IN THE MISSISSIPPI SUPREME COURTNO. 2015-CA-00578

MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES & PARKS APPELLANT

v.

CANDACE WEBB, THOMAS HARPER APPELLEESAND KATHLEEN D. WEBB

APPELLANT’S BRIEF

On appeal from the Harrison County Circuit Court

consolidated cases No. A2402-2010-00097No. A2402-2010-00105No. A2402-2010-00147

STEPHEN G. PERESICHJOHANNA M. MCMULLAN

PAGE, MANNINO, PERESICH & McDERMOTT, P.L.L.C.

759 Vieux Marche Mall Post Office Drawer 289

Biloxi, Mississippi 39533Telephone: (228) 374-2100Facsimile: (228) 432-5539

stephen.peresich@pmp.org

E-Filed Document Jan 29 2016 14:53:16 2015-CA-00578 Pages: 46

IN THE MISSISSIPPI SUPREME COURTNO. 2015-CA-00578

MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES & PARKS APPELLANT

v.

CANDANCE WEBB, THOMAS HARPER APPELLEESAND KATHLEEN D. WEBB

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons have an interest

in the outcome of this case. These representations are made in order that the justices of the Supreme

Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal.

1. Candace Webb, Shane Webb, Thomas Harper, guardian of Kailer Harper, Plaintiffs

2. Kathleen Diane Webb, on behalf of the wrongful death beneficiaries of Christopher Webb

3. Joe Sam Owen, Esq., Plaintiffs’ counsel

4. Thomas Matthews, Esq., Plaintiffs’ counsel

5. Hon. Lisa Dodson, Harrison County Circuit Court Judge

6. Msgt. Barry Delcambre and Pvt. Michael Thrash, law enforcement officers with the MississippiDepartment of Wildlife, Fisheries and Parks

7. Maj. Lane Ball, Mississippi Department of Wildlife, Fisheries and Parks

8. Stephen G. Peresich, Esq. and Johanna M. McMullan, Esq., Counsel for the MississippiDepartment of Wildlife, Fisheries and Parks

/s/ Stephen G. Peresich STEPHEN G. PERESICH

i

TABLE OF CONTENTS

Page

Certificate of Interested Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT FOR ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

D. Circuit Court Findings and Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. THE TRIAL COURT ERRED IN ITS APPLICATION OF THE “RECKLESS

DISREGARD” STANDARD. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1. The reckless disregard exceeds gross negligence and is present only where the evidence demonstrates that the actor failed to exercise any care .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2. There is no evidence that the officers “appreciated” a risk that Bernius would flee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

3. The evidence did not establish that Delcambre and Thrash knew, understood or realized an “unreasonable risk.” . . . . . . . . . . . . . . . . . . . . . . . . 23

4. The evidence failed to demonstrate Delcambre and Thrash “consciously disregarded” an unreasonable risk. .. . . . . . . . . . . . . . . . . . . . 25

ii

5. The trial court’s finding Bend 2 was not a dangerous river bend was error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

6. The police pursuit cases assist the court in assessing the conduct of Delcambre and Thrash... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

C. BERNIUS’ UNLAWFUL CONDUCT IS AN INTERVENING SUPERSEDING

CAUSE OF THE BOATING ACCIDENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

iii

TABLE OF AUTHORITIES

CASES: Page(s)

Aguilar v. State, 2012 Tex. App. LEXIS 1677, 2012 WL 677505 (Tex. App. 2012). . . . . . . . . . . . . 22

Bufkin v. Louisville and N.R. Co., 137 So. 517 (1931). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

City of Ellisville v. Richardson, 913 So. 2d 973 (Miss. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 32, 33

City of Indianapolis v. Edmond, 531 U.S. 32, 41, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000). . . . . . . 2

City of Jackson v. Brister, 838 So. 2d 274 (Miss. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 32, 33, 34

City of Jackson v. Calcote, 910 So. 2d 1103 (Miss. Ct. App. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

City of Jackson v. Law, 65 So. 3d 821 (Miss. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

City of Jackson v. Powell, 917 So. 2d 59 (Miss. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17, 29, 30

City of Laurel v. Williams, 21 So. 3d 1170 (Miss. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Double Quick, Inc. v. Moore, 73 So. 3d 1162, 1166-67 (Miss. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Graham v. Connor, 490 U.S. 386 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17, 29

Horne v. Moorhead, 228 So. 2d 369 (Miss. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Maldonado v. Kelly, 768 So. 2d 906 (Miss. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 23

Maye v. Pearl River County, 758 So. 2d 391 (Miss. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Mississippi Department of Public Safety v. Durn, 861 So. 2d 990 (Miss. 2003). . . . . . . . . . . . . . . 16, 17, 25

Morton v. City of Shelby, 984 So. 2d 323 (Miss. Ct. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

O’Cain v. Harvey Freeman & Sons, Inc., 603 So. 2d 824, 830 (Miss. 1991). . . . . . . . . . . . . . . . . . . . . . 35

