Car accident in parking lot was not reckless disregard under MTCA


On the afternoon of May 11, 2015, Officer Michael Kelly was responding to a call that an intoxicated person was lying unconscious on the sidewalk outside the Days Inn in Clinton, Mississippi. While en route, his police vehicle collided with Patrice Tornes’s car.

According to Officer Kelly, he drove south through the neighboring parking lot, which belongs to Tractor Supply Inc. Because some items in the parking lot blocked his view of the Day’s Inn, he pulled out further than normal so as to be able to see the subject that was the reason for his being there. Officer Kelly stopped so he could survey the area and visually locate the individual from a distance before making personal contact with the subject. And as he was stopped, Tornes, who was traveling west on the road between the Day’s Inn and Tractor Supply, clipped the push bumper of his police vehicle with her right wheels. But according to Tornes, Officer Kelly’s vehicle was not stopped. Instead, Tornes was proceeding in a travel lane in the parking lot when suddenly and without warning her rear bumper was struck by Officer Kelly’s vehicle.

The county court denied summary judgment to both defendants on all claims. MSC reversed.


A. No Individual Liability

First, Officer Kelly cannot be held individually liable. While the MTCA permits a government employee to be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, the MTCA makes clear no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties. Miss. Code Ann. § 11-46-7(2) (Rev. 2012). Indisputably, Officer Kelly was acting within the course and scope of his employment as a police officer when the wreck occurred. So his presence as a named defendant stems only from his being a representative of the City. Tornes has no claim against him individually.

B. Police-Protection Immunity

Second, to the extent Tornes seeks to hold the City liable for Officer Kelly’s actions, the City enjoys police-protection immunity.

The MTCA generally waives the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment. Miss. Code Ann. § 11-46-5(1) (Rev. 2012). But it exempts certain claims from that immunity waiver. Miss. Code Ann. § 11-46-9 (Rev. 2012).

Specifically: A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim . . . 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. Miss. Code Ann. § 11-46-9(1)(c).

Again, it is not disputed that, when the wreck occurred, Officer Kelly had been engaged in the performance of police-protection activities—responding to a call about an unconscious person. So unless he acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury, the City cannot be held liable.

Quoting MSC Maye, Tornes suggests reckless, according to the circumstances, may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive or negligence. And because Officer Kelly’s actions fall in that latter careless, inattentive, or negligent category, there is no police-protection immunity.

But what Tornes overlooks is that, in the very next sentence in Maye, the Court clarifies that, while reckless generally may mean wanton or willful or it may mean negligence, in the context of the statute—i.e., Section 11-46-9(1)(c)— reckless must connote wanton or willful, because immunity lies for negligence. See also MSC Maldonado (Police officers and fire fighters are more likely to be exposed to dangerous situations and to liability, therefore, public policy requires that they not be liable for mere negligence.)

Thus, to be reckless for purposes of Section 11-46-9(1)(c), the conduct must be willful or wanton, not merely negligent. Reckless disregard occurs when the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved. While the conduct does not have to be intentional, reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.

In Maye, this Court applied this higher-than-negligence standard to find a deputy sheriff had acted with reckless disregard when he blindly backed out of a parking space, up an incline, and rammed into a car that had turned into the parking lot. In that case, with conscious indifference to the consequences, the deputy sheriff had backed out knowing he could not see what was behind him. Further, when he backed out of the parking space and up the incline, he knew he could not see cars coming into the lot, and he knew checking his mirrors would not let him see cars pulling into the lot. And from the severity of damage to the car and injuries to the passenger, it was obvious the deputy was going much too fast to be backing up the entrance to the parking lot when he could not see what was behind him. Based on the evidence, this Court held these actions rise above simple negligence to the level of reckless disregard of the safety and well-being of others.

Here, the facts do not support the same level of conscious indifference to the consequences. Since this is the summary-judgment stage, we assume Tornes’s version of events is true—that Officer Kelly hit her bumper and not vice versa. But unlike Maye, from the level of damage to Tornes’s car, it is not obvious he was going much too fast. Further, the reason he, in his own words, pulled out further than normal was because his view was obstructed by objects in the parking lot. Instead of Maye, this case is more akin to Maldonado. There, a police officer stopped at a two-way stop, looked both ways, and pulled out into the intersection. This intersection was a known dangerous intersection, because the sight line to approaching traffic was partially blocked. Sure enough, the officer did not see an approaching car and hit it. While the officer may have been negligent, this Court held that his actions did not rise to the level of reckless disregard.

Similarly, in Joseph v. City of Moss Point, 856 So. 2d 548 (Miss. Ct. App. 2003), a city police officer was reading a warrant while stopped at a red light. When the cars to his left started moving, he assumed the light had turned green and instinctively hit the gas. But the cars to his left were in a turn lane that had been given a green arrow. The light for his lane remained red. And the officer rear-ended the stationary car in front of him. While the officer had certainly been remiss in paying attention to traffic directly in his lane, he had not been reckless. Instead, the MCOA found that he had been guilty of simple negligence and nothing more, which kept him under the immunity umbrella of the MTCA.

The evidence, when viewed in Tornes’s favor, shows Officer Kelly had been remiss but not reckless as he drove through the parking lot to the Days Inn. Because his actions did not rise above simple negligence, police-protection immunity applied. And the City is entitled to summary judgment on Tornes’s claims based on Officer Kelly’s actions.