ELECTRONICALLY FILED 10/12/2012 3:41 PM CV-2008-900663.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C.

SMITH, CLERK

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA JASON MILLER and AMY MILLER, as, Parents and next friend of JOSIAH MILLER, deceased; JASON MILLER, an individual, ) ) ) ) Plaintiffs, ) ) v. ) Civil Action Number: ) CV 08-900663TK ALL NEEDZ RENTAL, INC., et al., ) ) Defendants. ) _____________________________________________________________________________ LEMUAL PEPPER and CHANDER PEPPER, ) as parents and next friend of MATTHEW J. ) PEPPER, a minor; ) ) Plaintiffs, ) ) v. ) ) ALL NEEDZ RENTAL, INC., et al., ) ) Defendants. )

Civil Action Number: CV 10-900830 WKB

DEFENDANTS BARBIE PEEK AND DOUG KREULENS MOTION FOR SUMMARY JUDGMENT

COME NOW, Barbie Peek and Doug Kreulen, defendants in the above-styled cause and, pursuant to Rule 56(c) of the Alabama Rules of Civil Procedure, move this Court for an Order granting Summary Judgment as to all Plaintiffs claims against them on the grounds that there are no genuine issues of material fact, they are entitled to judgment as a matter of law, and there is no just cause for delay. Specifically, these Defendants are entitled to summary judgment as to all Plaintiffs claims on the following grounds:

(1)

Plaintiffs claims against these Defendants are barred by section 23-1-183 of the

Alabama Code, which affords absolute immunity from tort liability to officers and employees of the Huntsville-Madison County Airport Authority for any act performed in the operation or management of the Huntsville International Airport. Specifically, Ala. Code 23-1-383 states: No action or suit in tort shall be brought or maintained against the state, governmental entity, or any municipality thereof or the officers, agents, servants, or employees of the state, governmental entity or any municipality thereof, on account of any act done in or about the planning, construction, maintenance, expansion, operation, superintendence, or management of any airport or other navigation facility. Ala. Code 23-1-183 (emphasis added). (2) Plaintiffs negligence claims against these Defendants are barred by section 4-3-

50 of the Alabama Code, which states, [n]o civil action shall be brought or maintained against the authority or any director thereof for or on account of the negligence of such authority or director or its or his agents, servants or employees in or about the construction, maintenance, operation, superintendence or management of any airport, heliport or other facility owned or controlled by the authority. Ala. Code 4-3-50; Ex parte Cranman, 792 So. 2d 392 (Ala. 2000). (3) Plaintiffs wantonness claims against these Defendants are due to be dismissed as

there is no substantial evidence indicating that these Defendants caused harm by the conscious doing of some act or the conscious omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury would likely or probably result. Shiv-Ram v. McCaleb, 892 So. 2d 299, 314 (Ala. 2003). (4) Plaintiffs claims against these Defendants are barred by the doctrine of State

agent immunity. See Ala. Const., Art. I, 14 ([t]he State of Alabama shall never be made a
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defendant in any court of law or equity); Tallaseehatchie Creek Watershed Conservancy District v. Allred, 620 So. 2d 628, 631 (Ala. 1993); Ex parte Cranman, 792 So. 2d 392 (Ala. 2000). In support of their Motion for Summary Judgment, the Defendants submit the following: (a) Huntsville-Madison County Airport Authoritys Articles of Incorporation, attached hereto as Exhibit A; (b) The Deposition of Steve Whitman, pertinent parts of which are attached hereto as Exhibit B; (c) (d) The Affidavit of Doug Kreulen, attached hereto as Exhibit C; The Deposition of Doug Kreulen, pertinent parts of which are attached hereto as Exhibit D; (e) The Deposition of Luther R. Butch Roberts, pertinent parts of which are attached hereto as Exhibit E (f) The Deposition of Barbie Peek, pertinent parts of which are attached hereto as Exhibit F; (g) (h) (i) The Affidavit of Barbie Peek, attached hereto as Exhibit G; Applicable Alabama statutes, attached hereto as Exhibit H; Critical immunity opinions from the Alabama Supreme Court, attached hereto as Exhibit I; (j) (k) The Pleadings and Discovery Responses in this case; and The following Narrative of Undisputed Facts.

