Anderson v. Jackson Municipal Airport Authority

• Decision Date: 15 November 1982
• Docket Number: No. 78-2457,78-2457
• Citation: 691 F.2d 742
• Parties: James L. ANDERSON, Jr., a minor, By and Through James H. DOSS, Uncle and next Friend, Plaintiff-Appellant, v. JACKSON MUNICIPAL AIRPORT AUTHORITY, Defendant-Appellee. . *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 742

691 F.2d 742

James L. ANDERSON, Jr., a minor, By and Through James H.

DOSS, Uncle and next Friend, Plaintiff-Appellant, v. JACKSON MUNICIPAL AIRPORT AUTHORITY, Defendant-Appellee.

No. 78-2457.

United States Court of Appeals, Fifth Circuit. ^*

Nov. 15, 1982.

Roland C. Lewis, Jackson, Miss., for plaintiff-appellant.

Watkins & Eager, Thomas C. Gerity, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before THORNBERRY, ANDERSON, and THOMAS A. CLARK, Circuit Judges.

PER CURIAM:

In our previous consideration of this case in 645 F.2d 401 (1981), we certified the following questions to the Mississippi Supreme Court pursuant to its Rule 46 permitting such procedure:

(1) Did the omission in the Airport Authorities Law of any provision for immunity in tort continue in effect the rule of law inferred from Brummett v. City of Jackson, 211 Miss. 116, 51 So.2d 52 (1951), that an airport authority has no immunity from suit arising out of proprietary or corporate functions? If so, are allegations of supplying equipment for maintenance purposes sufficient to describe such functions?

(2) If the answers to the above questions are in the negative, of what effect on this case was the enactment of the amendment to § 61-3-15(b)? Specifically, does the amended § 61-3-15(b) authorize suits in tort for claims accruing prior to the amendment's enactment, subject only to statutes of limitations that are otherwise applicable?

The Mississippi Supreme Court, 419 So.2d 1010, has answered the first questions in the affirmative in an opinion attached hereto as Exhibit A.

Pursuant to this opinion, the opinion of the Mississippi Supreme Court, and that court's answers to the first question, we reverse the judgment of the district court and remand for further proceedings.

REVERSED and REMANDED.

En Banc.

BOWLING, Justice, for the Court:

This opinion is issued pursuant to Mississippi Supreme Court Rule 46. For clarification and brevity, we attach hereto as Appendix "A" the entire text of the certification from the Court of Appeals for the Fifth Circuit.

We begin with the initial premise that the case law from this Court is that the operation of an airport by a municipality is a proprietary or corporate activity and immunity from tort liability is not granted the municipality. Brummett v. City of Jackson, 211 Miss. 116, 51 So.2d 52 (1951); and City of Jackson v. Brummett, 224 Miss. 501, 80 So.2d 827 (1955). This definite principle has not been overruled by this Court, and we decline to do so here.

As stated by the certification from the Court of Appeals, the Mississippi Legislature during the 1958 session passed two statutes whereby a municipality under either statute could set up, operate and maintain an airport. One separate and distinct statute was styled the "Airport Authorities Law" (1958 Mississippi Laws, Chapter 230, MCA § 61-3-1 et seq.) and the other separate and distinct statute passed during the same session was entitled, "Municipal Airport Law." (1958 Mississippi Laws, Chapter 513, MCA § 61-5-1 et seq.)

Basically, the Airport Authorities Law authorized a municipality to create a municipal airport authority whereby a corporation would be formed for the construction, operation and maintenance of the airport. The corporation thus formed has officers and the corporation exercises all normal responsibilities in the airport operation, such as hiring and firing of employees, contracting with concessionaires and airlines, and other commercial and related activities operated along with the normal airport activities. For instance, the appellee here, either by contract or otherwise, operates in the airport facility a restaurant, an alcoholic dispensary bar, a motel, insurance selling agency, concession stands, car rental agencies and other such activities-all of which are presumed to bring in profit for the operation of the airport. The City of Jackson is not a defendant in this case. The defendant is the corporate entity set up by the Airport Authorities Law, even though the City of Jackson owns the land on which the airport and its facilities are located and took the necessary action to set up the corporation entity under the said statute.

