City of Jackson v. Presley, No. 2008-CA-00381-COA (Miss. App. 11/17/2009)

• Decision Date: 17 November 2009
• Docket Number: No. 2008-CA-00381-COA.,2008-CA-00381-COA.
• Parties: CITY OF JACKSON, MISSISSIPPI, AND MIRANDA MORTON APPELLANTS, v. LYNDA KEY PRESLEY, APPELLEE.
• Court: Mississippi Court of Appeals

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CITY OF JACKSON, MISSISSIPPI, AND MIRANDA MORTON APPELLANTS, v. LYNDA KEY PRESLEY, APPELLEE.

No. 2008-CA-00381-COA.

Court of Appeals of Mississippi.

November 17, 2009.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. W. SWAN YERGER, DATE OF JUDGMENT: 12/18/2007.

DISPOSITION: AFFIRMED.

ATTORNEYS FOR APPELLANTS: PIETER JOHN TEEUWISSEN, CLAIRE BARKER HAWKINS

ATTORNEY FOR APPELLEE: ROBERT P. MYERS, JR.

BEFORE MYERS, P.J., IRVING AND BARNES, JJ.

BARNES, J., FOR THE COURT:

¶ 1. Lynda Presley filed suit against Jackson police officer Miranda Morton and the City of Jackson (the City) pursuant to the Mississippi Tort Claims Act (MTCA) stemming from a vehicular accident between Presley and Officer Morton. A bench trial ensued in the Circuit Court for the First Judicial District of Hinds County, with a final judgment entered in favor of Presley. The City appealed. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On May 20, 1998, at approximately 5:30 p.m., Officer Morton, an on-duty officer with the Jackson Police Department (JPD), was in her police cruiser patrolling an area near the "five-points" intersection¹ in Jackson, Mississippi, when she received a call from the dispatcher. A white male was reported lying in the street in the Georgetown area, unresponsive and bleeding.² Officer Morton knew the dispatcher had called another officer to assist her, but she maintained it "was [her] call." Officer Morton proceeded south on Prosperity Street to Woodrow Wilson Avenue, where she turned right. Officer Morton did not initially turn on her blue lights or siren, although traffic was extremely heavy as it was peak rush hour. Having difficulty getting into the left lane in order to turn left off of Woodrow Wilson Avenue and travel south to the Georgetown area due to the traffic, Officer Morton turned right onto Livingston Road and turned around in a parking lot. At this point, Officer Morton turned on her blue lights and sirens. Now driving south on Livingston Road, Officer Morton came upon the busy "five-points" intersection, where the traffic signal facing her was red. Officer Morton testified she knew "five points" was considered a dangerous and "high-risk intersection."

¶ 3. Officer Morton stated that she carefully proceeded into the intersection, against the red light, with her blue lights and siren on, utilizing her buzzer, crossing one lane at a time at approximately five miles per hour. The first two lanes of traffic on Woodrow Wilson Avenue stopped for Officer Morton, and she was able to cross them. However, when she came to the third lane of traffic, Officer Morton's view was obstructed by a large truck³ in the second lane. At this same time, Presley was traveling west on Woodrow Wilson Avenue in the left hand (southern-most) lane proceeding into the intersection with the right-of-way due to a green signal light, at approximately twenty to twenty-five miles per hour. She testified she never saw or heard Office Morton's patrol car enter the intersection — her view of that direction was blocked by the large bobtail truck which was beside Presley's vehicle in the second lane, traveling in the same direction. Further, Presley's windows were up, and her radio was on. Presley claims the collision occurred when, as Presley passed the bobtail truck, Officer Morton's vehicle suddenly struck the right passenger side of Presley's pickup truck, causing her vehicle to roll over several times and come to rest upside down.

¶ 4. Catouche Body, an attorney, witnessed the accident and testified at the bench trial. He was stopped at a red light at the intersection traveling east, and he was first in line. He corroborated the color of the signal lights and that neither party could see the other because of the bobtail truck. He also confirmed that Officer Morton was using a buzzer as she entered the intersection, at approximately five miles per hour, and it was a violent collision.

¶ 5. Sergeant L.C. Russell, the precinct officer who investigated the accident, testified that he determined the call to which Officer Morton was responding did not require her to utilize her blue lights or siren, or proceed through a red light against traffic. Also, he determined that both vehicles' views were completely obstructed by the bobtail truck. He agreed with Presley's counsel that it was inappropriate for Officer Morton to pull out into oncoming traffic in this situation.

