        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-01808-COA

ARLENE CAROTHERS                                                           APPELLANT

v.

CITY OF WATER VALLEY, MISSISSIPPI                                            APPELLEE

DATE OF JUDGMENT:                         10/19/2015
TRIAL :                                   HON. JAMES MCCLURE III
COURT FROM WHICH APPEALED:                YALOBUSHA COUNTY CIRCUIT COURT,
                                          SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   DRAYTON D. BERKLEY
ATTORNEY FOR APPELLEE:                    MITCHELL ORVIS DRISKELL III
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                  FINAL JUDGMENT IN FAVOR OF CITY OF
                                          WATER VALLEY; CASE DISMISSED WITH
                                          PREJUDICE
DISPOSITION:                              AFFIRMED: 05/16/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Arlene Carothers appeals the judgment of the Yalobusha County Circuit Court

wherein the circuit court found the automobile collision involving her vehicle and a City of

Water Valley police car did not occur as a result of reckless disregard by a government

employee. We find no error and affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On September 5, 2012, Carothers was stopped at a traffic light when her car was rear-

ended by a City of Water Valley police car, driven by Officer Marshal Jackson. Both
vehicles sustained only minor damage and both were operable after the collision. Officer

Jackson suffered no bodily injuries, but Carothers testified that she sustained injuries to her

head, left knee, and hand. Carothers drove herself to the emergency room where she

received treatment for a contusion (bruise) on her left knee.

¶3.    Immediately before the accident, both parties were traveling in the same direction

toward the traffic signal. The speed limit on Main Street was twenty-five miles per hour.

Officer Jackson testified that he was driving ten miles per hour as he neared the traffic light.

He estimated there was approximately one car length between his car and Carothers’s vehicle

just before the accident.

¶4.    Officer Jackson testified that he looked away for one and a half seconds when he

reached for his cellular phone. He testified that his two-way radio was inoperable, and he

intended to use his cell phone to respond to radio traffic. According to Officer Jackson,

Carothers’s brake lights were not activated, and he did not anticipate her stopping at that

precise moment. At the time of the accident, Officer Jackson was on patrol in the area. He

was not in pursuit of a suspect, did not have his blue lights or siren activated, and was not

responding to an emergency dispatch.

¶5.    Carothers filed a complaint against the City seeking monetary damages for her

injuries. In her complaint, she alleged that Officer Jackson’s actions were negligent and

evinced reckless disregard for her safety and well-being. Carothers further alleged that the

City was directly negligent in its entrustment, training, supervision, retention, and hiring of

Officer Jackson.



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¶6.    In its answer, the City asserted immunity as a governmental entity, pursuant to

Mississippi Code Annotated sections 11-46-1 to -23 (Rev. 2012 & Supp. 2016). The City

also admitted vicarious liability for Officer Jackson’s conduct, if he acted with reckless

disregard. However, the City denied direct liability and reckless disregard by the officer.

The City also filed a motion to dismiss Carothers’s direct-liability claims. In its motion, the

City asserted the prior admission of vicarious liability and the discretionary-function-

immunity provision barred Carothers’s direct-liability claim.

¶7.    After a hearing on the motion, the trial court dismissed Carothers’s direct-liability

claims. On October 5, 2015, the vicarious-liability claim proceeded to a bench trial wherein

the trial judge entered his findings of fact and conclusions of law. The trial court

characterized the collision as a “fender bender” and found that the matter was a simple-

negligence case. The trial court held that the claim was governed by the Mississippi Tort

Claims Act (MTCA), pursuant to section 11-46-9(1). The court entered a final judgment in

favor of the City, and Carothers’s claims were dismissed with prejudice.

¶8.    Carothers appeals and asserts several trial-court errors. Carothers alleges the trial

court erred when it failed to: (a) find that the relevant standard of care was simple

negligence; (b) determine that a traffic offense was committed; (c) construe the provisions

of the MTCA in conjunction with traffic regulations; and (d) find that the provisions for

traffic violations control claims of governmental immunity. Additionally, Carothers asserts

that City of Jackson v. Harris, 44 So. 3d 927 (Miss. 2010), renders Officer Jackson’s traffic

violations as reckless disregard, as a matter of law. Finally, she asserts the trial court erred



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by dismissing the direct-liability claims against the City.

¶9.    Because several of Carothers’s claims on appeal are related, we combine her claims

into two main issues: (1) whether the MTCA governs a claim of liability against a

governmental entity when the employee commits a traffic offense and (2) whether the trial

court erred by dismissing the direct-liability claims against the City. We find no reversible

error and affirm.

