Quinn v. Mississippi State University, No. 94-CA-01160-SCT

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: JAMES L. ROBERTS, Jr.; PRATHER, C.J., and PITTMAN, P.J., and SMITH; BANKS, J., concurs in part and dissents in part with separate written opinion joined by SULLIVAN, P.J., and McRAE; McRAE, J., concurs in part and dissents in part with separate writt
• Citation: 720 So.2d 843
• Docket Number: No. 94-CA-01160-SCT
• Decision Date: 02 July 1998
• Parties: 130 Ed. Law Rep. 1362 Mike and Gayra QUINN, individually and as Parents and Next Friends of Brandon Quinn v. MISSISSIPPI STATE UNIVERSITY; Dr. Donald Zacharias, President of Mississippi State University; Ron Polk, Mississippi State University Head Baseball Coach; and Steve Smith, Mississippi State University Assistant Baseball Coach and Director of Mississippi State University Bulldog Baseball Camp for 1992.

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720 So.2d 843 130 Ed. Law Rep. 1362 Mike and Gayra QUINN, individually and as Parents and Next
Friends of Brandon Quinn
v.
MISSISSIPPI STATE UNIVERSITY; Dr. Donald Zacharias,
President of Mississippi State University; Ron Polk,
Mississippi State University Head Baseball Coach; and Steve
Smith, Mississippi State University Assistant Baseball Coach
and Director of Mississippi State University Bulldog
Baseball Camp for 1992. No. 94-CA-01160-SCT. Supreme Court of Mississippi. July 2, 1998.

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Thomas L. Sweat, Jr., Corinth, for Appellants.

Michael C. Moore, Attorney General, Johnnie M. Haley, Special Asst. Atty. Gen., R. Lloyd Arnold, Asst. Atty. Gen., Robert G. Jenkins, Special Asst. Atty. Gen., Jackson, for Appellees.

En Banc.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶1 Brandon Quinn was injured when hit with a baseball bat in the mouth by an instructor at the Mississippi State Baseball Camp on June 22, 1992. Quinn sued the university, its president, the head baseball coach, and one of the assistant coaches who was also the director of the camp, for injuries he sustained as a result of being hit with the bat. The claim was based on negligence on the part of the university and its coaches, or, in the alternative, a breach of implied contract for failing to provide baseball instruction to Brandon in a safe manner.

¶2 The defendants moved for summary judgment based on sovereign immunity and qualified immunity for public officials. In response to the assertion of breach of implied contract, the defendants assert that the release signed by the Quinns absolves them from any liability.

¶3 Aggrieved by the lower court's grant of summary judgment, the Quinns appealed to this Court, raising the following issues:

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I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT IN FAVOR OF MISSISSIPPI STATE UNIVERSITY, DR. DONALD ZACHARIAS, RON POLK, AND STEVE SMITH BASED ON SOVEREIGN IMMUNITY AND QUALIFIED IMMUNITY.

II. ALTERNATIVELY, WHETHER THE TRIAL COURT ERRED IN NOT FINDING AN IMPLIED CONTRACT BETWEEN BRANDON QUINN AND MISSISSIPPI STATE UNIVERSITY.

III. WHETHER THE STATUTE OF LIMITATIONS HAD RUN ON THE QUINNS' CLAIM.

STATEMENT OF THE FACTS

¶4 Brandon Quinn, then twelve years old, was attending the Mississippi State Baseball Camp in Starkville, Mississippi, on June 22, 1992. While attending the camp, Brandon was being instructed on hitting by Coach Keith Kosh, and was watching a demonstration by Coach Kosh on how to approach hitting baseballs off of a tee. Brandon claims that Coach Kosh, without warning to the campers, swung the baseball bat. The bat hit Brandon in the mouth, knocking out one permanent tooth and permanently damaging four other teeth.

¶5 On June 20, 1994, Mike and Gayra Quinn, individually and as parents and next friends of Brandon Quinn, filed suit in Oktibbeha County Circuit Court against Mississippi State University (MSU); Dr. Donald Zacharias, President of MSU; Ron Polk, MSU Head Baseball Coach; Steve Smith, MSU Assistant Baseball Coach and Director of the MSU Bulldog Baseball Camp for 1992; and Keith Kosh, Bulldog Baseball Camp Coach and/or Assistant for 1992. The Quinns sought damages for the injury to Brandon's mouth. The theory under which the complaint was brought was negligence and, in the alternative, that the defendants breached an implied contract with the plaintiffs to provide baseball instruction to Brandon Quinn in a safe manner.

