                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2002-CA-00275-SCT

ESTATE OF JAMES STANLEY WILLIAMS, BY
AND THROUGH ITS ADMINISTRATRIX, ELOISE
WILLIAMS AND SHERRIE CHANTEL WALKER,
BY AND THROUGH HER MOTHER, NEXT
FRIEND AND GUARDIAN, MARY A. WALKER

v.

CITY OF JACKSON MISSISSIPPI

DATE OF JUDGMENT:                             12/20/2001
TRIAL JUDGE:                                  HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                    HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                      JOHN DOYLE MOORE
ATTORNEY FOR APPELLEE:                        J. ANTHONY WILLIAMS
NATURE OF THE CASE:                           CIVIL - WRONGFUL DEATH
DISPOSITION:                                  AFFIRMED - 05/08/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       DIAZ, JUSTICE, FOR THE COURT:


¶1.    The Estate of James Stanley Williams, through its administratrix, Eloise Williams, and

Sherrie Chantel Walker1, through her mother, Mary A. Walker, filed suit in the Circuit Court

of Hinds County, Mississippi against the City of Jackson seeking damages for the wrongful

death of James Stanley Williams. The plaintiffs alleged that Jackson City firefighters from

Station 20 acted with reckless disregard for the safety of Williams and others on September



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        Sherrie is the minor daughter of James Stanley Williams, and Mary A. Walker.
15, 1998, when one of the fire engines collided with Williams’s vehicle at an intersection

while en route to a fire.

¶2.    On December 2, 1999, the plaintiffs filed a motion for declaratory judgment which

was denied August 31, 2000. On June 1, 2001, the City of Jackson moved for summary

judgment on the basis that it is immune from liability under Miss. Code Ann. § 11-46-9(c).

On December 21, 2001, the circuit court granted summary judgment for the City. From this

final judgment, the plaintiffs filed a timely appeal alleging that the court erred in granting

summary judgment. They raise the following issues for consideration by this Court:

       I.     WHETHER THE ALLEGED CRIMINAL ACTIVITY OF JAMES
              WILLIAMS PRECLUDES RECOVERY BY HIS WRONGFUL
              DEATH BENEFICIARIES.

       II.    WHETHER THE CITY, ITS AGENTS OR EMPLOYEES,
              ACTED WITH RECKLESS DISREGARD FOR THE SAFETY
              AND WELL-BEING OF OTHERS.

                                            FACTS

¶3.    On September 15, 1998, fire trucks from City of Jackson Fire Station 20 were

dispatched around 9:00 p.m. to a fire at the corner of Martin Luther King Drive and Dorsey

Street. The route traveled to get to this fire from Station 20 is south down Medgar Evers

Boulevard, passing through the intersection of Medgar Evers Boulevard and Summit Drive,

turning right onto Martin Luther King, continuing several blocks, and then turning left onto

Dorsey Street. Two vehicles left Station 20 en route to the fire, both with their lights, sirens,

and horns on. Rescue 20 was in the lead followed by truck 20, the ladder truck, driven by

RDO Keith Irving (Irving).



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¶4.    Although trained to drive the fire truck, Irving was not the ususal driver. He was

driving that day because the usual driver was on vacation. The day before this accident

occurred, Irving had a tooth removed and had been taking antibiotics, Tylenol III with

codeine, ibuprofen and Tylenol P.M. to ease the pain. Lieutenant Frankie Simpson

(Simpson), Irving's superior, had questioned him about the effects of this medication and

stated that they could get someone else to drive the truck if the medicine was affecting him

in any way. Irving said the medicine did not make him drowsy and that he felt fine to drive

the truck. Simpson testified that he was seated next to Irving and did not observe any

drowsiness while Irving was driving the truck. Simpson further stated that, based upon his

eighteen years’ experience as a fire truck driver, he believed that Irving did all he could to

avoid the collision. The last dose of Tylenol III that Irving had was around 8:05 p.m.

¶5.    Upon approaching the intersection of Medgar Evers Boulevard and Summit Drive,

Irving noticed a vehicle, later determined to be that of James Stanley Williams (Williams),

approaching the intersection from the west, which was on Irving's right. The fire truck was

traveling at a speed around 50 m.p.h. in a 40 m.p.h. speed zone. Irving stated that the car did

not yield the right of way to the fire truck and that it was trying to beat the fire truck across

the intersection. Irving swerved the vehicle to the left to avoid the collision, but was unable

to do so. The fire truck struck the car with its front passenger side corner in the area of the

car’s driver side door. The force of the impact and the fact that Irving was veering left to

avoid the collision caused the two vehicles to come to a rest in the middle of Summit Drive,

just east of the intersection. The car driven by Williams caught fire, and the crew on truck

20 extinguished the fire. Williams died in the accident. Toxicology reports after the

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accident showed that Williams's blood alcohol content was .20%, two times the legal limit

in the state of Mississippi. This is not disputed by plaintiffs. Irving's blood test after the

accident showed 36 ng/ml of codeine, an opiate found in Tylenol III. The therapeutic range

for codeine is 30 to 120 ng/ml.

