Churchill v. Pearl River Basin Development Dist.

• Decision Date: 25 February 1993
• Docket Number: No. 07-CA-59194,07-CA-59194
• Parties: Kenneth Ray CHURCHILL, Jr. v. PEARL RIVER BASIN DEVELOPMENT DISTRICT, a Corporate Political Subdivision of the State of Mississippi, Pike County, Mississippi, a Political Subdivision of the State of Mississippi.
• Court: Mississippi Supreme Court

Page 900

619 So.2d 900

Kenneth Ray CHURCHILL, Jr. v. PEARL RIVER BASIN DEVELOPMENT DISTRICT, a Corporate Political Subdivision of the State of Mississippi Pike County, Mississippi, a Political Subdivision of the State of Mississippi.

No. 07-CA-59194.

Supreme Court of Mississippi.

Feb. 25, 1993.

Rehearing Denied June 24, 1993.

Alfred L. Felder, McComb, Donald R. Rogers, Hattiesburg, for appellant.

John B. Clark, Wilton V. Byars III, Daniel Coker Horton & Bell, Jonathan B. Fairbank, Cupit Jones & Fairbank, Jennifer Lynn Welsh, Dove Chill & McNamara, Jackson, Wayne Dowdy, Magnolia, Mike Smith, McComb, for appellee.

EN BANC.

McRAE, Justice, for the Court:

This appeal arises from an April 14, 1988, order of the Pike County Circuit Court granting the Appellees' motions for summary judgment on the basis of sovereign immunity on claims of negligence, strict liability in tort and breach of implied contract. Finding that Churchill's charge of breach of implied contract, which he sought to propound in his motion for leave to amend the complaint, was not precluded by the sovereign immunity defense and that sovereign immunity is waived to the extent that the governmental entity is covered by liability insurance, we reverse and remand for a trial consistent with this opinion.

PROCEDURAL HISTORY

On August 1, 1981, while using the recreational facilities of the Bogue Chitto Water Park, which was developed by the Pearl River Basin Development District (hereinafter "the District") and maintained by Pike County (hereinafter "the County"), Kenneth Ray Churchill, Jr., sustained serious injuries which left him permanently paralyzed. On June 26, 1987, Churchill filed a complaint in the Circuit Court of Pike County against the District and the County, seeking recovery for compensatory and exemplary damages on the basis of negligence and strict liability in tort. He later filed a motion for leave to amend his complaint, asserting that the District and the County breached their implied contract with him to provide a safe place for the activities for which he had paid an admission fee.

The defendants filed motions for summary judgment, raising the defense of sovereign immunity, the District claiming it was entitled to dismissal because Miss.Code Ann. Sec. 51-11-3 (1972) makes it an "agency of the state and a body politic and corporate;" and the County because of the exemption from liability granted to governmental entities by Miss.Code Ann. Sec. 11-46-9 (1972). Because the District carried liability insurance, Churchill then filed a motion to estop the District from asserting the defense of sovereign immunity.

Citing Strait v. Pat Harrison Waterway District, 523 So.2d 36 (Miss.1988), the Circuit Court found that neither the breach of implied contract which Churchill attempted to raise nor his plea of estoppel would avail him. Accordingly, motions for summary judgment filed by the District and the County were granted.

FACTS

Churchill, as a part of a group, paid an admission fee to the Bogue Chitto Water Park and rented an inner tube. As alleged in his complaint, he "dived into the water from a man-made platform and swing and struck his head against the bottom of said river." In so doing, he suffered severe injuries to his "spine, spinal cord and nervous system," and was rendered a quadriplegic, permanently and totally disabling him.

The Bogue Chitto Water Park was designed and constructed by the District, pursuant to the authority vested in it by Miss.Code Ann. Secs. 51-11-31, et seq. (1972). Although the Park was subject to oversight, supervision, expansion, renovation and inspection by the District, the District had no involvement with the daily operation and management of the facilities. The Park was maintained and operated by the Pike County Board of Supervisors between 1974 The District carried a public liability insurance policy to cover accidents such as Churchill's. Issued by Travelers' Insurance Company, the Comprehensive General Liability Policy covered bodily injury to the extent of $500,000 for each occurrence and property damage to the extent of $250,000 for each occurrence. The District further maintained a $1,000,000 umbrella policy with Lincoln Insurance Company, giving it a total of $1.5 million liability protection. Premiums on the two policies cost approximately $5,544.00 per year. Coverage was procured by the District's Board under its general powers, because no statutory authority specifically provides it with the power to obtain liability insurance. Pike County, however, does not carry any general liability insurance for the Bogue Chitto Water Park. If any other insurance was available, it was not made a part of the record before us.

and 1987, which retained all admission and equipment rental fees collected by its employees. The District had forwarded a copy of its "Management Program for Recreation Sites" to the County in December, 1980, and May, 1981, which recommended posting signs at the swimming area and checking the swimming area for hazardous conditions. No such signs were posted at the time of Churchill's accident.

