civil Procedure [.]” Lampkin v. Thrash, 81 So.3d 1193, 1199(¶ 21) (Miss.Ct.App.2012). In order “[t]o succeed on a Rule 59(e) motion, ‘the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.’ “ Id. (quoting Brooks v. Roberts, 882 So.2d 229, 233(¶ 15) (Miss.2004)). This Court reviews the “denial of a Rule 59(e) motion under an abuse-of-discretion standard.” Id.

DISCUSSION

¶ 10. Under the MTCA, governmental entities are generally afforded immunity from suit. Miss.Code Ann. § 11–46–3 (Rev.2012). However, generally speaking, if a governmental entity or employee commits a tortious act while acting within the scope and course of its or his employment or duties, then immunity is waived. Miss.Code Ann. § 11–46–5 (Rev.2012). Nonetheless, Mississippi Code Annotated section 11–46–9(1) (Rev.2012) provides a number of exceptions to this waiver. Section 11–46–9(1)(d) states that a governmental entity will be immune from liability for claims “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 is abused[.]”

¶ 11. John argues that RCSD's actions were ministerial in nature, and not discretionary. As such, John asserts the applicable section of the MTCA is not section 11–46–9(1)(d), but rather section 11–46–9(1)(b). Section 11–46–9(1)(b) states that a governmental entity is afforded immunity for claims “[a]rising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance[,] or regulation, whether or not the statute, ordinance[,] or regulation be valid [.]” Miss.Code Ann. § 11–46–9(1)(b) (Rev.2012). However, John argues that RCSD failed to exercise ordinary care and, therefore, immunity should not attach.

¶ 12. Yet the Mississippi Supreme Court recently overruled the line of cases that condone an interplay between section 11–46–9(1)(b) and section 11–46–9(1)(d). Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 797(¶ 26) (Miss.2012). Instead, this Court now follows a well-established two-part test “to determine if ‘governmental conduct is discretionary so as to afford the governmental entity immunity.’ “ Id. at 795(¶ 20) (quoting Jones v. Miss. Dep't of Transp., 744 So.2d 256, 260(¶ 11) (Miss.1999)). Accordingly, we must first determine whether the activity in question involved “an element of choice or judgment.” Id. If so, we must then determine “whether that choice or judgment involved social, economic, or political-policy considerations.” Id.

¶ 13. To determine whether or not the actions involved an element of choice or judgment, we must first decide whether RCSD's actions were discretionary or ministerial. Simpson Cnty. v. McElroy, 82 So.3d 621, 625(¶ 20) (Miss.Ct.App.2011) (citing Knight v. Miss. Transp. Comm'n, 10 So.3d 962, 968(¶ 20) (Miss .Ct.App.2009)). “A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.” Montgomery, 80 So.3d at 795(¶ 19) (citing Miss. Dep't of Mental Health v. Hall, 936 So.2d 917, 924–25(¶ 17) (Miss.2006)). “A duty is ministerial if it is positively imposed by law and required to be performed at a specific time and place, removing an officer's or entity's choice or judgment.” Id . (citing Covington Cnty. Sch. Dist. v. Magee, 29 So.3d 1, 5(¶ 8) (Miss.2010)). Generally, when a statute mandates a particular function, then all actions regarding that function are considered binding and are not subject to immunity. Id. at 798(¶ 31). However, when the Legislature carves out some portion of that function to be discretionary, then immunity is afforded to the discretionary portion. Id.

¶ 14. It is clear that the applicable activity of RCSD-the oversight of student conduct and school safety-has been carved out as a discretionary function. John asserts that Mississippi Code Annotated section 37–9–69 (Rev.2007) imposes upon schools a ministerial duty to hold students accountable for disorderly conduct. In pertinent part, that section provides that “superintendents, principals[,] and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.” Miss.Code Ann. § 37–9–69.

¶ 15. RHS had clear policies regarding both school safety and student discipline. RHS, operating on a block schedule, was conducting exams the week of the assault. Block scheduling allows students to attend four classes on one day and four different classes the next day, alternating days. Teachers are to take attendance and complete an absentee form if a student is absent from class. During exam week, teachers are not required to take attendance because parents are allowed to sign students out of school, through the main office, at the completion of the students' exams that day. Students are not allowed to leave school premises without permission.

