The opinion of the court was delivered by: Pittman, Presiding Justice
DATE OF JUDGMENT: 06/16/95 TRIAL JUDGE: HON. R. KENNETH COLEMAN COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION REVERSED AND REMANDED - 6/4/98
DATE OF JUDGMENT: 05/14/96 TRIAL JUDGE: HON. R. KENNETH COLEMAN COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION REVERSED AND REMANDED - 6/4/98
MOTION FOR REHEARING FILED:
¶1. The plaintiff, Daphne Mosby, filed suit on April 7, 1994, on behalf of herself and her daughter, Latasha Mosby, against the defendants, Herbert Jeffries, the City of Oxford, and Officers Andrew Moore and John Doe. The suit was filed as a result of an automobile accident in which the defendant, Herbert Jeffries, rear-ended the plaintiffs' car while being pursued by the Oxford police. The accident occurred on December 24, 1992.
¶2. Defendants filed a motion for summary judgment on the basis that the suit was barred by the doctrine of sovereign immunity as to the City, and also as to the police officers because the officers were sued only in their official capacities. The trial court granted summary judgment for the defendants on June 16, 1995, holding that the officers had not been sued individually and that the defendants were protected by sovereign immunity. Mosby moved the court to voluntarily dismiss Jeffries from the suit without prejudice. Mosby is appealing the June 16, 1995, decision and that appeal is Cause No. 95-CA-00672-SCT.
¶3. Thereafter, she filed a second complaint against the police officers in their individual capacities on July 26, 1995. In the second suit, Thomas Thornton replaced the previously named John Doe as a defendant. Defendants moved for dismissal, or in the alternative, summary judgment on the basis that the plaintiff's claims were barred by sovereign immunity, res judicata, laches, and the statute of limitations. Alternatively, their basis for the motion was that the officers were entitled to qualified immunity on the plaintiff's claims. On December 8, 1995, the trial court granted summary judgment for the defendants holding that the officers were engaged in discretionary duties on the night of the accident, and that they were entitled to qualified immunity.
¶4. Mosby is also appealing that decision in Cause No. 95-CA-01363-SCT . The two cases have been consolidated on appeal. Mosby appeals to this Court from the lower court's grant of summary judgment in both cases and raises the following issues:
I. THE CITY OF OXFORD WAS NOT PROTECTED BY SOVEREIGN IMMUNITY IN DECEMBER 1992.
II. THE OFFICERS WERE NOT IMMUNE FROM SUIT IN DECEMBER 1992.
III. BECAUSE THERE EXIST FACTUAL DISPUTES OF A MATERIAL NATURE, THIS CAUSE MAY NOT BE RESOLVED VIA SUMMARY JUDGMENT.
¶5. On the night of December 24, 1992, Paul Hipp had stopped at an Exxon Service Station on the corner of University Avenue and South Lamar Boulevard in Oxford, Mississippi. As Hipp was getting out of his vehicle, Herbert Jeffries backed into Hipp's car. After hitting the car, Jeffries pulled forward and attempted to leave. Hipp ran to the passenger side of Jeffries' car and jumped in, in an attempt to stop Jeffries from leaving. Jeffries cut his wheel sharply, and Hipp claims that he was slung from the car. He managed to grab onto the door to keep his balance. Jeffries then left the Exxon Station, traveling north on Lamar where he passed an Oxford police officer on patrol. Hipp had run out into the street after Jeffries. He flagged down the police officer who was Officer Andrew Moore. He told Officer Moore what had happened, and Officer Moore asked if the person who damaged Hipp's car was in the car he had just seen on Lamar. Hipp said yes, and Officer Moore began to search for Jeffries.
¶6. Officer Moore first spotted Jeffries turning west onto Adams Street. He followed him to the intersection of North 11th and Jefferson where he caught up with Jeffries. At that point, Officer Moore initiated his blue lights in an attempt to stop Jeffries. Jeffries increased his speed pulling away from Officer Moore, and turned left onto North 9th Street.
¶7. Officer Moore was in radio contact with Officer Alan Ivy who said that he was at the top of the hill on North 9th, and that he was going to attempt to set up a roadblock with his car. He did so, but Jeffries was able to get around the roadblock by running up on the curb. Jeffries proceeded right onto West Jackson Avenue. Officers Moore and Ivy then turned on their sirens and followed Jeffries. Officer Moore stated in his deposition that his speed reached between 70 and 80 m.p.h. on the 30 m.p.h. road. Officer Moore saw Jeffries pass three cars and run two stoplights.
¶8. Officer Moore claims that he began to experience mechanical problems with his car and that he was unable to keep up with Jeffries. Mosby contests this assertion because there is no mention of it in the officers' report and no record of the car having been serviced soon after the 24th. Officer Moore contends that he lost sight of Jeffries for a moment, and that the next thing he saw were the tail lights of Jeffries' car running off the road and smoke from the accident. Officer Moore estimates that he was 1/8 mile behind Jeffries when the accident occurred.
¶9. Officer Thomas Thornton, Officers Moore and Ivy's shift supervisor, heard the radio communications concerning the pursuit. He sat in his parents' driveway and listened but did not communicate with Officers Moore and Ivy.
¶10. The car hit by Jeffries was driven by Camilla Pegues, Daphne Mosby's sister. Latasha Mosby, Daphne's daughter, was also in the car. Latasha received a cut lip in the accident. Daphne received serious injury leaving her paralyzed from the waist down.
¶11. Jeffries admitted that he had been drinking the night of the accident and also admitted to smoking marijuana which he thought must have been laced with cocaine. Jeffries pled guilty to D.U.I. and aggravated assault and is currently serving a twelve-year sentence in the State Penitentiary.
I. THE CITY OF OXFORD WAS NOT PROTECTED BY SOVEREIGN IMMUNITY IN DECEMBER, 1992.
A. Sovereignty of the City
¶12. The accident between Mosby and Jeffries occurred on December 24, 1992. In his order granting summary judgment to the City and to the police officers in the first case, the trial Judge stated:
Upon re-hearing of the motion of the Defendant City of Oxford, et al., the Court holds that the allegations involving the Defendants (on December 24, 1992) were of a governmental nature and thus the City of Oxford is entitled to sovereign immunity under the laws of the 1992 Extraordinary Session, Ch. 3 §§ 1 and 2 (effective September 16, 1992). The individual police officers were not sued individually and therefore the suit is against the entity only. Haffer v. Mello, 112 S.Ct. 358, 361 n.1 (1991).
The Court finds that under MCA § 11-46-3 participation in the Mississippi Municipal Liability Plan does not waive sovereign immunity under said statute. Morgan v. City of Ruleville, 627 So.2d 275, 279 (Miss. 1993). Therefore, the Defendants are entitled to a dismissal with prejudice.
WHEREFORE, PREMISES CONSIDERED, the Court holds that the City of Oxford is entitled to sovereign immunity for the actions of the police officers and ...