                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-CA-01924-SCT

MILDRED ELAINE THOMPSON RAYNER,
INDIVIDUALLY AND MICHELLE LYNN
RAYNER BYNUM, AS NATURAL MOTHER AND
NEXT FRIEND OF BILLY JOE DAVID BYNUM, A
MINOR
v.

SHERIFF RONNIE PENNINGTON, FOR THE
COUNTY OF RANKIN, MISSISSIPPI, MICHAEL
B. McCARTY, AND JOHN DOES 1-6


DATE OF JUDGMENT:                         07/14/2008
TRIAL JUDGE:                              HON. WILLIAM E. CHAPMAN, III
COURT FROM WHICH APPEALED:                RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 GARY LEE WILLIAMS
                                          J. EDWARD RAINER
ATTORNEYS FOR APPELLEES:                  MICHAEL JEFFREY WOLF
                                          C. ALLEN McDANIEL, III
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED - 01/07/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE WALLER, C.J., RANDOLPH AND CHANDLER, JJ.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Mildred Elaine Thompson Rayner and Michelle Lynn Rayner Bynum, as natural

mother and next friend of Billy Joe David Bynum, a minor (collectively, “Rayner”) filed suit

against Rankin County Sheriff Ronnie Pennington, Deputy Michael B. McCarty, and John

Does 1-6 (Rankin County) pursuant to the Mississippi Tort Claims Act (MTCA) for injuries
stemming from a vehicular accident. See Miss. Code Ann. § 11-46-1 to 11-46-23 (Rev.

2002). The Circuit Court of Rankin County granted summary judgment to Rankin County;

Rayner appeals. This Court affirms the grant of summary judgment to Rankin County.

                                            FACTS

¶2.    Rayner filed the complaint on March 21, 2007. She alleged that, on the afternoon of

March 22, 2006, Deputy McCarty was in the course and scope of his employment with the

Rankin County Sheriff’s Department when he drove through a red light at the intersection

of Highway 468 and Highway 18 in Brandon, Mississippi, and collided with Rayner’s

oncoming vehicle. Rayner alleged that Deputy McCarty, traveling south on Highway 468,

approached the intersection at an unsafe high speed and failed to yield to oncoming cross-

traffic, which constituted gross negligence and reckless disregard for the rights and safety of

others using the intersection. Rayner demanded compensatory damages, punitive damages,

costs, attorneys’ fees, and prejudgment and postjudgment interest.

¶3.    Rankin County answered, asserting that it enjoyed immunity under the Mississippi

Tort Claims Act. Rankin County subsequently filed a motion for summary judgment,

asserting that there was no genuine issue of material fact concerning its entitlement to

qualified immunity under Mississippi Code Section 11-46-9(1)(c). That section provides:

       A governmental entity and its employees acting within the course and scope
       of their employment or duties shall not be liable for any claim:

       ...

              (c) 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-


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              being of any person not engaged in criminal activity at the time
              of the injury;

Miss. Code Ann. § 11-46-9(1) (Rev. 2002).

¶4.    In support of the motion, Rankin County attached the accident report and excerpts of

the deposition testimony of Deputy McCarty and of Rayner, and of eyewitnesses Janet Cook

and Marsha Williams. Deputy McCarty testified that he was headed home from the Sheriff’s

Department when he heard a call over the dispatch for a disturbance at Cedar Ridge Trailer

Park, located off Highway 468. The dispatcher did not communicate the nature of the

disturbance. Deputy McCarty told the dispatcher he would be en route with another officer.

He immediately turned on his blue lights and sirens, and headed south on Highway 468 at

about fifty to fifty-five miles per hour toward the intersection of Highway 468 and Highway

18. At the intersection, he slowed and crossed into the oncoming (northbound) lane of

Highway 468, coming to a complete stop at the red light. A vehicle in the eastbound center

turn lane of Highway 18 obstructed his view of the eastbound lane of Highway 18. Deputy

McCarty said he cautiously entered the intersection. He related that he “slowly creeped

forward and stopped, creeped forward and stopped, and creeped forward and stopped,”

keeping a lookout the entire time. Deputy McCarty testified that his blue lights and sirens

were on when he entered the intersection, and that he crept forward at five miles per hour.

