McCreary v. City of Gautier, et al.
| Docket Number: | 2010-CA-02032-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-05-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Applicability of section 11-46-9 - Criminal activity - Malicious prosecution Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Maxwell and Fair, JJ. Concur in Part, Concur in Result 1: Russell, J., Concurs in Result Only Without Separate Written Opinion Concurs in Result Only: Russell, J., Concurs in Result Only Without Separate Written Opinion Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 11-10-2010 Appealed from: Jackson County Circuit Court Judge: Dale Harkey Disposition: SUMMARY JUDGMENT GRANTED TO APPELLEES ON APPELLANT’S TORT - CLAIMS-ACT SUIT AND ON APPELLANT’S MALICIOUS PROSECUTION SUIT Case Number: 2010-00017 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Christopher McCreary |
WANDA ALEXANDER WILLIAMS |
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| Appellee: | City of Gautier, Mississippi, Eddie Williams and Officer Derrick Welton | JOSHUA WESLEY DANOS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Tort Claims Act - Applicability of section 11-46-9 - Criminal activity - Malicious prosecution |
| Summary of the Facts: | Christopher McCreary filed suit against the City of Gautier and two of its police officers, Officer Derrick Welton and Chief of Police Eddie Williams, alleging that he was attacked by a K-9 police dog after he was stopped for a traffic violation. The circuit court granted summary judgment to both the City and the officers after finding that the City and the officers were immune from liability pursuant to section 11-46-9. McCreary appeals. |
| Summary of Opinion Analysis: | Issue 1: Applicability of section 11-46-9 McCreary argues that the circuit judge improperly applied section 11-46-9(1)(c) to the facts of this case, claiming that the circuit judge only considered the last part of section 11-46-9(1)(c) and thus the circuit judge ruled only on McCreary’s behavior — and disregarded Officer Welton’s behavior — on the night of McCreary’s arrest. Section 11-46-9(1)(c) provides that a governmental entity shall not be liable for any claim arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the same time of the injury. McCreary argues that the timing of the injury is an important factor to consider under 11-46-9(1)(c), since he contends this statute only applies to claims brought by individuals who are engaged in criminal activity at the time of injury. McCreary asserts that his version of the facts reflects that the police dog bit him before he could exit his vehicle, and not after he exited the vehicle, as stated by Officer Welton. McCreary claims that this indicates he was not engaged in criminal activity at the time he was attacked by the police dog. For recovery from a governmental entity to be barred because of the victim's criminal activity, the criminal activity must have some causal nexus to the wrongdoing of the tortfeasor. In this case, the circuit judge found a causal nexus between McCreary’s apprehension for a window-tint violation and the subsequent criminal charges. The record supports a showing of probable cause for the stop and subsequent arrest for disorderly conduct and resisting arrest. The record also shows that the county court judge found that McCreary refused and disobeyed direct commands from Officer Welton prior to being apprehended by the police dog. McCreary also argues that the circuit judge should have considered how Officer Welton handled the police dog when McCreary received his injuries. Even viewing the facts in a light most favorable to McCreary, there is no evidence that the City or the officers acted outside of the course and scope of employment, or that their conduct rose to the level of reckless disregard based upon the facts in the record. Issue 2: Malicious prosecution McCreary argues that the circuit judge erred by only addressing one of the six elements required to prove malicious prosecution — termination of the proceeding in the plaintiff’s favor. The elements of the tort of malicious prosecution are: the institution of a proceeding; by, or at the insistence of the defendant; the termination of such proceedings in the plaintiff's favor; malice in instituting the proceedings; want of probable cause for the proceedings; the suffering of injury or damage as a result of the prosecution. The record shows that McCreary’s criminal charges of disorderly conduct and resisting arrest were affirmed by the county court. McCreary also pled guilty to the charge of possession of marijuana. As such, the criminal proceedings did not terminate in McCreary’s favor; therefore, the facts fail to satisfy the third element of the malicious-prosecution claim. Additionally, the county court found that probable cause existed to arrest McCreary for each of the charges, thus eliminating the fifth element of the malicious-prosecution claim. |
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