       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                             NO. 2014-CA-00927-COA

BRADLEY A. MCELROY, SR.; HUNTER BLAKE                               APPELLANTS
MCELROY, A MINOR, BY AND THROUGH HIS
FATHER AND NEXT FRIEND, BRADLEY A.
MCELROY, SR.; RYALS SHIRAH MCELROY, A
MINOR, BY AND THROUGH HIS FATHER AND
NEXT FRIEND, BRADLEY A. MCELROY, SR.;
AND ALL BENEFICIARIES OF THE ESTATE
OF BRADLEY MCELROY, DENEACE REEL,
ZACHARY DRAKE REEL, AND JASON DANE
REEL

v.

CITY OF BRANDON, MISSISSIPPI, AND                                     APPELLEES
JUSTIN C. MACLAIN

DATE OF JUDGMENT:                      06/10/2014
TRIAL JUDGE:                           HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:             RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:              DON H. EVANS
                                       ROBIN L. ROBERTS
                                       QUENTIN A. DANIELS
ATTORNEYS FOR APPELLEES:               ROBERT S. ADDISON
                                       MARK C. BAKER SR.
                                       STEVEN JAMES GRIFFIN
NATURE OF THE CASE:                    CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION:               GRANTED APPELLEES’ MOTION FOR
                                       SUMMARY JUDGMENT
DISPOSITION:                           AFFIRMED - 12/15/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

      CARLTON, J., FOR THE COURT:

¶1.   In November 2008, Officer Justin C. Maclain of the Brandon Police Department was
responding to an emergency call when his patrol car struck a vehicle driven by Bradley A.

McElroy Jr. McElroy died from his injuries, and his heirs at law and wrongful-death

beneficiaries filed a lawsuit against the City of Brandon, Mississippi (the City), and Officer

Maclain.1 The City and Officer Maclain subsequently filed a summary-judgment motion,

which the circuit court granted.

¶2.    On appeal to this Court, McElroy’s beneficiaries argue that the circuit court

erroneously granted summary judgment for the following reasons: (1) the record contains

facts that show Officer Maclain acted with reckless disregard; and (2) immunity fails to apply

as a matter of law because the determination of whether a causal nexus existed between

McElroy’s alleged criminal activity and Officer Maclain’s conduct is a question of fact.

Upon review, we find this matter is controlled by the Mississippi Supreme Court’s holding

in Estate of Williams ex rel. Williams v. City of Jackson, 844 So. 2d 1161 (Miss. 2003).

Finding no error in the circuit court’s grant of summary judgment, we affirm.

                                          FACTS

¶3.    Just after midnight on November 9, 2008, Officer Maclain was driving west on

Highway 80 in Brandon when his patrol car struck McElroy’s vehicle. At the time of the

accident, Officer Maclain was responding to an emergency call about a burglary in progress

at the Highpointe Apartments in Brandon. Officer Maclain testified that, pursuant to his


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        The lawsuit also originally named the Brandon Police Department as a defendant.
However, by the time the matter reached this Court on appeal, the lawsuit named only the
City and Officer Maclain as defendants/appellees.

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department’s policies and procedures, he turned his siren off as he neared the apartment

complex so he would not alert possible wrongdoers of his proximity.2 Officer Maclain

further testified, however, that his patrol car’s headlights and emergency lights, including the

blue lights, wig-wag lights, and strobe lights, remained engaged and flashing.

¶4.    The accident-reconstruction report completed after the collision included a summary

of three witness statements. According to the report, all three witnesses corroborated Officer

Maclain’s testimony that his emergency lights were engaged. The first witness, Patrick

Jackson, did not see the actual collision. However, Jackson stated that, when he heard the

collision, he looked up and saw that the blue lights of Officer Maclain’s patrol car were

engaged. The second witness, April Bailey, stated that she was driving west on Highway 80

when the collision occurred. Bailey told law enforcement that she saw the blue lights from

Officer Maclain’s patrol car in her mirror and observed McElroy’s car turn in front of Officer

Maclain’s patrol car. The third witness, Derrick Taylor, also failed to see the actual collision.

