Lisa Bonner v. William E. McCormick
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-01101-COA
LISA BONNER
v.
WILLIAM E. MCCORMICK AND THE CITY OF HATTIESBURG D/B/A
HATTIESBURG POLICE DEPARTMENT
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEES
06/26/2001
HON. RICHARD W. MCKENZIE
FORREST COUNTY CIRCUIT COURT
KEN R. ADCOCK
JAN F. GADOW
MARK D. MORRISON
JERRY A. EVANS
CYNTHIA ANN RE
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT FOR DEFENDANT
AFFIRMED - 9/24/2002
10/15/2002
BEFORE KING, P.J., LEE, AND IRVING, JJ.
KING, P.J., FOR THE COURT:
¶1. Lisa Bonner sued William E. McCormick and the City of Hattiesburg, Mississippi (City) under the
Mississippi Tort Claims Act, Miss. Code Ann. § § 11-46-1 through 11-46-23 (Supp. 2001), for damages
arising from an automobile accident. On June 26, 2001, the Forrest County Circuit Court entered an order
for summary judgment in favor of McCormick and the City. Bonner appeals to this Court asserting that the
trial court erred in its grant of summary judgment. Finding no error, we affirm.
FACTS
¶2. McCormick was a police officer employed by the City. On October 12, while on duty, and pursuant to
his official duties, he was driving a police car to have it serviced. Bonner was stopped at a traffic light,
behind another vehicle, and McCormick was stopped behind Bonner. When the traffic light turned green,
the vehicles began moving through the intersection. However, for some unknown reason , the vehicle in
front of Bonner stopped, which caused Bonner to stop her vehicle, and McCormick's vehicle then struck
Bonner's vehicle in the rear.
DISCUSSION
1. WHETHER A MATERIAL FACT WAS IN DISPUTE THAT PRECLUDES
SUMMARY JUDGMENT.
¶3. This Court reviews de novo the grant or denial of summary judgment. Nationwide Mut. Ins. Co. v.
Garriga, 636 So.2d 658, 661 (Miss.1994). That de novo review includes looking at the evidentiary
matters and viewing them in the light most favorable to the party against whom the motion has been made.
Id. The movant has the burden of proving that there is no genuine issue of material fact and that the movant
is entitled to judgment as a matter of law, and any doubt as to the existence of an issue of fact is resolved in
the favor of the non-moving party. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993).
¶4. This action was pled under Mississippi's Tort Claims Act. The trial court found that McCormick's
actions were exempt from same under Section 11-46-9(1)(c) of that Act, which provides:
(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
****
(c) Arising 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 for the safety and well-being of any person not engaged in
criminal activity at the time of injury . . . .
¶5. Because McCormick was a police officer, performing matters within the course and scope of his
employment, the legislature had limited liability to those circumstances when he was acting in reckless
disregard for the safety of persons not engaged in criminal activities.
¶6. Bonner has clearly established that she was not someone engaged in criminal conduct. However she
must also establish that McCormick acted with reckless disregard for her rights. Reckless disregard
requires more than a showing of mere negligence. Turner v. Ruleville 735 So. 2d 226 (¶18) (Miss. 1999).
¶7. The Mississippi Supreme Court has noted that "reckless disregard embraces willful or wanton conduct
which requires knowingly and intentionally doing a thing or wrongful act." Id.
¶8. Bonner's complaint merely charges McCormick with negligence, and is therefore precluded by Section
11-46-9.
¶9. Bonner attempted to avoid the Section 11-46-9 immunity problem by offering, on the day the Court
heard Defendant's motion for summary judgment, an affidavit stating:
1. I, Lisa Bonner, an adult resident citizen of Hattiesburg, Forrest County, Mississippi.
2. On or about August 25, 1999, I was involved in an automobile accident with the Officer William E.
McCormick of the Hattiesburg Police Department.
3. I was stopped behind one vehicle at the intersection of North Main and West Pine in Hattiesburg,
Mississippi. When the light turned green, the vehicle in front of me started moving forward through the
intersection, and I began driving forward as well. The vehicle in front of me stopped, and then I
stopped. When I stopped, a vehicle behind me suddenly and violently crashed into the rear of my
vehicle. This vehicle was being driven by Officer McCormick. At no time did my vehicle make
contact with the vehicle in front of me.
4. I was not committing a criminal act and was acting as any reasonable prudent driver would have
acted by stopping when the vehicle in front of me stopped. Officer McCormick exhibited a reckless
disregard for the safety and well-being of others when he slammed into me from behind.
¶10. The trial court declined to accept Bonner's affidavit. A careful reading of the affidavit indicates it would
have not impacted the outcome of this case. The affidavit offers the conclusion that McCormick exhibited a
reckless disregard for the safety and well being of others; it offers no facts to support that conclusion. Mere
conclusory allegations are insufficient to defeat a motion for summary judgment. McClinton v. Delta Pride
Catfish, Inc., 792 So. 2d 968 (¶17) (Miss. 2001).
¶11. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS AFFIRMED.
APPELLANT IS ASSESSED ALL COSTS OF THIS APPEAL.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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