Herndon v. Miss. Forestry Comm'n

• Decision Date: 11 August 2011
• Docket Number: No. 2009–CA–00700–COA.,2009–CA–00700–COA.
• Parties: H.K. HERNDON, Jr. and Myrna J. Herndon, Appellantsv.MISSISSIPPI FORESTRY COMMISSION and Jimmy D. Bond, Appellees.
• Court: Mississippi Court of Appeals

67 So.3d 788

H.K. HERNDON, Jr. and Myrna J. Herndon, Appellants

v.MISSISSIPPI FORESTRY COMMISSION and Jimmy D. Bond, Appellees.

No. 2009–CA–00700–COA.

Court of Appeals of Mississippi.

Dec. 7, 2010.Rehearing Denied May 10, 2011.Certiorari Denied Aug. 11, 2011.

Lampton O. Williams Jr., Joseph H. Montgomery, Poplarville, Cory Morris Williams, attorneys for appellants.Stephen Giles Peresich, Biloxi, Johanna Malbrough McMullan, Jackson, Harry Johnson Schmidt III, Pascagoula, attorneys for appellees.Before MYERS, P.J., GRIFFIS and BARNES, JJ.BARNES, J., for the Court:

¶ 1. On October 20, 2005, H.K. Herndon Jr. was driving through a dense, early-morning fog on Highway 53 in Poplarville, Mississippi. At the same time, Jimmy D. Bond, an employee of the Mississippi Forestry Commission (MFC), was operating an MFC transport truck and, not seeing Herndon's vehicle, pulled onto Highway 53 from the driveway of the MFC's field office. Unable to avoid the MFC truck, Herndon crashed his vehicle into the rear tires of the transport truck. Herndon, along with his wife, Myrna J. Herndon, filed a complaint alleging that the MFC and Bond were liable for his resulting injuries. The Circuit Court of Pearl River County granted a motion for summary judgment filed by the MFC, holding that the MFC and Bond, as its employee, were immune from liability under the Mississippi Tort Claims Act (MTCA) ¹ and the Mississippi Emergency Management Law (MEML).² The circuit court also found that Bond's actions did not constitute reckless disregard. The Herndons have appealed the circuit court's order. Finding that there was no genuine issue of material fact that the MFC and Bond were immune from liability, or that Bond acted with reckless disregard, we affirm the circuit court's judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On October 19, 2005, Bond was ordered by his MFC supervisor, Vincent Smith, to drive an MFC transport truck to pick up a bulldozer from the repair shop the following morning. The bulldozer was needed for fire-protection services as Pearl River County was under a state of emergency as a result of Hurricane Katrina, which had struck the Mississippi Gulf Coast on August 29, 2005. Hurricane Katrina caused widespread destruction, including an extremely high amount of downed timber and storm debris. This situation, coupled with severe drought conditions in October 2005, created a significant wildfire hazard in south Mississippi. On September 12, 2005, the MFC issued a news release stating that twenty counties in south Mississippi, including Pearl River County, were under “official bans on open outdoor burning.”

¶ 3. The next morning, at approximately 7:00 a.m., Bond arrived at the MFC field office in Poplarville. Bond drove the transport truck to the field office entrance, preparing to enter onto Highway 53. There was a heavy fog present. At the same time, Herndon was traveling at approximately 40 miles per hour in a southerly direction on Highway 53.

¶ 4. Bond looked up and down the highway for oncoming traffic, and seeing none, he began turning onto the road. Herndon came upon the MFC truck, and he swerved, hitting the rear tires of the MFC truck. Bond got out of the transport truck to check on Herndon and, according to Herndon, stated: “I'm sorry, I didn't see you and it's my fault.” However, Bond testified that he merely asked Herndon, “Are you all right?” As a result of the accident, Herndon sustained injuries resulting in approximately $83,500 in medical expenses.