We are not involved in this case with the "Municipal Airport Law" set out above. The City of Jackson chose not to proceed under that statute.

The only provision that touches on the questions certified by the Court of Appeals in the Airport Authorities Law is set out in MCA § 61-3-83 (1972). The section at the time appellant was injured in August 1976 read as follows:

The acquisition of any land, or interest therein, pursuant to this chapter, the planning, acquisition, establishment, development, construction, improvement, maintenance, equipment, operation, regulation and protection of airports and air navigation facilities, including the acquisition or elimination of airport hazards, and the exercise of any other powers granted in this chapter to authorities and other public agencies, to be severally or jointly exercised, are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity. All land and other Appellee contended in the district court and contends before this Court, although no cross appeal was taken from the district court's decision on this point as hereinafter related, that the above quoted section was a legislative mandate that the operation of the airport by Jackson Municipal Airport Authority was not a proprietary or corporate activity. Nowhere else in the Airport Authorities Law is there any pronouncement, either direct or indirect, that would bear on the prevailing case law in effect by the prior cited opinions of this Court.

property and privileges acquired and used by or on behalf of any authority or other public agency in the manner and for the purposes enumerated in this chapter shall and are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity.

The district court, in a rather lengthy opinion, specifically held that MCA § 61-3-83 was not a directive that the proprietary character of the airport was changed to "governmental function" as that term is considered in connection with governmental immunity of municipalities.

We stop here and refer to the other statute (Municipal Airport Law passed by the legislature at the same session it passed the Airport Authorities Law). The provisions of that statute are quite different. We refer to it only for the reason that it was referred to by the Federal District Court and the Court of Appeals. The provisions of the Municipal Airport Law have no bearing on this case whatever except in considering the legislative intent when the two acts were passed simultaneously. In the Municipal Airport Act, as set out in MCA § 61-5-47, it repeated the language of MCA § 61-3-83 of the Airport Authorities Law, but saw fit to add a paragraph by stating as follows:

No action or suit sounding in tort shall be brought or maintained against the state or any municipality thereof, or the officers, agents, servants, or employees of the state or any municipality thereof, on account of any act done in or about the construction, maintenance, enlargement, operation, superintendence or management of any airport or other air navigation facility.

Although not material to the legal issues involved, the Airport Authorities Act provided that the authority may sue or be sued. The Municipal Airport Act has no such provision. This is material only in considering legislative intent when the two acts were adopted.

The federal district court in discussing MCA § 61-3-83 (Airport Authorities Law) stated:

If the Mississippi Legislature had deemed the language of MCA § 61-3-83, when viewed alone, as sufficient to confer tort immunity upon airport authorities, then why did the legislature supply an express grant of immunity in the second paragraph of MCA § 61-5-47? ....

In the Court's opinion MCA § 61-3-83 is not a grant of immunity, but its true construction is not hard to find. In Rhodes v. City of Asheville, (230 N.C. 134) 52 S.E.2d 371 (N.C.1949), petition for rehearing denied (230 N.C. 759) 53 S.E.2d 313, the case cited by the Court in Imperial Production Corp., (v. City of Sweetwater, 210 F.2d 917 (5th Cir.) ) supra, the statute declared the operation of a municipal airport "to be public, governmental and municipal functions exercised for a public purpose and matters of public necessity." In interpreting this phrase the court said a municipal corporation cannot legally engage in any enterprise in its governmental or proprietary capacity which does not come within the meaning or definition of a public purpose, and that the interpretation placed by the court on the language of the statute quoted above was the legislature intended to declare the operation of an airport a governmental function in the sense that it was a public purpose, and thus an appropriate activity for a municipality.

As stated at the outset, this Court many years ago held positively that the operation of an airport by a municipality is a proprietary The overwhelming weight of authority is to the effect that the construction, operation, and maintenance of an airport by a municipality is a proprietary function and that such municipality may be held liable in tort for the negligent operation thereof.

or corporate activity. The vast majority of authority is the same. The Supreme Court of North Carolina, in Rhodes, supra, had before it a statute almost identical to MCA § 61-3-83. The North Carolina Supreme Court prior to discussing that statute and its implication on the immunity question stated:

and, further:

We have found no decision and the appellants have cited none in which any court of last resort in this country has held that the construction, operation, and maintenance of an...