IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

E-Filed Document Mar 25 2015 09:27:28 2014-CA-00857 Pages: 18 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI TASHA DAVIS, INDIVIDUALLY; AND TASHA DAVIS FOR AND ON BEHALF OF THE WRONGFUL DEATH HEIRS OF CALLIE ALLYN DAVIS, DECEASED vs. VS. JONES COUNTY SCHOOL DISTRICT APPELLANTS NO. 2014-CA-00857 APPELLEE REPLY BRIEF OF THE APPELLANTS ORAL ARGUMENT IS NOT REQUESTED EUGENE C. TULLOS ATTORNEY AT LAW P.O.BOX74 RALEIGH, MS 39153 TELEPHONE NO. 601-782-4242 ATTORNEY FOR THE APPELLANTS S. WAYNE EASTERLING ATTORNEY AT LAW P.O. BOX 1471 HATTIESBURG, MS 39403 ATTORNEY FOR THE APPELLANTS

CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. Theses representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Tasha Davis, individually and on behalf of the wrongful death heirs of Callie Allyn Davis... Appellants 2. Eugene C. Tullos... Attorney for the Appellants 3. S. Wayne Easterling... Attorney for the Appellants 4. Jones County School District.... Appellee 5. John A. Waits, Daniel, Coker, Horton, & Bell....Attorney for the Appellee 6. Peter J. McKelroy, Daniel, Coker, Horton, & Bell... Attorney for the Appellee Respectfully submitted, s/ Eugene C. Tullos Eugene C. Tullos Attorney for the Appellants

TABLE OF CONTENTS TABLE OF AUTHORITIES... iii ARGUMENT...! CONCLUSION... 12 CERTIFICATE OF SERVICE... 12

CASES TABLE OF AUTHORITIES Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014)... 1, 2, 4 Covington Cnty. Sch. Dist. v. Magee, 29 So. 3d I (Miss. 2010)....II Henderson v. Simpson Cnty. Pub. Sch. Dist., 847 So. 2d 856 (Miss. 2003)... 7, 8, 12 Langv. Bay St. Louis/Waveland Sch. Dist., 764 So. 2d 1234 (Miss. 1999)... 10, 13 Little v. Mississippi Dep't oftransp., 129 So. 3d 132 (Miss. 2013) reh'g denied (Jan. 16, 2014)... 5 L. W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1143 (Miss.l999)... 7 Miss. Transp. Comm 'n v. Montgomery, 80 So.3d 789 (Miss. 2012)... 8 Moss Point Sch. Dist. v. Stennis, 132 So. 3d 1047(Miss. 2014)... 7, 12 Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911, 916 (Miss.200 I)... 7 STATUTES AND RULES OF COURT Miss. Code. Ann. 37-9-69... 6, 7, 8, 9, 10, 11 Miss. Code. Ann. 63-3-1201... 11 iii

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI TASHA DAVIS, INDIVIDUALLY; AND TASHA DAVIS FOR AND ON BEHALF OF THE WRONGFUL DEATH HEIRS OF CALLIE ALLYN DAVIS, DECEASED VS. JONES COUNTY SCHOOL DISTRICT NO.2014-CA-008S7 APPELLANTS APPELLEE REPLY BRIEF OF THE APPELLANTS ARGUMENT The school district's assertion that any duty owed to Callie with respect to providing "necessary supervision" and "a safe place" would be characterized as a discretionary function or duty, thereby absolving the school district from liability is misplaced. The school district's duty in this case is one which is a ministerial duty imposed by statute which therefore gives rise to a genuine issue of material fact for the trier of fact to consider thus precluding summary judgment. The Supreme Court has recently stated that although an act may initially be discretionary and therefore initially grant immunity, a statute dictating how the functions are to be carried out may make the conduct a ministerial duty, thereby removing immunity. In the case of Brantley v. City of Horn Lake, 152 So. 3d 1106, 1113 (Miss. 2014), the Court stated, Our holding in Little stands for the principle that all acts in furtherance of a ministerial function lack immunity notwithstanding that the act itself may involve an element of discretion. That said, while one statute may render a broad function ministerial, another statute or regulation may render a duty involved with that function discretionary, thus allowing the performance of such a duty to enjoy immunity. And clearly, the converse must be true, such that narrower duties encompassed in a broad discretionary function may be rendered ministerial through statute or regulation. Accordingly, although Little requires us to look at the broad govermnental function to determine whether it is discretionary, it still is necessary to examine any narrower duty that may have formed the basis of the claim against the governmental entity to determine whether that particular duty has been rendered discretionary or ministerial by statute or regulation. Page 1 of14

