Brittany Lee Berry v. Jackson County, Mississippi

• Court: Court of Appeals of Mississippi
• Decided: December 3, 2024
• Docket: 2023-CA-00643-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00643-COA

BRITTANY LEE BERRY APPELLANT

v.

JACKSON COUNTY, MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/08/2023 TRIAL JUDGE: HON. STEPHEN B. SIMPSON COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ROSS JONATHAN FRANCO ATTORNEYS FOR APPELLEE: WILLIAM ROBERT ALLEN JACKYE C. BERTUCCI JAMES H. COLMER JR. LANCE WESLEY MARTIN NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 12/03/2024 MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., McCARTY AND EMFINGER, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Brittany Berry was injured when a vehicle driven by a person fleeing law enforcement

struck her vehicle. She filed suit for damages under the Mississippi Tort Claims Act

(MTCA), alleging that the law enforcement officers acted with reckless disregard for her

safety. The circuit court granted summary judgment in favor of the defendants, and Berry

appealed. Finding that the circuit court appropriately granted summary judgment, we affirm.

FACTS

¶2. On Monday, October 24, 2016, Captain James Sears with the Jackson County

Sheriff’s Department was working an interstate detail on I-10 called Operation Stonegarden, a grant program intended to curtail human traffickers, drug traffickers, and wanted persons.

Sears testified that while he was stationed in east Jackson County, he received a notification

that an Alabama license plate reader had identified a vehicle with a license plate registered

as stolen. The vehicle was crossing into Mississippi on I-10 going west. Sears spotted a

silver Ford Ranger with the matching license plate number. The license plate was registered

to a white 2007 GMC.1 The driver was later identified as Carl Young Jr. A female

passenger was seated in the front seat next to Young.

¶3. At approximately 7:15 p.m., Sears began following the Ford Ranger at mile marker

61 (approximately four miles east of D’Iberville, Mississippi) and called for backup. He

waited to activate his blue lights and siren until he confirmed that other officers were

available to assist him with a traffic stop. Jackson County Sheriff’s Deputies John Hampton

and Trung Nguyen were seven miles away at mile marker 54. Sears saw them at

approximately 7:20 p.m. He activated his blue lights and siren at mile marker 54 and

attempted a traffic stop. Young did not stop but increased his speed to 85 or 90 miles per

hour in a 70-mile-per-hour zone. Sears determined that a pursuit was warranted because the

driver was actively fleeing law enforcement. Sears and Nguyen pursued Young for the next

four miles on the interstate. Hampton followed, using his vehicle as a “rolling barrier” to

prevent traffic from approaching the chase. As they approached Exit 50 in Ocean Springs,

Sears noted that traffic was becoming “more congested,” and Young was driving more

erratically. Sears “went around the vehicle and attempted to perform a rolling block,” but

1 While the Ford Ranger was later discovered to be stolen, the information that Sears had at the time was only that the license plate was stolen.

2 Young exited the interstate at Exit 50 onto Washington Avenue in Ocean Springs. He ran

the red light at the top of the exit at the intersection of Washington Avenue and Highway

609, crossed six lanes of traffic, jumped a curb, and immediately re-entered I-10 west via the

entrance ramp from Washington Avenue.

¶4. Jackson County Sheriff’s Department Sergeant Michael Nutefall and Deputy Nathan

Fisher were near the I-10 entrance ramp at Washington Avenue and continued the pursuit.

Sears, Hampton, and Nguyen followed. Jackson County dispatch notified the D’Iberville

Police Department that the pursuit was headed toward D’Iberville. The pursuit then

continued westbound on the interstate for another four miles toward Exit 46 in D’Iberville,

which is in Harrison County. Wanting to keep Young on the interstate, Nutefall positioned

his vehicle in front of Young’s vehicle in an attempt to perform a second rolling roadblock.

Young swerved into the grass and exited at mile marker 46. Young drove up the ramp and

attempted to turn right onto Lamey Bridge Road going south. However, Young crashed into

the guardrail and stopped.

¶5. D’Iberville Police Officer Willis Krahenbuhl was traveling north on Lamey Bridge

Road when he saw Young crash into the guardrail. Krahenbuhl testified that he pulled his

patrol car in front of Young’s stopped vehicle at a forty-five-degree angle to block it in, and

Fisher angled his patrol car against the passenger door of the vehicle to prevent it from being

opened. Nutefall pulled up behind the vehicle and got out to apprehend the driver.

¶6. Fisher testified that as Nutefall approached, Young backed up and drove forward,

striking Krahenbuhl’s vehicle. Nutefall then began yelling at the driver to exit the vehicle.

3 Nutefall testified that he feared for his life, and he drew his service weapon and fired three

rounds at Young’s vehicle. Young then drove forward between Krahenbuhl’s and Fisher’s

vehicles and proceeded south on Lamey Bridge Road. Fisher followed. Fisher testified that

he pursued the vehicle south on Lamey Bridge Road at speeds of 40 to 50 miles per hour in

a 35 mile-per-hour zone.

¶7. After Young had traveled approximately 0.6 miles on Lamey Bridge Road, he ran a

red light at the intersection of Lamey Bridge Road and Popps Ferry Road. Fisher testified

that at the same time, Berry was in her vehicle turning left through the intersection onto

northbound Lamey Bridge Road from southbound Popps Ferry Road. Fisher testified that

Berry had the green light. When Young ran the red light, his vehicle T-boned Berry’s vehicle

in the center of the driver’s side. Fisher testified that during the entire pursuit on Lamey

Bridge Road, he never saw the brake lights activate on Young’s vehicle. According to

Fisher, Young continued to flee, and he turned west onto Bachman Road “just around the

corner from where [the] impact took place.” A short distance later, Young drove the vehicle

off the road, and he and the passenger exited the vehicle, ran, and jumped over a small fence

into a residential yard.

¶8. Fisher exited his patrol car and followed the suspects into the woods, where they

stopped running. Young followed Fisher’s command to raise his hands, but the female

passenger did not. She faced away from Fisher, and Fisher could only see her right hand.

She began to turn and move her right hand. Believing she may have a weapon and that his

life was in danger, Fisher fired at the female. Both suspects got on the ground. When

4 backup officers arrived, Fisher detained both suspects without incident, and the female

passenger received medical treatment.

PROCEDURAL HISTORY

¶9. On October 23, 2017, Berry filed a complaint under the MTCA in the Harrison

County Circuit Court against Jackson County and the City of D’Iberville. See Miss. Code

Ann. § 11-46-9(1)(c) (Rev. 2019). Berry alleged that officers with the Jackson County

Sheriff’s Department and City of D’Iberville Police Department, while acting in the course

and scope of their employment, disregarded standard operating procedures and proper

protocols in pursuing Young. Berry alleged that the officers demonstrated a reckless

disregard for her safety and well-being during a time when she was not engaged in a criminal

activity and that as a direct and proximate result of their actions, she suffered bodily injury

and was entitled to damages.

¶10. In February 2019, after discovery, Berry moved to dismiss with prejudice the City of

D’Iberville as a party, and the circuit court granted the motion. The circuit court then granted

Jackson County’s motion to transfer the case to Jackson County, per the venue requirements

of the MTCA. Miss. Code Ann. § 11-46-13(2) (Rev. 2019). Once transferred, all Jackson

County Circuit Court judges recused, and a special judge was appointed.

