                        IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2004-CA-00123-SCT

THE CITY OF ELLISVILLE, MISSISSIPPI, AND
MICHAEL TOLBERT, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY

v.

TAMMY W. RICHARDSON, RONNIE RICHARDSON
AND SHANA RICHARDSON, A MINOR BY AND
THROUGH HER MOTHER AND NATURAL
FRIEND, TAMMY W. RICHARDSON


DATE OF JUDGMENT:                              10/31/2003
TRIAL JUDGE:                                   HON. ROBERT LOUIS GOZA, JR.
COURT FROM WHICH APPEALED:                     JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                      HAROLD WAITS MELVIN
                                               PATRICIA FRANCINE MELVIN
ATTORNEY FOR APPELLEES:                        EDWIN L. BEAN
NATURE OF THE CASE:                            CIVIL - PERSONAL INJURY
DISPOSITION:                                   AFFIRMED IN PART AND REVERSED AND
                                               REMANDED IN PART - 04/28/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    In this case under the Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to -23 (Rev. 2002

& Supp. 2004), a city and its police officer appeal from a judgment against them for damages

where the plaintiffs were injured when their truck was struck by a vehicle driven by a third party

who was pursued by the officer. We affirm in part and reverse and remand in part.
                                      FACTS AND PROCEEDINGS

¶2.      Around dusk on December 21, 1999, officer Michael Tolbert of the City of Ellisville

police department was on patrol when he spotted Joe C. Evans, Jr., driving a vehicle in the

opposite direction.     Aware of outstanding warrants for Evans, Tolbert made a u-turn, activated

his blue lights and siren, and pursued Evans.                  Evans proceeded to leave the city limits of

Ellisville, while heading northbound on Highway 29, with officer Tolbert in pursuit.

¶3.      Tammy W. Richardson was also driving northbound on Highway 29. As she began to

make a left hand turn into a residential driveway crossing the southbound lane of Highway 29,

Evans crashed into her while passing other northbound traffic. In the car with Tammy was her

minor daughter, Shana.

¶4.      Tammy was transported first to South Central Regional Medical Center in Laurel, and

then to Forrest General Hospital in Hattiesburg, where she was admitted for six days, and then

discharged. She was soon readmitted for three additional days.

¶5.      Tammy, her husband Ronnie, and Shana, filed this suit against the City of Ellisville, and

officer Tolbert, individually, and in his official capacity.

¶6.      Defendants filed their answer denying liability and raising as affirmative defenses: (1)

the City is not liable to the Plaintiffs by reason of governmental immunity and (2) Tolbert is

not liable to the Plaintiffs by reason of qualified immunity - performing police duties, in the

scope of his employment.          Following Circuit Judge Billy J. Landrum’s recusal, Judge Robert

L. Goza was specially appointed to hear the case which was set for a bench trial by agreed

order.


                                                        2
¶7.     At trial, Tolbert testified he began working for the Ellisville Police Department in

November of 1998.         Although he never received training for “hot” pursuits, he was trained in

high speed vehicle driving, and he had studied the department’s pursuit policy.

¶8.     Tolbert testified regarding Evans’s history with local law enforcement prior to the

accident.   Approximately one month before the accident, on November 17, 1999, he sought

to execute an arrest warrant on Evans at Evans’s residence at which time Evans started a fight

with officer Tolbert and another officer. During the fight, Evans bit Tolbert and fled the scene.

Tolbert filed charges against Evans for assaulting an officer.          At the time of the pursuit, there

were outstanding warrants for Evans’s arrest.

¶9.     Officer Tolbert testified that he saw Evans at an intersection.Tolbert made a u-turn and

turned on his lights and then his siren as the chase began. Tolbert testified:


        Q. As you pursued Evans’s vehicle northbound on Highway 29 were there any
        vehicles that got in between you and Mr. Evans’s vehicle?

        A. Yes, Sir.

        Q. Can you tell the judge how many?

        A. Five or six.

        Q. Five or six?

        A. Yes, sir.

        Q. And what did those vehicles do?

        A. They continued traveling north on 29. I think there was one or two of them
        that pulled over and let me get around, but most of them didn’t. And he passed
        most of them.




                                                     3
Q. As a matter of fact at the point of the collision. There were four vehicles
between – behind Mrs. Richardson’s vehicle after you turned on the highway.
Would that be a fair statement?

A. I believe it would be, yes sir.

Q. And two you said pulled off on the right-hand shoulder and let you by them?

A. I am guessing. There were some that pulled over and it was about two of
them. I don’t remember exactly how many there was. I don’t remember exactly
how many was between us.

Q. Okay. But suffice it to say, you didn’t have a clear – it wasn’t a clear line
between you and Mr. Evans. You had the blue lights on. You had the siren on.
There were vehicles in between. He got vehicles in between you. And you were
still pursuing, right?