¶6.    Simpson and Irving both made internal affairs statements describing the events of

September 15, 1998, as outlined above. David Thorton was riding on the back of the truck

at the time of the collision, and although he could not see exactly what happened, he

supported the claims of Irving and Simpson by saying he knew something was wrong when

they turned, because he thought they were supposed to be going down Medgar Evers to

Martin Luther King on the right.

¶7.    Three eyewitnesses, Cassandra Bilbo, Charlotte Bilbo, and William Thomas, gave

written statements at the scene of the accident. Their statements described the accident the

same way. Additionally, their eyewitness accounts state that Williams went around two

vehicles that were stopped at the west side of the intersection in order to enter the

intersection.   A reconstruction of the accident was made by Sergeant Richard B. Davis

(Davis) of the Jackson Police Department the day after the accident. Davis used skid marks,

tire gouges in the pavement, points of impact of the vehicles and resting places of the

vehicles to determine how the event occurred. When Davis was done with his report, the

description of the accident matched Irving’s and the other witnesses’ description. In contrast,

the plaintiffs presented the testimony of another eyewitness, Stella Howard (Howard).

Howard stated that Williams had brought his car to a stop to wait until the fire truck passed

through the intersection. It is unclear from her statement exactly where Williams allegedly

                                              4
brought his car to a stop. Howard also stated that the fire truck could have avoided the wreck

if it had been traveling at a safer speed and if the driver had reacted with a simple evasive

move. Howard stated that the driver of the fire truck moved slowly and sluggishly.

                                       DISCUSSION

¶8.    This Court applies a de novo standard of review of a trial court's grant or denial of

summary judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss. 2001);

Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss. 2001); Heigle v. Heigle, 771

So.2d 341, 345 (Miss. 2000). Our appellate standard for reviewing the grant or denial of

summary judgment is the same standard as that of the trial court under Rule 56(c) of the

Mississippi Rules of Civil Procedure, summary judgment shall be granted if "the pleadings,

depositions, answers to interrogatories and admissions on file, together with affidavits, if

any, show that there is no genuine issue as to any material fact...." Hudson, 794 So.2d at

1002; Jenkins, 794 So.2d at 232; Heigle, 771 So.2d at 345. The burden of demonstrating

that no genuine issue of fact exists is on the moving party. Id. "The presence of fact issues

in the record does not per se entitle a party to avoid summary judgment. The court must be

convinced that the factual issue is a material one, one that matters in an outcome

determinative sense ... [T]he existence of a hundred contested issues of fact will not thwart

summary judgment where there is no genuine dispute regarding the material issues of fact."

Hudson, 794 So.2d at 1002 (quoting Simmons v. Thompson Mach. of Miss., Inc., 631

So.2d 798, 801 (Miss. 1994)).

       I.     WHETHER THE ALLEGED CRIMINAL ACTIVITY OF JAMES
              WILLIAMS PRECLUDES RECOVERY BY HIS WRONGFUL
              DEATH BENEFICIARIES.

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¶9.    The Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to -23 (Rev. 2002),

provides the exclusive remedy against a governmental entity and its employees for acts or

omissions which give rise to a suit. Lang v. Bay St. Louis Sch. Dist., 764 So.2d 1234, 1236

(Miss. 1999). Miss. Code Ann. § 11-46-9 (Supp. 1998) provides that a governmental entity

and its employees acting within the course and scope of their employment shall not be liable

for any claim based upon an act or omission enumerated therein. If the act or omissions fall

under the subsections of § 11-46-9, then the governmental entity is exempt from liability.

Lang, 764 So. 2d at 1237.

¶10.   The applicable exception to the City’s liability is found in Miss. Code Ann. § 11-46-

9(1)(c), which states that a governmental entity shall not be liable for any claim

              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 disregard of the safety and well-being of any
              person not engaged in criminal activity at the same time of the
              injury.

