At 6:30 a.m. on October 11, 1999, Sammie Durn was driving south on a two-lane area of U.S. Highway 49 north of Indianola. He was headed to the school bus garage to warm up his bus before picking up the children along his bus route. As Durn was driving south on Highway 49, State Trooper Lantern was headed north in his patrol car. Soon after the two passed each other, Lantern noticed a vehicle traveling southbound at a speed in excess of the posted speed limit of fifty-five miles per hour. He made a u-turn and pursued the speeding vehicle.
While in pursuit of the speeding vehicle, Lantern eventually came upon Durn. He attempted to pass Durn using the northbound lane, but as he started to overtake Durn, Durn turned left across the northbound lane to enter the lot leading to the bus garage. Lantern collided with the driver-side rear quarter of Durn’s truck, pushing the truck 178 feet and throwing Durn from his vehicle. The skid marks left by Lantern’s vehicle were completely in the northbound lane. Durn was cited for having an improper tag on his vehicle.
At trial, Durn testified that he had his turn signal on before attempting to turn left. He checked his rearview mirror and did not notice a vehicle approaching from either direction. He never heard a siren and also stated that he never noticed the speeding vehicle Lantern was pursuing. Durn’s expert witness testified that Lantern was traveling eighty-one miles an hour before the accident.
Lantern testified that he activated his wig-wag light as soon as he made the u-turn. He claimed he kept his vehicle at fifty-five miles an hour during the pursuit and that he had already overtaken the northbound lane, attempting to pass Durn when Durn crossed over into the northbound lane. He also stated that Durn began driving in the northbound lane fifty feet before attempting to turn into the garage lot. He did not recall if Durn used his turn signal.
The circuit court found that Lantern acted in reckless disregard. MSC affirmed on the reckless disregard (however, since Durn made an improper left turn, MSC sent back to circuit court to determine comparative fault. That is not discussed below).
While we agree that reckless disregard would encompass gross negligence, we hold that reckless disregard is a higher standard than gross negligence by which to judge the conduct of officers.
We recently upheld a finding of reckless disregard when officers caused a suspect to collide with a third party while pursuing her through a congested area at high speeds after she attempted to pass a forged check at a bank. See City of Jackson v. Brister, 838 So. 2d at 274 (2003). The pursuit took place in a heavily populated area that included apartment complexes, single-family housing and condominiums, a park, and an elementary school. The officers drove at speeds in excess of twenty miles per hour over the posted speed limit while the suspect was traveling at speeds in excess of seventy miles per hour. The accident occurred when the suspect crested into an intersection where her visibility was limited. We anchored our decision on the fact that the officers involved in the chase were violating a departmental order that a pursuit may only be initiated when a suspect’s escape is more dangerous to the community than the risk posed by the pursuit. We noted that the officers were on the scene before the suspect left the parking lot, and they had the opportunity to either block the suspect in her parking space or get her tag number and apprehend her later.
In Brister, we cited several factors to determine whether an officer acted in reckless disregard of others while pursuing a third party:
(1) Length of chase. In the present case, Lantern’s pursuit of the speeding vehicle lasted only seconds.
(2) Type of neighborhood. The area was a congested business area.
(3) Characteristics of the streets. The stretch of highway where the accident took place was straight and flat.
(4) The presence of vehicular or pedestrian traffic. The area was congested.
(5) Weather conditions and visibility. Visibility was limited by the darkness at 6:30 a.m.
(6) The seriousness of the offense for which the police are pursuing the vehicle. Lantern was pursuing a speeding vehicle at the time of the accident.
A review of our case law illustrates that we find reckless disregard 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. See Maldonado.
We affirmed a finding of reckless disregard when an officer suddenly turned his vehicle in front of oncoming traffic without having his headlights on or using his blue lights or siren. See City of Jackson v Lipsey, 834 So.2d 687 (Miss. 2003). The officer received a dispatch to an auto burglary at 1:30 a.m. He elected to respond although he was not the primary or secondary unit dispatched. We noted that the officer had been involved in six prior accidents and that the present accident was investigated by the department, which concluded that the officer failed to yield the right of way.
We also found reckless disregard when an officer was driving twenty-seven miles per hour over the posted speed limit without using his siren or blue lights while on his way to dinner when he collided with a vehicle exiting a parking lot. See Perry. The officer testified that he customarily drove without knowing how fast he was traveling.
In Maye, we found an officer’s actions rose to the level of reckless disregard because he showed a conscious disregard for the safety of others when he backed up an incline entrance to a parking lot, knowing he could not be sure the area was clear. While the officer was backing up the entrance, a driver entered the lot from the road and noticed the police car backing towards her. The driver could not back up and began using her horn to notify the officer that she was behind him. The officer never stopped and ultimately collided with the vehicle. The officer testified that he could not see the road from the parking lot because his view was obstructed.
We found that a circuit court erred as a matter of law when it found an officer acted in reckless disregard when he caused an accident at a dangerous intersection. See Maldonado. There, an officer caused an accident when he pulled into an intersection where his view of oncoming traffic was obstructed by a water tower. The officer checked for oncoming traffic before proceeding but did not see the plaintiff’s vehicle until immediately prior to impact. We found the officer was aware of the nature of the intersection and took steps to avoid the collision.
We conclude that the circuit court did not err in finding Lantern acted in reckless disregard of the safety and well-being of others. The circuit court was in the best position to weigh the credibility of the witnesses. There were inconsistencies in Lantern’s testimony concerning his speed that cast doubt on his entire testimony. The circuit court found evidence that satisfied numerous Brister factors and determined that Lantern appreciated the unreasonable risk associated with attempting to overtake a vehicle that indicated it was turning, yet still acted in deliberate disregard of that risk.
The Department also attacks the judgment on the grounds that it is immune from liability because Durn was engaged in illegal activity that caused the accident. Miss. Code Ann. § 11-46-9. The Department argues that Durn was engaged in criminal activity at the time of his injury, § 11-46-9(1)(c), because he committed a misdemeanor traffic offense by making a left turn when it was not reasonably safe to do so.
The MTCA’s police exemption 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. If the victim is engaged in an illegal activity that is a cause of the harm, the government is immune from liability. The criminal activity supporting the exemption must be more than fortuitous, but it applies to misdemeanors as well as felonies. Misdemeanor traffic offenses are criminal activities within the statute.
In Perry, we found the City of Jackson was not entitled to immunity when the plaintiff was driving without a driver’s license at the time of the accident. We noted that the plaintiff was neither charged with a crime nor issued a citation and that driving without a license was not specifically designated as a crime in the Mississippi Code. We found the City was not entitled to immunity because the officer’s conduct had nothing to do with the criminal activity involved.
Unlike Perry, Durn’s actions are designated as a criminal offense. The skid marks at the accident show that Lantern was completely within the northbound lane before the accident occurred. However, Durn’s left turn was not the criminal activity that caused Lantern to give chase. As in Perry, the officer’s conduct had nothing to do with the alleged criminal activity. Lantern’s pursuit was caused by another speeding vehicle; Durn’s action was merely fortuitous.
The statute is not designed to protect grossly negligent or intentional tortfeasors from liability where the fact that the victim is engaged in criminal activity is merely fortuitous and has no relation to the transaction out of which the liability would 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 whiskey.
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. It would defy common sense and natural justice for us to hold that Durn’s alleged improper left turn constituted criminal activity which entitled the Department to immunity. There was no credible evidence that Lantern had his siren on when he attempted to pass Durn. The physical evidence at the scene of the accident shows that Lantern was traveling at a high rate of speed. We affirm the circuit court’s finding that Durn was not engaged in criminal activity at the time of the accident.