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NARRATIVE OF UNDISPUTED FACTS These cases arise from the tragic death of Plaintiffs decedent, Josiah Miller, age 5, and injuries to Plaintiffs Shaun Rose and Matthew Pepper. The accident at issue occurred on June 29, 2008, when a strong, undetected, and unforecasted microburst caused tents to collapse and equipment to be overturned at an airshow being hosted by the Huntsville-Madison County Airport Authority (HMCAA). A. The Accident HCMAA hosted an air show on June 28-29, 2008, that was open to the public. The air show was held at the Huntsville International Airport (which is part of HMCAA), and involved numerous aviation acts, including a scheduled performance by the United States Navys Blue Angels. In preparation for the show, numerous 20 x 20 tents, were aligned in a row running north to south and situated along the taxiway. Deposition of Steve Whitman, pertinent parts of which are attached hereto as Exhibit B, pp, 40-41, 56-57. The tents were connected or daisychained and each tent stake anchored guy ropes from two tents. See id., pp. 56-57. The west side of the tents were open so that spectators in the tent could watch the air show. See id. The east side of the tents were closed. Approximately five air conditioning units were located on the east side of the tents. The air conditioning units were attached to the tents by a collapsible air duct that connected to a register within the tent wall. The air conditioning units were supplied by Aggreko.1 Aggreko placed the air conditioning units and attached the duct work to the back wall of the tents. Defendant All Needz erected the tents, connected them together, tied the west side

Plaintiffs claims against Aggreko, LLC and Aggreko Energy Rentals, LLC (collectively, Aggreko), were dismissed on March 12, 2012, following a pro tanto settlement.
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guy ropes to fifty-five gallon drums (filled with water), and staked the east side guy ropes into the ground. See id. at pp. 67-68, 77-78, 143. The accident occurred when a severe microburst toppled numerous tents and an air conditioner. A microburst is a rapid downward rush of air originating from a thunderstorm. Once the downward moving air reaches the ground, it begins to move horizontally at high rates of speed. Plaintiffs allege that west winds from the microburst struck the open side of the tents and then tents, which were tied together, caught the gale-force winds in a manner similar to a sail. According to Plaintiffs theory, the force of the winds began to lift the tents and pull the anchoring stakes from the ground. The movement of the tents, which were attached to the air conditioning units by collapsible ducts, caused an air conditioning unit to topple to the ground. The four thousand pound air conditioning unit fell onto five year old Josiah Miller, resulting in his death. Matthew Pepper and Shaun Rose suffered injuries after being struck by debris. B. No Weather Warnings or Advisories Were Issued by the National Weather Service Prior to the Microburst. A representative from the National Weather Service was present at the air show and monitored the weather throughout the air show. See Affidavit of Doug Kreulen, attached hereto as Exhibit C, 7-8. No severe weather warnings or watches were issued prior to the accident. See Deposition of Doug Kreulen, pertinent parts of which are attached hereto as Exhibit D, pp., 71, 76-77. The air show was suspended approximately twelve minutes before the accident, due to low visibilities which made it unsafe for event pilots to operate their aircraft over the field. See Kreulen Affidavit, 11. While a rain shower was observed west of the airfield, there was no

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indication of severe weather at or near the airport prior to the microburst. See Kreulen Depo., p. 79; Kreulen Affidavit, 7-8, 11. HCMAAs severe weather plan called for action if the National Weather Service issued any of the following advisories: (1) Severe Thunderstorm Warning; (2) Severe Thunderstorm Watch; (3) Tornado Watch; (4) Tornado Warning; and (5) Lightning. See Kreulen Depo., p. 71. None of these warnings were issued or disseminated by the National Weather Service prior to the accident. See Kreulen Depo., p. 76-77. C. The Non-Movant Parties Plaintiffs Jason and Amy Miller, parents of Josiah Miller, filed a wrongful death action on July 23, 2008, against All Needz Rental, Inc. (All Needz), the company responsible for supplying and installing the tents and equipment at issue. Subsequently, Plaintiff Jason Miller was added as an individual plaintiff and the Millers amended their Complaint to add HMCAA, Doug Kreulen, and Barbie Peek, as defendants. Plaintiffs Rose and Pepper have filed suit against the Huntsville-Madison County Airport Authority, Kreulen and Peek. collectively assert various negligence and wantonness claims against these Defendants.2 Plaintiffs have also asserted claims against Air Show 2008, though no such entity, partnership, or joint venture exists. See Plaintiffs (Miller) Second Amended Complaint, 7. D. The Huntsville-Madison County Airport Authority The Huntsville Madison County Airport Authority (HMCAA), is a public corporation originally incorporated on May 9, 1963, pursuant to Ala. Code 4-3-1, et seq. See HMCAA Articles of Incorporation, a certified copy of which is attached hereto as Exhibit A; Deposition of Plaintiffs

