City of Jackson, Mississippi v. Rebecca F. Brister ( 2001 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-CA-01393-SCT
CITY OF JACKSON, MISSISSIPPI
v.
REBECCA F. BRISTER, 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
DATE OF JUDGMENT: 7/26/2001
TRIAL JUDGE: HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: HILTON RAY MILLER
ATTORNEYS FOR APPELLEE: DALE DANKS, JR.
PIETER JOHN TEEUWISSEN
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED -02/20/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, PRESIDING JUSTICE, 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, Brister, 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).1
¶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
1
Dykes was a property owner at the intersection of the accident.
2
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.2
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.
2
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.
3
¶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.3 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.4
¶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.
3
Officer Taylor was the training officer riding with Officer Watson.
4
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.
4
¶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 liable 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, 2003
5
WL 69498 (Miss. Jan. 9, 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(1)(c), provides immunity to government
entities and employees that act within the course and scope of employment duties. MTCA
§ 11-46-9(1)(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 “[a]pparent 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
6
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 [c]ourt 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.
7
¶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
8
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.
9
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
sheriff’s actions amounted to recklessness when he merely backed his automobile into an
10
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
11
¶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.
EASLEY, JUSTICE, DISSENTING:
¶26. In my view, the majority errs in affirming the circuit court's determination that the
police officers of the City of Jackson acted in reckless disregard for the safety and well being
of others by pursuing Slater. Accordingly, I disagree with the holding that the City is liable
for the acts of the officers.
¶27. From the onset, I stress that the actions of the suspect, Slater, were the proximate
cause of the fatal collision resulting in Boyll's death. Additionally, this case involves an
alleged attempted forgery, which is a felony, and a pursuit which lasted less than sixty (60)
seconds and covered a distance of less than one mile. (.7).
I.
¶28. Miss. Code Ann. § 97-21-29 (Rev. 2000) states:
If any person shall, with intent to injure or defraud, make any instrument in his
own name, intended to create, increase, discharge, defeat, or diminish any
pecuniary obligation, right or interest, or to transfer or affect any property
whatever, and shall utter and pass it under the pretense that it is the act of
another who bears the same name, he shall be guilty of forgery.
¶29. Miss. Code Ann. § 97-21-33 (Rev. 2000) designates the penalty for a forgery:
12
Persons convicted of forgery shall be punished by imprisonment in the
penitentiary for a term of not less than two (2) years nor more than fifteen (15)
years, provided, however, that when the amount of value involved is less than
one hundred dollars ($100.00) in lieu of the punishment above provided for,
the person convicted may be punished by imprisonment in the county jail for
a term of not more than twelve (12) months, within the discretion of the court.
¶30. Pursuant to Miss Code Ann. § 1-3-11 (Rev. 1998), “the term ‘felony,’ when used in
any statute, shall mean any violation of law punished with death or confinement in the
penitentiary.”
¶31. The bank teller testified that Slater allegedly attempted to pass a forged check worth
$400. Pursuant to the above statute and the penalty associated with forgery, the crime is a
felony. The dollar amount of an attempted forged check is irrelevant.
II.
¶32. Miss. Code Ann. § 11-4-9(1)(c) (Rev. 2002) provides immunity for governmental
entities and employees acting within the course and scope of their employment duties.
However, the statute does not specifically define the term “reckless disregard," but this
Court has held the following:
Since "reckless disregard" is not defined by statute, Maldonado directs this
Court's attention to the various sources we have used in the past to define
recklessness. This Court examined this issue in Turner v. City of Ruleville,
and the Court looked to Black's Law Dictionary for guidance as to the proper
definition:
'Reckless disregard of the rights of others' is defined [a]s used
in automobile guest law, means the voluntary doing by motorist
of an improper or wrongful act, or with knowledge of existing
conditions, the voluntary refraining from doing a proper or
prudent act when such an act or failure to act evinces an entire
abandonment of any care, and heedless indifference to results
which may follow and the reckless taking of chance of accident
happening without intent that any occur....
