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Accident while responding to disturbance was not in reckless disregard

Facts

Mildred Rayner alleged that, on the afternoon of March 22, 2006, Deputy Michael McCarty was in the course and scope of his employment with the Rankin County Sheriff’s Department when he drove through a red light at the intersection of Highway 468 and Highway 18 in Brandon, Mississippi, and collided with Rayner’s oncoming vehicle. Rayner alleged that Deputy McCarty, traveling south on Highway 468, approached the intersection at an unsafe high speed and failed to yield to oncoming cross- traffic, which constituted gross negligence and reckless disregard for the rights and safety of others using the intersection.

Deputy McCarty testified that he was headed home from the Sheriff’s Department when he heard a call over the dispatch for a disturbance at Cedar Ridge Trailer Park, located off Highway 468. The dispatcher did not communicate the nature of the disturbance. Deputy McCarty told the dispatcher he would be en route with another officer. He immediately turned on his blue lights and sirens, and headed south on Highway 468 at about fifty to fifty-five miles per hour toward the intersection of Highway 468 and Highway 18.

At the intersection, he slowed and crossed into the oncoming (northbound) lane of Highway 468, coming to a complete stop at the red light. A vehicle in the eastbound center turn lane of Highway 18 obstructed his view of the eastbound lane of Highway 18. Deputy McCarty said he cautiously entered the intersection. He related that he slowly creeped forward and stopped, creeped forward and stopped, and creeped forward and stopped, keeping a lookout the entire time. Deputy McCarty testified that his blue lights and sirens were on when he entered the intersection, and that he crept forward at five miles per hour. Nonetheless, Rayner’s minivan, traveling in the eastbound lane of Highway 18, abruptly collided with the side of his patrol car. Deputy McCarty said that he never saw the minivan, because his view was obstructed by the vehicle in the center turn lane of Highway 18. Deputy McCarty suffered only a minor cut in the crash.

Janet Cook testified that she was traveling south on Highway 468 when she heard a siren and observed a patrol car approaching behind her with its blue lights on. She stopped at the Highway 18 intersection, and the patrol car passed her car, entered the oncoming (northbound) lane, and stopped at the intersection. Cook observed the patrol car cautiously enter the intersection, with blue lights flashing, and get hit by a minivan. Cook observed Deputy McCarty looking left and right several times before the collision. Cook testified that it appeared that the minivan had not slowed down upon approaching the intersection.

Marsha Williams testified that she was a passenger in her mother-in-law’s car traveling eastbound on Highway 18.1 They planned to turn south onto Highway 468, but they observed a patrol car at the intersection with its sirens on and blue lights flashing. They pulled into the right-turn lane and waited for the patrol car to proceed through the intersection. Williams observed that the patrol car was stopped at the intersection, and then it proceeded slowly through the intersection and stopped in the middle. At that point, the patrol car was struck by a minivan traveling eastbound, from the same direction Williams had been traveling when she had observed the patrol car and her mother-in-law had pulled over. It appeared to Williams that the minivan was traveling at the speed limit when it struck the patrol car.

Rayner testified that as she approached the intersection, she removed her foot from the gas pedal to slow down. She observed some vehicles in the southbound lane of Highway 468, but it was clear ahead of her. She watched the green light as she approached the intersection. Then she saw a white flash, and her minivan struck the patrol car. She testified that she never heard any sirens or saw any blue lights. Rayner testified that she suffered permanent injuries in the accident. Bynum testified that Billie Joe Bynum, Jr., age 3, received a bump on the head and a seat-belt bruise, from which he fully recovered.

The trial court found that the officer was not in reckless disregard under the Mississippi Tort Claims Act (MTCA). MSC affirmed.

Analysis

Reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. Police officers are not liable for negligence, which is a failure to exercise due care.

Rayner asserts that her own testimony created a disputed issue of material fact regarding whether Deputy McCarty had his lights and sirens on. Here, testimony on this question from Deputy McCarty and eyewitnesses Cook and Williams stated that Deputy McCarty had his lights and sirens on. In fact, Williams was traveling from the same direction as Rayner, and she heard the sirens and yielded to Deputy McCarty’s patrol car. Rayner testified that she heard no sirens and did not see any blue lights; however, Rayner testified that she had not detected the presence of the patrol car at all before the collision. Indeed, Rayner testified that, as she entered the intersection, she was looking up at the green light. Because she never detected the patrol car, Rayner could not have known whether or not it had lights and sirens on. Thus, there was no conflicting evidence as to whether or not the deputy had initiated lights and sirens.

