Miree v. United States, Civ. No. 19293 and No. 19412

• Citation: 490 F. Supp. 768
• Decision Date: 20 February 1980
• Docket Number: C74-1069A,C75-218A and C75-320A.,C74-291A,C74-1272A,C74-24A,Civ. No. 19293 and No. 19412,C74-1074A
• Parties: George Henson MIREE et al. v. UNITED STATES of America et al.
• Court: U.S. District Court — Northern District of Georgia

490 F. Supp. 768

George Henson MIREE et al. v. UNITED STATES of America et al.

Civ. No. 19293 and Nos. 19412, C74-24A, C74-291A, C74-1069A, C74-1074A, C74-1272A, C75-218A and C75-320A.

United States District Court, N. D. Georgia, Atlanta Division.

February 20, 1980.

COPYRIGHT MATERIAL OMITTED

Hugh M. Dorsey, Jr., Michael Brooks, Jule W. Felton, Jr., Hansell, Post, Brandon & Dorsey, Atlanta, Ga., Gilbert E. Johnston, Birmingham, Ala., for plaintiffs Miree.

Claude R. Ross and Baxter H. Finch, A. Russell Blank, Ross & Finch, Atlanta, Ga., for plaintiff Phillips.

J. Arthur Mozley, Phillips, Hart & Mozley, Atlanta, Ga., for Fireman's Fund, Southeast Machinery, and Semac Industries.

Joe C. Freeman, Jr., Richard P. Schultz, Paul M. Hawkins, Freeman & Hawkins, Atlanta, Ga., Kevin S. King, Trauner, King & Cohen, Atlanta, Ga., for plaintiffs Fields and Local Properties.

Herbert S. Falk, Jr., Falk, Carruthers & Roth, Greensboro, N. C., for plaintiffs Fields and Howard & C&S, et al.

Robert W. Patrick and Robert M. Travis, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for plaintiff Sellfors.

George H. Freisem, III, Glover McGhee, Swift, Currie, McGhee & Hiers, Atlanta, Ga., for plaintiffs Howard, Nicholson, et al.

Alan J. Konigsberg, Milton G. Sincoff, Donald Kreindler, Kreindler & Kreindler, New York City, Stanley E. Galkin, Atlanta, Ga., for plaintiffs Howard & C&S, et al.

N. Forrest Montet, Montet & Smith, Atlanta, Ga., for defendant Machinery Buyers.

Cecile Hatfield, George M. Fleming, Burton Lee, Nicholas Gilman, Trial Attys., Torts Branch, Civil Division, U. S. Dept. of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Douglas P. Roberto, William D. Mallard, Asst. U. S. Attys., Atlanta, Ga., for United States.

Meade Burns, J. M. Hudgins, IV, Long, Weinberg, Ansley & Wheeler, Atlanta, Ga., for defendants Manget and DeKalb County.

George Dillard, Decatur, Ga., for defendant DeKalb County.

ORDER

O'KELLEY, District Judge.

Following a tragic airplane accident at DeKalb-Peachtree Airport in which all seven persons on board were killed and one bystander seriously injured, a host of complaints, counterclaims, cross-claims, and third-party complaints were filed separately by and against all those even remotely connected with the incident. A number of plaintiffs commenced their suits against, among others, the United States and DeKalb County, accusing the two of negligence in the operation of the airport. They further alleged that DeKalb County was liable for the maintenance of a nuisance and for the breach of the provisions of its grant agreements with the United States, which required the county to operate the airport safely in return for federal funds to help finance improvements on airport grounds. DeKalb County later moved to dismiss these claims on the ground that it was immune from suit under Georgia law. These related suits all came to a virtual standstill, except for completion of discovery, while this court, the Fifth Circuit Court of Appeals, the United States Supreme Court, and the Georgia Supreme Court decided whether DeKalb County, as a political subdivision of the state of Georgia, could be sued by these private plaintiffs. This court held that the county was immune, Miree v. United States, No. 19293 et al. (N.D.Ga. June 27, 1974), but it was not until four years of polemics later, after three additional courts had their say, that this court's initial order was affirmed and the county was dismissed. Miree v. United States, 588 F.2d 453 (5th Cir. 1979).

Since the drawn-out resolution of that issue in the county's favor, things have taken an expected turn. Henry F. Manget, Jr. Manget, the manager of the DeKalb-Peachtree Airport at the time of the accident, and a defendant or third-party defendant in four companion cases, has moved for summary judgment on the ground that as a DeKalb County official he too is immune from suit. The United States, in the meantime, moved for leave to file third and fourth-party complaints against the county for contractual and/or tortious indemnity and contribution. After a hearing held on August 15, 1979, to consider the issues raised by the government's motion, the court granted the motion, while reserving judgment on a motion to dismiss these claims filed by DeKalb County. The county's motion has since been modified to request, in the alternative, summary judgment. Also left pending was a motion filed by the United States requesting that all these cases be consolidated for trial. These motions have been submitted, and in some cases resubmitted, to the court and are now ripe for decision.

