Lee County, Mississippi v. Kermit Davis ( 2001 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-IA-00636-SCT
LEE COUNTY, MISSISSIPPI AND LEE COUNTY
EMERGENCY COMMUNICATION DISTRICT
v.
KERMIT DAVIS AND NANCY DAVIS
DATE OF JUDGMENT: 3/9/2001
TRIAL JUDGE: HON. FRANK A. RUSSELL
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: GREGORY M. HUNSUCKER
WILLIAM M. BEASLEY
ATTORNEY FOR APPELLEES: DUNCAN L. LOTT
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: REVERSED AND RENDERED - 01/09/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WALLER, JUSTICE, FOR THE COURT:
¶1. This interlocutory appeal concerns the liability of Lee County and the Lee County Emergency
Communication District (collectively "Lee County") for property damage resulting from a failure to notify
police1 of a suspected burglary in a timely manner. We find Lee County to be immune under the
Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to -23 (2002), and reverse and render.
FACTS AND PROCEDURAL HISTORY
1
The Tupelo Police Department was the law enforcement agency with jurisdiction in this case,
though their involvement is not at issue. However, as most cases define "law enforcement" as "police,"
to avoid confusion we will refer to them as "police."
¶2. In the early morning hours of June 13, 1998, Kenneth Baker, a neighbor of plaintiffs Kermit and
Nancy Davis, noticed a white sedan pull into the driveway of the Davis residence, three men exit the
vehicle, and the sedan leave the scene. At the time, the Davises were vacationing in Florida. Baker called
911 to report the incident, but the police never responded. Fifteen minutes later, the white sedan returned
to the Davis residence, and the three men got into it and left. Baker called 911 again, and yet again the
police failed to respond. It was not until Baker made a third call to 911 and some 80 minutes after the first
call that the Tupelo Police Department responded. The officers determined that the Davis residence had
been burglarized and many valuable items stolen.
¶3. The Davises sued Lee County for damages alleging that it is a political subdivision of the State of
Mississippi and charging it with negligence and reckless disregard for failing to respond timely to an
emergency call. The trial court denied Lee County's motion to dismiss and motion for a certificate for
interlocutory appeal. We subsequently granted Lee County's petition for interlocutory appeal. See Miss.
R. App. P. 5.
STANDARD OF REVIEW
¶4. We employ a de novo standard when reviewing questions of law, including those questions
concerning the application of the Mississippi Tort Claims Act. Maldonado v. Kelly, 768 So. 2d 906,
908 (Miss. 2000) (citing City of Jackson v. Perry, 764 So. 2d 373, 376 (Miss. 2000)).
DISCUSSION
¶5. The dispositive issue in this case is whether Lee County is liable to the Davises for property damage
they sustained when their house was burglarized while they were on vacation, and the police were not
notified to respond in a timely manner.
2
¶6. The Legislature enacted the Emergency Telephone Service (911) Law, Miss. Code Ann. §§ 19-5-
301 to -317 (1995 & Supp. 2002), to improve emergency response time to requests for emergency
services:
The Legislature finds and declares it to be in the public interest to reduce the time required
for a citizen to request and receive emergency aid, and to raise the level of competence of
local public safety and 911 telecommunicators by establishing a minimum standard of
training and certification for personnel involved in the answering and dispatching of calls
to law enforcement, fire and emergency medical services.
Id. § 19-5-301.
¶7. The malfeasance about which the Davises complain was that of the Lee County 911 dispatcher's
failure to send law enforcement to their home until after Baker's third call. A dispatcher is a
"telecommunicator" within the meaning of the 911 statute and is defined as
any person engaged in or employed as a telecommunications operator by any public
safety, fire or emergency medical agency whose primary responsibility is the receipt
or processing of calls for emergency services provided by public safety, fire or emergency
medical agencies or the dispatching of emergency services provided by public safety, fire
or emergency medical agencies and who receives or disseminates information relative to
emergency assistance by telephone or radio.
Id. § 19-5-303(n) (emphasis added).
¶8. While the Davises are correct that Miss. Code Ann. § 11-46-9(1)(c) does not expressly refer to
911 services, it cannot be said that such services do not relate to police and fire protection. A plain reading
of this statute indicates that the activities of telecommunicators are covered by the police and fire protection
exemption of Miss. Code Ann. § 11-46-9(1)(c) which provides an exemption from liability for any claim
"relating to police or fire protection" absent reckless disregard:
(1) 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
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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 injury.
