IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CT-00578-SCT
MISSISSIPPI DEPARTMENT OF WILDLIFE,
FISHERIES, AND PARKS
v.
CANDACE WEBB, THOMAS HARPER, AND
KATHLEEN D. WEBB
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 12/02/2014
TRIAL JUDGE: HON. LISA P. DODSON
TRIAL COURT ATTORNEYS: JOE SAM OWEN
STEPHEN G. PERESICH
BRETT K. WILLIAMS
THOMAS M. MATTHEWS, III
COURT FROM WHICH APPEALED: CIRCUIT COURT OF THE SECOND
JUDICIAL DISTRICT OF HARRISON
COUNTY
ATTORNEYS FOR APPELLANT: STEPHEN G. PERESICH
JOHANNA M. McMULLAN
ATTORNEYS FOR APPELLEES: JOE SAM OWEN
ROBERT P. MYERS, JR.
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED. THE JUDGMENT
OF THE CIRCUIT COURT OF THE
SECOND JUDICIAL DISTRICT OF
HARRISON COUNTY IS REINSTATED
AND AFFIRMED - 03/15/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
KITCHENS, PRESIDING JUSTICE, FOR THE COURT:
¶1. On August 22, 2009, two officers with the Mississippi Department of Wildlife,
Fisheries, and Parks (MDWFP) observed Donald Bernius speeding on the Tchoutacabouffa
River in Harrison County, Mississippi. Prior to effecting a stop, the officers ordered Bernius
to move his boat to what they contended was a safer location on the river; but Bernius fled
in the opposite direction. Bernius’s vessel collided with a boat operated by Christopher
Webb. The collision killed Webb and seriously injured Shane Webb. Two hours after the
collision, Bernius’s blood-alcohol content was .25 percent. Kathleen Webb, individually and
on behalf of Christopher Webb’s wrongful-death beneficiaries, and Candace Webb, as Shane
Webb’s guardian, filed a lawsuit pursuant to the Mississippi Tort Claims Act (MTCA)
against the MDWFP, arguing that the officers had acted in reckless disregard for the safety
of others. The Circuit Court of the Second Judicial District of Harrison County, following
a bench trial, agreed and ruled in favor of the Webbs. The Mississippi Court of Appeals
reversed and rendered a judgment in favor of the MDWFP, finding that the evidence did not
demonstrate that the officers had acted with reckless disregard. We granted Candace Webb’s
Petition for Writ of Certiorari. Finding that the Mississippi Court of Appeals misapplied the
applicable standard of review and substituted its judgment for that of the trial court, we
reverse the judgment of that court and reinstate and affirm the judgment of the Circuit Court
of the Second Judicial District of Harrison County.
FACTS AND PROCEDURAL HISTORY
¶2. The following recitation of the facts is repeated from the decision of the Mississippi
Court of Appeals:
2
On August 22, 2009, MDWFP conservation officers Barry Delcambre and
Michael Thrash witnessed Donald Bernius speeding in a boat on the
Tchoutacabouffa River. The officers each navigated their separate patrol boats
into the river to investigate and stop Bernius. Bernius saw the officers and
came to an initial stop in the middle of the river.
According to the officers’ testimony at trial, they recognized that their boats
and Bernius’s boat were stopped in a “dangerous area” of the river. The
officers testified that this particular area of the river, known as Bend 2, has
blind spots where boaters heading from either direction cannot see other
boaters approaching from the opposite direction. The officers explained that,
as a result of stopping and approaching Bernius, the three boats were situated
in a position so as to occupy most of the width of the river, which, according
to the officers, created an eminent [sic] hazard for other boaters. As a result,
Officer Delcambre instructed Officer Thrash to have Bernius move to the
nearby straightaway down the river to provide a safer location for them to
question Bernius. Officer Delcambre proceeded ahead of Officer Thrash and
Bernius with the intention of blocking oncoming traffic.
Officer Thrash ordered Bernius to follow them out of Bend 2 into the
straightaway, and Bernius agreed to comply with the instructions. Officer
Thrash then proceeded to the straightaway after Officer Delcambre so that
Bernius could follow him. According to Officer Thrash, Bernius followed him
a short distance, and then Bernius abruptly turned his vessel 180 degrees and
fled in the opposite direction. Officer Thrash then signaled to Officer
Delcambre, and the officers pursued Bernius.
At the same time, John Joachim was traveling down the river in his boat in the
opposite direction from Bernius. Joachim provided in his statement that he
observed Bernius speeding and recklessly driving on the wrong side of the
river. As Bernius’s boat approached, Joachim had to use evasive maneuvers
to avoid a collision with Bernius. After passing Joachim’s boat, Bernius
collided with a boat operated by Christopher [Webb]. The collision resulted in
Christopher [Webb’s] death and injuries to Shane [Webb], who was a
passenger in Christopher [Webb’s] boat.
