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Johnson v. City of Cleveland5/29/2003
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED - 05/29/2003
EN BANC.
. Aggrieved by the circuit court's grant of summary judgment in favor of the City of Cleveland, Freddie Lee Johnson, individually and on behalf of the wrongful death beneficiaries of Tommie Lee Johnson, Jr., has appealed to this Court on the issue of whether there was sufficient evidence to create genuine issues of material fact as to whether the officer acted with reckless disregard for the safety and well-being of any person not engaged in criminal activity as defined by Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2002). Finding that the circuit court erred in granting the City's motion for summary judgment in the face of conflicting evidence about the actions of the officer, we reverse the judgment of the Circuit Court of the Second Judicial District of Bolivar County and remand this case for a bench trial on all issues.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
. On March 5, 1997, between one and two o'clock in the morning, Officer Charles White with the Cleveland Police Department observed a black truck moving erratically near the intersection of Chrisman Avenue and White Street in Cleveland, Mississippi. After the driver of the truck refused to stop, Officer White requested back-up. A chase ensued and eventually headed south on Chrisman Avenue, west on Carver Street and then north on Church Street. The driver of the truck drove the truck into a driveway at 1322 Church Street, exited the truck while the truck was still running and ran alongside the truck, pushing the truck by the driver's side door. As Officer White approached the vehicle, he could see the driver's feet underneath the truck. Officer White commanded the driver of the truck to stop, but once Officer White reached the truck, the driver had already fled the scene. While Officer White waited for backup to arrive, he searched the area around the truck for the driver. Approximately one minute and a half after the driver of the truck had fled, Officer White heard a noise which sounded like tires squealing on Chrisman Avenue, the next street east of his location. Officer White then heard Officer Danny Oswalt call for an ambulance.
. The noise heard by Officer White was the result of a collision between the vehicle driven by Officer Oswalt and a pedestrian, Tommie Lee Johnson, Jr. (Johnson). Officer Oswalt was at the intersection of Highway 8 and Chrisman Avenue when he received Officer White's request for backup. In his deposition Officer Oswalt stated that in response to the call, he traveled south on Chrisman Avenue, immediately activating his blue lights. However, he did not use his siren, but he engaged his airhorn every ten to fifteen feet. Officer Oswalt maintained a speed of 45 to 50 miles per hour, and he slowed down as he approached intersections. The posted speed limit was 30 miles per hour. As he approached the intersection of Carver Street and Chrisman Avenue, Officer Oswalt could not see Officer White's blue lights; therefore, he assumed Officer White had turned on Carver Street. As Officer Oswalt was approaching the intersection of Chrisman Avenue and Carver Street, he saw someone run out in front of him from the direction of Church Street. He applied his brakes and attempted to swerve, but he hit the pedestrian. After striking Johnson, Officer Oswalt immediately called for an ambulance.
. On March 5, 1997, at approximately 1:30 a.m., Kevin Quantrell Young was standing in front of Nell's Barber Shop at 1415 South Chrisman Avenue in Cleveland. In his deposition, Young stated that he saw Johnson walk by the barber shop at 1:40 a.m. headed north on the ea
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