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Hall v. Mississippi Department of Public Safety4/9/1998
e following manner: (1) allowing the vehicle to remain running while interviewing Hall; (2) failing to position the vehicle where it would not harm Hall if the gear engaged; and (3) failing to properly secure his vehicle. However, Hall did not allege at trial that the officer acted with reckless disregard. To the contrary, Hall stated several times at trial that he was not claiming that Officer Cox was at fault.
So then I have to find some kind of human error, if any, on the part of Mr. Cox.
COUNSEL FOR PLAINTIFF: No, sir. No, sir, because you can find error -- if you recall my cross-examination, the responsibility for maintenance of that vehicle for whatever reason that vehicle -- once we've set res ipsa loquitur, it did something it wasn't supposed to do, the maintenance of that vehicle goes with its owner, which is the state of Mississippi. Mr. Cox didn't have anything to do with maintaining it....
....
COUNSEL FOR PLAINTIFF:. .. I don't want to get focused on what Mr. Cox did or did not do. The case is against the state and their vehicle.
....
COUNSEL FOR PLAINTIFF:. .. We're not saying that this gentlemen did anything in reckless disregard for Mr. Hall's right.
(emphasis added).
It is well settled law that "an appellant is not entitled to raise new issues on appeal since to do so denies the trial court the opportunity to address the matter." Touart v. Johnston, 656 So. 2d 318, 321 (Miss. 1995) (citing Crowe v. Smith, 603 So. 2d 301 (Miss. 1992)). Since Hall did not allege at trial that Officer Cox acted with reckless disregard, this Court will not address that allegation for the first time on appeal.
Additionally, in regards to Hall's contention that Officer Cox's actions did not constitute "police" activities, the trial court specifically found and the parties did not dispute, that the injury occurred during the course of a lawful arrest. Hall did not allege in his Complaint nor did he present any evidence at trial why Officer Cox's actions in this incident should not be considered "police" activities under the statute. Accordingly, this Court will not overturn the trial court's finding that the injury occurred during the course of a lawful arrest. Additionally, this Court will not address how this incident may be distinguishable from "police" activities as contemplated by § 11-46-9(1)(c), since this allegation was raised for the first time on appeal.
The trial court specifically found that "Hall's injury occurred during the commission of a crime, and that any acts or omissions on the part of the State's employee took place within the scope of that employee's official duties as they related to police protection." The trial court further found that " hese findings trigger the immunity contemplated by the language of Miss. Code Ann. sec. 11-46-9(1)(c) (Supp. 1995)," therefore, "under this provision, the State retains immunity from liability for Mr. Hall's injuries as a matter of law." Accordingly, the trial court's decision that MDPS was immune from liability pursuant to Miss. Code Ann. § 11-46-9(1)(c) will not be overturned by this Court on appeal.
II. WHETHER THE TRIAL COURT ERRED IN NOT RULING IN HALL'S FAVOR ON THE QUESTION OF MDPS'S NEGLIGENCE.
Hall asserts that § 11-46-9(1)(c) and § 11-46-9(1)(d) should be read together so that those activities that were not intended to be insulated from liability under § 11-46-9(1)(d) can be distinguished. Specifically, Hall alleges that government entities are not protected against liability for non-discretionary acts or omissions by their agents/employees. Hall maintains that reading these two subsections
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