Neither Officer Delcambre nor Officer Thrash witnessed the collision. Once
the officers arrived at the scene of the accident, they began rescue procedures,
tended to the injured, alerted authorities, and assisted Bernius out of the water.
Bernius was treated at Biloxi Regional Medical Center. Approximately two
hours after the accident, a blood sample was drawn from Bernius, which
indicated a .25 percent blood-alcohol concentration (BAC) level. Bernius later
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pled guilty to boating under the influence (BUI) and causing death and injury.
Bernius is currently serving a twenty-year sentence in prison. As the record
reflects, prior to the incident, Bernius was a paraplegic and wheelchair bound.
In connection with the boating accident, the Mississippi Department of Marine
Resources (MDMR) investigated Officer Delcambre’s and Officer Thrash’s
conduct. After interviewing Officer Delcambre and listening to an interview
of [Dexter] Bouie, the passenger in Bernius’s boat, the MDMR determined
that Officers Delcambre and Thrash “acted completely within the scope of
their duties . . . .” The MDMR concluded “that the only people responsible for
this boating accident were the people involved in the actual accident.” The
Webbs subsequently filed suit against the MDWFP under the MTCA, claiming
that Officers Delcambre and Thrash acted with reckless disregard for the
safety of others when they failed to detain Bernius and instructed him to move
to a safer location.
At a bench trial held on February 18 and 19, 2014, Officers Delcambre and
Thrash testified to their knowledge and understanding of the MDWFP’s
Standard Operation Procedures (SOPs) for handling BUI situations. Both
officers testified that, in their initial contact with Bernius, his demeanor and
handling of his vessel, among other things, failed to indicate he was impaired.
Officer Thrash specifically testified that, at the time, he had no reasonable
suspicion to believe Bernius was intoxicated.
Officers Delcambre and Thrash testified that their first priority during their
initial contact with Bernius was to ensure the safety of other boaters and
citizens on the river. Officer Delcambre explained, “On that particular day[,]
due to the river traffic and the fluctuations of the traffic coming north and
south up the river where we encountered Bernius there in [B]end [2], due to
the nature of where we [were] . . . I made the judgment to move around the
bend for the safety of the people and everybody involved on the river.”
...
The circuit court ultimately held that, “considering the totality of the
circumstances and the applicable law, as well as the admissions of the officers,
the officers acted in this case with reckless disregard.” . . . The circuit court
explained:
[The officers] did not exercise any of the care or consideration
[that] they were required to do in their dealings with Bernius.
They clearly intended that Bernius continue to operate his boat
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without any restrictions from them and without their having
made any inquiries as to his reckless operation, speeding,
physical abilities, or use of alcoholic beverages. They “intended
to do the act that caused harm to come to the [p]laintiff.”
The circuit court ultimately rendered a judgment for the Webbs. The circuit
court conducted a damages hearing on November 5, 2014, and awarded
damages in the amount of $1,400,000 to the guardianship of Shane, and
damages of $100,000 to Kathleen, individually and on behalf of Christopher’s
wrongful-death beneficiaries. After applying the MTCA’s statutory cap on
damages, the circuit court ultimately entered a final judgment to the
guardianship of Shane in the amount of $466,666.67, and to Kathleen,
individually and on behalf of Christopher’s wrongful-death beneficiaries, in
the amount of $33,333.33.
Miss. Dep’t of Wildlife, Fisheries, and Parks v. Webb, 2017 WL 1396686, **2-4 (Miss. Ct.
App. Apr. 18, 2017).
¶3. The Mississippi Court of Appeals held that “the circuit court’s judgment lacks
credible and substantial evidentiary support.” Id. at *11. The court continued: “[t]he evidence
failed to show that the officers’ conduct ‘evinced not only some appreciation of the
unreasonable risk involved, but also a deliberate disregard of that high risk and the high
probability of harm involved.’” Id. (quoting Bradley v. McAllister, 929 So. 2d 377, 380
(Miss. Ct. App. 2006)).
STANDARD OF REVIEW
¶4. The applicable standard of review follows:
“A circuit court judge sitting without a jury is afforded the same deference as
a chancellor.” City of Jackson v. Sandifer, 107 So. 3d 978, 983 (Miss. 2013)
(citing City of Jackson v. Powell, 917 So. 2d 59, 68 (Miss. 2005)). This Court
leaves undisturbed a circuit court’s findings following a bench trial unless the
findings “are manifestly wrong, clearly erroneous, or an erroneous legal
standard was applied.” Sandifer, 107 So. 3d at 983 (quoting Powell, 917 So.
2d at 68). The circuit court’s findings “are safe on appeal where they are
5
supported by substantial, credible, and reasonable evidence.” City of Jackson
v. Law, 65 So. 3d 821, 827 (Miss. 2011) (quoting City of Ellisville v.
