Smith v. City of Southaven

• Citation: 308 So.3d 456
• Decision Date: 01 December 2020
• Docket Number: NO. 2019-CA-01706-COA,2019-CA-01706-COA
• Parties: Tonjala Lynelle Houston SMITH, Administratrix of the Estate of Percy Willis, Deceased for and on Behalf of Jordan Percy Willis, Minor and Travis Lamarr Willis, Appellants v. CITY OF SOUTHAVEN, Mississippi, Appellee
• Court: Mississippi Court of Appeals

308 So.3d 456

Tonjala Lynelle Houston SMITH, Administratrix of the Estate of Percy Willis, Deceased for and on Behalf of Jordan Percy Willis, Minor and Travis Lamarr Willis, Appellants

v.CITY OF SOUTHAVEN, Mississippi, Appellee

NO. 2019-CA-01706-COA

Court of Appeals of Mississippi.

December 1, 2020

ATTORNEYS FOR APPELLANTS: CHARLES RICHARD MULLINS, Jackson, OLUFEMI GBOLAHAN SALU, Southaven

ATTORNEY FOR APPELLEE: ROBERT E. HAYES JR., Southaven

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. Percy Willis was killed when Kameron Williams ran a red light at a high rate of speed and crashed into Willis's vehicle. Tonjala Lynelle Houston Smith, the administratrix of Willis's estate, filed a wrongful death action on behalf of Willis's two children (plaintiffs) against the City of Southaven, Mississippi (City), in DeSoto County Circuit Court. The plaintiffs alleged that Southaven police officers were in pursuit of Williams at the time of the fatal accident and that the City was not entitled to police-protection immunity under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012), because the police officers allegedly acted with "reckless disregard" in pursuing Williams. After discovery, the City moved for summary judgment on all of the plaintiffs’ claims. The circuit court granted the City's summary judgment motion and dismissed the plaintiffs’ case with prejudice. The plaintiffs appeal. After careful de novo review of the record, we find no error in the circuit court's decision to grant summary judgment in the City's favor. We therefore affirm.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

¶2. On July 25, 2017, Kameron Williams sped through a red light and crashed into a vehicle being driven by Percy Willis. Willis was killed. The plaintiffs sued the City in DeSoto County Circuit Court. In the ensuing discovery, the plaintiffs focused their claims on the actions of Officer Kenny Bryant of the Southaven Police Department. The plaintiffs allege that Officer Bryant initiated Williams's "pursuit" in allegedly "reckless disregard" of Willis's safety. According to the plaintiffs, due to Officer Bryant's actions, the City was not entitled to the police-protection immunity afforded to it under section 11-46-9(1)(c).

¶3. The City moved for summary judgment as to all of the plaintiffs’ claims, asserting that it was entitled to the police-protection immunity afforded the City under the MTCA because at no time did Officer Bryant act in "reckless disregard" for Willis's safety. The plaintiffs responded, asserting that genuine issues of material fact existed as to whether Officer Bryant's alleged "pursuit" of Williams's speeding car could amount to "reckless disregard" under the MTCA.

¶4. On October 28, 2019, after having reviewed the City's motion, along with the plaintiffs’ response, the City's rebuttal, and the parties’ accompanying briefs, and after having heard oral arguments and taking the matter under advisement, the circuit court granted the City's summary judgment motion and dismissed the plaintiffs’ case with prejudice. The circuit court found

that the Plaintiffs have not set forth facts creating a genuine issue of material fact as whether Officer Bryant was acting in reckless disregard. The undisputed facts show that Bryant was not in pursuit of Williams at the time he caused the death of [Willis] which would necessitate this court evaluating the factors set forth in City of Jackson v. Brister , 838 So. 2d 274 (Miss. 2003) and Ellisville v. Richardson , 913 So. 2d 973 (Miss. 2005).

The plaintiffs appealed.

¶5. We now turn to a statement of the facts as established by the record before us.

¶6. On Tuesday, July 25, 2017, Williams was driving a 2004 Chevrolet Tahoe when he bumped into a vehicle driven by Rhonda Landrum (Landrum) on an on-ramp at Church Road in Southaven, Mississippi, near the I-55 northbound ramp. Isabella Czolba was a passenger in the Tahoe. The Tahoe was her father's car, and Williams had driven it before. The accident was minor. Landrum walked over to the Tahoe and briefly spoke with Williams. The record contains Mississippi Department of Transportation (MDOT) camera surveillance footage that shows Williams then cut the Tahoe's steering wheel to get around Landrum's car, got on Church Road going eastbound, and left the scene of the Church Road accident. The MDOT surveillance footage shows that Williams was going faster than the traffic around him when he left the scene. In his deposition Williams said he then cut the corner at Church Road and Airways Boulevard by driving through a service station parking lot and continued northbound on Airways Boulevard. Williams said he started "going faster ... probably going about 70, about 70 almost 80" down Airways Boulevard. Airways Boulevard is a highly traveled area of Southaven, and it contains multiple shopping centers and restaurants. The speed limit on Airways Boulevard is forty miles per hour.

