author: SAUNDERS, Judge. GREMILLION, Judge,

text:
    Claudine LABARRERA, et ux. v. BOYD GAMING CORPORATION, et al.
    No. 13-629.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2014.
    Rehearing Denied March 26, 2014.

      David F. Bienvenu, Simon, Peragine, New Orleans, LA, for Third Party Appel-lee, Lagasse, Inc., AmRep, Inc.
    Steven Broussard, Attorney at Law, Sul-phur, LA, for Plaintiffs/Appellants, Claudine Labarrera, Alberto Labarrera.
    Robert Hugh Murphy, John Herr Mus-ser, V, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, for Defendants/Appel-lees, Boyd Gaming Corp. d/b/a Delta Downs Willie Patín.
    Aaron Broussard, Broussard & Hart, Lake Charles, LA, for Plaintiffs/Appellant, Claudine Labarrera, Alberto Labarrera, Delta Downs Racetrack & Casino Boyd Gaming Corp.
    Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

11 This case involves a patron who slipped and fell in the lobby of a racetrack, casino, and hotel. Video evidence shows a custodial employee spraying a cleaning substance on a dust mop prior to dust mopping the racetrack casino & hotel lobby. Thereafter, the patron is seen walking in the area where the spray was administered, slipping, and falling.

The patron’s counsel discovered ex parte communication between the racetrack, casino, and hotel’s counsel and a treating physician while that treating physician was being deposed. Thereafter, the trial court ordered that the physician’s deposition could not be used at trial, that the physician’s deposition be retaken, and that no mention of the first deposition be made at trial. Thereafter, the physician’s second deposition is admitted into evidence at trial.

Following the trial on the merits, the jury found that the patron was 42% at fault for the accident and awarded her past medical expenses and general damages. The patron and her husband have appealed.

FACTS AND PROCEDURAL HISTORY:

On April 26, 2009, Claudine Labarrera and her husband, Alberto Labarrera, (Plaintiffs) were guests at Delta Downs Racetrack, Casino, and Hotel (Delta). Early that morning, video surveillance depicts Willie Patín, a custodial employee of Delta, spraying a cleaning substance on his dust mop prior to performing his task of dust mopping the lobby.

The substance that Patín was shown spraying onto his dust mop is designed to enhance the dust mop’s performance. One of the ingredients in the substance is oil. When present on certain flooring, such as wood in this case, the substance can cause the floor to become slippery.

|2Shortly after Patín is shown spraying the substance on his dust mop, video surveillance shows Claudine slipping and falling while walking with Alberto. The video shows that Claudine slipped and fell in the location where Patín sprayed the performance-enhancing substance onto his dust mop.

Plaintiffs brought a personal injury action against Patín and Boyd Racing, L.L.C., d/b/a Delta Downs Racetrack, Casino, and Hotel (collectively “Boyd”) alleging that Claudine was injured in her slip and fall and that Alberto suffered a loss of consortium as a result of Claudine’s injury. Boyd answered and alleged that Claudine was eontributorily negligent in causing the accident.

Claudine was treated for pain in multiple areas of her body by numerous physicians. During the deposition of one of her treating physicians, Dr. Kim Gargas, Plaintiffs’ counsel learned that an employee of Boyd’s counsel sent Dr. Gargas a cover letter and a selection of Claudine’s medical records for him to review in anticipation of his deposition. Plaintiffs filed a motion in limine to prevent Dr. Gargas’ deposition from being admitted into evidence at trial. The trial court ordered that Dr. Gargas’ first deposition could not be used at trial, that Dr. Gargas’ deposition be retaken, and that no reference to Dr. Gargas’ first deposition, nor the fact that it had to retaken, was to be made in front of the jury.

A jury trial commenced on December 3, 2012, and continued for two weeks. Prior to the case going to the jury for consideration, Plaintiffs filed a motion for directed verdict on the issue of comparative negligence. The trial court denied this motion. After deliberations, the jury returned a verdict allocating 58% fault for causing Claudine’s accident to Boyd and 42% to Claudine. The judgment awarded Plaintiffs, inter alia, $39,851.80 for past medical expenses, $0.00 for future medical expenses, $10,000.00 for past and future loss of enjoyment of life, $30,000.00 for past and future physical pain and suffering, $15,000.00 for past and |sfuture emotional distress, and $0.00 for permanent disability for Claudine’s injuries she sustained in her slip and fall.

Plaintiffs appealed the judgment. They have alleged the following:

ASSIGNMENTS OF ERROR:

1. The [tjrial [cjourt’s denial of Plaintiffs’ motion for directed verdict on contributory negligence regarding Claudine’s shoes.
2. The [jjury finding contributory negligence.
3. The [tjrial [cjourt’s failure to exclude a treating physician who changed his opinions after having ex parte communications with a defendant and reviewed medical records from other providers without authorization or notice.
4. The [¡Jury’s failure to award proven past and future medical expenses.
5. The [¡Jury’s failure to award fair and adequate general damages.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In their first assignment of error, Plaintiffs contend that the trial court’s denial of their motion for directed verdict on comparative negligence regarding Claudine’s shoes was in error. Plaintiffs assert in their second assignment of error that the jury erred in finding that Claudine was comparative negligent in causing her accident. As both assignments deal with potential comparative negligence by Claudine, we will address them under one heading.

“[TJhe applicable standard of review on a motion for directed verdict is whether the evidence in the record is such that a reasonable person could not reach a verdict to the contrary.” Richard v. Artigue, 11-1471, p. 4 (La.App. 3 Cir. 4/4/12), 87 So.3d 997, 1001 (citing Hebert v. BellSouth Telecomms., Inc., 01-223 (La.App. 3 Cir. 6/6/01), 787 So.2d 614). Similarly, the standard to review of an allocation of fault by a factfinder is that of the manifest error. Richard, 87 So.3d 997 (citing Duncan v. Kansas City S. Ry. Co., 00-66 (La.10/30/00), 773 So.2d 670). |4Prior to negating a finding of fact under the manifest error standard, “an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.” Bonin v. Ferrellgas, Inc., 03-3024, pp. 6-7 (La.7/2/04), 877 So.2d 89, 94-95 (citing Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993)).

In the case before us, Boyd asserted fault on the part of Claudine in each of the numerous answers it submitted to Plaintiffs’ petition and subsequent amendments. A party asserting comparative negligence has the burden to prove that fact. McCarthy v. Entergy Gulf States, Inc., 11-600 (La.App. 3 Cir. 12/7/11), 82 So.3d 336, writ denied, 12-72 (La.3/9/12), 84 So.3d 553. As such, when reviewing the trial court’s denial of Plaintiffs’ motion for directed verdict, we must look to the record to determine whether a reasonable person could reach a verdict contrary to finding that Boyd failed to carried its burden to prove that Claudine was eontribu-torily negligent. Stated more clearly, we must ask whether a reasonable person could find that Boyd carried its burden to prove that Claudine had any comparative negligence. Similarly, under assignment of error number two, we must look to the record to determine whether a reasonable factual basis exists for the jury’s finding that Boyd carried its burden to prove that Claudine was contributorily negligent, and, if not, whether the jury was clearly wrong in reaching this conclusion. All of these considerations entail this court reviewing the record to determine the reasonableness in finding that Boyd carried its burden to prove that Claudine was contribu-torily negligent.

At trial, Boyd alleged several factors regarding Claudine’s comparative negligence for her slip and fall. Those factors were Claudine’s shoes, gait, impairment, failure to safely traverse a flooring change from carpet to wood, and | ^failure to see Patin’s cart, which should have served as a warning to her that the condition of the floor was potentially dangerous.

At the close of trial, Boyd conceded that it had put forth no evidence that Claudine was impaired in any fashion. Further, it is quite clear when reviewing the record that Boyd presented no evidence that Claudine’s gait was dangerous or somehow contributed to the accident. Likewise, there is no evidence in the record that Claudine had any trouble traversing the change in flooring from carpet to wood, nor is there any evidence that Claudine was negligent in making the transition.

There is dispute between the parties whether Claudine could have seen Patin’s cart as she was walking. However, a resolution to this dispute is not necessary.

Boyd presented the expert testimony of Mr. Sonny Launey, a civil engineer. The following exchange took place in Launey’s testimony:

Q The cart is not a substitute for [ ] a wet floor sign or other kind of warnings; correct?
A If you indeed are going to place a warning, you should place a warning sign, yes, sir.
Q A cart is not a substitute[?]
A No, sir.

This testimony by Boyd’s expert does not establish that Patin’s cart was a sufficient warning. Quite the contrary, it promotes the opposite, regardless of whether Claudine could have seen the cart prior to her fall. Accordingly, it is clear that no reasonable person could conclude that Boyd carried its burden to prove that Claudine was contributorily negligent in failing to heed the concededly inadequate warning, if any, provided by Patin’s cart.

|fiThe final factor alleged by Boyd was that Claudine’s shoes were dangerous, and that she was negligent in wearing these dangerous shoes. Boyd contends that Launey’s testimony provides a basis for finding that Claudine’s shoes were dangerous. We note that at the beginning of Launey’s testimony, the following exchange took place (emphasis added):

Q All right. After considering all of that information, what conclusions did you reach about the cause of this accident?
A Well, I really don’t know what caused the accident. I’ll straight out say that. There are a number of factors that I think could have contributed, and I think should be considered.

Thereafter, regarding Claudine’s shoes and any causation of her slip and fall, Launey stated, “I’m not saying the shoes caused the accident.... I just think it’s something to consider. Those hard, plastic-soled shoes are — I think, can contribute to an accident. I don’t know the role. I can’t and I will not specifically say that’s what caused this accident” (emphasis added).

We find this testimony by Launey is insufficient. His statement that shoes such as Claudine’s “could” or “can” contribute to a slip and fall is not a reasonable foundation to find that Boyd carried its burden to prove that Claudine’s shoes were dangerous.

Additionally, m reviewing Launey s testimony, he stated that he conducted no tests of any kind in preparation for the litigation. Rather, he simply states that he “didn’t like” Claudine’s shoes. Originally, Launey opined that plastic-soled shoes were inferior to rubber-soled shoes when considering how easily one can slip and fall while walking in them. Later, Launey testified that the heel was the most important part of a shoe when making this consideration. Thereafter, when presented with one of Claudine’s shoes that she was wearing when she slipped and |7feII, Launey discovered that the heel of her shoe was the preferred rubber, rather than the much maligned plastic.

Given Launey’s testimony as a whole, it is evident why he did not state that Claudine’s shoes were dangerous and likely a contributing factor in her slip and fall. Not only had he had not conducted a single test of any kind, he had never looked at them, nor was he completely aware of their comprising materials.

Importantly, not even considering that Boyd failed to prove that Claudine’s shoes were dangerous, it also has to show that Claudine was somehow negligent by wearing the allegedly dangerous shoes. The record is absolutely devoid of any evidence of even a theory as to how Claudine was negligent in wearing these shoes.

Finally, Boyd points to no other evidence that it contends supports either the trial court denying Plaintiffs’ motion for directed verdict or the jury’s finding of comparative negligence by Claudine. Further, this court has conducted a thorough review of the record, and we find no evidence to support a determination that Boyd carried its burden to prove contribu-torily negligence by Claudine in causing her slip and fall. Accordingly, we amend the jury’s allocation of fault to Claudine for this accident from 42% to 0%.

ASSIGNMENT OF ERROR NUMBER THREE:

In their next assignment of error, Plaintiffs assert that the trial court’s failure to completely exclude the testimony of a treating physician who changed his opinions after having ex parte communications with a defendant and reviewed medical records from other providers without authorization or notice was in error. We do not agree.

“The trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion.” McIntosh v. McElveen, 04-1041, pp. 9-10 (La.App. 3 Cir. 2/2/05), 893 So.2d 986, 994, writ denied, 05-528 (La.4/29/05), 901 So.2d 1069; see also Maddox v. Omni Drilling Corp., 96-1673 (La.App. 3 Cir. 8/6/97), 698 So.2d 1022, writ denied, 97-2766, 97-2767 (La.1/30/98), 709 So.2d 706, and Wood v. American National Prop. & Cas. Ins. Co., 07-1589 (La.App. 3 Cir. 12/23/08), 1 So.3d 764.

It is uncontradicted that an employee of Boyd’s counsel sent part of Claudine’s medical records to Dr. Gargas on the day of Dr. Gargas’ first deposition to help him prepare. Plaintiffs’ counsel discovered this during Dr. Gargas’ first deposition. Thereafter, Plaintiffs filed a motion to exclude Dr. Gargas’ testimony from the trial. The trial court ruled that Dr. Gar-gas’ first deposition was excluded from evidence at trial. It also barred any discussion of the contents of Dr. Gargas’ first deposition and any discussion of the fact that it had to be retaken in front of the jury. Further, the trial court ruled that Dr. Gargas’ deposition was to be taken a second time. That second deposition was entered into evidence at trial in lieu of Dr. Gargas’ live testimony.

According to Plaintiffs, these facts establish that Boyd’s counsel and Dr. Gargas violated La.Code Evid. art. 510. Plaintiffs also assert that this violation influenced Dr. Gargas to find no causation between Claudine’s accident and her pain. Plaintiffs base their assertion regarding influence on the allegation that Dr. Gargas’ opinion regarding causation in both depositions differed from his notes included in Claudine’s medical records. Because Plaintiffs contend that the ex parte communication permanently tainted Dr. Gar-gas’ testimony, and the integrity of the trial as a whole, they ask this court to reverse the judgment of the jury and perform a de novo review of the record under Boutte v. Winn-Dixie La., Inc., 95-1123 (La.App. 3 Cir. 4/17/96), 674 So.2d 299, Coutee v. Global Marine Drilling Co., 04-1293 (La.App. 3 Cir. 2/16/05), 895 So.2d 631, rev’d on other grounds, 05-756 (La.2/22/06), 924 So.2d 112, and Ernst v. Taylor, 08-1289 (La.App. 3 Cir. 5/6/09), 17 So.3d 981, writ denied, 09-1262 (La.9/18/09), 17 So.3d 977.

We agree with Plaintiffs that a violation of La.Code of Evid. art. 510 occurred. Louisiana Code of Evidence Article 510(B)(1) establishes the privilege that Claudine has regarding her medical records. Her privilege is then specifically listed as an exception under La.Code Evid. art. 510(B)(2)(a), as Claudine has asserted a personal injury claim. However, under La.Code Evid. art. 510(E), that exception is limited to “testimony at trial or to discovery of the privileged communication by one of the discovery methods authorized by Code of Civil Procedure Article 1421 et seq.” La.Code Evid. art. 510(E). Here, an employee of Boyd’s counsel wrote a cover letter and faxed Claudine’s medical records from other providers to Dr. Gar-gas prior to the first deposition, and Dr. Gargas reviewed those records. This is not a discovery method authorized by La. Code Civ.P. art. 1421 et seq. Therefore, it is clear that Dr. Gargas and Boyd’s counsel, through an employee, violated La.Code Evid. art. 510.

We note that there is a view present in our sister court that there is nothing in La.Code Evid. art. 510, or any other statute applicable to this issue, to “preclude, prevent, or prohibit the flow of information from a litigant, an attorney, or anyone else for that matter to a health care provider.” Hortman v. La. Steel Works, 96-1433, p. 6 (La.App. 1 Cir. 6/20/97), 696 So.2d 625, 628, writ denied, 97-1919 (La.11/7/97), 703 So.2d 1268 (emphasis in original). In Hortman, the first circuit, announced this view quoted above, and found no violation of La.Code Evid. art. 510. Thereafter, the first circuit asserted that regardless of whether La.Code of Evid. art. 510 was violated, La.Code Evid. art. 510(G) provides for sanctions against the attorney, not the litigants, and any violation of La. Code Evid. art. 510 should never result in evidence exclusion.

|1ftThe supreme court has not addressed whether evidence exclusion is proper for a violation of La.Code Evid. art. 510. However, it is clear from the jurisprudence of this court that evidence can be excluded due to improper ex parte communication. See Sloan v. Mouton, 11-804 (La.App. 3 Cir. 12/7/11), 82 So.3d 364, writ denied, 12-48 (La.3/9/12), 84 So.3d 556; Peoples v. Fred’s Stores of Tennessee, Inc., 09-1270 (La.App. 3 Cir. 6/2/10), 38 So.3d 1209, writ denied, 10-1882 (La.10/29/10), 48 So.3d 1090; Ernst, 17 So.3d 981; Coutee, 895 So.2d 631; and Boutte, 674 So.2d 299.

From that jurisprudence, we ascertain that when adjudicating whether to uphold a judgment rendered when a violation of La.Code Evid. art. 510 occurs and tainted evidence is admitted, we have to look at the totality of the circumstances to observe whether the integrity of trial was impacted such that a pall is cast on the proceedings. Boutte, 674 So.2d 299; Coutee, 895 So.2d 631; Ernst, 17 So.3d 981.

One factor universally studied when considering the totality of the circumstances has been whether the aggrieved party had sufficient notice to gather and present contradicting evidence to rebut the evidence that stemmed from the violative ex parte communication. In every case but one, Sloan, 82 So.3d 364, if the aggrieved party did not receive sufficient notice and the evidence was improperly considered at trial, we vacated the judgment and performed a de novo review of the record. The Sloan court differed because the testimony resulting from the violative ex parte communication had no impact on the finder of fact. This is a well-reasoned exception, as the improper consideration of the evidence made no difference in the result.

Other factors weighed by some panels were whether the credibility of the aggrieved party was attacked by the tainted evidence, whether the physician’s opinion changed due to information procured by participating in the violative ex parte communication, and whether the physician’s opinion was unique. Additionally, we have two cases where the question has been posed whether the litigant participating in the violative ex parte communication should be allowed to benefit from that communication in any fashion. See Peoples, 38 So.3d 1209 and Wood v. Am. Nat’l Prop. and Cas. Ins. Co., 07-1589 (La.App. 3 Cir. 12/23/08), 1 So.3d 764.

In the case before us, Plaintiffs discovered the violation during Dr. Gargas’ first deposition. The trial court excluded that deposition and ordered Dr. Gargas to be deposed a second time. Thus, any prejudice due to lack of notice was negated when Plaintiffs had the opportunity to cross-examine Dr. Gargas at the second deposition and the opportunity to pursue and prepare evidence to rebut Dr. Gargas’ testimony from that second deposition. Given the sequence of events, we find that Plaintiffs had sufficient notice of the viola-tive ex parte communication.

Next, we consider whether Claudine’s credibility was attacked by Dr. Gargas’ testimony. Plaintiffs argue that Dr. Gar-gas’ testimony was used to attack Claudine’s credibility because Boyd asserted that Claudine was doctor-shopping for a physician who would perform surgery on her and Claudine looked for another opinion after Dr. Gargas opined that she was not a surgical candidate at that time.

It is true that Claudine sought a second opinion after Dr. Gargas concluded that she was not a surgical candidate at that time. However, Dr. Gargas’ did not state that Claudine sought a second opinion in order to find a physician who would perform surgery on her. He gave no opinion as to why Claudine sought a second opinion and only stated that it was common for patients to seek second medical opinions. Further, there is no testimony by Dr. Gar-gas that Claudine was anything but truthful in his treatment of her. He simply opined that he did not think Claudine was a surgical candidate when last he saw her. Additionally, Boyd’s [ 12assertion that Claudine was doctor-shopping is bolstered more by the number of physicians that treated her than the fact that she got a second opinion while treating with Dr. Gargas. Accordingly, we find that any attack on Claudine’s credibility by Dr. Gargas’ testimony was minimal.

Next, we consider whether Dr. Gargas’ opinion was unique. Claudine saw several physicians over the course of her treatment. We will discuss the opinions of many below while adjudicating different assignments of error. The records shows that a number of those physicians were of the opinion that Claudine’s pain was not caused by her slip and fall. Therefore, Dr. Gargas’ opinion was not unique.

Finally, we consider whether Dr. Gar-gas’ opinion changed due to information procured by participating in the violative ex parte communication. It is true that Dr. Gargas’ opinion may have changed due to information from the violative ex parte communication. The fact that a different treating physician diagnosed Claudine with fibromyalgia may have changed Dr. Gar-gas’ opinion about what was causing Claudine’s pain. However, that fact would have been brought to light during Dr. Gar-gas’ deposition, and he could have reached the same opinion once he learned of the diagnosis in the normal fashion during his deposition. Further, after reviewing Dr. Gargas’ medical records, we find it just as likely, if not more so, that Dr. Gargas’ opinion was changed during the course of his treatment of Claudine and, in his view, superior diagnostic testing.

Early in treating Claudine, Dr. Gargas’ working diagnosis was that Claudine had suffered her pain from the injuries incurred from her slip and fall. He mainly based his opinion on the history that Claudine gave to him and the results of an MRI that she underwent prior to his treating her. Over the course of treating her, Dr. Gargas had Claudine undergo a second MRI because he felt that the first MRI’s angle in viewing Claudine’s lumbar discs was not optimal. According to Dr. | ^Gargas, he changed his diagnoses based on the results of that second MRI. Given this explanation by Dr. Gargas for the changing of his diagnosis, we cannot say that his opinion was changed as a result of the violative ex parte communication.

In summation, while we find that Boyd’s attorney did violate La.Code Evid. art. 510, it is clear that Plaintiffs were notified of this violation with ample time to counteract any prejudice created by the ex parte communication. We also find that any attack in Dr. Gargas’ testimony on Claudine’s credibility was minimal, if at all. Further, Dr. Gargas’ opinion was not unique, and did not necessarily change due to information obtained in the violative ex parte communication.

Accordingly, we find no abuse of discretion by the trial court in admitting Dr. Gargas’ second deposition into evidence. Further, given the totality of the circumstances, we find that the integrity of the trial was intact despite the violation of La.Code Evid. art. 510. As such, we find no merit to Plaintiffs’ assignment of error number three.

ASSIGNMENT OF ERROR NUMBER FOUR:

In their next assignment of error, Plaintiffs contend that the jury’s failure to award proven past and future medical expenses was in error. We find no merit to this contention.

An award of special damages is reviewed pursuant to the manifest error standard of review, unlike a general damage award which is reviewed pursuant to the abuse of discretion standard. Hornsby v. Bayou Jack Logging, 03-1544 (La.App. 3 Cir. 5/5/04), 872 So.2d 1244. Thus, “[t]he adequacy or inadequacy of the award should be determined by the facts or circumstances of the case under consideration.” Id. at 1248. The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence. Id.

Savant v. Hobby Lobby Stores, Inc., 12-447, p. 13 (La.App. 3 Cir. 11/7/12), 104 So.3d 567, 575.

|14In the case before us, Claudine’s medical records indicate minimal preexisting pain that was not related to the pain that she endured after her slip and fall. They also indicate that she had preexisting degenerative conditions throughout her body, including arthritis. After her fall, Claudine developed carpal tunnel syndrome, trigger finger in her thumb, and cubital tunnel syndrome.

Claudine had surgery to relieve her carpal tunnel syndrome, trigger finger, and cubital tunnel syndrome. That surgery was performed by Dr. Jeffery Budoff, an upper extremities orthopedic specialist. He opined that Claudine’s ailments for which he was seeing her were not typically caused by trauma. He also stated that if these symptoms were caused by trauma, he would expect to see evidence of that trauma in Claudine’s medical records from her emergency room visit the night after the fall, but he testified that there was no indication of any such trauma noted in those records. Accordingly, we find no error by the jury in failing to award Plaintiffs for treatment related to carpal tunnel syndrome, trigger finger in her thumb, and cubital tunnel syndrome.

Further, after the fall, Claudine saw many physicians with complaints of pain in numerous locations including her low back and legs. Claudine underwent surgery on her back twice. Her first back surgery was a three-level foraminotomy, a surgery that widens the openings where nerve roots leave the spinal canal. Her second was the insertion of a spinal cord stimulator.

Dr. Stephen Esses, an orthopedic surgeon, decided to perform the three-level foraminotomy in an attempt to alleviate Claudine’s low back and leg pain. After Dr. Esses’ surgery, a spinal cord stimulator was inserted into Claudine’s lower back by Dr. Jerry Keepers, an invasive pain management specialist. He inserted the device to alleviate Claudine’s lower back and leg pain. Additionally, JinClaudine’s request for future medical expenses was related to potential surgeries to replace the spinal cord stimulator inserted by Dr. Keepers.

Given that the reason for the two surgeries and the stated reason for the potential future surgeries was alleviation of Claudine’s low back and leg pain, if the jury could reasonably find that the source of Claudine’s persistent low back and leg pain was not her slip and fall, it could also reasonably find that Claudine was not entitled to most, if not all, of her requested medical expenses.

In reviewing the record, we find conflicting expert evidence on the source of Claudine’s low back and leg pain. Dr. Miguel Papolla, a neurologist who Claudine treated with of her own volition, performed an extensive ninety-minute examination of Claudine. He diagnosed her with fibro-myalgia, a chronic disorder characterized by widespread musculoskeletal pain, fatigue, and tenderness in localized areas. He opined that Claudine’s fibromyalgia was the source of her pain and that it was not caused by Claudine’s slip and fall.

Claudine was also seen by pain specialists, Dr. Ranjit Patel and Dr. Lilly Chen. She was treated at their office over twenty times over a year and a half. In reviewing Claudine’s records from her treatments, the diagnosis of fibromyalgia was indicated each time.

Plaintiffs argue that a diagnosis of fibro-myalgia is improper after a slip and fall. Regardless of whether Plaintiffs’ position has merit, they argued it to the jury. Thus, the jury was aware of Plaintiffs’ argument and proof thereof and was in a position to properly evaluate what value, if any, to give to Claudine’s fibromyalgia diagnoses.

Further, Plaintiffs contend that the findings of Drs. Patel and Chen are of limited or no value because the medical records contain indications of many diagnoses, including one visit where multiple sclerosis was diagnosed. In | ^reviewing these records, it is true that the record dated July 29, 2011, shows a mark next to multiple sclerosis indicating it as a diagnosis. However, the location where the physician would indicate a diagnosis of fibromyalgia is just above multiple sclerosis. Additionally, the location where a physician would indicate a diagnosis of arthritis is just below that of multiple sclerosis. In each visit, fibromyalgia and arthritis are indicated. Thus, it is likely that this multiple sclerosis “diagnosis” was nothing more than an erroneous mark, and Plaintiffs’ attempt to discredit these records is not well founded.

Finally, Claudine was examined by a neurologist, Dr. Hugo Orellana. He opined that the source of Claudine’s pain was myofacial pain syndrome and not from any injuries she endured as a result of her slip and fall.

Given these testimonies, the jury could reasonably have found that the source of Claudine’s low back and leg pain was not her slip and fall. As such, the jury’s exclusion of those expenses related to treating Claudine’s low back and leg pain was reasonable.

In conclusion, we find that the expert medical testimony provides the jury with a reasonable basis to exclude any expenses related to Claudine’s treatment of carpal tunnel syndrome, trigger finger, or cubital tunnel syndrome. We also find that there is a basis for the jury to exclude expenses associated with treating Claudine’s low back and leg pain from it award to Claudine’s for her past medical expenses. Finally, we find that the medical testimony in the record also provides the jury with a basis for not awarding Claudine any future medical expenses. Given these findings, we cannot say that the jury was manifestly erroneous in either its award to Claudine for her past medical expenses or in its lack of award to Claudine’s for her future medical expenses, as it was reasonable for the jury to |17have found that Claudine only suffered soft tissue injuries that had resolved by the time of trial. As such, we find no merit to Plaintiffs fourth assignment of error.

ASSIGNMENT OF ERROR NUMBER FIVE:

Finally, plaintiffs assert that the jury’s award of general damages was inadequate. Again, we find no merit to this assignment of error.

An award of general damages is reviewed under the abuse of discretion standard of review. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

We found in assignment of error number four that a reasonable basis exists for the jury to believe that Claudine’s low back and leg pain were not caused by her slip and fall. Also in assignment of error number four, we found that Claudine’s carpal tunnel syndrome, trigger finger in her thumb, and cubital tunnel syndrome could reasonably have been found by the jury to be unrelated to her slip and fall. As such, a view of the medical evidence exists to support the jury’s finding that Claudine only suffered soft tissue injuries in her slip and fall. The jury’s award of general damages is in accord with such awards, and we find no abuse of the jury’s discretion.

CONCLUSION:

Plaintiffs, Claudine Labarrera and her husband, Alberto Labarrera, assert five assignments of error. We combine the first two assignments because they both raise the issue of the jury’s allocation of fault to Claudine Labarrera for her slip and fall. We find that no reasonable person could ascertain that Boyd carried its burden to prove any fault by Claudine Labarrera. As such, we amend judgment of the jury to reflect that Boyd is 100% at fault for Claudine’s slip and fall.

We find no merit to third assignment of error. While Boyd’s attorney violated La. Code Evid. art. 510, the violation, and subsequent admission of Dr. |18Gargas’ second deposition, was not an abuse of the trial court’s discretion and did not warrant reversal of the jury’s judgment.

Finally, we find no merit to assignments four and five. The jury’s damage awards are adequately supported by the record.

AFFIRMED, AS AMENDED.

GREMILLION, J., concurs with written reasons.

GREMILLION, Judge,

concurring.

|, The majority finds manifest error in the jury’s verdict and assesses the casino 100% fault. Otherwise, the majority makes no changes to the total amount of the verdict. I agree with these portions of the opinion.

There really was no evidence supporting any negligence on the part of the plaintiff. Even the defense expert could only speculate that she might have or could have contributed to the fall. The lack of evidence in the record requires us to place all of the fault on the defendant.

I concur because I believe the issue of whether Louisiana Code of Evidence article 510 was violated, and the effect of this violation, needs exploration and explanation. Initially, I will state my unequivocal agreement with the majority that any violation that may have occurred resulted in no prejudice to the plaintiff. Plaintiff could not possibly have expected that Dr. Gargas would not have been exhaustively cross-examined on the medical records that were sent to him. Sooner or later, those records were going to find their way into Dr. Gargas’s hands.

Article 510 takes, then gives, then takes again. Paragraph (B)(1) clearly takes away a defense attorney’s right to communicate with a plaintiffs health care provider, and vice versa. The patient has a privilege to refuse to disclose, and to refuse another person to disclose, confidential communications between himself and his health care provider. Another person would include the casino’s attorney.

| ^However, Paragraph (b)(2)(A) states that there is no privilege when the communication relates to the health condition of a personal injury or workers’ compensation claimant. Finally, Paragraph (E), entitled “Waiver,” provides that the exceptions in Paragraph (B)(2) only apply to trial testimony or a discovery method authorized by La.Code Civ.P. arts. 1421, et seq. Ultimately, what this “waiver” does is clearly allow the defense attorney to communicate with the plaintiffs health care provider, but only through proper means of discovery.

In this case, the defense attorney’s employee communicated with the plaintiffs health care provider by providing other medical records to the doctor to prepare him for his deposition the next day. Thus, there are actually two technical violations of Article 510. First, the communication with this particular health care provider did not take place within a deposition or a trial. Secondly, the communication included other health care records for which the plaintiff also had a privilege.

I call this a “technical” violation to demonstrate how minor I really think it was. Yes, the attorney’s employee should not have engaged in that communication, and Dr. Gargas should not have received the medical records from the defense attorney outside the deposition. However, the records were only being provided for the purpose of preparing for the deposition during which the communication between the doctor and the defense attorney and the presentation of those very same medical records would have been absolutely appropriate. The “violation” resulted only in the doctor being made aware of information a few hours earlier than would have been technically proper, and only for the purpose of being better prepared to participate in the proper deposition.

Ms. Labarrera suggests that all of this resulted in a large amount of unfair surprise. I completely disagree. Again, she had to anticipate that Dr. Gargas |swould be asked to discuss these very medical records at his deposition. To strike Dr. Gargas’s deposition would, in my opinion, subvert justice by concealing from the jury evidence that is completely relevant to the case and that was otherwise fairly obtained.


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Edward J. JOHNSON, Jr. d/b/a F & E Farm v. PARKER TRACTOR & IMPLEMENT COMPANY, INC., and Sentry Select Insurance Company.
    No. 2012-CA-01684-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2014.
    Rehearing Denied March 13, 2014.
    See also, 12 So.3d 516, 271 F.3d 613, and 67 Fed.Appx. 253.

      Dana J. Swan, Clarksdale, attorney for appellant.
    Ken R. Adcock, Carthage, Mark D. Morrison, Ridgeland, John B. Gillis, Oxford, attorneys for appellees.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶1. This is a direct appeal from the Coahoma County Circuit Court’s dismissal of a garnishment action as time-barred by the seven-year limitations period. We affirm the circuit court.

FACTS AND PROCEEDINGS BELOW

¶ 2. This is the third appeal this Court has decided arising out of litigation over a defective combine Edward J. Johnson Jr. purchased from Parker Tractor & Implement Co., Inc. (“Parker Tractor”) in 1994. First, in 2002, this Court affirmed a $90,000 circuit-court judgment in favor of Johnson. (“State I ”). In State I, Deere & Co. (“Deere”) defended Parker Tractor. The judgment was enrolled on February 18, 1998. Parker Tractor’s appeal bond and notice of Appeal were filed on March 18, 1998. This Court issued a mandate affirming the judgment on January 31, 2002.

¶ 3. Second, in 2009, this Court affirmed the enforceability of the State I judgment. (“State I/”). State II arose after First National Bank of Clarksdale filed a garnishment action against Johnson in the County Court of Coahoma County, hoping to access his $90,000 judgment in order to satisfy an unrelated promissory note Johnson owed the bank. Deere intervened in this action and filed a motion for summary judgment, alleging that the $90,000 judgment against Parker Tractor was unenforceable in light of a federal “take-nothing” judgment resolving litigation between Deere and Johnson over nonpayment for the combine. (“Federal I ”). The county court denied Deere’s summary judgment motion. The court’s denial included the following language: “[s]hould Deere & Company petition for interlocutory appeal and should that petition be granted, this matter will be stayed pending the outcome of the interlocutory appeal.” This Court granted Deere’s interlocutory appeal, and the order granting the appeal concluded by stating “IT IS FURTHER ORDERED that all trial court proceedings are hereby stayed pending disposition of the appeal.” This Court ultimately affirmed the county court’s denial of Deere’s summary judgment motion. The State II mandate was issued on July 9, 2009.

¶ 4. Johnson then proceeded in October 2009 to file the instant writ of garnishment in circuit court. This was Johnson’s first action to collect the judgment. The circuit court held the garnishment action time-barred because, after taking into account the valid stays associated with Parker Tractor’s unsuccessful direct appeal in State I, more than seven years had passed since the judgment was first enrolled. Johnson argues on appeal that the statute of limitations did not run against him for the 668 days the bank’s county-court garnishment action was stayed pending the outcome of the interlocutory appeal in State II, and that the statute has therefore not run. We disagree and affirm the circuit court’s dismissal of Johnson’s garnishment action as time-barred.

DISCUSSION

I. THE STATUTE OF LIMITATIONS HAS RUN ON JOHNSON’S JUDGMENT.

¶ 5. We review statute-of-limitations issues de novo. Townes v. Rusty Ellis Builder, Inc., 98 So.3d 1046, 1050 (Miss.2012). In Mississippi, the life of a judgment is seven years:

[a]ll actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven (7) years next after the rendition of such judgment or decree, or last renewal of judgment or decree, whichever is later.

Miss.Code Ann. § 15-1-43 (Rev.2012). Furthermore:

A judgment or decree rendered ... shall not be a lien on the property of the defendant therein for a longer period than seven years from the rendition thereof, unless an action be brought thereon before the expiration of such time. However, the time during which the execution of a judgment or decree shall be stayed or enjoined by superse-deas, injunction or other process, shall not be computed as any part of the period of seven years.

Miss.Code Ann. § 15-1-47 (Rev.2012) (emphasis added).

¶ 6. Johnson presents several arguments to support his proposition that the statute of limitations has not yet run. First, Johnson argues that this Court stayed his final circuit-court judgment in our order granting Deere’s interlocutory appeal in State II. We disagree. Mississippi Rule of Appellate Procedure 5(f) provides: “[t]he petition for [interlocutory] appeal shall not stay proceedings in the trial court unless the trial judge or the Supreme Court shall so order.” In granting the interlocutory appeal in State II, we stated: “IT IS FURTHER ORDERED that all trial court proceedings are hereby stayed pending disposition of the appeal.” But the “trial court proceedings” referenced in our order was the underlying action to the interlocutory appeal — the bank’s county-court garnishment action against Johnson. Johnson’s circuit-court judgment was not the underlying proceeding and was therefore not stayed by the order granting interlocutory appeal.

¶ 7. Johnson also argues that, since the subject matter of the appeal in State II was whether or not his judgment was enforceable, he was automatically legally enjoined from bringing an action to collect the judgment, because if Deere had prevailed, Johnson would have had no judgment to enforce. Mississippi Code Section § 15-1^47 states:

When any person shall be prohibited by law, or restrained or enjoined by the order, decree, or process of any court in this state from commencing or prosecuting any action or remedy, the time during which such person shall be so prohibited, enjoined or restrained, shall not be computed as any part of the period of time limited by this chapter for the commencement of such action.

¶ 8. But Johnson was not legally enjoined from bringing an enforcement action of his own while the bank’s garnishment action was stayed, even if Parker Tractor’s likely response to such an action would have been to request a stay pending the outcome of the interlocutory appeal. The stay of a judgment rarely occurs automatically; one notable exception is that under federal statute, the commencement of bankruptcy proceedings operates to automatically stay judgments such as the one at hand. See Trustmark Nat’l Bank v. Pike County Nat’l Bank, 716 So.2d 618 (Miss.1998). Johnson attempts to rely on Trustmark for the proposition that he was enjoined automatically from bringing an action to- collect, but here, unlike the bankruptcy proceeding in Trustmark, no proceeding occurred which operated as an automatic stay of Johnson’s judgment. The mere circumstance that the enforceability of the final circuit-court judgment was the subject matter of an appeal in a different party’s garnishment action in county court did not operate to enjoin Johnson from attempting to collect the judgment.

¶ 9. In addition to his failure to bring a timely action to collect, Johnson failed to take advantage of the many procedural mechanisms available to him to extend the life of his judgment. He did not request the circuit court or this Court to enter a stay on the judgment as permitted by Mississippi Rule of Appellate Procedure 8(b) and (c). Nor did he sue to renew the judgment for another seven years (or file a notice of renewal) as permitted under Mississippi Code Section 15-1-8.

¶ 10. The consequence, by statute, is that the judgment has been extinguished: “[t]he completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy.” Miss.Code Ann. § 15-1-8 (Rev.2012). Johnson therefore cannot bring a valid garnishment action, as he has attempted to do here. “The law is clearly established in this state that a garnishment proceeding is no longer valid .... after lapsing of the judgment upon which garnishment is issued.” Deposit Guar. Nat’l Bank v. Biglane, 427 So.2d 945, 952 (Miss.1983). “The garnishment judgment is only for the purpose of enforcing the payment of the main judgment, and if there be no main judgment to enforce ... then the purpose and life of the judgment against the garnishee is ended.” Grace v. Pierce, 127 Miss. 831, 90 So. 590, 592 (1922).

¶ 11. Calculating and keeping track of statute-of-limitations deadlines is an important professional responsibility lawyers owe to their clients. See Broome v. Mississippi Bar, 603 So.2d 349 (Miss.1992). Here, the seven-year statute was tolled for 1,416 days during the direct appeal of State I. The statute began to run again when the mandate was issued on January 31, 2002. As of that date, six years, eleven months, and two days remained, making the date of expiration January 2, 2009. None of the proceedings subsequent to the State I mandate operated to toll the statute of limitations. Johnson’s first garnishment action was filed months after the statute had run, and is therefore time-barred.

II. PARKER TRACTOR IS NOT ES-TOPPED FROM ASSERTING THE STATUTE-OF-LIMITATIONS DEFENSE.

1112. Alternatively, Johnson argues that Parker Tractor is estopped from asserting the statute-of-limitations defense, because in State II and Federal II, Deere argued that the judgment was not enforceable, and Parker Tractor therefore is arguably taking an inconsistent position by asserting that the judgment is enforceable but time-barred.

¶ 18. But a necessary element of estoppel is that the estopped party previously benefitted by adopting the earlier, inconsistent position. “Judicial estoppel precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation.” Dockins v. Allred, 849 So.2d 151, 155 (Miss.2003). In its order finding the garnishment action time-barred, the circuit court stated:

Parker Tractor earlier in the procedural history litigated the validity of the judgment using various theories, all of which prove to be unsuccessful. Now its position is that if the judgment was ever valid, it is now invalid, as it is time barred. Here, Parker Tractor did not change its position. Even if it did change, it did not benefit from its earlier position. Thus, Johnson cannot prevail on his judicial-estoppel claim.

The circuit court is correct. Parker Tractor never prevailed on the argument that the judgment was uneforceable. Therefore, if Parker Tractor is indeed now taking an inconsistent position, the doctrine of estoppel will not apply.

CONCLUSION

¶ 14. Unfortunately, twenty years and multiple successful litigations after his cause of action accrued, Johnson has failed to bring a timely action to enforce or extend the life of his judgment. Aside from the stays associated with the direct appeal of the original judgment, no other stays on the judgment were requested, ordered, or occurred automatically. Additionally, Parker Tractor is not estopped from using the statute-of-limitations defense. The judgment of the Coahoma Circuit Court dismissing the garnishment action as time-barred is affirmed.

¶ 15. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . See Miss.Code Ann. § 15-1-47 (Rev.2012).

      . Parker Tractor & Implement. Co. v. Johnson, 819 So.2d 1234 (Miss.2002) (“State I”).

      . On February 21, 2002, Johnson filed a motion to amend and correct the mandate. An amended mandate was issued on June 30, 2005.

      . Parker Tractor & Implement Co. v. Johnson, 12 So.3d 516 (Miss.2009) ("State II").

      . See Deere & Co. v. Johnson, 271 F.3d 613 (5th Cir.2001) ("Federal I"). In Federal I, Deere sued Johnson for non-payment on the combine and Johnson filed a compulsory counterclaim. Later, in "Federal II,” Deere again filed suit against Johnson, arguing that State I was not enforceable under an exception to the Anti-Injunction Act. The Fifth Circuit affirmed dismissal of Federal II in 2003. See Federal II: Deere & Co. v. Johnson, 67 Fed.Appx. 253 (5th Cir.2003).

        . Johnson also argues that the judgment was stayed by the trial court’s order denying Deere's motion for summary judgment, which stated: ’’[s]hould Deere & Company petition for interlocutory appeal and should that petition be granted, this matter will be stayed pending the outcome of the interlocutory appeal." (Emphasis added.) This Court found in State II that ”[w]e know of no statute, rule or constitutional provision which permits a county court to invalidate a judgment rendered by a Mississippi circuit court and affirmed by this Court. Such attacks on a judgment are properly within the purview of Rule 60 of the Mississippi Rules of Civil Procedure.” Deere & Co. v. First Nat’l Bank, 12 So.3d at ¶ 26. The county court therefore would lack the authority to stay the circuit-court judgment, even had it purported to do so.

      . Johnson appears to suggest that his motion to clarify the mandate of State I tolled the statute of limitations. The comment to Mississippi Rule of Appellate Procedure 40 states:
      A motion for rehearing should be distinguished from a motion for clarification or correction of opinion. Such a motion, filed in the manner and form prescribe by Rule 27, does not seek to alter the judgment of the court, and will not stay the mandate.
      Only a timely motion for rehearing or petition for writ of certiorari in the United States Supreme Court will stay the mandate. See Miss. R. App. P. 40 & 41(c). Johnson’s motion to amend the mandate did not toll the statute.


author: KING, Justice,

text:
    Tammy WATKINS, On Behalf of the Wrongful Death Heirs of Austin James WATKINS v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES.
    No. 2012-CA-01567-SCT.
    Supreme Court of Mississippi.
    Feb. 27, 2014.

      Joseph E. Roberts, Jr., Jackson, Eugene Coursey Tullos, Raleigh, attorneys for appellant.
    Robert E. Sanders, Jackson, attorney for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   KING, Justice,

for the Court:

¶ 1. In this wrongful-death suit against the Mississippi Department of Human Services (DHS), a mother sued DHS after the death of her son in the home in which DHS placed him. The trial court granted DHS’s motion for summary judgment, determining that DHS enjoyed sovereign immunity from liability for the acts alleged in the complaint. Because summary judgment was improvidently granted, this Court reverses the trial court and remands the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case involves a child, Austin Watkins, whom DHS removed from the home of his mother, Tammy Watkins, and placed in the home of his paternal grandmother, Janice Mowdy. Approximately a year and a half after Mowdy was awarded durable legal custody of Austin, Austin died from starvation. This wrongful-death lawsuit followed.

¶ 3. On July 26, 2005, DHS removed Tammy Watkins’s children, Austin and his siblings Tom and Abby, from her home. That same day, the Youth Court of Scott County entered a custody order granting DHS custody of Austin. In August 2005, DHS conducted a home study for Mowdy to determine whether Austin and Tom, her grandsons, could be placed with her. In the home study form, the section for references for Mowdy was left blank. Ultimately, in late August 2005, DHS placed all three children with Mowdy, who lived with her fourth husband and her adult daughter, Stephanie Bell. On April 24, 2007, Mowdy was awarded durable legal custody of Austin, Tom, and Abby. DHS did a final home visit on April 27, 2007, and did a closing summary in the case on May 10, 2007.

¶ 4. Mowdy brought Austin to the University of Mississippi Medical Center (UMC) on June 10, 2007. He was three- and-one-half years old at the time and weighed just twenty-four pounds. He was experiencing extreme swelling. It was determined upon admission to the hospital that Austin suffered from severe dehydration and malnutrition. During his hospital stay, UMC ran countless tests on Austin. Ultimately, “no organic cause could be found” for Austin’s malnourishment, so “inorganic/social reasons were then investigated.” Thus, “his placement with his paternal [grandmother] [was] questioned to DHS.”

¶ 5. On June 25, 2007, Dr. Johnny Byrnes, a resident assigned to Austin’s case, called UMC social worker Kathy Dennis because Mowdy was attempting to take Austin from the hospital against medical advice. Dennis and Byrnes called Scott County DHS and spoke to Heather Russell, the social worker who had closed out Austin’s case. In his deposition, Dr. Byrnes testified that he told Russell that “the medical staff felt that the family either was not feeding him or did not know how to properly feed him.” According to Dennis’s notes, Russell told them that she felt Mowdy was an appropriate caregiver and that she would follow up with Austin once he got home. Dennis noted that she and Dr. Byrnes thought that Russell did not fully appreciate Austin’s medical condition and why he should not go home.

¶ 6. On June 27, 2007, UMC social worker Gayden Carpenter received a call from Austin’s nurses because they were concerned that he was being abused at home. Austin was evaluated by a child psychologist, who determined that Austin displayed no evidence of ongoing abuse. Nonetheless, Carpenter contacted Russell, who denied concerns of abuse. Austin was discharged in July 2007, having greatly improved and weighing twenty-eight pounds, simply from being properly fed. He had a follow-up on July 17, 2007, at which it was noted that he was much improved. He had another follow-up appointment in August of 2007, which he missed. He missed all subsequent followup appointments, as well.

¶ 7. On November 9, 2008, Austin passed away, just six days before his fifth birthday, weighing a mere nineteen pounds. His official cause of death was starvation and dehydration, and the manner of death was homicide. Mowdy and Bell ultimately pled guilty to capital murder for murdering Austin while engaged in felonious child abuse.

¶ 8. On January 5, 2009, the Attorney General appointed special assistant attorneys general to review the circumstances surrounding Austin’s death. The review “was conducted to determine what improvements the State could make to prevent the next child from dying of starvation, or other forms of abuse and neglect.” Included in the “Social Autopsy” produced from the review were notes from an interview with Jennifer Watkins, a paternal aunt of Austin’s. Jennifer claimed that she anonymously called DHS in June 2007 and reported to Heather Russell that Austin looked gray, weak, and skinny. She reported that Russell told her they would look into it. This “report” was included in the factual “Timeline” in the Social Autopsy.

¶ 9. On April 30, 2010, Tammy, on behalf of the wrongful-death heirs of Austin, filed suit against DHS alleging that DHS’s negligence caused Austin’s death. DHS answered, and discovery began. During discovery, the parties deposed multiple people involved with Austin, including DHS personnel, Mowdy, several of the UMC doctors who treated Austin, and the two UMC social workers who had contact with Austin. The UMC doctors were under the impression that a complaint or report for abuse/neglect had been made to DHS. In his deposition, Dr. Byrnes testified repeatedly that, given their extensive work-ups of Austin that revealed no organic cause for his malnutrition, he reported to DHS that it was most likely that Austin’s family either was intentionally not feeding him properly, or did not understand how to feed him properly. In her affidavit, Dr. Sara Weisenberger, one of Austin’s treating physicians during his time at UMC, attested that

[r]egardless of whether the communication on behalf of the University of Mississippi Medical Center personnel to the Scott County Department of Human Services’ worker used the words “abuse” or “neglect”, such communications were in fact oral reports to the Mississippi Department of Human Services that Austin Watkins was either being abused or neglected, in that his failure to thrive was medically caused either by being intentionally starved or by his family not knowing how to properly feed him.

The UMC social workers, Dennis and Carpenter, both testified that, to their knowledge, no report of abuse/neglect was made to DHS. Carpenter specifically testified that the doctors must initiate the report process and to her knowledge, no such report was made. Dennis stated that she did not make a report of abuse or neglect. However, both were under the impression that Russell and/or DHS were going to follow up with Austin after his discharge.

¶ 10. In her deposition, Heather Russell testified that she did not recall most of UMC’s calls to her, although she remembered some of them. She indicated that UMC did not make a “report” of child abuse or neglect on Austin. She testified that if someone calls in a report, and if it’s “screened in,” the report is investigated. Lori Woodruff, the deputy administrator for the Division of Family and Children Services, testified that, if what UMC’s personnel said is taken as true, DHS should have investigated the allegations concerning Austin. Valerie Grisele, another DHS supervisor, also testified that if what UMC said it reported was correct, DHS should have documented and investigated it.

¶ 11. On October 28, 2011, DHS moved for summary judgment. DHS argued that all DHS’s actions were based upon discretionary functions or duties, thus sovereign immunity barred the action. Attached to the motion was an affidavit executed by Jimmy Gatewood, the associate director of social work for UMC. The affidavit described UMC’s policy for reporting suspected child abuse or neglect, and stated that “[ajfter review of records available to me and to the best of my knowledge, UMC inpatient division made no report of suspected abuse or neglect regarding Austin Watkins to any DHS office or any other entity specified in the policy during, or after, his treatment at UMC in 2007.” Watkins responded to the motion for summary judgment and also moved to strike the Gatewood affidavit, and DHS replied. The central arguments surrounding the motion for summary judgment were twofold: 1) whether DHS received reports (either from Jennifer Watkins, UMC, or both) regarding suspected abuse or neglect in June 2007, triggering a nondiscretionary duty to investigate, and 2) whether DHS performed its nondiscretionary duty to obtain references for Mowdy prior to placing Austin with her.

f 12. The trial court granted DHS’s summary judgment on September 18, 2012. It held that no report of suspected abuse or neglect was made to DHS. Specifically, it found that Russell had to make an initial determination or interpretation as to whether a report was made, rendering her actions discretionary and subject to sovereign immunity. It also found that the plaintiff “offered no positive proof that DHS had failed to obtain references” because DHS personnel testified that references were obtained, but that the computer system had malfunctioned, leaving the form blank, and because Mowdy testified as to who her references were. Thus, it concluded that “DHS breached no duty of care and can have no liability herein.” The trial court also denied Watkins’s motion to strike the Gatewood affidavit, but noted that “even if the Motion to Strike was granted, the outcome would not change the Court’s ruling regarding summary judgment.”

¶ 13. Watkins appeals the trial court’s judgment to this Court, arguing that the trial court erred 1) by granting summary judgment, because genuine issues of material fact exist as to whether reports were made to DHS regarding Austin, triggering a ministerial duty to investigate, and 2) by denying Watkins’s request to either strike the Gatewood affidavit or allow Watkins to depose Gatewood.

ANALYSIS

Standard of Review

¶ 14. This Court reviews questions of law, including the interpretation of the Mississippi Tort Claims Act (MTCA), de novo. Miss. Dep’t of Human Servs. v. S.C., 119 So.3d 1011, 1013 (Miss.2013). Likewise, this Court reviews the trial court’s grant or denial of summary judgment de novo. Honeycutt v. Coleman, 120 So.3d 358, 363 (Miss.2013). Because the proponent of summary judgment has the burden of showing that no genuine issue of material fact exists, this Court must review the evidence in the light most favorable to the nonmoving party. Id. The credibility of evidence likewise must be viewed in the light most favorable to the nonmoving party. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1240 (Miss.2007). Summary judgment is accordingly appropriate only “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” M.R.C.P. 56(c).

Sovereign Immunity

¶ 15. Any tort claim filed against the government, or an employee thereof, must be brought under the MTCA, the exclusive civil remedy against the government or its employees “for acts or omissions which give rise to a suit.” Stewart v. City of Jackson, 804 So.2d 1041, 1046 (Miss.2002). The MTCA waives sovereign immunity in certain circumstances, including for liability based on the performance of ministerial duties. However, sovereign immunity is not waived for liability “[b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” Miss.Code Ann. § 11-46 — 9(l)(d) (Rev.2012). Thus, if a claim of liability is based on the performance of a discretionary duty, the government has sovereign immunity; however, if a claim is based on the performance of a ministerial duty, sovereign immunity does not apply, and the claim may go forward.

¶ 16. “A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.” Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 795 (Miss.2012). To discern whether immunity for a discretionary function is available, a court must determine: 1) “whether the activity involved an element of choice or judgment,” and, if so, 2) “whether the choice involved social, economic, or political policy.” Stewart, 804 So.2d at 1047 (quoting Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999) (abrogated on other grounds)) (internal quotations omitted). Conversely, “[a] duty is ministerial if it is positively imposed by law and required to be performed at a specific time and place, removing an officer’s or entity’s choice or judgment.” Montgomery, 80 So.3d at 795.

Reports of Abuse or Neglect

¶ 17. Mississippi Code Section 43-21-353 provides that certain classes of people who work with children and who have “reasonable cause to suspect that a child is” neglected or abused “shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services.” Miss.Code Ann. § 43-21-353(1) (Rev.2009). Thereafter, DHS “shall” “immediately” make a referral to the youth court intake unit, which shall investigate the report. Id.; Miss.Code Ann. § 43-21-357 (Rev.2009) (a preliminary inquiry must be made to determine whether the interest of the child requires the youth court take further action, and the preliminary inquiry results in a recommendation). Both sides concede that if a “report” is made, DHS has a mandatory duty to investigate the report. See Miss. Dep’t Human Servs. v. S.W., 974 So.2d 253, 259-60 (Miss.App.Ct.2007). Further, DHS high-level administrators testified that DHS does not wait for the written portion of the statutory report before initiating its investigation.

¶ 18. DHS argues that no genuine issue of material fact exists. It argues that no report of abuse or neglect was made to DHS. It relies on the affidavit of Jimmy Gatewood, the associate director of social work for UMC, who, after reviewing UMC’s records, declared that no report was made under UMC’s policy. In addition to arguing that no report was made, DHS argues that its conduct is covered by the discretionary-function exemption, because DHS personnel “must necessarily exercise discretion in determining whether the content of a particular telephone call contains a report of a suspicion of abuse or neglect.” It further argues that this judgment is grounded in “social, economic, and political policy” because the “decision to have a state agency enter into a child’s life, and the lives of the family of the child, is an important social, economic, and political decision.”

¶ 19. Watkins argues that the discrepancies in testimony regarding whether a report was made create a genuine issue of material fact, which precludes summary judgment. She also maintains that investigating a report is a ministerial duty.

¶20. A genuine issue of material fact exists as to whether a report was made. DHS personnel agree that if UMC reported what its employees claim to have reported (Dr. Byrnes claims to have informed Heather Russell that Austin was being starved, either intentionally or unintentionally), it constituted a “report” that triggered the ministerial duty to investigate. DHS personnel simply deny that UMC communicated this information to Russell. At its basest level, this is a credibility contest. DHS argues that the Gate-wood affidavit should render all other UMC testimony moot, given that it states that UMC did not make a “report” under the UMC policy. He did not state that UMC did not meet the statutory definition of a “report,” nor does he appear qualified to make such a legal conclusion. Gate-wood’s affidavit contrasts the deposition testimony of Dr. Byrnes and the affidavit of Dr. Weisenberger. It does not positively dispose of the issue of whether a “report” was made, but is merely another player in the credibility contest, offering evidence to support DHS’s position, while the doctors’ statements offer evidence to support Watkins’s.

¶ 21. Nothing in the statute mandates that reporters use “magic words” such as “report,” “abuse,” or “neglect” to convey that they are reporting abuse or neglect. UMC personnel testified that they informed DHS that Austin was likely being starved, either intentionally or unintentionally. If true, such a statement would certainly fit within the statutory definition of a report of a suspicion of neglect or abuse. “Report” is defined by Black’s Law Dictionary as “[a] formal or oral written presentation of facts or a recommendation for action.” Black’s Law Dictionary 1326 (8th ed.2004). Webster’s defines “report,” in pertinent part, as “something that gives information: a usu. detailed account or statement,” or “notification.” Webster’s 3d New Int’l Dictionary 1925 (1961). Further, the statutory definitions of “neglected child” and “abused child” clearly encompass a child being intentionally or unintentionally starved. See Miss. Code Ann. § 43-21-105(0 & (m) (Rev. 2009). UMC’s statements, if true, certainly are notification that UMC suspected Austin’s caretakers were neglecting him or refusing to provide him proper and necessary care and/or that Austin’s caretakers had caused or allowed to be caused maltreatment.

¶ 22. “Credibility is a question of fact that must be decided by the jury.” Treasure Bay Corp., 967 So.2d at 1240. “Indeed, this Court consistently holds that decisions as to the weight and credibility of a witness’s statement are the proper province of the jury, not the judge.” Doe v. Stegall, 757 So.2d 201, 205 (Miss.2000). Giving credence to one sworn statement over another is not appropriate at the summary judgment level. See id. at 204-06. This is true even when the ultimate factfinder will be the judge in a bench trial. See, e.g., Regan v. Starcraft Marine, 418 Fed.App’x 310, 312 (5th Cir.2011) (in a bench trial, the trial court may be allowed a more lenient factfinding standard for summary judgment unless factual inferences drawn involve witness credibility or disputed material facts); see also Giles v. Brown, 962 So.2d 612, 618 (Miss.Ct.App.2006) (in MTCA case, determining that “a summary judgment motion does not place a court in the role of weighing testimony and determining the credibility of witnesses ... such determinations are improper for a court to make at the summary judgment stage.”). The trial court stated that “[i]n the absence of unambiguous proof that a report of suspected abuse or neglect was received by DHS, DHS cannot be held liable for any alleged negligent failure to reopen Austin’s case.” (Emphasis added.) Watkins need not put forth unambiguous proof that a report was made in order to defeat summary judgment, she need only create a genuine issue of material fact. Thus, discounting the statements of Drs. Byrnes and Weisenberger and finding that no report was made was inappropriate at this stage, especially given that evidence and credibility must be viewed in the light most favorable to Watkins.

¶ 23. DHS’s position that DHS has the discretion to determine whether a phone call is a report is also unavailing. The statute gives DHS no discretion to determine that a “report” is not a “report.” The plain language of the statute clearly belies this argument. The statute gives DHS no discretion if a report is made.

¶ 24. Furthermore, DHS’s own policies undermine the argument that Russell had the discretion to determine whether the phone calls were a “report.” DHS policy indicates that all phone calls such as this are deemed a “report,” and only then, those “reports” that are not deemed meritorious are “screened out” through the screening-out process. The policy states that: “The decision to ‘screen in’ or ‘screen out’ a report should be based upon the reported allegations. If the allegations include an action or incident that meets the definition/criteria of neglect, abuse or exploitation, the report should be ‘screened in’ for investigation.” It also mandates that: “All allegations stated in the report must be addressed and assessed during the investigative process. The decision to ‘evidence’ or ‘no evidence’ the report must reflect a careful and objective evaluation, and documentation of all the facts.”). DHS policy also indicates that only a supervisor may determine that a “report” may be screened out. DHS procedure for the death of a child also indicates that DHS personnel have no discretion to decide what is a “report.” It states that, upon the death of a child, the director must be notified if “[pjrior reports concerning the child or family were screened out for MDHS investigation.” (Emphasis added.) DHS policy seems to admit that some sort of investigation must occur at the receipt of a “report,” but that discretion may come in once the system is set in motion to “screen out” or “screen in” the report. There is no allegation that Russell chose to “screen out” the report; rather DHS argues that Russell decided this was not a “report” at all, something she had no discretion to do. Furthermore, DHS policy indicates that Russell may not have even had the authority make the decision to “screen out” the report.

¶ 25. It is clear from the statutory language that, if what Drs. Byrnes and Weis-enberger attest was communicated to DHS is true, an oral report of abuse or neglect was made to DHS. If what Russell claims was said is true, it is likely that no report was made. Thus, whether a report was made is, at its basest level, a credibility contest, and summary judgment was therefore improvidently granted.

CONCLUSION

¶ 26. The trial court erred by granting DHS’s motion for summary judgment. A genuine issue of material fact exists as to whether a report was made by UMC personnel, and thus whether DHS’s ministerial duty to investigate was triggered. We reverse the Hinds County Circuit Court’s grant of summary judgment and remand the case for further proceedings consistent with this opinion.

¶ 27. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ„ CONCUR.

      . The names of Austin's siblings have been changed to protect their identities.

      . Abby is not Mowdy's grandchild, but at the home visit, Mowdy expressed interest in having Abby live with her, too. DHS approved placing Abby with Mowdy.

      .Valerie Grisele with DHS testified that DHS (specifically Donna Wallace) spoke to Mow-dy’s references. However, she could not recall who the references were. Mowdy testified that she gave DHS three references, and she then named them.

      . Other DHS employees likewise testified that reports or allegations of abuse are "screened in” or "screened out.”

      . DHS is required to investigate a report of suspected child abuse or neglect. Unfortunately, the DHS policy in the record before this Court is incomplete — only every other page was produced. The record reveals that DHS produced only every other page to the plaintiffs. It is unclear from the record whether DHS ever produced a complete policy manual, or whether the trial court had the complete manual before it.

      . A "neglected child” is one whose parent, guardian, or custodian "neglects or refuses, when able to do so, to provide for him proper and necessary care or support, ... or medical, surgical, or other care necessary for his well-being” or one who is "without proper care, custody, supervision or support” or one who "for any reason, lacks the care necessary for his health, morals or well-being.” Miss. Code Ann. § 43-21-105(1) (Rev.2009).

      . An “abused child” is a child whose parent, guardian, or custodian "has caused or allowed to be caused, upon the child, sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment.” Miss.Code Ann. § 43-2 l-105(m) (Rev.2009).

      . Even Heather Russell agreed that, if UMC told her what its employees said they told her, "it should be followed up on.”

      . The Fifth Circuit has indicated that it may support a more lenient factfinding standard for motions for summary judgment in a bench trial, but it may not have definitively decided the issue. See Illinois Cent. R. Co. v. Mayeux, 301 F.3d 359, 362 n. 1 (5th Cir.2002) ("Although prior panels of this court have entertained the idea of applying a more lenient standard in nonjury trials, this circuit has not actually adopted such a standard.”). However, the Fifth Circuit and its district courts have consistently noted that this lenient standard or discretion "does not extend to deciding witness credibility without the benefit of live testimony.” Dominio v. Allstate Ins. Co., 2010 WL 4066647, at *2 (E.D.La. Oct.15, 2010); Matter of Placid Oil Co., 932 F.2d 394, 398 (5th Cir.1991) ("[A] district court must be aware that assessments of credibility come into sharper focus once live witnesses are heard.”) ("[I]t makes little sense to forbid the judge from drawing inferences from the evidence submitted on summary judgment when that same judge will act as the trier of fact, unless those inferences involve issues of witness credibility or disputed material facts.” (emphasis added)); Mayeux, 301 F.3d at 362 n. 1 ("Under the suggested more lenient standard, the district judge could grant summary judgment based on inferences drawn from incontrovertibly proven facts, so long as there is no issue of witness credibility." (emphasis added)).

      . A recent case decided by this Court illustrates the reaching nature of this argument. In Little v. Mississippi Department of Transportation, this Court found that, in determining whether sovereign immunity applies, the analysis must be on the function, not the acts used to carry out the function. Little v. Miss. Dep't of Transport., 129 So.3d 132 (Miss.2013).

      . As noted, apparently due to DHS's discovery failure, this Court has only every other page of DHS's policy manual, so the exact policies are unclear. However, enough information can be garnered from what is before this Court to seriously undermine DHS's assertion.

      . It appears that Russell did not follow the intake guide for receiving a report.

      . DHS argues that Watkins cannot rely on the Social Autopsy in support of her summary judgment, as it is hearsay. It takes particular umbrage with the assertion that Jennifer Watkins reported abuse or neglect to DHS triggering its duty to investigate, an assertion found only in the Social Autopsy. Additionally, Watkins argues that the trial court's failure to strike the Gatewood affidavit was error.
      This Court need not decide these issues. Regardless of Jennifer Watkins’s alleged report to DHS, or indeed, any information in the Social Autopsy, and regardless of the Gatewood affidavit, there exists ample evidence to create a genuine issue of material fact regarding whether UMC made a report of abuse or neglect to DHS. The depositions and Weisenberger affidavit alone create a genuine issue of material fact regarding whether a report was made. This Court need not look to the Social Autopsy or the Gatewood affidavit for further support.


author: RANDOLPH, Presiding Justice,

text:
    The MOSS POINT SCHOOL DISTRICT, Kim Staley, in her Official Capacity as Superintendent of Moss Point Schools, David Rubenstein, in his Official Capacity as Chief Financial Officer of Moss Point Schools and Pamela D. Perkins, in her Official Capacity as President of the Moss Point School Board v. Zachariah “Zai” STENNIS.
    No. 2012-IA-00997-SCT.
    Supreme Court of Mississippi.
    Feb. 27, 2014.

      William E. Whitfield, III, Johnny L. Nelms, Biloxi, attorneys for appellants.
    Douglas Lamont Tynes, Jr., attorney for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Zachariah “Zai” Stennis sued Moss Point School District and several school-district officials (MPSD) in the Circuit Court of Jackson County for injuries she sustained in an off-campus assault by a fellow student and the student’s mother. MPSD filed a motion for summary judgment and a motion to dismiss, which were denied by the circuit court. Upon denial of its motion for reconsideration, MPSD filed this interlocutory appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. Stennis, then a senior at MPHS, and fellow MPHS student Shakara Davis were dating the same boy. According to Stennis’s deposition, in July 2008, Davis drove by Stennis’s house and began cursing from the window of her car. Davis did not get out of the car, leaving only when Stennis’s cousin threatened to call the police. Stennis claimed “that’s how the situation got started.”

¶ 3. The new school year began in August without incident between Stennis and Davis. However, around September 15, 2008, Stennis received a text message from Davis’s mother, Regayla Woods. Stennis alleged that the message from Woods stated “that when I get out of school, [she] be waiting [sic] for me outside.” That same day, Stennis presented the text message to “Officer Williams ... [who] read it and said he was going to handle it.”

¶ 4. The following day, another officer removed Stennis from class to inquire about “what was going on.” Stennis and the officer met for approximately thirty minutes. Stennis informed the officer about Woods’s text message and the July incident at Stennis’s home. At the conclusion of that meeting, the officer had Stennis sign a paper acknowledging that she and Davis “would not fight or else [they would] be expelled or suspended.” Stennis received no further communication from Davis or Woods after the text of September 15.

¶ 5. On October 2, 2008, Stennis and Davis attended a seventh-period pep rally at the school. According to Stennis, Davis and her friends were looking at Stennis and her friends and talking about them. In response, Stennis claims to have said to Davis, “I ain’t worried[.]” At the conclusion of the pep rally, students were dismissed from school. Stennis and two friends walked to her car in the student parking lot without incident. Stennis exited the student parking lot onto a public street, traveled to a four-way stoplight, and turned right onto another public street that fronts MPHS. It was there that Woods pulled her car in front of Stennis’s car and blocked its path. Stennis and Woods exited their vehicles. Stennis allegedly “asked [Woods] will she let me out.” At that point, Davis appeared. Woods then opened her trunk and handed her daughter a knife and a box cutter. A struggle ensued which resulted in Stennis being stabbed by Davis and struck in the head with a tire iron by Woods. Woods and Davis got in separate cars and fled. Stennis returned to her car and drove herself to the hospital, where she spent three or four days recovering from her injuries. Davis was expelled from school.

¶ 6. On September 29, 2009, Stennis filed suit under the Mississippi Tort Claims Act (MTCA) against MPSD in the Circuit Court of Jackson County, Mississippi. Her complaint alleged, inter alia, that MPSD “breached [its] duty to exercise the necessary supervision on [MPSD] premises to avoid assaults by other students or interlopers”; “breached [its] duty to provide a safe place for [Stennis] to attend school”; was “negligent per se due to [its] failure to protect [Stennis’s] safety as she exited the school and walked to her vehicle”; “negligently failed to prevent an assault committed on her person”; and “failed to provide adequate security, failed to adequately train security personnel, and failed to properly supervise security personnel.”

¶ 7. On September 21, 2011, MPSD filed a “Motion for Summary Judgment, Motion to Dismiss, and Itemization of Facts.” MPSD sought summary judgment on two grounds. First, MPSD claimed immunity under the MTCA. Second, MPSD argued that it owed Stennis no duty at the time of the incident, for “school was over” and the “assault actually occurred after she exited her vehicle and was standing on a public street[.]”

¶ 8. On December 14, 2011, the circuit court entered an “Order Denying Defendant’s Motion for Summary Judgment and Motion to Dismissf.]” MPSD filed a “Motion for Reconsideration[,]” which also was denied. MPSD filed this interlocutory appeal.

ISSUES

¶ 9. On interlocutory appeal, MPSD challenges the circuit court’s denial of its motion for summary judgment and motion for reconsideration. Pertinent to the denial of those motions, MPSD raises the following issues:

I. Did the defendants have any duty of care to the plaintiff at the time of the subject incident?
II. Even if the defendants had a duty of care to the plaintiff at the time of the subject incident, were their actions/inactions discretionary functions pursuant to Mississippi Code Section 11^46 — 9(1)(d) such that they have immunity as to the claims made against them in the plaintiffs complaint?
III. Even if the defendants had a duty of care to the plaintiff at the time of the subject incident, did their actions/inactions relate to an alleged lack of “control” and “discipline” of students pursuant to Mississippi Code Section ll-46-9(l)(x) such that they have immunity as to the claims made against them in the plaintiffs complaint?

As issue I is dispositive, we will address only that issue.

STANDARD OF REVIEW

¶ 10. “We review the circuit court’s grant or denial of summary judgment under a de novo standard.” Liberty Mut. Ins. Co. v. Shoemake, 111 So.3d 1207, 1209 (Miss.2013) (citing Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1205 (Miss.1998)). Summary judgment should be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “The evidence must be viewed in the light most favorable to the party opposing the motion.” Eli Inv., LLC, v. Silver Slipper Casino Venture, LLC, 118 So.3d 151, 154 (Miss.2013) (citing Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004)).

ANALYSIS

Did the defendants have any duty of care to the plaintiff at the time of the subject incident?

¶ 11. In a claim of negligence, the plaintiff must first establish a duty owed to it by the defendant. Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988) (citing Burnham v. Tabb, 508 So.2d 1072 (Miss.1987)). The existence of a duty is a question of law. Lyle v. Mladinich, 584 So.2d 397, 400 (Miss.1991) (citing Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984)).

¶ 12. This Court has stated that the “MTCA provides the exclusive remedy against a governmental entity or its employee for the act or omission which gave rise to the suit.” Covington County Sch. Dist. v. Magee, 29 So.3d 1, 4 (Miss.2010) (citing Miss.Code Ann. § 11-46-7(1) (Rev. 2012)). MPSD “constitutes a ‘governmental entity’ and a ‘political subdivision’ pursuant to the MTCA.” See id. The MTCA provides, in pertinent part,

(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:
(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid[.]

Miss.Code Ann. § 11-46-9 (Rev.2012) (emphasis added). Section ll-46-9(l)(b) encompasses ministerial duties — those duties “which ha[ve] been positively designated[,]” by “statute, ordinance or regulation.” Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1240 (Miss.1999) (quoting Mosby v. Moore, 716 So.2d 551, 557 (Miss.1998)); Miss.Code Ann. § 11-46-9(1)(b) (Rev.2012).

¶ 13. Mississippi Code Section 37-9-69 provides, in pertinent part,

[i]t shall be the duty of each superintendent, principal and teacher in the public schools ... 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.

Miss.Code Ann. § 37-9-69 (Rev.2013). This Court has recognized that Section 37-9-69 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.1999)), overruled on other grounds; see also Lang, 764 So.2d 1234 (Miss.1999); Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911, 916 (Miss.2001). 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.

¶ 14. 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 nonstu-dents’ in some cases) injuries occurred on school property. This Court has explicitly stated that Section 37-9-69 “requires that school personnel maintain control and discipline over students while they are at school.” Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911, 916 (Miss.2001) (emphasis added) (citing L.W., 754 So.2d at 1142). The case sub judice is clearly distinguishable, as the incident occurred off school property, after Stennis and Davis had been dismissed from school.

¶ 15. The Court of Appeals addressed the duties owed by a school to individuals on a public street in Gammel v. Tate County School District, 995 So.2d 853 (Miss.Ct.App.2008). Gammel was taking his children to a carnival event at an elementary school. Id. at 855. Hé parked his car in a school bus parking lot across the street from the school. Id. While he was crossing the public street between the bus parking lot and the school, a passing vehicle struck and killed Gammel. Id. Gammel’s estate sued the school district, among others, for wrongful death. Id. The trial court granted summary judgment to the school district. Id. On appeal, the Court of Appeals examined the case under the theory of premises liability, finding that Gammel held the status of trespasser when he parked in the school bus parking lot. Although it noted that the school had a “statutory duty of ordinary care to provide a safe environment for its patrons” under Section 37-9-69, the Court of Appeals did not extend that duty beyond school property. Thus, when Gammel “stepped off the bus parking lot” onto the public street, “he lost his status[,]” and the school owed him no “duty whatsoever at the time of the accident.” Id. at 859.

¶ 16. Consistent with Gammel, Section 37-9-69 does not impose a duty of ordinary care on schools to provide a safe environment to students who have been dismissed from school and are injured off school property. The circuit court erred in denying summary judgment on that basis.

¶ 17. However, our analysis cannot end there, for Stennis contends that the MPHS Student Handbook created a “duty that MPSD owed to [her] ... to notify law enforcement of the threats when they were made aware of the threats.” MPSD responds that “the student handbook is not a ‘statute, ordinance, or regulation’ ” contemplated by Section 11 — 46—9(l)(b); therefore, it “does not create a ministerial duty for which MPHS would be required to show ‘ordinary care.’ ” This court has never addressed whether a student handbook could impose a ministerial duty upon a school.

¶ 18. The Legislature has provided that “school boards ... shall have the ... power ... [t]o prescribe and enforce rules and regulations ... for the government of schools_” Miss.Code Ann. § 37-7-301(Z) (Rev.2013) (emphasis added). If the school board exercises its authorized power and prescribes a regulation(s) positively imposing a duty on the school, then Section 11 — 46—9(l)(b) requires that the school exercise ordinary care in the execution or performance of that regulation. See Miss.Code Ann. § 11-46-9 (Rev.2012). Moreover, Section 37-9-69 explicitly states, in pertinent part, “[i]t shall be the duty of each superintendent, principal and teacher in the public schools ... to observe and enforce the statutes, rules and regulations prescribed for the operation of schools.” Miss.Code. Ann. § 37-6-69 (Rev.2013). As such, the Legislature has granted the school district the authority to create a rule or regulation, e.g., through a student handbook, which imposes a positive duty on a school.

¶ 19. The excerpt presented by Stennis to be a provision of the student handbook provides;

THREATS[:] Anyone who threatens violence is guilty of a serious criminal act and will be immediately reported to the proper authorities. Any threat made against a teacher, student, staff member or any other person should be reported immediately to the principal or designee. If on investigation the principal determines that a serious threat has been made, the offender will be reported to campus security, the city police and the juvenile authorities.

¶ 20. Although the applicable standard of review is de novo, this Court cannot adequately assess, based on the record excerpt before it, whether a purported provision of the handbook required the school officer to report the threat to police. The record contains only a three-page excerpt on which is handwritten “Student Handbook!.]” Furthermore, the trial court made no reference to the student handbook in finding that MPSD owed a duty of ordinary care. While the provision may have imposed upon the school a positive duty to report the threat to police, this Court risks declaring that it does so when the handbook as a whole is not before this Court.

¶21. We are constrained to remand this case to the circuit court to develop the record and make a determination of whether the student handbook positively imposed a duty on the school to report Woods’s text message.

CONCLUSION

¶ 22. The circuit court erroneously found that MPSD’s duty of ordinary care to provide a safe school environment applied in this case. However, the student handbook excerpt arguably imposed a duty on the school to report the threat. Based on the record before it, this Court cannot to make that determination. As such, we remand this case to the Circuit Court of Jackson County to consider whether the student handbook imposed such a duty.

¶ 28. REVERSED AND REMANDED.

DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR. WALLER, C.J., NOT PARTICIPATING.

      .Stennis joined as defendants Kim Staley (superintendent of MPSD), David Rubenstein (chief financial officer of MPSD), and Pamela Perkins (president of Moss Point School Board).

      . Stennis testified, "[i]t was two long messages. I can’t remember everything it said.”

      . According to Stennis, Davis was meeting with another officer in a separate room at the same time.

      . Stennis testified, "[Davis] didn't get out of the car. I don’t know where she came from.”

      . Stennis argues that "MPSD had control of the area that included the road where [she] was attacked[,]" and "whether or not this happened on school property is a question of fact." In a related code section, the Legislature has defined "school property” as "in-clud[ing] any public school building, bus, public school campus, grounds, recreational area or athletic field in the charge of the superintendent.” Miss.Code Ann. § 37-11-29 (Rev.2013). Stennis admitted in her deposition that the incident occurred on a public street. A public street does not fit the definition of "school property.” Furthermore, even though the school used the public street for bus drop-off and pick-up, the public at large used the street as well. The authority to police the street rested with the Moss Point Police Department, not MPSD. No issue of material fact exists as to whether this incident occurred on school property.

      . Stennis argues that Gammel is not applicable, as Gammel was a trespasser — a status clearly distinguishable from that of a student attending school. Yet, Gammel’s status when he was in the school bus parking lot is irrelevant to the Court of Appeals’ holding. The critical aspect was that Gammel relinquished any status he possessed when he exited the school property — the result being the same had he been an invitee or licensee.

      . In Groner, this Court explicitly held that a "regulation” created by the Mississippi High School Activities Association imposed a duty on Pearl High School. Groner, 784 So.2d at 915; see also Mississippi Dep’t of Human Servs. v. S.W., 111 So.3d 630, 639 (Miss.Ct.App.2012) (holding that the Department of Human Services’ policy manual set forth ministerial duties to act to care for and protect children in its custody).