Richardson, 913 So. 2d 973, 977 (Miss. 2005)). “Although reasonable minds
might differ on the conclusion of whether or not the officer in question acted
in reckless disregard, it is beyond this Court’s power to disturb the findings of
the trial judge if supported by substantial evidence.” Richardson, 913 So. 2d
at 978 (citing City of Jackson v. Brister, 838 So. 2d 274, 277-78 (Miss.
2003)).
City of Jackson v. Lewis, 153 So. 3d 689, 694 (Miss. 2014). “In a bench trial, when the trial
judge sits as the finder of fact, he [or she] has the sole authority for determining the
credibility of witnesses.” Brister, 838 So. 2d at 279 (citing Yarbrough v. Camphor, 645 So.
2d 867, 869 (Miss. 1994)).
DISCUSSION
¶5. The Mississippi Tort Claims Act insulates employees of a governmental entity,
“acting within the course and scope of their employment,” from liability for any claim while
that employee is “engaged in the performance or execution of duties or activities relating to
police . . . 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) (Rev. 2012).
¶6. This Court has held that “‘[r]eckless disregard’ . . . denotes ‘more than mere
negligence, but less than an intentional act.’” Lewis, 153 So. 3d at 693 (quoting Law, 65 So.
3d at 826). “‘Our case law indicates “reckless disregard” embraces willful or wanton conduct
which requires knowingly and intentionally doing a thing or wrongful act.’” Miss. Dep’t of
Pub. Safety v. Durn, 861 So. 2d 990, 995 (Miss. 2003) (quoting City of Jackson v. Lipsey,
834 So. 2d 687, 692 (Miss. 2003)). Moreover, “‘reckless disregard usually is accompanied
6
by a conscious indifference to consequences, amounting almost to a willingness that harm
should follow.’” Durn, 861 So. 2d at 995 (quoting Maye v. Pearl River Cty., 758 So. 2d 391,
394 (Miss. 1999)). Reckless disregard occurs “when the ‘conduct involved evinced not only
some appreciation of the unreasonable risk involved, but also a deliberate disregard of that
risk and the high probability of harm involved.’” Durn, 861 So. 2d at 995 (quoting
Maldonado v. Kelly, 768 So. 2d 906, 910-11 (Miss. 2000)).
¶7. The Alcohol Boating Safety Act provides: “It is unlawful for any person to operate
a watercraft on the public waters of this state who . . . [i]s under the influence of intoxicating
liquor . . . .” Miss. Code Ann. § 59-23-7(1)(a) (Rev. 2013). Mississippi Code Section 59-21-
83 provides that:
No vessel shall be operated within this state in a reckless or negligent manner
or at a rate of speed greater than is reasonable and prudent under the then
existing circumstances or when the operator is so physically or mentally
incapacitated as to be incapable of safely operating such vessel, or while the
operator is under the influence of intoxicating liquor or narcotics . . . .
Miss. Code Ann. § 59-21-83 (Rev. 2013).
¶8. The Mississippi Department of Wildlife, Fisheries, and Parks issued Standard
Operating Procedures (SOPs) for enforcing the Alcohol Boating Safety Act on February 20,
2006, which were to “[s]upersede[] all prior departmental [d]irectives on this subject.” SOP
04.01 requires custodial arrests for “[v]iolations of the Alcohol Boating Safety Act” and
provides that for other violations, “a citation should be issued at the scene . . . .” SOP 04.01,
in the case of a custodial arrest, sets forth procedures for the officers to undertake in securing
the vessel.
7
¶9. SOP 07/03 states that, in order “to establish probable cause, an Officer must . . .
[h]ave a reasonable belief that an operator of a watercraft is under the influence; and . . .
[m]eticulously follow the procedures necessary to form probable cause, to establish probable
cause, and/or prima facie intoxication.” (Emphasis in original.) The SOP 07/03 continues:
Since BUI applies to operators of watercraft, which are underway, this will
mean that the effort to establish probable cause for BUI will begin after an
Officer’s stopping of a watercraft, which is underway.
Generally, for an Officer to stop a vessel that is underway, you must have
observed that vessel being operated in a negligent or reckless manner, or
observe the vessel or its operator in violation of some other law or regulation
(i.e. too many occupants in the boat, improper [personal flotation devices],
etc.)[.] However, an Officer may stop a boat for a routine safety check and
then for a reasonable belief that the operator might be under the influence
which begins the process for establishing probable cause for BUI[.]
NOTE: An Officer may not use a safety check as an excuse to stop any
watercraft for the sole purpose of attempting to establish probable cause for
BUI.
Once a vessel has been stopped, the Officer may then ascertain if there is
further probable cause to suspect that the operator or the vehicle is under the
influence of alcohol, drugs, or a controlled substance. Evidence to warrant
proceeding to the screening/intoxication interview include:
1. Slurred speech;
2. Poor balance (not as convincing on water due to wave
action);
3. Bloodshot eyes; and
4. Other behavioral anomalies that suggest the individual is
not in complete control of his or her faculties.
