This case arises out of a two-car accident involving a deputy sheriff employed by Pearl River County and a private citizen. The facts are substantially uncontested. On July 14, 1994, Deputy Daniel L. Collier was backing out of a driveway at the Pearl River County jail in Poplarville when he backed into a car driven by Barbara Goodwin. Collier was acting in his official duty at the time of the accident by transporting two prisoners to the courthouse in a sheriff’s vehicle.
After checking all his rear view mirrors, Collier backed the car from the parking space straight up the incline to the entrance of the parking lot. Even though Collier checked his mirrors, he testified he could not see the road from the parking lot because the jail and the lot sit below the level of the road. Collier was attempting to back up the incline far enough into the entrance to make a left hand turn through the parking lot and then exit the parking lot through another entrance onto Oak Hill Road.
Goodwin pulled into the parking lot and saw Collier backing toward her. She stopped and left her foot on the brake. As she stopped, she placed her thumbs on her horn and kept them there. The back of her car was clear of the street, but she had nowhere to go. Her car was stopped on an incline facing downward with a street behind her and the sheriff’s car backing toward her.
After backing his car into Goodwin’s car, Collier rolled forward a little, put the car into park, and immediately got out to see if everyone was okay. He then went into the dispatch office to request an officer.Goodwin testified after Collier went inside to get somebody to investigate, he returned, put his arm around her shoulder and said, “Barbara, I am so sorry. I didn’t even see you. I’m so use to backing up.” Collier only recalled telling her he did not see her.
Barbara Goodwin was driving Harold Goodwin’s car at the time of the accident. Rhonda Maye, the daughter of Harold and Barbara Goodwin, was a passenger in the front seat of Goodwin’s car. Melanie Goodwin, another daughter of Harold and Barbara Goodwin, and Melanie’s son Hunter were in the back seat. Harold Goodwin was not in the car.
As a result of the impact, Goodwin’s car sustained damages to the left front fender and driver’s door totaling over $1,900.00. The sheriff’s vehicle sustained damages to the right rear fender. Rhonda Maye testified she hit the dash board at the time of the accident injuring her right knee. Maye further testified her neck and back were hurting the next day, prompting her to visit the emergency room at the hospital in Poplarville. X-rays were taken at the hospital and she was referred to Dr. David M. Jarrott in New Orleans, but she was never hospitalized.
Dr. Jarrott released Maye in September of 1994, around two months after the accident. At that time, she could perform normal household tasks. Maye testified she was out of work for approximately ten months because Dr. Jarrott restricted her to only light duty work, which was unavailable at her place of employment, Pearl River County Nursing Home. She didn’t work again until May of 1995, when she began working at Crosby Memorial Hospital. As a result, she lost approximately $8,000.00 in wages.
It is undisputed that Collier did not intentionally run into the other vehicle.
The trial court found for the defendants, Pearl River County and Collier, based on the intent requirement in our original decision in Turner (see below). The court held the plaintiffs failed to make the necessary showing Collier intended to hit Goodwin’s car when he backed out of the parking lot. Expressing deep disagreement with our original decision in Turner requiring a showing of intent, the trial court nevertheless stated it had no choice but to find for the defendants. Goodwin and Maye timely appealed. MSC reversed.
Recently we reconsidered our original decision in Turner v. City of Ruleville and upon motion for rehearing issued a new opinion, Turner.
The County and Collier base their claims of immunity on § 11-46-9(1)(c) of the Mississippi Tort Claims Act. Section 11-46-9(1)(c) provides immunity for governmental entities and their employees 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) (Supp. 1998).
Because the new Turner decision does not require a showing of intent to harm to remove an act from immunity, the only question left to be considered is whether Collier’s actions meet the Act’s requirement of acting in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury.
In Turner, we discussed the meaning of reckless disregard. “Disregard” of the safety of others is at least negligence if not gross negligence. Because “reckless” precedes “disregard,” the standard is elevated. As quoted above from Black’s Law Dictionary “reckless,” according to the circumstances, “may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive or negligence.” In the context of the statute, reckless must connote “wanton or willful,” because immunity lies for negligence. And this Court has held that “wanton” and “reckless disregard” are just a step below specific intent.
In Turner, the question was whether the officer acted with reckless disregard for the safety of others when he allowed an intoxicated motorist to continue driving. This intoxicated motorist later collided with Turner causing her injuries. In this case, the question is whether Collier evidenced a reckless disregard for the rights and safety of others when he backed the sheriff’s car up an incline without being able to see incoming traffic.
The County and Collier argue Maye and Goodwin produced no evidence Collier acted with reckless disregard. In doing so the County and Collier attempt to equate Collier’s actions with simply backing out of a parking space. Collier’s actions are, however, a bit different. Evidence presented at trial showed Collier backed his car up an incline, blocking traffic turning into the parking lot from the road at the top of the incline. Although Collier testified that he checked his mirrors before backing up, he also stated he could not see approaching traffic just by using his mirrors. Barbara testified she pulled into the lot, saw Collier backing up and stopped her car. According to Barbara, at this point Collier was forty feet away. As soon as she pulled into the lot entrance, she blew her horn and continued to blow it until she was hit.
In short, without being able to see, Collier backed up and blocked an entrance and did not respond to Barbara’s horn, even though he was forty feet away when she started blowing the horn. The collision produced $1,900 in damages to Goodwin’s car. These actions are not the same as just backing out of a parking space as Collier suggests in his brief.
The County and Collier cite a Fifth Circuit case, Orthopedic & Sports Injury Clinic v. Wang Laboratories, Inc., 922 F.2d 220 (5th Cir. 1991), that addresses the element of culpability inherent in the term reckless disregard. The Fifth Circuit wrote: The terms ‘willful’, ‘wanton’, and ‘reckless’ have been applied to that degree of fault which lies between intent to do wrong, and the mere reasonable risk of harm involved in ordinary negligence. These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to the terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.
The County and Collier assert Collier’s conduct does not rise to the level of that contemplated in Orthopedic & Sports Injury Clinic. They argue Collier’s conduct was simple negligence because Maye and Goodwin did not prove Collier’s conduct showed a conscious indifference to the consequences of his actions. However, Collier did not just carelessly back out of a space. With conscious indifference to the consequences, he backed out knowing he could not see what was behind him. This Court has held wantonness is a failure or refusal to exercise any care, while negligence is a failure to exercise due care.
When Collier backed out of the parking space and up the incline, he did not know what was behind him. 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. It is obvious from the damage to Goodwin’s car and the injuries to Maye, that Collier was going much too fast to be backing up the entrance to the parking lot when he could not see what was behind him. These actions rise above simple negligence to the level of reckless disregard of the safety and well-being of others. For this reason the County and Collier are not immune from suit under the Act. For this reason, we reverse the decision of the trial court and render a decision finding the County and Collier liable for Maye’s and Goodwin’s injuries.