253 So. 3d 922
Miss. Ct. App.2018Background
- On July 21, 2015 Deputy Terry Smith (Panola County) drove a county pickup across four-lane Highway 6 and was struck by a westbound Buick driven by Lynda Irwin; both Lynda and passenger William Irwin later died.
- Smith was returning to the office, not using lights/siren; he testified he stopped at the stop sign and in the median and looked, but MHP crash report listed failure to yield.
- Buick "black box" data showed the Buick at 75 mph (10 mph over limit) before impact; plaintiff’s reconstructionist analyzed both vehicles’ data and opined Smith did not stop at the sign or in the median.
- Irwin-Giles sued Panola County under the Mississippi Tort Claims Act (MTCA); county moved for summary judgment invoking the police-protection immunity in Miss. Code Ann. § 11-46-9(1)(c).
- Circuit court granted summary judgment, concluding Smith’s conduct was at most negligent (not reckless disregard) and that Lynda’s speeding might be criminal activity; Irwin-Giles appealed.
- The Court of Appeals reversed and remanded, holding genuine issues of material fact exist on reckless-disregard and that Lynda’s speeding did not bar recovery as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Deputy Smith acted with "reckless disregard" under § 11-46-9(1)(c) | Smith crossed without stopping/slowing or looking; black-box and reconstruction evidence create a triable issue that he failed/refused to exercise any care | Smith stopped and looked and was not pursuing or driving at excessive speed; conduct at most negligent | Reversed: evidence (black-box + expert) creates genuine issue of reckless-disregard; case survives summary judgment |
| Whether Lynda's speeding constitutes "criminal activity" that bars recovery under § 11-46-9(1)(c) | Even if speeding is criminal, it was fortuitous and not causally related to Smith's police activity; under Durn it should not bar recovery | Speeding is a misdemeanor (criminal activity) and, alternatively, bars recovery | Split result: Lynda’s speeding is criminal but not imputed to William; court follows Durn and Williams distinctions and holds speeding was a "merely fortuitous" circumstance — does not bar recovery as a matter of law |
| Imputation of driver’s criminal activity to passenger (William) | William’s claim independent; Lynda’s speeding should not bar William’s claim | County argued Lynda’s speeding bars recovery for both | Held: Speeding cannot be imputed to William; William’s claims are not barred |
Key Cases Cited
- Lane v. Mississippi Dep't of Transp., 220 So.3d 254 (Miss. 2017) (standard of review for MTCA and summary judgment principles)
- Vo v. Hancock County, 989 So.2d 414 (Miss. Ct. App. 2008) (reckless-disregard higher than simple negligence; backing-up facts distinguished)
- City of Jackson v. Brister, 838 So.2d 274 (Miss. 2003) (definition of reckless disregard and willful or wanton conduct)
- Maye v. Pearl River County, 758 So.2d 391 (Miss. 1999) (deputy acted with reckless disregard by moving when he knew he could not see traffic)
- Maldonado v. Kelly, 768 So.2d 906 (Miss. 2000) (deputy who stopped, looked, then proceeded did not act with reckless disregard)
- Estate of Williams ex rel. Williams v. City of Jackson, 844 So.2d 1161 (Miss. 2003) (criminal activity bars recovery when there is causal nexus between criminal activity and injury)
- Mississippi Dep't of Pub. Safety v. Durn, 861 So.2d 990 (Miss. 2003) (distinguishes Williams; criminal traffic offense may be "merely fortuitous," not barring recovery when no causal nexus to the injury)
- McElroy v. City of Brandon, 198 So.3d 373 (Miss. Ct. App. 2015) (applies Williams to bar recovery when nexus exists between decedent’s intoxication and the injury)