Nonetheless, Rayner’s minivan, traveling in the eastbound lane of Highway 18, abruptly

collided with the side of his patrol car. Deputy McCarty said that he never saw the minivan,

because his view was obstructed by the vehicle in the center turn lane of Highway 18.

Deputy McCarty suffered only a minor cut in the crash.



                                             3
¶5.    Cook testified that she was traveling south on Highway 468 when she heard a siren

and observed a patrol car approaching behind her with its blue lights on. She stopped at the

Highway 18 intersection, and the patrol car passed her car, entered the oncoming

(northbound) lane, and stopped at the intersection. Cook observed the patrol car cautiously

enter the intersection, with blue lights flashing, and get hit by a minivan. Cook observed

Deputy McCarty looking left and right several times before the collision. Cook testified that

it appeared that the minivan had not slowed down upon approaching the intersection.

¶6.    Williams testified that she was a passenger in her mother-in-law’s car traveling

eastbound on Highway 18.1 They planned to turn south onto Highway 468, but they

observed a patrol car at the intersection with its sirens on and blue lights flashing. They

pulled into the right-turn lane and waited for the patrol car to proceed through the

intersection. Williams observed that the patrol car was stopped at the intersection, and then

it proceeded slowly through the intersection and stopped in the middle. At that point, the

patrol car was struck by a minivan traveling eastbound, from the same direction Williams had

been traveling when she had observed the patrol car and her mother-in-law had pulled over.

It appeared to Williams that the minivan was traveling at the speed limit when it struck the

patrol car.2

¶7.    In a response to the summary judgment motion, Rayner attached her complete

deposition; the deposition of Billy Joe Bynum, the father of Rayner’s grandson, Billy Joe


       1
          In her testimony, Williams confused the directional points of the intersection. For
clarity, the Court has corrected the narration of Williams’s testimony to conform to the
actual directional points.
       2
           There is no evidence that Rayner exceeded the posted speed limit.

                                              4
Bynum, Jr.; Deputy McCarty’s deposition; and a copy of certain law enforcement policies

and procedures. Bynum, Jr., aged three, was traveling in the passenger seat of Rayner’s

minivan during the accident. Rayner testified that as she approached the intersection, she

removed her foot from the gas pedal to slow down. She observed some vehicles in the

southbound lane of Highway 468, but it was clear ahead of her. She watched the green light

as she approached the intersection. Then she saw a white flash, and her minivan struck the

patrol car. She testified that she never heard any sirens or saw any blue lights. Rayner

testified that she suffered permanent injuries in the accident. Bynum testified that Bynum,

Jr., received a bump on the head and a seat-belt bruise, from which he fully recovered.

¶8.    On July 15, 2008, the trial court granted Rankin County’s motion for summary

judgment, finding that there were no genuine issues of material fact as to how the accident

occurred, and that the evidence showed Deputy McCarty had not acted with reckless

disregard. Thus, the trial court found that Rankin County was entitled to immunity under

Mississippi Code Section 11-46-9(1)(c).

¶9.    Rayner filed a motion for reconsideration and an amended motion for reconsideration.

The trial court denied the amended motion for reconsideration. Rayner has timely appealed,

arguing that summary judgment was improper.

                               STANDARD OF REVIEW

¶10.    “This Court reviews errors of law, which include the proper application of the

Mississippi Tort Claims Act, de novo.” Fairley v. George County, 800 So. 2d 1159, 1162

(Miss. 2001). We examine all the evidentiary matters before the trial court, including

admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Bullock v.

                                             5
Life Ins. Co. of Miss., 872 So. 2d 658, 660 (Miss. 2004). We view all the evidence in the

light most favorable to the nonmoving party. Id.

