Facts
In 2014, Deputy Barry Miller was in his patrol car on his way back to the Choctaw County Sheriff’s Department. He heard over the radio that there was a medical emergency at French Camp Academy and decided to respond. Dispatch did not specifically request that Miller respond, but he thought he could be of assistance. Miller was on Highway 9, about two miles outside of Ackerman, when he heard the emergency dispatch.
He turned on his blue lights but did not turn on his sirens because he did not see any other traffic at the time. From Highway 9, Miller turned west onto Highway 12 and increased his speed to 65 miles per hour. As Miller topped a hill near Fentress, he saw a large truck carrying wood chips pull onto Highway 12 westbound, the same direction Miller was driving. Miller testified that he turned on his siren when the chip truck pulled onto the highway. He slowed down and eased into the eastbound lane to see if he could pass the truck. He could not see completely in front of the truck, but the eastbound lane was open, so Miller moved to pass.
When he pulled into the eastbound lane, Miller saw a white sedan in front of the truck in the westbound lane. The truck and the sedan both slowed and moved toward the shoulder as Miller passed. Miller testified that he had been driving approximately 65 miles per hour but that he slowed as he was passing the truck and the sedan.
Miller noticed that three eastbound cars approaching him were all slowing down and moving toward the shoulder. Robert McKay’s car was the first of the three cars. Miller estimated that he was about 150 yards from those cars as he was passing the white sedan. Miller moved back into the westbound lane after passing the white sedan. Around this time, Miller also saw a pickup truck approaching Highway 12 from the north on Bowie Maddox Road. Miller was approximately 50 yards from the intersection of Highway 12 and Bowie Maddox Road (a T intersection) when the pickup truck came to a complete stop. Miller did not see the pickup truck pull out until the moment of impact. The pickup truck suddenly pulled onto Highway 12 and struck the front passenger side of Miller’s vehicle. The impact pushed Miller’s patrol car into McKay’s vehicle, which was stopped in the eastbound lane.
Brad Tomlinson was driving the chip truck that Miller passed. He testified that he thought he was being pulled over, so he slowed down to find a place to safely stop on the side of the road. As he slowed, Miller drove past him in the eastbound lane. Tomlinson did not recall hearing a siren.
Charlotte Moore was driving the white sedan in front of the chip truck. She testified that Miller was driving fast and that she had to pull off the road to avoid him. Moore testified that she saw Miller’s blue lights but did not remember hearing a siren.
Ralph Bowie, 82 years old at time, was driving the pickup truck. As he approached Highway 12 on Bowie Maddox Road, he saw a car stopped in the eastbound lane of Highway 12. Bowie thought that the driver might be waiting to turn left onto Bowie Maddox Road, which Bowie was then occupying. Bowie started to pull out to turn left onto Highway 12 so that the other driver could turn into Bowie Maddox Road. Bowie said that he looked both ways before he pulled out. He testified that he saw a car and a truck to his left in the westbound lane but thought he had plenty of time to pull out. He testified that he did not see any lights and did not hear a siren. He testified that he never saw Miller’s patrol car until the impact.
McKay was driving east on Highway 12 on his way home from work. About five miles west of Bowie Maddox Road, he saw an ambulance and a law enforcement vehicle approaching with their lights and sirens on. McKay started to pull over when he saw them, but they turned off the highway toward French Camp, and McKay continued east on Highway 12. As McKay approached Bowie Maddox Road, he saw more blue lights headed in his direction. McKay said the lights were approximately a quarter of a mile away. McKay did not hear a siren. He started to pull onto the shoulder as much as he could, but suddenly Miller’s vehicle collided with his car. McKay testified that he never saw Bowie’s pickup truck to his left, nor did he see the collision between Bowie and Miller. McKay sustained serious injuries in the wreck.
Ben and Eric Chambers were working in a field about a quarter of a mile from the wreck. They heard the wreck but did not see it. When they got to the scene, Ben approached Miller’s vehicle, and Miller told him, “I had my lights and sirens on.” Ben did not remember seeing blue lights or sirens at the time. Eric testified that he saw a deputy’s vehicle driving on Highway 12 with its blue lights on before the crash. He did not hear a siren.
Matthew Henson, a trained accident reconstructionist with the Mississippi Highway Patrol, testified that the day was clear and bright and that there were no visual obstructions near the scene of the crash. The report contained a narrative of the wreck, which stated:
Miller was traveling west on MS 12. Bowie was traveling south on Bowie Maddox Road attempting to turn left on MS 12 and travel east. McKay was traveling east on MS 12. The front of Bowie’s truck struck the right side of Miller’s car, forcing Miller into the east bound lane. The front of Miller’s car then collided with the front of McKay’s car. Miller came to an uncontrolled final rest facing west in the eastbound lane of MS 12. Bowie came to a controlled final rest facing south on Bowie Maddox Road. McKay came to an uncontrolled final rest off the south side of MS 12 facing southwest.