However, Taylor stated that he heard the crash, and when he looked up, he noted that the

patrol car had its blue lights engaged.

¶5.    In a subsequent affidavit, Taylor contradicted the statement attributed to him in the

accident-reconstruction report. In his affidavit, Taylor again stated that he heard a loud

impact and then immediately looked and saw that a collision had occurred. However, Taylor


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         The Brandon Police Department’s manual states that “[e]mergency signal devices
may be deactivated at a distance from the scene (to be determined by the vehicle operator)
[so] as not to alert subjects of law enforcement[’s] proximity.”

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further stated that the lights on Officer Maclain’s patrol car did not turn on until the car came

to a complete stop.

¶6.    The record also contains a statement signed by Jose Benevides, who did not witness

the accident but stated that he saw Officer Maclain’s patrol car drive by right before the

accident. According to Benevides, the patrol car’s emergency lights were not engaged when

the car passed him. As the record reflects, at the time of the accident, Benevides dated

Crystal Hines, the passenger in McElroy’s car, and Benevides was waiting for McElroy and

Hines to arrive so they could all go to a nightclub.

¶7.    During his deposition, Officer Maclain testified that traffic was light as he approached

the intersection where the collision occurred. As his patrol car neared the intersection of

Highway 80 and the Interstate 20 exit ramp, Officer Maclain observed McElroy’s vehicle

accelerate and then run the stop sign at the intersection. D’Kota Miller, the son of fellow

police officer Allen Parfait, was sitting in the passenger seat of Officer Maclain’s patrol car

when the accident occurred.3 Miller also testified that McElroy’s vehicle ran the stop sign

at the intersection. Although Officer Maclain testified that he swerved and tried to avoid a


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         According to deposition testimony, Miller called his father the night of the accident
and asked Officer Parfait to pick him up and take him home. Because he could not leave
work at that time, Officer Parfait asked Officer Maclain if he could pick up Miller. At the
time of the accident, both officers lived in the Highpointe Apartments where the reported
burglary occurred. Because the apartment door was locked and Miller was unable to find
his key, Officer Maclain let Miller ride along in his patrol car until Officer Parfait could
meet them. Although Officer Maclain failed to obtain authorization before allowing Miller
to remain in his patrol car, Officer Maclain testified that he felt this course of action was
better than leaving Miller to stand alone in the cold outside the locked apartment.

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collision, his patrol car struck the driver’s side door of McElroy’s vehicle.

¶8.    The forensic-toxicology report revealed the presence of marijuana in McElroy’s

system at the time of the collision. The report further revealed that nineteen-year-old

McElroy possessed a blood-alcohol content (BAC) of .073 percent, which was above the

legal limit of .02 percent for minors. See Miss. Code Ann. § 63-11-30(3) (Rev. 2004).

According to the affidavit of Dr. Robert Cox, a board-certified toxicologist, the level of

active marijuana in McElroy’s system likely indicated that McElroy had used marijuana

within the last three hours. Dr. Cox also opined that, based on McElroy’s alcohol level,

McElroy was impaired at the time of the accident.

¶9.    The record contains contradictory evidence as to whether the posted speed limit in the

area of the collision was actually thirty-five miles per hour or forty-five miles per hour.

Regardless of the posted speed limit, the accident-reconstruction report determined that

Officer Maclain, who was responding to a burglary-in-progress call, was driving well over

the posted speed limit at seventy-two miles per hour when his car struck McElroy’s vehicle.

Neither McElroy nor Hines, his passenger, wore a seatbelt at the time of the accident. As a

result of the collision, Hines sustained multiple facial fractures, and McElroy sustained blunt-

force injuries that resulted in his death.

¶10.   In her deposition testimony, Hines stated that she and McElroy attended the same

party prior to the accident. After the party, Hines rode with McElroy to meet Hines’s

boyfriend, Benevides, and McElroy’s roommate in Brandon. According to Hines, she saw


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McElroy holding a beer at the party, but she did not see him consume any other alcohol or

any drugs. Although Hines possessed vodka in her purse at the time of the accident, she

testified that she planned to drink the alcohol once she arrived at the nightclub and that she

consumed no alcohol or drugs prior to the collision.