(Emphases in original.)
8
¶10. The trial court ruled that, while “both officers stated that they were going to move into
the straightaway and then determine why Bernius had been reckless and speeding and then
go into the BUI format,” neither officer pointed to anything “(statute, SOP, rule, case law,
etc.) which would indicate that this was an acceptable or permissible procedure.” The trial
court ruled:
In this case, SOP 4.01 provides that citations are to be issued “at the scene.”
That SOP does not provide that the officers may direct the offending operator
to continue to operate his vessel prior to issuing a citation. Specifically, it does
not provide for directing an operator to move his vessel to another location.
Movement of the boat is permitted only on a custodial arrest and then that
movement is not made by the offending operator. SOP 07/03 defines “probable
cause” and states that “the effort to establish probable cause for BUI will begin
after an Officer’s stopping of a watercraft . . . .” The word “will” is mandatory,
not permissive. SOP 07/03 then provides that after stopping a vessel, “the
Officer may then ascertain if there is further probable cause . . .” and gives a
list of evidence to consider to determine whether to proceed to “the
screening/intoxication interview . . . .” These provisions indicate that the
officer is required upon stopping a vessel to begin his efforts to establish
probable cause for BUI and that the officer may determine that there is further
probable cause by considering the four (4) factors listed. If those four (4)
factors exist, the officer then must proceed to the screening interview.
The trial court continued that Officers Thrash and Delcambre “decided without hesitation to
direct Bernius to continue to operate his boat to travel to the straightaway before either
determining why Bernius was reckless and speeding or whether the use of alcohol could be
ruled out.”
¶11. The Court of Appeals disagreed with the trial court’s interpretation of the SOPs,
concluding that, “due to public interest in the officers’ safety when conducting a stop, we
find that the officers here possessed the discretion to request that Bernius pull out of the
hazardous and high-traffic area of the river.” We cannot agree with the conclusion of the
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Court of Appeals because the trial court’s interpretation of the MDWFP’s SOPs was not
manifestly wrong, clearly erroneous, and it did not demonstrate the application of an
erroneous legal standard. The Court of Appeals may have disagreed with the trial court’s
conclusions. But, with respect, that is not enough to reverse the trial court’s judgment.
¶12. The Court of Appeals correctly observed that “Mississippi precedent establishes that
a violation of a SOP does not alone establish reckless disregard.” Webb, 2017 WL 1396686,
*9 (citing City of Jackson v. Presley, 40 So. 3d 520, 524 (Miss. 2010)).1 Trial courts must
“‘look to the totality of the circumstances when analyzing whether someone acted in reckless
disregard.’” Lewis, 153 So. 3d at 694 (quoting Richardson, 913 So. 2d at 977).
¶13. The appeals court found that “Officer Thrash admitted that, during the alleged stop,
he did not ask Bernius or his passenger whether they had consumed,” but that “he could not
tell if Bernius’s speech was slurred because he only heard Bernius say ‘Okay’ in response
to the command for Bernius to follow the officers to the straightaway.” Webb, 2017 WL
1396686, *6. Moreover, Officer Thrash testified that he did not have reasonable suspicion
that Bernius was under the influence: “Bernius ‘was seated on his boat and appeared to have
good posture,’ and [Officer Thrash] was never close enough to Bernius to observe if his eyes
1
The trial court observed that “[t]his case . . . is not a pursuit case . . . and no party
suggests that the Court should review or consider the ten (10) pursuit factors.” See Lewis,
153 So. 3d at 694). According to the trial court, “[t]he actual pursuit in this case had ended
when Bernius stopped before Bend 2. He was then being detained by Thrash and Delcambre
and was under their direction and control. When [Bernius] turned around and sped away,
neither Thrash nor Delcambre was in pursuit.” The trial court continued: “[t]he parties agree
that the Court is to consider the totality of the circumstances in arriving at a determination
of whether there is reckless disregard in this matter.”
10
were bloodshot. . . . Bernius exhibited no behavior anomalies suggesting that Bernius was
not in complete control of his faculties.” Id. The Court of Appeals continued:
Officer Delcambre testified that, because of the blindspot located in the bend
where he and Officer Thrash stopped Bernius, he was not close enough to
Bernius’s boat to be able to assess Bernius’s mental, physical, or sensory
faculties. Officer Delcambre explained, “We never engaged [Bernius] in
slurred speech. I never engaged him in a conversation. I never engaged him in
any of that. My main objective at the point where we made contact was to get
him out of the bend of the river.” Officer Delcambre instructed Officer Thrash
to tell Bernius to follow the officers around the bend so they could safely
question Bernius regarding his excessive speeding and reckless operation of
the boat.