The Court in Brantley considered a situation where the City of Horn Lake elected in its discretion to operate a city ambulance service. Brantley was injured when an ambulance employee dropped him from the ambulance. The city argued that it was immune because the operation of a city ran ambulance service was discretionary. However, the Supreme Court in reversing the granting of summary judgment found that while the operation of said ambulance service may be discretionary, there are certain statutes which require ambulance services to conduct operations in a specific marmer and for the employees to have certain training and/or certificates thereby making the operation a ministerial duty. The Brantley Court reasoned, The confusion stems from the fact that functions can be furthered only through engagement in acts. The statute grants immunity "based upon the exercise or performance or failure to exercise or perform a discretionary function or duty... " Id How does one do what the statute requires? That is to say, how does one "exercise or perform" a discretionary function? The answer, of course, is by engaging in acts. And in granting immunity, the statute draws no distinction between discretionary acts and mandatory acts, as long as the acts are undertaken in the performance of "a discretionary function or duty... " Id So it is the nature of the function that must be determined, and not the nature of the act. Further, Chief Justice Waller relies on federal cases applying the two-part publicfunction test created by the United States Supreme Court in its interpretation of the Federal Tort Claims Act, 28 U.S.C. 2680 (Rev. 2009). That Court has explained that the application of the public-function test will necessitate an analysis of an act involving some discretion to determine whether a particular act shares the immunity of the function it furthers. Were Mississippi to maintain that test, the federal precedent that the Chief Justice cites might be persuasive. But the Mississippi statute's explicit language requires us to abandon the public-function test, because its language does not limit the immunity enjoyed in the exercise of a discretionary function to discretion involving policy judgments. Instead, the statute requires only that the discretion be exercised in the course and scope of the entity or employee's employment or duty. Now, in the case before us, Brantley alleges that he was injured when he was improperly removed from an ambulance and caused to fall to the ground. We must determine what function the governmental entity, in this case the City, was performing. Clearly, the overarching function being performed was the operation of a city-run ambulance Page 2 of14

_j! service. The Legislature has declared that a municipality, in its discretion "and upon finding that adequate public ambulance service would not otherwise be available, may own, maintain, and operate a public ambulance service as a governmental function, fix and collect charges therefor, and adopt, promulgate and enforce reasonable rules and regulations for the operation of said service." Miss.Code Ann. 41-55-1 (Rev. 2013). So, when a city determines that inadequate ambulance service is available within its corporate limits, it may, in its discretion, own, maintain, and operate an ambulance service. The function of operating an ambulance service explicitly is discretionary, according to state statute. Accordingly, all acts in furtherance of that function are presumptively discretionary. However, the Court now must also consider the fact that, once a municipality has decided to operate and maintain its own ambulance service, it is subject to several ministerial statutes and regulations which remove the municipality's discretion from many functions and duties and render such functions and duties ministerial. In this case, the provision of ambulance services falls completely under the ambit of the State Board of Health. The Board of Health is wholly responsible for regulating emergency services in Mississippi. The State Board of Health shall establish and maintain a program for the improvement and regulation of emergency medical services (hereinafter EMS) in the State of Mississippi. The responsibility for implementation and conduct of this program shall be vested in the State Health Officer of the State Board of Health along with such other officers and boards as may be specified by law or regulation. Miss.Code Ann. 41-59-5(1) (Rev. 2013). The rules governing the operation of emergency services require absolute compliance. The governing authorities of Horn Lake have no choice but to adhere to the mandatory edicts of the State Board of Health governing the operation of its ambulance service. A city must obtain a license and permit to operate ambulances on the streets and highways of Mississippi, it must submit its ambulance service to inspections at least twice a year, and it must utilize ambulances that conform to the ambulance standards dictated by the Board of Health. The public ambulance service must be staffed by certified emergency medical technicians ("EMTs") who have been certified according to the "board's approved emergency medical technical training program," and the board has exclusive authority for developing the EMT training program. The Board of Health is further empowered "to suspend or revoke a license whenever it determines that the holder no longer meets the requirements prescribed for operating an ambulance service." Miss.Code Ann. 41-59-17(1) (Rev. 2013). In other words, once a city has decided to operate an ambulance service, many aspects of the operation of that service are dictated to the city by the Board of Health, and noncompliance with those mandatory regulations can result in the revocation of the city's authority to operate that service. The Mississippi Administrative Code provides several mandatory requirements for the licensure of ambulance services, individual ambulances, emergency medical technicians, and ambulance drivers. See generally Miss. Admin. Code 15-12-31. Accordingly, this Court must look closely at any of the narrower functions or duties underlying the claim at issue and determine whether a statute or other regulation removes it from the umbrella of discretionary function immunity. Page 3 of14

