On Thursday the Mississippi Supreme Court reversed the Court of Appeals and ruled that an airport authority’s negligence in placing stairs at the terminal is a discretionary policy decision. Here is the Court’s opinion in Pratt v. Gulfport-Biloxi Regional Airport Authority.

The plaintiff in the case was attempting to board a plane when he slipped and fell down a set of temporary stairs that were not adequately covered with anti-slip tape. The airport moved for summary judgment arguing that its acts related to the stairs were discretionary functions that were immune from liability.

The Supreme Court agreed and reinstated summary judgment in a 4–3 opinion. In the majority were Justices Carlson, Dickinson, Lamar and Pierce. Chief Justice Waller and Justices Chandler and Kitchens dissented.

Justices Randolph and King did not participate.

The dissents by Chief Justice Waller and Justice Kitchens are both more convincing than Justice Carlson’s majority opinion. From Chief Justice Waller’s dissent:

“In applying the discretionary-function exception, ‘this Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.’…The exception ‘protects only governmental actions and decisions based on consideration of public policy.’”

Justice Waller agreed with the Court of Appeals that placing anti-slip tape does not involve a policy.

From Justice Kitchens’ dissent:

“The spur-of-the-moment decision by two maintenance personnel concerning the quantum and placement of anti-skid tape on a set of air stairs cannot, by any stretch of the imagination, be classified as a policy decision. Yet, the plurality finds immunity by equating the airport’s alleged negligent conduct with the governmental decision to operate an airport in the first place.” 

My Take:

This has the appearance of a result oriented decision aimed at protecting a governmental entity that probably carried liability insurance for the asserted claim and didn’t really need the help.

I assume that the Court knows that in most of these cases, the “governmental entity” asking for summary judgment is really the governmental entity’s insurance company. Although, God only knows why governmental entities carry liability insurance. The Supreme Court says everything is a discretionary policy decision that is immune.

Why not save everyone the trouble and roll back the Tort Claims Act and just say that governmental entities are totally immune?

Tort Claims Act law is confusing and the Court’s decisions interpreting whether governmental entities are immune don’t make sense. This is an area of the law where the only limit to a defense win is the imagination of the defense lawyer.