¶11. On April 15, 2020, Jackson County moved for summary judgment, arguing that (1)

it was immune from liability under the police-function exemption of the MTCA; (2) Berry

failed to show the officers acted with reckless disregard for her safety; (3) two distinct

pursuits occurred, neither of which demonstrated reckless disregard; and (4) no genuine issue

5 of material fact existed. Berry filed a response in opposition. A hearing was held in July

2020.

¶12. On May 8, 2023, the circuit court entered an order granting summary judgment in

favor of Jackson County. The circuit court adopted Jackson County’s proposed findings of

fact and conclusions of law, holding that the MTCA police-function exemption barred

Berry’s claims. She appeals.

STANDARD OF REVIEW

¶13. This Court “reviews a trial court’s grant or denial of summary judgment de novo.”

Yazoo City v. Hampton, 386 So. 3d 355, 357 (¶13) (Miss. 2024). The MTCA provides

governmental entities and their employees immunity from liability under certain

circumstances. Mitchell v. City of Greenville, 846 So. 2d 1028, 1029 (¶8) (Miss. 2003).

Immunity under the MTCA “is an entitlement not to stand trial rather than a mere defense

to liability and . . . should be resolved at the earliest possible stage of litigation.” Id.

“[I]mmunity is a question of law and is a proper matter for summary judgment . . . .” Id.

“Summary judgment is appropriate when ‘the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that there is

no genuine issue of material fact.’” Hampton, 386 So. 3d at 357 (¶13) (quoting M.R.C.P.

56(c)). “The evidence must be viewed in the light most favorable to the opposing party.”

Id.

¶14. The moving party “bears the burden of persuading the trial judge that: (1) no genuine

issue of material fact exists, and (2) on the basis of the facts established, [it] is entitled to

6 judgment as a matter of law.” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶11)

(Miss. 2013). A nonmoving plaintiff “carries the burden of producing sufficient evidence

of the essential elements of her claim at the summary-judgment stage, as she would carry the

burden of production at trial.” Id. at 89 (¶13).

DISCUSSION

I. Reckless Disregard

¶15. Berry argues that her MTCA claim survives summary judgment because a genuine

issue of material fact exists regarding whether the Jackson County officers acted with

reckless disregard for her safety and well-being.

¶16. Under the MTCA, a governmental entity and its employees acting within the course

and scope of their employment are generally immune from claims “[a]rising 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 . . . .” Miss. Code Ann.

§ 11-46-9(1)(c). “This exemption from liability, however, does not apply to acts or

omissions performed in ‘reckless disregard’ for the safety and well-being of one not engaged

in criminal acts.” City of Jackson v. Gray, 72 So. 3d 491, 495 (¶13) (Miss. 2011).

“Although the MTCA does not define reckless disregard, our caselaw instructs that reckless

disregard is a higher standard than gross negligence and that it involves willful or wanton

conduct which requires knowingly or intentionally doing a thing or wrongful act.” Id. at 495-

96 (¶13). “Cases brought under the tort claims act are subject to a bench trial, with the judge

sitting as both the finder of fact and law.” Phillips v. City of Oxford, 368 So. 3d 317, 326

7 (¶32) (Miss. 2023) (citing Miss. Code Ann. § 11-46-13(1) (Rev. 2019)).

¶17. “By requiring a finding of ‘reckless disregard of the safety and well-being of others,’

the Legislature set an extremely high bar for plaintiffs seeking to recover against a [county]

for a [law-enforcement] officer’s conduct while engaged in the performance of his or her

duties. The [county] is immune from liability for acts of negligence, and even gross

negligence is not enough.” City of Jackson v. Presley, 40 So. 3d 520, 523 (¶12) (Miss.

2010). To find reckless disregard, the plaintiff must prove that the governmental employee

acted with “a conscious indifference to consequences, amounting almost to a willingness that

harm should follow.” Miss. Dep’t of Pub. Safety v. Durn, 861 So. 2d 990, 995 (¶10) (Miss.

2003). Reckless disregard is shown where the action or inaction of a law enforcement officer

“evinces an entire abandonment of any care.” Presley, 40 So. 3d at 523 (¶12).

¶18. Our Supreme Court has set out ten factors to be considered in determining whether

reckless disregard occurred in the context of a police pursuit: (1) the length of the pursuit;

(2) the type of neighborhood; (3) the characteristics of the streets; (4) the presence of

vehicular or pedestrian traffic; (5) the weather conditions and visibility; (6) the seriousness

of the offense for which the police are pursuing the suspect; (7) the officers’ use of sirens and

blue lights; (8) available alternatives that would lead officers to the apprehension of the

suspect besides pursuit; (9) the existence of a police policy that prohibits pursuit under the

circumstances; and (10) the rate of speed of the officers in comparison to the posted speed

limit. City of Ellisville v. Richardson, 913 So. 2d 973, 977 (¶15) (Miss. 2005). “It is

appropriate for trial courts to consider all ten factors, and to look at the totality of the

8 circumstances when analyzing whether someone acted in reckless disregard.” Id. at 978

(¶17).

¶19. In addition to the law, Jackson County had a pursuit policy that required officers to

“use their best discretion and judgment when conducting emergency vehicle pursuits.” Many

of the policy factors overlap with the Richardson factors. Relevant to the claims Berry

raised, the policy required that the officer initiating the pursuit consider the following:

2. The decision to initiate pursuit is based on:

a. Officer’s actual or constructive knowledge that a serious violation of the law has, or is about to occur;

b. The officer’s conclusion that the immediate danger to the public or the officer created by the pursuit, is less than the immediate or potential danger to the public should the suspect remain at large.

c. Suspect exhibits intention to avoid apprehension by refusing to stop when properly directed to do so.

We shall address each of the Richardson factors, including Jackson County’s department

policy, and consider the totality of the circumstances.

A. Richardson Factors

1. Length of the Pursuit

¶20. Beginning when Captain Sears activated his blue lights, the pursuit spanned

approximately 8.6 miles and lasted approximately seven minutes. The first eight miles of the

pursuit occurred on the interstate, and the final 0.6 miles occurred on Lamey Bridge Road

in D’Iberville.

¶21. Berry argues that Mississippi courts have found reckless disregard in pursuits that

9 were shorter in time and distance. In support of her argument, Berry cites City of Jackson

v. Brister, 838 So. 2d 274, 279 (¶17) (Miss. 2003) (less than a mile pursuit lasting forty-to-

sixty seconds); Hill v. Hinds County, 237 So. 3d 838, 840 (¶3) (Miss. Ct. App. 2017) (3.75-

mile pursuit lasting five minutes); City of Jackson v. Law, 65 So. 3d 821, 825 (¶8) (Miss.

2011) (seven-mile pursuit lasting five-to-six minutes); Richardson, 913 So. 2d at 978 (¶17)

(nine-tenths of a mile pursuit occurring at night); and City of Jackson v. Lewis, 153 So. 3d

689, 696 (¶14) (Miss. 2014) (1.8-mile pursuit lasting four minutes).

