Mississippi Dept. of Public Safety v. Durn

• Decision Date: 31 December 2003
• Docket Number: No. 2002-CA-01270-SCT.,2002-CA-01270-SCT.
• Citation: 861 So.2d 990
• Parties: MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY v. Sammie L. DURN.
• Court: Mississippi Supreme Court

861 So.2d 990

MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY v. Sammie L. DURN.

No. 2002-CA-01270-SCT.

Supreme Court of Mississippi.

December 31, 2003.

Benjamin E. Griffith, Chris Powell, attorneys for appellant.

J. Kirkham Povall, Cleveland, attorney for appellee. Before PITTMAN, C.J., WALLER and GRAVES, JJ.

WALLER, Justice, for the Court.

¶ 1. Sammie L. Durn brought suit against the Mississippi Department of Public Safety and State Trooper Reginald Lantern pursuant to the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2003), for injuries sustained in a motor vehicle accident with Lantern.¹ The circuit court found that Lantern acted in reckless disregard of Durn's safety and well-being and that Durn had made an improper left turn. The circuit court awarded Durn $160,453 in damages. The Department of Public Safety appeals, contending that Lantern's actions were protected by the police exemption under the MTCA, and, alternatively, that the circuit court abused its discretion in awarding damages. We affirm liability under the MTCA but reverse and remand because, after finding that Durn had made an improper left turn, the circuit court did not determine the percentage of Durn's comparative fault and reduce the amount of the actual damages awarded.

FACTS

¶ 2. At 6:30 a.m. on October 11, 1999, Durn was driving south on a two-lane area of U.S. Highway 49 north of Indianola. He was headed to the school bus garage to warm up his bus before picking up the children along his bus route. As Durn was driving south on Highway 49, State Trooper Lantern was headed north in his patrol car. Soon after the two passed each other, Lantern noticed a vehicle traveling southbound at a speed in excess of the posted speed limit of fifty-five miles per hour. He made a u-turn and pursued the speeding vehicle.

¶ 3. While in pursuit of the speeding vehicle, Lantern eventually came upon Durn. He attempted to pass Durn using the northbound lane, but as he started to overtake Durn, Durn turned left across the northbound lane to enter the lot leading to the bus garage. Lantern collided with the driver-side rear quarter of Durn's truck, pushing the truck 178 feet and throwing Durn from his vehicle. The skid marks left by Lantern's vehicle were completely in the northbound lane. Durn was cited for having an improper tag on his vehicle.

¶ 4. At trial, Durn and Lantern had different accounts of what transpired before the accident. Durn testified that he had his turn signal on before attempting to turn left. He checked his rearview mirror and did not notice a vehicle approaching from either direction. He never heard a siren and also stated that he never noticed the speeding vehicle Lantern was pursuing. Durn's expert witness testified that Lantern was traveling eighty-one miles an hour before the accident.

¶ 5. Lantern testified that he activated his wig-wag lights as soon as he made the u-turn. He claimed he kept his vehicle at fifty-five miles an hour during the pursuit and that he had already overtaken the northbound lane, attempting to pass Durn when Durn crossed over into the northbound lane. He also stated that Durn began driving in the northbound lane fifty feet before attempting to turn into the garage lot. He did not recall if Durn used his turn signal.

¶ 6. The circuit court found that Lantern acted in reckless disregard of others' safety and well-being and awarded Durn $8,953 in medical bills, $1,500 in lost wages, $2,000 for the loss of the truck, and $148,000 for pain and suffering, emotional distress, and permanent disability. The circuit court found that Lantern was in pursuit of a speeding vehicle, that the accident occurred in an area where there are numerous businesses, and that visibility was limited due to the time of day. It also found that, although Durn made an improper left turn, he did not engage in any illegal activity and he had activated the left-hand turn signal prior to turning. The circuit court finally found that Lantern was operating his vehicle at an excessive speed. The Department of Public Safety appeals the circuit court's ruling.

