Officer traveling to get keys made immune from MTCA when accident ensued


In May 2002, Talvish Reynolds and her daughters were traveling east on Main Street in Woodville. Wilkinson County Deputy Sheriff Nathaniel Nelson was traveling in a county vehicle toward Main Street at this time, en route to a hardware store to have spare keys made for county gas pumps. Once he arrived at the intersection with Main Street, Deputy Nelson paused at the stop sign. The view to his left was blocked by a blue truck that was legally parked next to the curb on Main Street. Beginning a turn to the right, the deputy edged forward into the intersection to get a better view around the blue truck. As the deputy advanced, his car was struck by the vehicle driven by Reynolds. Reynolds and her daughters sustained injuries in the collision.

The trial court granted the County’s motion for summary judgment after finding that the County was entitled to immunity. The parties agree that this suit is controlled by the Mississippi Tort Claims Act. Miss. Code Ann. § 11-46-1 through 11-46-23 (Rev. 2002). Those statutes provide immunity for the State and its political subdivisions such as Wilkinson County in certain defined circumstances. On appeal, Reynolds argues that the circuit court misapplied the statutes regarding immunity when police functions are involved and when reckless disregard for the safety of others has occurred. MCOA affirmed.


A. Scope of MTCA protection for law enforcement

Reynolds alleges that law enforcement personnel must be engaged in protective activities to be immune from tort liability. Since Deputy Nelson was driving to have keys made when this accident occurred, Reynolds alleges that there is no immunity.

The relevant statute provides that a governmental entity or employee is immune from suit as long as that person is “engaged in the performance or execution of duties or activities relating to police or fire protection. . . .” Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2002). This does not require that a law enforcement officer be then engaged in direct action to apprehend a criminal. Maintenance of a police vehicle has been held to constitute an activity “related to police . . . protection.” See MSC McGrath. The McGrath court reasoned under precedents that predated the Tort Claims Act that the relevant distinction revolved around whether the municipality acted in a governmental or proprietary capacity. The court held that under the Tort Claims Act, when an injury is caused by a police vehicle, operated and maintained by the police department, liability will automatically be precluded because the maintenance of a police department is a governmental function, for which municipalities are exempt.

The same reasoning applies to county-owned and operated law enforcement vehicles. Using a county sheriff’s vehicle to drive to a location in order to procure keys for county gas pumps is as much of a governmental function as the vehicle maintenance discussed in McGrath.

B. Reckless Disregard

Reynolds asserts that Deputy Nelson acted with reckless disregard when: (1) he moved forward into the intersection when his view was obstructed; (2) he failed to have the legally parked truck removed with tow trucks to which he had access; (3) he failed to use sirens, lights, or a horn to alert other drivers to the fact that he was entering the intersection; and (4) he failed to use an alternate, less busy route where his view would not have been obstructed. Reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. See MSC Maye.

Specific uncontested facts should be highlighted here. The truck that obstructed Deputy Nelson’s view to his left was legally parked. The deputy stopped at the intersection, saw nothing to his left, and drove slowly as he turned right onto the crossing street. The collision occurred almost immediately after the deputy began his turn.

In order to withstand a motion for summary judgment, the evidence presented by Reynolds must be able to support a finding that the officer was consciously indifferent to the consequences of his actions, amounting almost to a willingness that harm should follow. The only evidence was that the deputy encountered an intersection in which his view was obstructed, entered it slowly, but allowed his vehicle to move into the lane of crossing traffic without his being able yet to see that traffic. The actions or omissions alleged by Reynolds could not properly be found to constitute reckless disregard. Every time a law enforcement officer encounters circumstances that could usefully be corrected, there is not wanton disregard for the safety of others if the officer does not immediately take steps to ameliorate the risk.

Calling a dispatcher about the hazard, or making note of it in some other way, or deciding even that the hazard is so temporary that there is nothing to be done, are all within the realm of possible actions. Doing nothing may at times be negligence, but failure to stop, park, and call for a tow truck or start directing traffic himself does not rise almost to a willingness that harm should follow.

Deputy Nelson’s decision to move forward into the lane of the crossing traffic was at worse a negligent failure to anticipate – i.e., to be conscious of the possibility and to drive in such a way as to protect against that eventuality – that there might be a vehicle in the blind spot beyond the parked truck. It does not constitute reckless disregard.