E-Filed Document Oct :46: IA SCT Pages: 19 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI. No M-219

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1 E-Filed Document Oct :46: IA SCT Pages: 19 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI No M-219 INTERLOCUTORY APPEAL FROM THE COUNTY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI CITY OF CLINTON, MISSISSIPPI, and OFFICER MICHAEL KELLY DEFENDANTS/APPELLANTS v. Civil Action No PATRICE TORNES PLAINTIFF/APPELLEE BRIEF OF APPELLANTS ORAL ARGUMENT NOT REQUESTED ROBERT O. ALLEN (MSB #1525) WILLIAM R. ALLEN (#100541) J. CHADWICK WILLIAMS (MSB #102158) Allen, Allen, Breeland & Allen, PLLC 214 Justice Street P. O. Box 751 Brookhaven, MS Tel. (601) Fax (601) ATTORNEYS FOR APPELLANTS CITY OF CLINTON, MISSISSIPPI, AND OFFICER MICHAEL KELLY

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI No M-219 INTERLOCUTORY APPEAL FROM THE COUNTY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI CITY OF CLINTON, MISSISSIPPI, and OFFICER MICHAEL KELLY DEFENDANTS/APPELLANTS v. Civil Action No PATRICE TORNES PLAINTIFF/APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons and entities have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: Honorable Larita Cooper-Stokes, County Court Judge Patrice Tornes, Plaintiff Aafram Y. Sellers, Esq., Counsel for Plaintiff/Appellee Kelly M. Williams, Esq., Counsel for Plaintiff/Appellee City of Clinton, Mississippi, Defendant/Appellant Officer Michael Kelly, Defendant/Appellant Robert O. Allen, Counsel for Defendants/Appellants William R. Allen, Counsel for Defendants/Appellants i

3 J. Chadwick Williams, Counsel for Defendants/Appellants /s/ Robert O. Allen ROBERT O. ALLEN (MSB #1525) ii

4 TABLE OF CONTENTS 1. CERTIFICATE OF INTERESTED PERSONS....i 2. TABLE OF CONTENTS..... iii 3. TABLE OF AUTHORITIES... iv 4. STATEMENT OF THE ISSUES STATEMENT OF THE CASE..2 A. Nature of the Case 2 B. Course of Proceedings and Disposition Below.2 C. Statement of Facts.3 6. SUMMARY OF THE ARGUMENT STANDARD OF REVIEW ARGUMENT...5 I. Officer Michael Kelly - Individually.. 7 II. III. Police Function Exemption..8 Discretionary Function CONCLUSION CERTIFICATE iii

5 TABLE OF AUTHORITIES Cases Baker v. Holman, 2010 WL (N.D. Miss., 2010) Bonner v. McCormick, 827 So. 2d 39 (Miss. Ct. App. 2002)....9 Bonney v. Leflore County, 2013 WL (N.D. Miss., 2013) City of Jackson v. Powell, 917 So.2d 59 (Miss. 2005) Ellisville State Sch. V. Merrill, 732 So.2d 198 (Miss. 1999)...6 Estate of Williams v. City of Jackson, Miss., 844 So. 2d 1161 (Miss. 2003) Foster v. Noel, 715 So. 2d 174 (Miss. 1998)..9 Joseph v. City of Moss Point, 856 So. 2d 548 (Miss. Ct. App. 2003) Knight v. Miss. Transp. Comm n, 10 So.3d 962, 967 (Miss. Ct. App. 2009)..6 Little v. Miss. Dep t of Transp., 129 So.3d 132 (Miss. 2014)....6 Lowe v. City of Moss Point, No CA COA (Miss. Ct. App. Oct. 3, 2017)...7 Maye v. Pearl River County, 758 So. 2d 391 (Miss. 1999)...9 Turner v. Ruleville, 735 So. 2d 226 (Miss. 1999).. 9 Willing v. Benz, 958 So.2d 1240 (Miss. Ct. App. 2007)..7 Wright v. Lee County, 71 So.3d 1246 (Miss. Ct. App. 2011)..7 Statutes Miss. Code Ann Miss. Code Ann (1), (2), (4)....7 Miss. Code Ann , 8 iv

