author: | .COOKS, Judge.

text:
    J. Quentin SIMON v. Jeffery T. REEL, et al.
    No. 03-932.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Barry L. Domingue Simon, Lafayette, LA, for Appellant, J. Quentin Simon.
    Richard J. Petre, Jr., Lafayette, LA, for Appellee, Allstate Insurance Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   | .COOKS, Judge.

On March 11, 2000, J. Quentin Simon, was a back seat passenger in a Chevy Tahoe driven by Jeffery Reel. Mr. Reel ran into the rear of a vehicle driven by Margie Duplantis. When the collision occurred, Mr. Simon was thrown forward causing his chest and right shoulder to hit the front seat. Mr. Simon sued Jeffery Reel and his liability insurer, State Farm Mutual Automobile Insurance Company, Margie R. Duplantis and her liability insurer, Southern United Fire Insurance Company, and his own uninsured/underin-sured motorist carrier, Allstate Insurance Company (Allstate).

Prior to trial, Jeffery Reel and his liability insurer, State Farm Mutual Automobile Insurance Company settled with Mr. Simon for the policy limits of $100,000.00. Additionally, Margie Duplantis and her insurer, Southern United Fire Insurance Company, settled with Mr. Simon. Liability was stipulated to and the only remaining issue was the amount of damages Mr. Simon was entitled to recover under his uninsured/underinsured motorist policy with Allstate.

The trial court found although Mr. Simon had a “preexisting lumbar defect and possibly preexisting disc bulges that predisposed him to injury, he was asymptomatic prior to the accident and therefore ... [was] entitled to damages for the aggravation of the preexisting conditions as well as for other injuries sustained in the accident.” The trial court awarded past medical expenses of $17,539.86, future medical expenses of $5,000.00 and general damages of $100,000.00. Allstate was entitled to a credit of $5,000.00 for the medical payments it had already made. Mr. Simon was entitled to recover from Allstate the portion of his damages which exceeded $100,000.00. It is from this judgment that Mr. Simon appeals. We find the trial judge’s award of future medical expenses and general damages are not supported |3by the record and, therefore, we amend the decision of the trial court. In all other respects, we affirm.

LAW AND DISCUSSION

It is undisputed Mr. Simon had significant back problems prior to the accident in March 2000. He had a congenital problem in his back known as spondylolisthesis or forward vertebral slippage of L5 on the right side. Dr. Michael Heard, the treating physician, testified this condition may render an individual “more fragile to trauma and more — it takes longer for them to get well and they get — sometimes they just never get completely well because it’s an extra — it’s like a weak link in the spine, and when there’s a trauma, that weak link can be significantly aggravated and they never make a full recovery.”

In addition to the congenital spinal condition, the record indicates Mr. Simon was involved in prior automobile accidents in April 1989 and May 1990. However, the trial court found, based on testimony by Dr. Heard, that Mr. Simon was asymptomatic prior to the March 2000 accident. In August 2000,- after the accident in question, Mr. Simon began seeing Dr. Heard. Dr. Heard testified that he had multiple level cervical disc bulging and a disc protrusion without any nerve impingement C5-6 and at L5-S1; had bilateral slippage of the L5 vertebral body; and had ulnar nerve entrapment on the left side.

Past medical expenses

Mr. Simon contends the trial court erred in refusing to award the expenses associated with a hot tub and medical reports as past medical expenses. In his refusal to award the cost of buying and installing a hot tub, the trial court found “[tjhere was no evidence submitted at trial that any of his doctors had prescribed or recommended that he get a hot tub for his house. The Court finds that Simon has failed to prove that 14the cost of purchasing and installing the hot tub are expenses necessitated by injuries he suffered in the accident.” We find no error in this conclusion and, therefore, affirm the trial court’s decision.

Mr. Simon contends the trial court erred in not awarding as medical expenses Dr. Heard’s narrative reports. In Hunter v. Kroger Co., 600 So.2d 837, 845 (La.App. 3 Cir.1992), this court stated “charges for narrative reports, conferencefs], and other related services apparently incurred for litigation purposes” are not items of damages. We find no error in the trial court’s decision.

Future Medical Expenses-Lumbar Surgery

In order to recover future medical expenses, a “plaintiff must show that the medical expenses will more probably than not be incurred.” Endsley v. Pennington, 31,027 (La.App. 2 Cir. 9/29/98), 718 So.2d 650, 653. The trial court found:

Dr. Heard has not recommended lumbar surgery to date. He said, however, that Simon will probably need surgery sometime in the future. Surgery was suggested as a possible option in 1991. Although it may be more probable than not that Simon will eventually need lumbar surgery, plaintiff has not proved that he will likely need the surgery because of the March 2000 accident.

Despite finding Mr. Simon will need lumbar surgery in the future, the trial court only awarded $5,000.00 for future medical expenses. We find the medical evidence supports a finding that Mr. Simon’s current back problems are the result of the accident of March 2000. Any future back surgery will be a direct result of the accident of March 2000 which aggravated an already fragile back condition. Dr. Heard did not recommend back surgery because he testified the type of back surgery Mr. Simon would require is extensive and dangerous. Dr. Heard testified:

Now, he has a mechanical problem and a disc problem. So he’s going to need the extreme, which will be removal of the disc, instrumentation with screws and plates, and spinal fusion. So, your[you’re] trying — you address both of the problems because he has a mechanical problem in the back and he has that disc problem. So he can’t have the — if he Isgoes to surgery, he can’t have the simple micro-discectomy with a half-inch scar on his back. That’s the — that’s the least of back operations, and the extreme is the decompression — laminecto-my, decompression, discectomy, instrumentation and fusion. And that — that’s why I’ve been telling him — I say you live with this as long as you can, but, you know, — because the surgery that you’re going to need, if you come to surgery, is not the simple micro-discectomy. I hate to say simple because there are no simple back operations — the lesser back operation. What he would need would be the full, blue plate special.

The type and severity of the surgery has thus far caused Mr. Simon to opt for conservative treatment. However, his congenital defect, coupled with the trauma of the March 2000 accident, makes the need for surgery in the future very probable. Dr. Heard further testified:

It’s not recommended right now, but it’s an option for him and it’s more probable that he’s going to have continued, ongoing, permanent problems in his back. He doesn’t just have a back strain; he’s got a — he has a mechanical defect in his back that was pre-existing and asymptomatic that’s been aggravated, and he has a small herniation in his back.

Dr. Heard testified the cost of the back surgery, including hospital, surgeon and implants would be $60,000.00. Based on the testimony of Dr. Heard, we increase the future medical expenses to $65,000.00.

