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Simpson v. City of Pickens6/1/2000
urner v. City of Ruleville, 735 So.2d 226, 230 (Miss. 1999), this Court discussed the application of § 11-46-9(1)(c), and specifically addressed the meaning of "reckless disregard", but there was no question raised about which standard of proof to apply. It should be noted that we held in Turner that "reckless disregard is a higher standard than gross negligence by which to judge the conduct of officers" and "reckless disregard for the safety of others is synonymous with willfulness and wantonness." Id.
. Today we adopt the preponderance of evidence standard of proof to be applied in § 11-46-9(1)(c) cases. We hold that a governmental agency and its employees acting within the course and scope of their employment or duties shall not be liable for any claim 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 it is proved by a preponderance of the evidence that the employee acted in reckless disregard of the safety and well-being of any person (claimant) not engaged in criminal activity at the time of injury.
. Because the trial judge did not know to apply this standard, we reverse and remand in order to allow her to determine whether Simpson proved by a preponderance of the evidence that officer Blackstock acted in reckless disregard to the safety and well-being of Simpson, at the time of injury suffered by Simpson, when Simpson was not engaged in a criminal activity.
. This is basically a case of one party's word against the other; and therefore, the trial judge is in a much better position than this Court to determine whether the evidence presented meets the requisite burden of proof. She saw these witnesses testify. Not only did she have the benefit of their words, she alone among the judiciary observed their manner and demeanor. She was there on the scene. She smelled the smoke of battle. She sensed the interpersonal dynamics between the lawyers, the witnesses, and herself. These are indispensable. See Rochell v. State, 748 So.2d 103, 110 (Miss. 1999) (citing Madden v. Rhodes, 626 So.2d 608, 625 (Miss. 1993)).
ISSUE II. DOES THE MISSISSIPPI TORT CLAIMS ACT BAR, APPELLANT'S RIGHT TO A JURY TRIAL?
. Miss. Code Ann. § 11-46-13 (Supp. 1999) provides in pertinent part:
(1) Jurisdiction for any suit filed under the provisions of this chapter shall be in the court having original or concurrent jurisdiction over a cause of action upon which the claim is based. The judge of the appropriate court shall hear and determine, without a jury, any suit filed under the provisions of this chapter. Appeals may be taken in the manner provided by law. (emphasis added).
. This Court has held that "the right to a jury trial guaranteed by § 31 of the Mississippi Constitution applies only to those cases in which a jury trial was necessary at common law" and that "suits against the State of Mississippi or a school district are not `suits at common law'. When the State does waive sovereign immunity, it may attach any conditions to its consent, such as a provision excluding trial by jury." Wells v. Panola County Bd. of Educ., 645 So. 2d 883, 898 (Miss. 1994).
. The trial judge was not in error in denying Simpson a jury trial. This issue is without merit.
CONCLUSION
. Because we today adopt the "preponderance of evidence" standard of proof to be applied to the MTCA provisions central to this case, and because Simpson's case was tried without notice of the appropriate standard, we reverse the judgment of the Holmes County Circuit Court and remand for further action consisten
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