STANDARD OF REVIEW

This Court conducts a de novo review of the record on appeal from a grant of a motion for summary judgment. Pace v. Financial Security Life of Mississippi, 608 So.2d 1135 (Miss.1992); Short v. Columbus Rubber and Gasket Co., 535 So.2d 61, 63 (Miss.1988). In Pace, this Court reiterated the initial standard to be used in considering a motion for summary judgment:

The trial court must review carefully all of the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied.

Id. at 1138, quoting Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983) (emphasis added); See also, Lovett v. Anderson, 573 So.2d 758, 760 (Miss.1990); Pearl River County Board v. South East Collections, 459 So.2d 783, 785 (Miss.1984).

CHURCHILL'S BREACH OF IMPLIED CONTRACT CLAIM

In his motion for leave to amend, Churchill sought to raise the theory of breach of implied contract, alluded to in Strait v. Pat Harrison Waterways District, 523 So.2d 36 (Miss.1988). He charged that his injuries resulted from a breach of an implied contract to provide a safe place for the activities for which he had paid an admission fee. Although some courts have held that an admission ticket merely grants the holder a license to use the facility for which a fee has been paid, Churchill cites the Alabama Supreme Court's decision in Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976), for the proposition that

a ticket to a place of public entertainment constitutes a contract between the proprietor and the purchaser of the ticket; whatever contractual duties grow out of that relation, it has been held, must be performed by the proprietor or he must respond in damages for breach of contract.

Id. at 1314. See also, Walker v. City of Birmingham, 342 So.2d 321, 322 (Ala.1977).

Thus, in an action brought for injuries sustained when a bleacher collapsed during a high school football game for which Mr. and Mrs. Sims had purchased admission tickets, the Alabama Court found that the trial judge had properly dismissed the negligence counts but erred in dismissing the plaintiff's breach of implied contract claim. Analyzing the contract claim, the Court stated:

What we have here is a unilateral contract, with the promisor-board of education as proprietor, upon receiving the admission price, promising admission by ticket and the performance of all other contractual duties arising from the circumstances, including the implied promise that the premises are reasonably safe for the purpose of viewing the athletic contest.

Sims, 337 So.2d at 1314.

Likewise, in the case sub judice, the appellees had charged Churchill's group an admission fee as well as a fee for renting an inner tube. The receipt of that fee promised not only admission to the water park, but also carried with it the implied promise that the premises were safe for the enjoyment of water sports. Accordingly, we find that there existed an implied contract between the appellees and those who paid an admission fee to use the water park facility.

Sovereign immunity does not bar actions against the state or its political subdivisions brought on a breach of contract theory. Miss. State Department of Welfare v. Howie, 449 So.2d 772 (Miss.1984); Cig Contractors v. Miss. State Bldg. Comm'n, 399 So.2d 1352 (Miss.1981). As we stated in Cig Contractors:

The general rule is that when the legislature authorizes the State's entry into a contract, the State necessarily waives its immunity from suit for a breach of such contract. 81A C.J.S. States Sec. 172 (1977). Where the state has lawfully entered into a business contract with an individual, the obligations and duties of the contract should be mutually binding and reciprocal. There is no mutuality or fairness where a state or county can enter into an advantageous contract and accept its benefits but refuse to perform its obligations.

Id. at 1355.

The legislature has vested the District with the power to enter into contracts in Miss.Code Ann. Sec. 51-11-11(g) (1972). Likewise, Sec. 51-11-11(b) empowers the District to sue and be sued. Section 51-11-43, which authorizes the District to act jointly with other governmental agencies further states, in relevant part:

The several counties, municipalities, districts, political subdivisions, public agencies, commissions and instrumentalities of this state are authorized and empowered to enter into contracts and joint funding agreements with the district in the performance of the purposes and services authorized in this...