¶ 16. At the time she left the school premises, Jane was scheduled to be in her fourth block class with her teacher. Jane had not been signed out by her parents, did not receive permission to leave school property, and had not informed any school authority of her absence. Although her teacher failed to report Jane's absence from class, the evidence reflects that once the assault had been reported, Trigg was transferred to an alternative school and subsequently suspended from RHS following an investigation. RHS nonetheless implemented its specific safety protocols to monitor students.

¶ 17. While it is true that section 37–9–69 provides a ministerial duty that schools hold students accountable for disorderly conduct at school, it does not dictate how this duty is to be carried out. The Legislature has specifically provided that school discipline be implemented “in the determination of the superintendent or principal[.]” Miss.Code Ann. § 37–9–71 (Rev.2012). Therefore, RCSD's decisions regarding how best to implement security measures or how to discipline offenders such as Trigg were within its discretion. We find that RCSD's actions involved an element of choice or judgment and meet the first prong of the public-function test.

¶ 18. Under the second prong of the public-function test, discretionary-function immunity is limited to functions that are policy decisions. Dancy v. E. Miss. State Hosp., 944 So.2d 10, 16(¶ 17) (Miss.2006) (quoting Jones v. Miss. Dep't of Transp., 744 So.2d 256, 260(¶ 10) (Miss.1999)). “The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id.

¶ 19. We find that RCSD's actions regarding the implementation of school-safety measures and student discipline involved both social and economic policy. With regard to social policy, RCSD had to consider the best way to implement safety and security on campus while also providing students with freedom in their school environment. In the same light, RCSD had to consider the effects discipline would have on the student body as a whole, as well as the individual student. With regard to economic policy, RCSD had to consider the cost of security in order to implement both an efficient and economical plan. To question either of these tasks would be to second-guess actions within RCSD's discretionary decision-making authority. Therefore, RCSD meets the second prong of the public-function test and is immune under Mississippi Code Annotated section 11–46–9(1)(d).

¶ 20. Finding that RCSD is immune under Mississippi Code Annotated section 11–46–9(1)(d), we now address whether this immunity was waived. Immunity under the MTCA is an affirmative defense. Kimball Glassco Residential Ctr. Inc. v. Shanks, 64 So.3d 941, 945(¶ 12) (Miss.2011). “[A] defendant's failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Id. at ¶ 12 (quoting MS Credit Ctr. Inc. v. Horton, 926 So.2d 167, 180(¶ 44) (Miss.2006)). “To pursue an affirmative defense or other such rights, a party need only assert it in a pleading, bring it to the court's attention by motion, and request a hearing. Once a hearing is requested, any delay by the trial court in holding the hearing would not constitute a waiver.” Horton, 926 So.2d at 181(n.9).

¶ 21. On January 8, 2010, RCSD filed its answer to John's complaint raising entitlement to immunity pursuant to the MTCA as its seventh affirmative defense. Subsequently, the parties engaged in sixteen months of discovery, including filing interrogatories and requests for production of documents. RCSD filed a motion for an extension of time on February 25, 2010, and June 24, 2010. An agreed order was entered on September 1, 2010, for the release of Trigg's youth court records. With the participation of RCSD, John scheduled five depositions, including those of Sutton, Cook, and Statham. RCSD scheduled the depositions of John and Jane. On April 26, 2011, the parties entered into an agreed scheduling order. Approximately four months later on August 19, 2011, RCSD filed a motion for summary judgment, raising the immunity defense.

¶ 22. John argues that, regardless of whether RCSD is afforded immunity pursuant to the MTCA, the defense was waived when RCSD actively participated in the litigation process and unreasonable delayed its pursuit of immunity for sixteen months. In support of his argument, John cites to the following supreme court cases: Meadows v. Blake, 36 So.3d 1225 (Miss.2010); Estate of Grimes ex rel. Grimes v. Warrington, 982 So.2d 365 (Miss.2008); E. Miss. State Hosp. v. Adams, 947 So.2d 887 (Miss.2007); and Horton, 926 So.2d 167.

