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

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On Thursday the Mississippi Supreme Court reversed and rendered a bench verdict for the plaintiffs in Gray v. City of Jackson. The case was a Tort Claims Act case where Judge William Coleman ruled for the plaintiffs. The total verdict was $400,000 to three separate plaintiffs.

Raymond police started the pursuit in Raymond. Jackson police joined the pursuit when it entered the City. Jackson police offers broke off the pursuit when the driver (Alice Wilson) began driving the wrong way down one-way streets in downtown Jackson. Wilson ran a red light at the intersection of Capital and Congress streets and collided with the plaintiffs' vehicle. One person died and two were injured.

The plaintiffs sued the the cities of Raymond and Jackson and Wilson. The City of Raymond settled.

The Mississippi Supreme Court reversed and remanded the verdict, ruling that Jackson police officers did not act in reckless disregard for the safety of others. Key factors that the Court identified to support its position included:

• the streets were not curvy, hilly or poorly maintained;
• there was little to no traffic in downtown Jackson at the time;
• JPD officers used their blue lights and sirens;
• JPD officers did not travel at unusually high rates of speed;
• JPD officers were ordered to monitor and assist in the pursuit; and
• JPD officers were motivated to aid the Raymond officer out of a concern for his safety.

The Court concluded that based on the totality of the circumstances, JPD officers did not act with reckless disregard. Justice Carlson wrote the Court's unanimous opinion.

Pieter Teeuwissen and Kimberly Banks represented the City of Jackson. Joe Tatum and Edward Markle represented the plaintiffs.

My Take:

Seems like the Court got this one right. This was Raymond's pursuit.

I previously mentioned this verdict and Jackson pursuit cases in this post. 

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On Tuesday the Mississippi Court of Appeals issued a controversial decision in City of Jackson v. Rhaly. Here is the Court's opinion.

Facts:

The case was a lawsuit against the City for flood damages after a creek overflowed because it was not properly maintained. In interrogatory responses the plaintiffs requested any standard operating procedures which govern the site of the incident. The City's response was: none and that the City would supplement on receipt of further information. Sometime later, the City supplemented the response to identify a procedure without producing it. A week before the trial the plaintiff found the procedure in the clerk's office while researching another case.

This all happened back in the early 2000's before the current City Attorney or anyone working in his office worked in the office.

The plaintiff moved for a default judgment for discovery abuses and Hinds County Circuit Judge Swan Yerger granted the motion. Judge Yerger determined that the City's actions were not willful and wacked them anyway due to their neglect. He awarded $149,872 in damages, $31,226 in attorney's fees and $3,862 in expenses.

Court of Appeals Decision:

Judge Ishee wrote the Court's 5–3 opinion. The Court cited the following factors to consider when determine whether a dismissal was justified. My commentary is in brackets:

1. the failure to comply with the court's order resulted from willfulness or bad faith; [factor clearly not met: there was no order and trial court found it was not willful];
2. the deterrent value of Rule 37 cannot be substantially achieved through a less severe sanction; [factor not present];
3. whether the other party's preparation for trial was substantially prejudiced; [nothing in opinion suggested this factor was present; court of appeals said maybe-but decided that this factor does not have to be present]
4. dismissal may be inappropriate when neglect caused by lawyer rather than client; [pretty obvious that it was the fault of the lawyers in prior administration].

The Court discussed these factors and determined that dismissal was appropriate.

Pieter Teeuwissen and Claire Hawkins represented the City. William Joseph Kerley and John Clark represented the plaintiffs.

Judge Irving dissented joined by Judges Griffis and Maxwell.

My Take:

Judge Yerger had a reputations as perhaps the most defense leaning trial judge in the state. Except when the City of Jackson was a defendant.

I was shocked by this decision. Early indications are that I was not alone in Jackson legal circles. These are not the facts where I would  expect to see a default judgment granted for discovery abuses. In fact, I wouldn't even expect to see a motion filed.