A. Could you repeat the first part?

Q. Yes, sir. There wasn’t a clear line between you and Mr. Evans because he got
vehicles in between you and him; is that correct?

A. Yes, sir.

                                 *        *           *       *

Q. As you proceeded north, did you encounter other cars ahead of you in the
northbound lanes of traffic?

A. Yes, sir.

Q. What did Mr. Evans do?

A. Passed them.

                                      *   *       *       *

Q. Officer Tolbert, why did you not go out into the northbound lane and follow
Mr. Evans?

A. There was on-coming vehicles.




                                              4
Officer Tolbert also completed an Offense Form, dated December 21, 1999, which was

introduced into evidence, that Evans was “running oncoming traffic off the road” and that the

Evans’s vehicle passed several vehicles before striking the truck on the side. Officer Tolbert

also admitted that both he and Evans were exceeding the posted speed limit.

¶10.    A witness, Bobby Reynolds, testified that he was standing out in his driveway at around

7:15 p.m., when he saw the police car go by with the lights on and the siren blowing. Reynolds

stated that the accident occurred within 15 seconds from the time they passed his driveway.

He was approximately 600 feet from the scene of the accident and heard, but did not see, the

collision. Reynolds testified:

        the pickup truck was hit hard in the left, the driver’s door, and right behind in the
        bed of the truck, the bed of the truck and the camper hull that was on the truck
        was laying across the top of the gas meter that was sitting those (sic) people’s
        yard. The truck was sitting off in the ditch above the driveway that it was going
        to, and the other car was sitting in the ditch above the driveway.

¶11.    Following trial, the trial court entered a Memorandum Opinion and Judgment, awarding

$95,000.00 to Tammy, $2,500.00 to Shana, and $1,000.00 to Ronnie, against the City and

Officer Tolbert.

¶12.    Defendants properly perfected their appeal and raise the following issues:

        I.         Whether finding of reckless disregard is contrary to the evidence.

        II.        Whether the trial court should apportion damages under Miss.
                   Code Ann. § 85-5-7(7).

        III.       Whether damages were supported by medical proof in terms of
                   probability.

                                             ANALYSIS

¶13.    This Court has stated:


                                                   5
        The standard of review for a judgment entered following a bench trial is well
        settled. A circuit court judge sitting without a jury is accorded the same
        deference with regard to his findings as a chancellor, and his findings are safe
        on appeal where they are supported by substantial, credible, and reasonable
        evidence.

City of Jackson v. Brister, 838 So. 2d 274, 277-78 (Miss. 2003) (citations omitted). “This

Court reviews errors of law, which include the proper application of the Mississippi Tort

Claims Act, de novo.” Id. (citation omitted).

        I.      Reckless Disregard

¶14.    This Court finds substantial, credible and reasonable evidence to support the trial

court’s finding of reckless disregard.

¶15.    The trial judge, in his findings of facts and conclusions of law, determined the

following:

        [I]mmunity afforded under the Mississippi Tort Claims Act . . . does not apply
        if the employee acted in reckless disregard for the safety and well-being of any
        person not engaged in criminal activity at the time of the injury. In Johnson v.
        City of Cleveland, 846 So. 2d 1031, 1037 (Miss. 2003), our Supreme Court
        enumerated 10 factors to support a finding of reckless disregard in connection
        with police pursuits as follows:
                1. The length of the chase
                2. Type of neighborhood;
                3. Characteristics of the streets;
                4. The presence of vehicular or pedestrian traffic;
                5. Weather conditions and visibility;
                6. The 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 led to the
                apprehension of the suspect besides puruit;
                9. The existence of police policy which prohibits pursuit under the
                circumstances; and
                10. The rate of speed of the officer in comparison to the posted speed
                limit.



                                                6
        Additionally, the City of Ellisville had a Pursuit of Motor Vehicle policy which
        was admitted into evidence as Exhibit K. The City of Ellisville’s Pursuit of
        Motor Vehicles policy Section 7748-6 enumerates that an officer must ask
        himself before initiating a fast pursuit such as:
                 1. Does the seriousness of the crime committed, or being committed,
                 warrant a high speed chase at unsafe speeds?
                 2. What is the probability of apprehending the fleeing person?
                 3. Will the pursuit take place on residential streets, in a business district,
                 or on a freeway? What is the danger to other innocent citizens in these
                 areas?
                 4. What are the traffic and weather conditions?
                 5. What is the condition of the police cruiser? How are the tires, brakes,
                 steering, etc.?
        Therefore, I conclude as a matter of law that the Officer Tolbert’s actions on the
        night in question violated the criteria established in the Johnson Case as well as
        the pursuit policy established by the City of Ellisville. . . . Evans under the
        circumstances was in disregard for the safety and well-being of others, including
        the Plaintiffs, who were lawful using the public highway and were not engaged
        in criminal activity.

