Kenneth Bailey v. City of Pearl, Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-01325-COA

KENNETH BAILEY AND ELIZABETH LEE APPELLANTS
SHUTZE, AS WRONGFUL DEATH
BENEFICIARIES OF BERTHA ELIZABETH
BAILEY, DECEASED

v.

CITY OF PEARL, MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/12/2018
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: STACY EVERETT PEPPER
STEVEN CRAIG PANTER
ATTORNEYS FOR APPELLEE: WALKER REECE GIBSON
REBECCA SUZANNE BLUNDEN
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART
AND REMANDED - 07/30/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

McDONALD, J., FOR THE COURT:

¶1. The Rankin County Circuit Court granted the City of Pearl’s (Pearl) motion to dismiss

a wrongful death case brought under the Mississippi Tort Claims Act (MTCA) by Kenneth

Bailey (Bailey) and the heirs of his wife, Bertha Bailey, deceased. After review of the record

and relevant case law, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

¶2. On September 18, 2017, Bailey and his wife, Bertha, went to their grandson’s baseball
game at the Pearl youth ballpark.1 A gate to the park on Legion Lake Road was open when

they arrived. Allegedly while the Baileys watched their grandson play, the gate was left

unsecured and unattended, which allowed it to swing partially closed. Later, when the

Baileys left, the gate was swung open in a northerly direction facing the Bailey’s oncoming

vehicle. Bailey alleged that this created a substantial, unavoidable, hazardous condition.

Bailey was driving, and Bertha was in the passenger seat. The Baileys’ vehicle collided with

the gate in such a manner that the gate “speared” the cab of the vehicle, striking Bertha in the

head. She was taken to the hospital but died eleven days later.

¶3. In his complaint, Bailey cited numerous duties that he alleged Pearl owed to visitors

to its park, including to properly design and install the gate; properly maintain the gate; have

proper equipment in place to secure the gate; properly supervise, hire, and train its

employees; establish safety protocols for the safe use of the facility by the public; provide

adequate lighting in the area for the public; mark and warn of any dangerous conditions;

inspect fixtures upon the property that could create a dangerous condition; provide and allow

safe ingress and egress onto the city’s property; and refrain from blocking the road with

anything that could cause injury. These were in addition to the claim that the gate was left

unsecured. Bailey alleged Pearl breached these duties and caused his wife’s death.

¶4. After being served with the complaint and summons, Pearl filed an answer and a

motion to dismiss based on discretionary-function sovereign immunity. Although Bailey

propounded written discovery during briefing, no responses were provided before the motion

1
Because the case was decided on a motion to dismiss, the facts are limited to those
contained in the complaint.

2
hearing was held and the order on the motion to dismiss was rendered.2

¶5. The circuit court adopted and incorporated the argument in Pearl’s reply and granted

the motion to dismiss on September 12, 2018. Applying City of Jackson v. Doe, 68 So. 3d

1285 (Miss. 2011), the court found that the operation and maintenance of a park is a

discretionary function, and therefore, Pearl is immune from liability under the MCTA. From

that order, Bailey appeals.

STANDARD OF REVIEW

¶6. An appellate court reviews de novo the grant or denial of a motion to dismiss. King

v. Bunton, 43 So. 3d 361, 363 (¶10) (Miss. 2010); Doe v. Holmes Cty. Sch. Dist., 246 So. 3d

920, 922 (¶6) (Miss. Ct. App. 2018). “The allegations in the complaint must be taken as true

and the motion should not be granted unless it appears beyond doubt that the plaintiff will

be unable to prove any set of facts in support of his claim.” Id.

