Turner v. City of Ruleville, 95-CA-00880-SCT.

• Decision Date: 25 March 1999
• Docket Number: No. 95-CA-00880-SCT.,95-CA-00880-SCT.
• Citation: 735 So.2d 226
• Parties: Trista TURNER v. CITY OF RULEVILLE.
• Court: Mississippi Supreme Court

735 So.2d 226

Trista TURNER v. CITY OF RULEVILLE.

No. 95-CA-00880-SCT.

Supreme Court of Mississippi.

March 25, 1999.

William B. Raiford, III, Clarksdale, Attorney for Appellant.

John D. Brady, Jackson, Attorney for Appellee.

EN BANC.

ON MOTION FOR REHEARING

PITTMAN, Presiding Justice, for the Court:

¶ 1. The present case was considered by this Court in Trista Turner v. City of Ruleville, No. 95-CA-00880-SCT, 1997 WL 562151 (Miss. Sept. 11, 1997). After full consideration, we grant Turner's Motion for Rehearing. The original opinion is withdrawn, and the following opinion substituted therefor.

FACTS AND PROCEEDINGS

¶ 2. Trista Turner was injured in a collision with a drunk driver. Turner filed a complaint in Sunflower County Circuit Court against the drunk driver and the City of Ruleville. Turner alleged that the driver, James E. Smith,¹ was operating the vehicle without a valid driver's license and while visibly intoxicated with a blood alcohol level of .22. Turner also alleged that immediately prior to the accident Smith had been stopped by an Officer Bradshaw, an officer employed by the City of Ruleville Police Department, for operating the vehicle in an erratic fashion and failing to have the vehicle's headlights on. Turner specifically alleged that, although he knew that Smith was intoxicated and incapable of driving his vehicle in a safe and prudent manner, Officer Bradshaw allowed Smith to continue driving. This, Turner charged, constituted reckless disregard of the safety and well being of Turner and others traveling on the highway who were not engaged in criminal activity at the time of injury. Turner sued the City of Ruleville ("the City") on the grounds that it was responsible for the actions of its officers. The lower court granted the City's Motion to Dismiss ruling that Turner failed to state a claim for which relief could be granted based on Miss.Code Ann. § 11-46-9(1)(c), which provides that a governmental entity and its employees acting in 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....

¶ 3. Turner specifically alleged in her complaint that on or about May 1, 1994, at approximately 8:00 p.m., she was traveling as a passenger in a vehicle being driven by Typhron Armstrong in a northbound direction on U.S. Highway 49 in Sunflower County. Turner further alleged that Smith was driving another vehicle in the northbound lane on U.S. Highway 49 but had either stopped the vehicle in the northbound lane on U.S. Highway 49 or was backing down the highway without tail lights or flashing signals. The vehicle driven by Armstrong collided with the rear of the vehicle driven by Smith.

¶ 4. The circuit court judge granted the City's Motion to Dismiss, because he found the conduct described in the complaint to be exempt from liability under the Tort Claims Act. Specifically, the court held that Miss.Code Ann. § 11-46-9(1)(c) "excludes from the protection of the act police activity when the police officer acted in reckless disregard of the safety and wellbeing of any person not engaged in criminal activity at the time of injury. The phrase `reckless disregard' has been used interchangeably with wanton disregard, and wantonness included the concept of malice—a deliberate and intentional wrongdoing."

¶ 5. The City's motion was actually predicated on Miss.Code Ann. § 11-46-9(1)(h). Subsection (h) exempts from liability any claim against a governmental entity or employee acting within the course of employment

[a]rising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or the failure or refusal thereof, is of a malicious or arbitrary and capricious nature.

Miss.Code Ann. § 11-46-9(1)(h) (Supp. 1996). The circuit court granted the City's Motion to Dismiss because the actions complained of on the part of the officer were performed within the course and scope of his duties and could not be properly characterized as being in reckless disregard for Turner's safety. The circuit judge also found no allegation in the complaint that the officer acted with malice or deliberately and intentionally harmed the plaintiff. Accordingly, the circuit court dismissed Turner's complaint and action with prejudice as to the City and certified that dismissal as a Miss. R. Civ. P. 54(b) final judgment. Turner appeals that dismissal.

