        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2013-CA-01290-COA

ROBERT CALONKEY                                                          APPELLANT

v.

AMORY SCHOOL DISTRICT                                                      APPELLEE


DATE OF JUDGMENT:                        06/18/2013
TRIAL JUDGE:                             HON. JAMES LAMAR ROBERTS JR.
COURT FROM WHICH APPEALED:               MONROE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 JAMES ROGER FRANKS JR.
                                         WILLIAM RUFUS WHEELER JR.
ATTORNEY FOR APPELLEE:                   MICHAEL JEFFREY WOLF
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                 SUMMARY JUDGMENT GRANTED TO
                                         APPELLEE
DISPOSITION:                             REVERSED AND REMANDED - 09/16/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., CARLTON AND MAXWELL, JJ.

      MAXWELL, .J., FOR THE COURT:

¶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 that 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.1 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.

                                         Background

       I.       Calonkey’s Fall

¶5.    Amory High School hired Calonkey to assist with the school’s production of Phantom

of the Opera. Calonkey helped with the set design, which included a metal catwalk with a

trap door that spanned the stage ten feet in the air.




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            Little v. Miss. Dep’t of Transp., 129 So. 3d 132, 138 (¶¶10-11) (Miss. 2013).

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¶6.    Calonkey visited the set on February 16, 2011. While there, he was asked by another

producer to help adjust the lights. So he climbed up on the catwalk. This was Calonkey’s

first time on the catwalk, which he had not helped build. He claims that he was unaware that

the catwalk was missing the called-for trap door—leaving a giant exposed hole in the middle.

What is more, the metal edges of the hole were dotted with metal spike-like protrusions that

should have been filed down after the catwalk was welded together. Calonkey fell through

this hole after tripping over wiring and lumber lying across the catwalk. He scraped himself

on the metal protrusions before falling ten feet to the stage.

       II.    Calonkey’s Lawsuit

¶7.    Calonkey sued the District to recover for his resulting injuries. His complaint alleged

that the District had the responsibility to ensure the set and walkways were properly

maintained so students, visitors, and others could safely walk across them. He further alleged

that, as part of this duty, the District should have covered or repaired the large hole in the

catwalk, as multiple people were to use this walkway during the theater production. And the

District’s failure to do so was negligence, which proximately caused his injuries.

¶8.    The District moved for summary judgment, asserting immunity under the MTCA’s

exemptions from liability for obviously dangerous conditions and exercises of discretionary

functions. See Miss. Code Ann. § 11-46-9(1)(d), (v) (Rev. 2012). The District also relied

on the non-MTCA statute that protects a property owner from liability for injuries to an

independent contractor caused by a danger the contractor should have known about.

¶9.    The circuit judge granted the District summary judgment, finding the District was

immune from Calonkey’s claim because the dangerous condition of the catwalk was “open


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and obvious.” But the judge noted that summary judgment would have been just as proper

based on discretionary-function immunity.

       III.   Calonkey’s Appeal

¶10.   Calonkey timely appealed, triggering this court’s de novo review. We apply the same

standard as the circuit judge. Harrison v. Chandler–Sampson Ins., Inc., 891 So. 2d 224, 228

(¶11) (Miss. 2005). Viewing the evidence in the light most favorable to Calonkey, the

nonmovant, we will affirm the grant of summary judgment “if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” M.R.C.P. 56(c). But if any triable issues of fact exist or if

we find the District was not entitled to a judgment as a matter of law, we must reverse.

Harrison, 891 So. 2d at 228 (¶11).

                                         Discussion

       I.     MCTA Exemptions

¶11.   The MTCA provides the exclusive remedy for Calonkey’s claim against the District.

Miss. Code Ann. § 11-46-7 (Rev. 2012). While section 11-46-5 generally waives sovereign

immunity for tort actions to recover money damages, section 11-46-9(1) reinstates immunity

for certain claims. Miss. Code Ann. § 11-46-5 (Rev. 2012); § 11-46-9(1).

¶12.   The circuit judge held two provisions in section 11-46-9(1) immunized the District

from Calonkey’s suit—subsection (v), which involves any claim arising out of injuries due

to dangerous conditions on public property, and subsection (d), which involves any claim

arising out of the performance of discretionary functions. But for the following reasons, we


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find neither provision prevented Calonkey from moving forward with his claim.

                A.     Obviously Dangerous Condition

¶13.     The circuit judge first applied section 11-46-9(1)(v) to find the District was immune.

Subsection (v) has two provisions. Primarily, subsection (v) shields the government from

any claim based on a dangerous condition when the condition was not due to the negligent

or willful actions of a government employee or when the government did not know about the

condition so as to be able to remedy it or warn about it. Miss. Code Ann. § 11-46-9(1)(v).

Additionally, subsection (v) prevents government liability for a failure-to-warn claim when

the dangerous condition is “obvious to one exercising due care.” Id.

