Heirs of Branning v. Hinds Com. College

Decision Date22 April 1999
Docket NumberNo. 97-CA-01090-SCT.,97-CA-01090-SCT.
Citation743 So.2d 311
PartiesHEIRS AND WRONGFUL DEATH BENEFICIARIES OF April Tenille BRANNING, By and Through Lelia Branning TUCKER, The Mother of April Tenille Branning, Individually and on Behalf of Lester Branning, Father of April Tenille Branning, Scott Branning, Brother of April Tenille Branning and Michael B. Rives v. HINDS COMMUNITY COLLEGE DISTRICT.
CourtMississippi Supreme Court

Shane F. Langston, John Holaday, Jackson, Edward A. Williamson, Philadelphia, T. Jackson Lyons, Crystal Diane Wise, Jackson, Attorneys for Appellants.

Ben J. Piazza, Jr., H. Mitchell Cowan, Jackson, Attorneys for Appellee.

EN BANC.

ON MOTION FOR REHEARING

SMITH, Justice, for the Court:

¶ 1. Motions for rehearing denied. Original opinions are withdrawn and this opinion substituted therefor.

¶ 2. This action arose from a plane crash on the night of October 25, 1994 at the John Bell Williams Airport (the "Airport") near Raymond, Mississippi. April Branning, a passenger in the plane, died in the crash. The pilot, Michael Tomlinson, also died in the accident. Two other passengers, Michael Rives and Monica Hancock, survived but sustained injuries.

¶ 3. Michael Tomlinson, April Branning, Michael Rives and others were at Swayze's Bar on the night of the plane crash. At Swayze's, Tomlinson showed a videotape recording of a flight with himself as a pilot. The flight had taken place earlier that day. Michael Tomlinson invited April Branning, Michael Rives and Monica Hancock to go with him on a night flight. The four left Swayze's Bar and drove to John Bell Williams Airport. Michael Tomlinson told the passengers that he was the manager of the airport. He used his keys to open the hangar which contained the airplane owned by Tomlinson Avionics and removed the plane. Michael Tomlinson operated the airplane as pilot in command. Upon departing the runway Michael Tomlinson failed to maintain proper altitude which resulted in the airplane impacting a group of trees near the airport and crashing to the ground. Michael Tomlinson had a blood alcohol level of .122%, which exceeds the legal limit to operate an airplane or motor vehicle.

¶ 4. Hinds Community College District ("HCCD") is the airport authority for the John Bell Williams Airport under a long term lease from Hinds County, Mississippi. Hinds contracted with Tomlinson Avionics, Inc., on June 1, 1994, for that entity to be its airport manager and a "Fixed Base Operator" at the John Bell Williams Airport. The terms of the Airport Manager contract called for Tomlinson Avionics to operate the airport in compliance with rules and regulations prescribed by Hinds, as well as those promulgated by the United States and the State of Mississippi.

¶ 5. The contract required Tomlinson Avionics to log arrivals and departures, collect fees for ramp space and hangar space and for any special events occurring at the airport. The rates charged for some ramp space and some hangar space could be set by Tomlinson Avionics, but only with Hinds' concurrence. Other hangar space rental fees were set by Hinds in the contract.

¶ 6. The "fixed base operator" contract provided that Tomlinson Avionics would be the airport's aviation products and service provider. Tomlinson Avionics was leased the terminal building and a hangar in which to conduct general aviation aeronautical activities "for the use and benefit of the public." In pursuit of these activities, Tomlinson Avionics was also required to abide by Hinds'"Minimum Standards For Fixed Base Operators" for general aviation.

¶ 7. Both Hinds' officials and Tomlinson Avionics principal, Carey Tomlinson, agreed that Michael Tomlinson was the person in charge of Tomlinson Avionics' John Bell Williams Airport duties as airport manager and FBO.

¶ 8. As required by Hinds' Minimum Standards, Michael Tomlinson was Tomlinson Avionics' person on call "at hours during the day or night". This was evidenced by a brochure which was prepared by Michael Tomlinson and stated that he could be contacted by pager.

¶ 9. The beneficiaries of April Branning filed suit in the Circuit Court of Hinds County, Mississippi on February 17, 1995 against the pilot, Michael Tomlinson, and his employer, Tomlinson Avionics, Inc. They later amended their Complaint to assert claims against Hinds Community College District, the lessee of the airport. Michael Rives filed a separate action in Hinds County Circuit Court against Hinds and the Tomlinson Defendants on January 25, 1996. His action later was consolidated with the Branning action for purposes of discovery and trial.