                                         ANALYSIS

       I.     Whether the MTCA governs a claim of liability against a governmental
              entity when the employee commits a traffic offense.

¶10.   “The standard of review for a judgment entered following a bench trial is well

settled.” Maldonado v. Kelly, 768 So. 2d 906, 908 (¶4) (Miss. 2000). “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.” Id. (citations omitted). “This Court reviews errors of

law, which include the proper application of the MTCA, de novo.” Id. (citations omitted).

¶11.   Carothers argues that the trial-court judge improperly found that the City was immune

from liability. The relevant portion of the MTCA provides:

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

Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012). “The MTCA is the exclusive remedy for

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filing a lawsuit against governmental entities and [their] employees.” City of Jackson v.

Brister, 838 So. 2d 274, 278 (¶13) (Miss. 2003).

¶12.   “In order for a municipality to waive governmental immunity from suit, the . . .

employee [in question] must be found to have acted [with] reckless disregard [for] the safety

and well-being of any person not engaged in criminal activity at the time of injury.” Pearl

River Cty. v. Bethea, 196 So. 3d 1012, 1015 (¶12) (Miss. Ct. App. 2015) (internal quotation

marks and citation omitted). Although reckless disregard is not defined in the statute, the

supreme court previously defined reckless disregard as “the voluntary wrongful doing by a

motorist of an improper or wrongful act, [or] the voluntary refraining from doing a proper

or prudent act[,] when such an act or failure to act evinces an entire abandonment of any care,

and heedless indifference to results which may follow[.]” Id. (citing Maldonado v. Kelly,

768 So. 2d 906, 909 (¶8) (Miss. 2000)).

¶13.   First, Carothers argues that the trial judge should have found that Officer Jackson

committed a traffic violation by tailgating her vehicle, which violated Mississippi Code

Annotated section 63-3-619 (Rev. 2013). This section applies to traffic regulations but does

not address governmental immunity.             Section 11-46-9(1)(c) governs suits against

governmental entities where the “act[s] or omission[s] of an employee . . . engaged in the .

. . duties or activities relating to police . . . protection” result in a claim for liability. Miss.

Code Ann. § 11-46-9(1)(c).

¶14.   Although Carothers’s claim arose after a traffic violation, this Court previously held

that guilt of a traffic violation does not render the provisions of the MTCA inapplicable.



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Jackson v. Payne, 922 So. 2d 48, 52 (¶9) (Miss. Ct. App. 2006). Carothers must show more

than mere negligence to establish reckless disregard and remove the City’s immunity. Id.

This claim is without merit.

¶15.   Next, Carothers argues that Mississippi Code Annotated section 63-3-205 (Rev.

2013), which governs traffic regulations and rules of the road, controls section 11-46-9(1)

and the MTCA. She also asserts that the trial judge erred when he failed to construe the two

statutes together. Carothers contends that the City must forego its immunity because Officer

Jackson was not responding to an emergency nor pursuing a suspect at the time of the

collision. Section 63-3-205 provides that “no driver of any authorized emergency vehicle

shall assume any special privilege under this chapter except when such vehicle is operated

in response to an emergency call or in the immediate pursuit of an actual or suspected

violator of the law.” Miss. Code Ann. § 63-3-205 (emphasis added).

¶16.   Here, the statutory language is unambiguous and serves as general guidelines for

traffic regulations and rules of the road. The language neither instructs nor implies that

section 63-3-205 should be read in conjunction with the provisions of section 11-46-9(1)(c)

of the MTCA. Moreover, Carothers misapplies the supreme court’s holding in Harris, 44

So. 3d 927, when she argues that “Mississippi police operating vehicles [are] not entitled to

immunity unless . . . responding to an emergency . . . or in pursuit . . . of [a] suspected

violator.” This assessment is erroneous; the supreme court analyzed the facts of Harris and

determined that the municipality was vicariously liable for a police officer’s traffic offense

that resulted in the death of a citizen. Id. at 933 (¶27). The municipality sought to



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disassociate itself from the officer to preserve its immunity. Id. at 932 (¶20). However, the

supreme court held that the police officer acted with reckless disregard when he traveled

through a red light at an excessive rate of speed. Id. at 933 (¶24). As a result of the

employee’s reckless disregard, the governmental entity was not entitled to immunity.