Future Ulnar Nerve Surgery

The trial court found Mr. Simon did not prove he would incur medical expenses for ulnar nerve surgery. We find no error in this finding. Dr. Heard noted Mr. Simon was not experiencing any muscle atrophy or weakness that would have made the procedure necessary. He recommended continued conservative treatment. There was no evidence Mr. Simon’s condition would likely worsen or that the procedure would be necessary in the future as a result of the March 2000 accident.

General Damages

In awarding general damages, the trial court failed to consider the future | filumbar surgery. Louisiana law provides general damages are those which may not be fixed with exactitude. Instead, general damage awards involve mental and physical pain and suffering, inconvenience, loss of intellectual gratification and physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Montgomery v. Opelousas General Hospital, 546 So.2d 621 (La.App. 3 Cir.1989). The factors to be considered in assessing quantum for pain and suffering are severity and duration. Glasper v. Henry, 589 So.2d 1173 (La.App. 4 Cir.1991). A tortfeasor takes his victim as he finds him and the primary objective of general damages is to restore the injured party to the state he was in prior to the accident. Thibodeaux v. USAA Casualty Insurance Company, 647 So.2d 351 (La.App. 1 Cir.1994). The evidence indicates Mr. Simon sustained injury to his back which will require extensive back surgery in the future. He is currently under the care of Dr. Heard and Dr. David Barczyk, a chiropractor. We find the award of $100,000.00 excessively low and increase the award to $140,000.00. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Uninsured/underinsured Coverage

Allstate contends Mr. Simon failed to carry his burden of proving Jeffery Reel was an underinsured motorist under the policy. We disagree. The filing of the Allstate policy together with proof at trial that Mr. Simon’s damages exceeded the policy limits was sufficient to satisfy Mr. Simon’s burden of proof. Once this proof is met, the burden shifts to Allstate to show there were other applicable policies available. Scherer v. Chaisson, 469 So.2d 510 (La.App. 3 Cir.1985).

Subrogation

Allstate contends the trial court erred by allowing Mr. Simon to recover $5,000.00 in medical expenses paid by State Farm. Allstate contends, upon payment |7by State Farm, State Farm became subrogated to plaintiffs rights to the extent of the $5,000.00 and the subrogation language contained in the State Farm policy enures to Allstate’s benefit to prevent Mr. Simon from recovering any additional past medical expenses. We find no merit in this argument. Mr. Simon asserted his own right to recover additional past medical expenses under his own policy with Allstate.

DECREE

Based on the foregoing review of the evidence, we amend to increase, the trial court’s award of future medical expenses to $65,000.00 and the general damage award to $140,000.00. In all other respects, we affirm the decision of the trial court.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: |tAMY, Judge.

license: Public Domain

text:
    Ted NORRIS, et al. v. Stafford P. FONTENOT, et al.
    No. 03-1455.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Angelo J. Piazza, III, Marksville, LA, for Plaintiff/Appellant: Ted Norris.
    M. Terrance Hoychick, Young, Hoyhick & Aguillard (LLP), Eunice, LA, for Defendant/Appellee: Stafford P. Fontenot and Prairie Cajun Seafood Catering of Louisiana;
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   |tAMY, Judge.

The plaintiff filed suit to recover amounts due under two promissory notes executed by the defendant. In his answer, the defendant claimed that when he signed the promissory notes, he was acting as a representative of a partnership to which he belonged, and, as such, he was only liable for his virile share of the debt. The trial judge determined that a partnership existed when the promissory notes were executed and that they were executed on its behalf. Accordingly, judgment was entered against the partnership for the amounts due on the notes. The plaintiff appeals, asserting that the defendant is personally liable for the entire amount due on the promissory notes. For the following reasons, we affirm.

Factual and Procedural Background

Ted Norris, plaintiff herein, designed and built a “mobile kitchen” for use at festivals by installing cooking equipment, such as stoves, burners, and coolers, in an empty eighteen-wheeler trailer. Mr. Norris estimated the value of the completed kitchen to be $50,000.

Stafford Fontenot, defendant herein, testified at trial that, approximately six or seven months before the 1996 Summer Olympics, he and some friends — Steve Turner, Mike Montelaro, Joe Sokol, and Doug Brinsmade — discussed going to Atlanta, Georgia, the site of the Games, to sell seafood and other Cajun dishes. However, they did not have the cooking equipment needed for the endeavor. Mr. Fon-tenot testified that Mr. Turner and Mr. Montelaro learned of Mr. Norris’s “mobile kitchen” and entered into preliminary negotiations with him for its purchase.

The act of sale was executed on June 12, 1996, at the office of William Bennett, Mr. Norris’s attorney. The record reflects that at this time, Mr. Brinsmade gave Mr. Norris a down payment of $8,000, in the form of a check drawn on an ^account titled, “Prairie Cajun Seafood Catering of LA.” Mr. Bennett then presented Mr. Fontenot with two promissory notes representing the balance of. the purchase price of the kitchen: one for $12,000, and the other for $20,000.

Mr. Fontenot testified that upon examining the notes, he noticed that his was the only name listed as maker,, and he informed Mr. Bennett that he would not sign individually. According to his testimony, Mr. Bennett replied that he and Mr. Norris did not intend to list Mr. Fontenot’s associates as co-obligors. At trial, Mr. Fontenot claimed that he made it clear to Mr. Bennett that the group was purchasing the kitchen. He recalled that Mr. Bennett offered to re-write the notes, telling him that the addition of “d/b/a Prairie Cajun Seafood” after his name would “kind of take care of it.” Mr. Fontenot stated that it was his understanding that adding “d/b/a” to the notes would relieve him of personal liability as to the notes and would instead make the obligation one of the partnership. After the promissory notes were rewritten and signed, the group took possession of the kitchen.

Mr. Fontenot testified that the results of the group’s catering endeavor in Atlanta were “disastrous” and that what little money they made “went back through [the group’s] checking account.” He stated that the group has not engaged in business since the Olympics.

Ted Norris also testified at trial as to his understanding of the events surrounding the sale of the “mobile kitchen.” He stated that Mr. Fontenot and a “group of people” came to see the “mobile kitchen,” but he did not. know who the other people were. He likewise recalled that several gentlemen accompanied Mr. Fontenot to Mr. Bennett’s office when the act of sale was passed but that Mr. Fontenot had not explained his relationship to them. Mr. Norris testified that he had 13assumed that the gentlemen were “associated with” Mr. Fontenot and that he “took it for granted that [Mr. Fontenot] owned the company [that was going to use the kitchen].” Mr. Norris recalled that his attorney had advised against selling the kitchen to a corporation or to a “group” and had assured him that the sale was “personally between [him] and Stafford Fontenot.”