Id. at 7. Both Officers Thrash and Delcambre testified that a “blind spot” existed in the bend
of the river where Bernius was stopped. In analyzing the totality of the circumstances, the
Court of Appeals relied solely on the testimony of Officers Thrash and Delcambre. But it
ignored the determination by the trial court that the testimony of Officers Thrash and
Delcambre lacked credibility. “In a bench trial, when the trial judge sits as the finder of fact,
[s]he has the sole authority for determining the credibility of witnesses.” Brister, 838 So. 2d
at 279 (citing Yarbrough, 645 So. 2d at 869).
¶14. Officer Keith Lewis Bond, a conservation officer with the MDWFP, prepared a report
following the accident which was submitted to the district attorney. He stated in that report
that Officers Thrash and Delcambre had, prior to stopping Bernius, “initiated blue lights and
siren in an attempt to stop Bernius as he passed falling in behind him southbound as he
ignored their signals.” Both Officers Thrash and Delcambre attempted to discredit this report
during the bench trial. Officer Thrash stated that “when [Bernius] saw me he decelerated his
boat and began to stop. So in my opinion he did not ignore my blue lights and sirens.” Officer
11
Delcambre testified that the sentence in the report indicating that Bernius had ignored the
blue lights and siren was not correct. The trial court found that “[t]he officers pursued
Bernius down the straightaway between Bends 3 and 4, around [B]end 3, and eventually got
Bernius stopped just before Bend 2.”
¶15. Joshua Lord, who was boating on August 22, 2009, helped Officers Thrash and
Delcambre in getting Bernius to shore and in searching in the water for the deceased victim.
Lord testified, without objection, that he had heard Officer Delcambre state to other MDWFP
officers that Officer Delcambre had “stop[ped] the boat because his passenger was propped
up on his back holding him up keeping him able to drive.” Officer Delcambre, during the
bench trial, denied that he had told anyone that he had observed Bernius being propped up
in the boat by his passenger, Dexter Bouie.
¶16. The accident occurred at 4:15 p.m. (16:15) and Bernius’s blood was drawn at 6:30
p.m. (18:30), two hours and fifteen minutes later. The report from the Mississippi Crime
Laboratory indicates that Bernius’s blood-alcohol content was .25%. Both Officers Thrash
and Delcambre agreed that “an individual with a .25 BAC has severe impairment of all
mental, physical and sensory function.” Officer Delcambre stated that a person with such
impairment “couldn’t stand up, couldn’t articulate, you know, in speech, could mean no hand
or eye coordination.”
¶17. The trial court stated that “the fact that Bernius was ultimately determined to have a
BAC of .25% does not mean that the officers knew or should have known of that at the time
they stopped Bernius,” but that such determination does “call into question the officers’
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observations (or lack thereof) of Bernius.” The trial court mentioned Officer Delcambre’s
testimony “that a BAC of .25% is a severe impairment and that a person with that BAC is
unable to stand, cannot articulate, and has no hand/eye coordination.” The court continued:
“[i]t raises a question in the Court’s mind about the accuracy of the officers’ observations of
Bernius or perhaps the accuracy of their testimony.” The court found that Lord’s testimony
that, “after the accident, he heard Delcambre tell other officers that they stopped Bernius
because the passenger was propping Bernius up and that the two men were back to back,”
called into question the veracity of Officer Delcambre’s testimony denying having said that.
¶18. Officer Bond’s report also stated that Officer Delcambre and Lord “stated that they
could smell the distinct odor of an intoxicating beverage on Bernius’s breath” as the pair of
them extracted the paraplegic (Bernius) from the water and into Officer Delcambre’s boat
following the accident. Lord testified at the bench trial that “the smell was very strong
coming off of [Bernius’s] breath of alcohol.” Officer Delcambre testified at the bench trial
“[i]t’s false” in reference to the MDWFP report prepared by Officer Bond. Lord described
Bernius’s behavior as, “[i]n one word, wasted.” The trial court found that Lord’s testimony
was credible, noting that “Lord is not affiliated with any party in this case and did not know
either Bernius or Delcambre.” The trial court continued that “[t]here was no plausible reason,
in fact, no reason at all given as to why Lord’s testimony should be questioned concerning
this statement.”
¶19. Officer Thrash testified that, when he and Officer Thrash began the process of getting
Bernius to stop his boat, “at the time we were in that dangerous bend and we needed to get
13
out of that dangerous bend to a long straightaway, and at that time we would have conducted
an interview, but at that time he [gave] us no reasonable suspicion to believe that he had been
drinking.” Officer Thrash then agreed that he and Officer Delcambre had stopped Bernius
not only to “determine why he was driving recklessly” but also “to rule out the use of alcohol
. . . .” Officer Delcambre testified that “we had at least two-thirds of the river blocked and
in a dangerous bend and the blind spot. So if somebody had come around from that
straightaway and around that [blind spot] right there one of the three boats more than likely
would have been hit.” The trial court found that “the only evidence that Bend 2 was really
either blind or dangerous is the testimony of Thrash and Delcambre” and that such testimony
amounted to nothing more than “well-rehearsed mantra.” The court further questioned the
veracity of the officers’ testimony by pointing out that:
[i]f these officers really believed that Bend 2 was a blind, dangerous curve and
was as dangerous as they would like for this Court to believe, they cannot truly
believe that it was safe or reasonable to order an acknowledged reckless
operator to drive his boat through that dangerous area unfettered in any
manner.
