Kirk v. Crump
| Docket Number: | 2002-CA-02101-COA Linked Case(s): 2002-CT-02101-SCT2002-CA-02101-COA |
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| Oral Argument: | 01-27-2004 | |
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| Court of Appeals: |
Opinion Date: 06-29-2004 Opinion Author: KING, C.J. Holding: Affirmed in part; Reversed and Remanded in part |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Scope of employment - Assault - Jury trial Judge(s) Concurring: BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, AND GRIFFIS, JJ. Dissenting Author : CHANDLER, J. Procedural History: Dismissal Nature of the Case: Negligence |
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| Trial Court: |
Date of Trial Judgment: 12-09-2002 Appealed from: TUNICA COUNTY CIRCUIT COURT Judge: Al Smith Disposition: AFTER BENCH TRIAL, ORDER ENTERED DISMISSING WITH PREJUDICE ALL OF APPELLANT'S CLAIMS. |
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| Party Name: | Attorney Name: | |||
| Appellant: | RAY KIRK |
DENNIS L. HORN
JOSEPH C. GIBBS |
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| Appellee: | JAMES O. CRUMP, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DEPUTY SHERIFF OF TUNICA COUNTY, MISSISSIPPI, JOHN PICKETT, III, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF TUNICA COUNTY, MISSISSIPPI, AND THE COUNTY OF TUNICA, MISSISSIPPI, A POLITICAL SUBDIVISION OF THE STATE OF MISSISSIPPI | JOHN S. HILL HOLLY STUBBLEFIELD MATHEWS |
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| Topic: | Personal injury - Tort Claims Act - Scope of employment - Assault - Jury trial |
| Summary of the Facts: | Raymond Kirk filed a complaint against James Crump, individually and in his official capacity as deputy sheriff of Tunica County; John Pickett, III individually and in his official capacity as Sheriff of Tunica County; and the County of Tunica. The court dismissed all claims against Sheriff John Pickett, III in his individual capacity, and also all of Kirk’s claims for punitive damages, prejudgment interest, and attorney fees. Kirk filed a second amended complaint against Sheriff Pickett in his individual capacity, and renewed his claims for prejudgment interest, attorney fees, and punitive damages. In his second amended complaint Kirk also added as a defendant, Western Surety Bonding Company. Sheriff Pickett and Deputy Crump filed a joint motion to dismiss all claims against Sheriff Pickett in his individual capacity, and all claims for prejudgment interest, attorney fees, and punitive damages. The judge granted the defendants’ motions. After a bench trial, the judge entered an order dismissing with prejudice all claims against the defendants. Kirk appeals. |
| Summary of Opinion Analysis: | Kirk argues that the court erred in granting summary judgment to the Sheriff in his individual and official capacity, because arresting casino patrons without arrest warrants and assisting the casinos in taking the “86" photographs strictly for casino use was in wanton disregard of his rights and was committed with malice, and such actions are not protected by the Tort Claims Act. Although Deputy Crump testified that he arrested probably more than twenty people per week after dispatched on a call from a casino, the evidence was not sufficiently developed to establish an official sheriff’s office policy of making improper warrantless arrests of casino patrons, and assisting the casinos in taking “86" photographs. Because the issue was not sufficiently developed, the court did not abuse its discretion in finding that the sheriff’s office was protected by the Tort Claims Act. Kirk also argues that Officer Crump acted with malice and committed an assault while forcing him to take the “86" picture for the casino and that his actions were outside the scope of his employment. He argues that he did not resist arrest, but merely resisted having his picture taken by the casino by turning his face away from the camera. While the arrest was poorly performed, it was a matter of legitimate government interest and was protected by sovereign immunity. However, Officer Crump physically forcing Kirk to take the “86" picture is a different matter altogether. There was no legitimate governmental interest served by Officer Crump’s assault upon Kirk to coerce him into submitting to an “86" photograph which served no arguable public purpose, and was for the sole benefit of the casino. His assault upon Kirk for that purpose was a criminal offense and outside the scope of his employment. Since Crump was acting as an agent for the casino and not as an employee of the sheriff’s department, he has waived the protections of sovereign immunity and is individually liable for his actions and any subsequent damage which they may have caused. Kirk also argues that since malice, assault and battery, and false arrest and imprisonment were alleged in his complaint, a jury should have been impaneled to determine whether the officer committed these acts. However, the Tort Claims Act requires that all actions filed pursuant to it be addressed in a bench trial including non-MTCA claims, when included in a complaint with MTCA claims. Having found that Officer Crump’s actions are not protected by the provisions of sovereign immunity, upon remand Kirk is entitled to a jury trial on the issue of Officer Crump’s individual liability for assault. |
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