Here, Brantley alleges that he was improperly unloaded from an ambulance and dropped on the ground. On the one hand, it would seem that the duty incumbent upon ambulance services of actually delivering someone to a hospital via ambulance would require, without discretion, the duty of actually removing that person from the ambulance safely. However, this Court does not know whether the emergency medical technicians, as a part of their training, or under some other duty established by regulation or ordinance, were required or trained how to fulfill the duty of unloading a patient from an ambulance safely. And, as pointed out by Brantley in his supplemental brief, he does not know either. Summary judgment was granted on the theory of fire-protection services immunity. The trial court did not consider discretionary-function immunity, and the plaintiff did not tailor his discovery to address possible rules or regulations that would make the duty to remove someone safely from an ambulance a ministerial one. If such a regulation exists, the plaintiff will be able to proceed on his claim. If not, Hom Lake will be entitled to discretionary-function immunity. Id. at 1115-1117. The Brantley decision reaffirms the holding in Little wherein if there is a statute requiring or dictating conduct on the part of the governmental entity then the duty imposed is a ministerial duty and there is no immunity. The trial court erred in finding that the actions of the school district were discretionary when clearly there is a statute requiring the school to prevent disorderly conduct by students when the students are on school property for school functions as they were in this case. The Brantley Court concluded by holding, The City of Hom Lake's operation of an ambulance service is a discretionary function. As such, acts performed as part of its engagement in such a function generally entitle it to discretionary-function immunity pursuant to Section 11-46- 9(1)(d). However, when engaged in that function, several duties involved with the operation of the ambulance service are ministerial, as the service is closely regulated by the State Board of Health through its administrative regulations. Because this Court has injected the aspect of discretionary-function immunity into the proceedings, the plaintiff has had no opportunity to tailor his discovery or strategy to address the possibility of a rule, regulation, or statute which may render the duty of removing a person from an ambulance a ministerial one, and thus could remove such duty from the umbrella of discretionary-function immunity. On remand, if the plaintiff can prove that the defendant was fulfilling a function or duty mandated by a specific statute, ordinance, or regulation promulgated pursuant to lawful authority, then he may proceed with his claim. Accordingly, we reverse the grant of summary judgment by the DeSoto County Page 4 of14

