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[W] Malone v. Capital Correctional Resources8/23/2001
0). Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment when there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. Hare v. State, 733 So.2d 277, 279 (Miss.1999). The moving party has the burden of demonstrating that there is no genuine issue of fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990). "If any triable issues of material fact exist, the lower court's decision to grant summary judgment will be reversed." Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997).
. Pursuant to Miss. Code Ann. § 61-1-3(j), any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control of the aircraft, shall be deemed to be engaged in the operation of aircraft. The statute is clear that the owner of a plane will be treated as an operator just like the pilot actually operating the plane. Since the owner also stands as the operator of the plane, then logically if the pilot is found negligent then the owner of the plane will also be determined to negligent as a co-operator of the plane. In Hays v. Morgan, 221 F.2d 481, 482-83 (5th Cir. 1955), the Fifth Circuit stated that, " he liability of the owner is there just as much as if he were the operator of the aircraft; [therefore] he owner who authorizes a pilot to use his plane becomes liable for the negligence of the pilot in the operation of the plane." While Hays is a Fifth Circuit case, this Court has followed the federal interpretation provided by the Fifth Circuit in Hays. See Cannon v. Jones, 377 So.2d 1055, 1057 (Miss. 1979); Brunt v. Chicago Mill & Lumber Co., 243 Miss. 607, 618-19, 139 So.2d 380, 386 (1962). Since the owner is deemed the operator under the interpretation of Miss. Code Ann. § 61-1-3(j) provided by Hays, a triable issue of fact exists. Accordingly, the summary judgment should not been granted by the trial court.
. The majority errs in not following the interpretation provided in Hays and adopted by this Court in Brunt and Cannon. In the case sub judice, the majority places its emphasis on distinguishing the facts at hand from those dealt with in Hays, Brunt, and Cannon. The case sub judice does not involve an employer/employee relationship, joint venture, or the owner's control of the pilot. Therefore, the majority erroneously addresses this matter as a case of first impression; because there are cases that deal with the negligence of an operator of a plane and an owner absent from the accident where both were determined to be liable. See Hays, 221 F.2d at 482-83; Cannon, 377 So.2d at 1057.
. The case at hand presents a similar situation. Miss. Code Ann. § 61-1-3(j) has not been repealed, and the Hays decision has not been overruled. Therefore, Hays's interpretation of the predecessor of Miss. Code Ann. § 61-1-3(j) should be applied, and the summary judgment should be reversed.
. In reaching its decision the majority chooses to follow Brown v. Astron Enters., Inc., 989 F. Supp. 1399, 1407-08 (N.D. Ala. 1997), a federal district court case out of the Eleventh Circuit, rather than following Hays from the Fifth Circuit. Astron merely declined to follow Hays. In my opinion, the majority erred in not applying Hays, I would reverse the trial court's summary judgment as to the owner of the plane and remand for trial.
BANKS AND McRAE, P.JJ., AND WALLER, J., JOIN THIS OPINION.
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