6 Miss. Code Ann (1) Miss. Code Ann (1)(c) , 8 Miss. Code Ann (1)(d) , 11 v

7 STATEMENT OF THE ISSUES I. THE TRIAL COURT ERRED IN FAILING TO APPLY THE IMMUNITY PROVISIONS OF THE MISSISSIPPI TORT CLAIMS ACT TO THE CITY OF CLINTON AND OFFICER MICHAEL KELLY. 1

8 STATEMENT OF THE CASE A. Nature of the Case This case deals with immunity under the Mississippi Tort Claims Act (Miss. Code Ann , et seq.) ( MTCA ). Precedent from this Court and the Mississippi Court of Appeals is clear that Clinton and Officer Kelly are immune from liability in this case. B. Course of Proceedings and Disposition Below On January 13, 2016, Plaintiff filed her Complaint in the County Court of the First Judicial District of Hinds County, Mississippi, against the City of Clinton and Officer Michael Kelly. [R. pp. 4-8](Complaint). Clinton and Officer Kelly filed their Answer raising, among others, all of the defenses available under the MTCA. [R. pp ](Answer). After a brief period of written discovery, on August 24, 2016, Clinton and Officer Kelly filed their Motion for Summary Judgment, corresponding Itemization of Undisputed Facts, and supporting Memorandum of Authorities, arguing they were immune from liability under the MTCA. [R. pp ](Motion for Summary Judgment); [R. pp ](Itemization of Undisputed Facts); [R. pp ](Memorandum of Authorities in Support of Motion for Summary Judgment). Plaintiff filed a Memorandum in Opposition on November 8, [R. pp ](Memorandum in Opposition to Motion for Summary Judgment). Clinton and Officer Kelly filed a Reply on November 10, [R. pp ](Reply to Plaintiff s Memorandum in Opposition to Motion for Summary Judgment). Oral argument was held before Judge Larita Cooper-Stokes on January 19, The County Court, Judge Larita Cooper Stokes presiding, ruled the motion was not well taken, and 2

9 an Order on Defendants Motion for Summary Judgment was entered in this matter on January 27, [R. p. 138; R.E. Tab 2, p. 4](Order on Defendant s Motion for Summary Judgment). The City of Clinton and Officer Kelly timely sought interlocutory review within twenty-one (21) days of entry of the County Court s January 27, 2017 Order, and the same was granted on April 5, C. Statement of Facts This matter arises from an automobile accident that took place on or about May 11, 2015, in Clinton, Hinds County, Mississippi, between an automobile being driven by Officer Michael Kelly and owned by the City of Clinton, Mississippi, and an automobile being driven by Plaintiff, Patrice Tornes. [R. p. 5](Complaint). More specifically Plaintiff was driving her vehicle in a westerly direction in the parking lot of the Tractor Supply store in the City of Clinton while, at the time, Clinton police officer, Officer Kelly, was stopped in the same parking lot with his vehicle pointing south. [R. pp ](Affidavit of Officer Michael Kelly). Plaintiff alleges that Officer Kelly, while in the scope and course of his employment as a police officer with the City of Clinton, allowed his vehicle to strike her vehicle. [R. p. 5](Complaint). According to Officer Kelly, he was dispatched on May 11, 2015, to the Day s Inn Motel in reference to an intoxicated person lying on the sidewalk. [R. pp ; 56](Affidavit of Officer Michael Kelly; Responses to Interrogatories). As he neared the area, he stopped his police vehicle in the parking lot at the corner of the Tractor Supply 3

