                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2001-CA-01271-SCT

CITY OF JACKSON, MISSISSIPPI

v.

LANIER LIPSEY


DATE OF JUDGMENT:                           7/25/2001
TRIAL JUDGE:                                HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:                  HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    HILTON RAY MILLER
                                            TERRY WALLACE
                                            J. ANTHONY WILLIAMS
ATTORNEYS FOR APPELLEE:                     PIETER JOHN TEEUWISSEN
                                            DALE DANKS, JR.
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
DISPOSITION:                                AFFIRMED - 01/09/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE PITTMAN, C.J., CARLSON AND GRAVES, JJ.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    The City of Jackson appeals the ruling of the Circuit Court of the First Judicial

District of Hinds County, which found the City and one of its police officers acted in

reckless disregard in causing the automobile accident which occurred between the officer and

Lanier Lipsey, thus waiving immunity under the Mississippi Torts Claim Act (MTCA), Miss.

Code Ann. §§ 11-46-1 to -23 (Rev. 2002). Finding the proper standard was applied in
determining the acts of the City and the police officer rose to the level of reckless disregard,

this Court affirms the judgment of the circuit court.

¶2.    Lanier Lipsey ("Lipsey") was injured on May 27, 1999, when his vehicle was struck

by another vehicle operated by Jackson Police Department Officer Delma Gill Baker

("Baker"). Pursuant to Miss. Code Ann. § 11-46-1, Lipsey provided notice to the City of

Jackson of his claim against Baker, individually1 and in his official capacity, and the City of

Jackson (collectively "the City"). The City of Jackson failed to accept liability and denied

Lipsey's claim.

¶3.    On August 16, 2000, Lipsey filed this action against the City and Officer Baker

alleging the actions of Officer Baker constituted reckless disregard and were the proximate

cause of the accident. Following a bench trial, the trial court issued its Memorandum

Opinion Subsequent to Bench Trial finding that Officer Baker and the City acted with

reckless disregard. The trial court entered a final judgment             which incorporated the

memorandum opinion, that judgment being in favor of Lipsey and against the City and

Officer Baker, in his official capacity, in the amount of $32,057.09. The City timely filed this

appeal.

                FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶4.    At approximately 1:30 a.m. on May 27, 1999, Lipsey was returning home from his

second job with Service Master. Lipsey was traveling on McDowell Road in a westerly

direction. At the same time, Officer Baker was responding to an emergency dispatch


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          Because the parties agreed Baker was acting within the course and scope of his employment,
the trial court dismissed the individual claim against Baker.

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regarding an auto burglary in progress. At the time of the dispatch, Officer Baker was in his

patrol car in a parking lot at the intersection of Woody Drive and Terry Road. Electing to

respond to the dispatch although he was neither the primary nor secondary unit, Officer

Baker proceeded east on McDowell Road.

¶5.    At the bench trial, Officer Baker and Lipsey were the only two witnesses called to

testify regarding the accident. Each witness recounted a very different version of events from

the night of May 27, 1999. Officer Baker testified that as soon as he pulled out in response

to the dispatch, he turned on his blue lights and siren. Officer Baker learned the subjects

were seen running through the Jackson Square shopping center. In an attempt to cutoff the

subjects, Officer Baker made a left turn off of McDowell Road onto Kimbrough Drive.

Officer Baker testified that even with his blue lights and siren engaged, Lipsey did not see

Baker nor attempt to stop; therefore, the two vehicles collided. Officer Baker stated that the

speed limit for eastbound traffic on his side of the road was 40 mph and that the speed limit

for westbound traffic on Lipsey’s side of the road was 30 mph. Officer Baker testified that

he determined Lipsey to have been traveling between 40 and 45 mph, and he stated he was

traveling between 45 and 50 mph.

¶6.    Officer Baker testified that after the accident, he radioed the police dispatcher to have

both Sergeant Dorr and American Medical Response (“AMR”) dispatched to the accident

scene. While Sergeant Dorr was investigating the accident, Officer Baker stated he smelled

the odor of an intoxicant in Lipsey's vehicle. Officer Baker then called Officer Richardson

to the scene to administer a blood-alcohol test. Officer Richardson accompanied Lipsey to

Central Mississippi Medical Center where Lipsey's blood was tested for alcohol

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approximately one hour after the accident. Lipsey's blood alcohol level registered at 0.02.

