Morton v. City of Shelby, et al.
| Docket Number: | 2006-CA-00255-COA Linked Case(s): 2006-CA-00255-SCT2006-CA-00255-COA2006-CT-00255-SCT |
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| Oral Argument: | 07-19-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-20-2007 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Burden of proof - Reckless disregard - Motion to strike deposition testimony - M.R.C.P. 30(e) & (f) - Motion to compel - M.R.E. 503 - Discovery - M.R.C.P. 56(f) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 01-17-2006 Appealed from: Bolivar County Circuit Court Judge: Larry O. Lewis Disposition: SUMMARY JUDGMENT GRANTED TO DEFENDANTS Case Number: 2004-0129 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | TYRONE MORTON AND ANNIE MORTON |
SARAH O’REILLY-EVANS
CARRIE JOHNSON |
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| Appellee: | CITY OF SHELBY AND JAMES CARMICLE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY | ROY JEFFERSON ALLEN |
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| Topic: | Personal injury - Tort Claims Act - Burden of proof - Reckless disregard - Motion to strike deposition testimony - M.R.C.P. 30(e) & (f) - Motion to compel - M.R.E. 503 - Discovery - M.R.C.P. 56(f) |
| Summary of the Facts: | Tyrone Morton sustained injuries when he was struck by a police car operated by James Carmicle, a police officer employed by the City of Shelby Police Department. Morton filed a complaint alleging that Officer Carmicle violently, negligently, and recklessly struck Morton with his vehicle and that Officer Carmicle exhibited a willful, wanton, and reckless disregard for Morton’s safety and well-being. Officer Carmicle moved for summary judgment which the court granted. Morton appeals. |
| Summary of Opinion Analysis: | Issue 1: Burden of proof Morton argues that the court shifted the burden of establishing a lack of any genuine issue of material fact to him rather than to the City and Officer Carmicle, the parties who moved for summary judgment. To withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim. Under the Tort Claims Act, the plaintiff has the burden of proving reckless disregard by a preponderance of the evidence. Thus, Morton was required to make an sufficient evidentiary showing of reckless disregard, and the trial court’s statement in this regard was an accurate statement of the law. Issue 2: Reckless disregard Reckless disregard has consistently been found where the conduct at issue demonstrates that the actor appreciated the unreasonable risk at stake and deliberately disregarded that risk and the high probability of harm involved. A review of the record reveals no evidence indicating that Officer Carmicle was acting with reckless disregard when he struck Morton with his vehicle. The evidence indicates that Morton was jogging in the dark wearing dark clothing and no reflective gear at the time Officer Carmicle struck him. There is no probative evidence indicating that Officer Carmicle was aware of Morton’s presence or that he was driving in a reckless manner. Morton argues that there was evidence in the record indicating that Officer Carmicle was traveling at an excessive rate of speed in a non-emergency situation. However, there is no definitive evidence in the record indicating the speed at which Carmicle was traveling at the time of the accident. Morton argues that the failure of Officer Carmicle to stop immediately after striking an unknown object supports a presumption that he acted with reckless disregard for the safety of others under the totality of the circumstances. Morton cites to no persuasive authority for his proposition that an officer’s actions after an incident may be utilized to infer or create a presumption that the officer was reckless before or during the accident. Morton argues that the trial court erred when it found that there was no genuine issue of material fact as to his visibility on the night in question. The mere fact that there may have been some lighting at or near the point of impact does not demonstrate that Officer Carmicle did in fact see Morton jogging on the side of the road or that he appreciated, and then disregarded, a known risk in striking Morton with his vehicle. Issue 3: Motion to strike deposition testimony Morton argues that the court committed reversible error when it denied his ore tenus motion to strike his deposition testimony based on his failure to read and attest to its accuracy and then using such testimony as a basis for granting summary judgment. He argues that, under M.R.C.P. 30(e), it is the responsibility of the party who took the deposition and subsequently seeks to use it, in this case Officer Carmicle and the City, to submit the deposition to the witness for affirmation. Although Morton argues that Rule 30(e) mandates that Officer Carmicle was duty-bound to provide him with a copy of the deposition, the rule does not state whose responsibility it is to submit the deposition to the testifying witness, i.e., the court reporter or the party taking the deposition. Regardless, it is undisputed that Morton did not examine the testimony prior to the summary judgment proceeding and did not waive his right to an examination; thus, according to Rule 30(e), Carmicle’s counsel was not permitted to use Morton’s deposition testimony as a basis for summary judgment without an accompanying statement regarding Morton’s refusal or failure to affirm the testimony. Despite the lack of such a statement, the issue of Morton’s failure to affirm his deposition testimony did eventually come before the trial court, and the court denied Morton’s motion to strike, accepting the certification of the court reporter that the transcript was a true recitation of the proceedings. According to M.R.C.P. 30(f), a court reporter’s certification that a transcript is a true record of the witness’ testimony is considered prima facie evidence of the testimony of the witness. Thus, although the exact requirements of Rule 30(e) were not followed at the trial level, there is no reversible error in the trial court’s denial of Morton’s motion to strike. While Morton did not examine his deposition testimony prior to the summary judgment hearing, he has not alluded to any portions of his deposition testimony that he believes to be inaccurate nor has he demonstrated how such inaccuracies serve to create genuine issue of material fact as to whether Officer Carmicle acted with reckless disregard. Issue 4: Motion to compel Morton argues that the court erred in denying his motion to compel discovery as it pertained to whether Officer Carmicle was administered a blood alcohol test following the accident at issue and to whether there was repair documentation for Officer Carmicle’s vehicle. Morton does not appear to contest the trial court’s finding that Officer Carmicle’s medical records, including the results of any blood alcohol test that may have been administered, fall within the scope of M.R.E. 503, the physician-patient privilege, nor would such an argument be successful. If a blood alcohol or drug test was administered at the hospital following the accident, the results of such test would clearly constitute knowledge derived by Officer Carmicle’s physician by virtue of a professional relationship and would be privileged. Moreover, there is no indication from the record that Officer Carmicle waived the privilege by putting his medical condition at issue. Even if the trial court erred in finding that Officer Carmicle was not in possession of any repair-related documentation, there is no reversible error in the trial court’s denial of Morton’s motion to compel as it pertained to such documentation. While Morton filed the motion to compel on June 24, 2005, he did not notice the motion for hearing until December 5, 2005, the same day as the hearing on the motion for summary judgment and well beyond the discovery deadline of August 30, 2005. Therefore, even if the trial court had ordered the repair documentation produced, Morton would still have had to obtain an accident reconstruction expert and allow time for such expert to make his findings and disclose them to opposing counsel, all while the summary judgment motion was ripe for decision. If Morton needed the accident reconstruction findings in order to establish reckless disregard, then he should have brought his motion on for hearing as soon as possible after it was filed rather than on the same day as the summary judgment motion. Issue 5: Discovery Morton argues that the trial court erred in granting summary judgment prior to the completion of discovery. He argues that his request for additional discovery was tantamount to a Rule 56(f) motion for a continuance. However, Rule 56(f) clearly contemplates that the motion should be filed prior to the trial court’s grant of summary judgment. Morton did not file such a motion prior to the trial court’s grant of summary judgment in favor of Officer Carmicle; rather, he merely noted in his opposition to the motion for summary judgment his contention that Officer Carmicle had failed to respond to his discovery requests completely and in a timely manner. The discovery deadline of August 30, 2005, had long since passed at the time Morton requested additional discovery. In addition, Morton has failed to demonstrate how he was prejudiced by the trial court’s refusal to allow additional discovery. |
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