Facts
On March 28, 2019, Officer Philipe Ducksworth was sitting in a vehicle on Main Street in Lumberton, Mississippi, watching traffic, when he saw Justin Brown drive by and observed he was not wearing his seat belt. Ducksworth followed behind him, with blue lights and sirens engaged. Brown pulled over near Lower Airport Road, which Ducksworth testified was in the city limits of Lumberton. When Ducksworth pulled in behind Brown, Ducksworth notified dispatch of the circumstances and exited his vehicle. After Ducksworth exited his vehicle, Brown drove away, fleeing.
Ducksworth pursued Brown, reaching a speed of ninety miles per hour to catch up with him. Ducksworth again notified dispatch regarding his situation. Eventually, they turned onto Four Mile Road, and Ducksworth slowed to around eighty miles per hour because he was unfamiliar with the area. At a curve in the road, Ducksworth briefly lost sight of Brown, and when he rounded the curve, he discovered that Brown had struck Cory Slade’s vehicle head-on in Slade’s lane of travel.
According to Ducksworth, the distance from the initial stop to the accident site was between three and four miles and lasted around three to four minutes. The collision site was outside the Lumberton city limits. The entire time of the chase, Ducksworth had his siren and blue lights engaged. Ducksworth came to a stop at the scene and drew his weapon because he did not know the suspect. He ordered Brown to exit the vehicle, but Brown could not get out because the door was stuck. Ducksworth told Brown to exit the vehicle from the other side at which time Ducksworth heard the other guy (Slade) screaming about his leg.
Ducksworth handcuffed Brown and put him in the back of his vehicle. Ducksworth ran the information on Slade’s vehicle and Lamar County officials arrived. Ducksworth also called for medical assistance for Slade. The Lamar County officials took pictures and searched Brown’s vehicle. Finding marijuana, the Lamar County officials transported Brown to the Lamar County jail. Brown was also charged with additional crimes by the City of Lumberton, including reckless driving, failure to yield to blue lights, and driving with a suspended license.
Cory S. Slade filed a complaint in the Lamar County Circuit Court against the City of Lumberton, pursuant to the provisions of the Mississippi Tort Claims Act (MTCA).The circuit court granted Lumberton’s motion for summary judgment. MCOA affirmed.
Analysis
Lumberton asserted immunity pursuant to Mississippi Code Annotated section 11-46-9(1)(c) (Rev. 2019), which provides that a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable 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.
It is undisputed that Ducksworth was acting in the course and scope of his employment with Lumberton and that Slade was not engaged in criminal activity, so unless Slade proved by a preponderance of the evidence that Ducksworth acted with reckless disregard, Lumberton cannot be held liable.
In MSC Phillips, they said, “By requiring a finding of ‘reckless disregard of the safety and well-being of others,’ the Legislature set an extremely high bar for plaintiffs seeking to recover against a city for a police officer’s conduct while engaged in the performance of his or her duties.”
Reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. See MSC Maye.
In MCOA Tennesen, we explained: MSC has set forth ten factors for a trial court to consider when assessing “reckless disregard” in police-pursuit cases, as follows: (1) length of the chase; (2) type of neighborhood; (3) characteristics of the streets; (4) presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; (6) seriousness of the offense for which the police are pursuing the suspect; (7) whether the officer proceeded with sirens and blue lights; (8) whether the officer had available alternatives which would lead to the apprehension of the suspect besides pursuit; (9) existence of a police policy which prohibits pursuit under the circumstances; and (10) rate of speed of the officer in comparison to the posted speed limit. In undertaking a “reckless disregard” analysis, it is appropriate for trial courts to consider all ten factors, and to look at the totality of the circumstances when analyzing whether someone acted in reckless disregard.
The circuit court considered each factor individually:
1. Length of chase – “Length,” as used in this factor, can refer to either the distance traveled, the time elapsed during the pursuit, or both. The only evidence of the chase’s length came from Officer Ducksworth. In his deposition, he stated the chase lasted “three or four minutes” and covered “three to four miles.” Mississippi court decisions have not established a pattern regarding chases of this approximate length.
2. Type of neighborhood – It is uncontested that the pursuit stayed in a rural area.
3. Characteristics of the roads traveled – The roads were in decent shape, and not “bumpy or bad.” Slade notes that Four Mile Road had a sharp curve shortly before the site of the collision.
4. Vehicular and pedestrian traffic – Ducksworth testified he may have seen three other vehicles on Highway 13, and they all pulled over. Slade argues the accident happened at approximately 3:15 pm. Schools were dismissed around this time so there could have been school buses on the road. However, the area where the pursuit occurred is not near the Lumberton schools.
5. Road conditions – It was a clear, sunny day, and the roads were dry.
6. Offense for pursuit – Ducksworth initiated a traffic stop for a misdemeanor seat belt violation. While Lumberton admits that a seat belt violation, in and of itself, would not justify a pursuit, the suspect fled from Ducksworth as he approached the vehicle on foot. In Ducksworth’s opinion, this created reasonable suspicion that justified the pursuit.
7. Siren and blue light – It is undisputed Officer Ducksworth used his lights and siren.
8. Alternatives to pursuit – Ducksworth “called in” the suspect car’s license plate, but the information concerning the person to whom the plate was registered had not returned by the time the pursuit began. In any event, that person was not the driver of the car. Other than Ducksworth, only one other officer was on duty. Lumberton does not have any aerial resources that could be used to track the suspect from above. While Ducksworth may have been able to seek assistance from the Lamar County Sheriff’s Office, the number of deputies on duty at any given time and the large area they must cover makes it unlikely a deputy would have been able to assist.
9. Pursuit policy – Lumberton’s pursuit policy allows pursuits in the officer’s discretion based on an analysis under the supervision of the lead officer in charge. Officer Ducksworth was the acting police chief at the time, so he was both lead officer and the ranking officer on duty. Ducksworth testified he continuously evaluated whether to continue the pursuit and he backed off when he thought it was appropriate to do so.
The policy states the speed of the pursuit should be based on the seriousness of the offense, the opportunities for later arrest of the violator, traffic density, and the exercise of sound judgment. As to “sound judgment,” the policy classifies violations in one of three categories: (1) continuing hazardous moving violators (such as drunk drivers); (2) momentarily hazardous moving violators (such as running a stop sign); and (3) technical violators (such as improper license). The justification for a pursuit decreases with the seriousness of the violation.
While most of the factors the Court has considered thus far have been neutral or favorable to Lumberton, this factor is favorable to Slade. The only violation of which Ducksworth could be certain was the misdemeanor seatbelt violation. This would be a technical violation.
10. Speed – Ducksworth testified he reached a top speed of 90 mph and reduced speed on Four Mile Road to 80 miles per hour. Given the area, traffic, and road conditions, the Court cannot state this speed was unreasonable.
When this Court examines the totality of the circumstances, it finds the pursuit did not rise to the level of reckless disregard. While the seatbelt violation would not justify a pursuit, in and of itself, the suspect fleeing elevated the seriousness of the offense in the experienced opinion of Officer Ducksworth. Further, this was a rural area with roads in good condition. The pursuit only lasted a few miles and a few minutes. Given these facts, Officer Ducksworth’s conduct did not rise to reckless disregard. Slade’s injuries and property damage were indeed unfortunate, but Lumberton may not be held liable for those injuries and damage.