There was no order violated and the plaintiff obtained the documents before trial. Also, the plaintiff did not articulate any real prejudice or move for a continuance. The fact that the plaintiff could have used the documents in depositions and “so forth” could have been handled by a continuance and more depositions at the City's expense.

Parties producing documents shortly before a trial is not uncommon. Sometimes this appears to be gamesmanship. Other times, not. Most of the time, the attorney on the receiving end complains to the Court, but rarely is anything done. Honestly, I didn't know that a default judgment was even possible for what happened here. I'm not condoning it. And I think that attorneys are getting more and more lax in responding to discovery and supplementing their responses. But I am very surprised by the result.

I will probably have more analysis of this opinion in a future post.  

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The Clarion-Ledger reports on a $64,000 verdict rendered on Friday in the U.S. District Court for the Southern District of Mississippi, Jackson Division. The trial lasted four days.

The verdict was against three former detention officers who did not intervene when a fourth officer allegedly beat the plaintiff. The attack occurred in 2005.

The officer who beat the plaintiff was not in the lawsuit because he could not be located for service of process. I have no idea why he was not served through publication, which is a valid method of service used when a defendant cannot be located.

 Plaintiff asked for $514,000 in closing arguments. It's my understanding that the plaintiff had less than $15,000 in medicals related to the attack.

Judge Henry Wingate presided over the trial. Jeanine Carafello of Jackson represented the plaintiff. Jackson City Attorney Pieter Teeuwissen and Anthony Simon of Jackson represented the defendants.

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On Tuesday Hinds County Circuit Judge Malcolm Harrison directed a verdict for the defendant in Brown v. Anderson.

The case was a breach of contract case where the plaintiffs (the Browns) sued James Anderson over a house that Anderson sold to the Browns. At the closing, Mr. Brown signed a document—the only document that he signed—stating that he had conducted a walk-thru of the house and found that all electrical, plumbing and HVAC were functioning. The Browns knew that they could have the home inspected before the closing, but did not.

Three weeks after the closing, the Browns hired a home inspector who found numerous alleged problems with the home's electrical, plumbing and HVAC. After the sale, the Browns lived in the house for four years without paying a house note, insurance or taxes until the house was foreclosed by the lender.

The Browns sued Anderson for breach of contract and tortious breach of contract. The Browns sought $90,000 in economic damages (sale price of the house) and personal injury damages. Anderson's defense was that the Browns did not prove a defect at the time of the sale and signed a document at the closing that stated that there were no defects.

The plaintiffs rested on the second day of trial and Judge Harrison granted Anderson's motion for directed verdict. Judge Harrison agreed with Anderson that the Browns failed to establish a prima facie case of breach of contract or tortious breach of contract.

Pieter Teeuwissen of Jackson represented Anderson. Anderson is an employee of the City of Jackson and Teeuwissen, who is the City Attorney, represented Anderson on a pro bono (free) basis.

David McCarty and Drew Martin (?- not Drew Malone as earlier reported) of Jackson represented the plaintiffs.    

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As reported by the Clarion-Ledger, the City of Jackson now faces two conflicting rulings by Hinds County judges on the City's waste water contract.

Last week Hinds County Circuit Court Judge Swan Yerger threatened to throw City leaders in jail unless the City complied with an order to award the contract to United Water Services. I discussed Judge Yerger's ruling in this post.

 But on Thursday Hinds County Chancellor Dewayne Thomas issued this order granting a preliminary injunction that orders the City to not terminate its contract with Jackson Water Partnership.  

If the City complies with Judge Thomas' Order, then it will be in violation of Judge Yerger's Order. But if the City complies with Judge Yerger's Order, then it will be in violation of Judge Thomas' Order.

If I'm Jackson City Attorney Pieter Teeuwissen, this would remind me of the scene from the movie Airplane where Lloyd Bridges says: “looks like I picked the wrong week to stop sniffing glue.”

Now comes news that Judge Yerger has ordered attorneys for the City and United Water to appear before him at 1:00 p.m. today.