On June 9, 1998, Mr. Norris filed suit against Mr. Fontenot, d/b/a Prairie Cajun Seafood Catering of Louisiana, in the district court for Avoyelles Parish, the parish of his — Mr. Norris’s — domicile. In his petition, he asserted that no payments had been made on either of the two promissory notes. Mr. Fontenot, a domiciliary of St. Landry Parish, filed an exception of improper venue, and, pursuant to a joint petition filed by the respective parties’ attorneys, the matter was transferred to St. Landry Parish. On December 10, 1998, Mr. Norris filed a supplemental and amending petition, in which he named as defendants Mr. Brinsmade, Mr. Montelaro, and Mr. Turner, noting that they were “principals in the business Prairie Cajun Seafood Catering of Louisiana.” However, Mr. Norris voluntarily dismissed Messrs. Brinsmade, Montelaro, and Turner in open court on May 7, 2001, and on May 29, 2002, in a second supplemental and amending petition, he requested that references to these gentlemen be “delete[d]” from his petition. On May 24, 2002, Mr. Fontenot filed an exception of failure to join an indispensable party — viz., the partnership, Prairie Cajun Seafood Catering of Louisiana.

The matter proceeded to trial on May 29, 2002. On July 10, 2002, the trial judge issued written reasons for judgment, which stated, in pertinent part, as follows:

Plaintiff, Ted Norris, testified that it was his impression that Stafford Fonte-not was buying the mobile trailer himself. He testified that he didn’t ask Stafford Fontenot about his business partners.
I/The eight thousand dollar ($8000.00) check dated June 11th, 1996 was signed by Doug Brinsmade, from Prairie Cajun Seafood Catering of Louisiana.
Mr. Norris indicated that he did business with Stafford Fontenot.
Della Norris, wife of Plaintiff, testified that they were dealing with Stafford Fontenot and that Mr. Fontenot never indicated to them that he had partners with him in the business.
Defendant, Stafford Fontenot, testified that his business partners, namely; [sic] Steve Turner and Mike Montelaro were introduced to the Plaintiffs as business partners.
Mr. Stafford Fontenot indicated that he had refused to sign the two (2) notes individually, and they subsequently went back to now Judge William Bennett’s office and added d/b/a Prairie Cajun Seafood Catering of Louisiana to the promissary [sic] notes.
Stafford Fontenot testified that Mr. Brinsmade was present at the closing.
Judge William Bennett, in his deposition taken for trial purposes on July 31st, 2001, testified that he “remembers [sic] that there were a group of guys that wanted to buy this machine. And they wanted to form a corporation or a partnership that was not yet formed. The transaction was done and it was my understanding that they were going to form a partnership, and then the partnership was going to take over the debt from Mr. Fontenot or whoever it was that was signing the note at that time”, [sic]
The partnership agreement in this case marked as D-l was signed on July 31st, 1996. The two (2) notes were dated June 12, 1996. The issue here in this case is whether there was a partnership that existed, namely; [sic] Prairie Cajun Seafood Catering of Louisiana.
In this particular case you must look at the intent of the parties.
The Court finds that a partnership existed in this case.
A checking account was established in the name of Prairie Cajun Seafood Catering of Louisiana.
A check in the sum of eight thousand dollars ($8000.00) was written from Prairie Cajun Seafood Catering of Louisiana to Della Norris, signed by Doug Brins-made.
The two <2) notes were signed by Stafford Fontenot, d/b/a Prairie Cajun Seafood Catering of Louisiana.
Mr. Stafford Fontenot had refused to sign the notes individually.
The intent here, even though the partnership agreement was executed some six (6) weeks later, was that the partnership was going to be responsible for the payment of the two (2) notes.
ACCORDINGLY, there shall be judgment in favor of Plaintiffs and against the partnership, Prairie Cajun Seafood Catering of Louisiana in the sum of thirty-two thousand dollars plus interest and 25% attorney fees.

| ¡¡Mr. Norris appeals this judgment, claiming in his sole assignment of error that the trial judge incorrectly determined that Mr. Fontenot was not personally liable on the notes.

Discussion

On appeal, Mr. Norris contests the validity of the trial judge’s conclusion that Mr. Fontenot, Mr. Brinsmade, Mr. Monte-laro, Mr. Turner, and Mr. Sokol were partners in a business enterprise and that this partnership was hable on the promissory notes at issue herein. We now review the evidence presented at trial, in light of the requirements for the formation of a partnership outlined in the Civil Code and in the jurisprudence of this state, in order to determine whether the trial judge was correct in determining that these gentlemen had indeed formed a partnership.

Louisiana Civil Code Article 2801 provides this definition of partnership:

A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.
Trustees and succession representatives, in their capacities as such, and unincorporated associations may be partners.

Louisiana courts have established criteria whereby a business association may be categorized as a partnership. In determining whether a partnership has been established, courts generally employ the following three-part test:

To be considered a partnership, a business relationship must meet the following established criteria: (1) the parties must have mutually consented to form a partnership and to participate in the profits which may accrue from property, skill, or industry, furnished to the business in determined proportions by them; (2) all parties must share in the losses as well as the profits of the venture; and (3) the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest.

Medline Indus., Inc. v. All-Med Supply & Equip:, 94-1504, p. 5 (La.App. 1 Cir. 4/7/95), 653 So.2d 830, 833. Moreover, a partnership may be formed pursuant to an oral agreement if each of the required elements is present. See Tabco Exploration, Inc. v. Tadlock Pipe & Equip., Inc., 617 So.2d 606 (La.App. 3 Cir.), writ denied, 625 So.2d 1057 (La.1993). With respect to a partner’s liability for partnership debts, La.Civ.Code art. 2817 provides, “A partnership as principal obligor is primarily liable for its debts. A partner is bound for his virile share of the debts of the partnership but may plead discussion of the assets of the partnership.”

A trial court’s determination as to whether a partnership exists is a matter of fact and will not be disturbed on appeal absent manifest error. See Tabco Exploration, 617 So.2d 606. Moreover, it is well settled that appellate courts owe great deference to factual determinations that are based upon the trial court’s evaluations as to witnesses’ credibility, and such determinations may not be disturbed unless they are manifestly erroneous. Attain v. Martco Partnership, 01-0614 (La.App. 1 Cir. 4/17/02), 828 So.2d 587, rev’d on other grounds, 02-1796 (La.5/23/03), 851 So.2d 974.