Although reasonable minds might differ on the conclusion of whether or not the officer in

question acted in reckless disregard, it is beyond this Court’s power to disturb the findings of

the trial judge if supported by substantial evidence. Brister, 838 So. 2d at 277-78.

¶16.     The facts of the case sub judice are analogous to Brister, where this Court held that

there was substantial evidence to support a finding of reckless disregard.             In Brister, police

pursued an unknown suspect who had been accused of check forgery. Id. at 276. The pursuit

in Brister lasted less than 60 seconds over a distance of less than a mile in a residential area

and resulted in the suspect’s crash with another vehicle. Id. at 279. In Brister the trial court

based its findings on various factors including that, the chase was contrary to a police

department’s general order, the officers were engaged in active pursuit up until the collision,

the pursuit should have been terminated after the officers realized the suspect would not stop,




                                                   7
and that the officers did not properly balance the public’s safety versus immediate

apprehension of a check forger. Id.

¶17.       The trial court in the case sub judice considered ten factors as enumerated in Johnson

v. City of Cleveland, 846 So. 2d 1031 (Miss. 2003), in support of its finding of reckless

disregard. The first six factors were enumerated in this Court’s majority opinion in Johnson,

while the last four were contained in the concurring in result only opinion written by Presiding

Justice McRae, Id. at 1037. 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.     The evidence in this case reveals that the chase lasted for nine-tenths of a mile,

occurred at night, in a residential area on a hilly, curvy, two-lane road with medium levels of

traffic.     The officer traveled this road frequently and had prior knowledge that it was a

residential area and continued to pursue Evans after Evans had run oncoming traffic off the

road. The officer was not in pursuit of an unknown suspect. In fact, the officer had previous

encounters with Evans, knew where Evans lived, knew Evans’s mother, and knew that Evans was

likely to try to avoid arrest which he did even after colliding with the Richardson’s vehicle.

Nevertheless Tolbert elected to continue the pursuit while Evans weaved in and out of traffic

at excessive speeds and endangered the safety of innocent citizens.

¶18.       Evans’s outstanding warrants included misdemeanor charges and one charge for

assaulting an officer, as a result of Evans’s biting Tolbert’s hand during Tolbert’s last

unsuccessful attempt to arrest Evans. Tolbert testified that he did not know if Evans had been

charged for a felony or misdemeanor. There was also testimony to establish the fact that the

officer proceeded with his sirens and flashing lights up until the time of the accident, that he

                                                   8
was driving in excess of the speed limit, and that there were at least four cars between the

officer and Evans at the time of the accident.             Evans passed approximately six vehicles,

including those four, all within a chase that lasted less than one mile, and Tolbert continued the

pursuit until the point of impact.

¶19.    Furthermore, there was ample evidence to support           violations of the City of Ellisville’s

Pursuit of Motor Vehicles policy.           The chase was not the result of a serious crime being

committed at the moment.             The two vehicles were exceeding the speed limit in a residential

neighborhood, in the dark, with a low probability of apprehending the suspect, as he was known

to flee and had successfully fled in the past.

¶20.    The City of Ellisville’s Pursuit of Motor Vehicles Policy requires officers to weigh the

seriousness of the offense against the hazards present to innocent citizens who may become

involved and to continually ask this question as the chase continues.        The policy also requires

officers to “immediately terminate a fresh pursuit whenever . . . [the] safety of innocent

citizens outweighs the danger to the community if the suspect were not immediately

apprehended.” This policy was clearly violated, as it was in Brister, where this Court found

that the officers did not properly balance the public’s safety versus immediate apprehension

of the suspect. 838 So. 2d at 281.

¶21.    This Court in Brister found that,

        [t]he circuit judge clearly based his findings on substantial, credible, and
        reasonable evidence.       Applying our appropriate legal standard and recent
        caselaw, that is all that is necessary. Had a jury tried this case, it could have
        reasonably found that all of these circumstances establish more than simple
        negligence. The learned trial judge found by looking at the totality of the
        circumstances that the officers acted with reckless disregard to public safety.
        That is exactly what our caselaw requires.


                                                      9
Id. at 279. Applying this precedent, as this Court is required, there is substantial and credible

evidence to support a finding of reckless disregard in the case sub judice. This issue is without

merit.

         II.    Whether the trial court should apportion damages under Miss.
                Code Ann. § 85-5-7(7).

¶22.     The City argues that the trial court erred by not apportioning fault.    The Richardsons’

complaint specifically alleged that Evans acted negligently.

¶23.     Miss. Code Ann. § 85-5-7 (1991) provides in pertinent part:

         (1) As used in this section “fault” means an act or omission of a person which
         is a proximate cause of injury or death to another person or persons, damages
         to property, tangible or intangible, or economic injury, including but not limited
         to negligence, malpractice strict liability, absolute liability or failure to warn.
         ...
         (7) In actions involving joint tort-feasors, the trier of fact shall
         determine the percentage of fault for each party alleged to be at fault.