¶11.   According to Hines’s testimony, she never saw Officer Maclain’s patrol car prior to

the accident. Hines testified that the last thing she remembered was McElroy’s car coming

to a complete stop, and she stated that she did not recall any further events until about two

days later when she realized she was in the hospital. As a result of the accident, Hines

suffered a broken jaw in three places. Hines testified that, due to her broken jaw, the only

way she could communicate after the accident was by pointing and nodding her head. She

therefore testified that she failed to see how she could have spoken to a law-enforcement

officer and provided a statement the night she was admitted to the hospital.

¶12.   A report filed by Deputy Glenn Dixon of the Rankin County Sheriff’s Department

directly contradicted Hines’s deposition testimony. Deputy Dixon testified that he was on

duty when he received a dispatch call informing him of the accident. By the time Deputy

Dixon arrived at the collision site, Hines had already been taken to the hospital. Deputy

Dixon testified that he took statements from Officer Maclain and two witnesses at the scene,

and then he interviewed Hines at the hospital.

¶13.   According to Deputy Dixon’s deposition testimony, Hines was able to provide a

statement rather than merely nod her head in response to questions. In fact, Deputy Dixon


                                              6
testified that, during their interview, Hines stated that she and McElroy saw Officer

Maclain’s patrol car approaching before McElroy entered the intersection at Highway 80.

Hines told Deputy Dixon that Officer Maclain’s blue lights were turned on and that, although

McElroy initially stopped at the stop sign, he then tried to beat Officer Maclain’s patrol car

through the intersection. Hines further told Deputy Dixon that she had been drinking earlier

that night but that she did not know whether McElroy had also been drinking.

¶14.   Further contradicting Hines’s deposition testimony, the accident-reconstruction report

stated that Hines told law enforcement that she and McElroy saw Officer Maclain’s patrol

car, with its lights on, approaching them. The report also stated that Hines said McElroy

thought they could beat the patrol car through the intersection and that he proceeded to pull

into the intersection in front of Officer Maclain’s oncoming patrol car. The accident-

reconstruction report found no wrongdoing by Officer Maclain and concluded that McElroy

contributed to the collision because he was under the influence of alcohol and marijuana and

failed to yield to Officer Maclain’s approaching patrol car.

¶15.   On July 28, 2009, McElroy’s wrongful-death beneficiaries and heirs at law filed a

complaint against Officer Maclain and the City under the Mississippi Tort Claims Act

(MTCA). The beneficiaries argued that Officer Maclain acted with gross and reckless

negligence and that Officer Maclain’s negligence could be directly imputed to the City and

the police department through respondeat superior. The City and Officer Maclain responded

that they were entitled to sovereign immunity under the MTCA because, at the time of the


                                              7
collision, Officer Maclain was acting within the course and scope of his employment and

McElroy was engaged in criminal activity. See Miss. Code Ann. § 11-46-9(1)(c) (Rev.

2012).

¶16.     On February 7, 2013, the City and Officer Maclain filed a motion for summary

judgment. The summary-judgment motion asserted that the City and Officer Maclain were

immune under section 11-46-9(1)(c) because “Officer Maclain was engaged in police[-

]protection activities, and Bradley McElroy was engaged in criminal activity that had a clear

causal nexus to his injuries.” The City and Officer Maclain further contended that, even if

McElroy had not been engaged in criminal activity at the time of the accident, immunity still

existed because Officer Maclain’s actions failed to constitute reckless disregard for the safety

and well-being of others.

¶17.     After considering the evidence and testimony, the circuit court granted summary

judgment in favor of Officer Maclain and the City. Based upon Mississippi precedent, the

circuit court agreed that the City and Officer Maclain possessed immunity pursuant to section

11-46-9(1)(c). Aggrieved by the circuit court’s grant of summary judgment, McElroy’s

beneficiaries appeal to this Court, asserting that material issues of fact remain in dispute.