¶22. However, none of the cited cases hinged on the length or distance of the pursuit in

finding reckless disregard. In Brister, the Supreme Court found reckless disregard because

the officers initiated the pursuit with a “conscious indifference” to department policies,

among other factors. Brister, 838 So. 2d at 281 (¶23). Officers received a call from a bank

at 11 a.m. on a weekday informing them that a known individual was attempting to cash a

forged check. Id. at 267-77 (¶¶6-7). Despite the suspect’s car being the only vehicle in the

bank parking lot, the officers parked next to the suspect’s car instead of blocking it in, easily

allowing the suspect to back out of the parking space and flee. Id. at 280 (¶21). A one-

month rookie officer “involved in his first hot pursuit and totally unfamiliar with the area”

took the lead as the suspect traveled through a “heavily populated” area. Id. “The route took

them through residential areas including apartment complexes, single-family housing and

condominiums, a park, and even past an elementary school traveling in a 35 miles per hour

zone at speeds in excess of 55 miles per hour. The suspect was traveling at times in excess

of 70 or 80 miles per hour,” ultimately crashing into a vehicle and fatally injuring its driver.

10 Id. at 276, 280 (¶¶1, 21). The officers violated department policies by failing to consider

alternatives, such as writing down the suspect’s tag number or blocking the vehicle while it

was in the bank’s parking lot, and the officers failed to balance the public’s safety versus the

seriousness of the offense (check forgery). Id. at 279 (¶20).

¶23. In Hill, this Court reversed and remanded a grant of summary judgment in favor of

Hinds County because “factual disputes persist[ed]” regarding whether law enforcement

acted in reckless disregard for Hill’s safety. Hill, 237 So. 3d at 843 (¶15). Hill sued for

injuries he sustained when he was pursued by officers and hit another car in an intersection.

Id. at 841 (¶¶5, 7). Hill disputed that he engaged in careless or reckless driving, which was

the reason for the pursuit but an offense for which Hill was never charged. Id. at 843 (¶20).

Further, the parties disputed whether the officers “terminated the pursuit” before the crash

or, as Hill claimed, “continued their pursuit with blue lights staying ‘right on’ Hill until the

deputies purportedly ‘bumped’ his vehicle, causing it to collide with another vehicle.” Id.

at (¶15). This Court found that “[b]ased on the contested facts, triable issues of material fact

exist.” Id. at 844 (¶22).

¶24. In Richardson, reckless disregard was found where the pursuit occurred at night in a

residential area; the officer continued the pursuit even “after Evans[, the suspect,] had run

oncoming traffic off the road”; the officer continued the pursuit “while Evans weaved in and

out of traffic at excessive speeds and endangered the safety of innocent citizens”; and the

pursuing officers knew Evans, “knew where Evans lived, knew Evans’s mother, and knew

that Evans was likely to try to avoid arrest which he did even after colliding with [the

11 victim’s] vehicle.” Richardson, 913 So. 2d at 978 (¶17). The Supreme Court found that

these facts provided substantial and credible evidence to support a finding of reckless

disregard of the officer’s duty to balance the public’s safety with the immediate need to

apprehend the suspect. Id. at 979 (¶21).

¶25. Finally, in Lewis, the Supreme Court determined that substantial evidence supported

a finding of reckless disregard where “Officer Jackson observed Butler violating a traffic

ordinance, which was a misdemeanor offense, by turning off his car’s headlights and making

a U-turn, ostensibly to avoid a police roadblock.” Lewis, 153 So. 3d at 700 (¶28). The

officer pursued Butler “for approximately 1.2 miles at a relatively moderate speed” at night.

Id. “Officer Jackson testified that he ran three red traffic lights and two stop signs in pursuit

of Butler’s car, knowing that the headlights on Butler’s car were not illuminated.” Id.

Officer Jackson could have “relay[ed] the tag number of Butler’s vehicle to dispatch, but

chose not to do so.” Id. The “[m]ost egregious” action was the officer’s “wanton defiance”

of his superior’s directive to terminate pursuit and “his failure to comply with the

standard . . . for communicating termination to the pursued party.” Id. at (¶29).

¶26. Berry does not cite any caselaw or record evidence that the length of the pursuit in this

case demonstrated reckless disregard. Further, no material fact is in dispute regarding the

length of the pursuit. Because Berry has presented no evidence that the length of the pursuit

was inherently reckless or is in dispute, we cannot find that a genuine issue of material fact

exists as to this factor.

2. Type of Neighborhood

12 ¶27. For approximately eight miles, the pursuit occurred on the interstate. The pursuit

briefly left the interstate at Exit 50 in Ocean Springs, where Young ran a red light, crossed

six lanes of traffic on Washington Avenue, and immediately re-entered the interstate. For

the final 0.6 miles, the pursuit took place through a mixture of commercial and residential

areas on Lamey Bridge Road in D’Iberville.

¶28. Officers recognized that pursuing Young off the interstate was more risky, and they

made efforts to keep Young on the interstate. Captain Sears with the Jackson County

Sheriff’s Department, who initiated the pursuit, unsuccessfully attempted to perform a rolling

roadblock before the Biloxi exit, and Sergeant Nutefall unsuccessfully attempted to perform

a rolling roadblock before the D’Iberville exit. Nutefall testified, “I knew we was coming

up to D’Iberville. My intention is to keep him on the interstate. . . . So I get in front of him

and try to keep him on the interstate. I didn’t want him to get off the exit.”

¶29. Nutefall was asked about the specific dangers of the pursuit proceeding into

D’Iberville and, specifically, southbound onto Lamey Bridge Road. Nutefall replied:

Well, my main concern was where the heavy population is. I wasn’t thinking about the southbound because the only thing there is a skating rink, and I don’t even remember what day of the week it was, but I knew going north would be a more heavily populated traffic area.

¶30. When Sergeant Ken Moran, commanding officer of the D’Iberville Police

Department, was asked about the “specific dangers about carrying on a pursuit in D’Iberville

where this pursuit actually occurred,” he testified generally regarding the area:

Shopping. And there’s . . . I want to say three major intersections right there. And just south of that general location, it comes into a school area. So I’m not sure if they had, like, a baseball game or a game going on that night. I don’t

13 think there was. But sometimes they have, like, practice and stuff going out there. Also, to the east side of that is a neighborhood, a subdivision, so those were some other factors. Oh, the skating rink. Yeah, the skating rink right there, that place stays jammed up. Churches, like, all kind of stuff in that area.

D’Iberville Officer Travis Sorenson, who was positioned “on the bottom of the I-10

eastbound on-ramp from Lamey Bridge Road” and drove to the scene of the accident after

the pursuit ended, was also asked about the area:

Q. Going down into D’Iberville, down Lamey Bridge Road, towards Popps Ferry Road, as this pursuit—that’s the path this pursuit took, would you consider that area between Lamey Bridge Road, down to Popps Ferry Road, to be more residential, commercial, a mix of both? How would you describe it?

A. There’s only two businesses on it, so, I mean, it’s kind of—there’s houses on the left. There’s a house on the right. There’s a church and then two businesses. Other than that, I mean, it’s streets. You don’t really get into the thickness of a neighborhood or anything until you would have to turn off of Lamey Bridge. So I would say—because the majority of it, from the interstate down, is just an empty field to the right. And then to the left, there’s a fire department, and then, you know, you have your roads, but there’s only one house, like, in between the roads, and then the church and an empty parking lot. So it’s not very condensed right there.

Sorenson testified that on the night of the pursuit, “traffic on Lamey Bridge Road . . . was

pretty empty.”

¶31. Berry argues that the circuit court “erred in determining the ‘type of neighborhood’

factor weighed in favor of [Jackson County] because the pursuit did not traverse purely

residential areas.” Berry asserts that “there are many parks, schools, and playgrounds in the

area,” and “[i]t is well known skating rinks are destinations for children that could be in

parking lots in and around the area.” Berry further asserts that the circuit court ignored the

14 fact that there were many stoplights and intersections along the pursuit route.