Circuit Court, and remand for further proceedings consistent with this opinion. Id. at 1118. The Court in Little v. Mississippi Dep't of Transp., 129 So. 3d 132 (Miss. 2013), reh'g denied (Jan. 16,2014), recognized that if a statute provides a specific duty without any exceptions, then the duty is ministerial not discretionary. The Court in Little held, The MTCA provides the exclusive remedy for civil claims against governmental entities and employees. Miss.Code Ann. 11-46-7 (Rev.2012). Under the MTCA, a government entity and its employees are immune from liability for claims arising from "the exercise or performance or the failure to exercise or perform a discretionary function or duty [.j" Miss.Code Ann. 11-46-9(l)(d) (Rev.2012). The language of Section 11-46-9(1)(d) requires us to look at the junction performed-not the acts that are committed in furtherance of that function-to determine whether immunity exists. Id. See also Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 798 (~ 32) (Miss.2012); Pratt v. Gulfport-Biloxi Reg'! Airport Auth., 97 So.3d 68, 72 (~ 10) (Miss.2012). If the function is ministerial, rather than discretionary, there is no immunity for the acts performed in furtherauce of the function. A ministerial function is one that is "positively imposed by law." Pratt, 97 So.3d at 72 (~ 9). The function at issue here is right-of-way maintenance, which is a ministerial function required by law. The decision of whether to cut down a tree is not a function, but rather an act performed in furtherance of the ministerial function of maintaining highway rights-of-way.~ 9. In the instant case, the Court of Appeals held that right-of-way maintenance was a discretionary function, thus, the Department was immune from liability. Little, 129 So.3d at 196 (~ 15). The Court of Appeals's holding is in direct conflict with language this Court used recently in Mississippi Transportation Commission v. Montgomery, 80 So.3d 789 (Miss.2012). In that case, the issue was whether the maintenance of traffic control devices was a discretionary function for the Mississippi Transportation Commission (the Commission). Montgomery, 80 So.3d at 798 (~~ 31-33) (discussing Miss.Code Ann. 63-3-305 (Rev.2004». We wrote: Ordinarily, where a statute mandates the government or its employees to act, all acts fulfilling that duty are considered mandated as well, and neither the government nor its employees enjoys immunity. Occasionally, however, the Legislature will mandate that a political subdivision fulfill some particular function, but then specifically set forth that some portion or aspect of that function is discretionary. When that happens, acts fulfilling the discretionary portion of the governmental function enjoy immunity. Here, Section 65-1-65 imposes a statutory duty on the highway department to maintain all state highways. See Miss.Code Ann. 65-1-65 (Rev.2005). Were this the only statutory provision at Page 5 of14

issue, we would find that the Commission is not immune for the acts carrying out that function. The Legislature, however, carved out a portion of the function mandated by that statute, and made it discretionary. Section 63-3-305 gives local authorities discretion in placing and maintaining traffic devices "as they may deem necessary to indicate and [to] carry out the provisions of this chapter... " Miss.Code Ann. 63-3-305 (Rev.2004). Although the Commission's duty to maintain highways is not discretionary, the placing of warning signs is, because the Legislature has provided specific language in the statute extending discretion to those acts. Otherwise, the Commission would not enjoy immunity. Montgomery, 80 So.3d at 798 (~~ 31-32). According to Montgomery, there is no immunity for maintenance of state highways unless a statute carves out a particular exception for a certain activity, such as traffic control devices. Id. Addressing Montgomery in the instant case, the Court of Appeals wrote: Our [S]upreme [C]ourt has long held that road maintenance and repair are discretionary, rather than ministerial functions. See, e.g., Mohundro v. Alcorn Cnty., 675 So.2d 848, 854 (Miss.1996); Coplin v. Francis, 631 So.2d 752, 754-55 (Miss.1994); State ex rel. Brazeale v. Lewis, 498 So.2d 321, 323 (Miss.1986). However, in Montgomery, the [C]ourt... seemed to deviate from its long-standing and bright-line rule that road maintenance and repair implicate a discretionary function... Here, unlike in Montgomery, no additional statute is involved. Nevertheless, we note that the [C]ourt in Montgomery did not expressly overrule its prior decisions holding that road maintenance and repair are discretionary functions. We further note that in Mohundro, Coplin, and Lewis, there is no discussion of any statute carving out a portion of the mandated function and making it discretionary, as is the case in Montgomery. The duty owed to the Appellants was a ministerial duty imposed by Mississippi Code. Ann. 3 7-9-69 which provides; It shall be the duty of each superintendent, principal and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. Such 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. 37-9-69 mandates that each superintendent, principal and teacher hold pupils to strict account for disorderly conduct at school, on the way to and from school, on playgrounds and during recess. This statute requires the school hold the pupils to strict account for disorderly conduct at Page 6 of14