¶14.     It is only this second part of subsection (v)—the obviously dangerous condition—that

the District claimed immunized it from Calonkey’s suit. But as the statute clearly states, the

fact that a dangerous condition is obvious only exempts the District from liability for the

failure to warn of the condition. Miss. Code Ann. § 11-46-9(1)(v). It does not exempt the

District from liability for causing the dangerous condition through the negligent or willful

actions of its employees. Id.; see City of Natchez v. Jackson, 941 So. 2d 865, 876 (¶33)

(Miss. Ct. App. 2006). Here, Calonkey is not seeking to hold the District liable for failing

to warn him about the hole in the catwalk. Rather, he claims the District’s negligence in

constructing and maintaining the catwalk created a dangerous condition that led to his

injuries. So even if the dangerous condition was “obvious,” this fact does not bar Calonkey’s

claim.

¶15.     But contrary to the circuit judge’s ruling, the record does not support that the

catwalk’s dangerous condition was undisputedly obvious. Instead, we find this was a


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question of disputed fact, which cannot be resolved on summary judgment. See Smith v.

Waggoners Trucking Corp., 69 So. 3d 773, 777 (¶15) (Miss. Ct. App. 2011) (citing M.R.C.P.

56(c)). Calonkey testified the catwalk was dark and covered with debris. While other

portions of his testimony suggested otherwise, as this is summary judgment, we must view

the evidence in the light most favorable to him, the nonmovant. See id. at 776-77 (¶14). And

in this light, we find Calonkey’s evidence created a fact issue whether the dangerous

condition of the catwalk was obvious to one exercising due care, which precludes summary

judgment.

              B.      Discretionary Function

¶16.   The circuit judge made the alternate ruling that the District was equally protected from

suit by section 11-46-9(1)(d), which bars claims “[b]ased upon the exercise or performance

or the failure to exercise or perform a discretionary function or duty on the part of a

governmental entity or employee thereof, whether or not the discretion be abused[.]” Miss.

Code Ann. § 11-46-9(1)(d). The circuit judge found that Calonkey’s claim was based on the

exercise of a discretionary function. He reached this conclusion by following, as he

described it, “the [Mississippi] Supreme Court’s paradigm in determining whether a function

is discretionary or ministerial.”

¶17.   But since the date of the trial judge’s decision, that paradigm has dramatically shifted.

In October 2013, the Mississippi Supreme Court handed down Little v. Mississippi

Department of Transportation, 129 So. 3d 132 (Miss. 2013). Before Little, the focus of this

subsection of the MTCA was on the specific acts alleged to be negligent and whether those

acts were mandated or discretionary. But the supreme court in Little expressly overruled its


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line of cases holding that, while an overall duty may be mandatory, how that duty is carried

out may be discretionary. Id. at 138 (¶11). The supreme court instead held that, if a statute

imposes a duty on a governmental entity or its employees, “all acts fulfilling that duty are

considered mandated as well, and neither the government nor its employees enjoy[]

immunity.” Id. at (¶10) (quoting Miss. Transp. Comm’n v. Montgomery, 80 So. 3d 789, 798

(¶31) (Miss. 2012)). So now, when determining whether the government is immune, courts

must focus on the governmental function at issue—and “not the acts performed in order to

achieve that function.” Id.

¶18.   Applying then-existing law, the circuit judge understandably honed in on the specific

act Calonkey alleged was negligent—the construction and maintenance of the set. Finding

no law mandated when or how the set should be constructed or maintained, the judge

concluded the acts involved were discretionary. See Montgomery, 80 So. 3d at 795 (¶19).

And because they also involved social policy, these acts were immune. See id. at (¶20).

¶19.   But in our de novo review, we must follow Little’s approach and look to the

governmental function at issue in Calonkey’s claim—the negligent maintenance of a portion

of school property. This function is imposed on the District by Mississippi Code Annotated

section 37-7-301(c) and (d) (Rev. 2013), which requires the District to “be the custodian[]

of real and personal school property and to manage, control and care for same, both during

the school term and during vacation” and to be “responsib[le] for the erection, repairing and

equipping of school facilities and the making of necessary school improvements[.]” Because

Little holds that this mandated function includes “all acts” carrying out that duty, even when

they involve choice or judgment, we must find that the acts of constructing and maintaining


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the theater set fall under that function and, thus, are not immune from Calonkey’s suit. Little,

129 So. 3d at 138 (¶10).

       II.    Non-MCTA Defenses

¶20.   Even if not immune, the District asserts it is still entitled to summary judgment

because Calonkey had been working as an independent contractor when he injured himself.

The District relies on the non-MTCA statute shielding all property owners—public and

private—against liability “for the death or injury of an independent contractor or the

independent contractor’s employees resulting from dangers of which the contractor knew or

reasonably should have known.” Miss. Code Ann. § 11-1-66 (Supp. 2013). See also Coho

Resources, Inc. v. McCarthy, 913 So. 2d 899, 906 (¶19) (Miss. 2005) (reciting the “general

rule . . . that the owner of the premises does not have a duty to protect an independent

contractor against risks arising from or intimately connected with the work”). But whether

this statute provides the District a complete defense cannot be answered on summary

judgment.    Without dispute, Calonkey was working at the school as an independent

contractor. But just as there is a question whether the dangerous condition was “obvious,”

there is a disputed fact issue whether Calonkey should have been aware of the danger posed

by the exposed hole in the catwalk, based on his past work experience in theater production.

¶21.   Therefore, because of this fact issue and the other reasons discussed, we reverse the

grant of summary judgment and remand this case to the circuit court.

¶22. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.



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    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.




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