                                 LAW AND ANALYSIS

       I. WHETHER RANKIN COUNTY WAS ENTITLED TO SUMMARY
       JUDGMENT BECAUSE THERE WAS NO GENUINE ISSUE OF
       MATERIAL FACT AND IT WAS ENTITLED TO IMMUNITY UNDER
       THE MTCA.

¶11.   Rayner argues that genuine issues of material fact were present that Deputy McCarty

acted in reckless disregard of the safety and wellbeing of her and her passenger. Due to the

inherent danger and risk of liability faced by police officers and firefighters, public policy

requires that these actors incur no liability for mere negligence, but only for reckless acts.

Maldonado v. Kelly, 768 So. 2d 906, 909 (Miss. 2000). Accordingly, this Court has held that

“reckless disregard” under Section 11-46-9(1)(c) “embraces willful and wanton conduct

which requires knowingly or intentionally doing a thing or wrongful act.” Turner v. City of

Ruleville, 735 So. 2d 226, 230 (Miss. 1999). Wantonness is a failure to exercise any care.

Maldonado, 768 So. 2d at 910. When analyzing the conduct of police officers under the

MTCA, reckless disregard is a higher standard than gross negligence. Turner, 735 So. 2d

at 230. This Court has defined “reckless disregard” as:

       the voluntary doing by motorist of an improper or wrongful act, or with
       knowledge of existing conditions, the voluntary refraining from doing a proper
       or prudent act when such act or failure to act evinces an entire abandonment
       of any care, and heedless indifference to results which may follow and the
       reckless taking of chance of accident happening without intent that any occur
       ....

Id. at 229. “Reckless disregard usually is accompanied by a conscious indifference to

consequences, amounting almost to a willingness that harm should follow.” Miss. Dep’t of

                                              6
Pub. Safety v. Durn, 861 So. 2d 990, 995 (Miss. 2003) (quoting Maye v. Pearl River

County, 758 So. 2d 391, 394 (Miss. 1999)). Police officers are not liable for negligence,

which is a failure to exercise due care. Maldonado, 768 So. 2d at 910.

¶12.   Rayner argues there was no genuine issue of material fact that Deputy McCarty acted

with reckless disregard, because he entered the intersection from an improper lane, against

the red light, and with an obstructed view of the eastbound lane of Highway 18. Rayner

contends that Deputy McCarty should have known there was a strong probability that an

intersection protected by a red light would have a high degree of oncoming traffic. Rayner

also argues that Deputy McCarty’s decision to cross an intersection against the red light in

response to a mere disturbance call contravened Mississippi statutory law and the policies

and procedures of the Rankin County Sheriff’s Department.

¶13.   This Court has found on several occasions that a governmental entity waived its

immunity under the MTCA by engaging in acts evincing reckless disregard for the safety and

wellbeing of persons not engaged in criminal activity. In Turner, the Court found that the

plaintiff had stated a claim that an officer had acted with reckless disregard. Turner, 735 So.

2d at 230. The plaintiff had alleged that he was struck by a drunk driver after an officer with

the City of Ruleville Police Department pulled the drunk driver over for erratic driving, but

willfully and wantonly allowed him to continue driving despite his obvious incapacity. Id.

at 227. In City of Jackson v. Lipsey, 834 So. 2d 687, 693 (Miss. 2003), this Court affirmed

a finding of reckless disregard when an officer, responding to a burglary call, turned

suddenly into oncoming traffic without headlights, sirens, or blue lights. In City of Jackson

v. Perry, 764 So. 2d 373, 380 (Miss. 2000), the Court held that an officer, who was not

                                              7
responding to an emergency call, acted with reckless disregard by speeding without blue

lights or sirens activated.

