for the Court.
¶ 1. Mildred Elaine Thompson Rayner and Michelle Lynn Rayner Bynum, as natural mother and next friend of Billy Joe David Bynum, a minor (collectively, “Ray-ner”) filed suit against Rankin County Sheriff Ronnie Pennington, Deputy Michael B. McCarty, and John Does 1-6 (Rankin County) pursuant to the Mississippi Tort Claims Act (MTCA) for injuries stemming from a vehicular accident. See Miss.Code Ann. § 11^6-1 to 11-46-23 (Rev.2002). The Circuit Court of Rankin County granted summary judgment to Rankin County; Rayner appeals. This Court affirms the grant of summary judgment to Rankin County.
FACTS
¶ 2. Rayner filed the complaint on March 21, 2007. She alleged that, on the afternoon of March 22, 2006, Deputy McCarty was in the course and scope of his employment with the Rankin County Sheriffs Department when he drove through a red light at the intersection of Highway 468 and Highway 18 in Brandon, Mississippi, and collided with Rayner’s oncoming vehicle. Rayner alleged that Deputy McCarty, traveling south on Highway 468, approached the intersection at an unsafe high speed and failed to yield to oncoming cross-traffic, which constituted gross negligence and reckless disregard for the rights and safety of others using the intersection. Rayner demanded compensatory damages, punitive damages, costs, attorneys’ fees, and prejudgment and postjudgment interest.
¶ 3. Rankin County answered, asserting that it enjoyed immunity under the Mississippi Tort Claims Act. Rankin County subsequently filed a motion for summary judgment, asserting that there was no genuine issue of material fact concerning its
A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
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(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury;
Miss. Code Ann. § 11-46-9(1) (Rev.2002).
¶ 4. In support of the motion, Rankin County attached the accident report and excerpts of the deposition testimony of Deputy McCarty and of Rayner, and of eyewitnesses Janet Cook and Marsha Williams. Deputy McCarty testified that he was headed home from the Sheriffs Department when he heard a call over the dispatch for a disturbance at Cedar Ridge Trailer Park, located off Highway 468. The dispatcher did not communicate the nature of the disturbance. Deputy McCarty told the dispatcher he would be en route with another officer. He immediately turned on his blue lights and sirens, and headed south on Highway 468 at about fifty to fifty-five miles per hour toward the intersection of Highway 468 and Highway 18. At the intersection, he slowed and crossed into the oncoming (northbound) lane of Highway 468, coming to a complete stop at the red light. A vehicle in the eastbound center turn lane of Highway 18 obstructed his view of the eastbound lane of Highway 18. Deputy McCarty said he cautiously entered the intersection. He related that he “slowly creeped forward and stopped, creeped forward and stopped, and creeped forward and stopped,” keeping a lookout the entire time. Deputy McCarty testified that his blue lights and sirens were on when he entered the intersection, and that he crept forward at five miles per hour. Nonetheless, Rayner’s minivan, traveling in the eastbound lane of Highway 18, abruptly collided with the side of his patrol car. Deputy McCarty said that he never saw the minivan, because his view was obstructed by the vehicle in the center turn lane of Highway 18. Deputy McCarty suffered only a minor cut in the crash.
¶ 5. Cook testified that she was traveling south on Highway 468 when she heard a siren and observed a patrol car approaching behind her with its blue lights on. She stopped at the Highway 18 intersection, and the patrol car passed her car, entered the oncoming (northbound) lane, and stopped at the intersection. Cook observed the patrol car cautiously enter the intersection, with blue lights flashing, and get hit by a minivan. Cook observed Deputy McCarty looking left and right several times before the collision. Cook testified that it appeared that the minivan had not slowed down upon approaching the intersection.
¶ 6. Williams testified that she was a passenger in her mother-in-law’s car traveling eastbound on Highway 18.
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They planned to turn south onto Highway 468, but they observed a patrol car at the intersection with its sirens on and blue-lights flashing. They pulled into the right-turn lane and waited for the patrol car to proceed through the intersection. Williams
¶ 7. In a response to the summary judgment motion, Rayner attached her complete deposition; the deposition of Billy Joe Bynum, the father of Rayner’s grandson, Billy Joe Bynum, Jr.; Deputy McCarty’s deposition; and a copy of certain law enforcement policies and procedures. By-num, Jr., aged three, was traveling in the passenger seat of Rayner’s minivan during the accident. Rayner testified that as she approached the intersection, she removed her foot from the gas pedal to slow down. She observed some vehicles in the southbound lane of Highway 468, but it was clear ahead of her. She watched the green light as she approached the intersection. Then she saw a white flash, and her minivan struck the patrol car. She testified that she never heard any sirens or saw any blue lights. Rayner testified that she suffered permanent injuries in the accident. Bynum testified that Bynum, Jr., received a bump on the head and a seat-belt bruise, from which he fully recovered.