Plaintiffs also asserted product liability claims against the air conditioner manufacturer, Aggreko, LLC and Aggreko Energy Rentals, LLC (collectively, Aggreko). Aggreko has entered into a confidential, pro tanto settlement with Plaintiffs and has been dismissed from the case.
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Butch Roberts (Roberts Depo.), pertinent parts of which are attached hereto as Exhibit E, 1920. The incorporation was authorized by the City of Huntsville and Madison County. See Articles of Incorporation. HMCAA was reincorporated on October 21, 1991 pursuant to Ala. Code 4-3-40, et seq. Id. HMCAAs board of directors is comprised of individuals appointed by the governing bodies of Madison County and the City of Huntsville. HMCAAs Board of Directors is provided authority to hire officers and employee and define each officers duties. Ala. Code 4-3-47. Prior to its reincorporation, HMCAA was afforded immunity against negligence actions pursuant to Ala. Code 4-3-7: No action or suit shall be brought or maintained against the authority, or any director thereof, for or on account of the negligence of such authority or director or its agents, servants or employees, in or about the construction, maintenance, operation, superintendence or management of any airport, heliport or other facility owned or controlled by the authority. The 1991 reincorporation removed HMCAA from the provisions of Ala. Code 4-3-1, et seq. and placed it under the provisions of Ala. Code 4-3-40, et seq. The immunity provision encoded in this Article states: No civil action shall be brought or maintained against the authority or any director thereof for or on account of the negligence of such authority or director or its or his agents, servants or employees in or about the construction, maintenance, operation, superintendence or management of any airport, heliport or other facility owned or controlled by the authority. Ala. Code 4-3-50. HMCAA is authorized to exercise the power of eminent domain with respect to any property, real or personal, regardless of whether the property is located within the corporate limits of Huntsville or Madison County. Ala. Code 4-3-47(21). HMCAA has the power to sell interest-bearing revenue bonds for any of its corporate purposes. Ala. Code 4-3-51. HMCAA may sue or be sued, excepting actions in tort against the authority. Ala. Code 4-3-47(2).
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HMCAA is empowered to purchase or dispose of land or other property and is empowered to construct necessary facilities. Ala. Code 4-3-47(6). HMCAA also has the authority to enter into contracts, as necessary, to accomplish any purpose for which HMCAA was incorporated. Ala. Code 4-3-47(6). All property and income of HMCAA shall be exempt from all state, county, municipal and other local taxation. Ala. Code 4-3-59. Upon dissolution, any

remaining proceeds will return to the authorizing political subdivisions. Ala. Code 4-3-61. HMCAA is located on 6,400 acres of property within the boundaries of Madison County and the City of Huntsville. See Kreulen Depo., p. 21. In addition to operating the Huntsville International Airport, HMCAA operates the Huntsville International Intermodal Center and the Huntsville Jetplex Industrial Center. See Roberts Depo., pp. 19-20; Kreulen Depo., pp. 19-21. Huntsville International Airports regional service area includes Colbert, Cullman, DeKalb, Franklin, Jackson, Lauderdale, Lawrence, Limestone, Madison, Marshall, Morgan, and Winston counties. HMCAA maintains its own police force and fire response unit. See Roberts Depo., p 78; Kreulen Depo., p. 17. See, also, Ala. Code 4-3-47(32). Peace officers from the City of Huntsville must have HMCAAs permission before entering any non-public or restricted area on the airports grounds. Ala. Code 4-3-47(30). In other words, HCMAA maintains its own police jurisdiction. HMCAA is subject to extensive regulation by the Alabama Department of Transportation, acting, in part, on the advice of the Alabama Aeronautics Commission. See Ala. Code 23-1-259; Ala. Admin. Reg. 60-X-3-.1, et seq. Section 23-1-383 of the Alabama Code provides absolute immunity to HCMAA and its agents, officers, servants, and employees,