13
735 So. 2d 226, 228-29 (Miss.1999) (quoting Black's Law Dictionary 1270 (6th
ed. 1991)). Additionally, this issue was also revisited in Maye v. Pearl River
County, where we cited a definition of recklessness given by the Fifth Circuit:
The terms 'willful,' 'wanton,' and 'reckless' have been applied to
that degree of fault which lies between intent to do wrong, and
the mere reasonable risk of harm involved in ordinary
negligence. These terms apply to conduct which is still merely
negligent, rather than actually intended to do harm, but which is
so far from a proper state of mind that it is treated in many
respects as if harm was intended. The usual meaning assigned
to do [sic] terms is that the actor has intentionally done an act of
unreasonable character in reckless disregard of the risk known
to him, or so obvious that he must be taken to have been aware
of it, and so great as to make it highly probable that harm would
follow. It usually is accompanied by a conscious indifference to
consequences, amounting almost to a willingness that harm
should follow.
758 So. 2d 391, 394 (Miss.1999)(quoting Orthopedic & Sports Injury Clinic
v. Wang Labs., Inc., 922 F.2d 220, 224 n. 3 (5 th Cir.1991) (emphasis in
original)). Additionally, this Court has held that 'wantonness is a failure or
refusal to exercise any care, while negligence is a failure to exercise due care."
Turner, 735 So.2d at 229 (citing Beta Beta Chapter v. May, 611 So. 2d 889,
895 (Miss.1992)) (quoting Covington v. Carley, 197 Miss. 535, 541-42, 19
So. 2d 817, 818 (1944)).
Maldonado v. Kelly, 768 So. 2d 906, 909-10 (Miss. 2000).
¶33. This Court has ruled on quite a few occasions in cases involving police actions within
the context of the MTCA. In Maldonado, an officer was driving a patrol car to a service
station for maintenance when he collided with a vehicle driven by Kelly. Maldonado, 768
So.2d at 908. At the time of the accident, a water tower partially blocked Maldonado’s view
and he did not see Kelly’s vehicle until right before the collision. Id. This Court held that
while “Maldonado may have been negligent, his actions do not rise to the level of reckless
14
disregard.” Id. at 911. Consequently, Maldonado and Hinds County were immune pursuant
to the MTCA, § 11-46-9(1)(c). Id.
¶34. This Court has further held that immunity pursuant to MTCA applied to the City of
Gautier and a police officer in a negligence suit. Involving the brake failure of the officer’s
patrol car which caused a collision with McGrath. McGrath v. City of Gautier, 794 So. 2d
983 (Miss. 2001). The Court based its holding, in part, upon the theory that municipalities
are exempt from an injury caused by a police vehicle since the maintenance of a police
department is a governmental function. Id. at 987.
¶35. In contrast, this Court has found, that a police officer’s actions amounted to reckless
disregard. City of Jackson v. Perry, 764 So. 2d 373, 375 (Miss. 2000). There, the police
officer was on his way to dinner with fellow officers when he was involved in an accident.
Id. At the time of the collision, the officer was speeding, however, he was not on an
emergency call and was not using either the siren or blue lights. Id. This Court held that the
officer's actions did show a reckless disregard for the safety and well-being of others and
affirmed the lower court’s ruling. Id. at 378. Likewise in Maye v. Pearl River County, 758
So. 2d 391, 395 (Miss. 1999), this Court held that a deputy sheriff acted with reckless
disregard for the safety and well-being of others when he backed up an incline knowing that
he could not see oncoming traffic. Id. Maye, the other driver, blew her horn, yet the officer
did not respond until his patrol car struck her vehicle. Id. at 394.
¶36. In Turner v. City of Ruleville, 735 So. 2d 226, 230 (Miss. 1999) the trial court’s
dismissal of a complaint for failure to state a claim was reversed and remanded by this Court.
