Miree v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation526 F.2d 679
Docket Number74-3822,74-3864,No. 74-3670,74-3870,74-3881.,74-3670
PartiesGeorge Henson MIREE et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees. Judith Anita PHILLIPS, widow of David Emanuel Phillips, deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Third-Party Plaintiff-Appellee. DeKALB COUNTY, GEORGIA, Defendant-Appellee, v. MACHINERY BUYERS CORP. et al., Third-Party Defendants-Appellees. William Michael FIELDS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, DeKalb County, Georgia, et al., Defendants-Appellees. FIREMAN'S FUND INSURANCE COMPANY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, DeKalb County, Georgia, et al., Defendants-Appellees. Pearlie CHAISSON, Plaintiff-Appellee, v. SOUTHEAST MACHINERY, INC., Defendant and Third-Party Plaintiff-Appellant, v. UNITED STATES of America et al., Third-Party Defendants-Appellees.
Decision Date05 April 1976

Hugh M. Dorsey, Jr., Jule W. Felton, Jr., Atlanta, Ga., Gilbert E. Johnston, Alan W. Heldman, Birmingham, Ala., for plaintiffs-appellants in 74-3670.

John W. Stokes, U.S. Atty., William D. Mallard, Jr., Asst. U.S. Atty., Atlanta, Ga., George M. Fleming, Trial Atty., U.S. Dept. of Justice, Morton Hollander, Ronald R. Glancz, Washington, D.C., for U. S. A.

W. Meade Burns, Jr., F. Clay Bush, Atlanta, Ga., Wendell K. Willard, Decatur, Ga., for DeKalb County.

J. Arthur Mozley, Atlanta, Ga., for S. E. Machinery, Machinery Buyers Corp. and Fireman's Fund Ins. Co.

Baxter H. Finch, Atlanta, Ga., for defendants-appellees in 74-3670.

Robert W. Patrick, Jr., Atlanta, Ga., Herbert S. Falk, Jr., Greensboro, N.C., for defendants-appellees in 74-3670 and Fields.

A. Russell Blank, Atlanta, Ga., for plaintiff-appellant in 74-3822.

Robert M. Travis, William Q. Bird, Atlanta, Ga., for plaintiff-appellant in 74-3864.

Robert Stringer, Decatur, Ga., for Chaisson.

Before GODBOLD, DYER and MORGAN, Circuit Judges.

Rehearing En Banc Granted April 5, 1976.

LEWIS R. MORGAN, Circuit Judge:

On February 26, 1973, a Lear Jet crashed shortly after take-off from the DeKalb-Peachtree Airport. The alleged cause of the crash was the ingestion of a large number of birds swarming over the airport and adjacent county garbage dump. Damage was substantial; all passengers were killed, the plane was destroyed, an individual on the ground was severely injured by burning jet fuel that fell from the disabled plane shortly before crashing, and property at the crash site was extensively damaged. Separate actions were brought by the passengers' survivors,1 the burn victim,2 the owner of the plane,3 and the owner of the property at the crash site.4 The various plaintiffs, suing in diversity, asserted theories of negligence, nuisance, and breach of contract. Defendant DeKalb County moved to dismiss on grounds that it was immune from suit under Georgia Law. Defendant's motion was granted, and the plaintiffs appealed.


The plaintiffs present a prima facie case of negligence that would certainly survive a motion to dismiss in the absence of any immunity question. The essence of their claim is that large numbers of birds had flocked around the garbage dump adjacent to the airport for a considerable period of time, that the county was aware of the bird problem prior to the crash, and that birds had interfered with planes on prior occasions. All this, of course, is to no avail if counties are immune from being sued in negligence. Relying heavily on three cases, the plaintiffs contend that counties are not immune from negligence suits. First, they argue that the Uniform Airports Law (UAL)5 was held to constitute a statutory waiver of municipal immunity in Caroway v. City of Atlanta, 85 Ga.App. 792, 70 S.E.2d 126 (1952), a case involving airport negligence. Next, they cite Southern Airways v. DeKalb County, 102 Ga.App. 850, 118 S.E.2d 234 (1960), for the proposition that suits may be maintained against counties for breach of contract under the UAL, because operation of an airport is a proprietary function. Finally, they tie up the argument with a quotation from Taylor v. King, 104 Ga.App. 589, 122 S.E.2d 265 (1961), to the effect that for immunity purposes there is no distinction between municipalities and counties in cases involving airports authorized under the UAL. We must conclude, however, that when read in context of the surrounding case law and statutory framework, these cases stand for much narrower propositions.

