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Gale v. Thomas12/9/1999
DATE OF JUDGMENT: 06/30/1998
TRIAL JUDGE: HON. ERMEA JACKSON RUSSELL
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 12/09/1999
EN BANC.
STATEMENT OF THE CASE
. This case comes to this Court on appeal by Nancy Gale from the Hinds County Circuit Court, First Judicial District, where Gale's suit against the City of Jackson and Officer Nathaniel Thomas was dismissed upon grant of summary judgment.
. Nancy Gale suffered injuries when her automobile collided at an intersection with a City of Jackson police patrol car driven by Officer Nathaniel Thomas. Officer Thomas allegedly ran a red traffic signal. The accident occurred on April 17, 1993. Gale brought suit in the Hinds County Circuit Court, First Judicial District, on October 20, 1995, against the City of Jackson and Officer Thomas, individually, alleging gross and reckless negligence on the part of Officer Thomas. The City and Officer Thomas moved for summary judgment asserting sovereign immunity. Circuit Court Judge Ermea J. Russell granted summary judgment in favor of both defendants and dismissed the suit on June 30, 1998. Gale now appeals to this Court arguing that the trial judge erroneously determined that the City and Officer Thomas were immune from suit.
STATEMENT OF FACTS
. Nancy Gale allegedly suffered personal injuries and property damage when her automobile collided with the City of Jackson police patrol car driven by Officer Nathaniel Thomas on April 17, 1993. Gale contends that Officer Thomas ran a red traffic signal. At the time of the accident, Officer Thomas was allegedly on routine patrol. Gale alleges that Officer Thomas did not have his lights or sirens on at the time, and that he was not responding to an emergency nor in pursuit of anyone. Gale brought an action for negligence against the City of Jackson and Officer Thomas, individually.
. The defendants moved for summary judgment, asserting sovereign immunity pursuant to the Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 et seq. (Supp. 1999), and Gressett v. Newton Separate Mun. Sch. Dist., 697 So. 2d 444 (Miss. 1997). The trial judge granted summary judgment for both defendants pursuant to the rationale of Gressett. In its order, the trial court noted that the accident occurred in the time period between the enactment of Miss. Code Ann. § 11-46-3 (Supp. 1999) on April 1, 1993, and the waiver of immunity as to political subdivisions on October 1, 1993, pursuant to Miss. Code Ann. § 11-46-5 (Supp. 1999). The trial judge thus employed the rationale of Gressett to find that because the accident occurred in a time period in which absolute immunity existed, the City and Officer Thomas enjoyed the protection of sovereign immunity at the time of the suit.
. From this ruling, Gale appeals and raises the following issues:
I. THE TRIAL COURT ERRED IN FAILING TO APPLY THE EXCEPTION TO IMMUNITY PROVIDED IN THE "INTERIM" VERSION OF MISS. CODE ANN. § 11-46-3(3) (SUPP. 1993). II. THE TRIAL COURT ERRED IN EXTENDING THE PROTECTION OF THE CITY'S IMMUNITY TO OFFICER THOMAS.
. The City and Thomas, in their reply to Gale's appeal, raise a third issue. They argue that the trial court lacked jurisdiction over Gale's claim because Gale failed to comply with the notice requirements of Miss. Code Ann. § 11-46-11 (Supp.1999). They did not raise this issue in the trial court in either their answer or their motion for summary judgment. In addition, they did not cross-appeal. However, the issue is considered below.
STANDARD OF
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