¶ 6. After the accident, Presley was transported via ambulance to an emergency room at a local hospital. Presley sustained significant injuries due to the collision, including numerous bruises, lacerations, internal bleeding, and a neck injury. Presley entered into evidence several thousands of dollars in medical expenses she had incurred because of the accident, which the City did not contest. She maintained that she continues to have medical problems related to her neck and back which have negatively impacted the quality of her life.

¶ 7. The deposition of Dr. Harry Danielson, an expert in the field of neurology, was admitted into evidence. He saw Presley for neck and back pain nearly a year after the accident. He attributed the May 20 accident to Presley's neck problems and recommended cervical surgery that would cost approximately $30,000.⁴ At the time of the hearing, however, Presley had been unable to undergo the surgery due to lack of medical insurance and the financial means to pay for the surgery. Presley sustained a loss in income due to the May 20 accident — as she was unable to work for eight months.

¶ 8. Presley timely filed her complaint pursuant to the MTCA against the City and Officer Morton in 1999. She claimed that Officer Morton acted in reckless disregard for the safety of Presley during the collision. In August 2004, a bench trial ensued on the matter, and Circuit Judge Tomie Green entered a default judgment against the City and Officer Morton on the issue of liability, after she had ruled that the defendants' answers to an amended complaint were untimely filed. The trial judge awarded Presley $219,763.63 in damages. The City appealed, and the Mississippi Supreme Court found that the trial judge "abused her discretion and committed reversible error in sua sponte entering a default judgment as to liability on the day of trial." See City of Jackson v. Presley, 942 So. 2d 777, 779 (¶1) (Miss. 2006). The supreme court reversed the trial judge's final judgment and remanded the case to the circuit court for a new trial. Id.

¶ 9. In July 2007, a second bench trial ensued before a different trial judge, Circuit Judge Swan Yerger. On December 19, 2007, the trial court entered judgment in favor of Presley and against the City in the amount of $148,763.63; Officer Morton was not found personally liable. The trial judge incorporated verbatim Presley's proposed findings of fact and conclusions of law into his final judgment. From this judgment, the City timely appeals, raising three issues: (1) whether the trial court erred in adopting Presley's proposed findings of fact and conclusions of law verbatim; (2) whether the trial court erred in finding reckless disregard against the overwhelming weight of the evidence; and (3) whether the trial court erred in failing to find contributory negligence on the part of Presley.

ANALYSIS OF THE ISSUES

1. Verbatim Adoption of the Proposed Findings of Fact and Conclusions of Law

¶ 10. As this Court's standard of review relates to the above issue, we will discuss the two issues together.

¶ 11. First, we must determine if it was error for the trial court to adopt Presley's proposed findings of fact and conclusions of law verbatim, as the City argues. The City claims the trial judge failed to make any "independent and impartial" findings of his own. Upon review of the record, it is undisputable that the trial court adopted the identical findings of fact and conclusions of law submitted by Presley. However, the Mississippi Supreme Court has long held that it is not reversible error and "within the [trial] court's sound discretion" to adopt the findings of fact and conclusions of law submitted by one party verbatim. Rice Researchers, Inc. v. Hiter, 512 So. 2d 1259, 1266 (Miss. 1987). Therefore, we find no error in this regard.

¶ 12. Second, we must determine the standard of review to be utilized. Generally, this Court applies a de novo standard of review for questions of law, including the proper application of the MTCA. City of Jackson v. Brister, 838 So. 2d 274, 278 (¶13) (Miss. 2003) (citing Maldonado v. Kelly, 768 So. 2d 906, 908 (¶4) (Miss. 2000)). We note that in an MTCA-based claim, the judge sits as the finder of fact. Miss. Dep't of Wildlife, Fisheries and Parks v. Brannon, 943 So. 2d 53, 56 (¶9) (Miss. Ct. App. 2006) (citing Miss. Code Ann. § 11-46-13(1) (Rev. 2002)). Accordingly, "[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." Brister, 838 So. 2d at 277-78 (¶13) (quoting Maldonado, 768 So. 2d at 908 (¶4)).

¶ 13. However, the City argues that since the trial judge adopted Presley's findings verbatim, this Court should apply a heightened scrutiny or a de novo review pursuant to City of Greenville v. Jones, 925 So. 2d 106, 116 (¶21) (Miss. 2006) (citing City of Belmont v. Miss. State Tax Comm'n, 860 So. 2d 289, 293-95 (¶¶6-10) (Miss. 2003)). Presley counters, however, that while the law is clear that less deference is afforded verbatim findings than "independent" findings, the law is less than clear on the appropriate standard of review. Presley argues this Court should reject a de novo standard for a heightened standard of review, citing Rice Researchers and Brannon.

¶ 14. We find the City's reliance on Jones and City of Belmont for the proposition that this...