Giles ex rel. Giles v. Brown

31 So. 3d 1232, 2009 Miss. App. LEXIS 548
CourtCourt of Appeals of Mississippi
DecidedAugust 18, 2009
DocketNo. 2008-CA-00950-COA
StatusPublished
Cited by4 cases

This text of 31 So. 3d 1232 (Giles ex rel. Giles v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giles ex rel. Giles v. Brown, 31 So. 3d 1232, 2009 Miss. App. LEXIS 548 (Mich. Ct. App. 2009).

Opinions

MYERS, P.J.,

for the Court.

¶ 1. Robert Giles (Giles) and his minor sons, Roberto and Antonio Giles (collectively the Gileses), brought suit against Robert Brown and the Leake County Board of Supervisors (Board) in the Leake County Circuit Court for personal injuries. The circuit court granted summary judgment in favor of Brown and the Board. The matter came to this Court on appeal,1 and we reversed and remanded the case to [1235]*1235the circuit court to determine: (1) whether the children were engaged in criminal activity, given the absence of criminal charges or convictions; (2) whether any criminal activity on the part of the children had a causal nexus to the accident; and (B) whether Brown acted with reckless disregard in his pursuit of Giles.

¶ 2. On remand, the circuit court found that the children were engaged in criminal activity, that such criminal activity had a causal nexus to the accident, and that Brown did not act with reckless disregard. Aggrieved, the Gileses2 appeal and assert that: (1) that the circuit court erred in finding in favor of Brown and the Board, (2) the circuit court erred in allowing Jerry Barrett to testify as an expert witness, and (3) the circuit court erred in denying the Gileses’ motion requesting the court to reimburse them for the cost of the transcript. Finding no error, we affirm.

FACTS

¶ 3. The underlying facts for the case at bar are the same facts in Giles I. In Giles I, we stated the facts as follows:

On September 17, 2003, Giles and his children were riding their ATV 4-wheel-er along Highway 488 near Carthage, Mississippi. Brown received a call that there were individuals riding an ATV on the highway, which is against the law. Brown set out in response to the call and encountered Giles.3 Brown, with emergency lights activated, pulled behind Giles. Giles pulled off the road onto an unidentified piece of property. Brown asked Giles for his license, and Giles informed Brown that his license was suspended. Neither man left his respective vehicle during the exchange.
What happened next is disputed. According to Brown, Giles became belligerent and eventually cursed at Brown before leaving and returning to the highway on his ATV. Brown testified that he followed with lights and siren activated until Giles made a sudden turn, causing the accident at issue. Brown testified that he did not know whether he had hit Giles’s vehicle or Giles’s children. Brown indicated that he had attempted to slow down and avoid the accident, but was unable to do so and went into a ditch. Brown suggested that he might have been able to avoid the accident if Giles had activated his turn signal or given some other indication that he was about to turn.
According to Giles, he explained to Brown that he did not have his license, but did live neaiby and suggested that he would take Brown to his house so that Brown could confirm that Giles lived nearby. Giles believed that if he did so, Brown would be more likely to let him go with simply a warning. Giles testified that he never cursed at Brown. Giles averred that he then pulled out onto the road, with the understanding that Brown would follow him to his house. Neither Giles nor his sons could recall hearing Brown’s siren or seeing any emergency lights as Brown followed them down the road. In fact, Giles testified that he never looked back to con[1236]*1236firm that Brown was following him. He simply assumed that, because of their exchange and his slow pace, Brown would follow. Giles testified that he slowed down considerably for his turn, although he admitted that he did not activate a turn signal or otherwise indicate that he was about to turn. Giles testified that Brown’s vehicle hit the ATV, causing Giles and his sons to fall off and causing the ATV to collide with a third vehicle at the intersection.
It is not clear exactly how fast the parties were traveling. Brown indicated that they might have been going as fast as forty to forty-five miles per hour, while the Gileses estimated their speed to be closer to twenty to twenty-five miles per hour. Giles and his sons also testified that they slowed down significantly for the turn that eventually resulted in the accident. Amber Wilcher, the driver of the vehicle that was hit by the ATV at the intersection, testified that she saw Brown hit Giles’s vehicle before the ATV collided with her car. She also thought that Brown’s vehicle might have collided with her own. Apparently no photographs were taken of the damage to the various vehicles, or such photographs were not included as part of the record. An accident report was filled out, but the version of events related was clearly given by Brown, as the officers filling out the report made no independent findings to explain what had happened. As a result of the accident, Giles suffered an injury to his right foot which required thirteen stitches, Roberto had scrapes on his body, and Antonio suffered two broken legs and a broken pelvis. Criminal charges were filed against Giles as a result of the accident, and he pled guilty to reckless driving, improper equipment, improper restraint, and two simple assault charges.

Id. at 613-14 (¶¶ 3-6).

¶ 4. On remand, Brown, Giles, Roberto, Antonio, and Wilcher testified during the Gileses’ case-in-chief. Additionally, the deposition of Suzanne Sharpe, Brown’s former wife, was read in open court. Brown called Jerry Barrett as an expert witness in the field of police pursuit.

¶ 5. At the conclusion of the testimony, the court ordered that the parties use a copy of the transcript to draft their proposed findings of fact and conclusions of law. After reviewing the proposed findings of fact and conclusions of law submitted, the circuit court ruled in favor of Brown and the Board. Aggrieved from the trial court’s ruling, the Gileses appeal.

STANDARD OF REVIEW

¶ 6. An appellate court affords a circuit court judge sitting without a jury the same deference as a chancellor. City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993)). That is, after reviewing the entire record, we will affirm if the judge’s findings of fact are supported by substantial, credible evidence and are not manifestly wrong or clearly erroneous. Id.

DISCUSSION

1. Reckless Disregard

¶ 7. The trial court found that Brown and the Board were immune from liability under the Mississippi Tort Claims Act (MTCA). After weighing the testimony of the witnesses and reviewing the evidence, the trial court found that Brown did not [1237]*1237act in reckless disregard for the safety of the Gileses.

¶ 8. The MTCA provides the exclusive remedy for tort actions brought against a governmental entity or its employees. Miss.Code Ann. § 11-46-7(1) (Supp.2008). Although the MTCA waives sovereign immunity for tort actions, it also prescribes certain exemptions from this statutory waiver under which a governmental entity retains its sovereign immunity:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim....

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Bluebook (online)
31 So. 3d 1232, 2009 Miss. App. LEXIS 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giles-ex-rel-giles-v-brown-missctapp-2009.