Facts
At approximately 7:00 a.m. on July 2, 2020, Deputy Chiquitia Cooks was alerted that local law enforcement was in pursuit of a suspect (Keislan Greer), who was driving recklessly at a high rate of speed (in excess of 100 miles per hour) toward Carthage, Mississippi. Deputy Cooks quickly spotted the suspect’s car and joined the pursuit. She was the lead officer chasing Greer, with three Carthage police officers close behind her.
Prior to Deputy Cooks’s pursuit, the suspect had been weaving in and out of traffic, nearly hitting oncoming traffic head-on. When Greer sped through the intersection of Highway 16 and Pine Hill Circle in Carthage, Deputy Cooks slowed her vehicle slightly and attempted to follow Greer through a red traffic light. Unfortunately, a vehicle driven by Mary Luckett also entered the intersection at that moment, with Mary apparently unaware of the lights and sirens of the approaching officers. Deputy Cooks’s patrol car collided with the vehicle, causing Mary serious injuries (broken ribs and a punctured lung).
Deputy Cooks testified that when she received the call from dispatch, her understanding was that the suspect had failed to stop for blue lights, which is “a felony flee.” Deputy Cooks engaged her blue lights and proceeded toward Carthage. Immediately upon turning onto Highway 16, she saw police officers already in pursuit of Greer’s car. She executed a U-turn and got behind Greer. Deputy Cooks admitted she had not received any training on the policy regarding motor-vehicle pursuits from the Leake County Sheriff’s Department’s training manual.
Relevant provisions of the policy state: High-speed vehicular pursuit of fleeing suspects can present danger to the general public, deputies, and suspects. Just as important is the possibility of unintended damage or injury to members of the public who are not involved in the pursuit. . . . A suspect willing to travel at high speeds and exhibiting erratic and violent behavior is a serious threat to the general public, with or without the presence of the deputy. . . . Vehicle pursuit conditions are tense, uncertain, and rapidly evolving situations. Under such conditions, deputies should continually assess the risk to themselves and the general public. Wise and prudent deputies terminate pursuits rather than unreasonably risk a threat to human life. 4. Deputies are required to drive with due regard for the safety of the public. 8. All involved deputies will continuously evaluate the circumstances and judge whether to continue or to terminate the pursuit.
Deputy Cooks said that she could see the intersection of Highway 16 and Pine Hill and noted that the traffic light was red. Although she remembered a vehicle (not Mary’s) pulling out of a Walmart parking lot, Deputy Cooks averred that once that vehicle turned, “there was nobody at that red light.” Deputy Cooks claimed that she slowed for the intersection, but she did not contest the assertion by the plaintiffs’ attorney that she was “traveling at approximately 87 miles an hour” when she hit Mary’s car. She also acknowledged that the posted speed limit was 35 mph. Deputy Cooks testified that upon approaching the intersection, she “scanned to make sure that it was safe to clear, to make sure there [were] no other vehicles there, no pedestrian, and just to make sure it was safe for me to clear the light.” When Deputy Cooks finally saw Mary’s car pull into the intersection, she attempted to avoid her by merging into another lane.
Mary testified that on the morning of the accident, she was waiting at the red light behind another vehicle. When the light turned green, she claims that she “looked left” and right before proceeding but saw “nothing.” While she insisted that she neither saw nor heard the deputy’s vehicle before she was hit, Mary did note that she was listening to a talk radio show and had her windows up.
Inger Palmer testified that a car (driven by Greer) came around her “going very fast and almost hit . . . two to three vehicles head on”; so Palmer called law enforcement, worried that the person who passed her might kill someone.
Considering the totality of the circumstances, the circuit court concluded that Deputy Cooks acted in reckless disregard for the safety of others, but the court further found that but for Keislan Greer’s dangerous driving, recklessness, and high-speed evasion of law enforcement for over thirteen miles, Deputy Cooks would not have pursued Greer, and the subject collision would not have occurred. Thus, the circuit court apportioned 55% of the fault for the accident to Greer, and 45% fault to Leake County. The circuit court did not allocate any fault to Mary. MCOA affirmed.
Analysis
Whether Deputy Cooks’s “conscious disregard” was the sole proximate cause of the collision and Mary’s injuries.
Based on our determination that the circuit court did not err in apportioning fault to Greer, we accordingly find no merit to the Lucketts’ argument that Deputy Cooks was the sole proximate cause of the collision. However, we will briefly discuss the court’s ruling as it pertains to the apportionment of fault to Leake County based on Deputy Cooks’s actions.
Section 11-46-9(1)(c) of the MTCA provides immunity for actions relating to police protection under certain conditions, as follows:
(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.
