Of Judgment: 12/02/2014
FROM WHICH APPEALED HON. LISA P. DODSON JOE SAM OWEN STEPHEN
G. PERESICH BRETT K. WILLIAMS THOMAS M. MATTHEWS, III CIRCUIT
COURT OF THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY
ATTORNEYS FOR APPELLANT: STEPHEN G. PERESICH JOHANNA M.
ATTORNEYS FOR APPELLEES: JOE SAM OWEN ROBERT P. MYERS, JR.
KITCHENS, PRESIDING JUSTICE.
On August 22, 2009, two officers with the Mississippi
Department of Wildlife, Fisheries, and Parks (MDWFP) observed
Donald Bernius speeding on the Tchoutacabouffa River in
Harrison County, Mississippi. Prior to effecting a stop, the
officers ordered Bernius to move his boat to what they
contended was a safer location on the river; but Bernius fled
in the opposite direction. Bernius's vessel collided with
a boat operated by Christopher Webb. The collision killed
Webb and seriously injured Shane Webb. Two hours after the
collision, Bernius's blood-alcohol content was .25
percent. Kathleen Webb, individually and on behalf of
Christopher Webb's wrongful-death beneficiaries, and
Candace Webb, as Shane Webb's guardian, filed a lawsuit
pursuant to the Mississippi Tort Claims Act (MTCA) against
the MDWFP, arguing that the officers had acted in reckless
disregard for the safety of others. The Circuit Court of the
Second Judicial District of Harrison County, following a
bench trial, agreed and ruled in favor of the Webbs. The
Mississippi Court of Appeals reversed and rendered a judgment
in favor of the MDWFP, finding that the evidence did not
demonstrate that the officers had acted with reckless
disregard. We granted Candace Webb's Petition for Writ of
Certiorari. Finding that the Mississippi Court of
Appeals misapplied the applicable standard of review and
substituted its judgment for that of the trial court, we
reverse the judgment of that court and reinstate and affirm
the judgment of the Circuit Court of the Second Judicial
District of Harrison County.
AND PROCEDURAL HISTORY
The following recitation of the facts is repeated from the
decision of the Mississippi Court of Appeals:
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 [sic] 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 [Webb]. The collision resulted in Christopher
[Webb's] death and injuries to Shane [Webb], who was a
passenger in Christopher [Webb's] boat.
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 [Dexter] 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
. . .
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
[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.
Miss. Dep't of Wildlife, Fisheries, and Parks v.
Webb, 2017 WL 1396686, **2-4 (Miss. Ct. App. Apr. 18,
The Mississippi Court of Appeals held that "the circuit
court's judgment lacks credible and substantial
evidentiary support." Id. at *11. The court
continued: "[t]he evidence failed to show that the
officers' conduct 'evinced not only some appreciation
of the unreasonable risk involved, but also a deliberate
disregard of that high risk and the high probability of harm
involved.'" Id. (quoting Bradley v.
McAllister, 929 So.2d 377, 380 (Miss. Ct. App. 2006)).
The applicable standard of review follows:
"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, 827 (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
978 (citing City of Jackson v. Brister, 838 So.2d
274, 277-78 (Miss. 2003)).
City of Jackson v. Lewis, 153 So.3d 689, 694 (Miss.
2014). "In a bench trial, when the trial judge sits as
the finder of fact, he [or she] has the sole authority for
determining the credibility of witnesses."
Brister, 838 So.2d at 279 (citing Yarbrough v.