¶17.   Consistent with the supreme court analysis in Harris, reckless disregard is also the

appropriate standard here, rather than negligence. Section 11-46-9 governs suits against

governmental entities. Therefore, section 63-3-205 neither controls nor affects a

municipality’s grant of immunity pursuant to the MTCA. This claim is without merit.

¶18. Finally, Carothers contends the trial court erred when it applied a reckless-disregard

standard rather than a simple-negligence standard. She asserts that Officer Jackson acted

with reckless disregard when he committed a traffic violation. This Court has required more

than a showing of mere negligence in suits involving government entities. Jackson, 922 So.

2d at 52 (¶9). Furthermore, this Court has held that reckless disregard is the standard

required to overcome the protection of immunity. Bethea, 196 So. 3d at 1015 (¶12). At the

trial-court level, the plaintiff bears the “burden of proving reckless disregard by a

preponderance of the evidence.” Hinds Cty. v. Burton, 187 So. 3d 1016, 1022 (¶17) (Miss.

2016) (internal quotations marks and citations omitted). Here, Carothers did not meet this

burden; she did not present any evidence indicating that Officer Jackson was reckless in the

operation of his vehicle or acted with willful or wanton conduct, which resulted in the

accident.

¶19.   Here, the trial judge characterized the vehicle collision as a “fender bender” and



                                             7
declared the matter a simple-negligence case. In his final judgment, the trial judge

referenced Joseph v. City of Moss Point, 856 So. 2d 548 (Miss. Ct. App. 2003), which

contained facts analogous to the present matter. In Joseph, a police officer, while stopped

at a red light, was reading a warrant and not paying attention to the traffic around him. When

the officer noticed that the cars beside him were moving, he took his foot off the brake and

rear-ended the car in front of him. Similarly, while “Officer [Jackson] was remiss in [not]

paying attention to [the] traffic directly in [front of him],” his decisions to take his eyes off

the road and retrieve a cell phone do not evince “a blatant exhibition of recklessness.” Id. at

551 (¶9).

¶20.   The trial court applied the correct legal standard and did not err when it found that the

City was immune from liability. The ruling was supported by substantial, credible, and

reasonable evidence. Officer Jackson, while working for a governmental entity, did in fact

cause the rear-end collision when he took his eyes off the road. However, his conduct simply

did not rise to the level of reckless disregard required by the supreme court. Thus, the City

was entitled to immunity under the MTCA pursuant to section 11-46-9(1)(c). The trial judge

did not abuse his discretion.

       II.    Whether the trial court erred by dismissing the direct-liability claims
              against the City.

¶21.   Carothers argues the trial court erred when it dismissed her direct-liability claims

against the City. She contends that she could have proven multiple sets of facts. She argues

the City failed to admit vicarious liability for the negligent actions of Officer Jackson. She

further asserts that the City was negligent in its hiring, retention, training, supervision, and

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entrustment of Officer Jackson.

¶22.   The City contends that Carothers is procedurally barred from contesting the trial

court’s dismissal of the direct-liability claims. The City asserts that Carothers failed to raise

the issue in her notice of appeal, and therefore the issue is not properly before this Court. As

a substantive argument, the City contends that it admitted vicarious liability, which rendered

the direct-liability claims moot. The City further argues that the trial court did not find

reckless disregard or any underlying tort to substantiate a claim for negligence, which renders

the claim moot.

¶23.   The supreme court has held that “a trial court’s grant or denial of a motion to dismiss

under Mississippi Rule of Civil Procedure 12(b)(6) . . . raises a question of law that is

reviewed de novo.” Little v. Miss. Dep’t of Transp., 129 So. 3d 132, 135 (¶5) (Miss. 2013)

(internal citation omitted). “[I]n order to grant a Rule 12(b)(6) motion to dismiss, there must

appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could

be prove[n] in support of the claim.” Id.

¶24.   The City contends that Carothers is procedurally barred from contesting the trial

judge’s dismissal of the direct-liability claims. The City argues that Carothers failed to

designate the issue in her notice of appeal. Pursuant to Mississippi Rule of Appellate

Procedure 3(c), an appellant must “designate as a whole or in part the judgment or order

appealed from.” In her Statement of Issues for Appeal, filed December 21, 2015, there is no

evidence of Carothers’s intent to appeal the order dismissing her claims for direct liability

against the City.

¶25.   This Court previously held “that if the statement of issues and the appellant’s brief


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clearly show the basis for the appeal, then the issue can be addressed on the merits.”