DISCUSSION

¶ 7. Cases brought under the MTCA are tried without a jury. Miss. Code Ann. § 11-46-13 (Rev.2002). The circuit court has the sole authority for determining the credibility of witnesses when it sits as the trier of fact. City of Jackson v. Lipsey, 834 So.2d 687, 691 (Miss.2003). A circuit court judge sitting as the trier of fact is given the same deference with regard to his fact finding as a chancellor, and his findings are safe on appeal when they are supported by substantial, credible, and reliable evidence. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000). Questions concerning the application of the MTCA are reviewed de novo. Donaldson v. Covington County, 846 So.2d 219, 222 (Miss.2003). Immunity is a question of law. Mitchell v. City of Greenville, 846 So.2d 1028, 1029 (Miss. 2003).

I. WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT OFFICER LANTERN'S ACTIONS WERE NOT PROTECTED BY THE POLICE EXEMPTION OF THE MISSISSIPPI TORT CLAIMS ACT.

¶ 8. The Department of Public Safety argues that it is entitled to immunity because: (1) Lantern did not act in reckless disregard of Durn's safety and well-being; and (2) Durn performed an illegal turn which was the cause of the accident.

¶ 9. The MTCA provides the exclusive remedy for tort actions brought against a governmental entity or its employees. Miss.Code Ann. § 11-46-7(1) (Rev.2002). Although the MTCA waives sovereign immunity for tort actions, it also prescribes certain exemptions from this statutory waiver under which a governmental entity retains its sovereign immunity:

(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[.]

Miss.Code Ann. § 11-46-9 (Rev.2002).

¶ 10. To be entitled to immunity, the officer must not have acted with reckless disregard for the safety of others. Reckless disregard is more than mere negligence, but less than an intentional act. City of Jackson v. Brister, 838 So.2d 274, 281 (Miss.2003).

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." In the context of the statute, reckless must connote "wanton or willful," because immunity lies for negligence. And this Court has held that "wanton" and "reckless disregard" are just a step below specific intent.

"Our case law indicates `reckless disregard' embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act."

Lipsey, 834 So.2d at 691-92 (citations omitted). "Reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow." Maye v. Pearl River County, 758 So.2d 391, 394 (Miss.1999).

¶ 11. We recently upheld a finding of reckless disregard when officers caused a suspect to collide with a third party while pursuing her through a congested area at high speeds after she attempted to pass a forged check at a bank. Brister, 838 So.2d at 274. The pursuit took place in a heavily populated area that included apartment complexes, single-family housing and condominiums, a park, and an elementary school. Id. at 280. The officers drove at speeds in excess of twenty miles per hour over the posted speed limit while the suspect was traveling at speeds in excess of seventy miles per hour. Id. The accident occurred when the suspect crested into an intersection where her visibility was limited. We anchored our decision on the fact that the officers involved in the chase were violating a departmental order that a pursuit may only be initiated when a suspect's escape is more dangerous to the community than the risk posed by the pursuit. Id. We noted that the officers were on the scene before the suspect left the parking lot, and they had the opportunity to either block the suspect in her parking space or get her tag number and apprehend her later. Id.

¶ 12. In Brister, we cited with approval the factors listed in District of Columbia v. Hawkins, 782 A.2d 293 (D.C.Ct.App.2001), to determine whether an officer acted in reckless disregard of others while pursuing a third party:

(1) Length of chase. In the present case, Lantern's pursuit of the speeding vehicle lasted only seconds.

(2) Type of neighborhood. The area was a congested business area.

(3) Characteristics of the streets. The stretch of highway where the accident took place was straight and flat.

(4) The presence of vehicular or pedestrian traffic. The area was congested.

(5) Weather conditions and visibility. Visibility was limited by the darkness at 6:30 a.m.

(6) The seriousness of the offense for which the police are pursuing the vehicle. Lantern was pursuing a speeding vehicle at the time of the accident.

¶ 13. A review of our case law illustrates that we find reckless disregard when the "conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved." Maldonado, 768 So.2d at 910-11.

¶ 14. We affirmed a finding of reckless...