The opinion of the court was delivered by: Pittman, Presiding Justice
DATE OF JUDGMENT: 07/26/95
TRIAL JUDGE: HON. EUGENE M. BOGEN
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 03/25/1999
MOTION FOR REHEARING FILED: 9/24/97
¶1. The present case was considered by this Court in Trista Turner v. City of Ruleville, No. 95-CA-00880-SCT, 1997 WL 562151 (Miss. Sept. 11, 1997). After full consideration, we grant Turner's Motion for Rehearing. The original opinion is withdrawn, and the following opinion substituted therefor.
¶2. Trista Turner was injured in a collision with a drunk driver. Turner filed a complaint in Sunflower County Circuit Court against the drunk driver and the City of Ruleville. Turner alleged that the driver, James E. Smith, *fn1 was operating the vehicle without a valid driver's license and while visibly intoxicated with a blood alcohol level of .22. Turner also alleged that immediately prior to the accident Smith had been stopped by an Officer Bradshaw, an officer employed by the City of Ruleville Police Department, for operating the vehicle in an erratic fashion and failing to have the vehicle's headlights on. Turner specifically alleged that, although he knew that Smith was intoxicated and incapable of driving his vehicle in a safe and prudent manner, Officer Bradshaw allowed Smith to continue driving. This, Turner charged, constituted reckless disregard of the safety and well being of Turner and others traveling on the highway who were not engaged in criminal activity at the time of injury. Turner sued the City of Ruleville ("the City") on the grounds that it was responsible for the actions of its officers. The lower court granted the City's Motion to Dismiss ruling that Turner failed to state a claim for which relief could be granted based on Miss. Code Ann. § 11-46-9 (c), which provides that a governmental entity and its employees acting in 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 . . . ."
¶3. Turner specifically alleged in her complaint that on or about May 1, 1994, at approximately 8:00 p.m., she was traveling as a passenger in a vehicle being driven by Typhron Armstrong in a northbound direction on U.S. Highway 49 in Sunflower County. Turner further alleged that Smith was driving another vehicle in the northbound lane on U.S. Highway 49 but had either stopped the vehicle in the northbound lane on U.S. Highway 49 or was backing down the highway ...