school, on the way to and from school, on playgrounds and during recess. This implicitly includes conduct of which the school district knew or should have reasonably known. The only way to hold the pupil to strict account for disorderly conduct is tluough supervision. The school district argues in its brief [p.5] that the statute does not require a school to predict and prevent disorderly conduct but to hold the students to account for known or identified disorderly conduct. However, school is required to observe and enforce the statutes, rules and regulations prescribed for the operation of schools and it is implicit in 37-9-69 that in order to hold pupils to strict account for disorderly conduct some type of supervision should be in place thereby giving rise to a genuine issue of material fact in that there is not a clear line rule of immunity for the school district. In the recent case of Moss Point Sch. Dist. v. Stennis, 132 So. 3d 1047, 1050-51 (Miss. 2014), the Court stated again, "This Court has recognized that Section 37-9-{j9 creates a ministerial duty wherein public schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment." Henderson v. Simpson County Pub. Sch. Dist., 847 So.2d 856, 857 (Miss.2003) (quoting L. W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1143 (Miss.l999», overruled on other grounds; see also Lang, 764 So.2d 1234 (Miss.l999); Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911,916 (Miss.2001). This Court has explicitly stated that Section 37-9-{j9 "requires that school personnel maintain control and discipline over students while they are at school." Id at 51, citing, Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911,916 (Miss.2001). While waiting on drama practice to being, a class sponsored by South Jones High School, Callie was sitting on the top of the trunk of a moving car. The car traveled around the school and did not leave the South Jones High School campus. Callie fell from the vehicle and Page 7 of14

sustained serious injuries and died as a result thereof. All of this occurred on school grounds during a time of a scheduled school activity. The School District argued to the trial court that Miss. Trans. Comm'n v. Montgomery held that ordinary care no longer applies to discretionary functions. However the duty in this case is the ministerial duty applied to public schools. This argument is also in conflict with this Court's ruling in Henderson at 856-858 wherein this Court stated "[P]ublic schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment. There is no liability predicated on lack or insufficiency of supervision where the event in connection with which the injury occurred is not reasonably foreseeable." The events of this case however were reasonably foreseeable. The students were engaged in a dangerous activity by riding on the outside of moving vehicles in the school parking lot while on campus for a school related activity. The school district argues to this Court that because the South Jones High School Principal stated in discovery that there had been no problems with erratic driving or students riding on vehicle in the parking lots that this event was unforeseeable and therefore the school district is immune. [See page 11 of Appellee's Brief] The fact of the matter is that by the school's own admission, it did not supervise the parking lots during school related activities when students were known to be coming and going from campus. The school district admits that it failed to supervise, in any way, this parking lot where it knew students were "on the way to and from school" as provided in 37-9-69. The school may argue that how it supervises students is a discretionary function however there is a ministerial duty which is implicit in 37-9- 69 for the school district to actually supervise the students which the school failed to do. This ministerial duty removes the immunity for the school district. Page 8 of14

It is foreseeable that students could be injured or be in danger when on the way to and from school because 37-9-69 has imposed a duty on the school districts to hold the pupils to strict account for disorderly conduct. Furthermore, that there are other cases where students have been seriously injured in parking lots of schools some of which are cited by the parties herein at other school districts in this state. When students bring their vehicles onto school parking lots they are "on their way to and from school" and this activity is clearly covered by 37-9-69. As such, to claim that there had never been a problem at South Jones and that somehow alleviates the foreseeability of this tragic event is without merit, and it certain does not negate the ministerial duty which was imposed upon the school district. Again, Callie was at South Jones High School for a school function (drama practice) and was on school property, i.e. the school parking lot. It is reasonably foreseeable that students may be injured by riding on the trunk of a moving vehicle which is going from one school parking lot to another. The school district goes on to argue that 37-9-69 does not require the school to insure no student is ever injured. While this is true, 37-9-69 does require certain conduct on the part of the school district and the school district is not automatically immune from this conduct or failure of conduct. In short, 37-9-69 imposes that the school district act accordingly and therefore there is a genuine issue of material fact as to whether the school took appropriate steps to properly hold the students to strict account for disorderly conduct. The trial court erroneously found the school's action to be a discretionary function and therefore found that the school was immune in granting sununary judgment. The question before the Court is one of discretionary function verses ministerial duty. Because there is a statutorily imposed duty upon the school, the schools actions are ministerial duty and therefore there is no immunity and this case should be remanded to the trial court for further proceedings. Page 9 of14