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regarding acts performed in the operation and management of the Huntsville International Airport: No action or suit in tort shall be brought or maintained against the state, governmental entity, or any municipality thereof or the officers, agents, servants, or employees of the state, governmental entity or any municipality thereof, on account of any act done in or about the planning, construction, maintenance, expansion, operation, superintendence, or management of any airport or other navigation facility. Ala. Code 23-1-183. HMCAAs operations are also subject to extensive federal regulations. See, e.g., 14 C.F.R. Part 139; Kreulen Depo., p. 47. Prior to the air show, HMCAA applied to the Federal Aviation Administration (FAA), for air space restrictions (reserving certain air space for air show demonstrations), and for waivers to numerous FAA air operations regulations including, (a) (b) (c) (d) 14 C.F.R. 91.117(a), (b) governing speed restrictions near airports; 14 C.F. R 119(b), (c) setting altitude restrictions over congested areas; 14 C.F.R. 91.121 setting minimum flight levels based on altimeter settings; 14 C.F.R. 130 governing aviation operations in Class C airspace; specifying air traffic pattern and communication requirements; requiring use of Air Traffic Control transponder and altitude reporting equipment; (e) 14 C.F.R. 303(c)-(e) restricting aerobatic flight over congested areas.

See Kreulen Affidavit, 12. The execution of the air show required extensive planning, including the coordination of performances and the designation of event air space. Air Traffic Control assets are required to monitor air show traffic in addition to routine air traffic. Aircraft and pilots utilized airport resources and facilities (including flight planning, weather forecasting resources, notices to
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airman, parking, and fueling), took off and landed on the airports runways, and relied on the presence of the airports emergency response personnel. See id. at 11. Huntsville