¶14.   Rayner cites Maye for the proposition that Deputy McCarty acted in reckless

disregard by proceeding into the intersection despite an obstructed view. In Maye, a deputy

sheriff was backing out of a driveway at the county jail when he backed into another vehicle

that was pulling into the driveway. Maye, 758 So. 2d at 392. The deputy testified that,

although he had checked his mirrors, he could not see the road from the parking lot because

the jail was at a lower elevation than the road. Id. When the other motorist saw the deputy

backing toward her car, the deputy was forty feet away. Id. at 394. The motorist braked and

honked the horn, but the deputy continued backing and collided with her car. Id. at 392. The

deputy admitted he had not seen her car. Id. at 394. The motorist’s car sustained a level of

damage indicating the deputy had backed at a high rate of speed. Id. at 395. This Court held

that the deputy had acted with conscious indifference by backing out of the driveway at a

high rate of speed when he could not see what was behind him. Id. The Court concluded

that, in doing so, the deputy had acted with reckless disregard for the safety of others. Id.

¶15.   Rayner also cites Davis v. Latch, 873 So. 2d 1059, 1061 (Miss. Ct. App. 2004), in

which an officer approached an intersection in response to a disturbance and struck a car that

made a sudden turn into the intersection. As the officer approached with lights and sirens,

the officer observed the car stopped at the intersection. Id. Although the car did not display

a turn signal, it turned suddenly and collided with the officer’s vehicle. Id. The Court of

Appeals determined that the officer had not acted in reckless disregard because: (1) he had

approached the intersection with his blue lights, wigwags, and sirens activated, (2) nothing

                                              8
had obstructed the officer’s view, (3) the car had no turn signal activated, and (4) the officer

had stopped at two previous intersections because they were blind intersections, which

showed his appreciation for the risk involved in crossing an intersection in an emergency.

Id. at 1063. Rayner argues that, unlike in Davis, the fact that Deputy McCarty’s view was

obstructed proves that he acted with reckless disregard in crossing the intersection.

¶16.   In response to this contention, Rankin County cites Maldonado, in which this Court

held that a deputy sheriff did not act in reckless disregard in crossing an intersection with a

partially obstructed view. Maldonado, 768 So. 2d at 911. The deputy sheriff was driving

his patrol car to a service shop for maintenance. Id. at 908. He approached an intersection

protected by a two-way stop sign and known to be a dangerous intersection. Id. The deputy

sheriff came to a complete stop, looked both ways, proceeded, and was struck by an

oncoming vehicle. Id. The deputy sheriff testified that his view of the oncoming traffic was

partially blocked by a water tower. Id. The Court held that, unlike in Maye, Turner, and

Perry, the deputy sheriff had not deliberately disregarded the risk inherent in crossing the

intersection. Id. at 911. Rather, the deputy sheriff “was aware of the nature of the

intersection and took steps to avoid the collision” by stopping and looking both ways before

proceeding. Id. The court held that, although the deputy sheriff may have been negligent

in proceeding despite his partially obstructed view, that act was negligent at most. Id.

¶17.   Certain statutes apply when an emergency vehicle attempts to cross an intersection

past a red light. A statute provides that:

       The driver of any authorized emergency vehicle when responding to an
       emergency call upon approaching a red or stop signal or any stop sign shall
       slow down as necessary for safety but may proceed cautiously past such red

                                               9
       or stop sign or signal. At other times drivers of authorized emergency vehicles
       shall stop in obedience to a stop sign or signal.

Miss. Code Ann. § 63-3-315 (Rev. 2004). A complementary statute provides that: “[u]pon

the immediate approach of an authorized emergency vehicle, when the driver is giving

audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield

the right-of-way . . . and shall stop and remain in such position until the authorized

emergency vehicle has passed . . . .” Miss. Code Ann. § 63-3-809(1) (Rev. 2004).