¶ 23. In Grimes, the plaintiff filed a wrongful-death complaint against a state-employed doctor, who raised MTCA immunity as an affirmative defense in his answer to the complaint. Grimes, 982 So.2d at 366(¶ 4). After five years of participation in the litigation process, the doctor was granted summary judgment by the trial court based on MTCA immunity. Id. at (¶ 5). On appeal, the supreme court reversed the trial court's judgment and found that the doctor had waived the MTCA affirmative defense. Id. at 369–70 (¶¶ 21–28). In regard to the doctor's actions, the supreme court stated that “[a]ll of this was an unnecessary and excessive waste of the time and resources of the parties and the court if [the doctor] had been immune from tort liability since the moment the [c]omplaint was filed.” Id. at (¶ 26). The supreme court held that the doctor's “failure actively and specifically to pursue his MTCA affirmative defense while participating in the litigation served as a waiver of the defense.” Id. at (¶ 27).

¶ 24. While Meadows, Adams, and Horton are not cases that deal with immunity pursuant to the MTCA, they are relevant to the issue of waiver. In Meadows, the plaintiffs filed a medical-negligence complaint against a hospital and doctor. Meadows, 36 So.3d at 1226(¶ 2). The defendants later filed a motion to dismiss for the plaintiffs' failure to comply with the requirements of Mississippi Code Annotated section 11–1–58 (Supp.2014), which was granted. Id. at 1227(¶ 4). On appeal, the supreme court reversed the dismissal, finding that the defendant's active participation in the litigation process and failure to pursue this defense for two years had waived this defense. Id. at 1233(¶ 15).

¶ 25. In Adams, the defendants raised the defenses of insufficiency of process and insufficiency of service of process in their answer to the plaintiff's complaint. Adams, 947 So.2d at 889(¶ 4). They waited two years, however, before asserting the defense again in their motion to dismiss. Id. at (¶ 5). The trial court denied the motion and found that the actions of the defendants had waived these defenses. Id. at (¶ 6). The supreme court agreed with the trial court on appeal, finding that the defendants' active participation for over two years without actively pursuing the defenses constituted a waiver. Id. at 891(¶ 11).

¶ 26. In Horton, the defendants asserted their right to compel arbitration in their answer to the plaintiff's amended complaint, but did not pursue the defense again until eight months later in their motion to compel arbitration. Horton, 926 So.2d at 172(¶ 7). The supreme court found that this delay was substantial, and when coupled with their active participation in litigation, constituted a waiver. Id. at 180(¶ 42).

¶ 27. RCSD asserts that, due to general allegations pleaded in John's complaint, it could not properly move for summary judgment based on immunity absent the discovery that occurred in this case. We disagree. A review of the record shows that the allegations in John's complaint adequately described the actions that formed the basis of John's claims. Further, all of the evidence necessary to determine whether RCSD was immune from liability was available at the outset of the case. While this Court declines to set a number of days that would constitute unreasonable delay, our supreme court has found “that—absent extreme and unusual circumstances—an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.” Id. at 181(¶ 45) (footnote omitted).

¶ 28. For the reasons stated, we find that the circuit court erred in granting summary judgment based on discretionary immunity, because RCSD waived this affirmative defense. Having found RCSD waived immunity pursuant to the MTCA and finding that the circuit court's grant of summary judgment was improper, John's argument regarding the motion for reconsideration is moot. Thus, we reverse the circuit court's judgment and remand this case for further proceedings consistent with this opinion.

¶ 29. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

¶ 30. I concur with the majority's finding that RCSD was immune under Mississippi Code Annotated section 11–46–9(1)(d) (Rev.2012). However, I respectfully dissent from the majority's finding that RCSD waived its affirmative defense of immunity. I would affirm the circuit court's grant of summary judgment in favor of RCSD.

¶ 31. The majority has determined that RCSD waived its affirmative defense because it did not timely raise the defense. This conclusion is interesting due to the fact that the plaintiff did not raise this issue to the circuit court until after summary judgment was granted. The plaintiff only claimed that RCSD waived the affirmative defense of governmental immunity in the motion for reconsideration.