DISCUSSION

¶7. Because the viability of Bailey’s claims turns on the application of discretionary-

function immunity to the alleged actions and inactions of Pearl, and because the precedent

governing that question has evolved even during the pendency of this case, it is necessary to

survey recent guidance from the supreme court as to the proper test with which to filter

Bailey’s claims. In applying that precedent, it is apparent that several of Bailey’s claims are

based on Pearl’s policy considerations (e.g., decisions about design and installation of the

gate at issue; supervision, hiring and training of city employees; lighting and safety

2
The circuit court heard argument on the motion, but no transcript was made.

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protocols) and were correctly dismissed by the circuit court. But Bailey’s alleged claim that

“the gate was negligently left unsecured and unattended thereby . . . creating a substantial,

unavoidable, hazardous condition,” at least as pled in Bailey’s complaint, plausibly sets forth

a simple act of negligence that would fall outside discretionary-function immunity shielding

Pearl from liability. The allegations of a breach of Pearl’s duty “to properly maintain the

gate” and “to inspect fixtures on the property that would create a dangerous condition” would

do so as well. Accordingly, as to those allegations, the circuit court erred in dismissing

Bailey’s simple negligence claims at the pleading stage. We address these points in turn.

¶8. The MTCA, Mississippi Code Annotated section 11-46-1, et seq. (Rev. 2012), waives

sovereign immunity and allows public entities to be sued for certain torts of governmental

entities and their employees after receipt of proper notice. But Mississippi Code Annotated

section 11-46-9(1) (Rev. 2012) identifies twenty-five types of claims for which a public

entity shall not be liable (i.e., for which it remains immune from suit), including claims:

(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. § 11-46-9(1)(d).

¶9. For years, courts have grappled with the difference between a “discretionary”

function, which provides immunity, and a “ministerial” function, which does not. The

Supreme Court’s latest definitive discussion of discretionary-function immunity appears in

Wilcher v. Lincoln County Board of Supervisors, 243 So. 3d 177 (Miss. 2018). There, a

driver was injured when his vehicle crashed into a large hole left in the road overnight during

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bridge construction. Id. at 181 (¶5). In reversing a grant of summary judgment based on

discretionary-function immunity, the Court explained the difficulty of applying what appears

to be a clear concept (i.e., discretionary immunity) and how the Court has turned for guidance

to the body of law developed under the Federal Tort Claims Act. Id. at 182 (¶11). Citing

United States v. Gaubert, 499 U.S. 315, 322 (1991), Wilcher pointed out that “the purpose

of the exemption is to prevent judicial second-guessing of legislative and administrative

decisions grounded in” public policy. Wilcher, 243 So. 3d at 182 (¶11) (quoting Gaubert,

499 U.S. at 323). Only functions which by their very nature are policy decisions are

protected. Id. at (¶12). Gaubert developed the “public-policy function test” that Wilcher re-

adopted. Wilcher, at 187 (¶30). The public-policy function test has two parts:

This Court first must ascertain whether the activity in question involved an
element of choice or judgment. Miss. Transp. Comm’n v. Montgomery, 80 So.
3d 789, 795 (Miss. 2012). If so, this Court also must decide whether that
choice or judgment involved social, economic, or political-policy
considerations. Id. Only when both parts of the test were met did a
government defendant enjoy discretionary-function immunity.

Wilcher, 243 So. 3d at 182 (¶12).

¶10. The supreme court had previously mandated the use of the public-policy function test

in Jones v. Mississippi Department of Transportation, 744 So. 2d 256, 260 (Miss. 1999), and

it was applied in numerous cases until 2014. Then in Brantley v. City of Horn Lake, 152 So.

3d 1106 (Miss. 2014), the Court formulated a different two-step analysis of a public entity’s

actions, namely to look at the overarching function that led to the action and determine

whether it was discretionary or ministerial, and then examine any narrower duty associated

with the activity at issue to determine if any statute or regulation renders that duty ministerial.

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Id. at 1112 (¶17). Wilcher overruled Brantley, noting how tedious and scattered the Brantley

analysis had become, stating that the Brantley test

“overcomplicates the process of litigating a claim and places the success of a
claim on the ability of the injured party’s attorney to sift through myriad and
sometimes arcane regulations—creating extra layers of proof, which may have
little or no practical effect on the actual negligent act.” Crum v. City of
Corinth, 183 So. 3d 847, 854 (Miss. 2016) (Randolph, P.J., concurring in
result only).

Wilcher, 243 So. 3d at 183 (¶15).