10 Company side storage area to the south of the building. [R. p. 56]. Officer Kelly stopped so he could survey the area and visually locate the individual from a distance before making personal contact with the subject. Id. While Officer Kelly was stopped, Plaintiff s vehicle was traveling westbound in the same parking lot and was moving towards the self-storage unit next to the Day s Inn. Id. The rear wheel of Plaintiff s Honda struck the push bumper of Officer Kelly s patrol vehicle. Id. At all times herein, Officer Kelly was in the scope and course of his employment as a police officer for the City of Clinton, Mississippi. [R. pp ]. SUMMARY OF THE ARGUMENT This matter is subject to the provisions of the Mississippi Tort Claims Act ( MTCA ). Officer Kelly was in the scope and course of his employment as a police officer for the City of Clinton, Mississippi, and is immune from suit under Miss. Code Ann The City of Clinton is also immune from suit under the Police Function Exemption found at Miss. Code Ann (1)(c) regarding any of Plaintiff s claims that it could otherwise be vicariously liable for the acts of Officer Kellly. Finally, with regard to any claim that the City failed to properly train Officer Kelly, the City is entitled to immunity under the discretionary function exemption of the MTCA. Miss. Code Ann (1)(d). For these reasons, this Court should reverse the trial court s denial of summary judgment and render a judgment in favor of the City of Clinton and Michael Kelly. 4

11 STANDARD OF REVIEW The MTCA provides that governmental entities and their employees shall be exempt from liability in certain situations as outlined in the MTCA. Brantley v. City of Horn Lake, 152 So.3d 1106, ( 6) (Miss. 2014) (citing ). Whether governmental immunity applies is a question of law and is a proper matter for summary judgment. Id. (quoting Mitchell v. City of Greenville, 846 So.2d 1028, 1029 ( 8) (Miss. 2003)). An appellate court reviews the application of the MTCA under a de novo standard. Id. (citing Lee v. Mem'l Hosp. at Gulfport, 999 So.2d 1263, 1266 ( 8) (Miss. 2008)). The grant or denial of summary judgment is also reviewed de novo. Mitchell v. Ridgewood E. Apartments LLC, 205 So.3d 1069, 1073 ( 13) (Miss. 2016). In viewing the evidence in the light most favorable to the nonmoving party, summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. (quoting M.R.C.P. 56(c)). ARGUMENT Plaintiff s Complaint alleges that the City of Clinton and Officer Kelly caused his vehicle to be driven in a careless, negligent, and reckless manner without due regard for the safety of Plaintiff. [R. pp. 4-8](Complaint). Specifically, the Complaint charges Officer Kelly was guilty of (a) failure to operate said vehicle with due care and caution for the safety of Plaintiff, (b) failure to properly control his vehicle, (c) failure to keep a proper 5

12 lookout and be on the alert, (d) failure to take evasive action to prevent or avoid the collision, (e) failure to operate said vehicle in his lane of traffic, and (f) other acts or omissions of Officer Kelly. [R. p. 6](Complaint). Plaintiff further alleged that Clinton is vicariously liable for its employee s conduct while he was acting in the scope and course of his employment as a police officer for the City as well as for Clinton s negligent training Officer Kelly in how to properly operate his motor vehicle safely. [R. p. 6](Complaint). Finally, Plaintiff alleged that Clinton negligently entrusted the subject vehicle to Officer Kelly. [R. p. 7](Complaint). As an initial matter, the MTCA is to be interpreted as expressly written or by necessary implication in order to carry out the Legislature's intent to strictly limit the State's waiver of state sovereign immunity. Knight v. Miss. Transp. Comm'n, 10 So. 3d 962, 967 (Miss. Ct. App. 2009)(overruled on other grounds by Little v. Miss. Dep't of Transp., 129 So.3d 132 (Miss.2014)(emphasis added). It is well-settled that the courts of this State must, strictly construe section (1)(a-y) in accordance with its express wording, and that plaintiffs have a narrow passage through the previously impenetrable wall of sovereign immunity. Id. at p. 968 and Ellisville State Sch. v. Merrill, 732 So.2d 198, 202( 25) (Miss.1999). There are numerous provisions in the MTCA that provide Defendants immunity in this matter. This Court, however, only has to find immunity under one of the provisions, as where any of the immunities enumerated in section (1) apply, the government is completely immune from the claims arising from the act or omission 6

