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Simpson v. City of Pickens6/1/2000
jury.
The evidence is clear that the City of Pickens is a governmental entity, that William Blackstock was employed as a police officer for the City of Pickens, and was on duty at the time of this incident. The evidence further shows that Officer Blackstock was engaged in duties relating to his employment as a police officer.
The question now before the Court is whether the Plaintiff has proven that Officer Blackstock acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury. The Plaintiff has filed this suit on his behalf, although, there was other persons inside the house; however, the evidence is clear that the other persons in the house were not engaged in criminal activity and that the officer left the house without an altercation inside the house.
As to whether or not the Plaintiff was engaged in criminal activity at the time of this incident the Court finds the Plaintiff has not carried his burden of proof by clear and convincing evidence that he was not engaged in criminal activity at the time of this incident.
This Court finds that the Plaintiff's evidence did not rise to the level of clear and convincing evidence required to meet the Plaintiff's burden of proof. This Court therefore finds for the City of Pickens and William Blackstock in this matter. (emphasis added).
ANALYSIS
ISSUE I. DID THE LOWER COURT USE AN INCORRECT LEGAL ANALYSIS AND STANDARD IN RENDERING A JUDGMENT IN FAVOR OF THE APPELLEE?
. The MTCA provides the exclusive civil remedy against a governmental entity or its employees for acts or omissions which give rise to a suit. Miss. Code Ann. § 11-46-7(1) (Supp.1999). Governmental entities and employees are provided an exemption from liability in § 11-46-9. Subsection (1)(c) provides in pertinent part:
(1) 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 injury; Miss. Code Ann. § 11-46-9(1)(c) (Supp. 1999) (emphasis added).
. It was undisputed that the City of Pickens is a governmental entity, that William Blackstock was employed as a police officer for the City of Pickens and was on duty at the time of this incident, and he was engaged in duties relating to his employment as a police officer. However, there was significant dispute as to what actually happened on the night in question.
. Simpson had the burden of proving that he was injured at the time Blackstock acted in reckless disregard of Simpson's safety and well being and while Simpson was not engaged in criminal activity. The trial judge applied the "clear and convincing" standard and ruled that Simpson did not meet his burden of proof. Simpson argued that the proper standard of proof should be "preponderance of the evidence" based on the general standard applied in negligence actions. The City and Blackstock conceded that preponderance of the evidence would be the correct standard, but argued that the court's application of the higher standard was harmless error because Simpson's proof failed to meet even the lower preponderance of evidence standard.
. The MTCA is silent regarding the standard of proof to be applied to a claim made pursuant to the provisions of Miss. Code Ann. § 11-46-9(1)(c). In T
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