City of Greenville v. Jones, 2003-CA-02640-SCT.

• Decision Date: 30 March 2006
• Docket Number: No. 2003-CA-02640-SCT.,2003-CA-02640-SCT.
• Citation: 925 So.2d 106
• Parties: CITY OF GREENVILLE, Mississippi v. John H. JONES and Monica Jones.
• Court: Mississippi Supreme Court

925 So.2d 106

CITY OF GREENVILLE, Mississippi v. John H. JONES and Monica Jones.

No. 2003-CA-02640-SCT.

Supreme Court of Mississippi.

March 30, 2006.

Timothy Dale Crawley, Vaterria Lashaunda McQuitter, Ridgeland, attorneys for appellant.

Willie L. Bailey, Willie Griffin, Greenville, attorneys for appellees.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. In this Mississippi Tort Claims Act case, the City of Greenville appeals from the circuit court's final judgment entered for the plaintiffs subsequent to a bench trial. Finding error by the Circuit Court of Washington County, we reverse and render judgment here in favor of the City of Greenville.

FACTS AND PROCEEDINGS IN THE CIRCUIT COURT

¶ 2. On August 15-16, 1999, four bomb threat calls were placed to the E-911 dispatcher at the Greenville Police Department (GPD). On August 15, an unidentified caller stated, in two separate calls, that a bomb had been placed in the GPD. On August 16, an unidentified caller stated, in two separate calls, that a bomb had been placed in Greenville's T.L. Weston High School. While law enforcement officials were concerned about the safety of the personnel and citizens occupying the GPD building, their greater concern was understandably focused on the high school due to the potential serious harm to the children. After the calls of August 16, police officers and fire department personnel and vehicles were immediately dispatched to Greenville-Weston High School, which was evacuated.

¶ 3. The GPD utilized the CADS system which had the capability of tracing these 911 calls. A check of the CADS system revealed that all four threatening phone calls had been made from a cellular telephone serviced by Cellular South, a division of Telepak, Inc. After receiving a circuit court order directing Telepak to release certain phone records for the relevant dates and times, the GPD in due course received a packet from Telepak which purportedly contained the name of the person owning the cellular phone from which the threatening calls had been placed. Five pages of this six-page packet were generated from a search conducted by a Telepak employee. This search revealed that all four of the bomb threat calls had been placed from a cellular phone bearing a particular phone number. Unfortunately, when this same Telepak employee entered the phone number information into the Telepak system in order to determine the name of the owner of the cellular phone bearing this phone number, he transposed two of the numbers and thus inadvertently entered into the system the wrong phone number. When this incorrect information was entered into the system, the resulting data revealed that the cellular phone bearing the transposed phone number belonged to John H. Jones. Thus, page two of the packet revealed that Jones owned the cellular phone bearing the transposed phone number; however, pages 3-6 of the packet revealed that the four bomb threat calls had been placed from the cellular phone bearing the untransposed phone number.¹

¶ 4. Upon receiving the Telepak packet the GPD officials, based on the information contained on the second page regarding John H. Jones, sought and received a county court order directing that a warrant be issued for Jones's arrest. Jones was then arrested and subsequently indicted for the felony offenses of falsely reporting that explosives had been placed in the GPD and T.L. Weston High School. Jones's public defender, Marie Wilson (who has since become a Chancery Judge for the Ninth Chancery Court District for the State of Mississippi), in reviewing the discovery materials produced in the criminal case, discovered the transposed cell phone numbers. After Wilson brought this information to the attention of the District Attorney, the circuit judge, at the request of the State of Mississippi, entered an order of nolle prosequi, thus ending the criminal prosecution of Jones on these charges.

¶ 5. Approximately ten days after his criminal charges were nolle prossed, Jones and his wife, Monica, commenced civil litigation against Telepak, doing business as Cellular South, as well as Telepak employees who were named as "John Doe" defendants. This suit sought compensatory and punitive damages for Jones and damages for Mrs. Jones on a loss of consortium claim. The complaint was later amended to add the City of Greenville as a defendant, thereby asserting a claim for damages against the City pursuant to the Mississippi Tort Claims Act (MTCA). See Miss.Code Ann. §§ 11-46-1, et seq. (Rev. 2002). The Joneses eventually settled with Telepak, which was dismissed with prejudice by way of a circuit court order, and a second amended complaint was filed against the City of Greenville.

