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Johnson v. City of Cleveland5/29/2003
ld be affirmed.
. The Mississippi Tort Claims Act (MTCA), Miss. Code Ann. § § 11-46-1 to -23 (Rev. 2002), provides immunity to government entities and employees who act within the course and scope of employment duties. Section 11-46-9(1)(c) provides in pertinent part:
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) Arising 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.... Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2002) (emphasis added).
In addition, section 11-46-7(2) addresses the Act's coverage when an employee is sued as follows:
An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties. For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense. Miss Code Ann. § 11-46-7(2) (emphasis added).
. This Court has stated that " pparent in the language [of Miss. Code Ann. § 11-46-9] is that those officers who act within the course and scope of their employment, while engaged in the performance of duties relating to police protection, without reckless disregard for the safety and well being of others, will be entitled to immunity." McGrath v. City of Gautier, 794 So.2d 983, 985 (Miss. 2001). Indeed, " he purpose of Miss. Code Ann. § 11-46-9 is to `protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim.'" Maldonado v. Kelly, 768 So.2d 906, 909 (Miss. 2000) (quoting City of Jackson v. Perry, 764 So.2d 373, 376 (Miss. 2000)).
. In granting the City's motion for summary judgment, the trial judge in the case sub judice held that:
[This] court after having reviewed the pleadings and supporting briefs and having viewed the evidence in the light most favorable to the laintiffs, finds that the officer involved herein, who was responding to a call, did not act with reckless disregard as defined by Miss. Code Ann. § 11-46- 7 (1). As such, this court grants the efendant's otion for ummary udgment.
. The City contends that Officer Oswalt's actions did not constitute reckless disregard. Officer Oswalt was responding to a call for back-up assistance running his blue lights and sounding his air horn. In considering the City's motion for summary judgment and Johnson's response thereto, the trial court had before it the following documents: (1) Officer White's deposition; (2) Officer Oswalt's deposition; (3) Officer Bingham's deposition; (4) Mayhall's deposition; (5) Mayhall's statement to Bingham; (6) the Mississippi Crime Laboratory Reports; (7) Young's affidavit; (8) investigative reports and forms; (9) Dr. Hayne's post-mortem examination report and (10) the FBI Laboratory Report.
. Johnson, however, argues that Officer Oswalt's actions amounted to reckless disregard. Johnson c
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