¶ 10. The Plaintiffs settled their claims against Tomlinson Avionics, Inc., the Estate of Michael Tomlinson and Swamel, Inc. On October 1, 1996, Hinds filed its Motion for Summary Judgment and supplemented its Motion on October 4, 1996. The Circuit Court conducted a hearing on the Motion for Summary Judgment on March 24, 1997 and entered an Order granting the Motion and dismissing all claims against Hinds on June 18, 1997. The Plaintiffs filed their Notices of Appeal raising the following issues:

I. WHETHER HINDS, AS A PUBLIC AIRPORT ADMINISTRATIVE AUTHORITY, OWED APRIL BRANNING A NONDELEGABLE DUTY TO EXERCISE DUE CARE TO PROTECT HER FROM HARM CAUSED BY FORESEEABLE THIRD PARTIES, IN THIS CASE, ITS OWN AIRPORT MANAGER AND AIRPORT SERVICES PROVIDER, OR "FIXED BASE OPERATOR."
II. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT BECAUSE THE BRANNINGS DEMONSTRATED A TRIABLE ISSUE ON WHETHER MICHAEL TOMLINSON OR TOMLINSON AVIONICS, INC. WERE HINDS' AGENTS FOR OPERATING THE AIRPORT, AND, THEREFORE, HINDS COULD BE FOUND VICARIOUSLY LIABLE UPON A FULL TRIAL OF THE CASE.
III. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT BECAUSE THE BRANNINGS' CLAIMS DO NOT FALL WITHIN THE "DISCRETIONARY FUNCTIONS" OR "CRIMINAL ACTS" EXCEPTIONS TO THE WAIVER OF SOVEREIGN IMMUNITY UNDER THE MISSISSIPPI TORT CLAIMS ACT.
IV. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT AND FAILING TO GRANT A REASONABLE AWARD OF ATTORNEY'S FEES BECAUSE THE BRANNINGS HAD DEMONSTRATED DISPUTED FACTS ABOUT GENUINE ISSUES.

STANDARD OF REVIEW

¶ 11. Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. To prevent summary judgment, the non-moving party must establish a genuine issue of material fact by means allowable under the rule. Hernandez v. Vickery Chevrolet-Oldsmobile Co., Inc., 652 So.2d 179, 181 (Miss.1995). This Court will review de novo a decision to grant summary judgment. Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 660 (Miss.1994). If any triable issues of material fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). This Court, however, views the evidence in the light most favorable to the non-moving party. Turner v. Johnson, 498 So.2d 389, 390 (Miss.1986).

LEGAL ANALYSIS
I. WHETHER HINDS, AS A PUBLIC AIRPORT ADMINISTRATIVE AUTHORITY, OWED APRIL BRANNING A NONDELEGABLE DUTY TO EXERCISE DUE CARE TO PROTECT HER FROM HARM CAUSED BY FORESEEABLE THIRD PARTIES, IN THIS CASE, ITS OWN AIRPORT MANAGER AND AIRPORT SERVICES PROVIDER, OR "FIXED BASE OPERATOR."
II. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT BECAUSE THE BRANNINGS DEMONSTRATED A TRIABLE ISSUE ON WHETHER MICHAEL TOMLINSON OR TOMLINSON AVIONICS, INC. WERE HINDS' AGENTS FOR OPERATING THE AIRPORT, AND, THEREFORE, HINDS COULD BE FOUND VICARIOUSLY LIABLE UPON A FULL TRIAL OF THE CASE.

¶ 12. In their first two assignments of error, the appellants contend that by statute, Hinds is deemed a "municipality" operating the airport. Citing Clark v. St. Dominic-Jackson Mem. Hosp., 660 So.2d 970 (Miss.1995), the appellants state that Mississippi requires all persons to exercise reasonable care in preventing foreseeable injuries to persons coming within the zone of danger.

¶ 13. The appellants argue that traditional negligence rules apply to aviation and "due care" requires a higher degree of caution because of the gravity of the potential harm capable of being inflicted by aircraft. Further, the appellants state that in applying the ordinary negligence principles to municipal operations, the duty to take due care in its operations has long been viewed as non-delegable.

¶ 14. The appellants state that while there are no Mississippi cases specifically addressing the delegation of airport operations, there is no obvious reason to create an exception for airports. Examples given by the appellants are: the operation of wharves by a city carries with it the non-delegable duty to maintain and inspect. See, e.g., Warner v. City of Bay St. Louis, 408 F.Supp. 375 (S.D.Miss.1975), aff'd 552 F.2d 583 (5th Cir.1997). Relying on cases from other jurisdictions the appellants state that other federal courts have denominated the duty of care in operating airports as non-delegable. Colmenares Vivas v. Sun Alliance Ins. Co., 807 F.2d 1102 (1st Cir.1986) (applying Puerto Rico law); Indamer Corp. v. Crandon, 196 F.2d 5 (5th Cir.1952) (applying Florida law).

¶ 15. Generally, the appellants contend, a duty is not delegable to another person because of the nature and importance of the duty. In this case, the appellants argue that Hinds included FAA regulations as part of its Airport Manager contract. Further, the appellants state that while these rules may not be coterminous with "due care" Hinds' failure to comply with the rules would be some evidence of negligence, and might amount to negligence per se.

¶ 16. The appellants contend that the main consideration is the importance of the duty to the public. Given Hinds' awareness of the gravity of potential harm and its status...

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