The Mississippi Supreme Court has articulated ten factors to consider when assessing “reckless disregard in connection with a police pursuit”:
(1) length of the chase; (2) type of neighborhood; (3) characteristics of the streets; (4) presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; (6) seriousness of the offense for which the police are pursuing the suspect; (7) whether the officer proceeded with sirens and blue lights; (8) whether the officer had available alternatives which would lead to the apprehension of the suspect besides pursuit; (9) existence of a police policy which prohibits pursuit under the circumstances; and (10) rate of speed of the officer in comparison to the posted speed limit. {This is also known as the Brister/Richardson test – City of Jackson v. Brister, 838 So. 2d 274 (Miss. 2003)}
We will address these enumerated factors discussed by the circuit court in its final judgment.
i. Length of Chase
The court noted that the short time frame of the pursuit (less than two minutes and less than two miles “limited Deputy Cooks’[s] ability to make a complete assessment of the circumstances and the effect of those circumstances had on her decision to continue pursuing the suspect.” We find the court’s reasoning is supported by the trial testimony.
ii. Type of Neighborhood
As stated by the court, the neighborhood in the area of the pursuit was of “mixed use with residences, a school (not in session), a Wal-Mart, and other businesses.”
iii. Characteristics of the Streets
The court noted: The entire pursuit took place on Mississippi State Highway 16 going westbound through the city of Carthage. The highway has five lanes, two westbound, two eastbound, and one turning lane in between. The highway is straight through town and the intersection in question. There is a hill approximately 654 yards from the intersection. Traffic at the intersection in question is controlled by traffic lights for both the highway and the side street that crosses from a residential area to the parking lot of the Wal-Mart. Deputy Cooks testified that the highway consisted of four lanes of traffic.
iv. Presence of Vehicular or Pedestrian Traffic
There was “very light traffic” and “no pedestrians,” as the pursuit took place at approximately 7:00 a.m., and there was “a shutdown during the [COVID-19] pandemic.” Deputy Cooks admitted that the pursuit was within the city limits of Carthage, which could be congested at times. She was also aware Walmart customers could have been going through the intersection. However, she noted, “There was little to no traffic at the time when this all started.”
v. Weather Conditions and Visibility
The circuit court noted, “The weather was clear, and it was light outside with the sun rising.” Additionally, Deputy Cooks had clear visibility “down the highway, through the intersection, and straight thereafter going out of town.” Deputy Cooks testified that she could definitely see the traffic light at Highway 16 and Pine Hill. She also said that she had a good visual on Greer.
vi. Seriousness of the Offense for which the Police are Pursuing Suspect
In its finding, the court noted that deputies had encountered Greer driving recklessly at speeds over 100 miles per hour in a 55 mile an hour zone. Prior to Deputy Cooks’s pursuit, Greer had also been weaving in and out of traffic, nearly hitting oncoming traffic head on and nearly running other traffic off the road. His car did not have a license plate, and he could not be identified.
vii. Whether the Officer Proceeded with Sirens and Blue Lights
The undisputed evidence was that Deputy Cooks used her lights and sirens at all times during the pursuit.
viii. Whether the Officer had Available Alternatives for Apprehension Besides Pursuit
As noted by the court, there were no alternatives available for Deputy Cooks to apprehend the suspect except for high-speed pursuit or unilaterally terminating the continuation of the pursuit. Again, we note that Greer could not be readily identified, as his vehicle did not have a license plate.
ix. Existence of a Police Policy Prohibiting Pursuit under the Circumstances
The court found that the Leake County’s Sheriff’s Department policy did not prohibit Deputy Cooks from initiating pursuit under the circumstances. Indeed, the department’s policy permits a deputy trained in pursuit to initiate a pursuit when the suspect exhibits the intention to avoid apprehension by refusing to stop when properly directed to do so. The policy further states, “Pursuit may also be justified if the deputy reasonably believes that the suspect, if allowed to flee, would present a danger to human life or cause serious injury.” Under the circumstances here, with Greer’s driving recklessly at a high rate of speed and endangering other motorists on the highway, we agree with the court that Deputy Cooks was not prohibited under the policy to pursue the suspect.
However, the policy also states that deputies are required to drive with due regard for the safety of the public and are to conform to state law. As noted by the defendant’s expert (Street) and the trial court, section 63-3 315 states in part: “The driver of any authorized emergency vehicle when responding to an emergency call upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety but may proceed cautiously past such red or stop sign or signal.” Deputy Cooks knew that the light was red. Yet, admittedly unaware of her speed during the pursuit, she continued through the intersection, slowing only to 87 mph in a 35-mph zone. We therefore agree with the court’s reasoning that Deputy Cooks “did not even think about ‘slowing down as necessary for safety’” and that her actions do not indicate she was following the county’s “pursuit policy that emphasized discontinuing pursuit for the safety of the public.”
x. Rate of Speed of the Officer in Comparison to the Posted Speed Limit
The posted speed limit was 35 mph at the collision site. As discussed by the court, Deputy Cooks decreased her speed “from 117 miles per hour at a distance of approximately 800 feet from the intersection to 90 mph as she approached the intersection and then to 87 mph at the point of collision.” However, Deputy Cooks testified that she was not aware of her speed, and she did not refute the data that her speed was 117 mph and above the posted speed limit.
As the circuit court’s findings pertaining to the relevant factors are supported by the evidence at trial, we find no error in the court’s determination that Deputy Cooks acted with reckless disregard in her pursuit of Greer and its decision to apportion 45% fault to Leake County.