County not immune from wrongful death claim

Jessica M. Karmasek Jul. 15, 2011, 11:51am


JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court has dismissed a county's appeal in a wrongful death case involving an escaped prisoner.

In the case, a prisoner escaped from the custody of the Hinds County Sheriff and, while evading capture, the escapee struck a pedestrian with a stolen vehicle.

The pedestrian died, and a wrongful death suit was filed against the county.

The Hinds County Circuit Court denied the county's motion for summary judgment based on its claim of sovereign immunity. The county appealed.

Finding no right to appeal a pretrial denial of sovereign immunity, the state's high court dismissed the appeal because of its interlocutory nature.

Justice James W. Kitchens authored the Court's June 30 opinion.

The county argues that immunity under the Mississippi Tort Claims Act shields the governmental entity from having to defend itself in court proceedings.

However, not every claim to governmental immunity qualifies as immunity from suit, the Court notes.

Kitchens writes that the Court has never recognized that governmental immunity from suit establishes a right directly to appeal a pretrial ruling denying immunity. Instead, denials of immunity at the summary judgment stage are reviewed via the interlocutory appeal process, he said.

The county also argues that the Court should adopt the "collateral order doctrine."

However, the Court said, that doctrine was established in response to the federal statute that limits courts of appeals' jurisdiction to "final decisions" of district courts.

"This Court derives its jurisdiction from the Mississippi Constitution and state statutes," it wrote.

"Moreover, we have recognized that the federal 'collateral order doctrine' exists in the double jeopardy context, but have not interpreted the doctrine to allow a state right to immediate appeal."

In Mississippi, the only time an appeal of right is allowed from an otherwise interlocutory order is in the case of an appeal from an order either denying or granting arbitration, the Court said.

"Hinds County does not tell this Court how a 'collateral order doctrine' would be any more efficient than our present practice under Rule 5 of the Mississippi Rules of Appellate Procedure, which entitles parties to seek permissive appeals to resolve questions of law," the Court wrote.

"Thus, we decline to adopt a rule that would allow direct appeals as of right from pretrial denials of sovereign immunity."

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