¶ 8. On July 15, 2008, the trial court granted Rankin County’s motion for summary judgment, finding that there were no genuine issues of material fact as to how the accident occurred, and that the evidence showed Deputy McCarty had not acted with reckless disregard. Thus, the trial court found that Rankin County was entitled to immunity under Mississippi Code Section 11 — 46—9(l)(c).
¶ 9. Rayner filed a motion for reconsideration and an amended motion for reconsideration. The trial court denied the amended motion for reconsideration. Rayner has timely appealed, arguing that summary judgment was improper.
STANDARD OF REVIEW
¶ 10. “This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo.”
Fairley v. George County,
LAW AND ANALYSIS
I. WHETHER RANKIN COUNTY WAS ENTITLED TO SUMMARY JUDGMENT BECAUSE THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AND IT WAS ENTITLED TO IMMUNITY UNDER THE MTCA.
¶ 11. Rayner argues that genuine issues of material fact were present that Deputy McCarty acted in reckless disregard of the safety and well being of her and her passenger. Due to the inherent danger and risk of liability faced by police officers and firefighters, public policy requires that these actors incur no liability for mere negligence, but only for reckless acts.
Maldonado v. Kelly,
the voluntary doing by motorist of an improper or wrongful act, or with knowledge of existing conditions, the voluntary refraining from doing a proper or prudent act when such act or failure to act evinces an entire abandonment of any care, and heedless indifference to results which may follow and the reckless taking of chance of accident happening without intent that any occur....
Id.
at 229. “Reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.”
Miss. Dep’t of Pub. Safety v. Durn,
¶ 12. Rayner argues there was no genuine issue of material fact that Deputy McCarty acted with reckless disregard, because he entered the intersection from an improper lane, against the red light, and with an obstructed view of the eastbound lane of Highway 18. Rayner contends that Deputy McCarty should have known there was a strong probability that an intersection protected by a red light would have a high degree of oncoming traffic. Rayner also argues that Deputy McCarty’s decision to cross an intersection against the red light in response to a mere disturbance call contravened Mississippi statutory law and the policies and procedures of the Rankin County Sheriffs Department.
¶ 13. This Court has found on several occasions that a governmental entity waived its immunity under the MTCA by engaging in acts evincing reckless disregard for the safety and well being of persons not engaged in criminal activity. In
Turner,
the Court found that the plaintiff had stated a claim that an officer had acted with reckless disregard.
Turner,
¶ 14. Rayner cites
Maye
for the proposition that Deputy McCarty acted in reckless disregard by proceeding into the intersection despite an obstructed view. In
Maye,
a deputy sheriff was backing out of a driveway at the county jail when he backed into another vehicle that was pulling into the driveway.
Maye,
¶ 15. Rayner also cites
Davis v. Latch,
¶ 16. In response to this contention, Rankin County cites
Maldonado,
in which this Court held that a deputy sheriff did not act in reckless disregard in crossing an intersection with a partially obstructed view.
Maldonado,
¶ 17. Certain statutes apply when an emergency vehicle attempts to cross an intersection past a red light. A statute provides that:
The driver of any authorized emergency vehicle when responding to an emergency call upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety but may proceed cautiously past such red or stop sign or signal. At other times drivers of authorized emergency vehicles shall stop in obedience to a stop sign or signal.
Miss.Code Ann. § 63-3-315 (Rev.2004). A complementary statute provides that: “[u]pon the immediate approach of an authorized emergency vehicle, when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way ... and shall stop and remain in such position until the authorized emergency
¶ 18. We turn to the evidence in this case. Rayner asserts that her own testimony created a disputed issue of material fact regarding whether Deputy McCarty had his lights and sirens on. In
Lipsey,
there was conflicting testimony on this point from the officer, who testified that he had his vehicle’s lights and sirens on when entering a road, and from the injured motorist, who testified that the officer’s vehicle had displayed no lights or sirens.
