City and officer immune under MTCA when brakes failed causing accident


On October 7, 1998, Martin Scott McGrath alleged that Gautier P.D. Officer Vincent D. Nicholson, while acting in the course and scope of his employment with the City, negligently collided with the rear of his vehicle on October 14, 1997. According to the accident report, the officer, while on duty, was driving when the brakes in his patrol car failed, causing him to collide with McGrath’s car which was stopped at a red light. Although the officer attempted to engage his emergency brake prior to the collision, he was unable to in time, and his vehicle left 19 feet of skid marks at the scene. Pursuant to the Mississippi Tort Claims Act (MTCA), which exempts governmental entities and their employees from liability for certain torts committed while acting within the course and scope of their employment, the trial court found that the City of Gautier and Officer Nicholson were entitled to immunity and summary judgment as a matter of law. MSC affirmed.


We must decide whether the maintenance and inspection of police vehicles are activities related to police protection, so that the city and the officer are immune from liability arising out of negligence in the performance thereof. The police protection exemption reads in pertinent part:(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 commission 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.

Apparent in the language is that those officers who act within the course and scope of their employment, while engaged in the performance of duties relating to police protection, without reckless disregard for the safety and well being of others, will be entitled to immunity. Less apparent is precisely what construction to give to the language “duties or activities relating to police . . . protection.”

The key phrase “police protection” is not defined in the statute, and this precise issue has never been decided by our courts.

On the issue of whether the negligent maintenance of brakes in the officer’s car is an activity arising under the police protection exemption of MTCA, the trial court stated:

I see no genuine issue of material fact here. The fact that the City or its employees may have been negligent in the maintenance of a police vehicle, similarly in my judgment is an act of police protection. And I can’t separate that from what police officers do. If there is some allegation of failure to maintain a police vehicle, I find the City to be immune under the same provisions, which are in 11-46-9(c).

We agree. Because an injury is caused by a police vehicle, operated and maintained by the police department, liability will automatically be precluded because the maintenance of a police department is a governmental function, for which municipalities are exempt. We, therefore, affirm the ruling of the trial court.