McCoy, et al. v. City of Florence, et al.


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Docket Number: 2005-CA-00803-COA
Linked Case(s): 2005-CT-00803-SCT ; 2005-CA-00803-COA

Court of Appeals: Opinion Link
Opinion Date: 07-18-2006
Opinion Author: ROBERTS, J.
Holding: Affirmed in Part, Reversed in Part

Additional Case Information: Topic: Personal injury - Tort Claims Act - Reckless disregard - Criminal activity - Failure to file motion for summary judgment - Frivolous appeal - M.R.A.P. 38
Judge(s) Concurring: LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ.
Concurs in Result Only: KING, C.J., AND IRVING, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 03-21-2005
Appealed from: RANKIN COUNTY CIRCUIT COURT
Judge: William E. Chapman, III
Disposition: DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT GRANTED.
Case Number: 2002-149

  Party Name: Attorney Name:  
Appellant: LINDA MCCOY, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF ROBIN MCCOY, DECEASED AND DANIEL AND JEWELINE LEE, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF DANA LEE, DECEASED




DRAYTON D. BERKLEY



 

Appellee: CITY OF FLORENCE, CITY OF RICHLAND, RANKIN COUNTY SHERIFF’S DEPARTMENT AND COREY TATE VICTORIA HARDY RUNDLETT, PAUL HOBART KIMBLE, B. STEVENS HAZARD, J. LAWSON HESTER  

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Topic: Personal injury - Tort Claims Act - Reckless disregard - Criminal activity - Failure to file motion for summary judgment - Frivolous appeal - M.R.A.P. 38

Summary of the Facts: While fleeing from police in a stolen vehicle, Corey Tate wrecked the car. The three passengers in the car, Robin McCoy, Dana Lee, and Steven Bledsoe, were all killed. Robin’s parents and Dana’s parents sued Corey for wrongful death. Later, they sued the City of Florence, the City of Richland, and Rankin County. The court awarded summary judgment to all defendants, and the McCoys and Lees appeal.

Summary of Opinion Analysis: Issue 1: Reckless disregard The appellants argue that summary judgment was inappropriate because genuine issues of material fact exist regarding whether Florence, Richland, and Rankin County acted in reckless disregard of Robin and Dana’s safety and well-being. Richland police officers prevented traffic from entering Highway 49. They were not involvement in a pursuit but were bystanders. Also, there was no definitive testimony of Rankin County’s participation in the pursuit. Therefore, only Florence’s participation in the pursuit needs to be analyzed for reckless disregard. The “reckless disregard” standard encompasses willful and wanton action, which signifies knowingly and intentionally committing a wrongful act. In analyzing whether someone acted in reckless disregard, the court considers the length of the chase, type of neighborhood, characteristics of the streets, the presence of vehicular or pedestrian traffic, weather conditions and visibility, the seriousness of the offense for which the police are pursuing the suspect, whether the officer proceeded with sirens and blue lights, whether the officer had available alternatives which would lead to the apprehension of the suspect besides pursuit, the existence of police policy which prohibits pursuit under the circumstances, and the rate of speed of the officer in comparison to the posted speed limit. Corey’s flight lasted for a matter of minutes over a distance of five miles. Corey’s flight took place on Highway 49, a four– lane highway divided by a median. There is little to no testimony regarding the characteristics of the streets on which the flight took place. All testimony indicates that traffic was light, at most. The weather was sunny and clear. Corey was operating a stolen vehicle with a suspended license, and he fled, unprovoked from the officer. The officer had his sirens on and his blue lights. The officer believed he had no alternative means to apprehend Corey. Nothing in Florence’s policy prohibited the officer’s pursuit. The undisputed proof shows that Corey fled the gas station unprovoked and proceeded in a life-threatening manner. That the officer exceeded the posted speed limit in effort to merely maintain sight of Corey is in no way indicative of reckless disregard. When considering the totality of the circumstances, there was no reckless disregard. Issue 2: Criminal activity When the alleged tortious act involves police protection, a governmental entity is immune if the decedent was engaged in criminal activity. The evidence is without contradiction that Robin and Dana were engaged in criminal activity. There is no dispute that Robin and Dana were aware that the Lexus was stolen. With that guilty knowledge, Robin and Dana encouraged, if not pled with Corey to flee from the officer. Robin and Dana’s encouragement to flee amounts to a direct causal nexus of Corey’s illegal flight. A person who aids, assists, or encourages another to commit a crime is as guilty as the principal. Issue 3: Failure to file motion for summary judgment The appellants argue that the court erred when it granted summary judgment in favor of all defendants because Corey did not file a motion for summary judgment. Corey never filed an answer nor made an appearance. In addition, he never filed a motion for summary judgment. Therefore, the judgment of the circuit court is reversed and remanded as it applies to Corey only. Issue 4: Frivolous appeal Rankin County argues that the Court should levy sanctions against the appellants and their attorney because their appeal is frivolous. According to M.R.A.P. 38, if an appeal is frivolous, damages and single or double costs to the appellee shall be awarded. An appeal is frivolous when, objectively speaking, the appellant has no hope of success. Here, the appellants had no hope of success against Rankin County, because the undisputed facts among the record show that Robin and Dana were involved in criminal activity at the time of their death. Therefore, Rankin County is awarded those attorney’s fees incurred in defending this action on appeal.


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