COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 06/18/2013 TRIAL JUDGE: HON. JAMES LAMAR ROBERTS JR. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO APPELLEE.
FOR APPELLANT: JAMES ROGER FRANKS JR. WILLIAM RUFUS WHEELER JR.
FOR APPELLEE: MICHAEL JEFFREY WOLF.
BEFORE LEE, C.J., CARLTON AND MAXWELL, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
¶1. Robert Calonkey fell through a hole in a catwalk above the Amory High School stage. He sued the Amory School District (District), claiming its negligent maintenance of the theater led to his injuries. The District moved for--and was granted--summary judgment based on governmental immunity.
¶2. The circuit judge found the dangerous condition of the catwalk " obvious" and applied the Mississippi Tort Claims Act's obvious-dangerous-condition exemption to hold the District could not be held liable. But the obvious-dangerous-condition exemption did not apply to Calonkey's claim. Rather, the obvious nature of a dangerous condition only bars recovery for claims tat the government failed to warn the plaintiff of the dangerous condition. It does not bar a claim, like Calonkey's, that the government's negligence led to the dangerous condition.
¶3. Nor was Calonkey's claim barred due to discretionary-function immunity--the circuit judge's alternate reason for granting summary judgment. When deciding if a claim is based on the performance of a discretionary function and thus barred by discretionary-function immunity, intervening precedent directs we look to the governmental function involved in the claim, not just the specific acts performed. Calonkey's claim involves the governmental function to maintain school property, which the District is mandated to perform. Thus, Calonkey's claim that the District failed to carry out its duty to maintain the theater cannot be said to be based on the
District's performance of a discretionary function.
¶4. Because the District is not immune under the Mississippi Tort Claims Act (MTCA), and because fact issues surround the District's non-MTCA defense, we reverse the grant of summary judgment to the District. We remand Calonkey's claim to the circuit court.
I. Calonkey's Fall