¶ 32. The majority properly states the standard of review for a motion for reconsideration. It is to be treated as a Mississippi Rule of Civil Procedure 59(e) motion to amend the judgment. Lampkin v. Thrash, 81 So.3d 1193, 1199(¶ 21) (Miss.Ct.App.2012). “To succeed on a Rule 59(e) motion, ‘the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.’ “ Id. (quoting Brooks v. Roberts, 882 So.2d 229, 233(¶ 15) (Miss.2004). This Court reviews the “denial of a Rule 59 motion under an abuse-of-discretion standard.” Id.

¶ 33. The majority does not apply the standard of review to the facts. There was no intervening change in controlling law that would require the summary judgment to be decided differently. The plaintiff did not offer any new evidence that had become available.

¶ 34. The only portion of the standard of review that could be relevant here is whether there was a need to correct a clear error of law or prevent a manifest injustice. Such was not the case here. This Court has held that “[a] motion for reconsideration may not be used to rehash rejected arguments or introduce new arguments ․ [n]or may it be used ‘to resolve issues which could have been raised during the prior proceedings.’ “ Point S. Land Trust v. Gutierrez, 997 So.2d 967, 976(24) (Miss.Ct.App.2008) (emphasis added).

¶ 35. I cannot find that the circuit court abused its discretion in denying the motion for reconsideration when the plaintiffs could have but did not raise the waiver of immunity through RCSD's unjustified delay in presenting the issue until after summary judgment was granted.

¶ 36. Next, I am of the opinion that RCSD timely asserted the immunity defense. I agree with the majority that governmental immunity under the MTCA is an affirmative defense and is subject to waiver. Kimball Glassco Residential Ctr. Inc. v. Shanks, 64 So.3d 941, 945(12) (Miss.2011).

¶ 37. The supreme court has held “that-absent extreme and unusual circumstances an ․ unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.” Meadows v. Blake, 36 So.3d 1225, 1232(14) (Miss.2010) (emphasis added) (quoting Miss. Credit Ctr. v. Horton, 926 So.2d 167, 181(45) (Miss.2006)).

¶ 38. The question here is whether the delay was justified or unjustified.

¶ 39. There is no doubt that RCSD timely raised the defense: immunity under the MTCA was asserted as the seventh affirmative defense in RCSD's answer filed on January 8, 2010. The parties then agreed to two scheduling orders that set the deadline for all motions to be filed. RCSD asked the plaintiff for an extension to the deadline to file its motion for summary judgment, which asserted immunity as a defense, and the plaintiff agreed to the extension. At this point, the plaintiff could have asserted that the defense had been waived, but did not.

¶ 40. Also, to decide whether the delay was unjustified, we must determine when RCSD learned of or discovered the critical facts. The majority concludes that “al1 of the evidence necessary to determine whether RCSD was immune from liability was available at the outset of the case.” RCSD challenges this conclusion.

¶ 41. The majority, in paragraph three, states that Jane left the school's premises at approximately 1:30 p.m., visited a nearby McDonald's restaurant, met Tyler Trigg for the first time, and talked with Trigg briefly, and that after she was assaulted she went to the restroom until school was dismissed at 3:14 p.m. and then boarded her assigned bus. Yet none of these facts were in the complaint.

¶ 42. The majority, in paragraph four, also states that Jane first reported the incident on August 12, 2008, to her teacher, that the teacher informed the school counselor and the principal, that an investigation was conducted, and that Trigg was sent to alternative school and ultimately suspended pending further investigation. Yet none of these facts were in the complaint.

¶ 43. The majority assumes that RCSD was aware of each of these facts at the outset of the case. RCSD claims that it did not know and could not have known that this was the first time that Jane met Trigg. RCSD even contends that if there had been a history of problems specifically between Jane and Trigg, and RCSD knew of any specific issue and failed to address it, this would have been an entirely different case.

¶ 44. Also, the majority, in paragraphs sixteen and seventeen, states that RCSD took action against Trigg once it knew about the assault and used that in its reasoning that immunity applied. RCSD argues that this evidence was before the circuit court only because of discovery. RCSD contends that there was simply no way for it to piece together the story of how this whole sequence of events occurred without the discovery that occurred in this case.

¶ 45. The majority cites several cases to support its decision: Meadows, 36 So.3d 1225; Estate of Grimes ex rel. Grimes v. Warrington, 982 So.2d 365 (Miss.2008); East Mississippi State Hospital v. Adams, 947 So.2d 887 (Miss.2007); and Horton, 926 So.2d 167. These cases are distinguishable.