¶ 5. The Herndons filed a notice of claim pursuant to Mississippi Code Annotated section 11–46–11 (Rev.2002) and subsequently filed a complaint for negligence and loss of consortium on March 15, 2007. The MFC filed a motion for summary judgment claiming immunity from liability under Mississippi Code Annotated section 11–46–9(1)(c) (Rev.2002) of the MTCA and Mississippi Code Annotated section 33–15–21(a) (Rev.2005) of the MEML. On March 9, 2009, the circuit judge denied the Herndons' motion to compel the production of Bond's personnel file. Then, on April 6, 2009, the circuit judge issued an opinion and judgment, which stated that the MFC was entitled to immunity from liability under both the MTCA and the MEML. The circuit court also stated that Bond's actions did not constitute “reckless disregard” or “willful misconduct.” The Herndons now appeal the court's judgment. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. Under Mississippi Rule of Civil Procedure 56(c), summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” A circuit court's grant or denial of a motion for summary judgment is reviewed under a de novo standard. Price v. Clark, 21 So.3d 509, 517 (¶ 10) (Miss.2009) (citing Arceo v. Tolliver, 949 So.2d 691, 694 (¶ 6) (Miss.2006)).

I. Whether the circuit court erred in finding that the MFC and Bond were immune from liability under the MTCA and MEML.

A. MTCA

¶ 7. Under Mississippi Code Annotated section 11–46–9(1)(c), governmental entities and their employees “engaged in the performance or execution of duties or activities relating to police or fire protection ” are immune from liability from certain torts if they are “acting within the course and scope of their employment[.]” (Emphasis added). The only exception is if 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.”

¶ 8. The Herndons argue that the MFC is not an agency contemplated under this portion of the MTCA statute; therefore, the MFC and Bond, as its employee, are not immune from liability. In Maldonado v. Kelly, 768 So.2d 906, 909 (¶ 6) (Miss.2000), the Mississippi Supreme Court stated that:

The purpose of Miss[issippi] Code Ann[otated section] 11–46–9 is to “protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim.” Police officers and fire fighters are more likely to be exposed to dangerous situations and to liability, and therefore, public policy requires that they not be liable for mere negligence. Entities engaged in police and fire protection activities will be liable for reckless acts only.

(Internal citations omitted) (emphasis added). The MFC claims that Bond's actions on the day of the accident constituted “fire protection.” The circuit court agreed with the MFC, finding that the MFC, “by its very nature, is engaged in the act of fire protection services.” The MFC also contends that the Herndons admitted in their “Counter–Statement As to Facts that are in Dispute with Defendants” that the MFC is an agency within the scope of the MTCA.

¶ 9. Mississippi Code Annotated section 49–19–3(b) (Supp.2009) states that one of the duties bestowed upon the MFC is the following:

To take such action and provide and maintain such organized means as may seem necessary and expedient to prevent, control and extinguish forest fires, including the enforcement of any and all laws pertaining to the protection of forests and woodland.

(Emphasis added). Mississippi Code Annotated section 49–19–117(3) (Rev.2003) states that the MFC is authorized to use tax funds “in order to foster, encourage, promote and bring about ... organized forest fire control throughout the State of Mississippi ... [and] to purchase fire support equipment, including transport trucks, tractors and other related fire support equipment.” Furthermore, Bond's job description states that he is to “participate[ ] in fire suppression work.” Photographs contained in the record also show that the transport truck driven by Bond had the word “FIRE” clearly marked on both sides of the cab of the truck.

¶ 10. The Mississippi Supreme Court has held that “if a statute is plain and unambiguous[,]” there is no need for statutory interpretation. Miss. Methodist Hosp. and Rehabilitation Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 607 (¶ 18) (Miss.2009) (citing In re Guardianship of Duckett, 991 So.2d 1165, 1181 (¶ 37) (Miss.2008)). It went on to say that:

However, statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue. The best evidence of legislative intent is the text of the statute; the Court may also look to the statute's historical background, purpose, and objectives. If a statute is ambiguous, it is the Court's duty to “carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.”

Id. at 607–08 (internal citations omitted). While the Herndons are correct that our courts have not applied this statute to the MFC, on its face, the statute does not limit such immunity to police officers and fire departments. It merely states that the duties or activities must relate “to police or fire protection.” Bond was not merely a truck driver; he was a forest ranger with fire-suppression duties clearly outlined in his job description. In his affidavit, Bond stated: “As a fire crew member, I was responsible for operating trucks and bulldozers, maintaining fire lanes, assisting with back burning to prevent fires, and performing general fire-fighting duties. In particular, on October 20, 2005, I was operating the 1991 International Flatbed truck in route to pick-up the bulldozer needed for fire prevention, fire suppression and general fire-fighting duties on that day.” As the MFC participates in fire-fighting activities, it is prone to emergency situations such as those faced by the police or traditional firefighters. In fact, the record reflects that numerous wild fires were occurring all over south Mississippi during that time period, including three in Pearl River County on the day prior to the accident. Thus,...