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Mississippi Department of Wildlife, Fisheries, and Parks v. Webb

Court of Appeals of Mississippi

April 18, 2017

MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES, AND PARKS APPELLANT
v.
CANDACE WEBB, THOMAS HARPER, AND KATHLEEN D. WEBB APPELLEES

          DATE OF JUDGMENT: 12/02/2014

         HARRISON COUNTY CIRCUIT COURT, HON. LISA P. DODSON.

          ATTORNEYS FOR APPELLANT: STEPHEN GILES PERESICH JOHANNA MALBROUGH MCMULLAN.

          ATTORNEYS FOR APPELLEES: JOE SAM OWEN ROBERT P. MYERS JR. THOMAS M. MATTHEWS III.

         EN BANC.

          CARLTON, J.

         ¶1. 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).

         ¶2. 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.[1] Following discovery, the MDWFP filed a supplemental motion to dismiss and/or, alternatively, for summary judgment.

         ¶3. 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.

         ¶4. 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.

         FACTS

         ¶5. On August 22, 2009, MDWFP conservation officers Barry Delcambre and Michael Thrash witnessed Donald Bernius speeding in a boat on the Tchoutacabouffa River.[2] 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.

         ¶6. 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.

         ¶7. Officer Thrash ordered Bernius to follow them out of Bend 2 into the straightaway, and Bernius agreed to comply with the instructions.[3] 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 pursued Bernius.

         ¶8. 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 Christopher's boat.

         ¶9. 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.[4] 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.

         ¶10. 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.

         ¶11. 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.

         ¶12. 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 [2], 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 river."

         ¶13. 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.

         ¶14. 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.

         ¶15. 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."

         ¶16. 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."

         ¶17. 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 explained:

[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."

         ¶18. 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.

         ¶19. 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.

         STANDARD OF REVIEW

         ¶20. "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).

         DISCUSSION

         ¶21. 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.

         ¶22. 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 11-46-9(1)(c) provides:

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[.]

         ¶23. 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] safety").[5]

         ¶24. 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 occurred." Id.

         ¶25. 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.

         ¶26. 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 ...


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