¶6 MSU responded by stating Brandon, with the consent of his parents, attended a youth baseball camp sponsored by MSU. The Quinns paid a fee to allow the applicant to attend the baseball camp. Mike and Brandon both signed a document which states in part:

The undersigned applicant and parent/guardian understand that the applicant will be engaging in physical activity during the program which contains an inherent risk of physical injury and the undersigned assumes the risk, indemnifies, and releases Mississippi State Baseball Camp, its officers, Directors, Agents, and Employees from any and all liability for personal injury arising out of the applicant's participation in the Camp program. ¹

¶7 Polk, Smith, and Zacharias, respectively the university head baseball coach, the university assistant baseball coach (and director of the baseball camp), and the university President, claim they were not at the scene of the incident at the time of the injury, did not witness the incident, took no actions and did not fail to take any actions relevant to the injury to Brandon, and were performing in their official capacities on the date of the incident as state employees within the course and scope of their state employment.

¶8 In July of 1994, MSU, Dr. Donald Zacharias, Ron Polk and Steve Smith filed a motion to dismiss based on the doctrines of sovereign immunity and qualified immunity for public officials. A hearing was held on September 8, 1994, on this motion, and an Order Granting Motion for Summary Judgment in favor of the defendants was issued on October 14, 1994. The Order did not specify the grounds upon which it was issued. It is from the Order Granting Motion for Summary Judgment that the Quinns have appealed to this Court.

¶9 The Quinns assert that there are genuine issues of material fact regarding the relationship between Brandon and MSU, as to the implied contract and release, which should have survived a motion for summary

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judgment and been determined by a trier of fact at trial. DISCUSSION OF THE ISSUES

A. Summary judgment

1. Standard of review

¶10 The standard for reviewing the grant or denial of summary judgment is the same standard on appeal as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court's grant or denial of summary judgment and examines all

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. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.

McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996) (quoting Mantachie Natural Gas Dist. v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992); Clark v. Moore Memorial United Methodist Church, 538 So.2d 760, 762 (Miss.1989)).

2. Timeliness of filing of affidavits

¶11 The Quinns filed their complaint alleging inter alia that the defendants were negligent both in their operation of the baseball camp at Mississippi State University and employment and supervision of camp instructor Keith Kosh. Alternatively, the Quinns alleged that they entered into an implied contract with the university by paying the $265 fee for their son, Brandon, to improve his playing skills in the sport of baseball. The Quinns asserted that the defendants breached this implied contract, which required the safety of business invitees, by employing an instructor that failed to conduct the camp and its activities in a safe manner.

¶12 The defendants responded with a motion for summary judgment and filed a brief with the court on the day of the motion hearing. On that date, the judge provided the Quinns with thirty days to respond to the defendants' brief. The Quinns submitted affidavits with their brief. ²

¶13 The defendants on appeal assert that the trial judge incorrectly allowed the Quinns to submit the affidavits because their filing was untimely according to Rule 56(c) of the Mississippi Rules of Civil Procedure. The pertinent portion of Rule 56(c) reads: "The adverse party prior to the day of the hearing may serve opposing affidavits." M.R.C.P. 56(c) (emphasis added). The defendants' position is that affidavits must be served prior to the day of the summary judgment hearing. The Quinns submitted their affidavits after the hearing when they filed their response to the defendants' brief in support of their motion for summary judgment. According to the defendants, any consideration of the affidavits by the trial judge of those affidavits is error.

¶14 In Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 147 (Miss.1994), this Court discussed the striking of affidavits not timely filed. There the Court stated that the Mississippi Rules of Civil Procedure flow from the Federal Rules of Civil Procedure. The Court quoted from Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), where the United States Supreme Court interpreted Rules 56(c) and 6(b) in a case where the nonmovant in a motion for summary judgment did not file opposing affidavits:

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Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.R.Civ.P. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings:

"When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request...