According to the trial court, “[t]he photographs do show a sharp curve as Bend 2, but the
points of reference in the photographs do not lend themselves to any real assessment that
Bend 2 is a blind curve or a dangerous curve.”
¶20. Officer Thrash testified that it was impossible to have moved Bernius’s boat to or near
a pier close in proximity to the place at which Bernius’s boat had been stopped in Bend 2
because if “you have two boats side by side and a boat comes by you at full speed the wake
action could actually break your arm or fingers . . . while you’re sitting there trying to
14
conduct an interview.” He stated, however, that the danger of a collision due to the blind
curve of Bend 2 would have been avoided entirely by moving the boats to or close to the
nearby pier. The trial court found that Thrash’s testimony concerning the possibility that an
arm or finger could be broken due to the wake of passing boats was “not credible.” The trial
court observed that “these officers are experienced enough to avoid breaking a finger simply
because a boat is docked at a pier.” She continued: “[t]hese are experienced officers who
dock boats every day. They were both, in fact, at a pier or dock when they first saw Bernius
and yet there is no report of any finger breaking incident occurring there.”
¶21. We cannot discard the trial court’s finding that the testimony of Officers Thrash and
Delcambre was not credible because substantial, credible, and reasonable evidence in the
record contradicts the officers’ testimony. The trial court ultimately found that:
[w]hether the officers knew that Bernius was intoxicated or not and whether
they should have known or not, Thrash and Delcambre admittedly appreciated
the unreasonable risk to others on the River in allowing a person to recklessly
operate a boat and/or to operate at an unreasonable speed. They acknowledged
that there was a probability of harm to others if they permitted such a person
to operate a boat in that manner. Yet they not only permitted Bernius to
continue to operate his boat, they directed him to do so.
In reversing and rendering the trial court’s judgment, the Court of Appeals ignored
substantial, credible, and reasonable evidence adduced in the bench trial which supported the
trial court’s finding that Officers Thrash and Delcambre acted with reckless disregard for the
safety of others.
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CONCLUSION
¶22. It is possible that reasonable minds could differ on the question of whether Officers
Thrash and Delcambre acted in reckless disregard for the safety of others. But, despite
substantial evidence adduced at trial supporting the thorough finding by the Circuit Court of
the Second Judicial District of Harrison County that Officers Thrash and Delcambre acted
in reckless disregard for the safety of others, the Mississippi Court of Appeals disagreed with
the court’s conclusion and substituted its own findings of fact. Accordingly, we reverse the
judgment of the Mississippi Court of Appeals and reinstate and affirm the judgment of the
Circuit Court of the Second Judicial District of Harrison County.
¶23. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT
OF HARRISON COUNTY IS REINSTATED AND AFFIRMED.
WALLER, C.J., RANDOLPH, P.J., KING, BEAM AND CHAMBERLIN, JJ.,
CONCUR. MAXWELL, J., CONCURS IN PART AND IN RESULT WITHOUT
SEPARATE WRITTEN OPINION. COLEMAN, J., DISSENTS WITH SEPARATE
WRITTEN OPINION. ISHEE, J., NOT PARTICIPATING.
COLEMAN, JUSTICE, DISSENTING:
¶24. The plaintiffs bore the burden of producing evidence that the law enforcement officers
in the case sub judice acted with reckless disregard. Even in light of our highly deferential
standard of review, the plaintiffs failed to produce evidence that the officers in question
appreciated the risk of the suspect fleeing or consciously disregarded any risk. A review of
the trial court’s order indicates that the trial judge based her judgment in favor of the
plaintiffs on a rejection of the defenses offered by the Department rather than sufficient,
affirmative proof offered by the plaintiffs to show reckless disregard on the part of the
16
officers. In doing so, the trial court erred by reversing the burden of production.
Accordingly, the trial court erred in granting judgment in favor of the plaintiffs, and I, with
respect, dissent.
Standard of Review
¶25. “A circuit court judge sitting without a jury is afforded the same deference as a
chancellor.” City of Jackson v. Lewis, 153 So. 3d 689, 693 (¶4) (Miss. 2014). Accordingly,
we will not disturb a circuit court’s findings following a bench trial where the findings are
supported by substantial, credible, and reasonable evidence. Id. However, we must reverse
the circuit court’s findings where they are manifestly wrong or clearly erroneous, or the court
applied an erroneous legal standard. Id. “Although reasonable minds might differ on the
conclusion of whether or not the officer in question acted in reckless disregard, it is beyond
this Court’s power to disturb the findings of the trial judge if supported by substantial
evidence.” Id. (citing City of Ellisville v. Richardson, 913 So. 2d 973, 978 (¶15) (Miss.