¶18.   We turn to the evidence in this case. Rayner asserts that her own testimony created

a disputed issue of material fact regarding whether Deputy McCarty had his lights and sirens

on. In Lipsey, there was conflicting testimony on this point from the officer, who testified

that he had his vehicle’s lights and sirens on when entering a road, and from the injured

motorist, who testified that the officer’s vehicle had displayed no lights or sirens. Lipsey,

834 So. 2d at 690. Here, testimony on this question from Deputy McCarty and eyewitnesses

Cook and Williams stated that Deputy McCarty had his lights and sirens on. In fact,

Williams was traveling from the same direction as Rayner, and she heard the sirens and

yielded to Deputy McCarty’s patrol car. Rayner testified that she heard no sirens and did not

see any blue lights; however, Rayner testified that she had not detected the presence of the

patrol car at all before the collision. Indeed, Rayner testified that, as she entered the

intersection, she was looking up at the green light. Because she never detected the patrol car,

Rayner could not have known whether or not it had lights and sirens on. Thus, there was no

conflicting evidence as to whether or not the deputy had initiated lights and sirens as in

Lipsey. Viewing the evidence in the light most favorable to Rayner, there is no genuine issue



                                              10
of material fact as to whether Deputy McCarty’s lights and sirens were on, as every witness

who observed his patrol car perceived the lights and sirens.

¶19.   Further, it was undisputed that, although Deputy McCarty’s view was obstructed due

to the vehicle stopped in the center turn lane, he appreciated the danger from oncoming

traffic and proceeded cautiously by keeping a lookout and slowly creeping into the

intersection. Pursuant to Mississippi Code Section 63-3-809(1), all drivers given an audible

signal by an emergency vehicle shall yield the right-of-way. Miss. Code Ann. § 63-3-809(1)

(Rev. 2004). In light of this statute, which requires other drivers to yield to an emergency

vehicle, Deputy McCarty’s precautionary measures of looking both ways and cautiously

creeping into the intersection evinces that Deputy McCarty appreciated the risk involved in

crossing the intersection. He proceeded cautiously, on the alert for oncoming traffic, but he

also relied upon his lights and sirens to alert oncoming traffic of his control of the

intersection. Indeed, these safety measures effectively alerted Williams and her mother-in-

law, who reached the intersection just ahead of Rayner, noticed the lights and sirens, and

appropriately yielded right-of-way to the patrol car. Reckless disregard is the “entire

abandonment of any care,” while negligence is the failure to exercise due care. Maldonado,

768 So. 2d at 910; Turner, 735 So. 2d at 229. Deputy McCarty’s safety measures aptly

demonstrate that he exercised care in crossing the intersection. His cautiously proceeding

across the intersection despite an obstructed view was, at most, a failure to exercise due care.

Therefore, Deputy McCarty’s conduct did not rise to the level of reckless disregard.

¶20.   Rayner next argues that Deputy McCarty acted in reckless disregard because his

actions violated Mississippi Code Section 63-3-315 and the policies and procedures of the

                                              11
Rankin County Sheriff’s Department. Mississippi Code Section 63-3-315 permits the driver

of an authorized emergency vehicle to cross an intersection against a red light when

responding to an emergency call. Miss. Code Ann. § 63-3-315 (Rev. 2004). Rayner

contends that, although Deputy McCarty was driving an authorized emergency vehicle, he

lacked authorization to cross the intersection under Mississippi Code Section 63-3-315

because he was responding to a “disturbance,” not an “emergency call.” She also cites a

portion of the policies and procedures of the Rankin County Sheriff’s Department, which

provides:

      Patrol Activities:

      Response to some calls may require several deputies to effectively and safely
      control the situation. These situations may include but are not limited to:

      1. An assault on an officer;

      2. On-scene arrest for a violent offender;

      3. A potential or actual resistance to arrest;

      4. Use of force incident;

      5. A violent or potential violent crime in progress;

      6. A fleeing suspect; or

      7. Domestic Abuse Incidents.

      8. Motor vehicle accidents.

      The first responder must exercise discretion in determining the best course of
      action. These options range from immediate intervention to identification and
      reporting. The safety of deputies and innocent life will always be a prime
      factor when considering options.