13 complained of. Wright v. Lee County, 71 So.3d 1246, 1250 ( 17) (Miss. Ct. App. 2011) quoting Willing v. Benz, 958 So.2d 1240, 1255 ( 40) (Miss.Ct.App.2007)); also see, Lowe v. City of Moss Point, NO CA COA, 12 (Miss.Ct.App. October 3, 2017). I. OFFICER MICHAEL KELLY - INDIVIDUALLY The MTCA provides a general waiver of liability for political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment. Miss. Code Ann (1)(emphasis added). Significantly, the Act provides a rebuttable presumption that any act or omission of an employee within the time and place of his employment is within the course and scope of his employment. Miss. Code Ann (4). Nevertheless, the Act states that conduct which constitutes fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations is not within the course and scope of an employee s employment. Miss. Code Ann (2). Section of the MTCA provides that no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties. Miss. Code Ann Accordingly, for any claim asserted against a governmental entity s employee that is governed by the MTCA, there can be no personal/individual lability for that employee. At all times herein Officer Kelly was driving a Clinton police vehicle with its express consent and permission and was in the scope and course of his employment with the City of Clinton. [R. pp ]. These fact are undisputed. In particular, Officer Kelly had been called out to go to investigate an intoxicated person lying on the 7

14 sidewalk within the city limits of Clinton, Mississippi. As such, Officer Kelly was within the scope and course of his employment with the City of Clinton and cannot be held personally liable for acts or omissions occurring within the scope and course of the employee s duties. Miss. Code Ann The County Court incorrectly denied immunity to Officer Kelly in his personal capacity in direct contradiction to the MTCA and this Court s precedent interpreting the same. II. POLICE FUNCTION EXEMPTION Plaintiff contends that Clinton is liable to her for Officer Kelly s running into the rear of her vehicle, and she alleges that, while in the scope and course of his employment with the City of Clinton, Officer Kelly was guilty of various acts of negligence. Again, the testimony is undisputed that Officer Kelly was in the scope and course of his employment with the City of Clinton Police Department at the time of the accident. Thus, the Police Function Exemption of the MTCA applies here to bar Plaintiff s claims against the City of Clinton. Section (1)(c) of the MTCA, commonly referred to as the police function exception, provides that [a] governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim [a]rising out of any act or omission or 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 time of the injury. Miss. Code Ann (1)(c) (emphasis added). Essentially, Section (1)(c) provides two avenues of immunity: (1) if the Plaintiff was engaged in criminal 8

15 activity at the time of the incident in question, the City is immune from suit and; (2) even if the Plaintiff was not engaged in criminal activity, if no officer acted with reckless disregard for safety and well-being, then the City is immune from suit. Estate of James Stanley Williams v. City of Jackson, Mississippi, 844 So. 2d 1161, 1164 (Miss. 2003). Reckless disregard requires more than a showing of mere negligence. Bonner v. McCormick, 827 So. 2d 39, 41 (Miss. Ct. App. 2002)(emphasis added). The Mississippi Supreme Court has explained that "[r]eckless disregard usually is accompanied by a conscious indifference to consequences amounting almost to a willingness that harm should follow." Maye v. Pearl River County, 758 So. 2d 391, 394 (Miss. 1999)(emphasis added). The Court has further explained that reckless disregard embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act. Turner v. Ruleville, 735 So. 2d 226, 230 (Miss. 1999) (emphasis added); see also, Foster v. Noel, 715 So. 2d 174 (Miss. 1998)(holding that willfulness and wantonness include an element of intent to harm ). Two decisions illustrate the application of the reckless disregard standard. First, in Turner v. Ruleville, 735 So. 2d 226 (Miss. 1999), an officer pulled over a visibly intoxicated driver and then allowed that driver to continue driving in spite of his easily observable intoxicated state. Id. at p The Mississippi Supreme Court found that the plaintiff had sufficiently pled reckless disregard by asserting that the officer in question allowed a driver he knew to be intoxicated and incapable of driving to get back in his car and drive away. Id. 9