Officer Richardson testified Lipsey was never charged with a DUI because his blood alcohol

limit was not over the legal limit of 0.10.2 Officer Richardson agreed that 0.02 was an almost

nominal level.

¶7.    Officer Baker admitted to being involved in six other accidents while being employed

with the Jackson Police Department ("JPD"). Of those six accidents, Office Baker stated he

had been charged with two of those accidents.

¶8.    Lipsey's testimony differed greatly from Officer Baker's testimony. Lipsey testified

he was traveling in a westerly direction on McDowell Road in the far right lane. However,

Lipsey testified Officer Baker was operating his vehicle without headlights, blue lights or a

siren. Lipsey testified he had no warning and no time to react to avoid the collision because

Officer Baker turned so suddenly in front of his vehicle. Lipsey also stated he knew the

speed limit on McDowell Road to be 35 mph, and he was traveling approximately 35 or 40

mph at the time of impact.

¶9.    Lipsey testified he received head, neck and lower back injuries which caused him to

miss two weeks of work. Lipsey denied having anything to drink the night of the accident,

but did state his brother, who was a passenger in his car, had been drinking.

¶10.   As stated previously, the accident was investigated by Sergeant Dorr who concluded

that Officer Baker failed to yield the right-of-way to Lipsey. Sergeant Dorr noted there was

no improper driving by Lipsey.


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           Miss. Code Ann. § 63-11-23 (2) was amended in 2002 to change the legal limit from 0.10
to 0.08.

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¶11.   Although Lipsey’s spouse testified, two other witnesses were called to testify, but the

trial court determined their testimony provided "little or no benefit for the resolution of the

issues in this case" and their testimony was therefore not addressed in the memorandum

opinion.

¶12.   The trial judge, as the fact-finder, determined that Officer Baker was attempting to

apprehend the suspects without drawing attention to his vehicle's approach by failing to turn

on his headlights, blue lights or siren. The trial judge held this conduct was in reckless

disregard to other citizens lawfully traveling on McDowell Road. The trial judge also

concluded the City of Jackson was on notice due to Office Baker's poor driving record.

¶13.   The trial judge also determined Lipsey incurred $2,239.09 in medical expenses,

$2,800.00 in property damage to his car and $2,018.00 in lost wages. The trial court also

awarded Lipsey $25,000 in damages for past physical pain and suffering and mental anguish.

Therefore, a judgment in the amount of $32,057.09 was entered against the City of Jackson

and Officer Baker in his official capacity as an officer of the JPD.

                                       DISCUSSION

¶14.   This Court recognizes that the trial judge, sitting in a bench trial as the trier of fact,

has the sole authority for determining the credibility of the witnesses. Rice Researchers,

Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss. 1987); Hall v. State ex rel. Waller, 247 Miss.

896, 903, 157 So.2d 781, 784 (1963). Where there is conflicting evidence, this Court must

give great deference to the trial judge’s findings. McElhaney v. City of Horn Lake, 501

So.2d 401, 403 (Miss. 1987). This Court reviews errors of law, including the proper



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application of the Mississippi Tort Claims Act, de novo. City of Jackson v. Perry, 764 So.2d

373, 376 (Miss. 2000) (citing Cooper v. Crabb, 587 So.2d 236, 239 (Miss. 1991)).

       I.     WHETHER UNDER THE MISSISSIPPI TORT CLAIMS ACT,
              THE CITY OF JACKSON SHOULD BE GRANTED IMMUNITY
              WHEN IT RESPONDS TO AN EMERGENCY DISPATCH OF A
              CRIME IN PROGRESS.

       II.    WHETHER THE TRIAL COURT ERRED IN FINDING
              "RECKLESS DISREGARD" WHEN OFFICER BAKER
              TESTIFIED HE HAD HIS LIGHTS AND SIREN ON AND WAS
              RESPONDING TO AN EMERGENCY DISPATCH.

¶15.   The City argues the trial court erred in finding Officer Baker was acting in reckless

disregard to the safety of others when he was responding to an emergency dispatch. The City

also argues that the care used in Officer Baker's pursuit was reasonable and necessary, and

that because Officer Baker did not act in reckless disregard, the MTCA exempts the City

from all liability. Lipsey, however, argues the trial court was correct in its finding that

Officer Baker's conduct amounted to reckless disregard to all citizens lawfully traveling on

McDowell Road. Lipsey also argues the trial court was correct in concluding the City was

on notice due to Officer Baker's poor driving record. Therefore, according to Lipsey, Officer

Baker and the City waived any claim of governmental immunity under the MTCA.