(Emphasis added).

¶24.     The City relies on Brister, 838 So. 2d 274, where the plaintiff filed a suit against the

city and the trial court found that the officer acted in reckless disregard and allocated fifty

percent (50%) liability to Slater, the suspect being pursued, and fifty percent (50%) liability

to the City of Jackson.        This Court affirmed the trial court stating: “We find no abuse of

discretion by the trial judge whose ruling is supported by substantial, credible and reasonable

evidence.” Id. at 276.

¶25.     In the case sub judice, Evans was not named as a defendant.             However, there was

testimony that Evans was the driver of the vehicle that collided with the plaintiffs. The

Richardsons also alleged in their complaint that Evans “negligently entered the         southbound

                                                    10
lane of Highway 29, and while so doing, his motor vehicle collided with the motor vehicle

driven by the plaintiff, Tammy Richardson, and occupied by the plaintiff, Shana Richardson, a

minor, as the passenger.”      Nevertheless, the trial judge failed to address in his Memorandum

Opinion and Judgment or his Judgment denying defendants’ motion for reconsideration, that

he apportioned fault between the joint tortfeasors as required by Miss. Code Ann. § 85-5-7.

¶26.    The Richardsons contend that the City first raised the issue of apportionment on appeal

and has, therefore, waived any right to apportionment.         However, the Richardsons pled the

negligence of Evans in their complaint. Obviously the issue of Evans’s negligence was before

the court, as the trial judge addressed Evans’s negligence in his Memorandum Opinion.

Finally, in their Motion to Reconsider before the trial court the City and Officer Tolbert

sought relief of the trial court, wherein they stated:    “The damages of Plaintiff were charged

solely to the Defendant without offset, credit or pro-ration to the negligence of Evans.”     This

Court finds that this plea for relief was sufficient, albeit a poor choice of words, to provide the

trial court an opportunity to correct this error. Miss. Code Ann. § 85-5-7 requires the trier of

fact to apportion fault.

¶27.    Whether there are joint tortfeasors is a question of fact.     In the Memorandum Opinion

and Judgment, the trial judge found that:

        it was undisputed that (a) Mrs. Richardson was not engaged in the commission
        of a crime and the time of the collision and was not guilty of negligence which
        caused or contributed to it and (b) the that negligence of Joe C. Evans, Jr. in
        operating his vehicle at an unsafe speed, failing to maintain adequate
        control over the vehicle and failing to maintain a proper lookout for
        others was the direct cause of the collision . . .




                                                 11
(Emphasis added). The trial judge later concluded that Tolbert’s “action was the proximate

cause of the collision and of the resulting injuries to Tammy and Shana Richardson as well

as the damage to the vehicle of Ronnie Richardson.” (Emphasis added).

¶28.    The trial court’s findings are ambiguous, and this constitutes plain error.              See Selman

v. Selman, 722 So. 2d 547, 554 (Miss. 1998).

¶29.    It is unclear from the trial court’s memorandum opinion and judgment and judgment

overruling the motion to reconsider if either it assessed the plaintiffs’ total damages in an

amount greater than the judgment, and accordingly reduced the award by a percentage of fault

assessed to Evans, or if it determined the total damages suffered by plaintiffs and assessed no

percentage of fault to Evans. Therefore, we must reverse and remand to the trial court for a

specific finding of the total damages suffered by each plaintiff, and for a specific finding of

the respective percentages of fault of Tolbert and Evans, if any, and then direct the trial court

to enter final judgment accordingly.

        III.     Whether damages were supported by medical proof in terms of
                 probability.

¶30.    The City contends that the trial court erred in finding that Tammy’s injuries were

permanent and this error is reflected in the award of damages to her. It argues that the medical

evidence does not support the award and the finding of permanent injury is contrary to the

evidence.1




        1
          The City requests that, if this Court finds Tolbert and the City liable, and if the case
is not reversed for a new trial, then the damage award should be reduced.

                                                     12
¶31.    The Richardsons point out that Dr. Keith Melancon’s medical records reflect that

Tammy had a grade two lateral ligament complex left ankle sprain.                They state that Tammy

physically demonstrated to the court the condition of her ankle and testified about continuing

problems with the ankle, then three and one-half (3 1/2) years post accident.                 The defendants

provided the court with no testimony to rebut Tammy’s contention of injury to her ankle, of

indefinite duration.

¶32.    Tammy was transported to South Central Regional Medical Center and then to Forrest

General Hospital where she was admitted for six days. Tammy was diagnosed with a sprained

left ankle, bilateral pulmonary contusions, multiple rib fractures 2 and possible Thoracic 11,

Thoracic 12 and Lumbar 1 compression fracture.3

¶33.    During her hospitalization, Tammy underwent physical therapy and respiratory therapy.

