City of Ellisville v. Richardson

• Decision Date: 28 April 2005
• Docket Number: No. 2004-CA-00123-SCT.,2004-CA-00123-SCT.
• Parties: The CITY OF ELLISVILLE, Mississippi, and Michael Tolbert, Individually and in His Official Capacity, v. Tammy W. RICHARDSON, Ronnie Richardson and Shana Richardson, A Minor by and through Her Mother and Natural Friend, Tammy W. Richardson.
• Court: Mississippi Supreme Court

913 So.2d 973

The CITY OF ELLISVILLE, Mississippi, and Michael Tolbert, Individually and in His Official Capacity, v. Tammy W. RICHARDSON, Ronnie Richardson and Shana Richardson, A Minor by and through Her Mother and Natural Friend, Tammy W. Richardson.

No. 2004-CA-00123-SCT.

Supreme Court of Mississippi.

April 28, 2005.

COPYRIGHT MATERIAL OMITTED

Harold Waits Melvin, Patricia Francine Melvin, Laurel, attorneys for appellants.

Edwin L. Bean, McComb, attorney for appellees.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. In this case under the Tort Claims Act, Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2004), a city and its police officer appeal from a judgment against them for damages where the plaintiffs were injured when their truck was struck by a vehicle driven by a third party who was pursued by the officer. We affirm in part and reverse and remand in part.

FACTS AND PROCEEDINGS

¶ 2. Around dusk on December 21, 1999, officer Michael Tolbert of the City of Ellisville police department was on patrol when he spotted Joe C. Evans, Jr., driving a vehicle in the opposite direction. Aware of outstanding warrants for Evans, Tolbert made a u-turn, activated his blue lights and siren, and pursued Evans. Evans proceeded to leave the city limits of Ellisville, while heading northbound on Highway 29, with officer Tolbert in pursuit.

¶ 3. Tammy W. Richardson was also driving northbound on Highway 29. As she began to make a left hand turn into a residential driveway crossing the southbound lane of Highway 29, Evans crashed into her while passing other northbound traffic. In the car with Tammy was her minor daughter, Shana.

¶ 4. Tammy was transported first to South Central Regional Medical Center in Laurel, and then to Forrest General Hospital in Hattiesburg, where she was admitted for six days, and then discharged. She was soon readmitted for three additional days.

¶ 5. Tammy, her husband Ronnie, and Shana, filed this suit against the City of Ellisville, and officer Tolbert, individually, and in his official capacity.

¶ 6. Defendants filed their answer denying liability and raising as affirmative defenses: (1) the City is not liable to the Plaintiffs by reason of governmental immunity and (2) Tolbert is not liable to the Plaintiffs by reason of qualified immunity — performing police duties, in the scope of his employment. Following Circuit Judge Billy J. Landrum's recusal, Judge Robert L. Goza was specially appointed to hear the case which was set for a bench trial by agreed order.

¶ 7. At trial, Tolbert testified he began working for the Ellisville Police Department in November of 1998. Although he never received training for "hot" pursuits, he was trained in high speed vehicle driving, and he had studied the department's pursuit policy.

¶ 8. Tolbert testified regarding Evans's history with local law enforcement prior to the accident. Approximately one month before the accident, on November 17, 1999, he sought to execute an arrest warrant on Evans at Evans's residence at which time Evans started a fight with officer Tolbert and another officer. During the fight, Evans bit Tolbert and fled the scene. Tolbert filed charges against Evans for assaulting an officer. At the time of the pursuit, there were outstanding warrants for Evans's arrest.

¶ 9. Officer Tolbert testified that he saw Evans at an intersection. Tolbert made a u-turn and turned on his lights and then his siren as the chase began. Tolbert testified:

Q. As you pursued Evans's vehicle northbound on Highway 29 were there any vehicles that got in between you and Mr. Evans's vehicle?

A. Yes, Sir.

Q. Can you tell the judge how many?

A. Five or six.

Q. Five or six?

A. Yes, sir.

Q. And what did those vehicles do?

A. They continued traveling north on 29. I think there was one or two of them that pulled over and let me get around, but most of them didn't. And he passed most of them.

Q. As a matter of fact at the point of the collision. There were four vehicles between — behind Mrs. Richardson's vehicle after you turned on the highway. Would that be a fair statement?

A. I believe it would be, yes sir.

Q. And two you said pulled off on the right-hand shoulder and let you by them?

A. I am guessing. There were some that pulled over and it was about two of them. I don't remember exactly how many there was. I don't remember exactly how many was between us.