An examination of the statutory bases of immunity for counties and municipalities reveals distinctly different provisions. County immunity is provided for in Ga. Code Ann. § 23-1502. "A county is not liable to suit for any cause of action unless made so by statute." While almost as succinct in its language, the provision for municipal immunity in Ga. Code Ann. § 69-301 is not nearly so unequivocal. "Municipal corporations shall not be liable for a failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they shall be liable."

The operational distinction between these statutes has long been recognized by the Georgia courts. The second sentence of the municipal immunity statute has been consistently read to waive immunity whenever a municipality undertakes a proprietary function. Thus, in Ware County v. Cason, 189 Ga. 78, 79, 5 S.E.2d 339 (1939), the Georgia Supreme Court held a county hospital immune to suit even though prior cases had found no immunity for city hospitals.

There is a statute which, on the basis of distinction between governmental functions of municipal corporations and ministerial acts, inhibits municipal liability for damages flowing from breach of duty in regard to the former, and imposes municipal liability for breach of duty in regard to the latter. Code, § 69-301; Cornelisen v. Atlanta, 146 Ga. 416 (91 S.E. 415). But there is no such statute relating to counties and no statute making a county liable to suit for tort based on negligence in operating a hospital causing injury to a pay patient therein.

Accord, Purser v. Dodge County, 188 Ga. 250, 251-52, 3 S.E.2d 574 (1939).

It follows that the requirements for resisting immunity in cases involving municipal and county airports is significantly different. To sue a municipal airport, a plaintiff need only show that the operation of a municipal airport is a proprietary function; to sue a county airport, a plaintiff must show an express statutory waiver of immunity. When read in light of this distinction it becomes apparent that the extensive discussion of the UAL in Caroway v. City of Atlanta, 85 Ga.App. 792, 70 S.E.2d 126 (1952), was not intended to demonstrate that the statute waived immunity. Rather, the intent was to demonstrate that, despite language in the UAL which could have been read to say that the operation of airports is a governmental function, the operation of an airport is a proprietary function, and, accordingly, is susceptible to suit.

In Southern Airways v. DeKalb County, 102 Ga.App. 850, 118 S.E.2d 234 (1960), the court made considerable use of the proprietary function discussion in Caroway, but not, as suggested by the plaintiff, for the purpose of finding either that the UAL constitutes a statutory exception or that the county participation in a proprietary function waives immunity. Rather, the purpose of the court's inquiry into whether the operation of an airport constituted a proprietary function was to fit this case within the framework of a line of Georgia cases that allow County Commissioners to enter into binding contracts extending beyond their term of office only if the contract relates to a proprietary function of the county. Id. at 854-855, 118 S.E.2d 234.

On motion for rehearing the court in Southern Airways clarified its position as to the county's lack of immunity from suit on the contract. The court ruled that since the UAL expressly authorizes the county to contract, the logical inference of that statute is that the county may be sued for breach of contract. This is consistent with several other Georgia decisions which hold that statutory authority to contract is necessarily a statutory waiver of immunity to suit for breach. Hancock County v. Williams, 230 Ga. 723, 198 S.E.2d 659 (1973); Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966).

Finally, an examination of Taylor v. King, 104 Ga.App. 589, 122 S.E.2d 265 (1961), reveals that the language relied upon by the plaintiffs was taken out of context. The Taylor case involved alleged negligence by a municipal airport. Accordingly, it was necessary for the plaintiffs to demonstrate that operation of the airport was a proprietary function to avoid immunity. Relying on the Caroway and Southern Airways cases, the court concluded that the operation of this municipal airport was a proprietary function. In the course of its discussion of the Southern Airways case the court said: "For this purpose, there is no distinction between municipal and county liability." The antecedent to which "this purpose" refers is not, however, determination of immunity, as suggested by the plaintiffs, but only determination of whether or not an airport is a proprietary function.6 An examination of the Uniform Airports Law reveals no language that even vaguely suggests that the legislature intended to waive county immunity for negligence in the operation of airports. Having been cited no other statutory authority, we necessarily must conclude that the county is immune from suit on theory of negligence.


The second theory propounded by the plaintiffs is that the county is liable for special damages resulting from the maintenance of a nuisance. The district court overruled this theory, holding that in the absence of statutory authority to be sued, the...

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