Tammy was discharged, with a prescription for Tylox and Valium4 and went home. But later

that same day, she sneezed, causing her to lose her breath, and was taken back to the hospital

where she was hospitalized for an additional three days.

¶34.    Tammy testified that she underwent physical therapy once a week for six weeks and had

two follow-up visits with Dr. Melancon for her ankle while was swolen and painful.                       Dr.

Melancon gave her three injections to her ankle to try to reduce the swelling. Tammy’s last

visit to Dr. Melancon was in March of 2000.


        2
         Multiple fractures on the left posteriorly at ribs 6 and 7 and a possible 10th rib
fracture on the right.
        3
            The age of the possible compression fracture could not be determined.
        4
            There was no evidence that she filled a prescription following discharge from the
hospital.

                                                      13
¶35.    Tammy testified how the accident impacted her life.          Prior to the accident, she did all

the cooking, cleaning and laundry along with gardening and yard work. After the accident, she

wore a back brace for approximately a month after being discharged from the hospital.

Following being discharged from the hospital, she wasn’t able to do anything for           herself and

Shana and her husband both had to help her bathe and they did all the cooking, cleaning and

laundry.

¶36.    During February, Tammy was still using the back brace but could bathe herself and take

care of herself. It was in March that she started her normal household activities.

¶37.    Tammy was in her last semester at Jones County Community College, and her

instructors found an old recliner and placed it in the classroom so she wouldn’t have to sit up

straight. This allowed her to graduate on schedule.

¶38.    Following graduation, Tammy was employed by Entel Corporation.                 Tammy testified

her injuries made it difficult to perform her duties:

        If I was on maintenance that night, if I had to so a lot of reaching and stretching
        over my tools, by the end of the evening, my left side would be sore, my back
        would be sore. By the end of my shift, my complete shift, my foot and ankle
        would swollen (sic) so badly that I had to take my shoes off. In fact, I even
        purchased one size larger and just tied the shoelaces tighter because I knew by
        the end of the evening, I was going to be filling them up with the swelling.

Tammy worked for Entel for a year and then took medical leave.

¶39.    Regarding “lingering effects” from the injuries she sustained in the accident, Tammy

testified over three years post accident:

        I still have the swollen ankle, and swollen foot every day if I am standing on my
        feet. If I’ve been on my feet doing housework, by the end of the day it is
        swollen. Then I also get – I call them Charlie horses. Muscle spasms, or
        whatever you want to call them. If I happen to stretch my left arm out, I get them


                                                        14
          on my left side and towards the back. Other than that, it’s mostly the ankle that
          has been the biggest problem.

¶40.      Dr. Kirk Banquer, a general surgeon, was deposed, and his deposition was entered into

evidence at the close of the trial.      Dr. Banquer first saw Tammy on December 22, 1999, the

night of the accident.        Dr. Banquer testified regarding Tammy’s injuries and her treatment

while she was hospitalized, and stated that Tammy had fractured three ribs in the accident, and

was complaining primarily of chest pain, lower back pain, and left hip pain. Dr. Banquer opined

that, based upon a reasonable degree of medical certainty, there was no future limiting problem

or restrictions of physical activities because of her rib fractures.       However, he did give her

instructions to follow-up with Dr. Melancon for treatment for her ankle and spine fractures.

¶41.      The trial judge stated:

                 I further find that Shana Richardson has fully recovered from the injury
          to her right elbow and shoulder without permanent injury or impairment.
          Tammy Richardson, however, suffered severe pain from her injuries. She has
          recovered from the injury to her ribs but continues to have pain and swelling in
          her ankle which will continue indefinitely and must therefore be considered as
          a permanent injury.

Tammy testified to the fact that she still had problems with pain and swelling three and a half

years after the accident. She testified that a place on her ankle stays swollen and is completely

numb.      “Any witness is competent to testify who has evidentiary facts within his personal

knowledge, gained through any of his senses.                 A nonprofessional witness may describe

personal injuries. Physical pain, weakness, exhaustion and the like are matters one may testify

about.”     Stratton v. Webb, 513 So. 2d 587, 590 (Miss. 1987).              This Court finds that the

testimony of pain and swelling three and a half years after the accident was sufficient to find

an injury of indefinite duration. Thus, this issue is without merit.


                                                      15
                                               CONCLUSION

¶42.    This Court finds sufficient evidence to support the trial court’s decision that Tolbert

acted in reckless disregard.       This Court also finds that there was sufficient medical proof to

establish damages. However, because the trial court erred in failing to apportion fault between

Evans and Tolbert, we must reverse and remand to the trial court for a specific finding of the

total damages suffered by each plaintiff, and for a specific finding of the respective

percentages of fault of Tolbert and Evans, if any, and then for the trial court to enter final

judgment accordingly.

¶43.    AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

     COBB, P.J., CARLSON AND GRAVES, JJ., CONCUR. DICKINSON, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J. AND
EASLEY, J. SMITH, C.J., AND DIAZ, J., NOT PARTICIPATING.