Q. Okay. But suffice it to say, you didn't have a clear — it wasn't a clear line between you and Mr. Evans. You had the blue lights on. You had the siren on. There were vehicles in between. He got vehicles in between you. And you were still pursuing, right?

A. Could you repeat the first part?

Q. Yes, sir. There wasn't a clear line between you and Mr. Evans because he got vehicles in between you and him; is that correct?

A. Yes, sir.

* * * *

Q. As you proceeded north, did you encounter other cars ahead of you in the northbound lanes of traffic?

A. Yes, sir.

Q. What did Mr. Evans do?

A. Passed them.

* * * *

Q. Officer Tolbert, why did you not go out into the northbound lane and follow Mr. Evans?

A. There was on-coming vehicles.

Officer Tolbert also completed an Offense Form, dated December 21, 1999, which was introduced into evidence, that Evans was "running oncoming traffic off the road" and that the Evans's vehicle passed several vehicles before striking the truck on the side. Officer Tolbert also admitted that both he and Evans were exceeding the posted speed limit.

¶ 10. A witness, Bobby Reynolds, testified that he was standing out in his driveway at around 7:15 p.m., when he saw the police car go by with the lights on and the siren blowing. Reynolds stated that the accident occurred within 15 seconds from the time they passed his driveway. He was approximately 600 feet from the scene of the accident and heard, but did not see, the collision. Reynolds testified:

the pickup truck was hit hard in the left, the driver's door, and right behind in the bed of the truck, the bed of the truck and the camper hull that was on the truck was laying across the top of the gas meter that was sitting those (sic) people's yard. The truck was sitting off in the ditch above the driveway that it was going to, and the other car was sitting in the ditch above the driveway.

¶ 11. Following trial, the trial court entered a Memorandum Opinion and Judgment, awarding $95,000.00 to Tammy $2,500.00 to Shana, and $1,000.00 to Ronnie, against the City and Officer Tolbert.

¶ 12. Defendants properly perfected their appeal and raise the following issues:

I. Whether finding of reckless disregard is contrary to the evidence.

II. Whether the trial court should apportion damages under Miss.Code Ann. § 85-5-7(7).

III. Whether damages were supported by medical proof in terms of probability.

ANALYSIS

¶ 13. This Court has stated:

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.

City of Jackson v. Brister, 838 So.2d 274, 277-78 (Miss.2003) (citations omitted). "This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo." Id. (citation omitted).

I. Reckless Disregard

¶ 14. This Court finds substantial, credible and reasonable evidence to support the trial court's finding of reckless disregard.

¶ 15. The trial judge, in his findings of facts and conclusions of law, determined the following:

[I]mmunity afforded under the Mississippi Tort Claims Act... does not apply if the employee acted in reckless disregard for the safety and well-being of any person not engaged in criminal activity at the time of the injury. In Johnson v. City of Cleveland, 846 So.2d 1031, 1037 (Miss.2003), our Supreme Court enumerated 10 factors to support a finding of reckless disregard in connection with police pursuits as follows:

1. The length of the chase

2. Type of neighborhood;

3. Characteristics of the streets;

4. The presence of vehicular or pedestrian traffic;

5. Weather conditions and visibility;

6. The seriousness of the offense for which the police are pursuing the suspect;

7. Whether the officer proceeded with sirens and blue lights;

8. Whether the officer had available alternatives which would led to the apprehension of the suspect besides pursuit;

9. The existence of police policy which prohibits pursuit under the circumstances; and

10. The rate of speed of the officer in comparison to the posted speed limit.

Additionally, the City of Ellisville had a Pursuit of Motor Vehicle policy which was admitted into evidence as Exhibit K. The City of Ellisville's Pursuit of Motor Vehicles policy Section 7748-6 enumerates that an officer must ask himself before initiating a fast pursuit such as:

1. Does the seriousness of the crime committed, or being committed, warrant a high speed chase at unsafe speeds?

2. What is the probability of apprehending the fleeing person?

3. Will the pursuit take place on residential streets, in a business district, or on a freeway? What is the danger to other innocent citizens in these areas?

4. What are the traffic and weather conditions?

5. What is the condition of the police cruiser? How are the tires, brakes, steering, etc.?

Therefore, I conclude as a matter of law that the Officer Tolbert's actions on the night in question violated the criteria established in the Johnson Case as well as the pursuit policy established by the City of Ellisville.... Evans under the circumstances was in disregard for the safety and well-being of others, including the Plaintiffs, who were lawful using the public highway and were not engaged in criminal activity.

Although reasonable minds might differ on the conclusion of whether or not the officer in question acted in...