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City of Clinton v. Tornes

Supreme Court of Mississippi

August 30, 2018

CITY OF CLINTON, MISSISSIPPI AND OFFICER MICHAEL KELLY
v.
PATRICE TORNES

          DATE OF JUDGMENT: 01/27/2017

          HINDS COUNTY COUNTY COURT, HON. LARITA M. COOPER-STOKES TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: AAFRAM YAPHET SELLERS ROBERT O. ALLEN JOHN CHADWICK WILLIAMS KELLY MARIE WILLIAMS WILLIAM ROBERT ALLEN

          ATTORNEYS FOR APPELLANTS: ROBERT O. ALLEN JOHN CHADWICK WILLIAMS WILLIAM ROBERT ALLEN

          ATTORNEYS FOR APPELLEE: KELLY MARIE WILLIAMS AAFRAM YAPHET SELLERS

          BEFORE WALLER, C.J., MAXWELL AND ISHEE, JJ.

          MAXWELL, JUSTICE,

         ¶1. This is an interlocutory appeal from the denial of summary judgment. Because the defendants-a municipality and its police officer-cannot be held liable for the plaintiff's claims under the Mississippi Tort Claims Act (MTCA), [1] we reverse the denial of summary judgment and render judgment in the defendants' favor.

         Background Facts and Procedural History

         ¶2. On the afternoon of May 11, 2015, Officer Michael Kelly was responding to a call that an intoxicated person was lying unconscious on the sidewalk outside the Days Inn in Clinton, Mississippi. While en route, his police vehicle collided with Patrice Tornes's car.

         ¶3. According to Officer Kelly, he drove south through the neighboring parking lot, which belongs to Tractor Supply Inc. Because some items in the parking lot blocked his view of the Day's Inn, "he pulled out further [sic] than normal so as to be able to see the subject that was the reason for his being there." Officer Kelly "stopped so he could survey the area and visually locate the individual from a distance before making personal contact with the subject." And as he was stopped, Tornes, who was traveling west on the road between the Day's Inn and Tractor Supply, clipped the push bumper of his police vehicle with her right wheels. But according to Tornes, Officer Kelly's vehicle was not stopped. Instead, Tornes "was proceeding in a travel lane in the parking lot when suddenly and without warning [her rear bumper] was struck by Officer Kelly's vehicle."

         ¶4. Tornes sued Officer Kelly and his employer, the City of Clinton, in the County Court of Hinds County. She claimed Officer Kelly's "reckless and negligent actions directly caused the subject accident." Specifically, she alleged Officer Kelly "caused his vehicle to be driven in a careless, negligent, and reckless manner and without due regard for the safety and convenience of Patrice Tornes, and without giving any warning sign or proper signal of the approach of said vehicle." And she asserted the City of Clinton was "vicariously liable for its employee's careless, negligent, and reckless operation of his vehicle while acting in the course and scope of his employment as an officer for the City of Clinton Police Department." She also claimed the City was liable for its own actions-specifically, "its negligent training of its employee in how to properly operate his motor vehicle in accordance for the safety of others" and its negligent entrustment of the subject vehicle to Officer Kelly on the day the wreck occurred.

         ¶5. Both Officer Kelly and the City moved for summary judgment, claiming immunity from suit. See Mitchell v. City of Greenville, 846 So.2d 1028, 1029 (Miss. 2003) ("[I]mmunity is a question of law and is a proper matter for summary judgment."). Because Tornes alleged-and the uncontradicted evidence supported-that Officer Kelly was acting within the course and scope of his employment at the time of the wreck, Officer Kelly asserted that he could not be held individually liable under the MTCA. So he asked to be dismissed as an individual defendant. The City, also citing the MTCA, argued it could not be vicariously liable for Officer Kelly's actions. Officer Kelly was engaged in a police-protection activity when the wreck occurred. So the City enjoyed police-protection immunity, because his alleged actions did not rise to the level of reckless disregard. Further, the City argued Tornes's claims based on the City's own allegedly negligent actions were barred by discretionary-function immunity. After a hearing focused on the City's police- protection-immunity claim, the county court denied summary judgment to both defendants on all claims.

         ¶6. Officer Kelly and the City sought an interlocutory appeal, which this Court granted. See id. (holding that, because MTCA immunity "is an entitlement not to stand trial rather than a mere defense to liability," this issue "should be ...


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