        DICKINSON, JUSTICE, DISSENTING:

¶44.    Because the record does not establish that Officer Tolbert acted in “reckless disregard

for the safety” of the public, I respectfully dissent.

                                                         I.

¶45.    Article 4, Section 33 of our state constitution grants the Legislature the sole authority

to enact substantive law. When we are called upon to interpret one of those laws, our function

and duty is to interpret the wording of the statute so that, as closely as possible, the decision

we render does not stray from the collective legislative intent behind the statute, which I equate

with the plain meaning of the words chosen and agreed by the Legislature as a whole, as




                                                         16
opposed to the subjective intent of some particular legislator who might have introduced or

argued in favor of the law.

¶46.    In the case before us today, it is not our function to decide, or even contemplate, the

circumstances under which a city or a police officer should stand liable for civil damages. The

Legislature has decided to grant immunity from civil liability to cities and their police officers

acting within the course and scope of their employment or duties, with one exception.            That

singular exception is not where the officer’s actions were negligent, or even grossly negligent.

The only circumstance the Legislature allows this Court to affirm a verdict of civil damages

against a police officer engaged in police duties is where the officer “acted in reckless

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

time of injury.” Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2002) (emphasis added).

¶47.    Thus, in order to be true to our constitutional mandate of deference to the Legislature,

this Court is required to examine the facts to determine whether the trial judge erred in finding

that officer Tolbert “acted in reckless disregard of the safety and well-being” of the Public.

                                                     II.

¶48.    The term “reckless disregard” now joins that expanding group of terms which seem to

expand in scope and meaning over time. There was a time when the term “reckless disregard”

was equated by this Court with the level of culpability necessary for depraved heart murder.

See Windham v. Stat e, 602 So. 2d 798, 803 (Miss. 1992). In Collins v. Tallahatchie County,

876 So. 2d 284 (Miss. 2004), this Court held that “reckless disregard is a higher standard than

gross negligence and ‘embraces willful or wanton conduct which requires knowingly and




                                                    17
intentionally doing a thing or wrongful act.’” Id. at 287, citing Turner v. City of Ruleville, 735

So. 2d 226, 230 (Miss. 1999). In Turner, we stated:

       While we agree that reckless disregard would encompass gross negligence, we
       hold that reckless disregard is a higher standard than gross negligence by which
       to judge the conduct of officers . . . [T]his Court has held that “wanton” and
       “reckless disregard” are just a step below specific intent.

Id. For emphasis, I repeat: “reckless disregard is a higher standard than gross negligence.

. . . ‘reckless disregard’ [is] just a step below specific intent.” Id. (emphasis added).

¶49.   Assuming as I do that this Court intends to adhere to the principles of stare decisis and

separation of powers (deference to legislative prerogative), the authority cited supra begs the

question: Was officer Tolbert’s conduct worse than gross negligence, and just a step below

specific intent to injure the Richardsons?        Was his level of culpability comparable to that

required for depraved heart murder?

       Officer Tolbert’s conduct

¶50.   Turning to the facts established in the record, we find the following:

       (1) While on duty, officer Tolbert spotted Evans who, at the time, had several
       outstanding arrest warrants including one for assault on a police officer.

       (2) When officer Tolbert and the police chief had previously attempted to arrest
       Evans, he fought off both officers, assaulted one of them, and escaped.

       (3) Numerous attempts to arrest Evans had been unsuccessful because Evans’s
       family members were unhelpful to police and Evans would resist arrest, run and
       hide.

       (4) When Officer Tolbert spotted Evans, he called for backup and attempted to
       make an arrest by turning on his blue lights and sounding his siren and giving
       pursuit.

       (5) Because of past conduct, Officer Tolbert fully expected Evans to stop and
       “bail out” and try to evade arrest on foot.

                                                   18
        (6) The pursuit took place on a state highway with a speed limit of 45 miles per
        hour. There were no intersections, cross roads, stop signs, or traffic lights on
        the highway where the pursuit took place.

        (7) Officer Tolbert never exceeded the speed limit more than 10 miles per hour,
        and at the time of the accident (according to the trial judge), he was traveling
        only 45 miles per hour.

        (8) The pursuit lasted less than a mile and approximately one minute.

        (9) Officer Tolbert never moved into the southbound lane to pass cars.

        (10) Although Officer Tolbert saw Evans pass some cars, there is no evidence
        in the record of Evans’s speed or whether he passed any cars in a no-pass zone.
        Whatever Evans’s speed, it could not have exceeded Officer Tolbert’s speed of
        55 miles per hour by much, since Evans was only a few car lengths ahead of
        Officer Tolbert at the time of the accident.

        (11) According to the City of Ellisville’s policy, the decision to pursue Evans
        was at Officer Tolbert’s discretion.