Further, it was undisputed that, although Deputy McCarty’s view was obstructed due to the vehicle stopped in the center turn lane, he appreciated the danger from oncoming traffic and proceeded cautiously by keeping a lookout and slowly creeping into the intersection. Pursuant to Mississippi Code Section 63-3-809(1), all drivers given an audible signal by an emergency vehicle shall yield the right-of-way. Miss. Code Ann. § 63-3-809(1) (Rev. 2004).

In light of this statute, which requires other drivers to yield to an emergency vehicle, Deputy McCarty’s precautionary measures of looking both ways and cautiously creeping into the intersection evinces that Deputy McCarty appreciated the risk involved in crossing the intersection. He proceeded cautiously, on the alert for oncoming traffic, but he also relied upon his lights and sirens to alert oncoming traffic of his control of the intersection. Indeed, these safety measures effectively alerted Williams and her mother-in- law, who reached the intersection just ahead of Rayner, noticed the lights and sirens, and appropriately yielded right-of-way to the patrol car. Reckless disregard is the entire abandonment of any care, while negligence is the failure to exercise due care.

Deputy McCarty’s safety measures aptly demonstrate that he exercised care in crossing the intersection. His cautiously proceeding across the intersection despite an obstructed view was, at most, a failure to exercise due care. Therefore, Deputy McCarty’s conduct did not rise to the level of reckless disregard.

Rayner next argues that Deputy McCarty acted in reckless disregard because his actions violated Mississippi Code Section 63-3-315 and the policies and procedures of the Rankin County Sheriff’s Department. Mississippi Code Section 63-3-315 permits the driver of an authorized emergency vehicle to cross an intersection against a red light when responding to an emergency call. Miss. Code Ann. § 63-3-315 (Rev. 2004). Rayner contends that, although Deputy McCarty was driving an authorized emergency vehicle, he lacked authorization to cross the intersection under Mississippi Code Section 63-3-315 because he was responding to a “disturbance,” not an “emergency call.”

She also cites a portion of the policies and procedures of the Rankin County Sheriff’s Department, which provides:

Patrol Activities:
Response to some calls may require several deputies to effectively and safely control the situation. These situations may include but are not limited to:
1. An assault on an officer;
2. On-scene arrest for a violent offender;
3. A potential or actual resistance to arrest;
4. Use of force incident;
5. A violent or potential violent crime in progress;
6. A fleeing suspect; or
7. Domestic Abuse Incidents.
8. Motor vehicle accidents.

The first responder must exercise discretion in determining the best course of action. These options range from immediate intervention to identification and reporting. The safety of deputies and innocent life will always be a prime factor when considering options. Rankin County Law Enforcement Policies and Procedures, § 3.1 Patrol Functions & Tactics.

Rayner argues that Deputy McCarty acted in violation of these policies, because he was not a first responder, and he was not responding to one of the eight listed situations. Rayner argues that Deputy McCarty’s violation of Mississippi Code Section 63-3-315 and departmental policies was inherently reckless.

Rayner argues that if an emergency vehicle drives past a red light in response to a report of a “disturbance,” instead of a report specifying an “emergency call,” Mississippi Code Section 63-3-315 is violated. Rayner argues that not every situation deemed a “disturbance” would permit emergency driving measures under Mississippi Code Section 63- 3-315, because a “disturbance” could constitute something as innocuous as a dog barking.

There is no caselaw construing the term “emergency call” as used in Section 63-3-315. Nor is there any evidence disclosing what the disturbance might have been in this case. The term “disturbance” certainly could include an innocuous situation such as a dog barking. But on the other hand, a “disturbance” could just as easily signify domestic violence or another dangerous situation requiring a swift response. Rayner bears the burden to prove that Deputy McCarty acted in reckless disregard. Rayner has not submitted any proof that the situation to which Deputy McCarty was responding was of such an insignificant nature that he acted in reckless disregard by crossing the intersection against the red light.

Rayner cites no authority for her contention that Deputy McCarty’s violation of law enforcement policies was equivalent to acting in reckless disregard. It appears that Rayner is arguing that the existence of a police policy that prohibits the course of action taken by the officer constitutes proof that the officer acted with reckless disregard.

In Richardson, this Court articulated a ten-part test for reckless disregard that includes, as a factor, the existence of a police policy that prohibits pursuit under the circumstances. However, the ten-part test is used for evaluating whether an officer acted in reckless disregard in connection with a police pursuit.

This case does not involve a police pursuit. Moreover, the evidence lends no support to Rayner’s contention that Deputy McCarty violated the Rankin County Sheriff’s Department’s law enforcement policies. Deputy McCarty testified that he and another officer were responding to the disturbance call. Rankin County’s policy states that responding to some calls may require several deputies, and that the situations requiring a response from multiple deputies are not limited to the eight listed situations. The Court finds this argument to be without merit.

 

 

https://courts.ms.gov/images/Opinions/CO60597.pdf