MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES, AND PARKS APPELLANT
CANDACE WEBB, THOMAS HARPER, AND KATHLEEN D. WEBB APPELLEES
OF JUDGMENT: 12/02/2014
COUNTY CIRCUIT COURT, HON. LISA P. DODSON.
ATTORNEYS FOR APPELLANT: STEPHEN GILES PERESICH JOHANNA
ATTORNEYS FOR APPELLEES: JOE SAM OWEN ROBERT P. MYERS JR.
THOMAS M. MATTHEWS III.
Candace Webb, the legal guardian for minor Shane Webb, and
Kathleen Webb, individually and on behalf of the
wrongful-death beneficiaries of Christopher Webb
(collectively, the Webbs), filed suit against the Mississippi
Department of Wildlife, Fisheries, and Parks (MDWFP) under
the Mississippi Torts Claim Act (MTCA), claiming that MDWFP
conservation officers acted with reckless disregard for the
safety of Shane, Christopher, and other boaters using the
Tchoutacabouffa River in Harrison County, Mississippi.
See Miss. Code Ann. § 11-46-9 (Rev. 2012)
(discussing governmental immunity from liability).
The MDWFP filed a motion to dismiss or, alternatively, for
summary judgment, on October 27, 2010, and asserted that
exemptions under the MTCA barred the Webbs' claims. On
November 5, 2010, the cases were consolidated. Following
discovery, the MDWFP filed a supplemental motion to dismiss
and/or, alternatively, for summary judgment.
The circuit court denied summary judgment on July 25, 2012,
and the Mississippi Supreme Court subsequently denied the
MDWFP's petition for interlocutory review. Following a
two-day bench trial on February 18-19, 2014, the circuit
court held that the MDWFP officers acted in reckless
disregard for the safety of others when the officers told a
boater to move to a safer area after they stopped him, but
the suspect suddenly fled and caused a fatal boat collision.
The circuit court conducted a hearing on damages on November
5, 2014, and awarded damages to the Webbs.
The MDWFP now appeals, asserting that the circuit court erred
in finding that the MDWFP officers acted with reckless
disregard for the safety of others by ordering a suspect to a
safer location to conduct a "stop." Finding error,
we reverse the judgment of the circuit court and render
judgment in the MDWFP's favor.
On August 22, 2009, MDWFP conservation officers Barry
Delcambre and Michael Thrash witnessed Donald Bernius
speeding in a boat on the Tchoutacabouffa
River. The officers each navigated their separate
patrol boats into the river to investigate and stop Bernius.
Bernius saw the officers and came to an initial stop in the
middle of the river.
According to the officers' testimony at trial, they
recognized that their boats and Bernius's boat were
stopped in a "dangerous area" of the river. The
officers testified that this particular area of the river,
known as Bend 2, has blind spots where boaters heading from
either direction cannot see other boaters approaching from
the opposite direction. The officers explained that, as a
result of stopping and approaching Bernius, the three boats
were situated in a position so as to occupy most of the width
of the river, which, according to the officers, created an
eminent hazard for other boaters. As a result, Officer
Delcambre instructed Officer Thrash to have Bernius move to
the nearby straightaway down the river to provide a safer
location for them to question Bernius. Officer Delcambre
proceeded ahead of Officer Thrash and Bernius with the
intention of blocking oncoming traffic.