A passenger, Turner, was injured in a collision with a drunk driver. Id. at 227. Turner sued
15
the drunk driver and the City of Ruleville when she alleged that prior to the accident an
officer stopped the drunk driver and then allowed the visibly intoxicated driver to continue
driving. Id. The Court concluded that “[b]y this alleged act, the officer allegedly showed
a reckless or wanton and willful disregard for the safety of other drivers on the road,
including Turner." Id. at 230. See also Bridges v. Pearl River Valley Water Supply Dist.,
793 So. 2d 584 (Miss. 2001) (case reversed and remanded in part due to trial court’s
misreading of Miss. Code Ann. § 11-46-5. The statute states an employee is not acting within
the course and scope of employment when the conduct constitutes fraud, malice, libel,
slander, defamation or any criminal offense.).
III.
¶37. First and foremost, Slater's actions proximately caused the collision with Boyll. This
was a tragic accident. However, there was no testimony that Slater would have avoided the
collision if the police had not pursed her. The police in this case did not collide with Boyll's
vehicle. Further, Officers Watson and Taylor responded to a call for an alleged forgery in
progress at the Omni Bank. An attempted forgery is a felony. The officers received a
dispatch and responded to the call since they were near the bank at the time of the call.
¶38. The bank teller testified that Slater allegedly attempted to pass a forged check worth
$400. The teller tried to stall Slater until the police arrived at the bank. Slater had her back
to the bank entrance; thus, she would not have known if the police were arriving at the bank.
However, Slater suddenly turned around and exited the bank. She began to flee the scene
at the moment she turned from the counter to leave the bank. Slater left the bank and was
already on her way to a vehicle when the officers arrived at the bank and pulled into a
16
parking space. The bank employee was pointing at Slater. Officer Watson began to exit his
vehicle and told her to stop, but Slater ignored him and continued to get into the vehicle.
¶39. The majority cites the officer’s failure to block Slater’s vehicle and write down her
tag number. The police did not know that the vehicle in the parking lot belonged to Slater.
In fact, the parking lot was blocked. A second police car was entering the parking lot as
Slater was leaving, and the patrol car blocked the parking lot entrance. The incident occurred
so quickly that the officers had only pulled into the space when Slater jumped into the
vehicle and sped away making writing down the license plate number difficult at best.
Testimony revealed that the vehicle did not belong to Slater. Consequently, the tag number
would not have necessarily provided the police with the identity of the suspect, Slater.
¶40. As Slater pulled out of her parking space, she nearly collided with Officer Watson’s
vehicle. About this same time, the other patrol car began to enter the parking lot. Slater then
drove her car over the sidewalk to flee from the area at an excessive speed. The majority
appears to suggest that the police had lights flashing, sirens blazing, and cars racing after
Slater in hot pursuit. The fact is, the police did not have any sirens or lights on at the time
that they pulled into the bank parking lot. Officer Taylor only turned on the lights and sirens
as the police left the parking lot of the bank. Therefore, Slater was fleeing in the vehicle
before any police lights or sirens were in use. The officers did not initiate the pursuit until
after Slater was already headed east on to Old Canton Road. In fact, Officer Watson, in the
lead parol vehicle, stopped momentarily to calm himself on Old Canton prior to following
Slater on Ridgewood Road. Slater never stopped fleeing. She finally attempted to run a red
light and unfortunately collided with Boyll’s vehicle. There was no indication that Slater
17
would not have fled and sped away at a high rate of speed even if the police had not followed
her.
¶41. A pre-MTCA case, Mosby v. Moore, 716 So. 2d 551, 557 (Miss. 1998), is helpful
because it provides guidance on the issue of police driving. This Court held that “[t]he act
of driving for police officers is a major part of their jobs. It is something that they must do
in order to fulfill their duties. They do not drive simply to get from one place to another,
instead they patrol. This type of driving does involve a discretionary, decision-making
process...” Id. Pursuit of criminals or suspected criminals is clearly in the course and scope
of police protection, this would include pursuit in the patrol car.
