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Simpson v. City of Pickens6/1/2000
t with this opinion.
. REVERSED AND REMANDED.
PRATHER, C.J., PITTMAN AND BANKS, P.JJ., MILLS, WALLER AND DIAZ, JJ., CONCUR. McRAE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. SMITH, J., NOT PARTICIPATING.
McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
. While I agree with the majority's reversing and remanding this case for a new trial and adopting the "preponderance of the evidence" standard of proof to be applied in cases brought under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§ 11-46-1 to -23 (Supp. 1999), I must dissent from its refusal to allow David Simpson ("Simpson") a trial by jury. There is no justification for requiring a bench trial in such cases. Such a decision is an indictment of the jury system and a clear violation of the right to a trial by jury guaranteed by our state's constitution. Accordingly, I concur in part and dissent in part.
. Simpson requested a jury trial both in his complaint and at trial. The complaint was brought under Miss. Code Ann. § 11-46-9(c) and charged Officer William Blackstock with acting in reckless disregard of the safety and well-being of someone not engaged in a criminal activity at the time of injury. The trial court denied Simpson's request for a jury trial on the basis of the Act's provision, which directs that cases brought under the Act be tried without a jury. Id. § 11-46-13(1). The Legislature and this Court have taken away a citizen's right to trial in violation of the Mississippi Constitution Art. 3, Section 31 which provides, in pertinent part, that "the right to trial by jury shall remain inviolate. . ." See also Miss. R. Civ. P. 38(a) .
. Under applicable federal law, non-jury trials are provided in actions under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. The rationale behind non-jury trials is saving the government money. The inherent fear that juries will award higher verdicts when faced with the deep-pocketed governmental entities has kept the cases in the hands of judges. Apparently, the State of Mississippi has the same concerns since the Legislature put clear safeguards in the Act. See also Vortice v. Fordice, 711 So.2d 894, 896 (Miss. 1998)(Court found that the desire to protect the coffers of the state is a legitimate basis for upholding the constitutionality of the Act). These safeguards include requiring timely notices to the public entities (§ 11-46-11 (1)), limiting the amount of recovery (§ 11-46-15), and allowing for a 90-day period of investigation and settlement (§ 11-46-11(1)).
. There is even a provision in the Act which allows for a reduction of the "verdict" if it exceeds the monetary limits set by the Legislature. See Miss. Code Ann. § 11-46-15(3). This is yet another safeguard to protect the treasuries of governmental entities. How could this provision apply to a non-jury trial? Under that rationale, the Legislature assumed that a judge would not know the law and erroneously exceed the damage limitations. If that were to happen, who would reduce the judge's verdict? This provision appears to require two actors, the jury who hears the case and returns a verdict and the judge who has the authority to reduce the verdict if it exceeds the damages limitation set by the Legislature.
. While the majority is correct in adopting a preponderance of the evidence standard of proof for claims arising under the Act, it errs in not allowing Simpson a trial by jury. The Constitution of our state, and not the Act, should govern whether a litigant in a negligence action should be provided a jury trial. In addition, the Legislature has provided enough safeguards in order to prot
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