Herndon v. Miss. Forestry Comm'n, 67 So. 3d 788, 795 (¶19) (Miss. Ct. App. 2010) (citing

Fletcher v. Lyles, 999 So. 2d 1271, 1277 (¶25) (Miss. 2009)). “Under Rule 3(c) of the

Mississippi Rules of Appellate Procedure, an appeal shall not be dismissed for informality

of form or title of the notice of appeal.” Herndon, 67 So. 3d at 795 (¶19) (citation omitted)

(quoting M.R.A.P. 3(c)). “Consequently, we will consider the merits of this issue on appeal.”

Id.

¶26.   Under the provisions of the MTCA and the doctrine of respondeat superior, the City

may be liable for damages caused by acts of reckless disregard committed by an employee

acting in the scope of his employment. At the trial-court level, the City sought to have the

direct-liability claims dismissed. Finding no caselaw from our state appellate courts directly

on point to the issue before the trial judge, the City relied on the federal district-court case

of Davis v. ROCOR International, No. 3:00-CV-864, 2001 U.S. LEXIS 26216 (S.D. Miss.

Dec. 19, 2001).

¶27.   In Davis, ROCOR International sought summary judgement on claims asserted by the

plaintiff for negligent hiring, training, supervision, and entrustment of an employee. Id. at

*17. ROCOR admitted vicarious liability for damages caused by the negligent actions of the

employee. Id. The district-court judge, after conducting an analysis under Mississippi

caselaw1 regarding negligent entrustment, hiring, training, and retention, determined there


       1
         Freeman v. Lester Coggins Trucking, Inc. 771 F.2d 860, 861 n.1 (5th Cir. 1985)
(citing Brown Oil Tools v. Schmidt, 246 Miss. 238, 148 So. 2d 685, 687 (1963)) (holding
“that liability cannot be imposed on an employer on a theory of negligent entrustment unless
the employee is first found to be negligent”); Love v. McDonough, 758 F. Supp. 397, 400
(S.D. Miss. 1991) (holding that the “established law in Mississippi is that there is no liability

                                               10
was no need to show that an employer was negligent after it admitted vicarious liability. Id.

at **18-20.

¶28.   The district-court judge found “that allowing a plaintiff to maintain a negligent

entrustment claim in a case [where] vicarious liability is admitted is unduly prejudicial to the

defendant as ‘permitting proof of previous misconduct of the employee would only serve to

inflame the [fact-finder].’” Id. at *20 (citations omitted). Ultimately, the district-court judge

noted that the court was also unable to find any Mississippi caselaw that would “allow [ ] a

plaintiff to recover damages on claims of negligent hiring, training, [ ] retention, [or

entrustment] in addition to those that resulted because of the negligent acts of an employee.”

Id. at *23. The district court found that the plaintiff’s direct-liability claims against ROCOR

merged with the claims against the employee. Id. And since the employer conceded liability,

there was no basis for allowing the plaintiffs to proceed on the direct-liability claims. Id.

¶29.   This Court adopts the foregoing analysis as set forth in Davis. Notwithstanding the

procedural bar, we find that the circuit court’s dismissal of the direct-liability claims,

pursuant to Rule 12(b)(6), was proper. The City admitted vicarious liability. Thus, there was

no need to show that it was negligent in hiring, training, retaining, or entrusting Officer

Jackson. Moreover, regardless of whether the City was negligent, the claim arose out of

police-protection activities. § 11-46-9(1)(c). Therefore, the City could not be held liable



for negligent entrustment of a vehicle without a subsequent negligent use of that vehicle”);
Thatcher v. Brennan, 657 F. Supp. 6, 10 (S.D. Miss. 1986) (quoting Jones v. Toy, 476 So.
2d 30, 31 (Miss. 1985)) (holding “that an employer has a duty to exercise due care in hiring
its employees and will be charged with an employee’s negligence and be liable for resulting
injuries []if the [employer] knew or should have[] known of the employee’s incompetence”
(quotation marks omitted)).

                                               11
unless “the employee acted [with] reckless disregard.” Id.; cf. Little v. Schafer, 319 F. Supp.

190, 191-92 (S.D. Tex. 1970). We affirm.

¶30. THE JUDGMENT OF THE YALOBUSHA COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.

    LEE, C.J., ISHEE, CARLTON, FAIR, WILSON AND WESTBROOKS, JJ.,
CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., NOT
PARTICIPATING.




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