Evans v. Trader, 90-CA-920

• Decision Date: 21 January 1993
• Docket Number: No. 90-CA-920,90-CA-920
• Citation: 614 So.2d 955
• Parties: Oliver EVANS v. Kenny TRADER, Individually and in His Official Capacity as a Police Officer of the City of Greenville, Mississippi, and the City of Greenville, Mississippi.
• Court: Mississippi Supreme Court

Page 955

614 So.2d 955

Oliver EVANS v. Kenny TRADER, Individually and in His Official Capacity as a Police Officer of the City of Greenville Mississippi, and the City of Greenville Mississippi.

No. 90-CA-920.

Supreme Court of Mississippi.

Jan. 21, 1993.

Rehearing Denied March 25, 1993.

Ellis Turnage, Morris & Turnage, Cleveland, for appellant.

G. Kenner Ellis, Jr., Greenville, for appellees.

Before HAWKINS, C.J., and BANKS and McRAE, JJ.

McRAE, Justice, for the Court:

Oliver Evans appeals from an order entered on August 23, 1990, by the Circuit Court of Washington County granting summary judgment in favor of the defendants, Kenny Trader, a Greenville police officer, and the City of Greenville, and dismissing his personal injury action against both defendants with prejudice. We find that the trial court erred in granting summary judgment in favor of defendant Trader because Evans' claim embodied genuine issues of fact which a circuit court was not at liberty to resolve. Evans does not argue against the grant of summary judgment in favor of the City. Accordingly, we reverse in part and affirm in part.

I.

On October 9, 1989, Evans filed a complaint alleging that Trader, while acting within the course and scope of his employment and while engaged in the performance of his official duties, committed certain acts of aggression while arresting Evans. This resulted in the infliction of a hairline fracture to Evans' second cervical vertebra. The defendants moved for summary judgment, and both parties introduced affidavits and depositions to support their respective positions.

The parties agreed that Evans' neck injury was sustained at a time when Evans was under arrest and attempting to flee. Apart from these fundamental facts, Evans' account differs sharply from that of Officer Trader. According to Evans, he left work on October 20, 1988, at about 2:00 a.m. and drove to the home of Flora Thomas, a female companion. Later Evans took Thomas to Jim Boy's, a store at 1400 Nelson in Greenville, to get something to eat. Evans testified that he stayed in the car while Thomas went in the store. After Thomas emerged from the store and got back in the car, a police car pulled up behind him with flashing lights. Evans stated that he had not yet pulled away from the store when the policeman stopped him.

Officer Trader asked Evans for his drivers license, but Evans told him that he did not have his license with him. Evans testified that he had a Texas license, but he did not know where the license was at the time. Instead, he gave Trader a Veterans' Administration card bearing his social security number. Upon checking with the National Crime Information Center, Trader discovered that Evans had once possessed a Mississippi license but that the Mississippi license was suspended. Trader arrested Evans for driving with a suspended license. According to Evans, Trader cursed him, saying, " 'Well, I ain't bullshitting with you, you know, boy.' He say, 'I take your ass down to jail right now.' "

Evans states that after being handcuffed, he remembered that he had left some money in his car. While reaching in to get it, Trader violently shoved him up against the side of the car. Trader shoved him again after he retrieved the money and emerged from the car. A verbal exchange concerning the Texas license ensued while Evans and Trader walked toward the police car, and Trader continued to shove Evans. At this point, Evans testified that

I spun away from him. Although I still had handcuffs on, I still, you know, resisted him, you know, pushing me. It became a shoving match. Well, it really wasn't too much of a shoving match because I had handcuffs on.

* * * * * *

Q. How long did that go on?

A. For two or three minutes. And the next time he came closer to me, I tried to break and run. I ran around back on the other side--the driver's side of the car. He chased me around there. Well, I came back around the other side of the car back toward the passenger side, and then I tried to run around a tree.

Q. And is that where he caught you?

A. No, He didn't catch me there. It was something like a vacant--where they had tore down a house there, it was a clean, vacant lot there. We ran over in that area. Tried to put a couple of fakes on him, you know.... The guy was running behind me, telling me I can't get away from him.... If I hadn't had any handcuffs on, I'd be gone. He couldn't have caught me, no way in the world. And he know it, too.

Evans testified that Trader soon caught up with him and threw his arm around Evans' neck in a choke hold. Then,

A. [A]ll of a sudden, the ground come up, bam. And he was right on top of--the full weight of his body just came down right in the middle of the center of my back and just pinned me all the way down to the ground. He pinned me so hard around--when he pinned me so hard like that around the neck and the force of the ground, I heard my neck say (snapped fingers), like that. I said, "I don't feel right." It wasn't--you know, it was just like a (snapped fingers), like that. I felt weak, dizzy. He helped me back off the ground after he stomped me a couple of times.

Evans claims that on the way to the police station, Trader said to him, "I told you you couldn't get away from me," and started "showing me his biceps and muscles and stuff."

Trader tells the story differently. Trader's affidavit states:

[O]n October 20, 1988, ... at approximately 2:30 A.M. while on routine patrol I saw a 1977 red automobile with Illinois license plates parked in front of a house of Muscadine Street, just north of Nelson Street, in the City of Greenville. The subject house is known for drug activity and the Nelson Street area is a high crime area. The driver of the red automobile appeared to be talking to a man at the curb in front of the house, and there was also a passenger in the right front seat of the automobile.

3. As I neared the red automobile, it suddenly sped away and proceeded south on Muscadine toward Nelson. The driver was operating the vehicle erratically, and in a careless and reckless manner. I turned on my blue light, and the red automobile came to a stop at an angle to the curb after turning onto Wilzinski Street.

Trader testified in his deposition that after he discovered Evans was driving with a suspended driver's license, he performed an arrest.

4. In accordance with standard and accepted police procedure, I handcuffed Oliver Evans with his hands behind his back. Evans then requested that he be allowed to get some money from his vehicle and to close or lock the passenger door. He went to the passenger side of the vehicle and exchanged some words with the female passenger, the last of which were to the effect that "he had to go." At that point, Evans broke and ran south on Wilzinski Street. I gave chase, and Evans ran around a tree and through several residential lots. As he was running through a vacant lot near the intersection of Wilzinski and Gloster Streets, he appeared to trip or lose his balance, falling forward and face down on the ground. I lifted Evans up by his shoulders and escorted him back to my patrol car, placed him inside, and drove to the Greenville Police Station.

When Evans complained of neck pain at the police station, he was taken to Delta...