International Airport continued commercial operations throughout the course of the air show. See id. at 13. Huntsville International Airport is a certified airport subject to the requirements of 14 C.F.R. Part 139. Numerous operational certification requirements promulgated by the FAA apply equally to commercial traffic and air show operations, including, but not limited to: a. b. c. 14 C.F.R. 139.305 Maintenance of runways and taxiways; 14 C.F.R 139.311 Maintaining markings, signs and lighting; 14 C.F.R. 139.315, .317, & .319 Maintaining aircraft rescue and firefighting equipment and personnel; d. e. 14 C.F.R. 139.323 Maintaining traffic and wind indicators; 14 C.F.R. 139.325 Developing and maintaining Airport Emergency Plan (including response to weather contingencies); f. g. 14 C.F.R. 139.333 Protection of navigational aids; and 14 C.F.R. 139.335 Preventing public from entering movement areas or being exposed to injury from operational aircraft; See Kreulen Affidavit, 14; see, also, 14 C.F.R. Part 139. As discussed below, Doug Kreulen was responsible for Huntsville Internationals compliance with these federal regulations. E. Defendant Doug Kreulen Defendant Doug Kreulen was HMCAAs Director of Operations for all times relevant to the present case. See Kreulen Depo., p. 10; Kreulen Affidavit, 2. Kreulen was responsible for
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airfield management, airport parking, HMCAAs Fire and Police Departments, Fleet Maintenance, and Facility Maintenance. Id.; Kreulen Affidavit, 3. Kreulens involvement in the airshow included planning for the static display layout, scheduling performances, and ensuring procedures were in place for flight operations. See Kreulen Depo., p. 35; Kreulen Affidavit, 4. Kreulen also coordinated with state, county, and city officials to ensure that contingency plans were in place. See Kreulen Depo., pp. 44-45, 48; Kreulen Affidavit, 4. As discussed above, Huntsville International Airport continued accepting commercial traffic throughout the course of the air show. See Kreulen Affidavit, 13. Kreulen was ultimately responsible for managing the operational aspects of Huntsville International Airports commercial traffic as well as the air show. See id. In most respects, Kreulens management and supervisory responsibilities for the air show were inextricably intertwined with his non-air show responsibilities, including his duty to ensure compliance with FAA regulations. See id. at 14. Kreulen did not supervise, participate in, or observe the erection or anchoring of the airshow hospitality tents. See Kreulen Affidavit, 9; Kreulen Depo., pp. 114, 118. He did not participate in or observe the installation of air conditioning units attached to the airshow hospitality tents. See Kreulen Affidavit, 9. He was not responsible for forecasting severe weather or disseminating weather warning or advisories. See Kreulen Affidavit, 8. Though Kreulen had access to weather radar imagery, he relied entirely on the National Weather Service for the prediction of severe weather and the dissemination of severe weather watches and warnings. Kreulen made the decision to suspend air operations approximately twelve minutes prior to the accident based on information provided to him by National Weather Service personnel and the Air Traffic Control Towers rain showers were approaching. See, 11. This action was due
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to unfavorable, and potentially unsafe, aviation conditions, and not the presence of severe weather. See Kreulen Affidavit, 11. Kreuelen had no knowledge of the threat for severe weather until the accident occurred. See Kreulen Affidavit, 7-8. F. Defendant Barbie Peek Defendant Barbie Peek has been an HCMAA employee since 1989. See Deposition of Barbie Peek (Peek Depo.), pertinent parts of which are attached hereto as Exhibit F, pp. 11, 15. For all times relevant to this suit, Peek was employed as HCMAAs Director of Marketing. See Affidavit of Barbie Peek, attached hereto as Exhibit G, 2. In that role, Peek oversaw all marketing activities that pertained to HCMAA, including special event coordination, community relations, media relations, collateral development and trade show support. See Peek Depo., pp. 12-13. Peek was HCMAAs primary contact for HCMAAs 2008 Airshow. See Peek Depo., pp 25-26, 45. The organization of the airshow was part of her role as HCMAAs Marketing Director. See Peek Depo., p. 46. Peek did not supervise, participate in, or observe the erection or anchoring of the airshow hospitality tents. See Affidavit of Barbie Peek, attached hereto as Exhibit E, 6. She did not participate in or oversee the installation of air conditioning units attached to the airshow hospitality tents. See Peek Affidavit, 6. Peek relied on the expertise of HCMAAs Operations and Planning teams with regards to emergency procedures and aviation safety. See Peek Depo., pp. 72-74. Peek was not responsible for monitoring weather conditions, forecasting severe weather, or disseminating weather warning or advisories to the airshow attendants. See Peek Affidavit, 5. Peek acted in a supervisory capacity with regards to the formulation of plans and the allocation of resources to be utilized at HCMAAs 2008 Airshow. See Peek Affidavit, 7. For
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instance, Peek was involved in the decision to hire All Needz to install the airshow hospitality tents and the air conditioning units, chairs and tables used at the hospitality tents. See Peek Depo., pp. 100-101, 103. Peek did not supervise or maintain control of the work performed by All Needz. See Peek Affidavit, 5. Respectfully submitted, s/ James C. Gray III James C. Gray III (GRA013) Karen M. Ross (ROS014) Attorneys for Barbie Peek and Doug Kreulen OF COUNSEL: LLOYD, GRAY, WHITEHEAD & MONROE, P.C. 2501 Twentieth Place South, Suite 300 Birmingham, Alabama 35223 (205) 967-8822 jgray@lgwmlaw.com

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CERTIFICATE OF SERVICE I certify a true and correct copy of the foregoing was served upon the following counsel of record by efiling and/or by United States Mail, with postage prepaid and properly addressed on this the 12th day of October, 2012: Joe A. King, Jr. Joseph D. Aiello Gary V. Conchin Morris, Conchin & King 200 Pratt Avenue, NE Huntsville, Alabama 35801 Kenneth E. Riley Kirby D. Farris Farris, Riley & Pitt, LLP Suite 400, Massey Building 2025 3rd Avenue North Birmingham, Alabama 35203 Roderick K. Nelson Spain & Gillon, LLC The Zinszer Building 2117 Second Avenue North Birmingham, Alabama 35203-3753 David A. Norris McGlinchey Stafford, PLLC P.O. Box 22949 200 South Lamar Street, Suite 1100 Jackson, Mississippi 39225-2949 Erin Parkinson McGlinchey Stafford, PLLC 601 Poydras Street 12th Floor New Orleans, LA 70130 David A. Lee Parsons, Lee & Juliano, P.C. 300 Protective Center 2801 Highway 280 South Birmingham, Alabama 35223-2480 Gary V. Conchin 200 Pratt Avenue Huntsville, Alabama 35801

s/ James C. Gray III OF COUNSEL

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