¶51.    This Court has never adopted a test or specific set of factors to be used in determining

whether a police officer’s conduct amounts to reckless disregard.               In City of Jackson v.

Brister, 838 So. 2d 274 (Miss. 2003), we found “instructive” the following six factors

enumerated in District of Columbia v. Hawkins, 782 A.2d 293 (D.C. 2001): (1) the length

of the chase, (2) type of neighborhood, (3) characteristics of the streets, (4) the presence of

vehicular or pedestrian traffic, (5) weather conditions and visibility, and (6) the seriousness

of the offense for which the police are pursuing the vehicle. Brister, 838 So. 2d at 280.

¶52.    In Presiding Justice McRae’s concurring in result only opinion in Johnson v. City of

Cleveland, 846 So. 2d 1031 (Miss. 2003), an additional four factors were considered:              (1)

whether the officer proceeded with sirens and blue lights, (2) whether the officer had available

alternatives which would lead to the apprehension of the suspect besides pursuit, (3) the

                                                   19
existence of police policy which prohibits pursuit under the circumstances, and (4) the rate of

speed of the officer in comparison to the posted speed limit. Id. at 1037.

¶53.    As authority for his ten factors, Presiding Justice McRae cited Brister, 838 So. 2d at

279-80; City of Jackson v. Lipsey, 834 So. 2d 687, 692-93 (Miss. 2003); City of Jackson v.

Perry, 764 So. 2d 373, 377 (Miss. 2000); Maye v. Pearl River County, 758 So. 2d 391, 395

(Miss. 1999). See also District of Columbia v. Hawkins, 782 A.2d 293 (D.C. 2001).

¶54.    Although all these factors are helpful in cases alleging reckless disregard of a police

officer, I would not adopt any specific set of factors but rather continue to view them as

instructive. Against this background, I now examine Officer Tolbert’s conduct in the light most

consistent with the trial court’s decision.

        Officer Tolbert’s Conduct

¶55.    To begin, the trial judge never found Officer Tolbert’s conduct in reckless disregard for

the safety and well-being of others, as required by Miss. Code Ann. § 11-46-9.       Instead, he

stated in his Memorandum Opinion and Judgment: “I conclude as a matter of law that [Officer

Tolbert’s] pursuit of Evans under the circumstances was in disregard for the safety and well

being of others.” (Emphasis added). However, the context of the balance of the Memorandum

Opinion and Judgment indicates the trial judge probably evaluated the evidence under the

correct standard of “reckless disregard.”

¶56.    I now examine the facts of the case sub judice, applying all ten of the factors

enumerated in Johnson.

        (1) the length of the chase




                                                  20
¶57.    The accident occurred approximately nine-tenths of a mile from the intersection where

Tolbert made the u-turn and began his pursuit. Thus, the pursuit lasted less than two minutes.

¶58.    This factor weighs in favor of Officer Tolbert.

        (2) type of neighborhood

¶59.    Bobby Reynolds, a witness to the pursuit, called Highway 29 a “normal Mississippi

highway” with houses on both sides of the road. Officer Tolbert confirmed there are “several”

houses on both sides of the road, but denied it was densely populated. Although the evidence

fairly indicates that the pursuit took place in a “residential” area, it was not a neighborhood or

subdivision, but a state highway with a speed limit of 45 miles per hour.

¶60.    This factor is neutral.

        (3) characteristics of the streets

¶61.    According to testimony at trial, Highway 29 is a “normal” Mississippi highway with

curves and hills. There are no intersecting roads or stop signs.

¶62.    This factor is neutral.

        (4) the presence of vehicular or pedestrian traffic

¶63.    The record is devoid of any evidence of pedestrians in the area.           Trial testimony

indicates that traffic was between light and medium. At the beginning of the pursuit, there were

no vehicles between Evans and Officer Tolbert, but as the pursuit continued, Evans passed

approximately six vehicles, two of which pulled over to allow Officer Tolbert to pass, leaving

four vehicles between Officer Tolbert and Evans at the point of impact.

¶64.    This factor weighs against Officer Tolbert.

        (5) weather conditions and visibility


                                                      21
¶65.       There was testimony that it was a cold and clear evening. It was around 7:15 p.m., and

it was dark.

¶66.       This factor is neutral.

           (6) the seriousness of the offense for which the police are pursuing the suspect

¶67.       Evans had numerous outstanding arrest warrants, including one for assaulting a police

officer.     Additionally, Evans had physically fought officers and evaded arrest on numerous

occasions.

¶68.       This factor weighs in favor of Officer Tolbert.

           (7) whether the officer proceeded with sirens and blue lights

¶69.       There was testimony that Officer Tolbert had his blue lights on and the siren blowing.

¶70.       This factor weighs in favor of Officer Tolbert.

