Pritchard v. Houten
| Docket Number: | 2005-CA-00710-COA Linked Case(s): 2005-CA-00710-COA ; 2005-CT-00710-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-06-2007 Opinion Author: CHANDLER, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Negligence - Duty of care - Discretionary function immunity Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 03-22-2005 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: FINAL JUDGMENT OF DISMISSAL ENTERED. Case Number: CI01-0232 |
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| Party Name: | Attorney Name: | |||
| Appellant: | REGAN PRITCHARD |
LEONARD BROWN MELVIN |
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| Appellee: | HAROLD VON HOUTEN AND THE UNIVERSITY OF SOUTHERN MISSISSIPPI | STEPHEN P. KRUGER, MICHAEL JEFFREY WOLF |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Tort Claims Act - Negligence - Duty of care - Discretionary function immunity |
| Summary of the Facts: | Regan Pritchard received a third degree burn injury to her ankle at an iron pour demonstration conducted by a tenured University of Southern Mississippi professor at the University of Kentucky. Pritchard sued the professor, Harold Von Houten, the University of Southern Mississippi, and several unknown defendants, alleging that Von Houten's negligent acts and omissions at the iron pour had caused her injury. Von Houten was dismissed from the suit. After a bench trial, the trial court found that Von Houten and USM were not negligent and that USM was immune from suit for the injury because Pritchard's claim was based on Von Houten's exercise of a discretionary function. Pritchard appeals. |
| Summary of Opinion Analysis: | Issue 1: Negligence Pritchard argues that the court erred in finding that USM was not negligent. USM is responsible for the negligence of its employees acting within the course and scope of their employment. In this case, the trial court held that any duty owed by USM to Pritchard in conducting the iron pour must be determined with reference to the age and experience of the plaintiff. The court found that, given Pritchard's adulthood and years of experience with iron pouring, no duty of care was owed. This analysis is inapposite to Pritchard's claim that Von Houten negligently prepared the iron pour site. Pritchard's claim based on the failure to put down dry sand was not dependent upon inadequate supervision by Von Houten. Rather, it was dependent on Von Houten's acts and omissions in his preparation of the site of the iron pour. Von Houten testified that it was his sole responsibility to make sure the iron pour was properly set up and pursuant to that responsibility he omitted to put down dry sand. Thus, the negligent act or omission complained of by Pritchard concerning the sand was not based upon Von Houten's negligent supervision of Pritchard, but upon his negligent preparation of the site. Concerning the site preparation, Pritchard's age, experience, and maturity were irrelevant to the question of duty because those qualities would not have protected her or any other participating student from a site preparation error by the instructor responsible for site preparation decisions. A vocational instructor's duty to take those precautions that any ordinary and reasonable person would take to protect shop students from the unreasonable risk of injury extends to preparation for the activity and preparation of the site for the activity. As a college instructor responsible for conducting an iron pour with student participants, Von Houten had a duty to take those precautions in preparing for the iron pour which any ordinary and reasonable person would take to protect the participating students from the unreasonable risk of injury. The substantial, credible evidence introduced at the trial showed that, as a reasonable precaution against burn injuries, Von Houten should have placed dry sand on the wet ground at the foundry to protect participants from burns caused by foreseeable molten iron spillage. Von Houten's failure to do this breached his duty to take reasonable precautions to protect his students from injury. Moreover, the evidence substantially showed that the failure to place sand in the areas where molten iron was handled proximately caused Pritchard's burn injury. Because the evidence substantially established negligence on the part of Von Houten and USM, the trial court's ruling constituted manifest error and was clearly erroneous. Issue 2: Discretionary function immunity USM argued it was entitled to discretionary function immunity under the Tort Claims Act. In determining whether governmental conduct is afforded discretionary function immunity, the court first must determine whether the activity involved an element of choice or judgment, and, if so, whether the choice involved social, economic, or political policy. Pritchard argues that, in holding that discretionary function immunity applied, the trial court erroneously neglected to consider whether the government actor's choice or judgment involved social, economic, or political policy. Pritchard and USM have no disagreement that Von Houten's conduct of the iron pour was not pursuant to any statute, regulation, or policy, and, therefore, it was not ministerial and involved an element of choice or judgment. Von Houten's failure to put down dry sand did not necessitate a selection between alternative policy objectives, and, like driving an automobile in the course and scope of employment, could not have been based upon any government regulatory purpose. Therefore, the act is not susceptible to policy analysis. Thus, USM is not protected by discretionary function immunity and is liable for Von Houten's negligence. The case is reversed and remanded for a trial limited to the issue of damages. |
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