Please update your links! Our new website url is http://masglp.olemiss.edu . This old website will soon cease to exist!

Water Log 28.4, February, 2009

Mississippi Tort Claims Act Does Not Supercede Emergency Management Act

Parsons v. Miss. State Port Auth. at Gulfport, 2008 Miss. App. LEXIS 705A0(Miss. Ct. App. Nov. 25, 2008).

Juliane D. Morris, J.D. December 2008, University of Mississippi School of Law

A Mississippi State Court of Appeals declared that the Mississippi Tort Claims Act does not supersede the Mississippi Emergency Management Law, finding that the statutes can be read in conjunction with one another.

Background
Arthur and Angela Parsons (“Plaintiffs”) were among the many who suffered property damage as a result of Hurricane Katrina’s landfall along the Gulf Coast in August of 2005. Plaintiffs alleged that the forces of Katrina carried a shipping cargo container onto their property, causing the total destruction of their house and other personal property.1

Plaintiffs brought suit against the Mississippi Port Authority (“MPA”) and the Mississippi Dev­ elopment Authority (“MDA”), arguing that both entities were negligent in the preparation and performance of their duties before and during the storm.2 Specifically, the complaint alleged that the MPA and the MDA failed to properly secure or remove any potential flying debris from the Port of Gulfport.3
 
The MPA and MDA filed a motion to dismiss the complaint, alleging that they were immune from negligence claims involving emergency preparedness, response, recovery and mitigation under the Mis­ sissippi Emergency Management Law.4 The Plaintiffs countered that the more recent Mississippi Tort Claims Act superseded the Emer­ gency Management Law, and provides waiver of immunity.5

The trial court granted the defendants’ motion, concluding that the MPA and MDA were immune from suit under the Emergency Management Law. Plaintiffs brought this appeal.

On appeal, Plaintiffs argued that the Tort Claims Act is the exclusive avenue for pursuing claims against the state or any of its agencies.6 As both parties agree that the MPA and MDA are governmental agencies, Plaintiffs asserted that the agencies cannot claim immunity under the Emergency Man­ age­ ment Law.7

The Tort Claims Act reads, “Notwithstanding. . . the provisions of any other law to the contrary, the immunity of the state and its political subdivisions . . . is hereby waived from and after July 1, 1993, as to the state, and from and after October 1, 1993, as to political subdivisions.”8 Plaintiffs claimed that the fact that the Tort Claims Act, enacted in 1984 and amended in 1992, was passed after the Emer­ gency Management Law, enacted in 1952 with a most recent effective date of May 9, 1980, supported their argument that the legislature intended for the Tort Claims Act to supersede the Emergency Management Law.9

The appeal argued that the court should give effect to the “notwithstanding clause” quoted above, claiming that if the legislature had desired, it could have included language in the Tort Claims Act excluding the waiver of immunity for emergency activities.10 The appellants relied upon the familiar rule of statutory interpretation whereby later expressions of the legislature, which here waives immunity after the specified dates, must prevail over the language of an older law, which here allows the state to claim immunity under certain emergency circumstances.11
           
Appellate Panel Upholds Dismissal
The appellate court upheld the dismissal of Plaintiffs’ suit, declaring that the best evidence of the legislature’s intent is the actual text of the statutes.12 The court reiterated a principle recognized by Mississippi’s Supreme Court, which asserts that two statutes should be read in harmony with each other, if possible, so as to give effect to each.13

While the court agreed with Plaintiffs that the Tort Claims Act is the sole remedy against the state and its agencies, it stated that the act is inapplicable in this instance because A7 11-49-9(1)(f) of the Act exempts from liability those claims that are barred by other provisions of law.14 In addition to the “notwithstanding” clause cited by Plaintiffs, the Act states, “A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim . . . which is limited or barred by the provisions of any other law.”15 According to the court, this section of the Tort Claims Act “clearly allows other immunities to remain in effect after its passage.16

Since A7 33-15-21 of the Emergency Management Law provides immunity to the state and its agencies for liability occurring during emergency situations, the court affirmed the decision of the lower court dismissing Plaintiffs’ claims.17

Endnotes:
1.  See Parsons v. Miss. State Port Auth. at Gulfport, 2008 Miss. App. LEXIS 705, *1-2 (Miss. Ct. App. Nov. 25, 2008).
2.  Id. at *2.
3.  Id.
4.  Id. at *2-3.
5.  Id. at *3.
6.  Id. at *4.
7.  Id.
8.  Id. at *6 (citing Miss. Code Ann. A7 33-15-21(a) (Rev. 2002)).
9.  See Parsons, 2008 Miss. App. LEXIS 705 at *6.
10. Id. at *9-10.
11. Id.
12. Id. at *10 (citing Pegram v. Bailey, 708 So. 2d 1307, 1314 (Miss. 1997)).
13. See Parsons, 2008 Miss. App. LEXIS 705 at *11 (citing Roberts v. Mississippi Republican Party State Executive Comm., 465 So. 2d 1050, 1052 (Miss. 1985)).
14. See Parsons, 2008 Miss. App. LEXIS 705 at *11.
15. Id. at *11.
16. Id. at *10.
17. Id. at *10-12.

University of Mississippi