Simpson v. City of Pickens, 1998-CA-01734-SCT.

• Decision Date: 01 June 2000
• Docket Number: No. 1998-CA-01734-SCT.,1998-CA-01734-SCT.
• Citation: 761 So.2d 855
• Parties: David SIMPSON v. CITY OF PICKENS, Mississippi and William Blackstock, Individually and in his Official Capacity as a Police Officer of the City of Pickens, Mississippi.
• Court: Mississippi Supreme Court

761 So.2d 855

David SIMPSON v. CITY OF PICKENS, Mississippi and William Blackstock, Individually and in his Official Capacity as a Police Officer of the City of Pickens, Mississippi.

No. 1998-CA-01734-SCT.

Supreme Court of Mississippi.

June 1, 2000.

Jessie L. Evans, Canton, Wesley Thomas Evans, Ridgeland, Attorneys for Appellant.

Byron Hansbro, John D. Brady, John Curtis Hall, II, Jackson, Attorneys for Appellees.

BEFORE PITTMAN AND BANKS, P.JJ., AND COBB, J.

COBB, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. David Simpson brought suit against the City of Pickens and William Blackstock, individually and in his official capacity as a police officer for the City, pursuant to the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. § 11-46-1 et seq. (Supp.1999). Simpson acknowledged that Blackstock was acting in the course and scope of his employment, but claimed that Blackstock acted in reckless disregard of the safety and well-being of persons not engaged in criminal activity at the time of injury, thus negating the exemption from liability provided under § 11-46-9(1)(c).¹ Simpson also demanded a trial by jury. The case was tried in a bench trial in the Holmes County Circuit Court where the court found for the City of Pickens and Blackstock. On appeal to this Court, Simpson raised two issues:

I. THE LOWER COURT USED AN INCORRECT LEGAL ANALYSIS AND STANDARD IN RENDERING A JUDGMENT IN FAVOR OF THE APPELLEE.

II. THE MISSISSIPPI TORT CLAIMS ACT DID NOT BAR APPELLANT'S RIGHT TO A JURY TRIAL

¶ 2. We find no error with regard to the jury trial issue. However, we reverse and remand to the trial court for application of the "preponderance of evidence" standard of proof which we today adopt for use in construing the provisions of Miss.Code Ann. § 11-46-9(1)(c).

STATEMENT OF THE FACTS

¶ 3. Simpson's complaint alleged that on the night of March 24, 1996, William Blackstock, a law enforcement officer employed by the City of Pickens, came to Simpson's home, kicked in the front door, pulled a gun in front of Simpson's children and arrested him, although he had committed no crime. Simpson alleged that Blackstock uttered racial slurs and falsely charged him with aggravated assault. The complaint, which sought actual and punitive damages, also asserted that "the wilful, intentional, wanton, and reckless assault" against Simpson and the wrongful arrest, false imprisonment, and unlawful arrest and detention were a result of Blackstock's negligent acts.

¶ 4. The City of Pickens and Blackstock filed separate answers and defenses, denying all of Simpson's allegations and claiming, inter alia, immunity under the MTCA, as well as denying that Simpson was entitled to a jury trial.

¶ 5. During the trial, Blackstock testified that while patrolling the City of Pickens, he saw Medford Greer pull around a car, driven by Simpson, which was sitting at a stop sign. Blackstock followed Greer and stopped him because he appeared to run the stop sign when he pulled around Simpson. At that time, Greer said: "Well, that guy was just sitting there at the stop light; wouldn't even move. Something is wrong with him." When Blackstock went back and began following Simpson, he saw Simpson weave and tried to pull him over by use of blue lights and intermittently, his siren. Simpson did not cooperate. Blackstock continued to follow Simpson, who stopped at several stop signs and each time, when Blackstock would get out of his car to approach the vehicle, Simpson would drive away. Simpson finally stopped in the driveway of his home, but even there he would not obey Blackstock's order to stop walking toward the house and talk with him. According to Blackstock, an altercation occurred, and after a chase around the yard and over fences, Simpson made it into his home. Blackstock then kicked in Simpson's front door to gain entry into the home. Blackstock called for backup when Simpson refused to go outside with him. Officer Beasley arrived and Simpson was arrested and taken to the Pickens police station. Beasley testified that Simpson had a "strong odor of alcohol about his breath or some kind of foreign substance smell", and that Simpson made an aggressive move toward Blackstock while he was handcuffed in the police department. Blackstock testified that while he was taking Simpson to the Attala County jail, Simpson became combative and broke the plexiglass window in the patrol car. Blackstock charged Simpson with driving under the influence of any other substance which impaired such person's ability to operate a motor vehicle, malicious mischief, resisting arrest 2nd offense, disorderly conduct 2nd offense and aggravated assault. Simpson was jailed for about two weeks on these charges before being released on a reduced bond. As of the date of trial, Simpson had not been prosecuted for any of the charges.

