Robert Calonkey v. Amory School District , 2014 Miss. App. LEXIS 499 ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-01290-COA
ROBERT CALONKEY APPELLANT
v.
AMORY SCHOOL DISTRICT APPELLEE
DATE OF JUDGMENT: 06/18/2013
TRIAL JUDGE: HON. JAMES LAMAR ROBERTS JR.
COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JAMES ROGER FRANKS JR.
WILLIAM RUFUS WHEELER JR.
ATTORNEY FOR APPELLEE: MICHAEL JEFFREY WOLF
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO
APPELLEE
DISPOSITION: REVERSED AND REMANDED - 09/16/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., CARLTON AND MAXWELL, JJ.
MAXWELL, .J., FOR THE COURT:
¶1. Robert 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 the
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 that 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 barred 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 school 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 District’s performance of a discretionary function.
¶4. Because the District is not immune 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.
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Little v. Miss. Dep’t of Transp., 129 So. 3d 132, 138 (¶¶10-11) (Miss. 2013).
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¶6. Calonkey visited the set on February 16, 2011. While 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
the 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 filed 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 Miss. Code Ann. § 11-46-9(1)(d), (v) (Rev. 2012). The District also relied
on the non-MTCA statute that protects a property owner from liability for injuries to an
independent contractor caused by a danger the contractor should have known about.
¶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
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and obvious.” 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 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 and that the moving party is entitled to
a judgment as a matter of law.” M.R.C.P. 56(c). But if any triable issues of fact exist or if
we find the District was not entitled to a judgment as a matter of law, we must reverse.
Harrison, 891 So. 2d at 228 (¶11).
Discussion
I. MCTA Exemptions
¶11. The MTCA provides the exclusive remedy for Calonkey’s claim against the District.
Miss. Code Ann. § 11-46-7 (Rev. 2012). While section 11-46-5 generally waives sovereign
immunity for tort actions to recover money damages, section 11-46-9(1) reinstates immunity
for certain claims. Miss. Code Ann. § 11-46-5 (Rev. 2012); § 11-46-9(1).
¶12. The circuit judge held two provisions in section 11-46-9(1) immunized the District
from Calonkey’s suit—subsection (v), which involves any claim arising out of injuries due
to dangerous conditions on public property, and subsection (d), which involves any claim
arising out of the performance of discretionary functions. But for the following reasons, we
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find neither provision prevented Calonkey from moving forward with his claim.
A. Obviously Dangerous Condition
¶13. The circuit judge first applied section 11-46-9(1)(v) to find the District was immune.
Subsection (v) has two provisions. Primarily, subsection (v) shields the government from
any claim based on a dangerous condition when the condition was not due to the negligent
or willful actions of a government employee or when the government did not know about the
condition so as to be able to remedy it or warn about it. Miss. Code Ann. § 11-46-9(1)(v).
Additionally, subsection (v) prevents government liability for a failure-to-warn claim when
the dangerous condition is “obvious to one exercising due care.” Id.
¶14. It is only this second 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. Miss. Code Ann. § 11-46-9(1)(v). It does not exempt the
District from liability for causing the dangerous condition through the negligent or willful
actions of its employees. Id.; see City of Natchez v. Jackson, 941 So. 2d 865, 876 (¶33)
(Miss. Ct. App. 2006). Here, Calonkey is not seeking to hold the District liable for failing
to warn him about the hole in the catwalk. Rather, he claims the District’s negligence in
constructing and maintaining the catwalk created a dangerous condition that led to his
injuries. So even if the dangerous condition was “obvious,” this fact does not bar Calonkey’s
claim.
¶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
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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 M.R.C.P.
56(c)). Calonkey testified the catwalk was dark and covered with debris. While other
portions of his testimony suggested otherwise, as this is summary judgment, we must view
the evidence in the light most favorable to him, the nonmovant. See id. at 776-77 (¶14). And
in this light, we find Calonkey’s evidence created a fact issue whether the dangerous
condition of the catwalk was obvious to one exercising due care, which precludes summary
judgment.
B. Discretionary Function
¶16. The circuit judge made the alternate ruling that the District was equally protected from
suit by section 11-46-9(1)(d), which bars claims “[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(1)(d). The circuit judge found that Calonkey’s claim was based on the
exercise of a discretionary function. He reached this conclusion by following, as he
described it, “the [Mississippi] Supreme Court’s paradigm in determining whether a function
is discretionary or ministerial.”
¶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
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line of cases holding that, while an overall duty may be mandatory, how that duty is carried
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 Calonkey 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 Mississippi Code Annotated
section 37-7-301(c) and (d) (Rev. 2013), which requires the District to “be the custodian[]
of real and personal school property and to manage, control and care for same, both during
the school term and during vacation” and to be “responsib[le] for the erection, repairing and
equipping of school facilities and the making of necessary school improvements[.]” Because
Little holds that this mandated function includes “all acts” carrying out that duty, even when
they involve choice or judgment, we must find that the acts of constructing and maintaining
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the theater set fall under that function and, thus, are not immune from Calonkey’s suit. Little,
129 So. 3d at 138 (¶10).
II. Non-MCTA 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 District 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 employees resulting from dangers of which the contractor knew or
reasonably should have known.” Miss. Code Ann. § 11-1-66 (Supp. 2013). See also Coho
Resources, Inc. v. McCarthy, 913 So. 2d 899, 906 (¶19) (Miss. 2005) (reciting the “general
rule . . . that the owner of the premises does not have a duty to protect an independent
contractor against risks arising from or intimately connected with the work”). But whether
this statute provides the District a complete defense cannot be answered on summary
judgment. Without dispute, Calonkey was working at the school as an independent
contractor. But just as there is a question whether the dangerous condition was “obvious,”
there is a disputed fact issue whether Calonkey should have been aware of the danger posed
by the exposed hole in the catwalk, based on his past work experience in theater production.
¶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.
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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.
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