City of Clinton, Mississippi v. Patrice Tornes
City of Clinton, Mississippi v. Patrice Tornes
Opinion
¶ 1. This is an interlocutory appeal from the denial of summary judgment. Because the defendants-a municipality and its police officer-cannot be held liable for the plaintiff's claims under the Mississippi Tort Claims Act (MTCA), 1 we reverse the denial of summary judgment and render judgment in the defendants' favor.
Background Facts and Procedural History
¶ 2. On the afternoon of May 11, 2015, Officer Michael Kelly was responding to a call that an intoxicated person was lying unconscious on the sidewalk outside the Days Inn in Clinton, Mississippi. While en route, his police vehicle collided with Patrice Tornes's car.
¶ 3. According to Officer Kelly, he drove south through the neighboring parking lot, which belongs to Tractor Supply Inc. Because some items in the parking lot blocked his view of the Day's Inn, "he pulled out further [sic] than normal so as to be able to see the subject that was the reason for his being there." Officer Kelly "stopped so he could survey the area and visually locate the individual from a distance before making personal contact with the subject." And as he was stopped, Tornes, who was traveling west on the road between the Day's Inn and Tractor Supply, clipped the push bumper of his police vehicle with her right wheels. But according to Tornes, Officer Kelly's vehicle was not stopped. Instead, Tornes "was proceeding in a travel lane in the parking lot when suddenly and without warning [her rear bumper] was struck by Officer Kelly's vehicle."
¶ 4. Tornes sued Officer Kelly and his employer, the City of Clinton, in the County Court of Hinds County. She claimed Officer Kelly's "reckless and negligent actions directly caused the subject accident." Specifically, she alleged Officer Kelly "caused his vehicle to be driven in a careless, negligent, and reckless manner and without due regard for the safety and convenience of Patrice Tornes, and without giving any warning sign or proper signal of the approach of said vehicle." And she asserted the City of Clinton was "vicariously liable for its employee's careless, negligent, and reckless operation of his vehicle while acting in the course and scope of his employment as an officer for the City of Clinton Police Department." She also claimed the City was liable for its own actions-specifically, "its negligent training of its employee in how to properly operate his motor vehicle in accordance for the safety of others" and its negligent entrustment of the subject vehicle to Officer Kelly on the day the wreck occurred.
¶ 5. Both Officer Kelly and the City moved for summary judgment, claiming immunity from suit.
See
Mitchell v. City of Greenville
,
¶ 6. Officer Kelly and the City sought an interlocutory appeal, which this Court granted.
See
Discussion
¶ 7. This Court reviews the denial of summary judgment de novo, viewing all evidence in the light most favorable to the nonmovant-in this case Tornes.
Mitchell
,
I. No Individual Liability
¶ 8. First, Officer Kelly cannot be held individually liable. While the MTCA permits a government employee to "be joined in an action against a governmental entity in a
representative
capacity if the act or omission complained of is one for which the governmental entity may be liable," the MTCA makes clear "no employee shall be held
personally
liable for acts or omissions occurring within the course and scope of the employee's duties."
II. Police-Protection Immunity
¶ 9. Second, to the extent Tornes seeks to hold the City liable for Officer Kelly's actions, the City enjoys police-protection immunity.
¶ 10. The MTCA generally waives "the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment[.]"
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[.]
¶ 11. Quoting
Maye v. Pearl River County
, Tornes suggests " 'reckless,' according to the circumstances, may mean desperately heedless, wanton or willful,
or
it may mean only careless, inattentive or negligence."
Maye v. Pearl River Cty.
,
¶ 12. But what Tornes overlooks is that, in the very next sentence in
Maye
, the Court clarifies that, while reckless generally may mean wanton or willful or it may mean negligence, "[i]n the context of the statute"-i.e., Section 11-46-9(1)(c) -"reckless must connote 'wanton or willful,'
because immunity lies for negligence
."
¶ 13. Thus, to be "reckless" for purposes of Section 11-46-9(1)(c), the conduct must be "willful or wanton," not merely negligent.
Maye
,
¶ 14. In
Maye
, this Court applied this higher-than-negligence standard to find a deputy sheriff had acted with reckless disregard when he blindly backed out of a parking space, up an incline, and rammed into a car that had turned into the parking lot. In that case, "[w]ith conscious indifference to the consequences," the deputy sheriff had "backed out knowing he could not see what was behind him."
Maye
,
¶ 15. Here, the facts do not support the same level of conscious indifference to the consequences. Since this is the summary-judgment stage, we assume Tornes's version of events is true-that Officer Kelly hit her bumper and not vice versa. But unlike
Maye
, from the level of damage to Tornes's car, it is not obvious he was going "much too fast."
¶ 16. Similarly, in
Joseph v. City of Moss Point
,
¶ 17. The evidence, when viewed in Tornes's favor, shows Officer Kelly had been remiss but not reckless as he drove through the parking lot to the Days Inn. Because his actions did not rise above simple negligence, police-protection immunity applied. And the City is entitled to summary judgment on Tornes's claims based on Officer Kelly's actions.
III. Discretionary-Function Immunity
¶ 18. Finally, the City is entitled to summary judgment on Tornes's claims it acted negligently in training Officer Kelly and entrusting him with one of its police vehicles.
¶ 19. We note prior opinions have found that training police officers and equipping them with police vehicles are "activities relating to police protection" entitled to police-protection immunity.
See, e.g.
,
McGrath v. City of Gautier
,
¶ 20. Under Section 11-46-9(1)(d), the City "shall not be liable for any claim ... [b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]"
¶ 21. Applying this test to the claim of negligent supervision of police officers, this Court has answered both questions affirmatively.
Powell
,
¶ 22. Tornes's claims that the City was negligent in training Officer Kelly to operate a police vehicle and entrusting Officer Kelly with a police vehicle both challenge "[t]he manner in which a police department supervises, disciplines and regulates
its police officers[.]"
Conclusion
¶ 23. Because the MTCA exempts both Officer Kelly and the City from liability on Tornes's claims, the trial court erred in denying their motion for summary judgment. We reverse the judgment of the trial court and render a judgment in both defendants' favor.
¶ 24. REVERSED AND RENDERED.
WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.
It has never even been suggested that Tornes was engaged in criminal activity at the time she was injured.
Notably, Tornes does not attempt to rebut or refute the City's discretionary-function-immunity claim on appeal. Instead, she merely argues that she presented sufficient evidence to the trial court to support her claim of negligent entrustment. But the fact she can otherwise establish a negligence claim against the City matters not. Discretionary-function immunity shields the City from liability "whether or not the discretion be abused."
Reference
- Full Case Name
- CITY OF CLINTON, Mississippi and Officer Michael Kelly v. Patrice TORNES
- Cited By
- 20 cases
- Status
- Published