¶42. The officers’ actions raise the issue of whether the acts were performed in reckless
disregard to the safety of others. The officers were responding to an alleged crime in
progress, check forgery. Officer Watson testified that he told Slater to stop, however, she
continued to get into her car. Slater did not exit through the parking lot; rather she jumped
over the sidewalk in the vehicle she was driving.
¶43. Officer Watson testified that he looked at the totality of the circumstances and
considered: Slater’s actions, her refusal to stop, her almost hitting another vehicle, and her
exit at a high rate of speed. Officer Watson also considered that the traffic was light to
medium and that he saw no pedestrians, nor pedestrians in a nearby park, and no school
buses or children in the school zone. Officer Watson also considered the weather conditions.
The majority states that the route was "heavily populated." This is an unfair statement
because, although the route was in an area of high population, the officers testified that on
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this day the traffic was light and there were no children, no school buses and no pedestrians
nearby.
¶44. I believe that the police actions in this case did not amount to reckless disregard to the
safety and well being of others. The tragedy of Boyll's death is not to be diminished nor
does it go unnoticed. However, Slater’s actions caused the collision and death of Boyll.
Slater allegedly attempted to pass a forged check. Slater fled from the bank and jumped the
sidewalk. Slater began speeding away from the scene. Slater struck Boyll's vehicle.
¶45. The time and distance between Slater fleeing the bank and crashing into Boyll’s
vehicle are too inconsequential. The collision occurred in less than 60 seconds, with some
accounts being as little as 40-45 seconds, and less than one mile from the bank. The police
officers were not a part of the fatal collision. Slater struck Boyll’s vehicle only and was the
proximate cause of the collision and Boyll's subsequent death. There is no evidence to
suggest that had the police not followed Slater the collision would have been avoided. Thus,
it is unreasonable to assume that had the police not followed Slater, she would not have
continued her flight. Slater allegedly had just attempted to pass a forged check, a felony; she
ran from the bank; she refused to stop at police request; and she was bound and determined
to flee from the scene regardless of the police presence.
¶46. The testimony also showed that the officers considered many factors and in the
totality of the circumstances chose to pursue Slater. The job of a police officer is to enforce
the laws and apprehend suspects. In order to apprehend a suspect, police personnel must
reasonably be able to pursue suspects. If this were not the case, then criminals need only to
jump in their vehicles and ride away to freedom. The majority's opinion today informs
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suspects that all they need is a fast car to ensure freedom. Even for more simple cases of a
traffic violation, be it speeding, an out-of-date license tag, or other infraction, the suspect
need only gun the engine, step on the gas, breathe a sigh of relief and drive off to liberty.
¶47. This Court found reckless disregard in Perry, where the police officer sped on his way
to dinner and was not on an emergency call nor was he using either the siren or blue lights.
Perry, 764 So.2d at 375. In contrast, the officers in this case were performing their duty of
apprehending a suspect for an alleged crime and used both lights and sirens. This case is
also distinguishable because the officers did not collide with Boyll. The suspect, Slater, was
driving the only vehicle that collided with Boyll that fateful day. Furthermore, the time and
distance between Slater’s flight and the collision was too minimal to impart liability on the
City.
¶48. This was a tragic accident that claimed the life of Boyll, a mother and hard-working
individual. The unfortunate fact, however, is that Slater caused the fatal collision. This
accident was inevitable, and there was no evidence that the police caused the accident. The
reality is that in our “sue happy” society the City and its officers would have been sued in
this case in any event. It makes no difference whether the officers acted in the manner the
majority deems proper, which would be to do nothing and let the suspect flee the scene, or
whether they pursued someone allegedly attempting forgery. The actions of the officers
would be questioned in either scenario, and a lawsuit would be filed in our court system.
¶49. Under the specific facts of the case sub judice, I believe that the trial court erred in
ruling the City liable for the actions of the officers. The trial court erred by finding the City
liable. The trial court's ruling was not supported by substantial, credible, and reasonable
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evidence. Accordingly, I disagree with the majority’s ruling today and would reverse and
render judgment in favor of the City. Therefore, I respectfully dissent.
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