Traffic accident was not reckless disregard under MTCA


At the time of the accident, Officer Victor Tacorchick had been employed with the Biloxi Police Department for six years. He had never been in an accident on or off duty prior to this incident. On December 5, 2021, Tacorchick was assigned to booking on the night shift, which started at 5:45 p.m. According to the dispatch log, at 5:52 p.m., Tacorchick left the station in a marked SUV patrol vehicle to respond to an assistance-needed call from Officer Steven Kinsey, who was investigating a suspicious person at the Elk’s Lodge on Highway 90. Tacorchick arrived within a minute and three minutes later, he radioed in that the call had been “cleared,” i.e. handled, and he was returning to the station.

To return to the station, Tacorchick drove his vehicle east on Highway 90, planning to turn left onto Porter Avenue. He had no emergency lights activated and was merely driving back to the station. As he approached the intersection, he moved into the left-turn lane. The light was green for traffic traveling in both directions, and to safely make his turn, Tacorchick was required to yield to oncoming westbound traffic.

Katherine Lemay’s car, a 2013 Chevy Impala, was one of those oncoming vehicles traveling west. Like Tacorchick, she too had never been in an accident. As she neared the intersection, she was in the right lane of traffic. Tacorchick turned in front of her, and the vehicles collided. Lemay said when she first saw Tacorchick, it was too late for her to stop. Tacorchick admitted that he saw Lemay’s vehicle before the accident and that nothing prevented him from waiting for her to pass. He said there was no emergency or need for him to get back to the station because others could handle his duties until he returned. Tacorchick explained that he believed he had enough time to complete his turn before Lemay entered the intersection. He admitted that he failed to yield her the right-of-way and that he “may have” misjudged her speed.  According to Tacorchick, he was disciplined by the department, which found him to be at fault for the accident.

Officer Erick Hicks concluded that Lemay was driving properly, that she was not distracted, and that she did not exceed the speed limit . Hicks noted that Lemay did not contribute to the accident and that she tried to avoid the accident by braking and steering to the right. (He later filed an amended Affidavit in which he viewed video footage and used a formula to determine that Lemay was traveling at 60.49 MPH. This Affidavit was dismissed before a hearing at which time the officer would have been testifying as an expert). As a result of the collision, Lemay’s vehicle was totaled, and Lemay’s right knee and neck were bruised. One of Lemay’s daughters suffered a lacerated liver and broken ribs. She was hospitalized at the Children’s Hospital in New Orleans for ten days and was on bed rest for a considerable time after her discharge. Another of Lemay’s children suffered bruising on his face and a bloody nose. The accident left two of the three minors with a fear of riding in a car near intersections, at night, and in general.

Lemay filed a claim with the City under the MTCA. The Judge granted Summary Judgement to the City. On appeal she argued that 1) MTCA shouldn’t apply just because officer is on duty, 2) Tacorchick was in reckless disregard, and 3) Lemay’s speeding should not have been considered. MCOA affirmed.

A. Scope of police protection under MTCA

Merely being in uniform and driving a police car, Lemay claims, was not the type of activity that the Legislature intended to be protected by MTCA immunity. The State, however, cites several cases in which appellate courts have held that the term “police protection activity” is to be broadly construed, encompassing more than police pursuits or the apprehension of criminals.

In MSC McGrath, the court acknowledged that the language in section 11-46-9(1)(c) does not precisely define what duties are related to police protection. In McGrath, the officer was driving his patrol car while on duty when the brakes failed, causing him to collide with the rear end of McGrath’s vehicle. MSC agreed with the trial court’s holding that maintenance of a police vehicle is an action of police protection. Because 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.

Since McGrath, the appellate courts have considered other law enforcement activities and held them to be related to police protection. See MSC Maldonado (officer driving patrol car to the service shop for regular maintenance was afforded immunity under the MTCA). Even driving a county sheriff’s vehicle to retrieve keys to the county’s gas pumps has been found to be related to police protection. See MCOA Reynolds.

