Tennesen v. City of Hattiesburg
| Decision Date | 08 November 2022 |
| Docket Number | 2021-CA-00137-COA |
| Parties | JOHN TENNESEN AND SANDRA TENNESEN APPELLANTS v. CITY OF HATTIESBURG, MISSISSIPPI APPELLEE |
| Court | Mississippi Court of Appeals |
EN BANC.
¶1. A van operated by James Willis was fleeing a pursuit initiated by a Hattiesburg police officer. While fleeing the officer, Willis ran a red light at the intersection of Hardy Street (Highway 98) and Westover Drive in West Hattiesburg crashing into the passenger side of a pickup truck driven by John Tennesen. John's wife, Sandra, was seated in the passenger seat. John and Sandra sued the City of Hattiesburg under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann §§ 11-46-1 to -23 (Rev. 2019), seeking to recover damages for the personal injuries and property damage they incurred. Following a bench trial, the Forrest County Circuit Court entered judgment in the City's favor, finding that the Tennesens failed to establish that the Hattiesburg police officer acted with "reckless disregard" for their safety and well-being and that the City therefore was entitled to police-protection immunity pursuant to section 11-46-9(1)(c) of the MTCA. The Tennesens appeal, asserting that the trial court erred in determining that the City was entitled to police-protection immunity under the facts of this case.
¶2. On September 17, 2017, about a quarter-past one on a Sunday afternoon, John Tennesen was traveling westbound in a Nissan Titan pickup truck on Hardy Street[1] in West Hattiesburg. John's wife, Sandra, was in the passenger seat. John turned left on a green arrow onto Westover Drive and started to proceed through the intersection. At the same time, a van operated by Willis was fleeing a pursuit initiated by a Hattiesburg police officer named Jacob Knight. Willis was speeding eastbound on Hardy Street, entered the intersection at Hardy Street and Westover Drive against a red traffic signal, and crashed into the Tennesen vehicle on the passenger side. John and Sandra were injured in the crash and the truck was damaged extensively.
¶3. After providing the City of Hattiesburg with pre-suit notice the Tennesens sued the City for damages under the MTCA, alleging that Officer Knight, in the course and scope of his employment as an officer with the Hattiesburg Police Department (HPD), acted in reckless disregard of their safety and well-being, causing the collision and their injuries. The City filed its answer to the Tennesens' complaint. After the parties conducted discovery, a bench trial was held before the Forrest County Circuit Court on March 10 and 11, 2020.
¶4. Prior to trial, the parties stipulated to the admission of all exhibits that are a part of the appellate record. Trial began. The Tennesens called Officer Knight as an adverse witness.
¶5. Officer Knight testified that he had been with the HPD for eleven months on the day of the collision involving the Tennesens (September 17, 2017). He had been trained and certified as a police officer at the Mississippi Delta Community College Law Enforcement Training Academy, and he had trained with the HPD on police pursuits, including driving courses and classroom education at the time he was hired. Officer Knight had been involved in three previous pursuits before the accident involving the Tennesens. One of those pursuits ended in a vehicular collision between a driver and the operator of the vehicle being pursued. Officer Knight acknowledged that, based upon his pursuit experience, he was aware that pursuit-related accidents were foreseeable.
¶6. Regarding the circumstances surrounding the pursuit and ultimate collision on Sunday, September 17, 2017, Officer Knight testified that he received a call from dispatch at about 1:00 p.m., informing him that a white van with Louisiana license tags had fled the Walmart on Highway 98 in West Hattiesburg. He responded to the call. In addition to Officer Knight's testimony, the course of events following the dispatch is also documented on videos admitted into evidence from both within the patrol car and on the officer's body camera, as well as the HPD call report. Officer Knight testified that after receiving the call from dispatch, as shown on the video, he proceeded to Highway 98, at which time he saw the suspect's vehicle, a white Econoline van. The video depicts Officer Knight communicating with dispatch, calling in the Louisiana tag number, and Officer Knight identifying a broken windshield that would constitute his probable cause for stopping the van. Officer Knight then drove his patrol car in the direction of the van, and he placed his unit directly behind the suspect's van. He then activated his patrol car's emergency blue lights and began using his siren in an attempt to get the suspect to pull over. He testified he used all four tones on his siren to "mak[e] sure [the suspect] was able to hear one of the tones."