The first identifying characteristic of a partnership, as expressed in Medline Industries, above, is that the parties involved must have consented to the formation of a partnership and must have agreed to participate in the profits derived from the partnership business and to contribute property, skill, or industry, to the partnership in agreed-upon proportions. In the instant matter, Mr. Fontenot testified that six or seven months before the 1996 Summer Olympics, he and his friends had come to an understanding that they would sell Cajun food in Atlanta together, and they had begun making preparations to this effect. The record reflects that these preparations |7did not contemplate that Mr. Fontenot would be the sole proprietor of the business, with the other gentlemen as his employees. In addition, the record indicates that the first instance of the group calling themselves by the name “Prairie Cajun Seafood Catering of Louisiana” was on a Special Food Services application dated May 19, 1996, that was submitted to the Fulton County Department of Public Health-Environmental Health Services. This application stated that all five gentlemen named above were partners.

Our review of the law of partnership does not indicate that members of an alleged partnership must be able to point to a specific date upon which the partnership began. Although the record reflects that the partnership agreement was not signed until July 31, 1996, it is apparent from the evidence that Mr. Fontenot and his friends had an oral agreement to form an association and to work together toward a common goal before they purchased the mobile kitchen on June 12,1996.

The second feature of a partnership, as stated in Medline Industries, is that all parties involved must share in the business’s profits as well as losses. In the partnership agreement dated July 31, 1996, the parties indicated that profits and losses would be allocated according to the following percentages: Stafford Fontenot, 24%; Doug Brinsmade, 19%; Joe Sokol, 19%; Mike Montelaro, 19%; and Steve Turner, 19%. Moreover, the intent of the parties to share in the profits and losses of the enterprise is demonstrated by the following exchange at trial:

Q [by Mr. Hoychick, attorney for the defendant]. The uh, the business that y’all had put together to sell seafood and crawfish in Atlanta, how were you going’ to operate that as far as financing the business and then how were you going to divide profits?
A [by Mr. Fontenot]. We had a share and then was each going to pay our share of monies as we needed it, which we did put up as we needed em. Like for the trailer and deposits and all that stuff was jsput up by all of us and deposited and you know kind of flowed through there.

The record reflects that the above-named gentlemen intended to share in the profits and losses of the partnership and also intended to contribute personal resources toward the accomplishment of the group’s objectives.

The third characteristic of a partnership, according to Medline Industries, 653 So.2d at 833, is that “the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest.” The record indicates that Mr. Fontenot did not consider the “mobile kitchen” to be his personal property; instead, he thought that it belonged to the partnership. He testified at trial that its title was still in the name of Stafford Fon-tenot, d/b/a Prairie Cajun Seafood Catering of Louisiana. Furthermore, the various receipts for services that were among the business records introduced into evidence at trial are all in the name of Prairie Cajun Seafood Catering. The bank account at NationsBank of Atlanta was established on May 31, 1996, in the name of “Prairie Cajun Seafood Catering of LA and Associates.” None of these receipts or documents were in any one party’s name. This indicates that the parties intended to do business through Prairie Cajun Seafood Catering as a separate entity, with the result that any property acquired for the business was the property of the partnership, not of any one particular party.

In support of his argument that Mr. Fontenot, et al, had not formed a partnership, Mr. Norris claims that “none of the alleged partners appeared during the dealing or even at trial, nor was the partnership ever made any [sic] party to the sale or notes. None of the alleged partners appeared at trial.” The record reflects that Mr. Norris was aware of Mr. Fonte-not’s partners because they were named defendants in the present cause of action, owing to their status as “principals” in Prairie Cajun 19Seafood Catering, until Mr. Norris voluntarily dismissed them from the suit. Furthermore, Mr. Fontenot testified that he and Mr. Montelaro, Mr. Brinsmade, and Mr. Turner were present when the act of sale was passed, and he introduced these gentlemen as his partners. The trial judge determined that Mr. Fontenot’s testimony in this respect was credible, as it was cited in his written reasons for judgment in support of his determination that a partnership existed.

Our review of the record does not indicate that the trial judge was manifestly erroneous or clearly wrong in determining that the elements necessary for formation of a partnership were present and that the partnership, as an entity, coalesced before the sale of the “mobile kitchen.” The trial judge’s determination to this effect, as set forth in the written reasons for judgment, was premised upon the evidence offered at trial as well as upon the testimony of witnesses. The trial judge apparently determined that Mr. Fontenot was a more credible witness than Mr. Norris; based upon our examination of the record, we do not find this determination to be manifestly erroneous.

We now address Mr. Norris’s argument regarding mandate. Mr. Norris claims that the judgment of the trial court in this matter announces a “dangerous ... precedent” with respect to the law of negotiable instruments. In his brief on appeal, he complains that:

It is absolutely unconscionable and totally repugnant to our negotiable instrument laws to allow a maker to allege ‘partnership or division’ or ‘partial payment’ on a note where the maker is personally liable. This would allow a maker to urge defenses that could conceivably destroy the whole integrity of the ‘holder in due course’ statutes in our law.

| lnIn support of this assertion, Mr. Norris observes that, pursuant to La.R.S. 10:3-402 , if a “maker” of a note signs in a representative capacity, he must so indicate on the note. If he does not, the holder may recover against him personally. Mr. Norris claims that the notation “d/b/a Prairie Cajun Seafood” indicates only that Mr. Fontenot was the business’s sole proprietor; as such, he is liable for the entire amounts due on the notes.

Louisiana Civil Code Article 2814 provides, in pertinent part, that “[a] partner is a mandatary of the partnership for all matters in the ordinary course of its business other than the alienation, lease, or encumbrance of its immovables.” Furthermore, the relevant portion of La.Civ. Code art. 2816 states that “[a]n obligation contracted for the partnership by a partner in his own name binds the partnership if the partnership Inbenefits by the transaction or the transaction involves matters in the ordinary course of its business.”

The premise of Mr. Norris’s argument on appeal is that he is a holder in due course of a negotiable instrument, as defined in La.R.S. 10:3-302. He points out that Mr. Fontenot does not contest the signature on the notes as his; moreover, he does not |12dispute the obligation and the terms that appear on the notes. Mr. Norris claims that the notes do not contain any reference to a partnership.