¶7. Williams had just been released from jail a day or two before he was involved in the Church Road accident. He was on probation and driving with a suspended driver's license. Williams said that after he hit Landrum, his thought was to "get to Memphis" as fast as he could. He said that he "was scared if the cops showed up [he was] going to go back to jail." As Williams explained, "[I was] [t]rying to get ... out of Mississippi. I was trying to get into Tennessee because I knew I just hit and run ... [a woman] right here, so I'm trying to get to Memphis." Williams admitted that he was speeding after he left the first accident (and before he saw any Southaven police officer) and driving in a "dangerous manner."

¶8. Williams's passenger, Czolba, was also deposed. Her testimony corroborates Williams's admissions and testimony on these points. She testified that Williams's driving was "reckless from the point of the fender-bender .... [She noticed it] from the first cut he made to the left with the wheel and then made it to right to continue onto Church Road [when leaving the first accident]." She further testified that before they saw any police officer, "[Williams] was speeding." She explained that "he was driving very recklessly before [he saw] the cop." She confirmed her statement to a Southaven police investigator that she and Williams were "going 80 to 85 miles an hour from the beginning of Airways [Boulevard] to the end."

¶9. Officer Bryant said in his deposition he was driving southbound on Airways Boulevard, and at approximately one-fourth to a half mile from the Goodman Road intersection (where the fatal accident between Williams and Willis occurred) he saw a white SUV-style vehicle (later identified as the white Tahoe Williams was driving) driving northbound at an "extremely fast" rate of speed. Officer Bryant estimated the vehicle's speed to be nearly 100 miles per hour. He said that as he passed Williams's car, he saw "the front end dip consistent with somebody pressing the brake pedal," and then the car "zoomed off again heading north."

¶10. As the vehicle passed him, Officer Bryant said that he "came to a stop in the roadway, did a U-turn, turned on my [blue] lights in an attempt ... to make a traffic stop on this guy just to see why he was going so fast." Officer Bryant said that when he initially saw the vehicle, he "got on the radio and he relayed information to dispatch that there was an SUV going northbound on Airways at a high rate of speed." He said that when he made the call to dispatch he was not aware that the vehicle's tag number had been called in on a hit-and-run; he was only aware of the speeding that he observed.

¶11. A recording of the dispatch exchange in the record corroborates Officer Bryant's deposition testimony. The call to dispatch began at 16:22:23 (4:22 p.m.). In this exchange Officer Bryant reported that he had observed a car "approaching Goodman in excess of 100 miles per hour" and that he was "trying to catch up." At this point the dispatcher said that this vehicle could "possibly [be one involved] in hit and run." Seconds after that, Officer Bryant said, "They just wrecked out at Goodman."

¶12. Officer Bryant elaborated on the circumstances in his deposition. He testified:

In my opinion, [Williams is] approximately going 100 miles an hour northbound. So by the time I can turn around, he's—he's a good ways in front of me. You know, other than him running the red light at Marathon Way, which I could witness, he crest[ed]. ... I don't see him again until I top the same crest and could see that he's been involved in an accident at Goodman and Airways.

¶13. The MDOT surveillance footage from the Airways Boulevard and Goodman Road intersection shows that the accident between Williams and the Willis vehicle occurred at approximately 16:22:46,¹ approximately twenty-three seconds from when Officer Bryant called dispatch and approximately eleven seconds after the MDOT surveillance footage from the Marathon Way and Airways Boulevard shows Williams going through a red light at that intersection at a high rate of speed. The MDOT surveillance footage at the scene of the fatal accident shows there were almost thirty seconds between the crash and when Officer Bryant's patrol car arrived at approximately 16:23:14, with other patrol cars arriving after that time. According to the report prepared by Southaven Police Department Investigator Matt DeFore, Williams had already fled the scene on foot by the time Officer Bryant arrived, as witnessed by several civilian witnesses who were later identified and gave statements.

¶14. When asked about the circumstances leading up to the fatal accident, Czolba said that she remembered seeing a police car going in the opposite direction down Airways Boulevard about "midway ... down Airways ... between Church and Goodman." She further testified that the police car turned around because "maybe he saw us zooming because it was clearly visible, I felt like ... we were going very fast." She estimated they...