Henson also noted that Miller was responding to a call and had activated his blue lights and siren. He did speak to Bowie and noticed no obvious impairment. Henson indicated in his report that Bowie had failed to yield the right of way.
The judge found that McKay failed to prove that Miller acted in reckless disregard of the safety of others. Thus, the judge entered a final judgment in favor of the County on the ground that it was immune from liability under the Mississippi Torts Claim Act (MTCA). Miss. Code Ann. § 11-46-9(1)(c). MCOA affirmed.
Analysis
The MTCA provides a governmental entity with immunity from any claim arising out of any act or omission of an employee 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.
Reckless disregard is a higher standard than gross negligence and embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act. It involves not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved. It typically involves a conscious indifference to consequences, and almost a willingness that harm should follow.
We cannot say that the trial judge clearly erred by finding that Miller’s conduct did not rise to the high standard of reckless disregard.
In Maye, MSC held that a deputy sheriff acted with reckless disregard when he collided with another car while backing his patrol car up an incline in a parking lot toward an entrance to the lot. By backing up, the officer was blocking traffic entering the parking lot even though he admitted that he could not see what was behind him up the incline. Another car pulled into the parking lot, saw the officer still forty feet away, and blew her horn continuously until the officer backed into her. MSC stated that based on the significant damage to the other car and bodily injuries suffered by a passenger in the car, it was obvious that the deputy was going much too fast to be backing up the entrance to the parking lot when he could not see what was behind him. The Court held that the deputy was not simply negligent but with conscious indifference to the consequences, he backed out knowing he could not see what was behind him.
In contrast, in Vo, this Court held that a deputy who backed into another car in a parking lot was merely negligent and did not act with reckless disregard. The deputy testified that he could see behind him, and the evidence showed, at worst, that he failed to look one or both ways immediately before he backed up at a low rate of speed.
In Maldonado, a deputy came to a complete stop at a very dangerous four-way intersection. He looked both ways, knowing that cross traffic did not stop, and then proceeded into the intersection, where he collided with another vehicle. There was no evidence that the other vehicle was speeding, but the deputy apparently failed to see the vehicle because a water tower near the intersection partially blocked his view of approaching traffic. MSC held that the deputy was at most negligent and did not act with reckless disregard. The Court reasoned that whereas negligence is a failure to exercise due care, wanton or reckless disregard is a failure or refusal to exercise any care.
In this case, Miller acknowledged that he was traveling in excess of the speed limit en route to the emergency at French Camp. Miller estimated that he was driving around 65 miles per hour immediately before the collision, and the posted speed limit on Highway 12 was 55 miles per hour. On appeal, McKay asserts that the combination of witness testimony, the damage to the vehicles, and the post-crash movements of the vehicles prove that more likely than not Deputy Miller was traveling well in excess of the posted speed limit of 55 miles per hour.
However, Tomlinson merely testified that Miller was driving fast like he was responding to something, and Moore testified she did not know how fast he was going, just fast. In addition, Tomlinson testified that he was only traveling 45 or 50 miles per hour when Miller passed his chip truck. Moreover, there was no testimony that the damage to or positioning of the vehicles indicated that Miller was traveling faster than 65 miles per hour. Based on all the testimony and evidence, the trial judge’s finding that Miller was driving 65 miles per hour is supported by substantial evidence and is not clearly erroneous.
The trial judge also found that Miller had activated emergency lights and siren prior to the accident. Multiple witnesses testified that they saw Miller’s blue lights. The trial judge acknowledged that although Miller testified that he was positive that he had activated his siren, the other witnesses did not recall hearing a siren. Regardless, the trial judge was entitled to find Miller’s testimony credible and find that he had both his lights and siren on prior to the accident.
Witnesses also testified that Miller had completely passed the chip truck and white sedan and had moved back into the westbound lane prior to the accident. There was no testimony that Miller passed the chip truck or white sedan illegally.
In summary, the trial judge reasonably found that Deputy Miller activated his lights and siren, accelerated to a speed of 65 miles per hour, and successfully passed two relatively slow-moving vehicles en route to a medical emergency. The trial judge also applied the correct legal standard, citing to relevant cases discussing the meaning of the reckless disregard standard. Based on all the evidence, a reasonable fact-finder could find that the cause of this unfortunate wreck was Bowie’s negligence in driving directly into the side of Miller’s patrol car.
A reasonable fact-finder could also find that Miller was not deliberately or consciously indifferent to any high probability of harm. That is, a reasonable fact-finder could find that Miller exercised at least some care. Therefore, there is substantial evidence to support the trial judge’s finding that McKay failed to meet his burden of proving that Miller acted with reckless disregard.