¶16.   Miss. Code Ann. § 11-46-9 states in pertinent part:

       (1) A governmental entity and its employees acting within the course and
       scope of their employment or duties shall not be liable for any claim:
       (c) Arising out of any act or omission of an employee of a governmental entity
       engaged in the performance or execution of duties or activities relating to
       police or fire protection unless the employee acted in reckless disregard of the
       safety and well-being of any person not engaged in criminal activity at the
       time of injury;

(emphasis added). This Court has defined reckless disregard:

                                              6
              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.

              "Disregard" of the safety of others is at least negligence if not gross
       negligence. Because "reckless" precedes "disregard," the standard is elevated.
       As quoted above from Black's Law Dictionary, "reckless," according to the
       circumstances, "may mean desperately heedless, wanton or willful, or it may
       mean only careless, inattentive or negligence." Id. at 1270 (emphasis added).
       In the context of the statute, reckless must connote "wanton or willful,"
       because immunity lies for negligence. And this Court has held that "wanton"
       and "reckless disregard" are just a step below specific intent. See Evans v.
       Trader, 614 So.2d 955, 958 (Miss. 1993).

Turner v. City of Ruleville, 735 So.2d 226, 229-30 (Miss. 1999). "Our case law indicates

'reckless disregard' embraces willful or wanton conduct which requires knowingly and

intentionally doing a thing or wrongful act." Id. at 230 (citing Raney v. Jennings, 248 Miss.

140, 147, 158 So.2d 715, 718 (1963)).

¶17.   Recently this Court has found several instances where a governmental entity has

waived its immunity under the MTCA by acting in reckless disregard of the safety and well-

being of citizens not engaged in criminal acts. See City of Jackson v. Perry, 764 So. 2d 373

(Miss. 2000); Maye v. Pearl River County, 758 So. 2d 391 (Miss. 1999); Turner v. City of

Ruleville, 735 So. 2d 226 (Miss. 1999). In Perry, at the time of the accident, a City of

Jackson police officer was speeding without using his siren or blue lights. 764 So. 2d at 375.

At trial it was shown the officer was not responding to an emergency call, but was going to

dinner. Id. This Court held the officer's conduct "showed a reckless disregard of the safety

and well-being of others." Id. at 378.

¶18.   Similarly in Maye, a Pearl River County Deputy Sheriff backed his car up an incline

to the entrance of a parking lot. 758 So. 2d at 392. He collided with another driver who had

                                              7
pulled into the parking lot. Id. Although he checked his mirrors before backing up his car,

the deputy sheriff testified he could not see the road from the parking lot because his view

was obstructed. Id. We held the sheriff's deputy acted with a conscious indifference to the

consequences of his actions, and those actions rose above "simple negligence to the level of

reckless disregard of the safety and well-being of others." Id. at 395.

¶19.   Finally in Turner, (which involved a Miss.R.Civ.P. 12(b)(6) dismissal) the plaintiff's

complaint alleged that an officer employed by the City of Ruleville Police Department

pulled over a visibly intoxicated driver for operating his vehicle in an erratic manner. 735 So.

2d at 227. Even though the driver was incapable of driving his car, the officer allowed him

to continue driving. Id. The driver was later involved in a collision with Turner. Id. This

Court held that the complaint stated a claim by alleging that the officer acted willfully and

wantonly, which are synonymous with reckless disregard, in intentionally allowing a visibly

intoxicated person to continue driving. Id. at 230.

¶20.   Lipsey argues that the facts here are similar to the facts of the three cases cited above.

Officer Baker was responding to an attempted auto burglary although he was not the primary

nor secondary unit. The trial judge found from disputed testimony that Officer Baker was

responding to the emergency dispatch without headlights, blue lights, or his siren in the

hopes of not drawing attention to his vehicle. Baker admitted to speeding prior to turning in

front of Lipsey. The City also had knowledge of Baker's six prior accidents and he was

“chargeable” for at least two of those accidents. As this Court found in Perry, Maye, and

Turner, Lipsey argues there is overwhelming evidence to conclude the actions of Officer



                                               8
Baker and the actions of the City rose to the level of reckless disregard to the safety and

well-being of others.

