Miss. Dep't of Wildlife, Fisheries, & Parks v. Webb

• Decision Date: 15 March 2018
• Docket Number: NO. 2015–CT–00578–SCT,2015–CT–00578–SCT
• Citation: 248 So.3d 772
• Parties: MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES, AND PARKS v. Candace WEBB, Thomas Harper, and Kathleen D. Webb
• Court: Mississippi Supreme Court

248 So.3d 772

MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES, AND PARKS

v.Candace WEBB, Thomas Harper, and Kathleen D. Webb

NO. 2015–CT–00578–SCT

Supreme Court of Mississippi.

March 15, 2018

Rehearing Denied June 14, 2018

STEPHEN G. PERESICH, JOHANNA M. McMULLAN, ATTORNEYS FOR APPELLANT

JOE SAM OWEN, ROBERT P. MYERS, JR., ATTORNEYS FOR APPELLEES

EN BANC.

ON WRIT OF CERTIORARI

KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. On August 22, 2009, two officers with the Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) observed Donald Bernius speeding on the Tchoutacabouffa River in Harrison County, Mississippi. Prior to effecting a stop, the officers ordered Bernius to move his boat to what they contended was a safer location on the river; but Bernius fled in the opposite direction. Bernius's vessel collided with a boat operated by Christopher Webb. The collision killed Webb and seriously injured Shane Webb. Two hours after the collision, Bernius's blood-alcohol content was .25 percent. Kathleen Webb, individually and on behalf of Christopher Webb's wrongful-death beneficiaries, and Candace Webb, as Shane Webb's guardian, filed a lawsuit pursuant to the Mississippi Tort Claims Act (MTCA) against the MDWFP, arguing that the officers had acted in reckless disregard for the safety of others. The Circuit Court of the Second Judicial District of Harrison County, following a bench trial, agreed and ruled in favor of the Webbs. The Mississippi Court of Appeals reversed and rendered a judgment in favor of the MDWFP, finding that the evidence did not demonstrate that the officers had acted with reckless disregard. We granted Candace Webb's Petition for Writ of Certiorari . Finding that the Mississippi Court of Appeals misapplied the applicable standard of review and substituted its judgment for that of the trial court, we reverse the judgment of that court and reinstate and affirm the judgment of the Circuit Court of the Second Judicial District of Harrison County.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following recitation of the facts is repeated from the decision of the Mississippi Court of Appeals:

On August 22, 2009, MDWFP conservation officers Barry Delcambre and Michael Thrash witnessed Donald Bernius speeding in a boat on the Tchoutacabouffa River. The officers each navigated their separate patrol boats into the river to investigate and stop Bernius. Bernius saw the officers and came to an initial stop in the middle of the river.

According to the officers' testimony at trial, they recognized that their boats and Bernius's boat were stopped in a "dangerous area" of the river. The officers testified that this particular area of the river, known as Bend 2, has blind spots where boaters heading from either direction cannot see other boaters approaching from the opposite direction. The officers explained that, as a result of stopping and approaching Bernius, the three boats were situated in a position so as to occupy most of the width of the river, which, according to the officers, created an eminent [sic] hazard for other boaters. As a result, Officer Delcambre instructed Officer Thrash to have Bernius move to the nearby straightaway down the river to provide a safer location for them to question Bernius. Officer Delcambre proceeded ahead of Officer Thrash and Bernius with the intention of blocking oncoming traffic.

Officer Thrash ordered Bernius to follow them out of Bend 2 into the straightaway, and Bernius agreed to comply with the instructions. Officer Thrash then proceeded to the straightaway after Officer Delcambre so that Bernius could follow him. According to Officer Thrash, Bernius followed him a short distance, and then Bernius abruptly turned his vessel 180 degrees and fled in the opposite direction. Officer Thrash then signaled to Officer Delcambre, and the officers pursued Bernius.

At the same time, John Joachim was traveling down the river in his boat in the opposite direction from Bernius. Joachim provided in his statement that he observed Bernius speeding and recklessly driving on the wrong side of the river. As Bernius's boat approached, Joachim had to use evasive maneuvers to avoid a collision with Bernius. After passing Joachim's boat, Bernius collided with a boat operated by Christopher [Webb]. The collision resulted in Christopher [Webb's] death and injuries to Shane [Webb], who was a passenger in Christopher [Webb's] boat.