¶ 6. Simpson's account of the evening's events was completely different. He testified that after he finished working that night he drove home, then he walked to his sister-in-law's house to get some movies and then walked back home around 11:50 p.m. He further testified that he was inside his home, playing with his dog, when he noticed a police car out in the front of his house. He said that Blackstock knocked on his door and accused him of running a stop sign. Simpson stated that he closed the door and went to wake his girlfriend when Blackstock broke the door open and entered his house. Simpson denied having an altercation with Blackstock and denied the chase and jumping over fences. He testified that he told Blackstock that he would not go with him unless he called for backup. Simpson did allow the backup officer to take him into custody, but refused to take a breathalyzer test and was transported to several jails before an empty cell was found in the Attala County jail. Simpson also alleged that Blackstock's actions were retaliatory because Simpson, just one week prior, had settled another case in which he had filed charges in the United States District Court against the City of Pickens for use of excessive force. Simpson had executed a release, allowed the case to be dismissed with prejudice, and, in exchange, received a confidential settlement from the Mississippi Municipal Liability Association, insurer for the City of Pickens.

¶ 7. At the bench trial four witnesses testified: Simpson and his live-in girlfriend, and officers Blackstock and Beasley. At the close of all testimony, the trial judge found for the City of Pickens and for Blackstock, stating:

Section 11-46-9(c) [sic] states in relevant part: that a governmental entity and its employee acting within the course and scope of their employment or duties shall not be liable for any claim 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... unless the employees acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

The plaintiff has the burden of proof and therefore must prove by clear and convincing evidence whether this case involves a governmental entity and an employee of the entity and; whether the employee was acting within the course and scope of his employment or duties. Further, Plaintiff must prove that his claim arose out of an act or omission of the entity and or the employee engaged in the performance or execution of duties or activities; and that the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of Plaintiffs injury.

The evidence is clear that the City of Pickens is a governmental entity, that William Blackstock was employed as a police officer for the City of Pickens, and was on duty at the time of this incident. The evidence further shows that Officer Blackstock was engaged in duties relating to his employment as a police officer.

The question now before the Court is whether the Plaintiff has proven that Officer Blackstock acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury. The Plaintiff has filed this suit on his behalf, although, there was [sic] other persons inside the house; however, the evidence is clear that the other persons in the house were not engaged in criminal activity and that the officer left the house without an altercation inside the house.

As to whether or not the Plaintiff was engaged in criminal activity at the time of this incident the Court finds the Plaintiff has not carried his burden of proof by clear and convincing evidence that he was not engaged in criminal activity at the time of this incident.

This Court finds that the Plaintiff's evidence did not rise to the level of clear and convincing evidence required to meet the Plaintiffs burden of proof. This Court therefore finds for the City of Pickens and William Blackstock in this matter.

(emphasis added).

ANALYSIS

ISSUE I. DID THE LOWER COURT USE AN INCORRECT LEGAL ANALYSIS AND STANDARD IN RENDERING A JUDGMENT IN FAVOR OF THE APPELLEE?

¶ 8. The MTCA provides the exclusive civil remedy against a governmental entity or its employees for acts or omissions which give rise to a suit. Miss.Code Ann. § 11-46-7(1) (Supp.1999). Governmental entities and employees are provided an exemption from liability in § 11-46-9. Subsection (1)(c) provides in pertinent part:

(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(1)(c)...