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Failure to look both ways before exiting parking space is not reckless disregard under MTCA

Facts

In 2003, Robin Vo left her home at Bay Park Apartments and went to visit a friend who lived at Blue Meadow Apartments in Bay St. Louis, Mississippi. Upon leaving her friend’s residence to return home, Vo’s vehicle collided with that of Deputy Chris Russell, who was backing up from a parked position. Vo estimates she was traveling at a speed of five miles per hour. Although Deputy Russell does not recall Vo’s vehicle approaching him, his unmarked vehicle collided with the passenger door of Vo’s vehicle.

In his affidavit, Deputy Russell stated that he recalled looking to his left before backing out of the parking space, but he did not specifically recall looking to his right; however, he maintained it would have been typical of his actions and consistent with his training to do so. He stated that he was slowly backing his vehicle out of the parking spot and had a low impact collision with Vo. According to Deputy Russell, he did not willfully, intentionally, or recklessly collide with Vo, and he maintained a vigilant look out while backing up.

Vo filed suit under the Mississippi Tort Claims Act (MTCA), alleging that Deputy Russell’s reckless disregard for the safety and well-being of others resulted in the collision whereby she sustained injuries. The circuit court granted the motion for summary judgment for Hancock County. MCOA affirms.

Analysis

The trial court granted Hancock County’s motion for summary judgment on the grounds that Vo failed to establish that Deputy Russell acted with reckless disregard when he struck her vehicle. According to section 11-46-9(1)(c), governmental entities and their employees engaged in the performance of duties or activities related to police or fire protection are immune from claims arising from alleged tortious conduct when acting within the course and scope of their employment or duties 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 trial court’s order granting summary judgment states that even if Deputy Russell failed to look both ways, that fact would create nothing more than simple negligence, liability for which the county is immune under the MTCA.

Reckless disregard is a higher standard than simple or gross negligence, but less than an intentional act. See City of Jackson v. Brister, 838 So. 2d 274 (Miss. 2003). MSC has defined reckless disregard as the voluntary doing by a motorist of an improper or wrongful act with heedless indifference to results which may follow and the reckless taking of chance of an accident happening without intent that any occur. This standard embraces willful or wanton conduct and usually is accompanied by a conscious indifference to consequences and a deliberate disregard that risk and the high probability of harm are involved.

In order to establish reckless disregard, Vo must show facts from which a trier of fact could conclude that: (1) Deputy Russell’s conduct created an unreasonable risk; (2) this risk included a high probability of harm; (3) Deputy Russell appreciated the unreasonable risk; and (4) Deputy Russell deliberately disregarded that risk, evincing almost a willingness that harm should follow.

Vo asserts that looking both to the left and the right are typical of Deputy Russell’s actions and consistent with his training as a law enforcement officer, and failure to do so rises to the level of reckless disregard. Vo notes the accident report only states that Deputy Russell looked to the left. She asserts that she was traveling toward Deputy Russell from the right, and since no cars were in the parking spaces to his right, Deputy Russell’s looking only to his left rises to the level of reckless disregard. Vo also contends that there was evidence indicating that Deputy Russell failed to look in either direction before backing out of the parking space. Based on these different accounts of the incident, Vo contends that there was a genuine issue of material fact as to whether Deputy Russell acted with reckless disregard in failing to look before backing out of the parking space.

We find that the trial court did not err in granting Hancock County’s motion for summary judgment. Viewed in the light most favorable to the nonmoving party, Vo failed to adduce specific facts which would rebut Hancock County’s contention that there was no genuine issue of material fact as to whether Deputy Russell acted with reckless disregard; thus, Vo’s claim fails as a matter of law.

Here, while there is a factual dispute regarding whether Deputy Russell looked both ways, or even one way, before backing out, it is not material. This is because, under these circumstances, we cannot find that it would constitute reckless disregard even if Deputy Russell failed to look in either direction.

The accident report stated that Deputy Russell looked to the left when backing up. His affidavit states he did not recall looking to the right, but it would have been consistent with his training to do so. However, he contends that he did look to the left, as he backed up at a low rate of speed. While failure to look to the right could indicate simple negligence, it does not rise to the conscious indifference standard of reckless disregard.

In her affidavit, Vo states that Deputy Russell admitted fault and that he did not look before backing out his vehicle. Vo relies on her affidavit, in which she stated that an insurance adjuster with the Hancock County Board of Supervisors took a recorded statement regarding this incident approximately ten months after the accident, in which she stated that Deputy Russell did not look and admitted fault. She contends his statement was that he did not look either way before backing up. However, this statement does not create a genuine issue of material fact as whether Deputy Russell acted with reckless disregard.

Reckless disregard encompasses conscious indifference to consequences and evinces almost a willingness that harm should follow. Even assuming that Deputy Russell failed to look either way prior to backing out, this fact alone would not rise to the level of reckless disregard. Rather, it would constitute nothing more than simple negligence. An individual’s failure to look is perhaps the most common cause of traffic accidents. There is nothing in the record to indicate that the accident at issue was anything more than an ordinary traffic accident based on simple negligence.

Vo relies on the supreme court’s holding in Maye. In that case, the supreme court held that even though the officer checked his rear view mirrors before backing out of a parking space and proceeding up the incline to the entrance of the parking lot, the officer showed a conscious disregard for the safety of others because he knew that he could not be sure the area was clear by merely checking his mirrors.

We find that Maye is distinguishable from the instant case. In Maye, the officer did not have a clear view at all and backed out into the roadway knowing that there was a possibility of cars approaching. Therefore, we find that Maye does not stand for the proposition that failure to look both ways while backing out constitutes reckless disregard. In the present case, Deputy Russell asserted that he had a clear view and that he maintained a vigilant lookout before and while backing up from the parking spot. Moreover, he contended that he was leaving the parking spot at a very low rate of speed and that he did not see Vo’s vehicle approaching him.

Again, as we stated above, even assuming that Deputy Russell failed to look either way prior to backing out, his actions in this regard evince nothing more than simple negligence. Thus, Maye does not support a finding of reckless disregard on the part of Deputy Russell.

Vo also argues that the parties cannot agree on the following facts: (1) whether Deputy Russell was acting in the course and scope of his employment during the accident and (2) whether the accident occurred in a parking lot or open road. As far as whether Deputy Russell was within the course and scope of his employment, Vo states this fact in her complaint, and Hancock County admits it in its answer. Regarding whether the accident was in a parking lot or open road, a diagram attached to the accident report clearly shows the scene as a parking lot, and a photograph attached to Hancock County’s rebuttal in support of its motion for summary judgment corroborates this fact.

 

https://courts.ms.gov/Images/Opinions/CO48249.pdf