Herndon v. Miss. Forestry Comm'n


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Docket Number: 2009-CA-00700-COA
Linked Case(s): 2009-CA-00700-COA2009-CT-00700-SCT

Court of Appeals: Opinion Link
Opinion Date: 12-07-2010
Opinion Author: Barnes, J.
Holding: Affirmed.

Additional Case Information: Topic: Personal injury - Tort Claims Act - Immunity - Section 11-46-9 - Fire protection - Section 49-19-3(b) - Section 33-15-21(a) - Motion to compel - M.R.A.P. 3(c) - Reckless disregard - Work product
Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Ishee, Roberts and Maxwell, JJ.
Dissenting Author : Carlton, J., dissents with separate written opinion
Dissent Joined By : Lee, P.J.
Procedural History: Summary Judgment; Motion to Compel Production of Personnel File
Nature of the Case: CIVIL - OTHER

Trial Court: Date of Trial Judgment: 04-06-2009
Appealed from: PEARL RIVER COUNTY CIRCUIT COURT
Judge: R. I. Prichard, III
Disposition: MOTION FOR SUMMARY JUDGMENT GRANTED FOR APPELLEES AND MOTION TO COMPEL PRODUCTION OF JIMMY BOND’S PERSONNEL FILE DENIED
Case Number: 2007-0104P

  Party Name: Attorney Name:  
Appellant: H. K. Herndon, Jr. and Myrna J. Herndon




LAMPTON O. WILLIAMS JR., JOSEPH H. MONTGOMERY, CORY MORRIS WILLIAMS



 

Appellee: Mississippi Forestry Commission and Jimmy D. Bond STEPHEN GILES PERESICH, JOHANNA MALBROUGH MCMULLAN, HARRY JOHNSON SCHMIDT III  

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Topic: Personal injury - Tort Claims Act - Immunity - Section 11-46-9 - Fire protection - Section 49-19-3(b) - Section 33-15-21(a) - Motion to compel - M.R.A.P. 3(c) - Reckless disregard - Work product

Summary of the Facts: H.K. Herndon and his wife, Myrna J. Herndon, filed a complaint alleging that the Mississippi Forestry Commission and Jimmy Bond, an employee of MFC, were liable for his injuries resulting from an accident. The court granted MFC’s motion for summary judgment, and the Herndons appeal.

Summary of Opinion Analysis: Issue 1: Immunity Under section 11-46-9(1)(c), governmental entities and their employees engaged in the performance or execution of duties or activities relating to police or fire protection are immune from liability from certain torts if they are acting within the course and scope of their employment. The only exception is if the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury. The Herndons argue that the MFC is not an agency contemplated under this statute; therefore, the MFC and Bond, as its employee, are not immune from liability. The purpose of section 11-46-9 is to protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim. Entities engaged in police and fire protection activities will be liable for reckless acts only. The MFC claims that Bond’s actions on the day of the accident constituted “fire protection.” Under section 49-19-3(b), one of the duties bestowed upon the MFC is to prevent, control and extinguish forest fires, including the enforcement of any and all laws pertaining to the protection of forests and woodland. Furthermore, Bond’s job description states that he is to “participate[] in fire suppression work.” The transport truck driven by Bond had the word “FIRE” clearly marked on both sides of the cab of the truck. Bond was not merely a truck driver; he was a forest ranger with fire-suppression duties clearly outlined in his job description. Thus, there is nothing that would preclude the application of this statute to the MFC. Here, the bulldozer that was to be picked up by Bond was used to create fire lanes and clear storm debris. It was being used for a task related to the fire-protection services of the MFC. Therefore, Bond’s task of picking up the bulldozer was within the scope of the statute. The circuit court also found that the MFC had immunity under the Mississippi Emergency Management Act. Section 33-15-21(a) provides that state agencies and their employees participating in emergency-management services are immune from liability unless the employee is participating in “willful misconduct.” A press release stated the MFC had “activated its Incident Management Team,” which was to “coordinat[e] response and recovery missions for the agency’s needs in addition to tasks we receive from the Mississippi Emergency Management Agency.” In the five days preceding the accident, there were fifteen wildfire occurrences in Pearl River County. Based on the evidence in the record, there was no genuine issue of material fact as to whether the MFC and Bond were immune from liability under the MEML. Issue 2: Motion to compel The Herndons argue that the court erred in denying their motion to compel production of Bond’s personnel file, because the information could show reckless disregard on the part of the MFC by allowing Bond to operate the transport truck. The Herndons’ notice of appeal filed on April 28, 2009, states that the appeal is “from the Order dated and entered in this case on April 6, 2009.” Under M.R.A.P. 3(c), an appeal shall not be dismissed for informality of form or title of the notice of appeal. Thus, the merits will be considered. There is nothing contained in the personnel file that is relevant to the issue of whether Bond acted with reckless disregard. Thus, the court did not abuse its discretion. Issue 3: Reckless disregard The Herndons argue that, if it is found that the MTCA or MEML is applicable to the MFC, Bond’s actions and the actions of his supervisor, Smith, constituted “reckless disregard” or “willful misconduct.” The Herndons argue that Smith’s ordering of Bond to pick up the bulldozer was reckless as he knew that Bond did not have proper training to drive the transport vehicle; namely, that Bond did not have a commercial driver’s license. As the claim against Smith was not raised in the proceedings below, the circuit court did not address this issue. Therefore, it is barred from consideration on appeal. Moreover, there is nothing in the record to support the Herndons’ claim. Issue 4: Work product The Herndons filed a motion requesting the MFC’s internal accident-investigative report, the accident-system computer data entry form, and the State of Mississippi’s liability claim reporting form, which the circuit court granted. The MFC argues that as the information was prepared in anticipation of litigation and was, therefore, work product, the circuit court erred. Since the grant of summary judgment is affirmed, this issue is moot.


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