City of Jackson v. Lipsey

• Decision Date: 09 January 2003
• Docket Number: No. 2001-CA-01271-SCT.,2001-CA-01271-SCT.
• Citation: 834 So.2d 687
• Parties: CITY OF JACKSON, Mississippi v. Lanier LIPSEY.
• Court: Mississippi Supreme Court

834 So.2d 687

CITY OF JACKSON, Mississippi v. Lanier LIPSEY.

No. 2001-CA-01271-SCT.

Supreme Court of Mississippi.

January 9, 2003.

Hilton Ray Miller, Oxford, Terry Wallace, Jackson, J. Anthony Williams, attorneys for appellant.

Pieter John Teeuwissen, Dale Danks, Jr., Jackson, attorneys for appellee. Before PITTMAN, C.J., CARLSON and GRAVES, JJ.

CARLSON, J., for the Court.

¶ 1. The City of Jackson appeals the ruling of the Circuit Court of the First Judicial District of Hinds County, which found the City and one of its police officers acted in reckless disregard in causing the automobile accident which occurred between the officer and Lanier Lipsey, thus waiving immunity under the Mississippi Torts Claim Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002). Finding the proper standard was applied in determining the acts of the City and the police officer rose to the level of reckless disregard, this Court affirms the judgment of the circuit court.

¶ 2. Lanier Lipsey ("Lipsey") was injured on May 27, 1999, when his vehicle was struck by another vehicle operated by Jackson Police Department Officer Delma Gill Baker ("Baker"). Pursuant to Miss. Code Ann. § 11-46-1, Lipsey provided notice to the City of Jackson of his claim against Baker, individually¹ and in his official capacity, and the City of Jackson (collectively "the City"). The City of Jackson failed to accept liability and denied Lipsey's claim.

¶ 3. On August 16, 2000, Lipsey filed this action against the City and Officer Baker alleging the actions of Officer Baker constituted reckless disregard and were the proximate cause of the accident. Following a bench trial, the trial court issued its Memorandum Opinion Subsequent to Bench Trial finding that Officer Baker and the City acted with reckless disregard. The trial court entered a final judgment which incorporated the memorandum opinion, that judgment being in favor of Lipsey and against the City and Officer Baker, in his official capacity, in the amount of $32,057.09. The City timely filed this appeal.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 4. At approximately 1:30 a.m. on May 27, 1999, Lipsey was returning home from his second job with Service Master. Lipsey was traveling on McDowell Road in a westerly direction. At the same time, Officer Baker was responding to an emergency dispatch regarding an auto burglary in progress. At the time of the dispatch, Officer Baker was in his patrol car in a parking lot at the intersection of Woody Drive and Terry Road. Electing to respond to the dispatch although he was neither the primary nor secondary unit, Officer Baker proceeded east on McDowell Road.

¶ 5. At the bench trial, Officer Baker and Lipsey were the only two witnesses called to testify regarding the accident. Each witness recounted a very different version of events from the night of May 27, 1999. Officer Baker testified that as soon as he pulled out in response to the dispatch, he turned on his blue lights and siren. Officer Baker learned the subjects were seen running through the Jackson Square shopping center. In an attempt to cutoff the subjects, Officer Baker made a left turn off of McDowell Road onto Kimbrough Drive. Officer Baker testified that even with his blue lights and siren engaged, Lipsey did not see Baker nor attempt to stop; therefore, the two vehicles collided. Officer Baker stated that the speed limit for eastbound traffic on his side of the road was 40 mph and that the speed limit for westbound traffic on Lipsey's side of the road was 30 mph. Officer Baker testified that he determined Lipsey to have been traveling between 40 and 45 mph, and he stated he was traveling between 45 and 50 mph.

¶ 6. Officer Baker testified that after the accident, he radioed the police dispatcher to have both Sergeant Dorr and American Medical Response ("AMR") dispatched to the accident scene. While Sergeant Dorr was investigating the accident, Officer Baker stated he smelled the odor of an intoxicant in Lipsey's vehicle. Officer Baker then called Officer Richardson to the scene to administer a blood-alcohol test. Officer Richardson accompanied Lipsey to Central Mississippi Medical Center where Lipsey's blood was tested for alcohol approximately one hour after the accident. Lipsey's blood alcohol level registered at 0.02. Officer Richardson testified Lipsey was never charged with a DUI because his blood alcohol limit was not over the legal limit of 0.10.² Officer Richardson agreed that 0.02 was an almost nominal level.