¶11. More importantly, the Wilcher Court said that the purpose of the MTCA exemption

is to shield the public entity, id. at 184 (¶17), not make it susceptible to suits for violations

of statutes or local codes or ordinances as was attempted in Horton v. City of Vicksburg, 268

So. 3d 504 (Miss. 2018) (finding that MCTA immunity barred a claim based on the city’s

alleged failure to inspect under its housing code). The Wilcher Court was adamant that

violations of statutes and regulations per se do not create causes of action that can be brought

against public entities. Wilcher, 243 So. 3d at 184 (¶18).

¶12. But Wilcher clearly provided that public entities are still subject to basic negligence

claims, saying:

Wilcher’s complaint is evidence of the confusion Brantley has created.
According to his factual allegations, the County and City removed a bridge and
failed to warn oncoming motorists the road had not yet been replaced. These
allegations support a common-law premises-based claim of failure to warn of
a dangerous condition created by the County and City. Yet, Wilcher did not
plead his claim as negligent failure to warn. Instead, Wilcher apparently found
the statutory duty that most closely fit the factual scenario. And he argued the
County and City breached the ministerial duties the statute imposed. He then
turned to the state manual. He did this to establish a claim that, should the
broader statutory function be discretionary, the defendants still had violated
mandatory regulatory duties. In other words, even though Wilcher’s

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allegations support an obvious common-law negligence claim against the
defendants, under Brantley, he was forced to present his claim as a statutory
and/or regulatory violation.

Id. at 185 (¶22). The Court then stated that “rather than try to dig our way out by further

modifying the Brantley test, we find the better course is to put down the shovel. We thus

abandon and overrule the Brantley line of cases and return to our original course of applying

the widely-recognized, easily understood, public-policy function test.” Id. at (¶23).

¶13. At issue in this case is whether Wilcher’s return to the public-policy function test

automatically reinstates all pre-Brantley precedents. We find that it does not because

Wilcher specifically said some pre-Brantley cases had misapplied the test and “stretched the

bounds of ‘policy’ beyond credulity,” citing as an example Pratt v. Gulfport-Biloxi Regional

Airport Authority, 97 So. 3d 68 (Miss. 2012). Wilcher, 243 So. 3d at 188 (¶33). Thus, any

pre-Brantley precedent must be closely examined prior to application. In Pratt, the Court had

held the act of placing anti-skid tape on airport steps was discretionary because the operation

of an airport was a discretionary function. Id. at 75 (¶18). Finding this result extreme, the

Wilcher Court reversed the Pratt decision and specifically adopted Justice Waller’s dissent

in Pratt. Wilcher, 243 So. 3d at 188 (¶33). Because the Pratt dissent is instructive in this

case, we cite it in full:

Because I would hold that the actions at issue in this case—maintaining
passenger airstairs—do not enjoy discretionary-function immunity, I
respectfully dissent.

I agree with the plurality that the decision to operate an airport is an immune
discretionary function. See Plur. Op. ¶10 (“A decision . . . to operate an airport
is discretionary.”). However, the act at issue does not encompass a policy
decision or act properly the subject of governmental immunity. Pratt does not

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claim to have been injured by the decision to operate the Gulfport–Biloxi
Regional Airport. In fact, neither party argues that the decision to operate the
airport is the act at issue. Rather, it is the alleged negligent placement of
anti-slip tape on the airstairs on which Pratt slipped that he claims caused his
injuries.

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.’” Dancy v. E. Miss. State
Hosp., 944 So. 2d 10, 17-18 (Miss. 2006) (quoting Gale v. Thomas, 759 So.
2d 1150, 1162 (Miss. 1999)). The exception “protects only governmental
actions and decisions based on considerations of public policy.” Berkovitz v.
U.S., 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L. Ed. 2d 531 (1988). When
reviewing whether a challenged action is afforded immunity, a court’s focus
is “on the nature of the actions taken and whether they are susceptible to policy
analysis.” U.S. v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed. 2d
335 (1991).

As the Court of Appeals recognized, no “policy” was involved in the placing
of the anti-slip tape:

During the deposition of Lloyd Gates, the maintenance man who
actually put the anti-slip tape down on the stairwell, Gates was
asked why he and another employee identified as “Richard” only
put a small strip of anti-slip tape on two feet of the center
portion of the stair surface, as opposed to the entire four-foot
stair surface. Gates answered, “I think it was probably both of
us saying that one would probably be enough.” Pratt v.
Gulfport-Biloxi Reg’l Airport Auth., 97 So. 3d 80, 84-85 (Miss.
Ct. App. 2011) (emphasis in original).