DISCUSSION OF THE LAW

¶ 6. Turner asserts that the trial court erred by granting the City's motion under Miss. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Particularly, she contends that the trial court erred in its application of the Mississippi Tort Claims Act.

¶ 7. The City's motion tested the legal sufficiency of Turner's complaint. In order to grant this motion it must appear to a certainty that Turner can prove no set of facts in support of her claim which would entitle her to relief. Lester Eng. Co. v. Richland Water & Sewer Dist., 504 So.2d 1185, 1187 (Miss.1987).

¶ 8. Turner contends that the circuit court misinterpreted and misapplied the term "reckless disregard." While recognizing that this Court has not construed reckless disregard in the context of Miss.Code Ann. § 11-46-9(1)(c), she argues that common definitions of the term make clear that a showing of intent is not required to establish recklessness.

¶ 9. In support of her position, Turner cites Barnes v. State, 249 Miss. 482, 162 So.2d 865, 866 (1964), where the Court held that for the purpose of the reckless driving statute, "reckless" means "the commission of conscious acts or omissions which a driver knows or should know create an unreasonable risk of injury or damage. That which is necessary is that the driver should realize the strong probability of harm to ensue."

¶ 10. Turner also cites the dictionary definition of "reckless" and "reckless disregard of rights of others." "Reckless" is defined as

... careless, heedless, inattentive; indifferent to consequences. According to circumstances it may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive, or negligent. For conduct to be `reckless' it must be such as to evince disregard of, or indifference to, consequences, under circumstances involving danger to life or safety to others, although no harm was intended.

Black's Law Dictionary 1270 (6th ed.1991).

¶ 11. "Reckless disregard of rights of others" is defined as

[a]s used in automobile guest law, means the voluntary doing by motorist of an improper or wrongful act, or with knowledge of existing conditions, the voluntary refraining from doing a proper or prudent act when such act or failure to act evinces an entire abandonment of any care, and heedless indifference to results which may follow and the reckless taking of chance of accident happening without intent that any occur....

Black's Law Dictionary 1270 (6th ed.1991) (emphasis added).

¶ 12. Turner also refers to Harris v. State, 642 So.2d 1325, 1328 (Miss.1994), where the Court cited sixteen states for the proposition that "`intentional' and `reckless' are inconsistent terms." Harris was dealing with a situation in which the indictment of a criminal defendant charged him with "recklessly" attempting serious bodily injury. Id. at 1327. The Court noted that "attempt" embraces the concept of intent whereas recklessness requires no specific intent. Id. The Court then opined that the terms "intentional" and "reckless" are inconsistent terms. The Court further stated that these terms are mutually exclusive as applied to the aggravated assault statute. Id. at 1328.

¶ 13. Turner also contends that this Court has made clear that reckless conduct is synonymous with gross negligence, not intentional conduct. Turner cites Dame v. Estes, 233 Miss. 315, 101 So.2d 644, 645 (1958), where the Court stated, "there is no precise definition of gross negligence, but one of the approximate definitions may be thus expressed: gross negligence is that course of conduct which, under the particular circumstances, disclosed a reckless indifference to consequences without the exertion of any substantial effort to avoid them."

¶ 14. Turner maintains that for purposes of § 11-46-9(1)(c) "reckless disregard" should mean only conduct evincing "the disregard of, or indifference to consequences, under circumstances involving danger to a life or safety to others, although no harm was intended." Thus, the circuit court was manifestly in error in requiring Turner to allege or establish that Officer Bradshaw intended to cause harm to Turner.

¶ 15. The City argues that the Court has defined recklessness and the officer's alleged actions do not rise to that level. The City argues that "reckless disregard for the safety of others" as defined in Black's is synonymous with willfulness and wantonness. Further, the Court has stated that "[w]ilfulness and wantonness connote knowingly and intentionally doing a thing or wrongful act." Raney v. Jennings, 248 Miss. 140, 158 So.2d 715, 718 (1963).

¶ 16. The City also cites the Court's decision in Beta Beta Chapter of Beta Theta Pi v. May, 611 So.2d 889 (Miss.1992). In May, the Court quoted the above language from Raney. The Court went on to say that "`wantonness is a failure or refusal to exercise any care, while negligence is a failure to exercise due care.'" Id. at 895 (quoting Covington v. Carley, 197 Miss. 535, 541-42, 19 So.2d 817, 818 (1944)).

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