People v. McGaughran, 601 P.2d 207 (Cal. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Permenter v. Milner Chevrolet Co., 91 So. 2d 243 (1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Rivera v. State, 2001 Tex. App. LEXIS 4913 (Tex. App. San Antonio July 25, 2001).. . . . . . . . . . . . 22

Robinson v. Howard Bros. of Jackson, Inc., 372 So. 2d 1074, 1075 (Miss. 1979). . . . . . . . . . . . . . . . . . . . 36

iv

Rodriguez v. United States, 135 S. Ct. 1609, 1615, 191 L. Ed. 2d 492 (2015). . . . . . . . . . . . . . . . . . . . . . 2

Rolland v. State, 742 S.E.2d 482 (Ga. Ct. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Southern Heritage Insurance Co. v. C.E. Frazier Construction Co., 809 So. 2d 668, 672 (¶10) (Miss. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

State v. Berry, 2007 N.S. Super. LEXIS 1490 (March 14, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Sturdivant v. Crosby Lumber & Mfg Co., 65 So. 2d 291, 294 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Turner v. City of Ruleville, 735 So. 2d 226, 229 (Miss. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

STATUTES:

Mississippi Code Ann. § 11-46-9(1)(c) (Rev. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 23, 25

Mississippi Code Ann. § 59-21-83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21

Mississippi Code Ann. § 59-21-127. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Mississippi Code Ann. § 59-23-7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Mississippi Code Ann. § 59-23-7(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Mississippi Code Ann. § 59-23-7(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Mississippi Code Ann. § 97-9-72. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Mississippi Code Ann. § 97-35-7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

OTHER AUTHORITY:

Black’s Law Dictionary, 6th Edition, 1990.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

JEFFREY JACKSON & MARY MILLER, ENCYCLOPEDIA OF MISSISSIPPI LAW § 29:54 (West Group 2001)(citations omitted). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Molnar, JP, “Traffic Stop Survival, Part 1,” Law Officer, RSS , Webb. June 1, 2010 . . . . . . . . . . 34

Prosser, Law of Torts, 4th Ed. pp. 173, 174. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

https://www.policeone.com/patrol-issues/articles/7336680-5-basic-principles-for-conducting-a-safe-traffic-stop/. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

v

http://www.moveoveramerica.com/. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

National Law Enforcement Officers Memorial Fund,http://www.nleomf.org/facts/officer-fatalities-data/causes.html. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=331&issue_id=72004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

http://www.bluesheepdog.com/traffic-stop-safety-tips/. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 34

vi

STATEMENT FOR ORAL ARGUMENT

Mississippi law enforcement officers’ authority and discretion to determine the location for

conducting a traffic “stop” is at stake in this appeal. Oral argument is warranted and would aid the

Court in its consideration of whether law enforcement officers are to consider safety in the location of

a “stop” prior to interviewing an errant driver.

I. STATEMENT OF THE ISSUE.

Whether the trial court erred in finding that law enforcement officers of the Mississippi

Department of Wildlife Fisheries and Parks1 acted with “reckless disregard” for the safety of others by

ordering a suspect to a safer location to conduct a “stop.”

II. STATEMENT OF THE CASE.

A. Introduction.

For law enforcement officers making traffic stops location is one of the most basic factors in

conducting a safe stop.2 Numerous law enforcement officers have been killed after having been struck

by motorists while conducting a traffic stop.3 Officer safety and the public’s safety while conducting

traffic stops is of paramount importance and has become a significant national issue.4 Among other

things, law enforcement agencies emphasize:

the importance of selecting a safe location at which to make a stop. The exact locationis influenced by numerous conditions, such as terrain, traffic volume and congestion,visibility and sight distance, available protection, weather conditions, violation severity,

1Mississippi Department of Wildlife Fisheries and Parks is referred hereafter as “MDWFP.”

2 https://www.policeone.com/patrol-issues/articles/7336680-5-basic-principles-for-conducting-a-safe-traffic-stop/

3See http://www.moveoveramerica.com/ “More than 150 U.S. law enforcement officers have been killedsince 1999 after being struck by vehicles along America’s highways, according to the National Law EnforcementOfficers Memorial Fund.” (citing National Law Enforcement Officers Memorial Fund,http://www.nleomf.org/facts/officer-fatalities-data/causes.html)

4Id.

and violator behavior.5

Officers necessarily must determine the safest place to conduct a stop based on the facts and

circumstances they face.

After initially confronting a speeding boater, MDWFP law enforcement officers M.Sgt. Barry

Delcambre (“Delcambre”) and Pvt. Michael Thrash (“Thrash”) directed the boater to move to a safer

location. Delcambre and Thrash believed they were situated in a hazardous location which posed a

danger to the driver, themselves and other boaters. Instead of obeying Delcambre and Thrash’s

instructions, the boater intentionally disregarded their directions, turned and fled, ultimately causing a

tragic boating accident. Unbeknownst to the officers, the boater was intoxicated.

