MTCA section on victim being engaged in commission of crime explained


On April 4, 1994, at 11:00 p.m., LaDarrell Perry, was driving a black vehicle owned by Connie Dixon. Perry did not have a driver’s license at that time. He testified that he was not sure whether he had a learner’s permit. Perry was exiting the parking lot of the Fairmont Apartments, on Raymond Road. As Perry proceeded into Raymond Road, Officer Edwards was speeding going east in a police patrol vehicle on Raymond Road without using the sirens or blue lights. Officer Edwards was not on an emergency call, but was going to dinner. Perry pulled into Raymond Road turning left, and going westward. Officer Edwards crashed into the car that Perry was driving.

The trial court found in favor of Perry. MSC affirms.


We must first determine whether the City of Jackson and Officer Edwards were entitled to immunity under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. § § 11-46-1- et seq. (Supp. 1999). The City of Jackson and Edwards argue that they are entitled to immunity because there was no showing of reckless disregard of the safety and well-being of others by Officer Edwards. The City of Jackson and Edwards also argue that they are not liable because Perry was in the commission of a criminal activity at the time of the accident.

A. Reckless Disregard

Section 11-46-9 waives immunity if Officer Edwards acted with reckless disregard of Perry’s safety. That statute states as follows:
(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 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 (Supp. 1999) (emphasis added). The City and Officer Edwards argue that Perry pled neither that Officer Edwards acted with reckless disregard of Perry’s safety and well-being, nor that Officer Edwards’s actions were “willfully or wantonly” committed. We review these arguments in turn.

The City argues that the facts asserted by Perry may show simple negligence, but not reckless disregard of safety. The City argues that this Court has held that speeding by itself is not reckless disregard.

In Turner, this Court held that a showing of intent to harm is not required to remove an act from immunity, but it must be determined whether the officer’s actions were 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, this Court held that an officer acted with reckless disregard for the safety of others when he allowed a visibly intoxicated motorist to continue driving. The Court held this to be reckless disregard of the safety of any person, when that intoxicated motorist later had an accident.

In Maye, a police officer backed his car into a car that the plaintiff was driving. This Court held that with conscious indifference to the consequences, the officer backed out knowing he could not see what was behind him. The Court held that the officer’s actions rose above simple negligence to the level of reckless disregard of the safety and well-being of others.

Here, the City suggests that Officer Edwards simply hit Perry, who was pulling out into the street. However, the facts show more than an innocent accident. Edwards testified to seeing Perry’s vehicle stopped at the Fairmont Townhomes. Perry attempted a left turn from Fairmont Townhomes to Raymond Road going west. Officer Edwards was driving at a minimum of 57 miles per hour in a posted 35 miles per hour zone on Raymond Road. Officer Edwards struck Perry’s vehicle in the driver’s door knocking the vehicle 75 feet. The facts also show that Officer Edwards was in a non-emergency situation using neither sirens nor flashing lights. He was going to meet fellow officers for dinner. Edwards also testified that, being new to the department, he would customarily drive without knowing how fast he was going. Edwards further admits that police officers, unless they are on an emergency call, must abide by the speed limit.

Edwards’s negligent actions are similar to the officer’s actions in Maye. Because Edward’s actions rise above mere negligence, Edwards showed a reckless disregard of the safety and well-being of others. Simply put, the trial judge did not err on this issue.

B. Commission of crime

The City also argues that the City and Edwards are not liable because Perry was in the commission of a crime. The City argues that § 11-46-9(1)(c) applies to individuals not committing a crime. Because Perry was engaged in criminal activity, the City argues that its immunity has not been waived. Specifically, the City asserts that Perry was violating Miss. Code Ann. § 63-1-5 (1996), which states, “no person shall drive or operate a motor vehicle other than a motorcycle upon the highways of the State of Mississippi without first securing an operator’s license to drive on the highways of the State of Mississippi, except those persons especially exempted by § 63-1-7.” (The exemptions referred to in § 63-1-7 are not applicable here). The City argues that because Perry was driving the car without a driver’s license, its immunity has not been waived.

The clear language of the statute states that immunity under this section of the statute is waived if there is a showing that 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. 1999) (emphasis added).

Perry argues that driving without a license is not the type of criminal activity that § 11-46-9 covers. Perry cites to § 11-46-5(2)(Supp. 1999)(Waiver of immunity; course and scope of employment), which states that an employee is not considered within the course and scope of employment if the employee’s conduct constituted “any criminal offense other than traffic violations.”(Emphasis added). Perry argues that because the legislature distinguished criminal activities from traffic violations for tortfeasor employees, extending this distinction to victims is only logical. Perry argues that the meaning of the non defined “criminal activity” stated in § 11-46-9 should therefore be construed the same as the defined criminal activity in § 11- 46-5 (which states that traffic violations are an exception to criminal activity).

Here, Perry was neither issued a citation for driving without a license nor charged with any crime. One Mississippi statute defines criminal activity, which is used in the chapter on restitution to victims of crimes. Miss. Code Ann. § 99-37-1(a) (1994) (“Criminal activities” shall mean any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant).

Driving without a license, a traffic violation, is not specifically designated as a crime in the Mississippi Code. Although there is a general provision providing a penalty for any violation of the chapter in which the licensing provision is found, that catch-all provision does not provide that such violations be considered criminal. Miss. Code Ann. § 63-1-69 (1996) (Punishment for violations where no specific penalty provided). There are other statutes within our code regulating the use of our highways which specifically denominate violation as misdemeanors or felonies. See, e.g., Miss. Code Ann. § 63-1-57 (1996) (Driving while license is canceled, suspended, or revoked-misdemeanor); § 63-1-60 (Alteration, fraudulent use, or fraudulent procurement of license-misdemeanor); § 63-2-7 (Violations of mandatory use of Safety Belts Chapter- misdemeanor); § 63-3-401(4)(Duties of driver involved in accident resulting in personal injury or death-felony).

Beyond that, however, for the purposes of Miss. Code Ann. § 11-46-9, in order for the fact a victim is then engaged in criminal activity to bar recovery it must be shown that the criminal activity has some causal nexus to the wrongdoing of the tortfeasor. The statute is designed to protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim. It is not designed to protect grossly negligent or intentional tortfeasors from liability where the fact that the victim is engaged in a criminal activity is merely fortuitous and has no relation to the transaction out of which the liability would otherwise arise. It would be anomalous to suggest, for example, that a recklessly negligent officer who runs down a pedestrian on the sidewalk, escapes liability on a showing that the pedestrian was then and there in possession of untaxed whisky.

This Court construes statutes to produce a harmonious conclusion consistent with common sense and natural justice. Because the Officer’s conduct did not have anything to do with the criminal activity involved here, the City of Jackson’s argument is without merit.