¶7. Officer Knight testified that when he called in the Louisiana tag number, he did not have any other potential identifying information on the suspect. He acknowledged that he frequently worked calls for service at the Walmart on Highway 98 and was generally familiar with its procedures and surveillance capabilities. With respect to the stolen property, Officer Knight testified that he knew there had been a report of a stolen fifty-five-inch television, but he had no other information about the potential crime, such as the value of the property, whether the value reached the threshold for a felony,[2] or that the item had been discarded when the suspect fled Walmart. Officer Knight acknowledged that he knew that there was church traffic at 1:00 along Hardy Street from two large churches in the area, and he further acknowledged that there were about twenty to thirty restaurants in the area.
¶8. After he called in the tag number, Officer Knight informed dispatch that "we're coming up on Mayfair," and the suspect was not stopping-even though he (Officer Knight) was using emergency lights and his siren to attempt a stop. Officer Knight also added, as shown on the video, "We're not speeding, though." Officer Knight testified that at this point, he could not tell if the suspect was attempting to evade him, or looking for a place to pull over. However, a few seconds later when the suspect approached the intersection of Hardy Street and Mayfair Road, the suspect sped up. At this point, Officer Knight called dispatch announcing the code for a police pursuit (1094). On the dispatch exchange, he is asked, "What's traffic like?" He answered, "Not too heavy." The video from the patrol-car camera likewise shows little traffic, and there were no cars in the right turning lane during this time.
¶9. Officer Knight testified that the suspect ran two red lights: one at the Fairfield Drive intersection when Officer Knight attempted to initiate a stop and the other at Mayfair Road when the suspect accelerated. Officer Knight testified that he slowed down at each intersection to make sure it was safe to cross through the intersections. The suspect started to create distance between himself and Officer Knight at the Mayfair Road intersection, and the suspect had moved to the right turning lane where there was no traffic. Officer Knight said he believed the suspect was going over sixty miles per hour and that his own speed "touched 60" miles per hour in the forty-five-miles-per-hour zone. He testified that the suspect went through a yellow light at Coca-Cola Street when approaching the intersection of Westover Drive where the accident occurred. The van approached Westover and Hardy Street while proceeding in the turning lane, ran the red light, and was involved in a collision with the Tennesens' vehicle.
¶10. During questioning by the Tennesens' counsel, Officer Knight acknowledged that he knew that the Westover intersection was one of the most dangerous intersections in the city; that speeding, running red lights, or driving in a turning lane can lead to a crash and these activities are dangerous. However, Officer Knight also testified that on September 17, 2017, the weather was clear, and visibility was good. Hardy Street is a main thoroughfare, but traffic was light to moderate on this Sunday afternoon. Officer Knight acknowledged that there were multiple intersections with traffic lights, as well as restaurants and businesses located away from the street. The video from the patrol-car camera shows that many of the restaurants and businesses were set back along Hardy Street in various strip malls, traffic was not heavy, and no pedestrians were present. The record reflects that Officer Knight stayed in constant communication with dispatch and his supervising officer, Lt. Mark Denny, who had called in after the pursuit was initiated to ask about the traffic status.
¶11. Regarding the length and duration of the pursuit, as noted Officer Knight testified that he initiated the pursuit at Mayfair Road. Upon questioning and reviewing the HPD dispatch log, Officer Knight confirmed that twenty-seven seconds elapsed from the time the pursuit was noted or called in to dispatch until the time of the crash and the distance from that point to the accident site was approximately one-half of a mile. He testified that the pursuit was short in time and distance. On further questioning by the Tennesens' counsel, Officer Knight acknowledged that the suspect ran the first red light at Fairfield Drive and that the lapse of time between Fairfield Drive and the crash was...
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