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IN THE COURT OF APPEALS 5/21/96 OF THE STATE OF MISSISSIPPI
NO. 94-CA-00605 COA

IVADALE MCCLAIN, JAMES DAVID MCCLAIN AND LOUELLA PITTS APPELLANTS v. JONES COUNTY SHERIFF'S DEPARTMENT AND FORREST COUNTY SHERIFF'S DEPARTMENT APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. BILLY JOE LANDRUM COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: LISA B. MILNER AND SANDRA C. BRADSHAW ATTORNEYS FOR APPELLEES: JAMES K. DUKES, JON MARK WEATHERS, AND SANDRA MOHLER NATURE OF THE CASE: CIVIL: WRONGFUL DEATH CLAIM AGAINST SHERIFF'S DEPARTMENT DUE TO THE RELEASE OF A PRISONER WHO ROBBED THE VICTIM AND CAUSED HIS IMMEDIATE DEATH TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT FOR JONES AND FORREST COUNTY SHERIFF'S DEPARTMENT

BEFORE THOMAS, P.J., BARBER, AND DIAZ, JJ. THOMAS, P.J., FOR THE COURT: Adam Waters, a prisoner of the Jones County Sheriff's Department free on bond, attacked James McClain in an attempted robbery. McClain suffered an immediate heart attack and died. On June 15, 1993, Ivadale McClain, James David McClain, and Louella Pitts filed suit against the Forrest and Jones County Sheriff's Department for wrongful death. Forrest and Jones County filed summary judgment motions which the trial court granted. Feeling aggrieved, the Appellants appeal to this Court and assert the following assignment of error: WHETHER THE JONES COUNTY SHERIFF'S DEPARTMENT AND THE FORREST COUNTY SHERIFF'S DEPARTMENT WERE ENTITLED TO A JUDGMENT OF DISMISSAL AS A MATTER OF LAW. This Court reverses in part and affirms in part. The trial court erred as a matter of law in granting summary judgment for the Jones County Sheriffs Department, and this Court reverses and remands for proceedings consistent with this opinion. This Court affirms summary judgment for the Forrest County Sheriffs Department. FACTS On March 24, 1992, Adam Waters was sentenced on a felony charge in Forrest County, Mississippi, to the Mississippi Department of Corrections for a term of three years. Forrest County transferred Waters to the custody of Jones County for prosecution on a burglary charge pending in that county. No written documentation was provided Jones County as to Waters' status as a state prisoner. Morris Walters, Chief Deputy of the Jones County Sheriff's Department sent Deputy James Jennings to Forrest County to pick up Waters and transport him to Jones County, to stand trial. It is admitted that Deputy Jennings was told that Waters was a state prisoner but did not receive or ask for a commitment order, order of conviction, order of sentence, or any other written documentation. Waters' file at the Jones County jail did not indicate that Waters was a state prisoner. Waters asked Deputy Billy Byum to find out whether bail had been set for the burglary charge. Byum reviewed the jail records and found no indication that Waters was a state prisoner nor verification from any law enforcement agency that Waters should not be released on bond. As a result, Waters posted bond and was released from jail on April 4, 1992. Thereafter, on April 8, 1992, Waters attempted to rob James McClain, who died from a heart attack as a result thereof. The Appellants filed a complaint against the Jones and Forrest County Sheriffs' Departments. After discovery, Jones County filed a summary judgment motion which the trial court granted based on the following: (1) the doctrine of qualified immunity shields the sheriff and his deputies in performance of their discretionary duties and bars the suit in the instant case; (2) any duty owed by the sheriff and his deputies was a duty to the public rather than a duty to the individual Appellants, which bars recovery; and (3) the acts of Waters were the sole, proximate cause of the Appellants' injuries and constitutes a superseding intervening cause which bars recovery. The trial court also granted Forrest County's motion to dismiss. McClain appealed the trial court's grant of summary judgment to this Court assigning the following issue:

WHETHER THE JONES COUNTY SHERIFF'S DEPARTMENT AND THE FORREST COUNTY SHERIFF'S DEPARTMENT WERE ENTITLED TO A JUDGMENT OF DISMISAL AS A MATTER OF LAW.

McClain contends that there were genuine issues of material fact which should have precluded summary judgment for the Appellees. On the other hand, Jones County and Forrest County argue that the trial court was correct in granting summary judgment. In determining whether a trial court properly granted summary judgment this Court employs the same rule as the Mississippi Supreme Court as explained in Palmer v. Anderson Infirmary Benevolent Ass'n: In our de novo review, this Court looks to see if the moving party has demonstrated that no genuine issue of fact exists. Daniels v. GNB, Inc.,629 So. 2d 595, 599 (Miss. 1993). "A motion for summary judgment should be overruled unless the trial court finds, beyond a reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim." Id. at 599 (citing McFadden v. State, 580 So. 2d 1210 (Miss. 1991)). "The lower court is prohibited from trying the issue; it may only determine whether there are issues to be tried." Id. (citing Brown v. Credit Center, Inc. , 444 So. 2d 358, 362 (Miss. 1983)).

Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So. 2d 790, 795 (Miss. 1995). The evidence must be viewed in a light most favorable against whom the motion has been made. If the court finds that the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. Otherwise, the court should deny summary judgment. Mantachie Natural Gas Dist. v. Mississippi Valley Gas Co., 594 So. 2d 1170, 1172 (Miss. 1983). DISCUSSION Sovereign Immunity The doctrine of sovereign immunity has its basis in England. The doctrine stems from the idea that "the King can do no wrong." When this country was established, our founding fathers decided to adopt the English doctrine and apply it to the government. Through the years most states have abolished or abrogated the doctrine because of its unfairness to the public. In 1982, the Mississippi Supreme Court abolished sovereign immunity in the case of Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss. 1982). However the court did not abolish the immunity granted "to all legislative, judicial and executive bodies and those public officers who are vested with discretionary authority, which principle of immunity rests upon an entirely different basis, and is left intact by this decision." Id. at 1052. In 1984, in response to the Pruett decision, the legislature enacted the Sovereign Immunity Act of 1984. This act provided that claims arising prior to its effective date would be covered by the law at

it existed prior to the 1982 decision in Pruett. Each year thereafter the legislature extended the effective date of the Act by one year, effectively side-stepping the Pruett decision. On August 31, 1992, the Mississippi Supreme Court decided the case of Presley v. Mississippi Highway Commission, 608 So. 2d 1288 (Miss. 1992). In this case, the court held that the language limiting the effect of the Pruett decision was unconstitutional. Subsequently, the legislature amended the Act to remove the offending language. The Sovereign Immunity Act allows a governmental entity and/or its employees to be sued if certain conditions are met. In this case, Jones and Forrest County claim that because they were performing a discretionary function they are not liable for any claims arising therefrom. McQueen v. Williams, 587 So. 2d 918, 920 (Miss. 1991). Mississippi Code, section 11-46-9, in pertinent part provides: 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.

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