COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT. DATE OF JUDGMENT: 05/25/2011. TRIAL JUDGE: HON. WINSTON L. KIDD. TRIAL COURT ATTORNEYS: PLAINTIFF: DENNIS C. SWEET, III, WARREN L. MARTIN. DEFENDANT: PIETER TEEUWISSEN, ANTHONY SIMON.
THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REINSTATED AND AFFIRMED.
FOR APPELLANT: PIETER JOHN TEEUWISSEN, LARA E. GILL.
FOR APPELLEE: BO ROLAND, DENNIS C. SWEET, III, DENNIS CHARLES SWEET, IV, TERRIS CATON HARRIS.
KITCHENS, JUSTICE. WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER, AND KING, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PIERCE AND COLEMAN, JJ.
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
ON WRIT OF CERTIORARI
¶1. After observing LaMarcus Butler  turn off the lights of his vehicle and make a u-turn in an apparent effort to avoid a police roadblock, Officer Gregory Jackson engaged the blue lights and siren of his patrol car and pursued Butler, at varying speeds, until Jackson's superior officer instructed him by radio to desist. The fleeing Butler collided with a vehicle occupied by Margaret Stephens, Lee B. Lewis, and Oda Mae Green. Stephens died as a result of the crash, and Lewis and Green suffered severe injuries. Plaintiffs Lewis and Green, individually, and Sonya Stephens, on behalf of Margaret Stephens's wrongful-death beneficiaries, filed suit in the Circuit Court of the First Judicial District of Hinds County against the City of Jackson, Mississippi. Following a bench trial in 2008, the trial court assessed 100% of the fault to the City and entered judgment in favor of the Plaintiffs. The Court of Appeals reversed and rendered the circuit court's holding, finding that Officer Jackson had not acted in " reckless disregard for the safety and well being of persons not engaged in criminal conduct," and therefore, governmental immunity shielded the City from liability. City of Jackson v. Lewis, 2013 WL 2303391, at *2 (Miss. Ct. App. May 28, 2013).
¶2. Aggrieved, the plaintiffs sought review by this Court, asserting that the Court of Appeals: (1) misinterpreted the factors for determining reckless disregard
by law enforcement personnel applied by this Court in City of Ellisville v. Richardson, 913 So.2d 973 (2005); (2) improperly weighed the evidence on appeal, made credibility determinations, and improperly rejected evidence that supports or reasonably tends to support the findings of the trial court; and (3) improperly substituted its judgment for the trial court's credibility determination regarding expert testimony. We find dispositive the question of whether the Court of Appeals misinterpreted and misapplied the Richardson factors for determining reckless disregard by law enforcement officers. M.R.A.P. 17(h). Finding that the Court of Appeals erred, we reverse its judgment, and we reinstate and affirm the judgment of the Circuit Court of the First Judicial District of Hinds County.
On August 21, 2001, at approximately 10:30 p.m., Officer Jackson was traveling east on Monument Street in Jackson, Mississippi, en route to a roadblock set up at the intersection of Monument and Palmyra Streets. Officer Jackson observed a vehicle that was traveling east on Monument turn off its lights, make a u-turn, proceed west on Monument, and ultimately turn on Capers Avenue. Unbeknownst to Officer Jackson, Butler, the driver, had stolen the vehicle. When Officer Jackson observed the vehicle make a right onto Capers, he turned on his blue lights and siren and followed the vehicle down Capers. According to Officer Jackson, Butler seemed to slow down about five to ten miles per hour for a moment on Capers, as if he were going to stop. However, Butler did not stop, turning instead onto Green Avenue and then onto Capitol and Longino Streets while being followed by Officer Jackson. The two cars continued west on Longino, which becomes Maple Street after Longino's intersection with Fortification Street.