2005)). We review questions of law de novo. Richardson, 913 So. 2d at 977 (¶13).
Analysis
¶26. The plaintiffs bore the burden of proving that Officers Delcambre and Thrash acted
with reckless disregard. Hinds County v. Burton, 187 So. 3d 1016, 1022 (¶17) (Miss. 2016).
Therefore, the plaintiffs had to prove, by a preponderance of the evidence, both that the
officers appreciated the risk of the suspect fleeing the scene and causing another accident and
that they deliberately disregarded the risk and “high probability” of harm resulting therefrom.
17
City of Jackson v. Lewis, 153 So. 3d 689, 693-694 (¶5) (Miss. 2014). In short, plaintiffs
failed to produce sufficient evidence to prove their claim.
¶27. Plaintiffs, in their case-in-chief, called four witnesses: Officer Thrash, Officer
Delcambre, Master Sergeant Keith Bond of the Department of Wildlife, Fisheries, and Parks,
and Joshua Lord. Of the four, only Officers Thrash and Delcambre had personal knowledge
of the events surrounding the stop of Bernius and the factors that weighed in the decision of
the officers to order Bernius to follow them to a straightaway in the river. Master Sergeant
Bond testified about the contents of the report of the accident prepared by the Department,
and Lord witnessed the aftermath of the underlying collision. Via none of the witnesses did
the plaintiffs produce evidence that Officers Thrash and Delcambre acted with reckless
disregard as the phrase is defined above.
¶28. Without question, at the time of the underlying incident, Officer Thrash was less
experienced. The stop of Bernius was the first time he participated in stopping a boater for
what turned out to be boating under the influence. Officer Thrash acknowledged that
Bernius operated the boat prior to the initial stop in a manner which indicated a lack of
control and recklessness. He denied knowing at the time of the stop that Bernius’s blood
alcohol level was elevated. After the initial stop, when Thrash pulled his boat up next to
Bernius’s, Bernius appeared to have good posture and did not speak in a way that Thrash
could appreciate that he was slurring words. Officer Thrash testified that, other than the
initial manner described above in which Bernius operated his boat coming around the river
bend, he observed no signs or “behavioral anomalies” indicating Bernius did not have control
18
of his faculties. Regarding the decision to order Bernius to follow the officers out of the
river bend and to a straightaway, Thrash testified as follows:
Well, at the time we were in that dangerous bend and we needed to get out of
that dangerous bend to a long straightaway, and at that time we would have
conducted an interview, but at that time he gave us no reasonable suspicion to
believe that he had been drinking.
Officer Thrash consistently denied that, at the time he ordered Bernius to follow, he had
reasonable suspicion that Bernius had been drinking. He testified that, had Bernius not
attempted to flee, he and Officer Delcambre would have questioned him and, if during
questioning, he had exhibited signs of having consumed alcohol, investigated accordingly.
Officer Thrash testified that he had made other stops for reckless operation and found that
the boat operator had consumed no alcohol.
¶29. The testimony of Officer Delcambre resembled that of Officer Thrash. Officer
Delcambre agreed that Bernius sped and operated his boat in a reckless manner before the
stop. Officer Delcambre confirmed that the initial stop was very brief, about fifteen seconds,
and that the boats never came to a complete halt but continued to move at “idle speed.”
Officer Delcambre did not interact with Bernius, but he did instruct Officer Thrash to order
Bernius out of the bend and into a straightaway. Officer Delcambre steadfastly testified that
at the time of the very brief stop, the stop was occasioned by Bernius’s reckless operation of
his craft and that no reasonable suspicion of boating under the influence of alcohol arose.
¶30. The trial judge’s opinion characterized the Department’s defense as resting “solely on
their position that the boats were stopped in a dangerous bend of the River, that they were
blocking a portion of the River. . . .” The trial judge rejected the defense as not credible. She
19
did not believe Officers Thrash’s and Delcambre’s testimony that the bend in the river was
a dangerous place to stop. Of course, as the finder of fact, the trial judge is the arbiter of
witness credibility. However, the plaintiff bore the burden of proof, Hinds County v.
Burton, 187 So. 3d 1016, 1022 (¶17) (Miss. 2016), not the Department. It is not enough that
the trial court rejected what it viewed as the sole defense of the Department. The plaintiff
must offer evidence that shows the officers acted with reckless disregard.
¶31. The trial judge relied heavily on the undisputed fact that Bernius’s blood alcohol
content later was determined to be .25 percent, but neither Officer Thrash nor Officer
Delcambre knew at the time of the stop what his blood alcohol level later would prove to be.