Again the school district argues that the Plaintiff is interpreting 37-9-69 to impose a duty to prevent unforeseen conduct and injury. This is not the case. The Plaintiff is arguing that 37-9-69 imposes a duty to act in such a fashion as to prevent foreseeable injuries by holding students to strict account for disorderly conduct. The school district has admitted that it did not supervise the students in the parking lot. How supervision is done may be a discretionary function, but supervision by the school must be done as imposed by 37-9-69 in order to hold the students to "strict account for disorderly conduct". Simply sticking one's head in the sand does not afford one the right to claim that the events occurring are unforeseeable. In Lang v. Bay St. LouislWaveland Sch. Dist., 764 So. 2d 1234, 1240-41, ~28-29 (Miss. 1999) the Court held, The District's administrators and teachers in the case sub judice had a statutorily imposed duty to hold students to strict account for disorderly conduct at school. See L. W v. McComb Separate Municipal School Dist., 754 So.2d at 1141, 1142, at ~ 25. If they failed to exercise ordinary care in either performing or failing to perform this duty, then sovereign immunity will not protect the District. See Id., at ~ 26. The question of whether ordinary care was, in fact, exercised is for the trial court, sitting without a jury, to decide. See Miss.Code Ann. 11-46- 13(1) (Supp.l998). The school district argues that with Subsection 11-46-9(1)( d) the Legislature expressly stated that it does not matter "whether or not the discretion be abused" in order for the govermnental entity to be exempt from liability. The school district claims this express language demonstrates the Legislature's intent to eliminate consideration of any additional requirements in determining whether a govermnental action or inaction was discretionary. However, Lang's allegation that the school district failed to provide "necessary supervision" for her son does not fall under this discretionary exception. As previously stated, the administrators and teachers in the case sub judice are required by statute to hold students to strict account for disorderly conduct at school. In other words, the school district's duty to control and discipline students is ministerial not discretionary, and therefore the discretionary exception does not apply. The question for foreseeability and ordinary care are questions for a trial court, sitting without a jury to decide at a trial. The trial court erred in granting surmnary judgment based on an improper application of the law by finding that the school district was immune because its Page 10 of14

actions were perceived to be a discretionary function. The trial court mistakenly applied the discretionary standard to this case. In order to determine whether the conduct at issue is discretionary in nature, this Court has imparted a two-prong test. The two-prong test to determine whether the governmental conduct is discretionary is: (I) does the conduct involve an element of choice or judgment on the part of the entity or employee; and if so, (2) does the choice or judgment involve social, economic, or political policy. Covington Cnty. Sch. Dist. v. Magee, 29 So. 3d 1, 10 (Miss. 2010). 37-9-69 does not allow teachers and school personnel a choice. They are to hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess. There is no statute which counters 37-9-69 or provides immunity to the schools for not meeting the requirements of 37-9-69. Students riding on the trunk of vehicles would be disorderly conduct. Mississippi Code Ann. 63-3-1201 provides, Any person who drives any vehicle in such a manner as to indicate either a willful or a wanton disregard for the safety of persons or property is guilty of reckless driving. Reckless driving shall be considered a greater offense than careless driving. When students are allowed to ride on the outside of moving vehicles on school property this conduct must be construed as disorderly conduct. The operation of a motor vehicle in a manner which is unsafe, or in such a manner which is a willful or wanton disregard for the safety of persons or property is a crime in the State of Mississippi. As such, the school district cannot argue that there was no disorderly conduct and that it did not have a duty to supervise the students. School personnel are required by law to hold the pupils to strict account for disorderly conduct. For the school district to hold students to strict account for disorderly conduct there Page 11 of14

