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Jackson v. Powell11/10/2005
itionally, this issue was also revisited in Maye v. Pearl River County, where we cited a definition of recklessness given by the Fifth Circuit:
The terms 'willful,' 'wanton,' and 'reckless' have been applied to that degree of fault which lies between intent to do wrong, and the mere reasonable risk of harm involved in ordinary negligence. These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to do terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.
758 So.2d 391, 394 (Miss.1999)(quoting Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224 n.3 (5th Cir.1991) (emphasis in original)). Additionally, this Court has held that 'wantonness is a failure or refusal to exercise any care, while negligence is a failure to exercise due care." Turner, 735 So.2d at 229 (citing Beta Beta Chapter v. May, 611 So.2d 889, 895 (Miss.1992)) (quoting Covington v. Carley, 197 Miss. 535, 541-42, 19 So.2d 817, 818 (1944)).
Maldonado v. Kelly, 768 So.2d 906, 909-10 (Miss. 2000). In Collins v. Tallahatchie County, 876 So.2d 284, 287 (Miss. 2004), this Court recently defined reckless disregard as embracing "'willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.'" (quoting Turner, 735 So.2d at 230).
. The majority argues that Powell was handcuffed at the time of his injuries, therefore, the police waived immunity from the injuries that Powell suffered pursuant to the MTCA. However, it is clear that Powell pled guilty to resisting arrest, assault on a police officer, and destruction of government property. The facts are also clear and Powell himself admitted that he attempted to escape from the officers because he panicked at the thought of going to jail. Powell was not handcuffed in the police car when he attempted to escape. . While I do not condone the unbridled use of brutal force on individuals, the facts here do not prove that the officers involved acted in reckless disregard as to waive the City's immunity or that Powell was not engaged in criminal activity at the time. Furthermore, the majority's analysis is inconsistent in stating that Powell attempted to flee from a non-violent crime at night. Powell had an outstanding warrant for assault; Powell also pled guilty to assault on an officer and destruction of government property. Therefore, I find that the City is immune pursuant to Miss. Code Ann. § 11-46-9(1)(c).
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