Lipsey,
¶ 19. Further, it was undisputed that, although Deputy McCarty’s view was obstructed due to the vehicle stopped in the center turn lane, he appreciated the danger from oncoming traffic and proceeded cautiously by keeping a lookout and slowly creeping into the intersection. Pursuant to Mississippi Code Section 63-3-809(1), all drivers given an audible signal by an emergency vehicle shall yield the right-of-way. Miss.Code Ann. § 63-3-809(1) (Rev.2004). In light of this statute, which requires other drivers to yield to an emergency vehicle, Deputy McCarty’s precautionary measures of looking both ways and cautiously creeping into the intersection evinces that Deputy McCarty appreciated the risk involved in crossing the intersection. He proceeded cautiously, on the alert for oncoming traffic, but he also relied upon his lights and sirens to alert oncoming traffic of his control of the intersection. Indeed, these safety measures effectively alerted Williams and her mother-in-law, who reached the intersection just ahead of Rayner, noticed the lights and sirens, and appropriately yielded right-of-way to the patrol car. Reckless disregard is the “entire abandonment of any care,” while negligence is the failure to exercise due care.
Maldonado,
¶ 20. Rayner next argues that Deputy McCarty acted in reckless disregard because his actions violated Mississippi Code Section 63-3-315 and the policies and procedures of the Rankin County Sheriffs Department. Mississippi Code Section 63-3-315 permits the driver of an authorized emergency vehicle to cross an intersection against a red light when responding to an emergency call. Miss.Code Ann. § 63-3-315 (Rev.2004). Rayner contends that, although Deputy McCarty was driv
Patrol Activities:
Response to some calls may require several deputies to effectively and safely control the situation. These situations may include but are not limited to:
1. An assault on an officer;
2. On-scene arrest for a violent offender;
3. A potential or actual resistance to arrest;
4. Use of force incident;
5. A violent or potential violent crime in progress;
6. A fleeing suspect; or
7. Domestic Abuse Incidents.
8. Motor vehicle accidents.
The first responder must exercise discretion in determining the best course of action. These options range from immediate intervention to identification and reporting. The safety of deputies and innocent life will always be a prime factor when considering options.
Rankin County Law Enforcement Policies and Procedures, § 3.1 Patrol Functions & Tactics. Rayner argues that Deputy McCarty acted in violation of these policies, because he was not a first responder, and he was not responding to one of the eight listed situations. Rayner argues that Deputy McCarty’s violation of Mississippi Code Section 63-3-315 and departmental policies was inherently reckless.
¶ 21. Rankin County contends these arguments are procedurally barred because Rayner failed to raise them before the trial court. However, in her response to the motion for summary judgment, Rayner clearly raised these arguments and attached supporting documentation. Therefore, these arguments are not procedurally barred.
¶ 22. Rayner argues that if an emergency vehicle drives past a red light in response to a report of a “disturbance,” instead of a report specifying an “emergency call,” Mississippi Code Section 63-3-315 is violated. Rayner argues that not every situation deemed a “disturbance” would permit emergency driving measures under Mississippi Code Section 63-3-315, because a “disturbance” could constitute something as innocuous as a dog barking. There is no caselaw construing the term “emergency call” as used in Section 63-3-315. Nor is there any evidence disclosing what the disturbance might have been in this case. The term “disturbance” certainly could include an innocuous situation such as a dog barking. But on the other hand, a “disturbance” could just as easily signify domestic violence or another dangerous situation requiring a swift response. Rayner bears the burden to prove that Deputy McCarty acted in reckless disregard, Rayner has not submitted any proof that the situation to which Deputy McCarty was responding was of such an insignificant nature that he acted in reckless disregard by crossing the intersection against the red light.
¶ 23. Rayner cites no authority for her contention that Deputy McCarty’s violation of law enforcement policies was equivalent to acting in reckless disregard. It appears that Rayner is arguing that the existence of a police policy that prohibits the course of action taken by the officer constitutes proof that the officer acted with reckless disregard. In
City of Ellisville v. Richardson,
CONCLUSION
¶ 24. The Court' finds no genuine issue of material fact and affirms the judgment of the Rankin County Circuit Court that Rankin County was entitled to judgment as a matter of law. The evidence of how the collision occurred was not in genuine dispute. Deputy McCarty stopped at the intersection and, with his blue lights and sirens activated, slowly proceeded across in a stop-and-start fashion. His safety measures were sufficient to prompt other drivers near the intersection to yield the right-of-way, including the driver traveling in the lane ahead of Rayner. Viewing the evidence in the light most favorable to Rayner, nothing about Deputy McCarty’s conduct demonstrated a conscious indifference to consequences equating to almost a willingness that harm should result. Deputy McCarty’s safety measures showed that he exercised care in crossing the intersection, and his conduct did not rise to the level of reckless disregard for the safety and well-being of persons not engaged in criminal activity under Mississippi Code Section 11 — 46—9(l)(c). We affirm the judgment of the Circuit Court of Rankin County granting summary judgment to Rankin County.
¶ 25. AFFIRMED.