McKay By and Through McKay v. Boyd Const. Co., Inc.

• Decision Date: 28 November 1990
• Docket Number: No. 07-CA-58938,07-CA-58938
• Citation: 571 So.2d 916
• Parties: Timothy A. McKAY, By and Through His Guardian and Next Friend, Thomas G. McKAY v. BOYD CONSTRUCTION COMPANY, INC., and Mississippi State Highway Commission.
• Court: Mississippi Supreme Court

Page 916

571 So.2d 916

Timothy A. McKAY, By and Through His Guardian and Next Friend, Thomas G. McKAY v. BOYD CONSTRUCTION COMPANY, INC., and Mississippi State Highway Commission.

No. 07-CA-58938.

Supreme Court of Mississippi.

Nov. 28, 1990.

Charles P. Reiter, Milwaukee, Wis., Paul Snow, Paul Snow & Associates, Jackson, and David J. Slaughter, Madison, for appellant.

Leland S. Smith, III, McCoy Wilkins Noblin & Stephens, Jackson, and Walter E. Wood, Pickett Wood & Valentine, Ridgeland, for appellees.

Before ROY NOBLE LEE, C.J., and ROBERTSON and ANDERSON, JJ.

ANDERSON, Justice, for the Court:

Timothy McKay, by and through his guardian and next friend, Thomas G. McKay (collectively McKay) appeals from summary judgments rendered by the Circuit Court of Hinds County. The lower court held that McKay was barred from bringing an action in tort for money damages against the Mississippi Highway Commission and Boyd Construction Company for injuries he suffered while traveling on U.S. Highway 49 in Simpson County.

Course of Proceedings

On December 2, 1983, McKay filed a complaint in Simpson County Circuit Court naming as defendants Boyd Construction Co., Inc. (hereinafter Boyd); Hyde Construction Co.; Cook Construction; and Mississippi State Highway Department.

Subsequent to this filing, the Highway Department filed its Motion To Dismiss Or In The Alternative Motion For Summary Judgment Pursuant To Mississippi Rules of Civil Procedure 12 And 56. It also filed its defenses and separate answers to McKay's complaint.

Boyd, on January 10, 1984, likewise, filed its Answers and four defenses to McKay's complaint. On the same day, Boyd also filed his Petition for Removal from Simpson County Circuit Court to United States District Court for the Southern District of Mississippi, Jackson Division.

On October 17, 1984, McKay took a voluntary nonsuit as to Hyde and Cook. On November 21, 1984, Judge Tom S. Lee entered his memorandum opinion finding that the Highway Department is not an entity capable of being sued. The District Court also asserted that if McKay's complaint were amended it would still fail because the Highway Commission ¹ also is protected by the doctrine of sovereign immunity. The district court also found that Boyd had received a full and final release from the Highway Commission, thereby releasing it from all liability.

The district court, on December 7, 1984, entered its order granting summary judgment to Boyd and an involuntary dismissal to the Highway Commission. The court "dismissed" the action as to Boyd based on an affidavit from the President of Boyd. This affidavit stated that Boyd had gotten a full and final release from the Highway Commission and that there were no genuine issues of material fact in McKay's claim against Boyd.

On December 17, 1984, McKay appealed the district court's order to the Fifth Circuit Court of Appeals. After the filing of briefs and oral argument, on August 30, 1985, the Court of Appeals reversed the district court and held that the 11th Amendment to the Constitution of the United States prevented a Federal District Court from exercising removal jurisdiction in a case in which a state agency was a party defendant. McKay v. Boyd Construction, Co., Inc., 769 F.2d 1084, 1087 (5th Cir.1985). The court concluded that it was necessary to remand the claims for both the Highway Commission and Boyd because joint liability had been alleged. In the end, the court remanded the case to the district court with directions to remand it to the state court. Id. at 1088.

In accordance with this order, on September 6, 1985, the district court remanded the case to the Simpson County Circuit Court. On October 30, 1985, Boyd filed a Motion for Summary Judgment with an affidavit and a supporting brief in Simpson County Circuit Court. Subsequently, this case was transferred to the Hinds County Circuit Court, First Judicial District based on jurisdictional venue requirements of Miss.Code Ann. Sec. 11-45-1 (1972), which requires that suits against the state be brought in the court which holds its sessions at the seat of government.

On February 27, 1987, the Circuit Court of Hinds County, the Hon. Charles Barber presiding, granted summary judgment in favor of Boyd. In its order, the court concluded that Boyd had received a full final and complete release and no genuine issue of material fact existed. He also found that there were no genuine issues of material fact.