                                STANDARD OF REVIEW

¶18.     Governmental entities and their employees are exempt from liability under certain

circumstances. See Miss. Code Ann. § 11-46-9 (Rev. 2012). “This exemption, like that of

qualified or absolute immunity, is an entitlement not to stand trial rather than a mere defense


                                               8
to liability and, therefore, should be resolved at the earliest possible stage of litigation.”

Mitchell v. City of Greenville, 846 So. 2d 1028, 1029 (¶8) (Miss. 2003). As a result,

“immunity is a question of law and is a proper matter for summary judgment . . . .” Id. The

appellate court “reviews errors of law, which include the proper application of the [MTCA],

de novo.” Rayner v. Pennington, 25 So. 3d 305, 308 (¶10) (Miss. 2010) (citation omitted).

¶19.   This Court also reviews de novo the trial court’s grant or denial of summary judgment.

McCreary v. City of Gautier, 89 So. 3d 703, 707 (¶8) (Miss. Ct. App. 2012). Summary

judgment is appropriate where “the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law.”

M.R.C.P. 56(c). “The burden of demonstrating that no genuine issue of [material] fact exists

is on the moving party.” Estate of Williams, 844 So. 2d at 1164 (¶8). Furthermore, we view

the evidence in the light most favorable to the nonmovant. Hudson v. Courtesy Motors Inc.,

794 So. 2d 999, 1002 (¶7) (Miss. 2001).

                                       DISCUSSION

¶20.   In granting summary judgment, the circuit court found that the City and Officer

Maclain were exempt from liability under the MTCA, which “provides the exclusive remedy

against a governmental entity and its employees for acts or omissions that give rise to a suit.”

McCreary, 89 So. 3d at 707 (¶10) (citation omitted). Relevant to the present case, section

11-46-9(1)(c) establishes:


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       A governmental entity and its employees acting within the course and scope
       of their employment or duties shall not be liable for any claim . . . [a]rising 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-being of any person not engaged in criminal activity at the time of
       injury[.]

As set forth in section 11-46-9(1)(c), a person engaged in criminal activity at the time of his

injury is barred from recovering from a governmental entity. With regard to the present case,

we find that the precedent established in Estate of Williams controls the application of the

law to the facts and bars any recovery from the City by McElroy’s beneficiaries.

¶21.   At the time of the accident, Officer Maclain was responding to a burglary-in-progress

call. He was therefore engaged in “police protection” pursuant to section 11-46-9(1)(c), and

the City possessed two possible 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 employee[] did not act with reckless disregard, then the

City is immune.” Estate of Williams, 844 So. 2d at 1164 (¶11).4

¶22.   “For recovery from a governmental entity to be barred because of the victim’s

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

tortfeasor.” McCreary, 89 So. 3d at 708 (¶13) (citing City of Jackson v. Perry, 764 So. 2d

373, 379 (¶25) (Miss. 2000)). Our precedent “recognizes that section 11-46-9 was ‘not


       4
        See also Bridges v. Pearl River Valley Water Supply Dist., 793 So. 2d 584, 587-88
(¶9) (Miss. 2001) (discussing the exception to governmental immunity provided by section
11-46-9(1)(c)).

                                               10
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 the liability would otherwise arise.’” Id. (quoting Perry, 764 So.

2d at 379 (¶25)).

¶23.   In Estate of Williams, the estate of James Williams sued the City of Jackson after

Williams died in a collision with a municipal fire engine. Estate of Williams, 844 So. 2d at

1162 (¶1). Williams’s estate argued that the firefighters acted with reckless disregard for the

safety of Williams and others while responding to a fire. Id. However, the evidence

reflected that Williams failed to yield the right-of-way to the approaching fire truck and

instead tried to beat the fire truck through the intersection. Id. at 1163 (¶5). Toxicology

reports revealed that Williams’s BAC was twice the legal limit. Id.