The Court of Appeals noted that there was an adequate supply of tape to cover
the entire surface. Id. I agree, then, with the Court of Appeals that the manner
in which the maintenance personnel placed the anti-slip tape did not implicate
social, economic, or political policy, but was simply “a completely random
decision.” Id.

Today’s case is distinguishable from those cited by the plurality. This is not
a case in which a person was injured by a third party while merely present on
government-owned property. Cf. City of Jackson v. Doe, 68 So. 3d 1285
(Miss. 2011). And, unlike the plaintiff in Shaw, Pratt does not claim that the
airport is exempt from immunity because it constitutes a “commercial

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enterprise.” Miss. Dep’t. of Mental Health and Ellisville State School v. Shaw,
45 So. 3d 656, 660 (Miss. 2010). Rather, Pratt’s claim is based on the airport’s
alleged failure to provide a safe means of exiting an airplane—a simple act of
negligence. See Darcy, 944 So. 2d at 17-18.

The United States Supreme Court has made it clear that maintenance decisions
such as the one at issue today do not involve policy considerations. In Indian
Towing Co. v. U.S., 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the Court
held that the U.S. government was liable for damages resulting from the Coast
Guard’s failure to inspect electrical equipment adequately. The Court
recognized that the Coast Guard was not required to operate the lighthouse.
Id. at 126. And it is obvious that the decision to operate a lighthouse—to
guide those at sea safely to shore—involves policy considerations. However,
the Court held that “once it exercised its discretion to operate a light on
Chandeleur Island and engendered reliance on the guidance afforded by the
light, it was obligated to use due care to make certain that the light was kept
in good working order.” Id. at 126-27. Commenting on Indian Towing in his
concurrence in Gaubert, Justice Scalia said that maintenance decisions such
as this—and the one at issue in today’s case—did not involve policy
considerations. Gaubert, 499 U.S. at 336 (Scalia, J., concurring in part and in
judgment); see also Berkovitz, 486 U.S. at 538 n.3 (noting that the failure to
maintain the lighthouse in good condition “did not involve any permissible
exercise of policy judgment”).

The action complained of by Pratt does not implicate social, economic, or
political policy. As such, I would hold that it does not enjoy
discretionary-function immunity.

For the above reasons, I respectfully dissent.

Pratt, 97 So. 3d at 76-77 (¶¶21-28) (Waller, C.J., dissenting). By adopting Chief Justice

Waller’s dissent in Pratt, the Wilcher Court incorporated it into our body of binding

precedent. Moreover, by its adoption, the Wilcher Court was indicating that some

precedents, such as City of Jackson v. Doe, 68 So. 3d 1285 (Miss. 2011), are limited in scope

and that basic maintenance decisions do not involve policy considerations and are thus not

discretionary. See Wilcher, 243 So. 3d at 188 (¶¶33-35).

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¶14. That negligent maintenance is a separate actionable claim against a public entity and

not subject to discretionary-function analysis is noted in the post-Wilcher case of Estate of

Hudson v. Yazoo City, 246 So. 3d 872 (Miss. 2018). That case, which involved the drowning

death of a child in a city drainage ditch, was filed while Brantley was in effect. Thus, to meet

the Brantley requirements, the Estate claimed that while the overarching function of creating

drainage ditches may be discretionary, the rules of the National Flood Insurance Program to

obtain a flood plain development permit were mandatory and violated by the city. Id. at 875

(¶18). The circuit court applied Brantley and held that the city was immune from suit

because the ordinances and regulations did not make the city’s construction of ditches a non-

discretionary, ministerial function. Id. at 876 (¶27). On appeal, the supreme court reviewed

the Brantley arguments that the parties made, but noted that while Hudson was pending, the

court decided Wilcher and overruled Brantley. Id. at 873 (¶5). The supreme court held that

the Estate had no private cause of action against the city under any of the statutes or

ordinances cited. It remanded the case for re-examination of the discretionary-function

defense in light of the holding in Wilcher. Id. at 880 (¶51). The Hudson Court also noted

that the Estate had alleged that the city had failed to properly maintain the ditch and thus

created a dangerous condition, which is a simple negligent- maintenance action. Apparently

the Estate had backed away from that claim perhaps because of the Brantley analysis

requirements. Id. at (¶49). Therefore, the Court made no decision on the matter, saying:

Given that the Estate’s case was still pending when Wilcher handed down,
overruling the Brantley test and reinstituting the public-policy function test for
purposes of Section 11-46-9(1)(d), the applicability of subsection (d) must be
decided under the reinstituted public-policy function test. And out of fairness

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to the Estate, we find the Estate should be allowed the opportunity to fully
present its negligence claim, beyond its reliance on the overruled Brantley test.

Furthermore, following careful de novo review of this record, we continue to
have questions with regard to the applicability of both subsections (d) and (v)
to the current facts in this case. And in fairness to both parties, we decline to
enter into a discussion with regard to either exemption under the record in this
case.

Hudson, 246 So. 3d at 880 (¶¶51-52).

¶15. Noticeably, the Hudson Court did not automatically apply the pre-Brantley case of

Fisher v. Lauderdale County Board of Supervisors, 7 So. 3d 968 (Miss. Ct. App. 2009),

which held that the installation and maintenance of drainage ditches was a discretionary

function. Instead the Court remanded the case for reconsideration under Wilcher and pursuit

of the simple-negligence claim. Likewise, in this case, we do not find City of Jackson v.

Doe, 68 So. 3d 1285 (Miss. 2011), dispositive of this case for several reasons. As the Court

stated in the Pratt dissent and Wilcher, Doe, on July 30, 2019, involved an injury committed

by a third person on government property. Pratt, 97 So. 3d at 77 (¶25) (Waller, C.J.,

dissenting). The facts here do not involve an injury caused by a third party’s actions.

Moreover, in Doe, the activity the Court examined was the operation of a park, Doe, 68 So.

3d at 1288 (¶12), just as the Pratt majority had examined the operation of an airport. Pratt,

97 So. 3d at 73-74 (¶14). The focus on the general function as the “activity” was in error as

the Pratt dissent clearly articulated. Here the activity in question is not the city’s policy

decision to create a park, rather the activity was an alleged failure to secure or maintain a

gate in that park. The activity being different, Doe does not preclude Bailey’s claim.

¶16. Applying the Wilcher analysis here, we begin with the identification of the activity

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being challenged.3 We must distinguish between real policy decisions implicating

governmental functions and simple acts of negligence that injure citizens. Wilcher, 243 So.

3d at 188 (¶34). “[W]hen reviewing whether a challenged action is afforded immunity, a

court’s focus is ‘on the nature of the actions taken and whether they are susceptible to policy

analysis.’” Id. (quoting Gaubert, 499 U.S. at 325).

¶17. Bailey has pled numerous actions/failures by Pearl with respect to the ballfield in

question. Pearl argues that we need not address each activity pled by Bailey because proving

one subsection of section 11-46-1 gives it immunity for all claims. But this is not the law.

In MacDonald v. Mississippi Department of Transportation, 955 So. 2d 355, 361 (¶25)

(Miss. Ct. App. 2006), this Court held:

It is true that, for any individual claim, where any one provision under section
11-46-9(1) grants immunity, a governmental entity is immune to that
individual claim. However, where there are separate claims, that single
provision may or may not be sufficient to create immunity as it applies to those
other claims. Resolution of the question as to whether a single finding of
immunity equates to immunity as to each and every claim raised depends on
the facts of the case and the relevant claims.

The supreme court subsequently said:

To be clear, we have never held that the applicability of one exemption
extinguishes all claims. Each separate and distinct claim must meet an
exemption under one of the subsections of Section 11-46-9(1) for immunity to
apply to that particular claim.