Officer Thrash ordered Bernius to follow them out of Bend 2
into the straightaway, and Bernius agreed to comply with the
instructions. Officer Thrash then proceeded to the
straightaway after Officer Delcambre so that Bernius could
follow him. According to Officer Thrash, Bernius followed him
a short distance, and then Bernius abruptly turned his vessel
180 degrees and fled in the opposite direction. Officer
Thrash then signaled to Officer Delcambre, and the officers
At the same time, John Joachim was traveling down the river
in his boat in the opposite direction from Bernius. Joachim
provided in his statement that he observed Bernius speeding
and recklessly driving on the wrong side of the river. As
Bernius's boat approached, Joachim had to use evasive
maneuvers to avoid a collision with Bernius. After passing
Joachim's boat, Bernius collided with a boat operated by
Christopher. The collision resulted in Christopher's
death and injuries to Shane, who was a passenger in
Neither Officer Delcambre nor Officer Thrash witnessed the
collision. Once the officers arrived at the scene of the
accident, they began rescue procedures, tended to the
injured, alerted authorities, and assisted Bernius out of the
water. Bernius was treated at Biloxi Regional Medical Center.
Approximately two hours after the accident, a blood sample
was drawn from Bernius, which indicated a .25 percent
blood-alcohol concentration (BAC) level. Bernius later
pled guilty to boating under the influence (BUI) and causing
death and injury. Bernius is currently serving a twenty-year
sentence in prison. As the record reflects, prior to the
incident, Bernius was a paraplegic and wheelchair bound.
In connection with the boating accident, the Mississippi
Department of Marine Resources (MDMR) investigated Officer
Delcambre's and Officer Thrash's conduct. After
interviewing Officer Delcambre and listening to an interview
of Bouie, the passenger in Bernius's boat, the MDMR
determined that Officers Delcambre and Thrash "acted
completely within the scope of their duties . . . ." The
MDMR concluded "that the only people responsible for
this boating accident were the people involved in the actual
accident." The Webbs subsequently filed suit against the
MDWFP under the MTCA, claiming that Officers Delcambre and
Thrash acted with reckless disregard for the safety of others
when they failed to detain Bernius and instructed him to move
to a safer location.
At a bench trial held on February 18 and 19, 2014, Officers
Delcambre and Thrash testified to their knowledge and
understanding of the MDWFP's Standard Operation
Procedures (SOPs) for handling BUI situations. Both officers
testified that, in their initial contact with Bernius, his
demeanor and handling of his vessel, among other things,
failed to indicate he was impaired. Officer Thrash
specifically testified that, at the time, he had no
reasonable suspicion to believe Bernius was intoxicated.
Officers Delcambre and Thrash testified that their first
priority during their initial contact with Bernius was to
ensure the safety of other boaters and citizens on the river.
Officer Delcambre explained, "On that particular day[, ]
due to the river traffic and the fluctuations of the traffic
coming north and south up the river where we encountered
Bernius there in [B]end , due to the nature of where we
[were] . . . I made the judgment to move around the bend for
the safety of the people and everybody involved on the
Relying on City of Jackson v. Brister, 838 So.2d 274
(Miss. 2003), the circuit court concluded that the present
case involved the officers' failure to detain Bernius
rather than their pursuit of him or their failure to arrest
him. The circuit court found that the officers'
instructions to Bernius to move toward the straightaway
violated Mississippi boating laws and the MDWFP's SOPs.
The circuit court explained that Officers Delcambre and
Thrash violated the MDWFP's SOP 04.01, which required the
officers to issue boating-related citations "at the
scene, " and that nothing in the SOP permitted the
officers to direct "the offending operator to continue
to operate his vessel prior to issuing a citation." The
circuit court thus held the officers' conduct in
directing Bernius out of the bend was in reckless disregard
for the safety of the public.
In making this finding, the circuit court relied on the MDWFP
procedures set forth in SOP 07/03 for handling a BUI
situation. SOP 07/03 defines "probable cause" and
states that an officer's "effort to establish
probable cause for BUI will be after an [o]fficer's
stopping of a water craft . . . ." According to the
circuit court, the term "will" is mandatory rather
than permissive, such that the officers were not permitted to
move or have Bernius move to another location for their
"stop." The circuit court recognized that
law-enforcement officers make decisions every day
"concerning their safety and others, [and] that they are
not to be faulted and do not become liable to those who may
be injured simply because sometimes those decisions were not
the best decisions in hindsight . . . ." Nevertheless,
the circuit court found the officers' decision to direct
Bernius to move his boat was made with a deliberate disregard
for the risk such that the officers "were consciously
indifferent to the consequences of their actions and
inactions." According to the circuit court, this action
constituted a failure to exercise any care, resulting in
"wantonness, " and not a failure to exercise due
care, which would have resulted in negligence.