¶21.   However, the City argues the facts of the instant case are distinguishable as were the

facts in Maldonado v. Kelly, 768 So. 2d 906 (Miss. 2000). In Maldonado, a deputy sheriff

was approaching a very dangerous intersection. Id. at 908. Before proceeding through the

intersection, the deputy sheriff came to a complete stop, looked to his right, then to his left

but saw no oncoming traffic. Id. However, the deputy sheriff's view was partially blocked

on his right, and a collision occurred. Id. This Court distinguished the facts of Maldonado

from Perry, Maye, and Turner and determined:

       The common denominator in these cases is that the conduct involved evinced
       not only some appreciation of the unreasonable risk involved, but also a
       deliberate disregard of that risk and the high probability of harm involved. . .
       . There is no indication that Maldonado acted with deliberate disregard to the
       consequences of attempting to cross the intersection. To the contrary, there is
       every indication that Maldonado was aware of the nature of the intersection
       and took specific steps to avoid the collision.

Id. at 910-11. This Court held the deputy sheriff's actions did not rise to the level of reckless

disregard. Id. at 911.

¶22.   The City contends that like the deputy sheriff in Maldonado, Officer Baker's actions

did not rise to the level of reckless disregard. He was responding to an emergency dispatch,

thus, he was acting in the usual course and scope of an officer's duty. The City argues it

should be granted immunity under Mississippi law.

¶23.   The trial court found as a fact, from disputed testimony, that Officer Baker responded

to the emergency dispatch without turning on his headlights, blue lights or siren in an attempt

to cut off the suspected auto thieves, and in so finding, the trial court held Officer Baker's

                                               9
conduct rose to the level of reckless disregard to the safety of others. The trial judge, sitting

in a bench trial as the trier of fact, has the sole authority for determining the credibility of the

witnesses. See Rice Researchers, Inc. v. Hiter, 512 So.2d at 1265; Hall v. State ex rel.

Waller, 247 Miss. at 903, 157 So.2d at 784.

       The trial judge saw these witnesses testify. Not only did [s]he have the benefit
       of their words, [s]he alone among the judiciary observed their manner and
       demeanor. [S]he was there on the scene. [S]he smelled the smoke of battle.
       [S]he sensed the interpersonal dynamics between the lawyers and the
       witnesses and [her]self. These are indispensable. Madden v. Rhodes, 626
       So.2d 608, 625 (Miss. 1993)(quoting Culbreath v. Johnson, 427 So.2d 705,
       708 (Miss. 1983)).

Rochell v. State, 748 So.2d 103, 110 (Miss. 1999).

¶24.   Finding that the trial court applied the proper standard in determining the acts of

Officer Baker and the City of Jackson rose to the level of reckless disregard to the safety of

others, this argument is without merit.

       III.    WHETHER THE JUDGMENT OF THE TRIAL COURT WAS
               EXCESSIVE AND AGAINST THE OVERWHELMING WEIGHT
               OF THE EVIDENCE WHEN LIPSEY IGNORED THE BLUE
               LIGHTS OF THE POLICE AND ONLY SUSTAINED $2,239.00
               IN MEDICAL BILLS.

¶25.   The findings of a circuit court judge sitting without a jury "are safe on appeal where

they are supported by substantial, credible, and reasonable evidence." City of Jackson v.

Perry, 764 So.2d at 376 (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss. 1993); Sweet

Home Water & Sewer Ass'n v. Lexington Estates, Ltd., 613 So.2d 864, 872 (Miss. 1993);

Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss. 1992)). In Simpson v. City of

Pickens, 761 So. 2d 855 (Miss. 2000), this Court adopted the preponderance of evidence

standard of proof to be applied in all Miss. Code Ann. § 11-46-9(1)(c) cases.

                                                10
       We hold that a governmental agency and its employees acting within the
       course and scope of their employment or duties shall not be liable for any
       claim arising out of any act or omission of an employee of a governmental
       entity engaged in the performance or execution of duties or activities relating
       to police or fire protection unless it is proved by a preponderance of the
       evidence that the employee acted in reckless disregard of the safety and well-
       being of any person (claimant) not engaged in criminal activity at the time of
       injury.