¶32. However, “[g]eneral allegations without precisely stated facts are insufficient to

overcome a summary judgment motion.” Williamson ex rel. Williamson v. Keith, 786 So. 2d

390, 395 (¶19) (Miss. 2001). In Tennesen v. City of Hattiesburg, 393 So. 3d 424, 434 (¶39)

(Miss. Ct. App. 2022), cert. denied, 360 So. 3d 651 (Miss. 2023), the Tennesens asserted that

the type-of-neighborhood factor weighed in their favor because the police pursuit occurred

on a “Sunday afternoon in an area with churches, businesses, restaurants, gas stations, and

hundreds, if not thousands, of cars,” which “made the high-speed chase extremely dangerous

. . . .” This Court found, however, that no evidence in the record supported the Tennesens’

“overbroad statement as it relates to the particular circumstances during the pursuit.” Id. The

same is true here. Berry’s general assertion that children may have been present or that

certain businesses along the pursuit route may have been “packed” is insufficient to create

a genuine issue of material fact regarding whether the officers acted in reckless disregard.

¶33. In Brister, the pursuit occurred on a Thursday in mid-January at 11 a.m. The evidence

was found sufficient to sustain a determination of reckless disregard where the pursuing

officer was a “one month rookie,” and “the pursuit route was heavily populated. The route

took them through residential areas including apartment complexes, single-family housing

and condominiums, a park, and even past an elementary school” at a time when school would

have been in session. Brister, 838 So. 2d at 280 (¶21).

¶34. Here, the pursuit occurred on a Monday night from 7:20 to 7:27 p.m. There was no

testimony that the skating rink, baseball fields, or churches were occupied at that time or that

15 children were present, and the pursuing officers were experienced and familiar with the area.

Captain Sears, who led the pursuit on the interstate, was a twenty-five-year veteran with the

Jackson County Sheriff’s Department, and Deputy Fisher, who led the pursuit through

D’Iberville, had worked for the Jackson County Sheriff’s Department for four years and

testified that he was familiar with the roads along the pursuit route because he “grew up in

the area.” Supporting the lack of traffic, Fisher testified that Young was able to maneuver

down Lamey Bridge Road for 0.6 miles without braking, and D’Iberville Officer Sorenson

testified that “traffic on Lamey Bridge Road . . . was pretty empty.” There was no testimony

to show that law enforcement acted in a reckless manner or abandoned all care given the

character of the neighborhood, nor is there a disputed genuine issue of material fact about

the character of the neighborhood. Therefore, we cannot find anything that creates a genuine

issue of material fact as to this factor.

3. Characteristics of the Streets

¶35. Considerations under this factor include whether “the streets were particularly hilly,

curvy, or poorly maintained.” Gray, 72 So. 3d at 498 (¶22); Law, 65 So. 3d at 829 (¶32)

(considering under this factor that parts of the pursuit route were “hilly, bouncy, very rough”

and another part was “in disrepair, with large potholes”). The testimony did not reveal any

issues with the condition of the interstate or Lamey Bridge Road, which is a four-lane road.

4. Presence of Vehicular or Pedestrian Traffic

a. Interstate Pursuit

¶36. There was no evidence of pedestrian traffic on the interstate. The only evidence that

16 Berry points to regarding the presence of vehicular traffic on the eight-mile stretch of

interstate is Captain Sears’s statement in his investigative report. Sears stated, “As we neared

exit 50 traffic had become more congested and the suspect vehicle was being driven more

erratic with disregard for the welfare of surrounding vehicles and occupants.”

¶37. However, Sears’s report that traffic became “more congested” about four miles into

the pursuit is insufficient here to support a finding of reckless disregard. There was no

testimony regarding the amount of traffic on the interstate at any point during the pursuit; so

it is not possible to define what “more congested” means.

¶38. Berry presented no evidence to support a finding that the officers acted with reckless

disregard to the amount of traffic on the interstate. To the contrary, the testimony showed

that the officers used care on the interstate, attempting to protect nearby motorists. Jackson

County Deputy Hampton testified that as soon as Sears initiated the pursuit, he (Hampton)

followed behind the pursuing vehicles, using his vehicle as a “rolling barrier” to prevent

traffic from approaching from behind. Because officers did not “evince[] an entire

abandonment of any care,” Presley, 40 So. 3d at 523 (¶12), we find no genuine issue of

material fact in dispute regarding the interstate pursuit.

b. Non-Interstate Pursuit

¶39. The pursuit briefly detoured off the interstate when Young exited onto Washington

Avenue in Ocean Springs. Young ran the red light at Washington Avenue and crossed six

lanes of traffic before re-entering the interstate. Captain Sears testified that he had to stop

and wait for traffic, and he “worried about stopping and not hitting nobody in that

17 intersection.”

¶40. D’Iberville Officer Krahenbuhl testified that when the pursuit reached the exit ramp

toward Lamey Bridge Road, “[i]t was one of those breaks where the light down at Mallett

was keeping traffic back so it wasn’t heavy traffic, fortunately.” He further testified that he

stopped traffic that may have been headed toward the pursuit after Young hit his patrol

vehicle:

As soon as . . . the suspect vehicle left and the other vehicles pursued, they went after him, I activated my lights to get out and look at my damage, because it felt like he ripped the front end off. So I stopped the traffic. That’s why I turned on my lights, because I was sitting in their lane of southbound travel.

¶41. D’Iberville Officer Sorenson testified that Lamey Bridge Road was “pretty empty”

at the time the pursuit came through:

Q. . . . Going back to that night on the interstate, getting off into D’Iberville and Lamey Bridge Road area, would that have been—my question is specifically about the volume of the traffic that night in that area. Was it—I’m guessing it was probably pretty consistent with what it is every night in that area.

A. I guess it would depend on the time. I know that on Lamey Bridge Road, I remember not having to really go around anything to get to everything, like the scene. So traffic on Lamey Bridge Road, at the time I was driving down it, was pretty empty.

¶42. D’Iberville Officer Krahenbuhl testified regarding the presence of vehicular traffic

in the moments after Young crashed into the guardrail at the end of the ramp on the Lamey

Bridge Road exit. Krahenbuhl stated, “Of course, I want to protect the society, at large, but

there was no traffic at that moment coming up the hill. . . . I just positioned my car to be able

to effect and assist with the arrest . . . .”

18 ¶43. Finally, Deputy Fisher testified that he did not see any pedestrians on Lamey Bridge

Road while pursuing Young.

¶44. Berry argues that Jackson County’s description in its findings of fact, which were

adopted by the circuit court, that Young “erratically weaved through traffic” on Lamey

Bridge Road “is an admission there was traffic congestion on Lamey Bridge Road during the

pursuit and Young was driving erratically and dangerously through the traffic.” Berry further

cites Deputy Fisher’s testimony regarding the traffic on Lamey Bridge Road:

The traffic flow through that area into the Promenade is heavy. D’Iberville was already there at the top of Lamey Bridge. . . . [T]hey had units on scene. My concern going into an area like that is just the flow of traffic that’s present, you know. You have got a skating rink that’s right there at that corner, you know. And that skating rink is always packed. They’re always doing events and special, you know, things there with kids and everything. So going south on Lamey Bridge, that’s when my heart sank, because—I said, this needs to stop. It’s got to stop now.

