City of Jackson v. Brister

For the Court.

¶ 1. On January 13, 2000, Elizabeth Slater (Slater) attempted to evade arrest by City of Jackson police officers after she allegedly attempted to pass a forged check at a bank. A pursuit began and lasted approximately 40-60 seconds. While fleeing from the police, Slater’s vehicle crashed into the side of Jamie Fowler Boyll’s (Boyll) vehicle at the intersection of Ridgewood Road and Northside Drive in Jackson. The police patrol cars did not collide with any vehicle. Boyll subsequently died on January 14, 2000, from the injuries suffered in the collision.

¶ 2. Rebecca F. Brister (Brister) is the sister of Boyll and executrix of Boyll’s estate. Guy L. Boyll, III. and Jill Fowler Boyll are the adult children and heirs-at-law of Boyll. On February 9, 2000, Bris-ter, executrix of the estate of Jamie Fowler Boyll, deceased, and Guy L. Boyll, III, and Jill Fowler Boyll, heirs at law of Jamie Fowler Boyll, deceased (hereinafter collectively named “the Estate”), sent notice to the City of Jackson (City) pursuant to the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11^46-1 to -23 (Rev. 2002). On March 8, 2000, the Estate also filed a negligence and wrongful death complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against Slater and Brenda K. Dykes (Dykes).

¶ 3. On May 11, 2000, an amended complaint was filed adding as defendants the City and four police officers in their individual and official capacities, Corey Watson (Watson); Loris D. Taylor (Taylor); Robbie Huff (Huff); and Milton McFarland (McFarland). On June 20, 2000, the trial court signed an agreed order of dismissal with prejudice for the named defendant, Dykes. On October 9, 2000, the trial court dismissed Officers Watson, Taylor, Huff, and McFarland as to liability in their individual capacities.

¶ 4. Following a bench trial, the trial court issued its opinion and order. The trial judge determined that the officers acted with reckless disregard and allocated 50% liability to Slater and 50% liability to the City for the collision between Slater’s and Boyll’s vehicles. The trial court determined that the Estate was entitled to $1,000,000 to be paid jointly and severally among the defendants. However, the trial court noted that an insurance carrier had paid $10,000 on Slater’s behalf. The trial court therefore, reduced the judgment against the City to $250,000 or the limits of the liability insurance of the City, whichever was greater. Following this ruling, the City filed a notice of appeal to this Court.

¶ 5. We find no abuse of discretion by the trial judge whose ruling is supported by substantial, credible and reasonable evidence. Because the learned trial judge applied our controlling case law, we affirm.

FACTS

¶ 6. On January 13, 2000, at approximately 11:00 a.m. a chase began between Jackson police officers and Slater. Less than one minute after the pursuit began, Slater’s and Boyll’s vehicles collided at the intersection of Ridgewood Road and Northside Drive. The patrol car did not collide with any vehicle.

¶ 7. The incident started when the City received an emergency call from Omni Bank located on Old Canton Road in Jackson. Slater was allegedly attempting to pass a forged check. The bank teller stated that Slater presented to her a check in the amount of four hundred dollars. Linda Williams (Williams), the teller, tried to stall Slater at the bank until the police arrived.

¶ 8. However, Slater suddenly ran out of the bank. Williams followed Slater to the door. When Williams got to the door,.she saw that police officers had arrived at the bank. Williams began to point her finger at Slater and yelled, “That’s her, get her.”

¶ 9. According to Williams, the police car parked beside Slater’s vehicle. The vehicle was driven by Officer Watson and also occupied by Officer Taylor. Slater was already half way inside her car when Officer Watson got out of the patrol car. Slater backed out of the parking space and the police officer jumped into his patrol car. Slater’s vehicle then squealed out of her space and jumped over the walkway, nearly hitting the patrol car in the process. By this time a second patrol car, occupied by Officers McFarland and Huff, entered the parking lot. The two police cars left the parking lot entrance with their lights on.

¶ 10. Slater left the parking lot traveling east onto Old Canton Road. She turned south onto Ridgewood Road. The police followed Slater onto Ridgewood Road and drove through a red light at the intersection of Old Canton and Ridgewood Road. The officers continued driving through a green light at the intersection of Sheffield Drive and Ridgewood Road. Then the officers exited the patrol car at the intersection, and collision site, of Northside Drive and Ridgewood Road. The police chased Slater as she trotted away from the collision and arrested her. The patrol car in which Officers Watson and Taylor were traveling did not strike any vehicle.

¶ 11. Officer Watson stated that he took the totality of the circumstances into consideration when pursuing Slater. Officer Taylor did not know the amount of the forged check. Officer Taylor did not know the speed limit nor how fast Officer Watson was driving.

¶ 12. While the two parties present a number of issues for this Court’s review, the pivotal issue concerns whether the trial court erred in ruling that the City was hable for the acts of its officers and whether those acts were in reckless disregard of the safety and well being of others. After review of the case, we find that the ruling of the trial court was correct and was supported by substantial, credible, and reasonable evidence. For this reason, the trial court’s judgment is affirmed.