Officer Thrash testified that Bernius sat upright and with good posture. The plaintiffs failed
to produce any evidence that the officers had reason to believe Bernius was intoxicated at the
time of the stop. Nowhere in the record is evidence by the plaintiffs that shows either officer
directed Bernius to continue operating his boat despite reaching a belief that Bernius was
intoxicated. Accordingly, the Department’s operating procedures, upon which the plaintiffs
rely as evidence of reckless disregard, do not support the verdict, because it is undisputed that
the officers never formed a reasonable suspicion that Bernius was intoxicated until well after
the stop. The finding of the trial judge that the Department did not contest that its officers
had failed to follow the operating procedures lacks evidentiary support. Both officers
testified consistently that, because they had no reasonable suspicion that Bernius was
intoxicated, the operating procedures governing boating under the influence never came into
play.
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¶32. The trial judge faults the officers for allowing Bernius to continue to operate his boat
in order to move into a straightaway. However, in the absence of evidence that the officers
had reason to believe Bernius was intoxicated, in my opinion, such a decision does not
constitute reckless disregard, which would require that the officers appreciated the risk of
Bernius again operating his boat recklessly and that they acted in disregard of that risk. City
of Jackson v. Lewis, 153 So. 3d 689, 693-694 (¶5) (Miss. 2014). The facts of the case sub
judice can be contrasted with those of Turner v. City of Ruleville, 735 So. 2d 226 (Miss.
1999). There, the plaintiff alleged that a police officer had failed to stop an obviously
intoxicated driver from driving. Id. at 227 (¶ 2). The trial court granted the city’s motion
under Mississippi Rule of Civil Procedure 12(b)(6) to dismiss, but the Supreme Court
reversed. We wrote, “[T]he facts pled do allege that he wrongfully and intentionally allowed
a visibly intoxicated Smith to continue driving. By this alleged act, the officer allegedly
showed a reckless or wanton or willful disregard for the safety of other drivers on the road,
including Turner.” Id. at 230 (¶ 19). In today’s case, sufficient evidence did not exist to
support a finding that Bernius was visibly intoxicated at the time of the initial stop. Where
in Turner, the trial court erred in dismissing the complaint because the plaintiff had alleged
that the officer knew of the risk of the driver’s intoxication and allowed him to drive anyway,
in the case sub judice there is no evidence that the officers acted in similar disregard of a
known risk. Lewis, 153 So. 3d at 693-694 (¶5).
¶33. Also persuasive is the reasoning of the Mississippi Court of Appeals in Thomas v.
Mississippi Department of Public Safety, 882 So. 2d 789 (Miss. Ct. App. 2004). In
21
Thomas, a highway patrolman stopped a driver for speeding and issued a speeding ticket.
Id. at 791 (¶ 3). After the stop, the driver drove eight miles and wrecked his van; the wreck
fatally injured the driver’s son. Id. at 791 (¶ 4). The decedent’s wrongful-death heirs filed
suit against the Department of Public Safety, contending that the failure of the patrolman to
check the driver for driving under the influence caused the accident. Id. at 791 (¶ 7).
Although three witnesses at the scene of the wreck testified that they smelled alcohol on the
driver’s breath, the highway patrolman who performed the stop denied smelling alcohol on
the driver at the time of the stop. Id. at 791 (¶¶ 3, 5). The trial court found that the
patrolman’s actions did not rise to the level of reckless disregard, and the Court of Appeals
affirmed. The Court of Appeals reasoned, in part, as follows:
There was evidence in phase one of the DUI detection process that suggests
that Mr. Thomas was sober. When Officer Johnson pursued Mr. Thomas, he
noted that a proper turn signal for a left turn was executed. Officer Johnson
also observed Mr. Thomas properly turn into Mrs. Montgomery’s residence
and safely stop. When Mr. Thomas drove on the road leading to Mrs.
Montgomery’s residence, his speed was forty to forty-five miles per hour, not
an excessive speed. Officer Johnson testified that evading an arrest is not
necessarily an indication of intoxication. He also testified that in his sixteen
years as a highway patrolman he has stopped numerous people for speeding
who are not under the influence and that he should look at other things before
deciding that a driver might be intoxicated.
Id. at 795 (¶ 19). The facts upon which the Court of Appeals relied are similar to the facts
of the case sub judice. In today’s case, the officers testified that boaters who are sober
regularly are stopped for reckless boating, and they both testified that they did not observe
any signs that Bernius was intoxicated during the brief stop.
22
¶34. For the foregoing reasons, the plaintiffs’ proof at trial did not suffice to show that
Officers Thrash and Delcambre acted with reckless disregard when they instructed Bernius
to follow them to a different part of the river. I would reverse the trial court’s judgment
against the Department of Wildlife, Fisheries, and Parks.
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