Should be real interesting.

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On Thursday Hinds County Circuit Judge Swan Yerger threatened to incarcerate Jackson Mayor Harvey Johnson, City Attorney Pieter Teeuwissen and other city leaders over the City's failure to award a waste water contract pursuant to a Court Order issued by Judge Yerger. The Clarion-Ledger reported:

“If the city has failed to comply with this court’s orders …, the court will consider the same to be a willful and deliberate violation of this court and will hold (the city) in civil contempt of court, with the possible penalties of monetary fines and jail time to be assessed against any responsible municipal representatives,” Yerger wrote in the order signed Thursday.

Courtroom observers indicate that Judge Yerger was livid during the hearing and dressed down the City's attorneys for over an hour in what some described as a tantrum.

On Friday the Jackson City Council quickly voted to comply with Judge Yerger's Order:

In a Friday evening meeting, City Council members voted 5-1 in favor of starting the transition from Jackson Water, a partnership of Pennsylvania-based Severn Trent Services and Jackson-based Garrett Enterprises, to New Jersey-based United Water Services.

Hinds County Circuit Court Judge Swan Yerger had threatened to throw city officials in jail unless they acted on his orders to reassign the contract.

I can't really tell from the articles, but it appears that Judge Yerger ordered specific performance in a breach of contract action and that the City failed to comply.

Judge Yerger's actions came just a few weeks after the Mississippi Supreme Court reversed the judge in a case involving the City.

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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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On Thursday a unanimous Mississippi Supreme Court reversed a $148,000 bench trial verdict against the City Jackson in a Tort Claims Act case stemming from  traffic accident caused by a police officer responding to a report of a man lying injured on a street. Here is the Court's opinion, which Justice Dickinson authored.

The accident occurred at the five points intersection on Woodrow Wilson Drive in Jackson. The officer entered the intersection with lights, siren and buzzer all on. The officer clipped a vehicle driven by the plaintiff, causing plaintiff's vehicle to roll-over. The plaintiff had the right away and did not see or hear the police car due to an obstructed view and the fact that her radio was turned up.

Hinds County Circuit Court Judge Swan Yerger ruled that the police officer's conduct exhibited reckless disregard for the safety of others and awarded the plaintiff over $148,000 in damages. The Mississippi Court of Appeals affirmed the trial court.

The Supreme Court granted cert. and reversed the Court of Appeals and trial court. The Court noted that the reckless disregard for the safety and well-being of others standard sets an “extremely high bar for plaintiff seeking to recover against a city for a police officer's conduct while engaged in the performance of his or her duties. The City is immune from liability for acts of negligence, and even gross negligence is not enough.”

The Court found that there was no evidence that the officer acted in reckless disregard for the safety of others. As a result, the Court reversed and rendered judgment in favor of the City.

This was a huge win for the City of Jackson and its legal department, headed by City Attorney Pieter Teeuwissen. There have been several verdicts against the City in police pursuit cases in the last few years and the City is appealing all of them. I discussed earlier verdicts here and here.

The other verdicts involved wrecks caused by suspects running from the police in high speed chases. If this case where the officer actually caused the wreck did not meet the reckless disregard standard, it is hard to imagine how the standard is met in cases where the wrecks were caused by criminal suspects running from the police. The City has to feel good about its prospects in the appeals of the other cases. 

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In what is becoming a regular occurrence Hinds County Circuit Court Judge Swan Yerger rendered a $375,000 bench verdict against the City of Jackson in a case involving a police pursuit. Here is the Clarion-Ledger article on the verdict. This is the fourth similar verdict in the last year.

The article states:

The latest ruling comes from a lawsuit filed by a former Richland police officer over injuries he suffered in 2004 when a car being chased by Jackson police struck his personal vehicle.

Thornton, 44, alleged he was forced to resign from the Richland Police Department, where he had been a patrol sergeant, because of the injuries, including a fractured vertebra, a broken foot, ankle trauma, a concussion, lacerated facial muscles and other facial lacerations that left extensive scarring of his face and forehead.