DISCUSSION

WHETHER THE TRIAL COURT ERRED IN RULING THAT CITY OF JACKSON POLICE OFFICERS ACTED IN RECKLESS DISREGARD AND IMPOSING LIABILITY ON THE CITY.

¶ 13. “The standard of review for a judgment entered following a bench trial is well settled. ‘A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,’ and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000) (quoting City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)). “This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo.” Id. (citations omitted). The MTCA is the exclusive remedy for filing a lawsuit against governmental entities and its employees. City of Jackson v. Lipsey, 834 So.2d 687 (Miss.2003); City of Jackson v. Sutton, 797 So.2d 977, 980 (Miss.2001). See also Maldonado, 768 So.2d at 909.

¶ 14. The Mississippi Tort Claims Act, § 11 — 46—9(l)(c), provides immunity to government entities and employees that act within the course and scope of employment duties. MTCA § ll-46-9(l)(c) provides in pertinent part as follows:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury ...

In addition, MTCA § 11-46-7(2) addresses the Act’s coverage when an employee is sued as follows:

An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties. For the purposes of this chapter an employee shall. not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.

Miss.Code Ann. § 11-46-7(2) (emphasis added).

¶ 15. This Court has stated that “[ajpparent in the language [of Miss.Code Ann. § 11-46-9] is that those officers who act within the course and scope of their employment, while engaged in the performance of duties relating to police protection, without reckless disregard for the safety and well being of others, will be entitled to immunity.” McGrath v. City of Gautier, 794 So.2d 983, 985 (Miss.2001). Indeed, this Court noted that “[t]he purpose of Miss.Code Ann. § 11-46-9 is to ‘protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim.’ ” Maldonado, 768 So.2d at 909 (quoting City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)). A governmental entity’s purchases of liability insurance does not waive any sovereign immunity, nor does it hinder any exclusions or exemptions from waiver. McGrath, 794 So.2d at 987(citing L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136 (Miss.1999)). Miss.Code Ann. § 11-46-17(4) “does not limit the exclusions or exemptions in Section 11-46-9.” Maldonado, 768 So.2d at 908 (citations omitted).

¶ 16. The trial judge in the case sub judice determined the following:

The [c]ourt must balance the competing interests of the community’s safety with the expectation that police will apprehend criminals. However, the [c]ourt finds that it is unreasonable to believe that pursuit could be terminated and the effect of termination be realized by the fleeing defendant given the distance from the point where the pursuit began and the point of collision. It is especially unreasonable when the officers testified that the pursuit was terminated but they continued to follow Slater to obtain her license plate number. In other words, the officers continued to engage in a course of conduct in which all the indicia of pursuit was present up to the point of collision. Moreover, pursuit was initiated and maintained despite the fact that the officers did not know whether Slater had committed a felony or a misdemeanor. Accordingly, this [cjourt finds that the officers acted with reckless disregard.

¶ 17. The City claims that the acts of the police did not rise to the level of reckless disregard. The police officers were responding to a 911 emergency call with their blue lights and sirens running. In addition, the City argues that none of the officers’ police cars collided with Boyll or Slater. Slater alone was involved in the collision with Boyll. Furthermore, the chase lasted less than 60 seconds over a distance of less than a mile.

¶ 18. Brister argues that the officers’ actions did amount to reckless disregard. She claims that, considering the totality of the circumstances and the officers’ failure to follow the City’s own police department’s general order number 600-20, the trial court had overwhelming evidence to find a reckless disregard for the safety and well being of others.

¶ 19. Based on our standard of review, the circuit judge’s findings are safe on appeal if they are supported by substantial, credible, and reasonable evidence. Furthermore, in a bench trial such as the case at bar, when the trial judge sits as the finder of fact, he has the sole authority for determining the credibility of witnesses. Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994); Bryan v. Holzer, 589 So.2d 648, 659 (Miss.1991); Bell v. Parker, 563 So.2d 594, 597 (Miss.1990).

¶ 20. Dennis Waller, plaintiffs’ expert witness, who had previously testified on over 100 occasions on related subject matter, concluded that the officers’ conduct here presented an extreme and unreasonable danger to the public. Waller based his opinion on the following:

1) the chase was contrary to General Order 600-20;

2) the officers were still engaged in active pursuit up to the collision;

3) pursuit should have been terminated after the officers turned onto Ridgewood Road and realized the suspect would not stop;

4) the officers did not attempt to obtain the license plate number which would have eliminated the need for continued pursuit; and

5) the officers did not properly balance the public’s safety versus immediate apprehension of a check forger.

The circuit judge clearly based his findings on substantial, credible, and reasonable evidence. Applying our appropriate legal standard and recent caselaw, that is all that is necessary. Had a jury tried this case, it could have reasonably found that all of these circumstances establish more than simple negligence. The learned trial judge found by looking at the totality of the circumstances that the officers acted with reckless disregard to public safety. That is exactly what our caselaw requires.