In the case sub judice, we find no merit in Mr. Norris’s claim that the trial court’s judgment poses a threat to the enforcement of negotiable instrument law. Mr. Fontenot testified that he entered into the act of sale on behalf of a partnership, and the evidence supports this assertion. Furthermore, as noted above, the Civil Code provides that partners are mandataries of the partnership in matters pertaining to its business. In the instant appeal, the trailer was essential to the group’s cooking enterprise, and its purchase was within the scope of partnership business. Mr. Fonte-not was acting on behalf of his partners when he signed the contract as “Stafford Fontenot, d/b/a Prairie Cajun Seafood Catering of Louisiana.” No evidence was presented at trial that indicated that he operated the catering business solely in his own name; in fact, references to Prairie Cajun Seafood Catering in the record reflect its character as a partnership. This assignment is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the plaintiff-appellant, Ted Norris.

AFFIRMED.

      . Louisiana Revised Statutes 10:3-402 provides as follows:
      (a) If a person acting, or purporting to act, as a representative signs an instrument by signing either the name of the represented person or the name of the signer, the represented person is bound by the signature to the same extent the represented person would be bound if the signature were on a simple contract. If the represented person is bound, the signature of the representative is the "authorized signature of the represented person" and the represented person is liable on the instrument, whether or not identified in the instrument.
      (b) If a representative signs the name of the representative to an instrument and the signature is an authorized signature of the represented person, the following rules apply:
      (1) If the form of the signature shows unambiguously that the signature is made on behalf of the represented person who is identified in the instrument, the representative is not liable on the instrument.

        (2) Subject to Subsection (c), if (i) the form of the signature does not show unambiguously that the signature is made in a representative capacity or (ii) the represented person is not identified in the instrument, the representative is liable on the instrument to a holder in due course that took the instrument without notice that the representative was not intended to be liable on the instrument. With respect to any other person, the representative is liable on the instrument unless the representative proves that the original parties did not intend the representative to be liable on the instrument.
      (c)If a representative signs the name of the representative as drawer of a check without indication of the representative status and the check is payable from an account of the represented person who is identified on the check, the signer is not liable on the check if the signature is an authorized signature of the represented person.

      . Louisiana Revised Statutes 10:3-302 provides as follows:
      (a)Subject to Subsection (c) and R.S. 10:3— 106(d), "holder in due course” means the holder of an instrument if:
      (1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
      (2) the holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in R.S. 10:3-306, and (vi) without notice that any party has a defense or claim in recoupment described in R.S. 10:3-305(a).
      (b) Notice of discharge of a party, other than discharge in an insolvency proceeding, is not notice of a defense under Subsection (a), but discharge is effective against a person who became a holder in due course with notice of the discharge. Public filing or recording of a document does not of itself constitute notice of a defense, claim in recoupment, or claim to the instrument.
      (c) Except to the extent a transferor or predecessor in interest has rights as a holder in due course, a person does not acquire rights of a holder in due course of an instrument taken (i) by legal process or by purchase in an execution, bankruptcy, or creditor’s sale or similar proceeding, (ii) by purchase as part of a bulk transaction not in ordinary course of business of the transferor, or (iii) as the successor in interest to an estate or other organization.
      (d) If, under R.S. 10:3-303(a)(l), the promise of performance that is the consideration for an instrument has been partially performed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance.
      (e) If (i) the person entitled to enforce an instrument has only a security interest in the instrument and (ii) the person obliged to pay the instrument has a defense, claim in re-coupment, or claim to the instrument that may be asserted against the person who granted the security interest, the person entitled to enforce the instrument may assert rights as a holder in due course only to an amount payable under the instrument which, at the time of enforcement of the instrument, does not exceed the amount of the unpaid obligation secured.
      (f) To be effective, notice must be received at a time and in a manner that gives a reasonable opportunity to act on it.
      (g) This Section is subject to any law limiting status as a holder in due course in particular classes of transactions.

      . In particular, Mr. Norris posits that "d/b/a Prairie Cajun Seafood” refers to a "longstanding personal business that Mr. Fontenot owned as sole proprietor.” In support of this contention, Mr. Norris points to the cover sheet of a fax that was sent to Doug Brinsmade, preceding the transmission of the proposed menu for Prairie Cajun Seafood Catering, details as to the set-up and food preparation, etc. The heading of the fax reads, "Prairie Cajun Catering, Inc.” At trial, Mr. Fontenot testified that Prairie Cajun Catering belonged to his friend, Jeffrey DeR-ouen, and that Mr. DeRouen was not a partner in Mr. Fontenot’s business.


author: EASLEY, Justice, for the Court. McRAE, Presiding Justice,

text:
    Victor Lorell HARRIS, a Minor by and through his Mother and Next Friend, Betty Jean HARRIS, and Acting Individually v. Willie McCRAY and the Jefferson County School District.
    No. 2001-CA-01627-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2003.
    Rehearing Denied March 25, 2004.
    Anita M. Stamps, Jackson, attorney for appellant.
    John Simeon Hooks, Jackson, James A. Keith, Long Beach, attorneys for appel-lees.
   EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. On April 26, 1996, Victor Lorell Harris (Harris), by and through his mother and next friend, Betty Jean Harris, filed suit in the Circuit Court of Jefferson County against Willie McCray (Coach McCray) and the Jefferson County School District (the School District) for damages resulting from a heatstroke Harris suffered while at football practice on August 21, 1995. The trial court conducted a bench trial. After a full hearing on the merits, the trial court issued its opinion and subsequently its final judgment. The trial court determined that Harris had suffered damages in the amount of $350,000, as a result of the School District’s negligence. However, the trial court concluded that the School District was immune from liability under the Mississippi Torts Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2003). The trial court entered judgment for the School District and McCray and denied Harris’s motion for reconsideration, new trial and other relief. Harris perfected his notice of appeal to this Court.

FACTS

¶ 2. On August 21, 1995, Harris, then a fifteen-year-old student enrolled at Jefferson County High School, alleged he suffered a heatstroke while participating in scheduled football practice. The football practice was scheduled and conducted by Coach McCray in his capacity as 'head football coach. As head football coach, Coach McCray had the discretion to determine the time that practice would be conducted and the nature of the practice, including the timing of breaks and cancellation of practice. At all times, Coach McCray was acting, within the course and scope of his employment as an employee of the School District.

LEGAL ANALYSIS

¶ 3. While raising various issues on appeal, the dispositive issue raised by the parties necessary for this Court to address is whether the trial court erred in determining that the School. District, as a political district and a governmental entity, had immunity from liability under the MTCA for the discretionary acts of an employee acting within the course and scope of his employment pursuant to Miss.Code Ann. § 11 — 46—9 (1) (d).

¶ 4. A governmental entity and its employee enjoy immunity if there is exercise of ordinary care in the performance of a duty under a statute, ordinance or regulation. Miss.Code Ann. § 11 — 46—9(l)(bj (Rev.2002). On the other hand, a governmental entity and its employee enjoy immunity under Miss.Code Ann. § 11-46-9(l)(d) “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty ... whether or not the discretion be abused.”

¶ 5. After the bench trial, the trial court determined that, “[biased on the evidence adduced in this cause ... the damages incurred by the plaintiff were a direct and proximate result of the negligent acts and omissions of Coach McCray.” The trial court found that Harris suffered damages in the amount of $350,000, including the $68,000, in medical bills. However, the trial court further determined that pursuant to the MTCA, where the governmental conduct is a discretionary act, governmental entities and their employees are entitled to immunity pursuant to Miss.Code Ann. § 11 — 46—9(1)(d). The trial,court referenced Prince v. Louisville Mun. Sch. Dist., 741 So.2d 207, 211-12 (Miss.1999), where this Court held that the decisions and acts of high school coaches are considered discretionary. Accordingly, the trial court entered a judgment in favor of the School District and Coach McCray.

¶ 6. We find that the trial court correctly determined that Harris’s reliance on L.W. v. McComb Separate Municipal School District, 754 So.2d 1136, 1141 (Miss.1999), was misplaced. The trial court herein further stated that, “plaintiff [Harris] has made no showing of any failure on the part of defendants herein to exercise reasonable care in the performance of or in the failure to execute or perform a statute, ordinance or regulation.” L.W. involved the issue of whether the school district and its employees had violated its statutory duty to provide a safe environment for its students. Clearly, this case was decided based on the application of Miss.Code Ann. § 11 — 46—9(l)(b); therefore, the discussion on ordinary care was quite appropriate. IcL at 1140-43. In short, a governmental entity and its employee enjoy-immunity if ordinary care is exercised in the performance of a duty under a statute, ordinance or regulation. Miss.Code Ann. § 11 — 46—9(l)(b). On the other hand, a governmental entity and its employee have immunity under Miss.Code Ann. § 11^16-9(l)(d) “[b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty ... whether or not the discretion be abused.”

¶ 7. The facts of L.W. are obviously distinguishable from the case sub judice. In L.W., the complaint alleged:

On October 9, 1995, the minor plain-tif&'appellant J.A. turned fourteen years old. J.A. is a student at Denman Middle School in McComb School District. On that morning, J.A. was threatened by a fellow student, Matthew Garner, while in music class. J.A. told Mr. Dykes, a nearby teacher, of the threats. The teacher did nothing in response.
That afternoon, both J.A. and Matthew were in after-school detention. During this time, Matthew again threatened J.A. in front of the detention teacher, Mrs. Paul. As they left detention, Matthew followed J.A. across the school’s baseball field. At this point, words were exchanged, and Matthew attacked J.A. Matthew struck him in the face and ordered him to perform oral sex. When J.A. resisted, Matthew continued to beat him and forced him to perform the act. The incident was witnessed by one student and later reported to a coach. Upon knowledge of the incident, J.A. was taken by his mother, L.W., to the hospital.

754 So.2d at 1137.

¶ 8. This Court in L.W. further held that Miss.Code Ann. § 37-9-69 “mandates that school personnel maintain appropriate control and discipline of students while the children are in their care.” Id. at 1142. Miss.Code Ann. § 37-9-69 (Rev.2001) 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.

Again, this is not the factual situation at bar.

¶ 9. The MTCA operates as the exclusive civil remedy over any other civil action or civil proceeding by reason of the same subject matter for damages against a governmental entity or against its employee for the acts or omissions that gave rise to the claim or suit. See Miss.Code Ann. § 11-46-7(1). See also L.W., 754 So.2d at 1145 (MTCA provides the exclusive civil remedy for claims of negligence against a school district). Miss.Code Ann. § 11-46-3(1) provides in pertinent part:

[T]he “state” and its “political subdivisions,” as such terms are defined in Section 11-46-1, are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract ... by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act, omission or breach may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefor.

(emphasis added).

¶ 10. Working in conjunction with Miss. Code Ann. § 11-46-3(1), Miss.Code Ann. § 11-46-1 (i) defines “political subdivisions” to specifically include school districts. Miss.Code Ann. § ll-46-l(g) provides that “ ‘governmental entity’ means and includes the state and its political subdivisions.” Miss.Code Ann. § ll-46-9(l)(d) provides:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the of a governmental entity or employee thereof, whether or not the discretion be abused.

(emphasis added).

¶ 11. This Court finds that the trial court properly analyzed the statutes addressed above concluding that the School District was a governmental entity which fell within the statutory provisions providing immunity from liability.

¶ 12. When an official is required to use his own judgment or discretion in performing a duty, that duty is discretionary. See T.M. v. Noblitt, 650 So.2d 1340, 1343 (Miss.1995). See also Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (1935). In Prince, this Court held that the actions of the high school coaches were discretionary in nature. Prince, 741 So.2d at 211-12. The Court in Prince dealt with facts virtually identical to the case sub judice.

¶ 13. While admittedly involving application of “pre-Pruett common law concerning whether the act involved was a discretionary or ministerial function, our decision in Prince, is enlightening. Prince was a member of the Nanih Waiya High School football team in the Louisville Municipal School District. Id. at 208. Prince alleged that while practicing football, he suffered a heatstroke due to the negligence of the football coaches in charge of the practice. Prince incurred medical expenses as a result of the heat related injuries. Id. at 208-09. Prince filed suit against the school district and two of the high school football coaches for their alleged negligent actions during an August, 1991, football practice. In Prince, we stated:

high school football coaches Bowman and Chambliss were responsible for coordinating and supervising the football program at Nanih Waiya High School ... In a typical practice there are strains, sprains and complaints from a coach’s players. A coach must consider the good order and discipline of the team when confronted with situational complaints by the players. A coach must use his discretion in judging whether or not an individual player is injured and then, whether the player should report to a trainer or seek other medical aid. There was no evidence presented in the lower court to show that either Bowman or Chambliss did anything beyond exercising ordinary discretion in supervising the Nanih Waiya football practice on August 29,1991. Prince produced no facts that evidenced any disregard for his health or any other outrageous action on the part of Bowman or Chambliss that might have warranted a departure from our previous holdings. The trial court correctly found the coaches were protected by-qualified immunity.

Id. at 212. We affirmed the trial court’s granting summary judgment in favor of the school district reasoning that the school district was protected by sovereign immunity and the trial court’s granting summary judgment as to the coaches based on qualified immunity. Id. at 211-12.

¶ 14. Both Prince, and the Alabama Supreme Court case cited in Prince, offer insight into the arduous duties and responsibilities of a high school football coach. Id. at 211-12. In Lennon v. Petersen, 624 So.2d 171 (Ala.1993), an injured soccer player (Lennon) sued his coach (Petersen) and a school trainer claiming negligence in not recognizing his injuries and providing proper treatment. The Alabama Supreme Court had this to say:

Petersen’s actions clearly fall into the category of discretionary acts. Petersen had to rely on his own judgment and discretion in making difficult decisions while performing his job. He had to determine what drills his players needed and how long the drills should last. He also had to evaluate his players to determine if they were playing to the best of their ability. He had to make difficult decisions in determining whether a player was injured and should report to the trainer or whether the player was merely faking an injury to avoid practice. He also had to be aware that some players would hide their injuries so that they would be allowed to practice or to play in a game. He was responsible for motivating the players and evaluating their performance. Petersen was acting within his authority in using his discretion in such matters, and he is entitled to discretionary function immunity.

Lennon, 624 So.2d at 174 (quoted in Prince, 741 So.2d at 211-12).

¶ 15. We find that the trial court properly determined that the acts or omissions of Coach McCray, performed in his capacity as head coach within the course and scope of his employment, were discretionary in nature. We affirm the trial court’s ruling that the School District and Coach McCray were immune from liability. Miss.Code Ann. § 11 — 46—9(l)(d) specifically provides that there is no liability whether or not there is there has been an abuse of discretion in performing the duty. We must balance the serious negative repercussions which could result for all extracurricular school activities if the discretionary decisions of coaches are not exempt from liability pursuant to Miss.Code Ann. § 11 — 46—9(1)(d) with the need for providing a well-rounded education. There is nothing in the record to imply that Coach McCray’s actions as a football coach on August 21, 1995, violated any statute, ordinance, or regulation.

¶ 16. Who knew the football players of the 1995 Jefferson County High School football team better than Coach McCray? He knew what players would complain only when hurt and what players would complain at a drop of a hat simply to be able to take a break from football practice on a hot August day. Coaches have to know what motivates their players and what does not. Coaches know that in order to discipline football players, each one is a different human being — one player may be disciplined by a mere stern look from the coach, while a military-style drill sergeant chewing out will not faze another player. Coaches will know their players well enough to know who may holler “wolf’ and who' will not. When Victor Harris complained of feeling weak and needing a water break, Coach McCray told Harris he was “faking it.” Unfortunately, he was not. Harris’s injuries and resulting damages are not to be treated flippantly. However, we cannot fast-forward past the facts of this case and the applicable law just to arbitrarily impose liability in an attempt to right a perceived wrong.

¶ 17. While the facts of Victor Harris’s case are no doubt tragic, we must realize the consequences of our decision today were we to find Coach McCray and the school district liable on the facts of this case. High school football coaches around the state would lose their ability to control their football teams. Discipline of a football team would become non-existent. If a coach refused a player’s request to have a water break — to see a trainer — to not have to run any more wind-sprints — to not have to do any more one-on-one blocking/tackling drills, because of that player’s complaint of “feeling weak” or “not feeling good” or simply “not feeling like it,” that coach would be very much aware of the fact that he/she would be running the risk of being successfully sued along with other school officials and the school district, should that player later suffer physical/medical problems related to the coach’s failure to cow to the player’s every whim and wish. On the other hand, if the coach, in fear of a successful lawsuit, should cow to the player’s every whim, wish and demand, then the coach would lose the respect of the players, and discipline and morale would be lost.

¶ 18. Since Coach McCray’s actions and duties in coaching his football team were clearly discretionary, then, under Miss. Code Ann. § 11 — 46—9(l)(d), our inquiry ends without any discussion about whether Coach McCray exercised ordinary care and without any imposition of potential liability upon Coach McCray or the Jefferson County School District. Harris’s assignment of error is without merit. Therefore, we affirm the judgement of the trial court.

CONCLUSION

¶ 19. While this was unquestionably a tragic situation, this Court finds that Miss. Code Ann. § 11 — 46—9(l)(d) operated to shield the School District and Coach McCray from any liability. Therefore, we find that the trial court did not err in its determination that the School District and Coach McCray were exempted from liability. For the foregoing reasons, the final judgment of the trial court in favor of the School District and Coach McCray is affirmed.

¶ 20. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting:

¶ 21. The majority erroneously finds that the acts and/or omissions which resulted in the serious injury of a fifteen-year-old football player are entitled to absolute immunity under the Mississippi Tort Claims Act (“MTCA”). Having reviewed the facts and finding the acts and/or omissions of Coach Willie McCray (“McCray”) to be below the applicable standard of care, I dissent and assert that even under the MTCA both the Jefferson County School District and McCray may be held liable for Victor Harris’s injuries.

¶ 22. There are two alternative reasons which support the reversal of the trial court’s dismissal of this action. First, under L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136 (Miss.1999), and Henderson v. Simpson County Public Sch. Dist., 847 So.2d 856 (Miss.2003), the coach failed to use ordinary care in the supervision of his players’ well-being and health. Second, even if this Court were to view the acts of the coach as “discretionary,” the acts were still not “discretionary” within the meaning of the MTCA since they did not involve social, economic, or political policy under Jones v. Miss. Dep’t of Transp., 744 So.2d 256 (Miss.1999), and Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041 (Miss.2002) (Stewart), and since the acts were not performed with “ordinary care,” the immunity shield provided for by the MTCA does not apply.

¶ 23. The acts performed by the coach were that of a “teacher” or “educator,” since his function was to teach and guide his players not only in the performance of sports, but also in the area of discipline and motivation. As a teacher, the coach must perform his duties using ordinary care. The circumstances presented in this case are factually and substantively similar to those presented in Henderson, 847 So.2d 856. Henderson, an eleven-year-old student, was assaulted by Price, a fellow student, during class. Id. at 857. Testimony indicated that before the incident, Price had been loudly taunting and threatening Henderson in full view of the teacher. Id. The teacher failed to discipline or stop Price from threatening Henderson. Id. Price struck Henderson resulting in a fractured tooth, a concussion, and a fracture in the inferior orbit of his right eye. Id. Henderson filed suit against the school district. Id. at 856. The trial court granted summary judgment in favor of the school district finding immunity applicable under the MTCA Id. On appeal, we held that summary judgment was not appropriate as material issues of fact existed with regard to whether the teacher exercised “ordinary care.” Id. at 857-58.

¶ 24. Under the present circumstances, the record contains ample evidence showing that the coach failed to use ordinary care in his responsibility and implementation of authority over Harris and the other players. As a teacher and mentor, the coach was required to use ordinary care in his guidance and direction and place appropriate emphasis on the physical as well as mental well-being of his players. Having failed to exercise ordinary care, the school is not entitled to the immunity protections of the MTCA as we have found in L.W., 754 So.2d 1136, and Henderson, 847 So.2d 856.

¶ 25. Alternatively, in order to be granted immunity protection under Miss. Code Ann. § 11-46-9, the state or political subdivision must pass a three-part test. The first step involves a factual determination of whether the act and/or omission which caused injury is a discretionary or ministerial duty. Stewart, 804 So.2d at 1047 (citing Jones, 744 So.2d at 260). A discretionary act involves an element of judgment or choice. Id. “A duty is discretionary if it requires the official to use her own judgment and discretion in the performance thereof.” Id. at 1048 (citing T.M. v. Noblitt, 650 So.2d 1340, 1343 (Miss.1995)). “[A]n act is ministerial ‘(if) the duty is one which has been positively imposed by law and its performance required at the time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.’ ” Id. (quoting L.W., 754 So.2d at 1141). Clearly, McCray’s acts were discretionary, but that does not end our inquiry.

¶ 26. If the act is deemed to be a discretionary duty, the second step calls for a factual determination of whether the choice involves social, economic, or political policy. Jones, 744 So.2d at 260. “[Ojnly those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” Stewart, 804 So.2d at 1048.

¶ 27. In Stewart, we examined whether the City of Jackson and its employee were immune from liability under § 11-46-9 for damages sustained by Stewart. Id. at 1045-46. The City of Jackson provided a shuttle van service for elderly citizens to an adult day care center operating at the University of Mississippi Medical Center (UMMC). Id. at 1045. While exiting the van and crossing the street into UMMC, Stewart fell and eventually suffered a stroke. Id. at 1045-46. Stewart claimed that her injuries were due to the City employees’ failure to assist her across the street. Id. In determining whether these acts and/or omissions were immune from liability, we held that the acts and/or omissions involved were not “real policy decisions implicating governmental functions.” Id. at 1048. We went on to state that “[e]ven though the acts or omissions of the City of Jackson and Spiller, the City employee, were indeed discretionary, they are not the type of discretionary acts or omissions contemplated as granting immunity by the MTCA.” Id.

¶28. This same reasoning applied to the present facts leads to the same conclusion. McCray’s acts and/or omissions may have been discretionary, but they did not involve social, economic, or political policy. Furthermore, they are not the type of acts which the MTCA contemplated would receive immunity. With this finding, the analysis could stop at step two since the acts and/or omissions fail to meet the criteria for immunity. However, it is worth the time and effort to explore step three.

¶ 29. The third step involves a factual determination of whether the discretionary act in question was conducted using ordinary care. “Miss.Code Ann. § 11-46-9 requires a minimum standard of ordinary care.” Jones, 744 So.2d at 268 (quoting L.W., 754 So.2d at 1141). “[Pjublic schools have a responsibility to provide a safe environment for students; therefore ordinary care and reasonable steps must be taken to minimize risk to students.... In other words, ordinary care must have been used before a school can use the statutory shield of immunity.” Stewart, 804 So.2d at 1049 (quoting Pearl Pub. School Dist. v. Groner, 784 So.2d 911, 915 (Miss.2001)). There can be no doubt that McCray failed to use ordinary care. Testimony indicated that it was unreasonable, improper, and contrary to ordinary care to only allow one water break during a two-hour practice in the hot August sun. McCray’s failure to exercise ordinary care also forecloses the School’s protections under § 11-46-9.

¶ 30. Under either theory, since the acts and/or omissions which caused Harris’s injuries were not that of ordinary care, the School is not entitled to immunity. For these reasons, I would reverse the order of the trial court as to the issue of immunity and remand the case for further proceedings.

¶ 31. For the above-stated reasons, I dissent.

      . Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982).

      . As a side note, a Friday, August 8, 2003, Editorial in the USA Today titled Football Players Feel the Heat as Leagues Ignore Safeguards, addressed this very issue:
      In the past eight years, 21 players have died from heatstroke — 16 of them high schoolers, according to the National Center for Catastrophic Sport Injury Research. Prodded by three college deaths since 2000, the NCAA is tackling the deadly heat this year with new rules that ban the most grueling practice regimen — twice daily drills — on consecutive days. But in spite of the warning of [Korey] Stringer's death and a lawsuit against the National Football League filed last week by his widow, the NFL still hasn’t gotten the message. Nor has state high school associations that oversee the youngest, and most vulnerable, players ....
      The danger is most acute in high schools, where 1 million payers are heading onto practice fields this month. Yet a national high school sports federal collects statistics that only on heatstroke deaths, not serious illness. And other evidence shows school officials are not confronting the problem:
      -Grueling drills. Many high schools still engage in the very regimen that the NCAA just banned, continual two-a-day practices. Nor are high schools required to follow another new NCAA rule: a three-hour break between two practices on the same day.
      -Patchwork rules. While the national federation sets rules on everything from blocking to safety gear, it leaves states on their own to deal with heatstroke, creating a jumble of protections — if any.
      -Simplistic approaches. While most high schools take some precautions, such as providing breaks and ample water, preventing heatstroke also requires special training. The subtle symptoms of heatstroke easily can be overlooked or mistreated. Medical experts say seconds can make the difference between life and death or full recovery and brain damage....
      Not enough common sense was exercised, however, to prevent the critical illness of an Altoona, Pa., senior who lay unconscious for 20 hours last August. Or the seven-week hospitalization last summer of a Winfield, Ala., player who collapsed while battling to make the varsity team.
      A report by the sport injury research center says, “There is no excuse for any number of heatstroke deaths since they are all preventable with the proper precautions.” Even the U.S. military recognizes that: It bans fitness and sports activities on days when heat and humidity reach dangerous levels.

      . See also United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).

      . See also Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (1935).

      . See also Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1048 (Miss.2002).

      . The majority fails to realize that not all discretionary acts are protected under the MTCA. Only those discretionary acts which are directed at social, economic, or political policy are protected. That has been the standard adopted by this Court. Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999). Furthermore, the acts and omissions of a high school football coach were not contemplated for immunity under the MTCA.

      . See also Wright v. United States, 866 F.Supp. 804, 806 (S.D.N.Y.1994); Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911, 915 (Miss.2001); Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1049 (Miss.2002); Leflore County v. Givens, 754 So.2d 1223, 1227 (Miss.2000).