BEVERLY IRWIN-GILES, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATES OF WILLIAM IRWIN, DECEASED, AND LYNDA IRWIN, DECEASED, AND FOR AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF WILLIAM IRWIN, DECEASED, AND LYNDA IRWIN, DECEASED APPELLANT
PANOLA COUNTY, MISSISSIPPI APPELLEE
OF JUDGMENT: 10/25/2016
COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. SMITH
ATTORNEYS FOR APPELLANT: RALPH EDWIN CHAPMAN, SARA BAILEY
RUSSO, LARRY O. LEWIS, DANA J. SWAN
ATTORNEYS FOR APPELLEE: DAVID D. O'DONNELL, SIDNEY RAY
GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
Deputy Terry Smith of the Panola County Sheriff's
Department was involved in a two-vehicle accident on Highway
6 in Panola County with Lynda and William Irwin. The Irwins
died as a result of injuries sustained in the crash, and
their daughter Beverly Irwin-Giles filed suit against Panola
County under the Mississippi Tort Claims Act (MTCA). The
county subsequently moved for summary judgment, relying on
the "police protection" exemption from the
MTCA's waiver of sovereign immunity. Miss. Code Ann.
§ 11-46-9(1)(c) (Rev. 2012). The circuit court granted
the county's motion, finding that there was no evidence
that Smith "acted in reckless disregard of the
[Irwins'] safety and well-being." Id. For
the reasons explained below, we conclude that Irwin-Giles
presented sufficient evidence to survive summary judgment.
Therefore, we reverse and remand for further proceedings
consistent with this opinion.
AND PROCEDURAL HISTORY
Around 1 p.m. on July 21, 2015, Lynda and William Irwin were
traveling west on Highway 6 in Panola County in their Buick
Rainier SUV. Lynda was driving, and William was in the front
passenger seat. In Panola County, Highway 6 is a four-lane
divided highway that runs concurrent with U.S. Route 278.
As the Irwins were traveling west on Highway 6, Deputy Terry
Smith of the Panola County Sheriff's Department was
driving north on Lawrence Brothers Road, which crosses
Highway 6 and becomes Terza Road to the north of Highway 6.
There is a stop sign on Lawrence Brothers Road at its
intersection with Highway 6. Deputy Smith was driving a
Chevrolet Silverado owned by the Panola County Sheriff's
Department. He was returning to his office after
unsuccessfully attempting to locate a suspect in a case; he
had not turned on his lights or sirens, and he was in no
Smith safely crossed the eastbound lanes of Highway 6 into
the median of the highway. Then, as Smith attempted to cross
the westbound lanes of Highway 6 onto Terza Road, he entered
the path of the Irwins' Buick. The Buick hit the front
passenger side of Smith's truck.
Data recovered from the Buick's "black
box" indicated that the Buick was traveling
seventy-five miles per hour just prior to the collision,
which was ten miles per hour faster than the posted speed
limit. Smith testified in his deposition that he never saw
the Buick before the collision. He said he remembered
"stopping and waiting for traffic to be clear, "
but he could not recall how long he waited or how many
vehicles he may have waited on. There were no obstructions
blocking his view of oncoming traffic. The Mississippi
Highway Patrol (MHP) investigated the collision, and
MHP's Uniform Crash Report indicated that Smith failed to
yield the right of way.
Both Smith's truck and the Irwins' Buick eventually
came to rest off the road to the north of Highway 6. Smith
suffered a fractured ankle and contusions in the crash but
was able to get out of his truck. The Irwins both sustained
severe and ultimately fatal injuries.
Irwin-Giles retained an accident reconstruction specialist,
Tim Corbitt, who examined MHP's report, photographs taken
by MHP, and data downloaded from both vehicles' black
boxes. In his report, Corbitt states that data from the
Silverado's black box indicates that its speed increased
from 25 mph to 30 mph in the 2.5 seconds before the crash.
Based on this data, Corbitt opines that Smith did not stop
either at the stop sign at the intersection of Lawrence
Brothers Road and Highway 6 or in the median prior to
continuing into the westbound lanes of Highway 6.
Irwin-Giles gave pre-suit notice under the MTCA and then
filed suit against Panola County. In its answer, the county
asserted, among other defenses, immunity pursuant to
Mississippi Code Annotated section 11-46-9(1)(c). After
limited discovery, the county filed a motion for summary
judgment, arguing that it was immune from liability under
section 11-46-9(1)(c) because Smith had not "acted in
reckless disregard of the [Irwins'] safety and
well-being" and because Lynda was "engaged in
criminal activity at the time of the injury" (speeding).
The circuit court found that the evidence did not establish
any causal nexus between Lynda's speeding and her
injuries and also ruled that Lynda's "speeding would
not be imputed to William." However, the circuit court
granted the county's motion for summary judgment after
finding that Irwin-Giles failed to create a genuine issue of
material fact as to whether Smith had "acted in reckless
disregard." The court reasoned that "Smith was not
driving 100 mph" and "was not pursuing
anyone." The court also noted that Smith did not proceed
blindly or enter a dangerous intersection. The court
concluded that if Smith ran the stop sign and failed to
yield, he might have been negligent, but his actions still