¶ 21. From the beginning of this tragic incident, the officers showed recklessness and disregard for the safety of others. Here, we have two officers involved: Taylor, a training officer, who certainly knew better than to allow the actions which occurred, and Watson, a new rookie on the police force, who should have known better but, nonetheless, proceeded in spite of his training and police policy. There are further facts that support the premise that the trial judge took the totality of all the circumstances into consideration. For instance, Slater’s vehicle was the only one in the parking lot and although the officers could have blocked in her vehicle at the bank parking lot, they did not. They could have easily written down the tag number there instead of attempting such in a hot pursuit chase. Instead, they merely parked their vehicle beside Slater’s. General Order 600-20 requires that a pursuit may only be initiated when the officer knows that a felony has been committed and the officer has probable cause to believe that the individual who committed the felony and the suspect’s escape is more dangerous to the community than the risk posed by the pursuit. The officers failed to ascertain this information in clear violation of the established police department policy. The officers initial actions in parking next to the suspect’s vehicle instead of blocking it allowed the suspect to easily avoid arrest at the bank parking lot. It also allowed the suspect to leave the parking lot with the two police cars, sirens and lights sounding and flashing in hot pursuit, all proceeding at a high rate of speed. The lead police car was driven by Watson, a one month rookie on the force, involved in his first hot pursuit and totally unfamiliar with the area. Additionally, the pursuit route was heavily populated. The route took them through residential areas including apartment complexes, single-family housing and condominiums, a park, and even past an elementary school traveling in a 35 miles per hour zone at speeds in excess of 55 miles per hour. The suspect was traveling at times in excess of 70 or 80 miles per hour. At the time of the crash, eyewitness testimony placed the two patrol cars within 20 yards behind the suspect’s vehicle. It is clear here that the officers never should have initiated this high speed chase, much less continued it right up to the time of the collision.

¶ 22. District of Columbia v. Hawkins, 782 A.2d 293 (D.C.Ct.App.2001), is instructive in determining the reckless disregard standard in the case sub judice. That court considered the following to determine whether a police chase constitutes reckless disregard: (1) length of chase; (2) type of neighborhood; (3) characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; and (6) the seriousness of the offense for which the police are pursuing the vehicle. Id. Here, the circuit judge considered many of these factors in making his determination. It is noteworthy that here, as in Hawkins, the collision occurred immediately after the vehicles crested a hill and proceeded into a vision-obscured intersection.

¶ 23. This Court’s controlling caselaw on the subject of reckless disregard is clearly established. We have held that reckless disregard is more than ordinary negligence, but less than an intentional act. An officer’s conduct although normally shielded by immunity, when coupled with reckless disregard, may allow for a finding of liability. Certainly if this Court found in Maye v. Pearl River County, 758 So.2d 391, 395 (Miss.1999), that the deputy sheriffs actions amounted to recklessness when he merely backed his automobile into an oncoming vehicle when he could not see “cars coming into the lot,” then clearly in the case sub judice recklessness was properly found by the trial judge. In Maye, the deputy’s claim that he first checked his rear view mirrors prior to backing up his vehicle availed him not with this Court. This Court noted: “This decision does not require a showing of specific intent to harm. The plaintiffs are not required to show Collier intended to hit Goodwin’s car when Collier backed out of the parking lot.” Id. at 395. Thus, the fact here that the officers did not intend that a fatal accident would result as a direct consequence of their high speed chase in violation of Jackson Police Department existing written policy is of no concern. Brister need only show that the officer actions “rose to the level of recklessness.” Id. at 391. Here, it is sufficient that Brister has shown, and the trial judge so found, that the officers initiated a high speed chase with “conscious indifference” knowing they had not complied with Order 600-20 which was the existing governing policy of the police department at that time. Without adhering to that policy, the officers should have reasonably expected the possibility of adverse consequences including a fatal accident, thus plaintiffs clearly proved reckless disregard to the general public safety. If this Court also found reckless disregard based on the facts of City of Jackson v. Perry, 764 So.2d 373 (Miss.2000), and the allegations in Turner v. City of Ruleville, 735 So.2d 226 (Miss.1999), then certainly this judgment should be upheld. Here, overwhelming evidence exists that the officers acted in reckless disregard to the general safety of the public. Proving reckless disregard is all that is required under Turner, Perry and Maye.

CONCLUSION

¶24. The trial court did not err by finding the City liable. The trial court’s ruling was clearly supported by substantial, credible, and reasonable factual evidence. The learned trial judge followed and applied our caselaw. The judgment of the circuit court is affirmed.

¶ 25. AFFIRMED.

PITTMAN, C.J., McRAE, P.J., COBB, DIAZ AND CARLSON, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION. WALLER AND GRAVES, JJ., NOT PARTICIPATING.

. Dykes was a property owner at the intersection of the accident.

. On September 13, 2001, a final judgment of dismissal with prejudice was signed by the trial court judge and the parties. The order indicated that all the Estate's claims against Slater were fully settled.

. Officer Taylor was the training officer riding with Officer Watson.

. Williams did not know if the sirens were on at the time. Williams's hearing problem prevented her from being able to hear a siren's pitch.