City of Ellisville, et al. v. Richardson
| Docket Number: | 2004-CA-00123-SCT | |
| Oral Argument: | 01-19-2005 | |
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| Supreme Court: | Opinion Link Opinion Date: 04-28-2005 Opinion Author: Randolph, J. Holding: Affirmed in Part; Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Reckless disregard - Police pursuit - Apportionment of fault - Section 85-5-7 - Permanent injury - Medical proof Judge(s) Concurring: Cobb, P.J., Carlson and Graves, JJ. Non Participating Judge(s): Smith, C.J., and Diaz, J. Dissenting Author : Dickinson, J. Dissent Joined By : Waller P.J., and Easley, J. Procedural History: Bench Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 10-31-2003 Appealed from: Jones County Circuit Court Judge: Robert Goza, Jr. Disposition: Entered a Memorandum Opinion and Judgment, awarding $95,000.00 to Tammy, $2,500.00 to Shana, and $1,000.00 to Ronnie, against the City and Officer Tolbert. Case Number: 2000-33-CV12 |
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| Party Name: | Attorney Name: | |||
| Appellant: | The City of Ellisville, Mississippi, and Michael Tolbert, Individually and in His Official Capacity |
HAROLD WAITS MELVIN,
PATRICIA FRANCINE MELVIN |
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| Appellee: | Tammy W. Richardson, Ronnie Richardson and Shana Richardson, a Minor by and Through Her Mother and Natural Friend, Tammy W. Richardson | EDWIN L. BEAN |
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| Topic: | Personal injury - Tort Claims Act - Reckless disregard - Police pursuit - Apportionment of fault - Section 85-5-7 - Permanent injury - Medical proof |
| Summary of the Facts: | Tammy Richardson and her minor daughter suffered injuries when hit by a car being driven by Joe Evans, Jr. Evan was being pursued by officer Michael Tolbert of the City of Ellisville police department at the time of the accident. Tammy, her husband Ronnie, and their daughter, filed a suit against the City of Ellisville, and officer Tolbert, individually, and in his official capacity. Following trial, the court entered a Memorandum Opinion and Judgment, awarding $95,000 to Tammy, $2,500 to the daughter, and $1,000 to Ronnie, against the City and Officer Tolbert. The defendants appeal. |
| Summary of Opinion Analysis: | Issue 1: Reckless disregard Immunity afforded under the Tort Claims Act does not apply if the employee acted in reckless disregard for the safety and well-being of any person not engaged in criminal activity at the time of the injury. Factors the court should consider in connection with police pursuits include 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 led 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. The evidence in this case shows that the chase lasted for nine-tenths of a mile, occurred at night, in a residential area on a hilly, curvy, two-lane road with medium levels of traffic. The officer traveled this road frequently and had prior knowledge that it was a residential area and continued to pursue Evans after Evans had run oncoming traffic off the road. The officer was not in pursuit of an unknown suspect. In fact, the officer had previous encounters with Evans and knew that Evans was likely to try to avoid arrest. There was also testimony to establish the fact that the officer proceeded with his sirens and flashing lights up until the time of the accident, that he was driving in excess of the speed limit, and that there were at least four cars between the officer and Evans at the time of the accident. Furthermore, there was ample evidence to support violations of the City of Ellisville’s Pursuit of Motor Vehicles policy which requires officers to weigh the seriousness of the offense against the hazards present to innocent citizens who may become involved and to continually ask this question as the chase continues. Therefore, there is substantial and credible evidence to support a finding of reckless disregard. Issue 2: Apportionment of fault The City argues that the court erred by not apportioning fault to Evans. Evans was not named as a defendant. However, there was testimony that Evans was the driver of the vehicle that collided with the plaintiffs, and the Richardsons alleged in their complaint that Evans was negligent. Obviously the issue of Evans’ negligence was before the court, as the judge addressed Evans’ negligence in his Memorandum Opinion. Section 85-5-7 requires the trier of fact to apportion fault. It is unclear from the court’s memorandum opinion and judgment and judgment overruling the motion to reconsider if either it assessed the plaintiffs’ total damages in an amount greater than the judgment, and accordingly reduced the award by a percentage of fault assessed to Evans, or if it determined the total damages suffered by plaintiffs and assessed no percentage of fault to Evans. The case is reversed and remanded for a specific finding of the total damages suffered by each plaintiff, and for a specific finding of the respective percentages of fault of Tolbert and Evans, if any. Issue 3: Medical proof The City argues that the court erred in finding that Tammy’s injuries were permanent since such a finding was not supported by the medical evidence. Any witness is competent to testify who has evidentiary facts within his personal knowledge, gained through any of his senses. A nonprofessional witness may describe personal injuries. Physical pain, weakness, exhaustion and the like are matters one may testify about. Here, the testimony of pain and swelling three and a half years after the accident was sufficient to find an injury of indefinite duration. |
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