Ogburn v. City of Wiggins

919 So. 2d 85, 2005 WL 1384347
CourtCourt of Appeals of Mississippi
DecidedMay 24, 2005
Docket2004-CA-00378-COA
StatusPublished
Cited by20 cases

This text of 919 So. 2d 85 (Ogburn v. City of Wiggins) 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
Ogburn v. City of Wiggins, 919 So. 2d 85, 2005 WL 1384347 (Mich. Ct. App. 2005).

Opinion

919 So.2d 85 (2005)

Lomax OGBURN, Individually, and on Behalf of the Wrongful Death Beneficiaries of Vonnie Ogburn, Appellant,
v.
CITY OF WIGGINS, Appellee.

No. 2004-CA-00378-COA.

Court of Appeals of Mississippi.

May 24, 2005.

*87 Joe Sam Owen, Robert P. Myers, Gulfport, attorneys for appellant.

Rebecca C. Taylor, L. Clark Hicks, Hattiesburg, attorneys for appellee.

Before LEE, P.J., GRIFFIS and ISHEE, JJ.

GRIFFIS, J., for the Court.

¶ 1. Lomax Ogburn, as personal representative of the wrongful death beneficiaries of Vonnie Ogburn, filed this wrongful death action against the City of Wiggins. Ogburn alleged that the actions of Wiggins Police Officer Jamie Smith constituted "reckless disregard" and caused the death of his wife, Vonnie. After a bench trial, the Honorable Stephen Simpson ruled in favor of the City of Wiggins. Judge Simpson concluded that Officer Smith did not act in "reckless disregard for the safety of others" and his actions were not a proximate cause of Vonnie's death. As a result, Officer Smith and the City of Wiggins were afforded immunity under the Mississippi Tort Claims Act. We find no error and affirm.

FACTS

¶ 2. On the night of March 24, 2000, Officer Jamie Smith was on patrol in Wiggins. At approximately 9:09 p.m., John Wortham approached Officer Smith's vehicle traveling on the frontage road. Officer Smith observed Wortham driving in the wrong lane of traffic at a rate of speed of approximately 50 to 55 miles per hour in a 30 mile per hour speed zone.

¶ 3. Officer Smith's vehicle left the road to avoid colliding with Wortham. Officer Smith immediately turned his vehicle around and activated his emergency blue lights and siren. Wortham continued driving recklessly on the frontage road, and Smith initiated a pursuit. Wortham ran a stop sign and turned onto Project Road.

¶ 4. Officer Smith continued his pursuit of Wortham. Officer Smith reached the top of the first hill on Project Road and saw Wortham's vehicle at the top of the next hill. However, when Smith reached the next hill, he could not see Wortham's vehicle. Officer Smith slowed his vehicle and then saw dust around an intersection *88 with Buck Marshall Road. Smith did not see Wortham's vehicle again until he reached the site of the accident. Smith approached the accident scene where Wortham had lost control of his vehicle, crossed over the center line, and collided with another vehicle driven by Vonnie Ogburn, the deceased. Wortham and Vonnie Ogburn were killed in the collision, and Lomax Ogburn was seriously injured.

¶ 5. The entire pursuit lasted between one and two minutes and spanned approximately 1.7 miles. Subsequent blood tests revealed that Wortham's blood alcohol content at the time of the accident was .241, three times the legal limit.

¶ 6. Lomax Ogburn filed suit against the City of Wiggins. A bench trial was held pursuant to the Mississippi Tort Claims Act. Miss.Code Ann. § 11-46-13(1)(Rev.2004). Judge Simpson determined that since the claim alleged tortious conduct by a governmental employee, a City of Wiggins' police officer acting within the course and scope of his employment, then pursuant to Mississippi Code Annotated Sections 11-46-1, et seq, the City of Wiggins is immune from alleged tortious conduct by its employees except to the extent immunity is specifically waived. The City of Wiggins would be immune from claims arising out of acts or omissions of employees engaged in police protection, "unless the employee acted in reckless disregard for the safety and well-being of any person not engaged in criminal activity at the time of injury." Miss. Code Ann. § 11-46-9.

¶ 7. Judge Simpson determined that there were three elements of the claim that must be proven by a preponderance of the evidence.:

1. Officer Smith acted in reckless disregard for the safety and well-being of any person not engaged in criminal activity at the time of injury.
2. The reckless disregard of Officer Smith was a proximate contributing cause of injury; and
3. Damages.

Judge Simpson concluded that the plaintiff "failed to meet his burden of proof as to the first and second elements of the cause of action."

¶ 8. On appeal, Ogburn argues that the substantial evidence did not support the trial court's findings that: (1) Officer Smith did not act in "reckless disregard," and (2) Officer Smith's actions were not a proximate cause of the accident.

STANDARD OF REVIEW

¶ 9. "A circuit court judge sitting without a jury is accorded the same deference with regards to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence." Maldonado v. Kelly, 768 So.2d 906, 907(¶ 4)(Miss.2000). These findings will not be disturbed on appeal unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied. City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9)(Miss.2000).

ANALYSIS

¶ 10. In City of Jackson v. Brister, 838 So.2d 274 (Miss.2003), the Mississippi Supreme Court clarified the standard by which the liability of municipalities regarding police pursuits is evaluated. In Brister, the supreme court found "reckless disregard" when officers caused a suspect to collide with a third party while pursuing her through a congested area at high speeds after she attempted to pass a forged check at a bank. Id. at 280-81 (¶¶ 21-23). The court employed several factors to determine whether the police chase constituted reckless disregard: (1) *89 length of chase; (2) type of neighborhood; (3) characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; and (6) the seriousness of the offense for which the police are pursuing the vehicle. Id. at 280(¶ 22).

I. Whether the trial court's finding that Officer Smith's actions did not constitute "reckless disregard" was supported by substantial evidence.

¶ 11. Ogburn argues that Officer Smith's actions did not fall under the Mississippi Tort Claims Act and, thus, he was not immune from liability. Mississippi Code Annotated § 11-46-9(1)(c)(Rev.2002) provides:

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

¶ 12. "Reckless disregard" has been defined as "the voluntary doing by motorist of an improper or wrongful act, or with knowledge of existing conditions, the voluntary refraining from doing a proper or prudent act when such act or failure to act evinces an entire abandonment of any care, and heedless indifference to results which may follow and the reckless taking of chance of accident happening without intent that any occur[.]" Turner v. City of Ruleville, 735 So.2d 226, 229(¶ 11)(Miss.1999)(emphasis omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
919 So. 2d 85, 2005 WL 1384347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogburn-v-city-of-wiggins-missctapp-2005.