¶45. Despite Fisher’s concern about the skating rink, there was no testimony as to whether

it was occupied on the night in question. Rather, all we have is his generalized statement that

the skating rink was “always packed.” The same is true for the other venues on Lamey

Bridge Road. Although there were concerns in the area due to the presence of a ballfield,

park, and church, there was no testimony that any of these venues were in use that Monday

night in October at approximately 7:25 p.m. In fact, Officer Sorenson testified that traffic

was “pretty empty” at the time of the pursuit, and Deputy Fisher testified that Young was

able to maneuver down Lamey Bridge Road for 0.6 miles without braking. Further, Fisher

went on to testify that despite any concerns about the area, he was justified in pursuing

Young down Lamey Bridge Road after Young had almost backed into an officer and struck

19 another officer’s vehicle: “But at that moment, you know, I was at the point of no return. I

had to see it through based on the information that I had.”

¶46. Regardless, any officer’s opinion on whether the pursuit should have continued or

stopped is irrelevant. See City of Jackson v. Shavers, 97 So. 3d 686, 691 (¶18) (Miss. 2012)

(“[N]otwithstanding [the expert witness’s] opinion [to the contrary], our precedent makes it

clear that the officers in this case did not act with reckless disregard.”). Rather, our

determination is limited to whether officers demonstrated reckless disregard by acting with

“a conscious indifference to consequences, amounting almost to a willingness that harm

should follow,” Durn, 861 So. 2d at 995 (¶10), and abandoning “any care” for the safety of

the public. Presley, 40 So. 3d at 523 (¶12). There is no factual dispute or probative evidence

regarding the amount of traffic on Lamey Bridge Road that demonstrates that law

enforcement abandoned all care in pursuing Young 0.6 miles down Lamey Bridge Road.

5. Weather Conditions and Visibility

¶47. The parties agree that the weather was clear and that visibility was good despite the

pursuit occurring at night. There was no proof of rain or slick conditions that would be

relevant to this factor.

6. Seriousness of the Offense

¶48. Captain Sears initially attempted a traffic stop for the misdemeanor offense of driving

with a stolen license plate. Berry’s expert on police pursuits, Dennis K. Waller, opined that

law enforcement should never pursue a vehicle for a misdemeanor. Berry points to the

testimony of several officers who stated their opinion that they would have terminated the

20 pursuit had they been pursuing a suspect for a stolen license plate rather than a stolen car.

Sergeant Moran, the commanding officer of the D’Iberville Police Department, stated that

he would not get involved in a pursuit over a stolen tag, and he ranked a stolen tag as low on

the spectrum of crimes. Jackson County Deputy Fisher, who led the pursuit down Lamey

Bridge Road, also testified that he would not have initiated the pursuit based on a stolen tag:

You know, the things that could happen as a result of a pursuit, had I known that it was just a misdemeanor stolen tag, you know, I’m not going to pursue that vehicle for a misdemeanor tag and risk other things happening. But if it’s a stolen vehicle, then that’s a felony. That’s different. But just based off of being a stolen tag, why am I going to put the public in danger over a misdemeanor stolen tag that might not even be malicious? . . . It could have been a clerical error. But again, based on how they are driving, all that comes into effect. Me, personally, I would have terminated the pursuit.

He testified that in his opinion, the pursuit of a vehicle across the county line into D’Iberville

for a stolen tag exhibited a reckless disregard for the public’s safety.

¶49. Jackson County had no policy in place at the time of this pursuit prohibiting pursuit

when the initial cause for the traffic stop was a misdemeanor. Further, while the

misdemeanor was the reason for the attempted traffic stop, Captain Sears testified that he

pursued Young for felony fleeing once Young “began eluding [him] and driving recklessly.”

After Young crashed into the guardrail on Lamey Bridge Road, officers testified that the

pursuit was continued because Young struck an officer’s patrol car, committed aggravated

assault of a law enforcement officer, which is a felony, by backing his car up toward the

officers, and fled the scene of a felony.

¶50. The opinion of Berry’s expert and the opinions of the officers that the pursuit should

not have occurred based on a misdemeanor is irrelevant for our analysis. The standard is not

21 what another person believes to be reasonable during a pursuit, and we are not bound by a

witness’s opinion on the facts of the case. Shavers, 97 So. 3d at 691 (¶18) (stating that

reckless disregard may be found “notwithstanding [the expert witness’s] opinion” to the

contrary). Rather, the standard is whether the pursuing officers acted with reckless disregard

for the safety and well-being of anyone in the path of the pursuit not involved in a criminal

activity. Viewing the evidence in the light most favorable to Berry, no evidence has been

presented to show there is a disputed issue of material fact regarding whether officers should

have terminated the pursuit once Young fled and after Young almost struck an officer with

his car and ran into another officer’s patrol vehicle.

7. Use of Sirens and Blue Lights

¶51. The parties agree that the officers used their sirens and blue lights at all times during

the pursuit. See Phillips, 368 So. 3d at 326 (¶32) (stating that the use of lights and sirens

demonstrates “some measure of safety precaution”).

8. Available Alternatives to Pursuit

¶52. Factors that may favor termination of a pursuit include whether the suspect is known

to law enforcement officers and whether the suspect can be feasibly apprehended at a later

time. In Brister, the Supreme Court considered that the suspect’s “vehicle was the only one

in the parking lot and although the officers could have blocked in her vehicle at the bank

parking lot, they did not. They could have easily written down the tag number there instead

of attempting such in a hot pursuit chase.” Brister, 838 So. 2d at 280 (¶21). Likewise, in

Lewis, the officer “did not avail himself of a very ready means of potentially identifying the

22 suspect, the tag number of the car he was driving.” Lewis, 153 So. 3d at 699 (¶23). In

Richardson, the court considered that “[t]he officer was not in pursuit of an unknown

suspect. In fact, the officer had previous encounters with [the suspect,] Evans, knew where

Evans lived, knew Evans’s mother, and knew that Evans was likely to try to avoid

arrest . . . .” Richardson, 913 So. 2d at 978 (¶17).

¶53. Here, no evidence was presented that reasonable alternative means to capture Young

existed. Berry speculates that officers could have used the license plate numbers on the

vehicle or could have obtained surveillance footage from houses and businesses to track

Young’s whereabouts. But the evidence contradicts Berry’s speculation. When asked if

there were alternative means to capture Young other than pursuit, D’Iberville Officer

Krahenbuhl testified as follows:

Q. Give me some alternatives. What else can you do? If you terminate it, that’s not the end of it, necessarily, right? You could still catch the guy through other means. That’s what my question is. Go through some of those other means.

A. You know, getting more information on the plate, where it was stolen. Maybe some way of identifying a person and picking him up later. That’s ideally the best way, when we cancel pursuit, is we’ve at least got enough information to pursue it later, just low key, just go to whatever their registered address is or whatever. But, again, you’ve got a switched or stolen plate, it’s going to be hard to get any information unless he had some preexisting, I guess.

Captain Sears testified, “Would we have caught him another day? No, we would not have

because he did have a switched tag, and we found out later had a stolen vehicle . . . .”

¶54. Despite Berry’s assertion that a “myriad of alternatives” were available, it is

undisputed that Young’s identity was unknown and that the license plate on the vehicle was

23 stolen and could not be used to verify Young’s identity or usual location. Further, there is

no support for Berry’s assertion that Young could have been located through various

surveillance footage. Any alternative means to capture Young other than pursuit are

speculative at best. Considering the circumstances, Berry has presented no genuine issue of

material fact on this factor.