The circuit court further found that the evidence discovered
after the accident failed to determine whether Officers
Thrash and Delcambre acted in reckless disregard prior to the
accident. However, the circuit court did find that the
"after-accident information" did "impact on
the credibility of the witnesses and the story told by the
officers." The circuit court explained the fact that
Bernius was ultimately determined to have a .25 percent BAC
"does not mean that the officers knew or should have
known of that at the time they stopped Bernius. . . . It
does, though, call into question the officers'
observations (or lack there of) [of] Bernius . . . [and] [i]t
raises a question in the court's mind about the accuracy
of the officers' observations of Bernius or perhaps the
accuracy of their testimony."
The circuit court also discussed Joshua Lord's testimony
that, after the accident, he heard Officer Delcambre tell
other officers that "they stopped Bernius because the
[other] passenger was propping Bernius up and that the two
men were back to back." The circuit court acknowledged
that Officer Delcambre denied making this statement, but the
court observed that "[Officer] Delcambre's memory
was also questioned concerning the odor of intoxicants on
Bernius after the accident." The circuit court explained
that Keith Bond's report from the accident "clearly
states that Officer Delcambre told Bond at the scene after
the accident that he smelled the odor of intoxicants on
Bernius's breath upon pulling Bernius from the water
following the accident." The circuit court acknowledged
that "[Officer] Delcambre agreed that at his deposition
he said that he could not recall and said in his deposition
that he did not smell that odor. He says that as of the trial
he is saying that he could not smell alcohol." The
circuit court determined that, since Lord was not affiliated
with any party in this case and did not know either Bernius
or Officer Delcambre, "there is no reason at all given
as to why Lord's testimony should be [in] question
concerning the statement."
The circuit court ultimately held that, "considering the
totality of the circumstances and the applicable law, as well
as the admissions of the officers, the officers acted in this
case with reckless disregard." The circuit court found
that, whether or not they knew or should have known that
Bernius was intoxicated, the officers "admittedly
appreciated the unreasonable risk to others on the river in
allowing a person to recklessly operate a boat and/or to
operate at an unreasonable speed." The circuit court
[The officers] did not exercise any of the care or
consideration [that] they were required to do in their
dealings with Bernius. They clearly intended that Bernius
continue to operate his boat without any restrictions from
them and without their having made any inquiries as to his
reckless operation, speeding, physical abilities, or use of
alcoholic beverages. They "intended to do the act that
caused harm to come to the [p]laintiff."
The circuit court ultimately rendered a judgment for the
Webbs. The circuit court conducted a damages hearing on
November 5, 2014, and awarded damages in the amount of $1,
400, 000 to the guardianship of Shane, and damages of $100,
000 to Kathleen, individually and on behalf of
Christopher's wrongful-death beneficiaries. After
applying the MTCA's statutory cap on damages, the circuit
court ultimately entered a final judgment to the guardianship
of Shane in the amount of $466, 666.67, and to Kathleen,
individually and on behalf of Christopher's
wrongful-death beneficiaries, in the amount of $33, 333.33.
The MDWFP now appeals the circuit court's judgment,
arguing that the circuit court improperly substituted its
judgment and misapplied the reckless-disregard standard. The
MDWFP submits that the circuit court's findings and
conclusions demonstrate an application of negligence, and not
the higher reckless-disregard standard that is required to
find the MDWFP liable under the MTCA.
"A circuit court judge sitting without a jury is
afforded the same deference as a chancellor." City
of Jackson v. Lewis, 153 So.3d 689, 693 (¶4) (Miss.