In this case, Lemay agrees that Tacorchick’s dispatch to the Elk’s Club was legitimate police activity, but his return to the station, she argues, was not. However, she presents no authority to support her contention. Moreover, Tacorchick was returning from a service call, not merely coming to work from home. See MCOA Maxwell (immunity afforded to a deputy who was in an accident on his way back to the Sheriff’s office from handling a service call). Moreover, Tacorchick’s return to the station was necessary for him to continue the duties he was assigned. Under the statutory construction given to us by the MSC in McGrath, and clear precedent thereafter, we find no error in the circuit court’s finding that Tacorchick was engaged in police protection activity at the time the accident occurred.

B. Reckless Disregard

Reckless disregard has been discussed by our courts in numerous cases with a variety of different facts.

In MSC Turner, a law enforcement officer allowed a visibly intoxicated individual to continue to drive and eventually collide with plaintiff’s vehicle. MSC stated that specific intent to cause harm was not required and found that the officer did act in reckless disregard.

In MSC Phillips, the officer was responding to an accident call and activated his lights and siren to warn traffic that he was coming. He proceeded through an intersection, and while other motorists pulled aside, Phillips did not and collided with the officer’s vehicle. MSC noted that reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. The Court held that in this case, the officer’s actions cannot be characterized as reckless and indifferent to the safety of others. Although Officer Brown may have been negligent, his actions do not evince an entire abandonment of any care.

Recently, in MCOA Maxwell, we concluded that 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 involved. In that case, as a Panola County sheriff’s deputy was crossing a four-lane highway with a grassy median, he stopped before crossing the first two lanes but allegedly failed to stop at the intersection with the second set of lanes. He collided with William and Lynda Irwin’s vehicle, resulting in both their deaths. The deputy insisted that he stopped, made sure the traffic was “clear,” and that he “did not see anything coming.” The estates of the deceased presented expert testimony that the deputy did not stop. However, the trial court found that the deputy did not act recklessly, and we agreed

Law enforcement’s traffic-based statutory violations can provide strong support that an officer was reckless, but they do not constitute “reckless disregard per se.” For example, in Joseph v. City of Moss Point, 856 So. 2d 548 (Miss. Ct. App. 2003), we held that an officer’s failure to pay attention to traffic at a stop light, prematurely moving forward, and hitting another car from behind was an act of simple negligence and nothing more, giving him immunity under the MTCA.

In MSC Maye, a deputy sheriff transporting two prisoners had backed up an incline to the entrance of a parking lot to then exit onto the street. At the same time, a vehicle in which Maye was a passenger, was pulling into the parking lot. It honked, but the deputy sheriff still proceeded to hit Maye’s vehicle. MSC pointed out the deputy’s actions of backing out, up an incline, without knowing or being able to see what was behind him, rose above simple negligence to the level of reckless disregard.

However, in MSC Tornes, a Clinton police officer was responding to a call of an intoxicated person lying outside of the Days Inn. The officer drove into the parking lot next to the Days Inn, and, because his view was blocked, he entered the road again. At this point, his bumper struck the rear bumper of Tornes’s vehicle. MSC found that the facts presented did not support a level of conscious indifference to the consequences, and because his actions did not rise above simple negligence, police-protection immunity applied.

Similarly in MCOA Vo, we held that a trial court did not err in granting the County’s motion for summary judgment because a deputy’s backing out of a parking space without looking both ways did not constitute reckless disregard.

In this case, we agree with the trial court that Tacorchick was merely negligent and did not act with reckless disregard. According to Tacorchick, he slowed and stopped at the intersection. He said he saw Lemay but misjudged her speed when he prematurely turned. Although he clearly intended to turn, there is no evidence that he intended to hit Lemay or cause her injury. It cannot be said that his turning was so unreasonable that it reflected a deliberate disregard for the consequences of his actions. Tacorchick admitted his negligence, but his actions were not grossly negligent exhibiting a wanton disregard for Lemay and other traffic. Immunity attaches for simple negligence which the facts of this case present, and the circuit court did not err by granting the City summary judgment.

C) Was Lemay’s alleged speeding a factor

The circuit court also found that Lemay could not recover because Lemay was speeding, and thus engaged in criminal activity at the time of the accident. We disagree with the circuit court because the official accident report reflects that Lemay was not speeding, and she testified that at the time of the accident she was going the speed limit. The City presented no proof to rebut this. However, we need not discuss this issue in depth because it does not change our holding that the circuit court did not err in its finding the City immune under the police protection exemption of the MTCA.