After a bench trial, the trial court found and held that Delcambre and Thrash acted in “reckless

disregard for the safety of others” by ordering the boater to move around a bend in the

Tchoutacabouffa River. In reaching this conclusion, the trial court improperly substituted its own

judgment for the officers who assessed the scene and determined that it was too dangerous for them

to interview the boater in the area where the boater stopped. In doing so, the trial court adopted a de

facto rule which is at odds with common sense, prior experience and training which officers must use

in the field, effectively preventing law enforcement officers from exercising any discretion for their

safety and the safety of others before conducting “a stop”. The trial court would require that the

officers disregard well-settled law and the MDWFP’s policy that law enforcement officers must establish

probable cause that a driver is under the influence of alcohol to conduct field sobriety testing.6

5http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=331&issue_id=72004

6At the time of the stop, the officers only had probable cause to stop the boater for a “traffic violation,”i.e., speeding and reckless boat operation. Defining the mission of a traffic stop, the United States SupremeCourt has held that the mission of the stop is to “address the traffic violation that warranted the stop” and to“attend to related safety concerns.” Rodriguez v. United States, 135 S. Ct. 1609, 1615, 191 L. Ed. 2d 492 (2015). Safety concerns of a stop include ensuring that vehicles on the road are operated safely and maintaining officersafety, as “[t]raffic stops are especially fraught with danger to police officers.” City of Indianapolis v. Edmond, 531U.S. 32, 41, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000) (internal citations omitted).

-2-

The relevant facts are not disputed. On August 22, 2009, MDWFP officers Delcambre and

Thrash witnessed a boater speeding on the Tchoutacabouffa River. They navigated their patrol boats

into the river to investigate and “stop” the boater.7 The boater came to an initial stop in the middle of

the river in an area that was heavily traveled and used by others.8 According to the officers, the location

where the boater stopped was a hazardous area for the driver, themselves and others,9 so they instructed

the boater to follow them down river into the nearest straightaway which was a safer area to stop and

question the boater.10 The driver agreed and followed Thrash toward the straightaway, but unexpectedly

and unlawfully turned and fled. Recklessly speeding up river, the boater collided with a vessel operated

by Christopher Webb, killing Webb and injuring passenger Shane Webb.11 The boater, who the officers

eventually learned was Donald C. Bernius, (“Bernius”) pled guilty to boating under the influence causing

death and injury, was sentenced and is currently serving a twenty-year prison term.12

Blaming the officers for the accident, the Webbs sued the MDWFP under the Mississippi Torts

Claim Act, asserting that the failure to detain Bernius and the officers’ decision to move to a “safer

location” was made in reckless disregard for the safety of the public.13

7See Trial Court Findings and Conclusions R. 1084; R.E 033.

8R. 1084-85; R.E. 033-034.

9R. 1090-91; R.E. 039-040;

10R. 1086; R.E. 035.

11Four year-old Kailer Harper was also a passenger in the Webb boat. R. 1087; R.E. 036. AlthoughKailer Harper’s guardian initially filed suit on his behalf, no damages were sought for any alleged injuries toKailer. R. 1129; R.E. 061. As such, discussions in this appeal are directed toward the claims on behalf ofChristopher Webb and Shane Webb. The plaintiffs are collectively referred to herein as “the Webbs.”

12Trial Exhibit P-1 at 263-66 (Bernius was charged with two counts of felony boating under the influence(BUI) causing death or disfigurement under Mississippi Code Ann. § 59-23-7(1), (4) to which he pled guilty). R. 1088; R.E. 037; Trial Exhibit P-1 at 267-68 (sentencing).

13R. 42, 1291.

-3-

B. Procedural Background

On June 10, 2010, Candace Webb, the legal guardian for minor Shane Webb, filed suit against

the MDWFP under the Mississippi Torts Claim Act, claiming that the MDWFP officers acted with

reckless disregard for the safety of others in failing to detain Bernius.14 On August 19, 2010, Kathleen

Webb, individually and on behalf of the wrongful death beneficiaries of Christopher Webb, also sued

the MDWFP under the Mississippi Torts Claim Act.15 On November 5, 2010, the cases were

consolidated.16

On October 27, 2010, the MDWFP moved to dismiss, alternatively, for summary judgment,

asserting that exemptions under the Mississippi Torts Claim Act barred the Webbs’ claims.17 Following

immunity-related discovery, the MDWFP filed a supplemental motion to dismiss and/or alternatively

for summary judgment.18 The trial court denied summary judgment19 and this Court, without comment,

denied the MDWFP’s petition for interlocutory review.20

Following a two-day bench trial on February 18-19, 2014, the trial court entered its findings and

conclusions, deciding that officers Delcambre and Thrash acted in reckless disregard for the safety of

others and finding the MDWFP liable to the Webbs.21

14R. 42 (Complaint, