ROBERT CALONKEY v. AMORY SCHOOL DISTRICT
NO. 2013-CA-01290-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
09/16/2014
DATE OF JUDGMENT: 06/18/2013; TRIAL JUDGE: HON. JAMES LAMAR ROBERTS JR.; COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT;
BEFORE LEE, C.J., CARLTON AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1. Rоbert Calonkey fell through a hole in a catwalk above the Amory High School stage. He sued the Amory School District (District), claiming its negligent maintenance of the theater led to his injuries. The District moved for—and was granted—summary judgment based on governmental immunity.
¶2. The circuit judge found the dangerous condition of the catwalk “obvious” and applied the Mississippi Tort Claims Act‘s obvious-dangerous-condition exemption to hold thе District could not be held liable. But the obvious-dangerous-condition exemption did not apply to Calonkey‘s claim. Rather, the obvious nature of a dangerous condition only bars recovery for claims thаt the government failed to warn the plaintiff of the dangerous condition. It does not bar a claim, like Calonkey‘s, that the government‘s negligence led to the dangerous condition.
¶3. Nor was Calonkey‘s claim bаrred due to discretionary-function immunity—the circuit judge‘s alternate reason for granting summary judgment. When deciding if a claim is based on the performance of a discretionary function and thus barred by discretionary-function immunity, intervening precedent directs we look to the governmental function involved in the claim, not just the specific acts performed.1 Calonkey‘s claim involves the governmental function to maintain sсhool property, which the District is mandated to perform. Thus, Calonkey‘s claim that the District failed to carry out its duty to maintain the theater cannot be said to be based on the
¶4. Because the District is not immunе under the Mississippi Tort Claims Act (MTCA), and because fact issues surround the District‘s non-MTCA defense, we reverse the grant of summary judgment to the District. We remand Calonkey‘s claim to the circuit court.
Background
I. Calonkey‘s Fall
¶5. Amory High School hired Calonkey to assist with the school‘s production of Phantom of the Opera. Calonkey helped with the set design, which included a metal catwalk with a trap door that spanned the stage ten feet in the air.
¶6. Calonkey visited the set on February 16, 2011. Whilе there, he was asked by another producer to help adjust the lights. So he climbed up on the catwalk. This was Calonkey‘s first time on the catwalk, which he had not helped build. He claims that he was unaware that thе catwalk was missing the called-for trap door—leaving a giant exposed hole in the middle. What is more, the metal edges of the hole were dotted with metal spike-like protrusions that should have been filеd down after the catwalk was welded together. Calonkey fell through this hole after tripping over wiring and lumber lying across the catwalk. He scraped himself on the metal protrusions before falling ten feet to the stage.
II. Calonkey‘s Lawsuit
¶7. Calonkey sued the District to recover for his resulting injuries. His complaint alleged that the District had the responsibility to ensure the set and walkways were properly maintained so students, visitors, and others could safely walk across them. He further alleged that, as part of this duty, the District should have covered or repaired the large hole in the catwalk, as multiple people were to use this walkway during the theater production. And the District‘s failure to do so was negligence, which proximately caused his injuries.
¶8. The District moved for summary judgment, asserting immunity under the MTCA‘s exemptions from liability for obviously dangerous conditions and exercises of discretionary functions. See
¶9. The circuit judge granted the District summary judgment, finding the District was immune from Calonkey‘s claim because the dangerous condition of the catwalk was “open and obviоus.” But the judge noted that summary judgment would have been just as proper based on discretionary-function immunity.
III. Calonkey‘s Appeal
¶10. Calonkey timely appealed, triggering this court‘s de novo review. We apply the same standard as the circuit judge. Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 228 (¶11) (Miss. 2005). Viewing the evidence in the light most favorable to Calonkey, the nonmovant, we will affirm the grant of summary judgment “if the plеadings, 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 and that the moving party is entitled to a judgment as a matter of law.”
I. MCTA Exemptions
¶11. The MTCA provides the exclusive remedy for Calonkey‘s claim against the District.
¶12. The circuit judge held two provisions in
A. Obviously Dangerous Condition
¶13. The circuit judge first applied
¶14. It is only this sеcond part of subsection (v)—the obviously dangerous condition—that the District claimed immunized it from Calonkey‘s suit. But as the statute clearly states, the fact that a dangerous condition is obvious only exempts the District from liability for the failure to warn of the condition.
¶15. But contrary to the circuit judge‘s ruling, the record does not support that the catwalk‘s dangerous condition was undisputedly obvious. Instead, we find this was a question of disputed fact, which cannot be resolved on summary judgment. See Smith v. Waggoners Trucking Corp., 69 So. 3d 773, 777 (¶15) (Miss. Ct. App. 2011) (citing
B. Discretionary Function
¶16. The circuit judge made the alternate ruling that the District was equally protected from suit by
¶17. But since the date of the trial judge‘s decision, that paradigm has dramatically shifted. In October 2013, the Mississippi Supreme Court handed down Little v. Mississippi Department of Transportation, 129 So. 3d 132 (Miss. 2013). Before Little, the focus of this subsection of the MTCA was on the specific acts alleged to be negligent and whether those acts were mandated or discretionary. But the supreme court in Little expressly overruled its line of cases holding that, while an overall duty may be mandatory, how that duty is carriеd out may be discretionary. Id. at 138 (¶11). The supreme court instead held that, if a statute imposes a duty on a governmental entity or its employees, “all acts fulfilling that duty are considered mandated as well, and neither the government nor its employees enjoy[] immunity.” Id. at (¶10) (quoting Miss. Transp. Comm‘n v. Montgomery, 80 So. 3d 789, 798 (¶31) (Miss. 2012)). So now, when determining whether the government is immune, courts must focus on the governmental function at issue—and “not the acts performed in order to achieve that function.” Id.
¶18. Applying then-existing law, the circuit judge understandably honed in on the specific act Cаlonkey alleged was negligent—the construction and maintenance of the set. Finding no law mandated when or how the set should be constructed or maintained, the judge concluded the acts involved were discretionary. See Montgomery, 80 So. 3d at 795 (¶19). And because they also involved social policy, these acts were immune. See id. at (¶20).
¶19. But in our de novo review, we must follow Little‘s approach and look to the governmental function at issue in Calonkey‘s claim—the negligent maintenance of a portion of school property. This function is imposed on the District by
II. Non-MTCA Defenses
¶20. Even if not immune, the District asserts it is still entitled to summary judgment because Calonkey had been working as an independent contractor when he injured himself. The Distriсt relies on the non-MTCA statute shielding all property owners—public and private—against liability “for the death or injury of an independent contractor or the independent contractor‘s employeеs resulting from dangers of which the contractor knew or reasonably should have known.”
¶21. Therefore, because of this fact issue and the other reasons discussed, we reverse the grant of summary judgment and remand this case to the circuit court.
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.