Officer Jackson testified that while on Maple Street, between the intersections of Fortification/Longino and Maple/Martin Luther King Jr. Drive, Butler " punched it." Officer Jackson radioed Sergeant Jonathan Crawford, his supervisor, and informed him of his whereabouts and that he was pursuing Butler for violating a traffic ordinance. At that time, Sergeant Crawford told Officer Jackson to terminate the pursuit. Officer Jackson stated that he turned off his blue lights and siren and slowed down, but continued on Maple. Officer Jackson stated that the last time he saw Butler was when Butler's taillights passed through the Maple/Martin Luther King intersection. He further testified that as he continued on Maple, he saw smoke and debris in the air and notified dispatch that there was possibly an accident. When Officer Jackson arrived at the intersection of Maple and Bailey Avenue, he notified dispatch that indeed an accident had occurred and that an ambulance was needed. Butler's vehicle had collided with the Plaintiff's vehicle after Butler ran through the traffic light.
Lewis, 2013 WL 2303391, at *2-3.
STANDARD OF REVIEW
¶3. " A circuit court judge sitting without a jury is afforded the same
deference as a chancellor." City of Jackson v. Sandifer, 107 So.3d 978, 983 (Miss. 2013) (citing City of Jackson v. Powell, 917 So.2d 59, 68 (Miss. 2005)). This Court leaves undisturbed a circuit court's findings following a bench trial unless the findings " are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Sandifer, 107 So.3d at 983 (quoting Powell, 917 So.2d at 68). The circuit court's findings " are safe on appeal where they are supported by substantial, credible, and reasonable evidence." City of Jackson v. Law, 65 So.3d 821 (Miss. 2011) (quoting City of Ellisville v. Richardson, 913 So.2d 973, 977 (Miss. 2005)). " Although reasonable minds might differ on the conclusion of whether or not the officer in question acted in reckless disregard, it is beyond this Court's power to disturb the findings of the trial judge if supported by substantial evidence." Richardson, 913 So.2d at 979 (citing City of Jackson v. Brister, 838 So.2d 274, 277-78 (Miss. 2003)).
¶4. The Mississippi Tort Claims Act (MTCA) shields the government from liability based on " 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). " Reckless disregard," according to this Court, denotes " more than mere negligence, but less than an intentional act." Law, 65 So.3d at 826 (quoting Miss. Dep't of Pub. Safety v. Durn, 861 So.2d 990, 994 (Miss. 2003)). Further, this Court " find[s] reckless disregard when 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.'" Durn, 861 So.2d at 995 (quoting Maldonado v. Kelly, 768 So.2d 906, 910-11 (Miss. 2000)).
¶5. In Brister, 838 So.2d at 280, this Court held that the standard articulated by the United States Court of Appeals for the District of Columbia " is instructive" in determining " whether a police chase constitutes reckless disregard." The following six factors were considered: " (1) length of chase; (2) type of neighborhood; (3) characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; and (6) the seriousness of the offense for which the police are pursuing the vehicle." Id. (citing District of Columbia v. Hawkins, 782 A.2d 293 (D.C. Ct. App. 2001)). Justice McRae, concurring in result only in Johnson v. City of Cleveland, 846 So.2d 1031 (Miss. 2003), included four additional factors: " (7) [w]hether the officer proceeded with sirens and blue lights; (8) [w]hether the officer had available alternatives which would led [sic] to the apprehension of the suspect besides pursuit; (9) [t]he existence of police policy which prohibits pursuit under the circumstances; and (10) [t]he rate of speed of the officer in comparison to the posted speed." Richardson, 913 So.2d at 977, 978 (citing Johnson, 846 So.2d at 1037 (McRae, J., concurring in result only)). In Richardson , this Court held that " it is appropriate for trial courts to consider all ten factors, and to look to the totality of the circumstances when analyzing whether someone acted in reckless disregard." Richardson, 913 So.2d at 978.
¶6. At the time of Officer Jackson's pursuit of Butler, the Jackson Police Department had in place policies regarding initiating and terminating pursuits, listed in General Order 600-20. With regard to the initiation of pursuits, General Order
600-20(2)(b) required that, " [b]efore initiating a pursuit the risks to society must be weighed against the benefits of apprehending the suspect." General Order 600-20(2)(d) further provided that, " [o]fficers will initiate or continue a pursuit, of a law violator in a motor vehicle, only when the pursuit will be executed with caution so as not to create extreme or ...