On November 3, 1987, the Hinds County Circuit Court, the Hon. James Bell presiding, entered an order allowing McKay to file an amended complaint. McKay filed this amended complaint on November 17, 1987. This amended complaint incorporated the public nuisance concept along with the earlier averments.

On November 25, 1987, Judge Bell, by special appointment, granted summary judgment in favor of the Highway Department. The trial court granted this motion because the governmental entity was protected by the doctrine of sovereign immunity and thus was incapable of being sued.

McKay filed his notice of appeal to this Court from that order on November 30, 1987.

Why was McKay in the Court in the first place?

The Facts

On June 15, 1967, two-year-old Timothy McKay was a passenger in an automobile During the noon hour their vehicle strayed slightly to the left of the four-lane divided highway and made contact with the blunt edge of the concrete abutment for the Strong River Crossing in Simpson County. This abutment was located approximately 23 inches from the traversed portion of the access road which at that time had posted speed limits of 65 mph. In this tragic crash, everyone except McKay was killed instantly. McKay, however, suffered severe brain stem injuries. The injury rendered him blind, mentally incompetent, incapable of communicative speech, no motor abilities, and incapable of caring for his day-to-day needs. He is totally dependent upon others for his care. Presently, McKay is an orphan because his father died in 1965. ²

driven by his mother, Elizabeth McKay. They were traveling from Wisconsin to visit Elizabeth's sister in New Orleans. Also on this trip were McKay's grandmother, an older brother and an older sister.

On December 2, 1983, McKay filed suit in Simpson County Circuit Court alleging that the "paved portion of the South bound lanes of U.S. Highway 49 approaching the Strong River Bridge in Simpson County was negligently constructed [because] it was unduly pitched to the left tending to cause vehicles using the area to drift leftward toward the bridge abutment."

McKay also asserted that the defendants, in constructing this highway violated rules and regulations pertaining to safety standards set forth by the federal government. The defendants, according to McKay, failed to provide guardrails to prevent head-on contact with abutments in the right of way; therefore, he was denied the "usual right to travel in safety which was among the usual rights afforded to citizens using the network of U.S. Highway[s]." McKay further alleged that the defendant's conduct was the proximate cause of the injuries he sustained. And, for his injuries, McKay demanded judgment in the amount of $10 million for compensatory damages and $30 million for punitive damages along with attorneys fees, costs and other relief.

Boyd filed its answers and defenses and provided an affidavit of its president. In this affidavit, the president stated that Boyd entered into a contract with the Highway Commission on March 14, 1962. According to the contract, Boyd was responsible for "clearing and grubbing, common excavation of the roadway, construction of the Strong River bridges, and construction of the overpasses on approximately eleven (11) miles of [Highway 49] in Simpson County."

Prior to the letting of the contracts, all surveys, plans and specifications were prepared by the Highway Commission and submitted to the Federal Bureau of Public Roads (hereinafter Bureau) for its approval. But for the special provisions of the contracts which were let, all specifications came from the Red Books published by the American Association of State Highway Officials (hereinafter AASHO). Moreover, Boyd had no part in the design and specification stage of the planning; therefore, it had no control over the design and location of bridge including abutments, but its role was limited to bidding on the project as designed and approved by the Highway Commission and the Bureau.

Boyd was not paid for its work until inspections by the Highway Commission and the Bureau were conducted and written approval was given. No deviation from plans was allowed. The Bridge construction and excavation work done at the Strong River Bridge was done in this manner, and the excavation work did not have any effect in the manner in which the roadway was pitched. A second contractor did the paving, which was not completed and made ready for traffic until two years later. Boyd was not contracted to construct any guardrails. When Boyd completed its work under its contract, the Highway Commission and the Bureau inspected all of its work and the materials used. Only after these inspections did Boyd receive a full, final release from all liability under the contracts as well as from all public liability in 1963.

In response to Boyd's affidavit, McKay provided two affidavits. The affidavits provided by Henry L. Munch, President of a construction company, and Kenneth T. Kloiber, an engineer, give little information. They only assert that they read the affidavit of the president of Boyd and reviewed AASHO's guidelines for the period of time in question. Based on these readings, they refuted the president's contention that it was appropriate for Strong River Bridge to have only a 23 inch clearance. They also asserted that the bridge was not built within the AASHO Guidelines.

After hearing this evidence, the trial court granted Boyd's and the Highway Commission's motions for summary...