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Irwin-Giles v. Panola County

Court of Appeals of Mississippi

February 27, 2018

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
v.
PANOLA COUNTY, MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 10/25/2016

         PANOLA COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. SMITH MURPHEY

          ATTORNEYS FOR APPELLANT: RALPH EDWIN CHAPMAN, SARA BAILEY RUSSO, LARRY O. LEWIS, DANA J. SWAN

          ATTORNEYS FOR APPELLEE: DAVID D. O'DONNELL, SIDNEY RAY HILL III

          BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.

          WILSON, J.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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 particular hurry.

         ¶4. 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.

         ¶5. Data recovered from the Buick's "black box"[1] 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.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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).

         ¶9. 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 ...


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