¶11.   Fire Truck 20 was answering a fire call and was therefore providing “fire protection”

within the meaning of § 11-46-9(1)(c). The City then has two avenues of immunity: (1) if

the decedent was engaged in criminal activity, then the City is immune, and (2) if the

decedent was not engaged in criminal activity, and if the City’s employees did not act with

reckless disregard, then the City is immune. Finding both avenues of immunity applicable,

we affirm.

¶12.   It is undisputed that Williams’s blood alcohol content was .20%, two times over the

limit allowed under the law of Mississippi, at the time of the accident. Driving under the


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influence is criminal activity in Mississippi. Miss. Code Ann. § 63-11-30 (1972), as

amended. "While we have held that the criminal activity supporting [§ 11-46-9(1)(c)] must

be more than fortuitous, we have never suggested that such activity must rise to the level of

a felony." Bridges v. Pearl River Valley Water Supply Dist.,793 So.2d 584, 588 (Miss.

2001) (citing City of Jackson v. Perry, 764 So.2d 373 (Miss. 2000)). A person can be

convicted of a misdemeanor in Mississippi for first and second DUIs and for a felony if

convicted a third time. Therefore, Williams was engaged in criminal activity within the

meaning of § 11-46-9(1)(c) at the time of this accident.

¶13.   Plaintiffs contend that Williams's vehicle was safely stopped at the intersection when

the fire truck ran into him. This claim is disputed by the testimony of numerous witnesses,

and it is not supported by the facts which reveal that the collision occurred in the middle of

the intersection.   To create a genuine issue of material fact, the evidence must be

significantly probative. Murphree v. Fed. Ins. Co., 707 So. 2d 523, 529 (Miss. 1997). We

conclude that the evidence presented by plaintiffs is not significantly probative.

¶14.   Even had plaintiffs’ contention been supported by the facts, it would not change the

fact that Williams was intoxicated. It is therefore immaterial because it could have had no

effect on the outcome of this action. Operating a vehicle involves both the moving and the

stopping of a vehicle and when these are done under the influence of alcohol, it is considered

criminal activity which, in this instance, operates to limit the duty owed by police and fire

personnel under § 11-46-9(1)(c).




                                              7
¶15.   In order for recovery from a governmental entity to be barred because of the victim's

criminal activity, the criminal activity has to have some causal nexus to the wrongdoing of

the tortfeasor. City of Jackson v. Perry, 764 So.2d at 379. This is because the statute was

“not designed to protect grossly negligent or intentional tortfeasors from liability where the

fact that the victim is engaged in a criminal activity is merely fortuitous and has no relation

to the transaction out of which liability would otherwise arise.” Id.

¶16.   Plaintiffs’ contention that Williams was safely stopped at the intersection is

contradicted by the testimony of several witnesses, the point of impact and rest, and the

results of the accident reconstruction. The reality is that Williams either stopped in the

middle of the intersection or tried to beat the fire truck through the intersection and failed.

Either of these possibilities were poor decisions likely induced by Williams’s intoxication.

A sober person would not stop in the middle of an intersection with a fire truck coming at

them. A sober person would also know that they should not try to beat a fire truck across an

intersection. All the other drivers at the intersection yielded to the fire truck.

¶17.   There is not enough credible evidence here to present any general issues of material

fact. Furthermore, there is a clear nexus between the criminal activity of Williams and the

injury suffered by him. Had he not been driving while intoxicated, Williams would not have

attempted to beat the fire truck through the intersection and would not have been killed.

Finding that there was a causal nexus between Williams’s criminal activity and the actions

of the City employees in this case, we conclude that the immunity afforded by § 11-46-

9(1)(c) applies.



                                               8
¶18.   This assignment is without merit.

       II.    WHETHER THE CITY, ITS AGENTS OR EMPLOYEES,
              ACTED WITH RECKLESS DISREGARD FOR THE SAFETY
              AND WELL-BEING OF OTHERS.


¶19.   Next, plaintiffs argue that, despite Williams’s negligence, they should still be allowed

to recover if the City acted in reckless disregard for the safety and well-being of other

motorists. A similar argument has recently been rejected by our Court of Appeals. See Tory

v. City of Edwards, 829 So. 2d 1246 (Miss. Ct. App. 2002).

¶20.   In Tory, the Court of Appeals rejected the appellant’s contention that the trial judge

was required to make a finding as to whether the officers' conduct was in reckless disregard

for the safety of others. The court reasoned that such a finding would have removed the

statutory requirement that an individual bringing suit against a law enforcement officer not

be involved in criminal activity at the time of injury. Tory, 829 So. 2d at 1249-50. We agree

with the Court of Appeals. The Legislature decided to limit the recovery rights of individuals

injured while committing criminal acts, and we decline to circumvent this reasonable

decision.