16 On the other hand, in Joseph v. City of Moss Point, 856 So. 2d 548 (Miss. Ct. App. 2003) the Mississippi Court of Appeals found that an officer who inadvertently rearended the claimant had not acted in reckless disregard and that the City was therefore immune from liability. Id. at 551. The court explained that while the officer was remiss in paying attention to traffic directly in his lane, his reaction in prematurely moving forward was more of a reflex in response to his seeing traffic rather than a blatant exhibition of recklessness. Id. The court summarized that the officer was guilty of simple negligence and nothing more. Here, Plaintiff s Complaint does not even allege acts sufficient to overcome immunity under the Police Function Exemption as Plaintiff alleges mere negligence. As noted above, negligence is insufficient to meet the reckless disregard standard. Even had Plaintiff sufficiently alleged acts that amount to reckless disregard, the competent record evidence demonstrates that Officer Kelly did not act in reckless disregard for the Plaintiff s safety and wellbeing. Although the mobile manager attached to Officer Kelly s patrol car specifically shows that the vehicle was not moving at the time of the wreck, even if for the sake of argument if he did inadvertently pull out and hit Plaintiff s vehicle, the same amounts to nothing more than simple negligence, which is not actionable due to the police function exemption. This case is very similar to the City of Moss Point case and in fact, the Police Function Exemption is to protect officers from claims like this one. The County Court was wholly incorrect in denying the City immunity under the police function exemption of the MTCA. 10

17 III. DISCRETIONARY FUNCTION Plaintiff has alleged that Clinton is vicariously liable for Officer Kelly s operation of the motor vehicle due to negligent training of its employees in how to properly operate a vehicle safely. Plaintiff s negligence claim is barred by the discretionary function exemption of the Mississippi Tort Claims Act. Miss. Code Ann (1)(d). The discretionary function exemption states that: [a] governmental entity... shall not be liable for any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the governmental entity, whether or not the discretion be abused. Miss. Code Ann (1)(d). The manner in which Clinton trains its police officers is a discretionary function. Plaintiff s claims for negligent training and negligent supervision are both barred by the discretionary function exemption as how law enforcement agencies choose to supervise or train their officers is discretionary. See City of Jackson v. Powell, 917 So.2d 59, 74 (Miss. 2005), (supervision of a police officer is within the discretionary function exemption); Bonney v. Leflore County, 2013 WL (N.D. Miss. Mar. 26, 2013, (supervision and training of officers is discretionary), and Baker v. Holman, 2010 WL (N.D. Miss. Oct. 4, 2010)(supervision and training of officers is discretionary). While Plaintiff failed to provide any case law or statutory authority which evidenced that the training of Officer Kelly was ministerial, the County Court denied summary judgment necessarily finding that this duty was ministerial in nature. 11

18 CONCLUSION For the reasons stated hereinabove, Officer Kelly, individually, should have been dismissed from the lawsuit, and the matter should be dismissed as to the City because of the police function exemption of the MTCA, and the discretionary function exemption bars any claim for negligent training or supervision on the part of the City. Accordingly, this Court should reverse the trial court s denial of summary judgment and render a judgment in favor of the City of Clinton and Michael Kelly. DATE: OCTOBER 26 th, Respectfully submitted, CITY OF CLINTON, MISSISSIPPI, AND OFFICER MICHAEL KELLY BY: /s/ Robert O. Allen One of Their Attorneys ROBERT O. ALLEN (MSB #1525) WILLIAM R. ALLEN (MSB # ) J. CHADWICK WILLIAMS (MSB #102158) Allen, Allen, Breeland & Allen, PLLC 214 Justice Street P. O. Box 751 Brookhaven, MS Tel. (601) Fax (601) ballen@aabalegal.com wallen@aabalegal.com cwilliams@aabalegal.com 12

19 CERTIFICATE OF SERVICE I, the undersigned of Allen, Allen, Breeland & Allen, PLLC, hereby certify that on this day, I electronically filed the foregoing Brief of Appellant with the Clerk of the Court using the ECF system which gave notice to the following: Aafram Y. Sellers, Esq. Kelly M. Williams, Esq. Sellers & Associates 5760 I-55 North, Suite 300 Jackson, MS Attorneys for Plaintiff and I hereby certify that I have mailed by United States Postal Service the document to the following non-ecf participant: Honorable Larita Cooper-Stokes P. O. Box 327 Jackson, MS This the 26th day of October, /s/ Robert O. Allen OF COUNSEL 13