Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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One week after reversing a $148,000 verdict against the City of Jackson, the Miss. Supreme Court affirmed a $500,000 verdict against the City in a wrongful death case. Here is the Court's opinion in Harris v. City of Jackson.

Like the case last week, this case involved a wreck caused by a Jackson police officer. Hinds County Circuit Court Judge Swan Yerger was the judge in both cases. But that is where the similarities end.

In the case last week, a police officer caused a wreck while responding to an emergency even though she proceeded through a red light slowly with siren and buzzer blaring. This week, the police officer was not responding to an emergency and was speeding through the red light with no siren or lights. Witnesses estimated that the police cruiser was going over 100 mph when it hit the victim's car.

There was an expert report for lost wages of $345,000. The total verdict was $500,000–-the maximum recoverable against a governmental entity.

On appeal, the City argued that it did not waive immunity under the Tort Claims Act because the police officer committed the crime of culpable-negligence manslaughter. The statute does not waive immunity when the employee's conduct constituted a criminal offense.

The Court rejected the argument, finding that the statute excludes “traffic offenses” from the criminal conduct immunity. The actual language of the statute (Miss. Code Ann. 11–46–5) states “traffic violations.”

The Court found that the officer's traffic violations were running a red light and speeding. Since these are traffic violations, the Court reasoned that the City waived immunity.

Justice Lamar wrote the Court's unanimous opinion. Plaintiff's counsel were Chuck Mullins and Merrida Coxwell. Kimberly Banks, Pieter Teeuiwissen and Claire Hawkins represented the City.

My Take:

This decision was a win for the facts of the case. The cop was an idiot and the victim did not deserve to die. Anyone who reads the facts should agree that it's only fair that the City lost. But the Tort Claims Act and general notions of fairness are often inconsistent.

This decision could be viewed as a result oriented decision that could have gone the other way on the law with different facts. The criminal violation that the City relied on was manslaughter—not a traffic violation.

Under the Court's rationale, a governmental entity is liable for any “reckless disregard” conduct as long as it involves a traffic violation in connection with a more serious crime. For example, the City would be liable if a drunk cop shoots his neighbor who he had been feuding with out of a moving cop car, if the car was traveling 20 mph in a 15 mph zone. But if the car was parked or only going 15 mph, the City would not be liable. 

That would be fine with me, since I hate governmental immunity and believe that it creates a system that unfairly stacks the deck against victims. But I'm not sure that this decision was the legislature's intent.   

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Thursday’s Clarion-Ledger reports on a $700,000 verdict entered by Hinds County Circuit Court Judge Winston Kidd on February 5 in a bench trial against the City of Jackson.

The case involved a fatal car wreck in Jackson involving a suspect who was running from Jackson police officers. The suspect crashed into the plaintiffs. One person was killed and the other two injured. Judge Kidd awarded $500,000 to the estate of the deceased and $100,000 to each of the survivors. The city argued that the officer stopped the pursuit before the crash. The case was tried in April 2008. Warren Martin represented the plaintiffs.

Jackson City Attorney Pieter Teeuwissen stated that the city will appeal because the Tort Claims Act caps the total possible recovery at $500,000:

City Attorney Pieter Teeuwissen said the city will appeal, in part because the judgment appears to exceed the amount of damages that can be levied against a Mississippi city. State law states that "damages against a governmental entity .... arising out of a single occurrence" are capped at $500,000.

I have not researched the law to analyze this issue. I suspect that Teeuwissen is right, since the Tort Claims Act stacks the deck in favor of governmental entities. That being said, I agree that the way Judge Kidd applied the cap should be the law.

Other recent verdicts in pursuit cases against the city include:

• In September, Hinds County Circuit Judge Swan Yerger handed down a $500,000 verdict against the city in the case of WLBT Channel 3 meteorologist Eric Law and his wife, Kristina, both of whom were seriously injured when struck by a suspect fleeing police in 2006.

• In May, Special Hinds County Circuit Judge William Coleman order the city to pay $400,000 in damages for its part in a chase that began in Raymond and ended when Alice Marie Wilson struck a vehicle driven by Alice Faye Clausell, killing her and injuring her two daughters.

The city’s response to these verdicts may be to stop chasing suspected criminals:

Teeuwissen said he is concerned about the way judges have been treating these cases. Such large awards against the city may force the Jackson Police Department to abandon pursuits because the city cannot afford it, he said.

And that could hamper the city's ability to fight crime, he said.

"If these cases are upheld we are heading to a point where you can't have a pursuit in an urban area. If that is the case you can imagine the effect it will have on crime," he said. "You may have to tell your officers, 'We don't want you thinking in the field and making split-second decisions on whether this suspect is worth pursuing.' "

 

I don’t have the answer to this dilemma. The police need to be able to pursue suspects, but pursuits need to be carried out in a way where innocent bystanders are not injured. 

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The Mississippi Supreme Court issued a significant opinion today in Stuart v. UMC. The case was an appeal from a summary judgment in favor of UMC for failure to comply with the Mississippi Tort Claims Act pre-suit notice requirement. The plaintiff did provide notice before filing suit and it appears that UMC argued that the plaintiff filed suit too soon after giving notice. The Court of Appeals had affirmed the trial court. The plaintiff argued that UMC waived the notice defense by actively participating in the litigation of the case for 2 1/2 years before filing a motion for summary judgment on the issue. A unanimous Court agreed in an opinion written by Justice Graves. Justice Randolph wrote a concurring opinion.

The opinion states: 

At no point throughout the trial and appellate processes has UMMC provided an explanation for why it waited for two-and-a-half years from the filing of the complaint to actually pursue a defense that was available to it from the moment Stuart filed the complaint. Waiting for that length of time and doing nothing to prevent the case from proceeding is unreasonable and inexcusable. Furthermore, UMMC participated in discovery matters during that time. We find that UMMC’s participation in this lawsuit and its failure to raise Stuart’s noncompliance with the ninety-day-notice requirement until two-and-a-half years later constitute waiver of that defense.

The Court also rejected UMC's argument that the notice requirements are jurisdictional and overruled a line of cases that held otherwise. The Court reasoned that the notice requirements are substantive requirements like the statute of limitations and not a jurisdictional requirement. As such, it can be waived and was in this case. The Plaintiff's lawyers were Will Raiford and John Cocke from Merkel and Cocke in Clarksdale, who are now heros to plaintiff lawyers around the state.

This is yet another in a growing line of cases in which the Court holds that a defendant's delay in pursuing an affirmative defense constitutes a waiver of the defense. The Court has recognized a waiver in asserting motions to compel arbitration and other affirmative matters. The bottom line appears to be that a defendant who delays must explain a reason for a delay, such as that aspects of the defense were being developed in discovery.Of course, there is not much of an explanation for not filing a motion based on alleged defects in the notice provided under the MCTA.