(emphasis added). Telecommunicators process emergency calls from the public and dispatch police and
fire personnel in response. They are trained and certified by the state2 and are, after all, in the employ of
public safety, fire or emergency medical agencies. See Miss. Code Ann. § 19-5-303(n). Not only does
a telecommunicator's job relate to police and fire protection, it is an integral link to police and fire services.
¶9. A 911 telecommunicator is not a "service supplier" under the Emergency Telephone Service (911)
Law. The limitation of liability contained in Miss. Code Ann. § 19-5-361 applies to "service suppliers" and
their employees. Miss. Code Ann. § 19-5-303(d) defines "service supplier" as "any person providing
exchange telephone service, cellular telephone service or personal communications service to any service
user throughout the county." This entity provides the Miss. Code Ann. § 19-5-303(a) "exchange access
facilities" and is, in other words, the phone company. The service supplier is obviously not liable in this
case, for there is no allegation the 911 system itself failed to operate as intended.
¶10. The "reckless disregard" exception to Miss. Code Ann. § 11-46-9(1)(c) as quoted above is not
applicable in this case. Clearly, Miss. Code Ann. § 11-46-9(1)(c) requires a reckless disregard for the
safety and well-being of any person. The Davises' argument that "[w]hether or not appellee sustained
physical injury is immaterial as they did sustain loss of property and mental pain and anguish associated with
the burglary of their home and theft of their property" is not persuasive given the clear and unambiguous
language of Miss. Code Ann. § 11-46-9(1)(c). At no time have we held the "reckless disregard" exception
to apply in cases involving only loss of property, and we decline to do so now. All prior cases discussing
the "reckless disregard" exception have involved personal injury. See, e.g., Liggans v. Coahoma
2
Miss. Code Ann. § 19-5-353.
4
County Sheriff's Dep't, 823 So. 2d 1152 (Miss. 2002) (finding "reckless disregard" exception did not
apply to case in which arrestee fell from top bunk bed in county jail); Maldonado v. Kelly, 768 So. 2d
906 (Miss. 2000) (finding deputy sheriff's actions did not amount to "reckless disregard" when his vehicle
struck and injured plaintiff); Turner v. City of Ruleville, 735 So. 2d 226 (Miss. 1999) (defining Miss.
Code Ann. § 11-46-9(1)(c) in an action for injuries sustained when police officer, who had previously
stopped drunk driver, intentionally allowed driver to continue driving).
¶11. It simply would not be practical to hold a 911 District liable for damages sustained as a result of
a telecommunicator's delay in dispatching police and fire personnel and the only damage sustained was to
property. If we were to sanction such actions, the courts would be entertaining suits alleging that police
and/or fire protection did not respond fast enough to an emergency. The Legislature surely did not intend
for the courts to develop a stopwatch test or to make a 911 District a property insurer when it enacted the
Emergency Telephone Service (911) Law.3 If the Legislature intends to include property damage an
amendment would be necessary, for the plain language of Miss. Code Ann. § 11-46-9(1)(c) lends itself
to no legislative intent for judicial development.
CONCLUSION
¶12. We find that Lee County and the Lee County Emergency Communication District are immune to
the Davises' suit to collect for property damage and loss due to the alleged tardy notification of police. The
Lee County Circuit Court should have granted their motion to dismiss. Therefore, we reverse the circuit
3
See Jay M. Zitter, Annotation, Liability for Failure of Police Response to Emergency
Call, 39 A.L.R. 4th 691 (1985), for an annotation of cases addressing the liability of police for failing to
respond or delaying in their response to an emergency call.
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court's order denying the motion to dismiss, and we render judgment here dismissing the Davises' complaint
with prejudice.
¶13. REVERSED AND RENDERED.
PITTMAN, C.J., SMITH, P.J., COBB, EASLEY AND CARLSON, JJ., CONCUR.
DIAZ, J., CONCURS IN RESULT ONLY. McRAE, P.J., AND GRAVES, J., DISSENT
WITHOUT SEPARATE WRITTEN OPINION.
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