           (8) whether the officer had available alternatives which would lead to the
           apprehension of the suspect besides pursuit

¶71.       Officer Tolbert testified that Evans had avoided arrest on several occasions, even

resorting to violence. Officer Tolbert believed Evans would stop and “bail out” and attempt to

evade arrest on foot. In fact, at trial, Officer Tolbert testified:

           Q. So you knew on December 21, 1999 from your prior experience that Joe
           Evans, Jr. was going to do whatever he needed to do to avoid arrest, wasn’t he?

           A. I believe in my deposition I stated that he would bail out of the vehicle within
           a couple of blocks and that’s what I felt like he was going to do on this occasion.

           Q. But you knew from prior experience that he was going to run. He didn’t obey
           police officer’s commands in the past and that he would always try to take off
           and hide? You knew that, didn’t you?

           A. Yes, sir. When he was wanted for something, he did.



                                                      22
       Q. And you knew that prior to December 21, 1999?

       A. Yes, sir.

       Q. Okay. I think you testified in your deposition that – well, let me ask you this.
       Did you think – how did you plan on stopping him that night? If you knew he was
       going to run, how were you going to chase him down in your car and apprehend
       him? What were your plans?

       A. As I stated, I felt like that he was going to run a couple of blocks in his
       vehicle, as he normally does. He gets out and he runs on foot. And I was going
       to do my best to chase him down on foot.

       Q. And you have done that in the past and have never been able to catch him,
       have you?

       A. He’s always been faster.

       Q. Then what in your opinion was different from your prior experience – what
       was different on December 21, 1999 and your prior experience with him?

       A. It’s just my job to do the best to catch him.

¶72.   Officer Tolbert had called for backup. He could have declined to attempt to stop Evans

and instead arrest him at his home with additional officers, but given that Evans’s family

members would not assist police, and considering Evans’s history of violence and escape, the

decision to attempt to stop Evans by engaging in a one-mile, two minute pursuit at 45 to 55

miles per hour was not, in my view, unreasonable.

¶73.   This factor weighs in favor of Officer Tolbert.

       (9) the existence of police policy which prohibits pursuit under the circumstances

¶74.   The City had in effect the following Pursuit of Motor Vehicles policy:

       The seriousness of the possible outcome of a fresh pursuit demand that an
       officer weigh many factors when deciding whether or not to chase a vehicle in
       the name of the citizens he serves. Some of the specific questions an officer
       must ask himself before initiating a fresh pursuit would include:


                                                    23
               1.  Does the seriousness of the crime committed, or being
               committed, warrant a high speed chase at unsafe speeds?

               2. What is the probability of apprehending the fleeing person?

               3. Will the pursuit take place on residential streets, in a business
               district, or on a freeway? What is the danger to other innocent
               citizens in these areas?

               4. What are the traffic and weather conditions?

               5. What is the condition fo (sic) the police cruiser? How are the
               tires, brakes, steering, etc.?
                                                   ***
               6. Is there another officer in the cruiser with him?

¶75.   Furthermore, the policy provides:

       In the instance that the chase is initiated, the safety of all concerned must be
       considered. As previously stated, it is important that the officer weigh the
       seriousness of the offense against the hazards present to innocent citizens who
       may become involved. As the chase is continued, this question must be
       continuously asked.

       THE DEPARTMENT EXPECTS AN OFFICER TO IMMEDIATELY
       TERMINATE A FRESH PURSUIT WHENEVER THE RISH (sic) TO THE
       POLICE CRUISER, THE VEHICLE BEING PURSUED, OR SAFETY OF
       INNOCENT CITIZENS OUTWEIGHS THE DANGER TO THE COMMUNITY
       TO THE SUSPECT WERE NOT IMMEDIATELY APPREHENDED.

¶76.   These factors in the City’s policy are not substantially different from the factors

discussed by this Court.

¶77.   This factor weighs in favor of Officer Tolbert.

       (10) the rate of speed of the officer in comparison to the posted speed limit.

¶78.   Officer Tolbert testified that he was driving approximately 55 miles an hour, but had

slowed down at the time of impact. The trial court found that Officer Tolbert was traveling 45




                                                  24
miles per hour at the time of the wreck. The posted speed limit was 45 miles an hour. Officer

Tolbert never passed cars in order to increase his speed.

¶79.    This factor weighs in favor of Officer Tolbert.

¶80.    As stated above, the issue in this case is not whether Officer Tolbert was negligent in

his two-minute pursuit of Evans. Nor is it whether his decision was grossly negligent. Stated

differently, even if Officer Tolbert’s decision to pursue Evans, and his other actions, were

grossly negligent, the Legislature has provided the city and him immunity from civil liability.

We must go beyond gross negligence and find that he acted with reckless disregard for the

safety of others. Under the facts of this case, I cannot so find. Therefore, I would reverse and

render the circuit court’s judgment. For these reasons, I respectfully dissent.

        WALLER, P.J., AND EASLEY, J., JOIN THIS OPINION.




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