9. Police Policy Prohibiting Pursuit Under the Circumstances

a. Balancing Test

¶55. Berry argues the pursuit violated Jackson County’s balancing test in its department

pursuit policy, which states: “The officer’s conclusion that the immediate danger to the

public or the officer created by the pursuit, is less than the immediate or potential danger to

the public should the suspect remain at large.”

¶56. Berry asserts that the testimony of Captain Sears, Deputy Fisher, D’Iberville Officer

Krahenbuhl, and Lieutenant Jason King of the D’Iberville Police Department, as well as her

expert, Waller, establishes that the immediate danger created by the pursuit outweighed the

immediate danger of Young remaining at large.

¶57. When Sears was interviewed by the Mississippi Bureau of Investigations, he stated:

As we came up on 46, to be honest with you, I was hoping he went I-10 because I was going to call the pursuit at that time. If he had continued I-10, I would have probably let him go and came back for him another day, but he shot up the ramp, so we all shot up the ramp.

In his deposition, Sears testified that he considered terminating the pursuit when approaching

both Biloxi and D’Iberville. He said he thought that “if [Young] continues [on] I-10, I’m just

24 going to cut him loose” because “the guy was getting way too reckless, and to continue into

I-10, through I-10, he was probably going to slow down if we backed off, and had got off

somewhere, and left.” He testified that he would have “terminated” and “let Biloxi take

over” because he did not want to pursue “completely out of jurisdiction.” However, Young

did not continue on I-10. He exited into D’Iberville, and law enforcement made the “split

second” decision to follow him. Sears testified:

Q. . . . [Y]ou are in Harrison County now, and you are approaching Exit 46. You are already thinking, I might terminate this pursuit if he continues. When he got off at Exit 46, why not just let him go? Why not let D’Iberville handle it from there?

A. That would probably have been the ultimate way to end this, but unfortunately, it did not end like that. And, again . . . , microseconds. By the time he jumped that ramp until the end of pursuit was about seven, eight, ten seconds, I would say.

¶58. Deputy Fisher with the Jackson County Sheriff’s Department testified that based on

the fact that the pursuit started with a stolen tag, he “would have disengaged from the pursuit,

regardless of how many other people were in it.” He believed that the decision to cross

county lines into D’Iberville exhibited a reckless disregard for the safety of the public.

D’Iberville Officer Krahenbuhl testified, “I would probably not want to [continue the

pursuit], but that’s just me.” Jackson County Sheriff’s Deputy Hampton also believed that

the pursuit should have been terminated at the county line. However, he acknowledged that

the circumstances changed:

[U]nder the circumstances, at the county line, yeah, we should have terminated it. But when he got into Harrison County, and he struck that guardrail, and struck that police officer, it changed. It became a felony.

25 Berry additionally cites D’Iberville Lieutenant King’s testimony that sometimes if a pursuit

can be stopped “in a more controlled fashion, we can put an end to it. We don’t need that car

speeding through our city.”

¶59. Berry’s expert, Waller, opined that Jackson County ignored its duty to consider the

balancing test, and in his opinion, Sears should have terminated the pursuit:

During the pursuit Young’s driving was considered reckless as he was driving off the roadway, driving in and out of traffic, and attempted to ram police vehicles on two occasions. Also, according to rough time/distance calculations, Young and the pursuing law enforcement vehicles were driving at extremely high speeds. . . . Capt. Sears felt the driver would probably slow down if the [Jackson County Sheriff’s Department] squads backed off and exited the interstate. However, Capt. Sears did not direct the pursuit be terminated. As a result, Young was pursued into D’Iberville where he crashed into an uninvolved vehicle and seriously injured the driver.

Waller concluded that “JCSO personnel ignored important tenets of the policy designed to

promote the safety of the public. In actual fact the policy served as little more than window

dressing. It and other JCSO policies were ignored with impunity.”

¶60. Again, much of Berry’s argument is based on opinion testimony as to how the pursuit,

in hindsight, should have been handled. However, the opinions of the officers and even

Berry’s expert do not give the standard. Shavers, 97 So. 3d at 691 (¶18) (“[N]otwithstanding

[the expert witness’s] opinion [to the contrary], our precedent makes it clear that the officers

in this case did not act with reckless disregard.”). Rather, we must examine the evidence to

determine whether a genuine issue of material fact exists regarding whether the officers acted

in reckless disregard for the safety of the public. The officers chose to pursue Young

because there were no reasonable alternative means to detain Young other than immediate

26 capture, and Young was driving erratically. Further, the testimony showed that the officers

were concerned for the safety of Young’s passenger, and this concern factored into their

decision to continue the pursuit. Captain Sears testified, “We don’t know if that guy has

guns. He had a passenger. We don’t know if that passenger is being held hostage. So we,

as officers, at that moment, have to make a decision of what to do.” Deputy Nutefall also

expressed concern that the passenger could have been kidnapped or in danger. He testified

that when he passed Young to attempt a rolling roadblock, he could see a “female on the

passenger side, I see her hit him, like, you know, I guess telling him to stop or whatever.”

Officers then made the split-second decision to continue to pursue Young after he nearly

backed into an officer with his car. “[The] determination of the nature of the officers’

actions is judged on an objective standard with all the factors that they were confronted with,

taking into account the fact that the officers must make split-second decisions.” City of

Jackson v. Jackson, 200 So. 3d 1141, 1145 (¶12) (Miss. Ct. App. 2016) (quoting City of

Jackson v. Powell, 917 So. 2d 59, 72 (¶47) (Miss. 2005)).

¶61. Officers balanced the immediate danger to the public, and specifically Young’s

passenger, with the danger of the pursuit. They took steps to protect the public, such as

attempting to keep Young on the interstate, attempting to block in Young’s vehicle after he

crashed into the guardrail, and blocking traffic from coming toward the pursuit. They also

considered that there were no other reasonable means to capture Young because his identity

was unknown, and the vehicle’s tag was stolen. Because the officers considered the safety

of the public and Young’s passenger and did not act with “a conscious indifference to

27 consequences, amounting almost to a willingness that harm should follow,” Durn, 861 So.

2d at 995 (¶10), we cannot find that a genuine issue of material fact exists as to this factor.

b. Alleged Violations of Department Policy

¶62. Berry argues that other violations of department policy occurred because (1) more

than two officers pursued Young; (2) officers used rolling roadblocks; (3) deadly force was

used; and (4) proper means of communication with dispatch were not followed.

¶63. Regarding the number of officers allowed to pursue a suspect, Jackson County’s

policy states that “[p]ursuits are normally limited to no more than two emergency vehicles,

a primary and a secondary (back-up) unit. Other support units should stay clear of the pursuit

unless requested to participate by the controlling supervisor.” Berry asserts that the

testimony showed that five vehicles were pursuing Young, in direct violation of Jackson

County’s policy. While multiple vehicles were involved in the pursuit, the officers testified

that two of them actively pursued Young, and the others followed. Captain Sears testified:

I take it, pursuit is contact with the suspect vehicle, actively pursing. Actively pursuing. I mean, once I lost, I didn’t pursue. I followed. I followed, and I’m sure the other two who were behind me followed me to render any necessary assistance once they got the suspect vehicle stopped. So I don’t think there was five actively in this pursuit on this particular night at any one time, no, sir.