 

The court found reckless conduct by the Police:

The court finds, from a preponderance of the evidence, that the proximate cause of the subject accident and the plaintiff's injuries, ... resulted from the aforesaid reckless conduct of the Jackson Police Department officers," Yerger wrote.

The City wants the court to apportion fault to the other two parties involved:

City Attorney Pieter Teeuwissen said his office filed a motion Friday in response, asking Yerger to "follow his statutory obligation and apportion the liability to the two other parties."

Those parties are Robertson and another driver, Keiwana Lewis, who pulled her car in front of Robertson's before he crashed into Thornton.

"It's not fair to place all the liability on the city when evidence shows clearly at least those two parties bear responsibility, if not all of it," Teeuwissen said. "The cause of the accident was the individual who would not yield to the police and Ms. Lewis, who was changing her CD, not paying attention and pulled in front of that individual."

Teeuwissen seems to have a point about apportionment of fault to other individuals.

It will be interesting to see what happens to these cases if and when they reach the appellate court. Is Jackson the only place where police pursuit accidents occur? Why is it always the police department’s fault? I don’t know the answers to these questions. 

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On Saturday Jimmie Gates and the Clarion-Ledger reported on Hinds County Circuit Court Judge Swan Yerger throwing out a racial discrimination suit against the City of Jackson by fireman Ricky Haggard.

According to the article:

Ricky Haggard had alleged he was discriminated against after he was removed from overseeing a federal grant's position in 2006 and replaced by a white male when Todd Chandler was interim fire chief.

In dismissing the case:

Yerger said Haggard had to show the city maintained a widespread, persistent practice of racial discrimination of city officials or employees.

"Acts of alleged discrimination that take place in a three-year period in one city department, all under the tenure of one supervisor hardly shows that there existed a persistent, widespread practice that fairly represents municipal policy," Yerger wrote.

Further, Yerger said even Haggard swears that Chandler was demoted as a result of discriminatory remarks Chandler made in the video. "This goes to show that Chandler's alleged conduct was hardly the expected, accepted practice of city employees," Yerger wrote.

 

Haggard apparently rejected a settlement offer from the City:

[City Attorney Pieter Teeuwissen] said the city offered a settlement, but an agreement was never reached.

My guess is that it was not a big offer. The City has been trying a lot of cases in the last few years, which suggests that it has not been making large settlement offers.

There will be an appeal:

Haggard's attorneys, Louis Watson Jr. and Nick Norris, said Yerger's dismissal will be appealed to the state Supreme Court.

Who knows what will happen on appeal. But since Hinds County judges seem to have a tendency to rule against the City, you would think that the dismissal has a good chance to be affirmed on appeal.  

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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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Over the past few months several people asked me if I thought that Jackson Mayor Harvey Johnson would name Pieter Teeuwissen City Attorney. My response was probably not, since the City of Jackson is not known for making the smartest decisions and Mayor Johnson is the person who allowed the Braves to go to Pearl instead of downtown Jackson. But Jackson got one right yesterday when the City Council unanimously approved Teeuwissen as City Attorney, as reported by the Clarion-Ledger.  

Teeuwissen spent the last several years running the City's litigation department. He inherited a department in disarray with a reputation for losing lawsuits filed against the City. Teeuwissen installed a motivated team of lawyers who reduced the backlog of cases against the City and significantly improved the results in cases against the City. 

From a political standpoint Teeuwissen's most impressive feat was his ability to effectively serve in the City's legal department during the Melton administration. In addition to being the subject of state and federal criminal prosecutions, Melton was a wing-nut who did not get along with several members of the City Council. Melton's personality could have easily bled into the legal department and resulted in the exodus of Teeuwissen. Instead, he stayed and was trusted by the Council.   

Teeuwissen will now supervise approximately fifteen lawyers in the Office of the City Attorney.