Neither Officer Delcambre nor Officer Thrash witnessed the collision. Once the officers arrived at the scene of the accident, they began rescue procedures, tended to the injured, alerted authorities, and assisted Bernius out of the water. Bernius was treated at Biloxi Regional Medical Center. Approximately two hours after the accident, a blood sample was drawn from Bernius, which indicated a .25 percent blood-alcohol concentration (BAC) level. Bernius later pled guilty to boating under the influence (BUI) and causing death and injury. Bernius is currently serving a twenty-year sentence in prison. As the record reflects, prior to the incident, Bernius was a paraplegic and wheelchair bound.

In connection with the boating accident, the Mississippi Department of Marine Resources (MDMR) investigated Officer Delcambre's and Officer Thrash's conduct. After interviewing Officer Delcambre and listening to an interview of [Dexter] Bouie, the passenger in Bernius's boat, the MDMR determined that Officers Delcambre and Thrash "acted completely within the scope of their duties ...." The MDMR concluded "that the only people responsible for this boating accident were the people involved in the actual accident." The Webbs subsequently filed suit against the MDWFP under the MTCA, claiming that Officers Delcambre and Thrash acted with reckless disregard for the safety of others when they failed to detain Bernius and instructed him to move to a safer location.

At a bench trial held on February 18 and 19, 2014, Officers Delcambre and Thrash testified to their knowledge and understanding of the MDWFP's Standard Operation Procedures (SOPs) for handling BUI situations. Both officers testified that, in their initial contact with Bernius, his demeanor and handling of his vessel, among other things, failed to indicate he was impaired. Officer Thrash specifically testified that, at the time, he had no reasonable suspicion to believe Bernius was intoxicated.

Officers Delcambre and Thrash testified that their first priority during their initial contact with Bernius was to ensure the safety of other boaters and citizens on the river. Officer Delcambre explained, "On that particular day[,] due to the river traffic and the fluctuations of the traffic coming north and south up the river where we encountered Bernius there in [B]end [2], due to the nature of where we [were] ... I made the judgment to move around the bend for the safety of the people and everybody involved on the river."

...

The circuit court ultimately held that, "considering the totality of the circumstances and the applicable law, as well as the admissions of the officers, the officers acted in this case with reckless disregard." ... The circuit court explained:

[The officers] did not exercise any of the care or consideration [that] they were required to do in their dealings with Bernius. They clearly intended that Bernius continue to operate his boat without any restrictions from them and without their having made any inquiries as to his reckless operation, speeding, physical abilities, or use of alcoholic beverages. They "intended to do the act that caused harm to come to the [p]laintiff."

The circuit court ultimately rendered a judgment for the Webbs. The circuit court conducted a damages hearing on November 5, 2014, and awarded damages in the amount of $1,400,000 to the guardianship of Shane, and damages of $100,000 to Kathleen, individually and on behalf of Christopher's wrongful-death beneficiaries. After applying the MTCA's statutory cap on damages, the circuit court ultimately entered a final judgment to the guardianship of Shane in the amount of $466,666.67, and to Kathleen, individually and on behalf of Christopher's wrongful-death beneficiaries, in the amount of $33,333.33.

Miss. Dep't of Wildlife, Fisheries, and Parks v. Webb , 248 So.3d 823, 825–28, 2017 WL 1396686, **2–4 (Miss. Ct. App. Apr. 18, 2017).

¶ 3. The Mississippi Court of Appeals held that "the circuit court's judgment lacks credible and substantial evidentiary support." Id. at 835, at *11. The court continued: "[t]he evidence failed to show that the officers' conduct ‘evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that high risk and the high probability of harm involved.’ " Id. (quoting Bradley v. McAllister , 929 So.2d 377, 380 (Miss. Ct. App. 2006) ).

STANDARD OF REVIEW

¶ 4. The applicable standard of review follows:

"A circuit court judge sitting without a jury is afforded the same deference as a chancellor." City of Jackson v. Sandifer , 107 So.3d 978, 983 (Miss. 2013) (citing City of Jackson v. Powell , 917 So.2d 59, 68 (Miss. 2005) ). This Court leaves undisturbed a circuit court's findings following a bench trial unless the findings "are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Sandifer , 107 So.3d at 983 (quoting Powell , 917 So.2d at 68 ). The circuit court's findings "are safe on appeal where they are supported by substantial, credible, and reasonable evidence."

City of Jackson v. Law , 65 So.3d 821, 827 (Miss. 2011) (quoting City of Ellisville v. Richardson , 913 So.2d 973, 977 (Miss. 2005) ). "Although reasonable minds might differ on the conclusion of whether or not the officer in question acted in reckless disregard, it is beyond this Court's power to disturb the findings of the trial judge if supported by substantial evidence." Richardson , 913 So.2d at 978 (citing City of Jackson v. Brister , 838 So.2d 274, 277–78 (Miss. 2003) ).

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