¶ 46. As for Meadows, Adams, and Horton, each of these cases pertain to issues that require minimal, if any, discovery and could be raised without any delay by the moving party. Such was not the case here.

¶ 47. In Grimes and Horton, the plaintiffs responded to the defendants' motions and expressly asserted that the defendants had waived their affirmative defense. Grimes, 982 So.2d at 369–70(21) (arguing that the defendant waived his immunity defense under the MTCA because he failed to pursue the defense for five years); Horton, 926 So.2d at 179(39) (asserting that the defendants waived their right to compel arbitration in response to the defendants' motion). Again, such was not the case here.

¶ 48. I cannot find support for the conclusion that RCSD was aware of these critical facts at the outset of the case. As a result, I cannot conclude that RCSD waived its immunity under the MTCA because of an unjustified delay in asserting the defense.

¶ 49. Finally, we must recognize the fact that the controversy here was caused, at least in part, by an intervening decision by the Mississippi Supreme Court that had a substantial impact on the interpretation of claims and defenses under the MTCA.

¶ 50. On October 6, 2011, the Mississippi Supreme Court decided Mississippi Transportation Commission v. Montgomery, 2010–IA–01112–SCT, 2011 WL 4634998 (Miss. Oct. 6, 2011). Later, on February 23, 2012, the opinion was withdrawn and a new opinion substituted. Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 791(1) (Miss.2012).

¶ 51. It is important to note that the first Montgomery opinion was decided on October 6, 2011. This was after RCSD filed the motion for summary judgment and after the plaintiff responded to the motion. In its reply memorandum, RCSD cited Montgomery (the October 6, 2011 opinion). Thus, the circuit court was aware of the Montgomery decision before the summary judgment was granted.

¶ 52. The supreme court acknowledged that until Montgomery was decided, there was uncertainty about the ordinary-care standard as it related to discretionary immunity under section 11–46–9(1)(d). Montgomery held that the trial court must consider the two-part public-function test to determine discretionary-function immunity. Montgomery, 80 So.3d at 797(26). And, the supreme court overruled three significant MTCA cases-Brewer v. Burdette, 768 So.2d 920 (Miss.2000); Mississippi Department of Transportation v. Cargile, 847 So.2d 258 (Miss.2003); and L.W. v. McComb Separate Municipal School District, 754 So.2d 1136 (Miss.1999). Montgomery was a fundamental change in the application of discretionary-immunity liability at the outset of a case.

¶ 53. When this case began, it was to be litigated under a pre-Montgomery standard. After the motion for summary judgment was filed, Montgomery changed the legal standard, and RCSD could not have known that it could have cut through the normal course of discovery and case management and gone directly to the two-part public-function test “at the outset” to determine whether immunity existed.

¶ 54. The fact that the supreme court, in Montgomery, eliminated the interplay between ordinary care and discretionary immunity makes any assessment of the discovery in this case very different post-Montgomery, as opposed to pre-Montgomery.

¶ 55. The majority recognizes that Montgomery overruled earlier cases that considered the interplay between sections 11–46–9(1)(b) and 11–46–9(1)(d). The majority also stated that, after Montgomery, the court must follow a well-established two-part test to determine if governmental conduct is discretionary for immunity purposes.

¶ 56. Before Montgomery, the test was not “well established.” Instead, when this case was filed, RCSD had to assess the case and decide how to defend the case based on the potential “interplay.” This change in the law, after RCSD had conducted discovery and filed its motion for summary judgment, demonstrates that RCSD not only should have but very much needed to conduct thorough discovery in this matter because of this potential “interplay.”

¶ 57. For these reasons, I would affirm the circuit court's grant of summary judgment in favor of RCSD. I respectfully dissent from the majority's decision that RCSD waived its right to assert governmental immunity under the MTCA as an affirmative defense.

FOOTNOTES

1.  For purposes of confidentiality, this Court declines to identify minors in child-sexual-abuse cases. In the interest of the child's privacy, we will refer to her throughout this opinion as Jane.

ISHEE, J., for the Court:

LEE, C.J., IRVING, P.J., ROBERTS, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND MAXWELL, JJ. CARLTON, J., NOT PARTICIPATING.