                                             12
Rankin County Law Enforcement Policies and Procedures, § 3.1 Patrol Functions & Tactics.

Rayner argues that Deputy McCarty acted in violation of these policies, because he was not

a first responder, and he was not responding to one of the eight listed situations. Rayner

argues that Deputy McCarty’s violation of Mississippi Code Section 63-3-315 and

departmental policies was inherently reckless.

¶21.   Rankin County contends these arguments are procedurally barred because Rayner

failed to raise them before the trial court. However, in her response to the motion for

summary judgment, Rayner clearly raised these arguments and attached supporting

documentation. Therefore, these arguments are not procedurally barred.

¶22.   Rayner argues that if an emergency vehicle drives past a red light in response to a

report of a “disturbance,” instead of a report specifying an “emergency call,” Mississippi

Code Section 63-3-315 is violated. Rayner argues that not every situation deemed a

“disturbance” would permit emergency driving measures under Mississippi Code Section 63-

3-315, because a “disturbance” could constitute something as innocuous as a dog barking.

There is no caselaw construing the term “emergency call” as used in Section 63-3-315. Nor

is there any evidence disclosing what the disturbance might have been in this case. The term

“disturbance” certainly could include an innocuous situation such as a dog barking. But on

the other hand, a “disturbance” could just as easily signify domestic violence or another

dangerous situation requiring a swift response. Rayner bears the burden to prove that Deputy

McCarty acted in reckless disregard. Rayner has not submitted any proof that the situation

to which Deputy McCarty was responding was of such an insignificant nature that he acted

in reckless disregard by crossing the intersection against the red light.


                                              13
¶23.   Rayner cites no authority for her contention that Deputy McCarty’s violation of law

enforcement policies was equivalent to acting in reckless disregard. It appears that Rayner

is arguing that the existence of a police policy that prohibits the course of action taken by the

officer constitutes proof that the officer acted with reckless disregard. In City of Ellisville

v. Richardson, 913 So. 2d 973, 977-78 (Miss. 2003), this Court articulated a ten-part test for

reckless disregard that includes, as a factor, the existence of a police policy that prohibits

pursuit under the circumstances. However, the ten-part test is used for evaluating whether

an officer acted in reckless disregard in connection with a police pursuit. City of Jackson

v. Spann, 4 So. 3d 1029, 1033 n.7 (Miss. 2009). This case does not involve a police pursuit.

Moreover, the evidence lends no support to Rayner’s contention that Deputy McCarty

violated the Rankin County Sheriff’s Department’s law enforcement policies. Deputy

McCarty testified that he and another officer were responding to the disturbance call. Rankin

County’s policy states that responding to some calls may require several deputies, and that

the situations requiring a response from multiple deputies are not limited to the eight listed

situations. The Court finds this argument to be without merit.

                                       CONCLUSION

¶24.   The Court finds no genuine issue of material fact and affirms the judgment of the

Rankin County Circuit Court that Rankin County was entitled to judgment as a matter of law.

The evidence of how the collision occurred was not in genuine dispute. Deputy McCarty

stopped at the intersection and, with his blue lights and sirens activated, slowly proceeded

across in a stop-and-start fashion. His safety measures were sufficient to prompt other

drivers near the intersection to yield the right-of-way, including the driver traveling in the

                                               14
lane ahead of Rayner. Viewing the evidence in the light most favorable to Rayner, nothing

about Deputy McCarty’s conduct demonstrated a conscious indifference to consequences

equating to almost a willingness that harm should result. Deputy McCarty’s safety measures

showed that he exercised care in crossing the intersection, and his conduct did not rise to the

level of reckless disregard for the safety and well-being of persons not engaged in criminal

activity under Mississippi Code Section 11-46-9(1)(c). We affirm the judgment of the

Circuit Court of Rankin County granting summary judgment to Rankin County.

¶25.   AFFIRMED.

    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR,
KITCHENS AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT
ONLY.




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