¶24.   In considering whether governmental immunity applied, the supreme court stated that

“[o]perating 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 [that], in this

instance, operates to limit the duty owed by police and fire personnel under [section]

11-46-9(1)(c).” Estate of Williams, 844 So. 2d at 1165 (¶14). The supreme court found that

a clear causal nexus existed between Williams’s criminal activity and the firefighters’

actions, stating that, “[h]ad [Williams] not been driving while intoxicated, Williams would

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

killed.” Id. at (¶17). In addition, the supreme court found that, unlike Williams, “[a] sober


                                               11
person would . . . know that [he] should not try to beat a fire truck across an intersection.”

Id. at (¶16). Based on its findings, the supreme court concluded that governmental immunity

applied to bar recovery by Williams’s estate. Id. at (¶17).

¶25.   In determining whether the City and Officer Maclain met their burden of proof for

summary judgment, we acknowledge that Officer Maclain was responding to a burglary-in-

progress call at the time of the collision. To support their summary-judgment motion, the

City and Officer Maclain offer the findings of the forensic-toxicology report as evidence of

McElroy’s impairment while driving at the time of the accident. According to the report,

McElroy possessed marijuana in his system at the time of the collision. See Miss. Code Ann.

§ 41-29-139 (Supp. 2015). The report also revealed that nineteen-year-old McElroy

possessed a BAC of .073 percent, which surpassed Mississippi’s legal limit for minors of .02

percent. See Miss. Code Ann. § 63-11-30(3). A review of the record reflects no dispute as

to McElroy’s BAC or the level of marijuana in his system at the time of the accident. In Dr.

Cox’s opinion, the level of active marijuana in McElroy’s system likely indicated that

McElroy had used marijuana within the three hours prior to the accident. Dr. Cox further

stated that McElroy’s alcohol level indicated that McElroy was impaired at the time of the

accident.

¶26.   After reviewing the record and Mississippi precedent, we find that Estate of Williams

controls the question of whether a causal nexus existed between McElroy’s criminal activity

at the time of his death and Officer Maclain’s actions. See Estate of Williams, 844 So. 2d at


                                             12
1164-65 (¶¶9-17).5 Based on the supreme court’s holding in Estate of Williams, we find that

a causal nexus existed in the present case. We therefore find that the governmental immunity

afforded by section 11-46-9(1)(c) applies to bar recovery by McElroy’s beneficiaries. As the

supreme court explained in Estate of Williams, even if the facts support the beneficiaries’

assertion that McElroy stopped his vehicle at the intersection, this fails to change the

undisputed evidence showing that McElroy possessed marijuana in his system at the time of

the accident and possessed a BAC that exceeded the legal limit for Mississippi minors. See

Estate of Williams, 844 So. 2d at 1165 (¶14); Miss. Code Ann. § 41-29-139; Miss. Code Ann.

§ 63-11-30(1), (3).

¶27.   Since the record reflects undisputed evidence that McElroy engaged in criminal

activity at the time of the accident, section 11-46-9(1)(c) and Estate of Williams bar recovery

by his beneficiaries. As the supreme court stated in Estate of Williams, “[o]perating 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 [that], in this instance, operates to limit

the duty owed by police and fire personnel under [section] 11-46-9(1)(c).” Estate of

Williams, 844 So. 2d at 1165 (¶14).

¶28.   Based on a review of the record and applicable caselaw and statutory law, we affirm

the circuit court’s judgment. In so doing, we find no error in the circuit court’s determination


       5
         Cf. City of Jackson v. Powell, 917 So. 2d 59, 70 (¶40) (Miss. 2005) (distinguishing
Estate of Williams by explaining that the deceased’s criminal activity in Estate of Williams
directly caused his injuries).

                                                13
that McElroy’s criminal activity exempted Officer Maclain and the City from liability

pursuant to section 11-46-9(1)(c). Accordingly, this issue lacks merit, and we therefore

affirm the circuit court’s grant of summary judgment in favor of the City and Officer

Maclain.

¶29. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

     LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR AND WILSON, JJ.,
CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
MAXWELL, J., NOT PARTICIPATING.




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