¶ 7. Officer Baker admitted to being involved in six other accidents while being employed with the Jackson Police Department ("JPD"). Of those six accidents, Office Baker stated he had been charged with two of those accidents.

¶ 8. Lipsey's testimony differed greatly from Officer Baker's testimony. Lipsey testified he was traveling in a westerly direction on McDowell Road in the far right lane. However, Lipsey testified Officer Baker was operating his vehicle without headlights, blue lights or a siren. Lipsey testified he had no warning and no time to react to avoid the collision because Officer Baker turned so suddenly in front of his vehicle. Lipsey also stated he knew the speed limit on McDowell Road to be 35 mph, and he was traveling approximately 35 or 40 mph at the time of impact.

¶ 9. Lipsey testified he received head, neck and lower back injuries which caused him to miss two weeks of work. Lipsey denied having anything to drink the night of the accident, but did state his brother, who was a passenger in his car, had been drinking.

¶ 10. As stated previously, the accident was investigated by Sergeant Dorr who concluded that Officer Baker failed to yield the right-of-way to Lipsey. Sergeant Dorr noted there was no improper driving by Lipsey.

¶ 11. Although Lipsey's spouse testified, two other witnesses were called to testify, but the trial court determined their testimony provided "little or no benefit for the resolution of the issues in this case" and their testimony was therefore not addressed in the memorandum opinion.

¶ 12. The trial judge, as the fact-finder, determined that Officer Baker was attempting to apprehend the suspects without drawing attention to his vehicle's approach by failing to turn on his headlights, blue lights or siren. The trial judge held this conduct was in reckless disregard to other citizens lawfully traveling on McDowell Road. The trial judge also concluded the City of Jackson was on notice due to Officer Baker's poor driving record.

¶ 13. The trial judge also determined Lipsey incurred $2,239.09 in medical expenses, $2,800.00 in property damage to his car and $2,018.00 in lost wages. The trial court also awarded Lipsey $25,000 in damages for past physical pain and suffering and mental anguish. Therefore, a judgment in the amount of $32,057.09 was entered against the City of Jackson and Officer Baker in his official capacity as an officer of the JPD.

DISCUSSION

¶ 14. This Court recognizes that the trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987); Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963). Where there is conflicting evidence, this Court must give great deference to the trial judge's findings. McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987). This Court reviews errors of law, including the proper application of the Mississippi Tort Claims Act, de novo. City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000) (citing Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)).

I. WHETHER UNDER THE MISSISSIPPI TORT CLAIMS ACT, THE CITY OF JACKSON SHOULD BE GRANTED IMMUNITY WHEN IT RESPONDS TO AN EMERGENCY DISPATCH OF A CRIME IN PROGRESS.

II. WHETHER THE TRIAL COURT ERRED IN FINDING "RECKLESS DISREGARD" WHEN OFFICER BAKER TESTIFIED HE HAD HIS LIGHTS AND SIREN ON AND WAS RESPONDING TO AN EMERGENCY DISPATCH.

¶ 15. The City argues the trial court erred in finding Officer Baker was acting in reckless disregard to the safety of others when he was responding to an emergency dispatch. The City also argues that the care used in Officer Baker's pursuit was reasonable and necessary, and that because Officer Baker did not act in reckless disregard, the MTCA exempts the City from all liability. Lipsey, however, argues the trial court was correct in its finding that Officer Baker's conduct amounted to reckless disregard to all citizens lawfully traveling on McDowell Road. Lipsey also argues the trial court was correct in concluding the City was on notice due to Officer Baker's poor driving record. Therefore, according to Lipsey, Officer Baker and the City waived any claim of governmental immunity under the MTCA.

¶ 16. Miss.Code Ann. § 11-46-9 states in pertinent part:

(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;

(emphasis added). This Court has defined reckless disregard:

While we agree that reckless disregard would encompass gross negligence, we hold that reckless disregard is a higher standard than gross negligence by which to judge the conduct of officers.

"Disregard" of the safety of others is at least negligence if not gross negligence. Because "reckless" precedes "disregard," the standard is elevated. As quoted above from Black's Law Dictionary, "reckless," according to the circumstances, "may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive or negligence." Id. at 1270 (emphasis added)....