¶64. As to the use of rolling roadblocks, Berry asserts that at the time of the pursuit,

Jackson County’s policy required authorization from a supervisor before roadblocks were

used. Berry also cites Jackson County’s pursuit policy, effective June 1, 2018 (twenty

months after the pursuit), which states that “[m]oving or following roadblocks are not

authorized.” Berry further argues that the court should have considered that Deputy Nutefall

28 fired his weapon at a moving vehicle without authorization from a supervisor and in violation

of department policy, which resulted in an investigation into Nutefall’s actions. Finally,

Berry argues that dispatch did not designate a controlling officer as required by the

communications policy, and personnel not involved in the pursuit were using the radio

channel, preventing effective communication.

¶65. “An officer’s failure to follow official policy does not automatically constitute

reckless disregard.” City of Jackson v. Johnson, 343 So. 3d 356, 378 (¶57) (Miss. 2022); see

also Miss. Dep’t of Wildlife, Fisheries & Parks v. Webb, 248 So. 3d 772, 779 (¶12) (Miss.

2018) (“Mississippi precedent establishes that a violation of a SOP does not alone establish

reckless disregard.” (citing Presley, 40 So. 3d at 524 (¶16))). Violation of a department

policy is not necessarily outcome-determinative. Even assuming that officers did violate

department policy, as Berry alleges, it is unclear how these policy violations would create a

genuine issue of material fact or that any of the alleged policy violations proximately caused

the accident and Berry’s injuries. Rather, the totality of the circumstances must be

considered. Given that Young’s identity was unknown and officers were concerned for the

passenger’s safety, the officers’ actions did not exhibit a reckless disregard. Importantly,

there was no policy prohibiting the pursuit, and at no point did the officers continue the

pursuit without authority.

10. Rate of Speed

¶66. Young traveled at speeds of 85 to 90 miles per hour on the interstate, where the speed

limit was 70 miles per hour. On Lamey Bridge Road, he traveled at 40 to 50 miles per hour

29 for 0.6 miles, and the posted speed limit was 30 miles per hour. Nothing about continuing

the pursuit at these speeds was shown to exhibit an abandonment of care.

B. Totality of the Circumstances

¶67. To survive summary judgment, Berry, as the nonmoving plaintiff, has “the burden of

producing sufficient evidence of the essential elements of her claim at the summary-judgment

stage, as she would carry the burden of production at trial.” Karpinsky, 109 So. 3d at 89

(¶13). Under the MTCA, Berry was required to prove that the officers acted with reckless

disregard, meaning “a conscious indifference to consequences, amounting almost to a

willingness that harm should follow.” Durn, 861 So. 2d at 995 (¶10). Berry states that two

pieces of evidence demonstrate sufficient evidence to support her assertion that the Jackson

County Sheriff’s Department acted with reckless disregard for her safety: (1) “the affidavit

of Appellant’s nationally recognized expert in the field of police tactics and pursuits” and (2)

the “sworn testimony from multiple officers involved who believed the pursuit should have

been terminated before crossing county lines.”

¶68. Berry’s argument fails. The opinion of Berry’s expert and the opinion of the officers

that the pursuit should have ended at the county line is not the standard by which pursuits are

judged. Rather, the protections afforded to governmental entities under the MTCA will be

lifted only if the plaintiff can sustain the burden of producing evidence of the high standard

of reckless disregard under the totality of the circumstances. Gray, 72 So. 3d at 495 (¶13).

¶69. When Captain Sears attempted to initiate the traffic stop, Young sped up and began

driving erratically. Sears testified that “at that time, during that pursuit, any other person, if

30 you hit the blue lights on them and it’s a switched tag, will pull over and we’ll talk about it.”

But, according to Sears, “instead of stopping, like a normal citizen would have done,” Young

sped off and weaved in and out of traffic. Sears became concerned that Young fled because

“[t]here could be more going on behind the scene.” Sears explained, “We don’t know if that

guy has guns. He had a passenger. We don’t know if that passenger is being held hostage.

So we, as officers, at that moment, have to make a decision of what to do. Other officers are

going to close in because we want to make sure that nothing—you know, nothing

occurs . . . .” Sergeant Nutefall testified that when he pulled ahead to attempt to stop Young

while he was still on the interstate by performing a rolling roadblock, he saw the passenger

hit Young. Nutefall testified,

When he comes up to get up by me, I’m getting up beside him, he’s riding on the shoulder and, you know, he’s looking at me—or he’s looking at us like we’re stupid, the driver is. The male, unknown male. The female on the passenger side, I see her hit him, like, you know, I guess telling him to stop or whatever.

Nutefall testified that he was not sure if the passenger had been kidnapped.

¶70. Jackson County’s pursuit policy in effect at the time stated that a pursuit may be

initiated when a “[s]uspect exhibits intention to avoid apprehension by refusing to stop when

properly directed to do so.” Both Captain Sears and Deputy Fisher, the lead pursuing

officers, were experienced law enforcement officers and were familiar with Jackson County’s

policies and the roads where the pursuit occurred, and no evidence was presented that any

of the officers involved acted in reckless disregard during the pursuit.

¶71. In Johnson v. City of Cleveland, 846 So. 2d 1031, 1036 (¶15) (Miss. 2003), the

31 Supreme Court reversed a grant of summary judgment where there were “critical factual

disputes” in the evidence. Specifically, one of the responding officers “made conclusory

statements during his deposition to the effect that his blue lights were activated,” but other

testimony “clearly dispute[d]” the officer’s testimony. Id. “This conflicting testimony

created a material factual dispute that must be resolved by the trier of fact, but only after a

full evidentiary hearing by way of a bench trial.” Id.

¶72. Here, there is no such conflicting evidence. The material evidence in this case is not

in dispute, and under the totality of the circumstances, no evidence has been presented to

show that the pursuing officers acted with reckless disregard—a standard higher than gross

negligence and embracing willful or wanton conduct, which requires knowingly or

intentionally doing a wrongful act, Gray, 72 So. 3d at 495-96 (¶13)—to Berry’s safety and

well-being. Even if the officers’ actions were negligent, such a finding would be insufficient

because under the MTCA, “immunity lies for negligence.” Durn, 861 So. 2d at 995 (¶10).

Immunity also lies for “mere mistake or poor judgment.” Phillips, 368 So. 3d at 327 (¶34).

Rather, Berry was required to prove that the officers demonstrated “a conscious indifference

to consequences, amounting almost to a willingness that harm should follow.” Durn, 861

So. 2d at 995 (¶10).

¶73. In Presley, 40 So. 3d at 524 (¶17), the Supreme Court found that where an officer’s

actions demonstrated “some measure of safety,” the facts did not support a finding of

reckless disregard. The facts of Presley do not involve a police pursuit; rather, the plaintiff,

Lynda Presley, was injured when her vehicle collided with the vehicle of a police officer who

32 was responding to a service call. Id. at 521 (¶5). However, the same analysis applies

regarding the heightened standard that must be shown to establish reckless disregard.

¶74. In Presley, on a Wednesday at approximately 5:30 p.m., Jackson Police Department

Officer Miranda Morton received a call that a man was “lying in the street . . . , unresponsive

and bleeding.” Id. (citing City of Jackson v. Presley, 40 So. 3d 578, 579 (¶2) (Miss. Ct. App.

2009), rev’d, 40 So. 3d at 524 (¶18)). Traffic was “heavy,” and after unsuccessfully

attempting to take an alternate route, Officer Morton entered “the busy ‘five-points’

intersection, where the traffic signal facing her was red . . . , with her blue lights and her siren

and buzzer on, at approximately five miles per hour.” Id. at (¶3). She traveled through the

intersection one lane at a time, and the vehicles in the first two lanes stopped. Id. at (¶4).