Little v. Miss. Dep’t of Transp., 129 So. 3d 132, 139 (¶15) (Miss. 2013). Therefore, we

3
In Wilcher, the plaintiff was not complaining about the placement of a traffic device,
which would be a governmental discretionary function. Rather Wilcher was complaining
of the tortious act of the crew’s failure to barricade the hole they had dug in the road or warn
drivers about it. Wilcher, 243 So. 3d at 188 (¶¶32-33). This failure, the Court held, was not
the result of a policy decision. Id.

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address each of the claims pled by Bailey.

¶18. We note that Mississippi Code Annotated section 55-9-29 (Rev. 2014) authorizes

Pearl to create a park “to promote the public interest and welfare in the participation in . . .

athletics and recreational activity . . .” and authorizes the construction of “buildings, facilities

and improvements incident thereto . . . .” Keeping this in mind, we find that several of the

activities that Bailey listed in his complaint do involve public policy judgment-making by

Pearl. Any decision made related to the design and construction of the park would involve

public-policy considerations, including the provision of safe ingress and egress to the park;

the selection of the design and installation of the gate; obtaining the proper equipment to

secure the gate; and the provision of adequate lighting in the area per the design selected.

Therefore, the circuit court was correct in finding Pearl immune from these claims.

¶19. Moreover, matters dealing with personnel, including the hiring, supervision and

training of employees were determined to be discretionary functions in the post-Wilcher case

of City of Clinton v. Tornes, 252 So. 3d 34, 40 (¶23) (Miss. 2018) (finding that the city was

entitled to discretionary-function immunity on motorist’s claims that city acted negligently

in training its police officer). Therefore, the circuit court was also correct in dismissing the

negligent-hiring, training, and supervision claims pled by the Baileys. The adoption of safety

protocols for the safe use of the facility by the public is also discretionary because it is an

exercise of the city’s rule-making authority that Wilcher says should not be invaded. So the

circuit court was correct in dismissing that claim.

¶20. Other activities listed by Bailey deal with park maintenance: negligently leaving the

gate unsecured; failing to maintain the gate; and failing to inspect fixtures upon the property

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that could create a dangerous condition. Pearl argues that these claims are barred, citing two

pre-Wilcher cases that hold maintenance to be a discretionary function.4 But Wilcher’s

adoption of the Pratt dissent overrules those maintenance cases. Moreover, although it is

true that a plaintiff must allege specific acts of negligence not related to or flowing from a

social, economic, or political policy, merely saying that maintenance costs money does not

make the failure to provide it an “economic policy” decision.

¶21. At oral argument Bailey said that the key activity in this case was the failure to secure

the gate or have an apparatus that would secure the gate. These are basic negligence claims

as identified in Wilcher and the Pratt dissent. Moreover, the allegation that the city failed

to mark and warn of a dangerous condition (i.e., an unsecured gate) may be actionable and

not barred by section 11-49-9(w) if Bailey can prove that Pearl had prior notice of the

condition. We find no discretionary-function immunity afforded to Pearl on these claims.

¶22. Because Bailey may be able to prove a set of facts under the MTCA for actions by

Pearl that are not exempt from immunity, we hold that the circuit court erred in dismissing

the claims of basic negligence cited above, and we remand the case for further proceedings.

CONCLUSION

¶23. Because Bailey’s allegations concerning the design of the city’s ballpark, including

lighting, gates, and safe ingress and egress to the park, as well as the proper hiring, training,

and supervision of employees and the adoption of safety protocols for use of the park by the

4
Fisher v. Lauderdale Cty. Bd. of Supervisors, 7 So. 3d 968 (Miss. Ct. App. 2009)
(finding maintenance of culverts to be a discretionary function); Fortenberry v. City of
Jackson, 71 So. 3d 1196 (Miss. 2011) (finding maintenance of sewer system to be a
discretionary function).

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public are discretionary functions, we affirm the circuit court’s dismissal of these claims pled

by Bailey. But because Bailey’s allegations of negligently leaving the gate unsecured,

failing to maintain the gate, and failing to inspect fixtures upon the property that could create

a dangerous condition are not exempt under the public-policy function test of discretionary

immunity, we reverse the circuit court’s dismissal of those claims and remand for further

proceedings.

¶24. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McCARTY AND C. WILSON, JJ. CONCUR. LAWRENCE, J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON,
P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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