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Johnson v. City of Cleveland5/29/2003
ed by Miss. Code Ann. § 11-46- 7(1) ."
DISCUSSION
. In order for a summary judgment motion to be properly granted, no genuine issue of material fact may exist, and the moving party must be entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). This Court reviews a trial court's grant of a motion for summary judgment de novo. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss. 1988). The burden of proving that no genuine issue of material fact exists rests upon the party requesting the summary judgment. Id. at 63- 64. The trial court must carefully review all evidentiary matters before it; admissions in pleadings, answers to interrogatories, depositions, affidavits, etc., in the light most favorable to the party against whom the motion for summary judgment is made. McFadden v. State, 542 So.2d 871, 874 (Miss. 1989). See also Hancock v. Mid Am. Ins. Servs. Inc., 836 So.2d 762, 764-65 (Miss. 2003).
When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of his pleadings, his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. If any triable issues of fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Miller v. Meeks, 762 So.2d 302, 304 (Miss. 2000) (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss. 1983)).
. Here, the evidence before the trial court on the City's motion for summary judgment consisted of the depositions of Officer Charles White, Officer Danny Oswalt, Investigator Charles A. Bingham and Shawn Mayhall; the affidavit of Kevin Young; the investigative file of the Cleveland Police Department; the autopsy report prepared by Dr. Steven Hayne and the FBI Crime Lab report.
. Officer Danny Oswalt, the officer responding to Officer White's request for backup, testified under oath in his deposition that he activated his blue lights as he turned off of Highway 8 and onto Chrisman Avenue. He stated he kept his blue lights on the entire time. When asked about his speed, Officer Oswalt stated he was driving approximately 45-50 miles per hour, but he would slow down at all intersections. Every 10 to 15 feet, Officer Oswalt used an air horn to alert traffic instead of activating his siren. As he was slowing down to turn onto Carver Street, Officer Oswalt saw someone running from his right. He slammed on the brakes and tried to swerve, but Officer Oswalt collided with the person. Although he stated the person came from his right, the left side of his patrol car received the most damage.
. Officer Charles White, the officer in pursuit of the black truck, stated in his deposition that he did not notice Officer Oswalt's blue lights as Officer Oswalt passed by the scene. Shawn Mayhall, a bystander who was standing on Chrisman Avenue at the time of the accident, was also deposed. He first stated that Officer Oswalt was speeding, but his blue lights were flashing. When Mayhall was asked again only moments later about the second police car that passed by him, he stated that he remembered one car having blue lights flashing, but he felt sure it was the first car, Officer White's patrol car. Mayhall again stated that he remembered the second police car speeding down Chrisman Avenue, but he did not remember the blue lights being activated. Kevin Young gave a sworn statement in which he stated that Officer Oswalt's patrol car, the second police car he saw on the night of the accident, was traveling at least 60 miles per hour without the
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