must be supervision by tbe school district while the students are on campus for school related functions. The Court in Henderson ex rei. Henderson v. Simpson Cnty. Pub. Sch. Dist., 847 So. 2d 856,857-58 (Miss. 2003), held, [P]ublic schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment. L. W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1143 (Miss.l999). [T]here is no liability predicated on lack or insufficiency of supervision where the event in connection with which the injury occurred is not reasonably foreseeable. Levandoski v. Jackson County Sch. Dist., 328 So.2d 339,342 (Miss.l976). In Henderson the trial court granted summary judgment finding that there was no issue of material fact regarding foreseeability. However, this Court reversed finding that there were genuine issues of material fact regarding foreseeability. The Henderson Court went on to hold, Id. at ~ 6. The teachers and administrators here are then protected by sovereign immunity if and only if they used ordinary care in controlling and disciplining their students. The issue of ordinary care is a fact question. The trial court, confronted with all relevant facts, should then under our law, decide whether or not those responsible used ordinary care as required by the statute. If the trial judge concludes that they failed, neither they nor the school are immune from liability. In Moss Point Sch. Dist. v. Stennis, 132 So. 3d 1047, 1050-51 (Miss. 2014), the Court distinguished the facts of that case from Henderson stating, This Court has recognized that Section 37-9-{i9 creates a ministerial duty wherein "public schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment." It was this ministerial duty for which the circuit court (citing L. w.) found MPSD had a responsibility of ordinary care and denied summary judgment. However, the circuit court's reliance on this ministerial duty was misplaced. In cases where public schools have been held to have a ministerial duty to provide a safe school environment under Section 37-9-69, the student's (or nonstudents' in some cases) injuries occurred on school property. This Court has explicitly stated that Section 37-9-69 "requires that school personnel Page 12 of14

maintain control and discipline over students while they are at school." The case sub judice is clearly distinguishable, as the incident occurred off school property, after Stennis and Davis had been dismissed from school. (citations omitted) However, like Henderson, Callie was still on school property, and although school had been dismissed for other students, Callie was on campus for drama practice which was a school related function. Therefore, there exist genuine issues of material fact regarding the school district's ordinary care and the foreseeability of a student being injured. The trial court erred in finding immunity in granting the summary judgment. As such, the Appellants request that this Court reverse and remand this matter to the Circuit Court of Jones County for a bench trial on the merits of this case. CONCLUSION There exist genuine issues of material fact regarding the school district's ordinary care and the foreseeability of a student being injured on school property. "The question of whether ordinary care was, in fact, exercised is for the trial court, sitting without a jury, to decide." Lang at 1240. "[T]he school district's duty to control and discipline students is ministerial not discretionary, and therefore the discretionary exception does not apply." Id. The school district was required to take steps to fulfill its ministerial duties and failed to do so. In short, the school district did nothing. Because of the genuine issues of material fact the trial court erred in granting summary judgment and this Court should reverse and remand this case for a trial on the merits. Respectfully submitted, sl Eugene C. Tullos Eugene C. Tullos Attorney for the Appellant Page 13 of14

CERTIFICATE OF SERVICE I, Eugene C. Tullos, attorney of record for the Appellee, do hereby certify that on this date, I electronically filed the foregoing Brief of the Appellee with the Clerk of the Court using the ECF system which sent notification of such filing to the following: John A. Waits, Esq. Peter J. McKelroy, Esq. Daniel Cocker Horton & Bell Post Office Box 1084 Jackson, MS 39215-1084 This the day of, 2015. EUGENE C. TULLOS ATTORNEY AT LAW P.O. BOX 74 RALEIGH, MS 39153 TELEPHONE NO. 601-782-4242 ATTORNEY FOR THE APPELLANTS sf Eugene C. Tullos Eugene C. Tullos S. WAYNE EASTERLING ATTORNEY AT LAW P.O. BOX 1471 HATTIESBURG, MS 39403 ATTORNEY FOR THE APPELLANTS Page 14 of14