Lomax Ogburn v. City of Wiggins
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00378-COA
LOMAX OGBURN, INDIVIDUALLY, AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF VONNIE OGBURN
APPELLANT
v.
CITY OF WIGGINS
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/13/2004
HON. STEPHEN B. SIMPSON
STONE COUNTY CIRCUIT COURT
JOE SAM OWEN
ROBERT P. MYERS
REBECCA C. TAYLOR
L. CLARK HICKS
CIVIL - PERSONAL INJURY
JUDGMENT IN FAVOR OF CITY OF WIGGINS.
AFFIRMED: 05/24/2005
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 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.
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¶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
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¶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) 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.
¶11.
Whether the trial court’s finding that Officer Smith’s actions did not
constitute “reckless disregard” was supported by substantial evidence.
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:
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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). The court also added that “reckless disregard is a higher standard than gross negligence by which
to judge the conduct of officers,” and it “embraces willful or wanton conduct which requires knowingly and
intentionally doing a thing or wrongful act.” Id. at 229-30 (¶¶17, 19).
¶13.
Ogburn maintains that Officer Smith acted with reckless disregard in the manner in which he
operated his patrol car. Ogburn argues that Officer Smith failed to follow the proper pursuit procedure for
police vehicles. Specifically, Officer Smith should have discontinued his pursuit of Wortham after he turned
onto Project Road and realized that Wortham would not stop.
¶14.
Ogburn contends that, just as in Brister, Officer Smith did not follow the proper departmental
procedure in his pursuit of Wortham. Ogburn claims that Officer Smith did not consider the type of offense
committed, the risk to the public, nor the fact that this particular road was considered dangerous.
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¶15.
We find that Brister does not support Ogburn’s argument. In Brister, the pursuit took place in
a heavily populated area that included apartment complexes, single-family housing and condominiums, a
park, and an elementary school. Brister, 838 So. 2d at 280 ¶21. The officers drove at speeds in excess
of twenty miles per hour over the posted speed limit, while the suspect was traveling at speeds in excess
of seventy miles per hour. Id. The accident occurred when the suspect crested into an intersection where
her visibility was limited. The court relied heavily on the fact that the officers involved in the chase were
violating a departmental order that a pursuit may only be initiated when a suspect's escape is more
dangerous to the community than the risk posed by the pursuit. Id. The court further noted that the officers
were on the scene before the suspect left the parking lot, and they had the opportunity to either block the
suspect in her parking space or get her tag number and apprehend her later. Id.
¶16.
Ogburn’s expert witness opined that Officer Smith complied with the City of Wiggins’ policy and
the State’s policy for police pursuits. Officer Smith testified that he did consider the risk to the public.
Officer Smith slowed his vehicle as he lost sight of Wortham and called for back-up. City of Wiggins’
expert Keith Oubre testified that given the short distance, rural area, seriousness of the offenses, and other
factors, the entire pursuit was appropriate.
¶17.
The trial judge carefully considered the evidence of the Brister factors as well as additional
considerations. The judge determined the following:
1.
Length of the chase. Officer Smith and Oubre testified that the pursuit was short
in time and distance being approximately two minutes over 1.7 miles.
2.
Type of neighborhood. Project Road is rural and sparsely populated.
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3.
Characteristics of the streets. Project Road is well paved and proceeds East and
West over several rolling hills.
4.
Presence of vehicular or pedestrian traffic. Officer Smith testified that he saw no
vehicles nor pedestrians on Project Road before the accident.
5.
Weather conditions/visibility. Though dark, the weather was clear and visibility
was good with there being no rain, sleet or fog.
6.
Seriousness of the offense for which the police were pursuing the vehicle. Officer
Smith testified that he initiated the pursuit after observing Wortham’s reckless
driving, evidenced by his excessive speed, driving on the wrong side of the road,
and his running a stop sign. Oubre testified that these offenses were serious and
that the City of Wiggins’ pursuit policy permitted pursuit under these
circumstances.
7.
Experience of the officer involved. Officer Smith was trained at the police
academy, had worked with the Sheriff’s department four years prior to joining the
City of Wiggins’ police department, and was knowledgeable in pursuit
procedures.
8.
Alternative measures to identify the suspect rather than pursuing him. Officer
Smith could not identify the suspect given his reckless driving at night. Officer
Smith could only determine that the tag was from Alabama.
9.
Ability of the officer to prevent the suspect from fleeing. Officer Smith did not
have the ability nor time to block Wortham thereby preventing his flight.
10.
Whether Wiggins’ pursuit policy permitted the pursuit in question. The City of
Wiggins’ pursuit policy states that such pursuit at the discretion of the officer.
Oubre testified that the pursuit conformed to the policy.
11.
The officer’s familiarity with the area. Officer Smith was very familiar with the
area. Ogburn contends that Officer Smith knew that the road curved dangerously
and that he should have ended the pursuit. However, Officer Smith had no way
of knowing the exact route that Wortham would choose given his inability to keep
a visual of the car.
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12.
13.
The presence of traffic control devices. No stop signs, yield signs, traffic lights, or
any other devices other than speed limit signs existed on Project Road.