¶ 6. In due course, a bench trial was conducted before the Circuit Court of Washington County, Judge Betty W. Sanders, presiding. At the conclusion of the presentation of the evidence, Judge Sanders took this matter under advisement, and subsequently entered a final judgment finding "that the GPD acted in reckless disregard as to John Jones." The final judgment also provided for an award of damages in the amount of $95,000 to John Jones, and $500 to Monica Jones. It is from this final judgment that the City of Greenville now appeals.

DISCUSSION

¶ 7. The City assigns only two errors for us to consider in today's appeal. We reorder and restate the City's issues as follows: (1) Whether the circuit court erred in finding the GPD acted in reckless disregard of Jones's safety and well-being; and, (2) whether the circuit court erred in failing to apportion fault to the settling defendant, Telepak, pursuant to Miss.Code Ann. § 85-5-7. Finding the first issue to be dispositive of this case, we address only this issue.

I. WHETHER THE CIRCUIT COURT ERRED IN FINDING OFFICERS OF THE CITY OF GREENVILLE POLICE DEPARTMENT ACTED IN RECKLESS DISREGARD OF THE SAFETY AND WELL-BEING OF JOHN H. JONES.

¶ 8. Whenever this Court considers on appeal a trial judge's findings of fact, we appropriately afford deferential treatment. Even though we quite often review circuit court cases based upon judgments entered after a jury trial, whenever we are called upon to consider the findings of fact of a circuit judge sitting without a jury, that circuit judge is entitled to the same deference concerning his/her findings of fact as is afforded to a chancellor, who almost always sits, without a jury. City of Jackson v. Perry, 764 So.2d 373, 376 (Miss. 2000) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss. 1993)).

¶ 9. To say that John Jones and his family had to endure an extremely traumatic experience because of the criminal charges brought against Jones is a gross understatement. Wilson's trial testimony describes her first encounter with Mr. and Mrs. Jones after being appointed to represent Mr. Jones on the criminal charges:

He came with his wife. And — and I was impressed by them because they were such a young couple. And I think during the interview, it came out that they had very young children. They seemed like a nice, sweet young couple, and they were so upset. She was crying. He was crying. It was just a mess, you know, quite frankly.

Jones testified at trial that he and his wife had two young children, an eight-year old daughter and a fifteen-year old son. One can only imagine how a father explains to his children that he has been arrested, jailed and charged with criminal activity.

¶ 10. Thus, that the Joneses are entitled to monetary damages for what has happened to them should hardly be cause for debate. However, as with any civil tort suit for money damages, before considering the issue of damages, the first hurdle a plaintiff must successfully overcome with the trier-of-fact is proof of liability — duty, breach of duty, and proximate causation. In this MTCA case, the plaintiffs have an additional hurdle. The Legislature of this State has expressly declared its intent that as a matter of public policy, the state and its political subdivisions, inter alia, are immune from suit due to any "tortious act or omission" by any employee of the state or its political subdivisions even though such act or omission "may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature." Miss.Code Ann. § 11-46-3(1). However, there are exceptions. The MTCA provides, inter alia:

(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 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.

Miss.Code Ann. § 11-46-9(1)(c). Thus in today's case, notwithstanding any damages suffered by John and Monica Jones, before they can recover damages against the City of Greenville, they must prove the Greenville police officers in question, while engaged in the performance of their duties relating to police protection, "acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury." Id.

¶ 11. Our cases are by now legion where we have defined the phrase "reckless disregard" as it relates to MTCA cases. We have previously stated:

In order to recover under the MTCA, a plaintiff must prove that the officer "acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury." Miss.Code Ann. § 11-46-9(1)(c); see City of Ellisville v. Richardson, 913 So.2d 973, 977-79 (Miss.2005). "Reckless disregard" has been described by this Court as "a higher standard than gross negligence and `embraces willful or wanton conduct which...