Around November 12, 2010, at approximately 10:30 p.m., Wavie Graham and Annie Robinson left a church service at Word of Truth Church located on Northside Drive near Flag Chapel Road. Graham and Robinson were headed directly across the street to Graham’s house after the service. Graham testified she looked both ways before crossing the four-lane highway to enter into her driveway, and that a car passed right before she drove into the street. Testimony determined that Graham and Robinson were headed somewhat eastbound on Northside Drive prior to impact.
Officer Undrae Martin proceeded down Northside Drive, toward Clinton, responding to a priority two emergency call (he was answering a disturbance of the peace call, which is classified as a priority two call. According to Martin’s testimony, a level-two priority call is when property is being damaged or human life is being threatened) without using his emergency lights or siren. Officer Martin testified that use of sirens and police lights when answering a priority two call is discretionary. As Graham and Robinson crossed the street, Officer Martin struck the side of Graham’s truck with his patrol car, a Crown Victoria.
Antonio Wallace, a witness at trial, testified that right before the accident, he heard what sounded like someone racing cars. At the time, Wallace was the owner of an automotive shop located almost directly in front of Graham’s church. Wallace also testified that after the crash, Officer Martin exited his vehicle and sat on its hood, while he and another man attended to Graham and Robinson. According to Wallace, Graham was pinned in the driver’s side of the vehicle, and Robinson had been ejected from it and was crying.
The trial court determined that Officer Martin acted in reckless disregard for the safety of others. Therefore, Officer Martin was not covered under the immunity afforded under the MTCA. MCOA affirmed.
The Mississippi Supreme Court has established ten factors to analyze cases where police officers are in pursuit of suspects, which are 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. 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.
We find that the trial court incorrectly applied the ten factors to the facts in this case (since this was not a pursuit). However, we agree with the trial court’s finding of substantial evidence supporting that Officer Martin acted with reckless disregard for the safety of others.
The MTCA shields the government from liability based on 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. See Lewis.
Reckless disregard denotes more than mere negligence, but less than an intentional act. Further, reckless disregard is found 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.
Cheryl Grayson and Brenda Matthews stood in front of the church during the time of the collision. Grayson and Matthews testified at trial that Officer Martin drove down Northside Drive at a very high speed. Grayson testified that Officer Martin drove so fast that she stopped talking mid-conversation, because of the loud noise from the speeding. Matthews testified Officer Martin was speeding like a “bat of out hell.”
Mildred Champion, another witness at trial, testified that Officer Martin sped past her as she was headed to work the night of the collision. She testified she thought Officer Martin lost control of the patrol car given his fast speed. Further, Champion stated that if one approached the hill on Northside drive at a normal speed, that person could brake to avoid making contact with other cars that may be in the street.
Tim Corbitt, the City’s accident reconstructionist, testified that based on his calculations, Officer Martin’s patrol car was traveling between fifty-seven and sixty-eight miles per hour before the crash. The speed limit on the road during the time of the accident was forty miles per hour. Corbitt also noted that if Officer Martin was traveling between fifty-seven and sixty-eight miles per hour at impact, he had to be going faster prior to braking. Corbit further testified that following the crash, the speedometer was stuck on Officer Martin’s car at seventy-two miles per hour.
Although the use of the police lights and sirens is discretionary for an officer responding to a priority two call, Officer Martin testified that the purpose of the lights and siren is to allow citizens to get out of the way. However, Officer Martin neglected to use either one while speeding down the street at approximately 10:30 p.m. Officer Martin also made the decision not to use the lights and sirens while traveling on a street with a hill that prevented him from seeing what was on the other side. The supreme court has held wantonness is a failure or refusal to exercise any care, while negligence is a failure to exercise due care. See Maye.
In Maye, an officer backed out of the parking space and up an incline, and he did not know what was behind him. As a result, the officer backed into a private citizen. The supreme court opined that although the officer did not intend to hit the car, his actions rose to the level of reckless disregard, because the officer showed a conscious disregard for the safety of others when he backed up the incline entrance to the parking lot knowing he could not be sure the area was clear.
The record reflects that while the trial court relied on the analysis from the “officer in pursuit” cases, the trial court also considered the “totality of the circumstances” based on the set of facts and evidence presented. The record also reflects that while Officer Martin did not intend to hit Graham and Robinson, he showed a conscious disregard for the safety of others when he sped down a darkly lit street without using his emergency lights and the siren to warn other cars of his presence. Therefore, the trial court did not err in finding that there was substantial, credible, and reasonable evidence to support its finding that Officer Martin acted with reckless disregard for the safety of the public and was removed from immunity under the MTCA.