¶21.   Moreover, there is no credible evidence that the City and its employees acted with

reckless disregard for the safety of Williams or anyone else. Rather, the evidence supports

the conclusion that the City employees were circumspectly carrying out their duties as fire

department personnel, while Williams was driving under the influence of alcohol contrary

to the laws of this State. Though the record reveals that Irving was taking medication, there

is evidence that it was on the low side of the therapeutic range and that he was not impaired.

                                              9
Williams’s death is a tragedy, however, it was caused by his own negligence and disregard

for the safety of himself and others. We decline to hold the City of Jackson responsible.

                                       CONCLUSION

¶22.   Miss. Code Ann. § 11-46-9 (1)(c) exempts governmental entities from liability when

the injured party was engaged in criminal activity. Because Williams was operating a motor

vehicle while his blood alcohol content was undisputedly two times above the legal limit at

the time of the accident, he was engaged in criminal activity. Therefore, this Court agrees

that the City of Jackson is exempt from liability and affirms the trial court’s judgment.

¶23.   AFFIRMED.


     PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY, CARLSON AND
GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN
OPINION.


       McRAE, PRESIDING JUSTICE, DISSENTING:


¶24.   Since I disagree with the majority concerning the trial court's grant of summary

judgment, I dissent. A motor vehicle moving violation should not be considered a "criminal

activity." If it is, then why isn't Irving's conduct classified as "criminal activity" as he was

under the influence the prescription pain killers the day of the accident? Additionally,

Williams's apparent intoxication at the time of the accident should not prohibit his heirs from

presenting their case at trial. Irving was under the influence of prescriptive pain relievers and

was operating his vehicle in reckless disregard thereby fulfilling the immunity exception of

the Mississippi Tort Claims Act.


                                               10
¶25.   The majority finds that summary judgment was proper since Williams was legally

intoxicated at the time of the accident and since some evidence tended to show that the

accident may have been his fault. This is putting the "cart before the horse." The majority

relies on a section of the Mississippi Tort Claims Act which provides immunity for injury

and damages resulting from the victim's criminal activity. Miss. Code Ann. § 11-46-9(1)(c).

However, this Court has stated that "the criminal activity supporting this exemption must be

more than fortuitous." Bridges v. Pearl River Valley Water Supply District, 793 So.2d 584,

588 (Miss. 2001) (citations omitted). Further, "the intent of the statute is to protect law

enforcement officers and their governmental employers from lawsuits arising out of the

performance of their duties, when an alleged victim is involved in criminal activity." Id. As

explained by this Court, the logic behind the statute does not address a situation such as this

where Irving, the government employee, was not involved in the "performance or execution

of [his] duties or activities" in connection with Williams's alleged criminal activity. Miss.

Code Ann. § 11-46-9(1)(c). Irving was not pursuing Williams or arresting Williams. In fact,

Irving's accident with Williams had no nexus and was only happenstance. Further, there was

evidence that Williams had preempted the intersection and the city driver should have

yielded. Miss. Code Ann. § 63-3-801(1) (Rev. 1996) (driver approaching an intersection

shall yield the right of way to a vehicle which has entered the intersection from a different

highway).

¶26.   Additionally, the majority disregards Irving's own intoxication due to prescription pain

relievers. The Mississippi Tort Claims Act provides an exception to immunity when a

government employee is acting in "reckless disregard of the safety and well being of any

                                              11
person." Miss. Code Ann. § 11-46-9(1)(c). Irving was operating a fire truck while under the

influence of prescription narcotics. He was operating a full size, heavy duty, metal fire truck

while under the influence and haven taken Tylenol III, codeine, ibuprofen, and Tylenol P.M.

within hours before the wreck and another dose of Tylenol III less than an hour before the

wreck. His supervisor even knew of his condition and allowed him to drive the fire truck.

Additionally, Irving was exceeding the speed limit by at least 10 m.p.h. This Court has held

that "reckless disregard" is more than "gross negligence" but less than "specific intent." City

of Jackson v. Lipsey, 834 So.2d 687, 691 (Miss. 2003) (citations omitted). Having reviewed

the testimony and evidence presented, there was enough evidence to go to trial on the issue

of reckless disregard.

¶27.   The trial court erred in granting summary judgment to the City. I would reverse the

judgment below and remand this case for trial. For these reasons, I respectfully dissent.




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