2014). Accordingly, we will not disturb a circuit court's
findings following a bench trial where the findings are
supported by substantial, credible, and reasonable evidence.
Id. However, we must reverse the circuit court's
findings where they are manifestly wrong or clearly
erroneous, or the court applied an erroneous legal standard.
Id. "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." Id. (citing City
of Ellisville v. Richardson, 913 So.2d 973, 978
(¶15) (Miss. 2005)). We review questions of law de novo.
Richardson, 913 So.2d at 977 (¶13).
The MDWFP argues that the circuit court erred in its
application of the "reckless disregard" standard.
The MDWFP submits that the circuit court focused on whether
the officers intended the act that caused the harm and
ignored the requirement that the act at issue must be made
with knowledge of an unreasonable risk and a high probability
of harm. The MDWFP asserts that the evidence fails to support
the conclusion that the officers acted wantonly or in utter
disregard of an unreasonable risk with a high probability of
harm to others.
We recognize that "[t]he MTCA is the exclusive remedy
for filing a lawsuit against a governmental entity and its
employees." City of Jackson v. Jackson, 200
So.3d 1141, 1144 (¶10) (Miss. Ct. App. 2016) (citing
Brister, 838 So.2d at 278 (¶15)). Section
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[.]
Under the MTCA, "immunity applies to an officer acting
in the scope of his employment unless it is determined that
he acted in reckless disregard of the safety of an individual
not engaged in criminal activity." Jackson, 200
So.3d at 1144-45 (¶10). In determining what action
constitutes "reckless disregard, " we look to
guidance from the supreme court. In Maye v. Pearl River
County, 758 So.2d 391, 394 (¶19) (Miss. 1999), the
supreme court described reckless disregard as a
"conscious indifference" to the consequences of an
action, almost evincing a "willingness that harm should
follow." In the more recent case of Lewis, 153
So.3d at 693 (¶5), the supreme court explained that
reckless disregard is "more than mere negligence, but
less than an intentional act." (citation omitted). The
Lewis court further provided that "reckless
disregard occurs 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." Id. (internal quotation
marks omitted); see also Thomas ex rel. Thomas v. Miss.
Dep't of Pub. Safety, 882 So.2d 789, 796 (¶20)
(Miss. Ct. App. 2004) (finding that a police officer's
failure to check the driver's sobriety failed to rise to
the level of reckless disregard and "that there was
sufficient evidence for the trial judge to hold that [the
officer's] omission [to check for sobriety] did not rise
to the level of gross disregard for [the decedent's]
When determining reckless disregard for purposes of defeating
immunity relative to law-enforcement duties under the MTCA,
this Court applies a totality-of-the-circumstances standard.
Id. at (¶12). Upon review, we must utilize an
objective standard when determining the nature of the
officers' actions, keeping in mind all the factors they
were confronted with while also "taking into account the
fact that the officers must make split-second
decisions." Id. (citing City of Jackson v.
Powell, 917 So.2d 59, 72 (¶47) (Miss. 2005)). In so
doing, "this Court must consider all of the events that
The MDWFP argues that the record fails to contain sufficient
evidence to support the circuit court's following
findings: (1) the officers "appreciated a risk"
that Bernius would flee; (2) Officers Delcambre and Thrash
knew, understood, or realized an unreasonable risk or
consciously disregarded a known unreasonable risk; and (3)
Bend 2 was not a dangerous section of the river. See
Lewis, 153 So.3d at 693 (¶5). The MDWFP further
submits that the circuit court erred by: (1) applying a
negligence standard instead of the standard for determining
reckless disregard; and (2) failing to find that
Bernius's unlawful actions were the intervening and
superseding cause of the boating accident.
The record reflects that, at the bench trial, the circuit
court heard testimony from Officer Thrash; Officer Delcambre;
Bond, a conservation officer at the MDWFP who was called to
the scene to investigate the accident ...