Thomas v. Miss. Dep't. of Pub. Safety, et al.
| Docket Number: | 2003-CA-00417-COA | |
| Oral Argument: | 05-11-2004 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-21-2004 Opinion Author: Chandler, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Perjury - Sufficiency of evidence - Section 11-46-9(1)(c) - Reckless disregard Judge(s) Concurring: King, C.J., Bridges and Lee, P.JJ., Myers, Griffis and Barnes, JJ. Concurs in Result Only: Irving, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 02-03-2003 Appealed from: Pike County Circuit Court Judge: Keith Starrett Disposition: JUDGMENT FOR DEFENDANTS Case Number: 01-137-A |
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| Party Name: | Attorney Name: | |||
| Appellant: | Cheryl Eaton Thomas, on Behalf of the Lawful Heirs of Lonzo Lavern Thomas |
T. MACK BRABHAM |
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| Appellee: | Mississippi Department of Public Safety and Albert Johnson | JOHN GORDON ROACH |
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| Topic: | Wrongful death - Perjury - Sufficiency of evidence - Section 11-46-9(1)(c) - Reckless disregard |
| Summary of the Facts: | Willie Thomas was issued a speeding ticket by Mississippi Highway Patrol Officer Albert Johnson for traveling ninety-two miles per hour in a fifty-five mile-per-hour zone. His son Lonzo was in the car at the time. Approximately twelve minutes after the ticket was issued, Thomas, who was intoxicated at the time, wrecked his vehicle, causing fatal injuries to his son. Lonzo’s heirs sued the Mississippi Department of Public Safety and Officer Johnson for not checking Thomas for driving under the influence. The court granted judgment in favor of MDPS and Officer Johnson. Cheryl Thomas, the mother and legal heir of Lonzo, appeals. |
| Summary of Opinion Analysis: | Issue 1: Perjury Thomas argues that an officer called by MDPS committed perjury, that the officer told Thomas and her family that Mr. Thomas reeked of alcohol, but on the witness stand he repeatedly and consistently testified that he did not smell alcohol on Mr. Thomas’s person or breath. In order the be granted a new trial, the plaintiff must be able to show that any such perjury was sufficiently proven and the result of a new trial would be different from the one reached. Here, the officer’s testimony not to have smelled alcohol against a conflicting affidavit is impeachment, not perjury, and the affidavit stating that he detected a faint smell of alcohol makes it cumulative with other witnesses who testified that they smelled alcohol on Mr. Thomas’s breath. Therefore, Thomas has not met her burden. Issue 2: Sufficiency of evidence In order to prevail against MDPS under section 11-46-9(1)©, the court must find that Officer Johnson, in not detecting Mr. Thomas’s drunkenness, acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury. The DUI detection process consists of three stages. The first stage is the “detection in motion” stage, where the police officer observes any erratic driving and anything else that would constitute the possibility of a DUI. In the second stage, the officer takes notice of the characteristics of the driver himself. The third and final stage is pre-arrest screening, consisting of tests such as horizontal gaze nystagmus, walk and turn, and one leg stand. Officer Johnson observed Mr. Thomas in stages one and two of DUI detection, but he did not perform any pre-arrest screening tests. Thomas urges that the most compelling reason for Officer Johnson to have administered the field sobriety tests is the sheer speed that Mr. Thomas was driving his van. Officer Johnson admitted that speeding alone is enough to call attention to the fact that the driver may be under the influence, and the trial judge acknowledged that driving ninety-two miles per hour was both “foolish” and “dangerous.” While Mr. Thomas was clearly reckless in his driving, his recklessness does not necessarily raise the presumption that he was under the influence of alcohol. The DWI manual lists twenty characteristics of drivers under the influence, and excessive speed is not one of them. In fact, expert testimony revealed that Mr. Thomas did not exhibit any of the twenty cues that would indicate impairment while he was in Officer Johnson’s presence. Therefore, the judge did not abuse his discretion in finding that Officer Johnson’s failure to check for DUI constituted a higher standard of care than reckless disregard. Issue 3: Legal standard The court stated that Thomas would have to show reckless disregard on the part of Officer Johnson in order to recover against the State. Both parties agree that reckless disregard is the correct standard, but they disagree as to whether the judge properly applied this standard. Reckless disregard embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act. Here, the judge was well aware of Officer Johnson’s thought processes at the time of the arrest, and he assessed the credibility of Officer Johnson and the other witnesses. He properly held that Officer Johnson did not show reckless disregard in his duties. |
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