14.
The use by the officer of emergency equipment on the patrol car. Officer Smith
initiated his blue lights and siren immediately after observing Wortham’s reckless
driving.
15.
The distance between the patrol car and suspect’s vehicle during the pursuit.
Officer Smith testified that he was never closer than a quarter of a mile to
Wortham. Brett Alexander, an accident reconstructionist, testified that at a
minimum, Officer Smith had to be 568 feet behind Wortham when he lost control.
Alexander concluded that Officer Smith’s testimony was consistent with his
scientific findings at the scene.
16.
The likelihood that there would be excessive traffic on the road at this date and
time. The incident occurred at 9 p.m. on Project Road in Wiggins, Mississippi.
There was no excessive traffic anticipated.
17.
¶18.
The presence of residential buildings. There were no apartment complexes, parks,
schools, churches, or any structures typically found in more urban areas.
Whether the suspect had any knowledge of the pursuit. The trial court found no
evidence on this point.
Judge Simpson concluded that “[f]aced with split second decisions and balancing all of the factors
existing in this case, the Court finds that the officer did not act in reckless disregard.” He determined that
Officer Smith neither appreciated an unreasonable risk nor deliberately disregarded such a risk. Judge
Simpson held that:
The evidence presented to this Court regarding the actions of Officer Smith require a
different result than Brister. Here there is no question, all of the experts testified that
Officer Smith was correct in initiating the pursuit. He had no reasonable alternative action
available. Officer Smith was not faced with balancing the “public’s safety versus immediate
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apprehension of a check forger.” He was faced with an immediate danger to the public’s
safety by virtue of Wortham’s speed and recklessness.
¶19.
We find the trial court's findings of fact and conclusions of law to be supported by substantial,
credible, and reasonable evidence. As a result, Smith and the City of Wiggins are entitled to immunity
under the Mississippi Tort Claims Act.
II.
¶20.
Whether the trial court’s finding that Officer Smith’s actions were not a
proximate cause to the accident in question was supported by substantial
evidence.
We recognize that Ogburn failed to satisfy the first element of his claim. Nevertheless, we will
consider the second issue on the merits.
¶21.
Even if Ogburn proved that Officer Smith acted in reckless disregard, he must also establish that
Smith’s actions were the proximate cause of the accident. McIntosh v. Victoria Corp., 877 So. 2d 519,
523(¶14)(Miss. Ct. App. 2004)(citing Sample v. Haga, 824 So. 2d 627, 632 (¶8)(Miss. Ct. App.
2001)). Proximate cause requires: (1) cause in fact; and (2) foreseeability. Morin v. Moore, 309 F. 3rd
316, 326(5th Cir. 2002)(citing Ambrosio v. Carter's Shooting Ctr., Inc., 20 S.W. 3d 262, 265 (Tex.
App. 2000)). “Cause in fact” means that the act or omission was a substantial factor in bringing about the
injury, and without it the harm would not have occurred. Ambrosio, 20 S.W. 3d at 265. Foreseeability
means that a person of ordinary intelligence should have anticipated the dangers that his negligent act
created for others. Morin, 309 F. 3rd at 326. Foreseeability does not require that a person anticipate the
precise manner in which injury will occur once he has created a dangerous situation through his negligence.
Id.
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¶22.
Ogburn argues that the initiation and the continuation of this chase proximately caused Wortham’s
reckless driving which directly led to the collision. Specifically, he points to the fact that Wortham ignored
a stop sign and drove at speeds well above the posted limit. Trooper Rayburn’s investigative report stated
that Wortham was “fleeing a Wiggins Police Department unit.” Ogburn relies upon this evidence to infer
that Wortham knew he was being pursued by Smith at the time of the accident.
¶23.
Judge Simpson found that:
the evidence in this case is insufficient to establish that Officer Smith...proximately
contributed to the accident and resulting death and injuries . . . . There is insufficient
evidence to know one way or the other whether Wortham even knew that Smith was
pursuing him. Even if he did, there is the additional question of whether Wortham knew
the officer was still behind him in the last half a mile from when Officer Smith lost visual
contact until Wortham crashed into the Ogburns.
The trial judge found that it was the reckless driving of Wortham, rather than Officer Smith’s pursuit of
Wortham, that was the proximate cause of Ogburn’s injuries and his wife’s death. No evidence was
presented to establish or suggest that the pursuit of Wortham constituted extreme or outrageous conduct.
Before the pursuit commenced, Wortham was driving in the wrong lane of traffic at an excessive speed
while intoxicated. This same behavior continued after Officer Smith began his pursuit. There is simply no
evidence in the record to establish whether Wortham knew he was being pursued. It simply cannot be said
that this tragedy would not have occurred had Officer Smith not pursued Wortham.
¶24.
We find the trial court's findings of fact and conclusions of law to be supported by substantial,
credible, and reasonable evidence. Therefore, we affirm.
¶25. THE JUDGMENT OF THE STONE COUNTY CIRCUIT COURT IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
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KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, BARNES AND
ISHEE, JJ. CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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