Id. at 859. Because we have affirmed the trial court's holding that Officer Baker acted in

reckless disregard to the safety of others by failing to use his headlights, blue lights or siren,

we will only address this issue as it relates to the award of damages.

¶26.   The City argues the amount of damages awarded to Lipsey was excessive and was not

supported by the evidence. Lipsey, however, argues the trial court correctly weighed all

relevant evidence in determining the amount of damages which were to be awarded.

¶27.   Without objection from opposing counsel, the trial court admitted into evidence

Lipsey's exhibit which showed his medical expenses totaled $2,239.00. Lipsey also testified

he lost wages as a result of the accident from his two jobs in the amount of $2,018.00 and

the damage to his car totaled $2,800.00. Lipsey also testified in great detail about the pain

he suffered the two weeks after the accident. He was unable to work either job. He was

barely able to move and relied on his family to assist him during that two-week period. He

was required to take pain medication for the injuries to his lower back.

¶28.   The trial court determined Lipsey's undisputed damages, consisting of medical bills,

lost wages and damage to his vehicle, amounted to $7,057.09. The trial court then

determined Lipsey was entitled to $25,000 for past physical pain and suffering and mental

anguish.


                                               11
¶29.      Considering the evidence the trial court evaluated in determining damages for Lipsey,

the damages award is not "unreasonable in amount as to strike mankind at first blush as being

beyond all measure, unreasonable in amount and outrageous." Harvey v. Wall, 649 So.2d

184, 187 (Miss. 1995)(citing Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945

(Miss. 1992)). Therefore, this argument is without merit.

          IV.    WHETHER AN OFFICER'S DECISIONS WHILE DRIVING
                 ARE DISCRETIONARY OR MINISTERIAL.

¶30.      Relying on Mosby v. Moore, 716 So. 2d 551 (Miss. 1998), the City argues because

Officer Baker was in the pursuit of criminals, his actions were discretionary and immunity

should apply. However, the City completely ignores this Court's subsequent decision in

Jones v. Mississippi Department of Transportation, 744 So. 2d 256, 260 (Miss. 1999),

where we adopted the "public policy function test" which requires discretionary acts to be

in furtherance of public policy in order to be granted immunity.

          In determining whether governmental conduct is discretionary the Court must
          answer two questions: (1) whether the activity involved an element of choice
          or judgment; and if so, (2) whether the choice or judgment in supervision
          involves social, economic or political policy alternatives. Jones v. Miss. Dep't
          of Transp., 744 So.2d 256, 260 (Miss. 1999). Therefore, the Jones test
          requires a determination of (1) whether the supervision of security officers
          involves an element of choice or judgment; and if so (2) whether the choice or
          judgment involved social, economic, or political policy.

Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss. 2001).

¶31.      According to the first prong regarding the element of choice or judgment, Officer

Baker was required by law, pursuant to Miss. Code Ann. § 63-3-517 (Rev. 1996), to warn

other drivers by using his siren when he responds to an emergency call. Section 63-3-517

states:

                                                12
       The speed limitations set forth in this article shall not apply to authorized
       emergency vehicles when responding to emergency calls and the drivers
       thereof sound audible signal by bell, siren, or exhaust whistle. This section
       shall not relieve the driver of an authorized emergency vehicle from the duty
       to drive with due regard for the safety of all persons using the street, nor shall
       it protect the driver of any such vehicle from the consequence of a reckless
       disregard of the safety of others.

(emphasis added). Therefore, there was no element of choice or judgment in how Officer

Baker responded to the emergency dispatch.

¶32.   With regard to the second prong of the test concerning policy alternatives, this Court

determined in Bridges that immunity is only appropriate where the governmental entity can

prove the act occurred within a "policy-oriented decision making process." 793 So. 2d at 589.

Officer Baker was making no such policy-oriented decision. He was only responding to an

emergency dispatch. Therefore, this argument is without merit.




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                                      CONCLUSION

¶33.   The trial court did not err in finding Officer Baker and the City of Jackson acted with

reckless disregard to the safety and well-being of others, and thus, waived immunity under

the Mississippi Tort Claims Act. The damage award was supported by substantial evidence

and is, therefore, not excessive. The judgment of the trial court is affirmed.

¶34.   AFFIRMED.

    PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, DIAZ, EASLEY AND
GRAVES, JJ., CONCUR. WALLER, J., NOT PARTICIPATING.




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