Manget's Motion for Summary Judgment

Manget has been named a defendant or a third-party defendant in four companion suits in claims filed by William Michael Fields, Southeast Machinery, Inc., Fireman's Fund Insurance Co., and Semac Industries, Inc. the plaintiffs. The theory of liability asserted in each is virtually identical: Manget, as the manager of the airport, was under a duty to maintain and supervise its ground operations; as part of his official duties, he was responsible for ensuring for the safety of airport patrons that the approaches to and clear zones of the airport were unobstructed; he breached this duty when he failed to remedy the hazard created by the flocks of birds congregating at an open garbage dump near a runway used frequently by jet aircraft; notwithstanding his appreciation of the substantial danger posed by air strikes and his knowledge of recent strikes in the proximate area, Manget neglected to warn visiting airmen of this hazard; and his negligent behavior, in the face of this continuing risk of tragic consequences, constitutes willful and wanton conduct in flagrant disregard of his ongoing duty to airport patrons.

Manget denies any negligence on his part, but his principal defense up to this point has been the derivative immunity from private suit extended public officials for the tortious consequences of acts done in an official capacity. Manget contends that he is immune from suit for any breach of his duties as manager of the county airport. Aside from his immunity defense, he further maintains that as an individual he owed no duty to airport patrons and, therefore, cannot be held personally liable.

Before addressing the merits of Manget's defenses, the court deems it wise to eliminate one potential source of confusion. The distinction drawn by Manget between his personal and official liability is misleading. Manget's only exposure to tort liability for this accident is through his alleged misfeasance or nonfeasance while serving as airport manager. Assuming that the plaintiffs' allegations are true, and are established by a preponderance of the evidence, Manget can be held personally liable for the damages arising out of a breach of his official duty, unless of course he is immune from suit. See Florida State Hospital v. Durham Iron Co., 194 Ga. 350, 353, 21 S.E.2d 216 (1942).

His claim of immunity springs from two sources. He first contends that he is only the nominal defendant or third-party defendant in these suits, which are actually against the State of Georgia, because, if the plaintiffs are successful, any judgment would have to be satisfied from the state treasury. Manget insists that the suits filed against him are nothing but a thinly disguised ruse by the plaintiffs to circumvent the county's successful claim of immunity. Were this the case, then the claims against Manget should be dismissed with prejudice, since the question of the county's complete immunity from liability for this accident has already been resolved in the county's favor. It is a well-settled principle that, irrespective of whom the named defendant is, an action in which a judgment for the plaintiff would affect or control property or action of the state is against the state and thus cannot proceed without its consent. E. g., Evans v. Just Open Government, 242 Ga. 834, 251 S.E.2d 546 (1979); Crowder v. Department of State Parks, 228 Ga. 436, 185 S.E.2d 908 (1971), cert. denied, 406 U.S. 914, 92 S.Ct. 1768, 32 L.Ed.2d 113 (1972); see Ga.Code Ann. § 23-1502. But the plaintiffs do not take issue with this principle; they contend that their claims are predicated solely upon Manget's personal liability for the tortious consequences of his official conduct, which brings the court to the second facet of Manget's immunity defense.

Manget also contends that even though, as a general principle, the plaintiffs' claims may be brought against him personally, he is still immune from liability for simple negligence since the complained-of acts were committed in the exercise of his discretionary authority. Only if he is guilty of fraud, corruption, or willful and wanton behavior, Manget continues, can he be held personally liable for his discretionary acts as a public official. Upon this foundation, Manget concludes that he is immune because the plaintiffs have not accused him of any acts that might abrogate his qualified immunity or, alternatively, because even if he is accused of such flagrant conduct, the record shows conclusively that he is not guilty of any fraudulent, corrupt, or willful and wanton behavior. The plaintiffs, on the other hand, contest both Manget's characterization of his act as discretionary and his contentions that they have not alleged wanton conduct, or that this court can even decide as a matter of law on a motion for summary judgment that Manget is not guilty of willful and wanton misconduct. They assert first that the qualified immunity extended public officials is contingent upon their performance of discretionary acts. From this general proposition the plaintiffs argue that well before the accident occurred Manget received orders from the Federal Aviation Administration to remedy the hazard created by the birds and that, henceforth, whatever action he took to comply with this directive did not necessitate an exercise of...