However, her view of the third lane was blocked by a large truck in the second lane, and

when she proceeded into the third lane, her and Presley’s vehicles collided. Id. Presley did

not see or hear the patrol car before the accident. Id. The trial court found the facts were

sufficient to support a finding that Officer Morton acted in reckless disregard for the safety

of others, and this Court affirmed. Id. at (¶1). The Supreme Court reversed, finding that

Officer Morton’s actions did not meet the “extremely high bar” for recovery under section

11-46-9(1)(c). Id. at 523-24 (¶¶12, 18) (emphasis added).

¶75. The Supreme Court explained that because Officer Morton “exercised some measure

of safety precaution by employing her blue lights and siren, activating her buzzer to alert

traffic while she was crossing the lanes, and crossing one lane at a time,” and because she

“attempted to take alternate routes before she proceeded to the five-points intersection,”

33 which she knew to be “a dangerous and high-risk intersection,” “[s]uch actions hardly can

be characterized as reckless and indifferent to the safety of others.” Id. at 524 (¶17)

(emphasis added). The Supreme Court consequently found “as a matter of law that [the

officer’s] actions [did] not ‘evince an abandonment of all care,’ or show a ‘conscious

indifference to consequences, amounting almost to a willingness that harm should follow,’

or that her actions were worse than gross negligence.” Id. (emphasis added); see also

Phillips, 368 So. 3d at 321 (¶14) (affirming a finding of no reckless disregard where the

officer “exhibited some care” and, therefore, “did not show a conscious indifference to

consequences”); Maldonado v. Kelly, 768 So. 2d 906, 910-11 (¶¶11-12) (Miss. 2000)

(affirming a finding of no reckless disregard where an officer “stopped, looked both ways,

[and] saw nothing” before driving through an intersection and colliding with another

vehicle); McKay v. Choctaw County, 312 So. 3d 404, 413 (¶31) (Miss. Ct. App. 2021)

(affirming a finding of no reckless disregard where the officer “exercised at least some

care”).

¶76. In the present case, the evidence showed that the officers used caution during the

pursuit. It is undisputed that the officers activated their lights and sirens, attempted to

prevent other vehicles from entering the path of the pursuit, attempted to keep Young on the

interstate and out of the cities, attempted to block in Young’s vehicle once he crashed into

the guardrail, considered that Young’s passenger could be in danger, and determined that

there were no other reasonable alternative means to capture Young, whose identity was

unknown. The officers also balanced the immediate need to capture the unknown suspect

34 with the safety of the public. Considering the totality of the circumstances, the undisputed

facts before us demonstrate that the officers “exercised some measure of safety precaution”

with regard to each of the applicable Richardson factors, which “as a matter of law”

establishes that the officers did “not ‘evince an abandonment of all care,’ or show a

‘conscious indifference to consequences, amounting almost to a willingness that harm should

follow,’ or that [their] actions were worse than gross negligence.” Id.

¶77. Taking the evidence in the light most favorable to Berry, “no genuine issue of material

fact” exists to support a finding of reckless disregard. M.R.C.P. 56(c). Therefore, as a

matter of law, Berry’s claim fails under the MTCA, and we find summary judgment was

appropriately granted.

II. Two Distinct Pursuits

¶78. Berry argues that the circuit court committed reversible error in finding that two

distinct pursuits occurred—the initial pursuit on the interstate for a stolen tag and the pursuit

on Lamey Bridge Road for aggravated assault of a law enforcement officer. Berry argues

that the pursuit must be considered as one because “there was no long pause or termination

of the pursuit after Young crashed into the overpass guard rail”; rather the gap between the

pursuits was “milliseconds,” and Berry’s injury was a foreseeable result of the initial pursuit.

Presumably, Berry’s argument is that even if the pursuit on Lamey Bridge Road was justified,

the initial pursuit was not, and the two pursuits cannot be separated. Berry asserts:

[T]he initial pursuit for a stolen tag was the proximate cause of the injuries to Plaintiff. If the original pursuit had been terminated in a timely manner, there would have never been a crash on Lamey Bridge Road. If the pursuit did not cross into Harrison County, Young would have never backed into a DPD

35 police vehicle on the overpass.

¶79. We find no merit to this argument. Regardless of whether the pursuits are considered

together or separately, Berry has failed to show a genuine issue of material fact on the key

issue of reckless disregard. Therefore, whether one or two pursuits occurred is irrelevant,

and the circuit court did not commit reversible error on this issue.

III. Reliance on Subsequent Investigation and Grand Jury Proceedings to Justify Continuing the Pursuit Retroactively

¶80. On February 11, 2020, Berry and Jackson County filed a joint “Stipulation,”

stipulating to two exhibits as true and correct. The first exhibit was the indictment returned

against Young for felony fleeing or eluding law enforcement on the night his vehicle struck

Berry. The second exhibit was Young’s indictment for the failure to stop a motor vehicle

pursuant to the signal of a law enforcement officer on the night in question. Citing the

stipulation, the circuit court’s findings of fact state:

Significantly, a duly-empaneled Grand Jury for Jackson County, Mississippi, indicted Young on October 5, 2018, for Felony Fleeing or Eluding pursuant to Miss. Code Ann. § 97-9-72(2). . . . The Jackson County Indictment also charged Young for being in Possession of Stolen Property (a 2004 Ford Ranger pickup) pursuant to Miss. Code Ann. § 97-17-70.

¶81. Berry argues that “[a] grand jury indicting a suspect is not relevant evidence in a

MTCA police pursuit case,” and “[a] trial court should not consider post hoc determinations

of a criminal case in reviewing the civil case.” Berry asserts that the circuit court erred in not

limiting its consideration to the facts known to the officers at the time of the pursuit.

¶82. Jackson County did not respond to this argument in its brief. Failure to respond to an

argument raised by the appellant “is tantamount to confession of error and will be accepted

36 as such.” Turner v. State, 383 So. 2d 489, 491 (Miss. 1980). However, it is unclear why

Berry takes issue with the circuit court’s citation of the indictments when Berry herself

stipulated to their inclusion in the record. Further, the only new information contained in the

indictment is that the Ford Ranger that Young was driving was stolen. While the only

information that Captain Sears had when he attempted to stop Young was that the vehicle’s

license plate was stolen, Sears testified that Young’s reaction to the attempted traffic stop

immediately led him to believe something else was amiss.

¶83. Regardless, the circuit court’s citation of the indictments is not dispositive, as ample

evidence supports the circuit court’s conclusion that the pursuing officers did not act in

reckless disregard for the safety of the public in pursuing Young.

CONCLUSION

¶84. “In considering summary judgment motions, the . . . court does not try the issues, it

only determines if there are issues to be tried.” Est. of Biddle v. Biddle, 369 So. 3d 525, 529

(¶13) (Miss. 2023). Berry has presented no evidence demonstrating that Jackson County

acted in reckless disregard of her safety. Therefore, there are no issues to be tried, and we

find the circuit court correctly granted summary judgment in favor of Jackson County. The

circuit court’s decision is affirmed.

¶85. AFFIRMED.

CARLTON, P.J., McCARTY, EMFINGER AND WEDDLE, JJ., CONCUR. WILSON, P.J., AND McDONALD, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE AND SMITH, JJ., NOT PARTICIPATING.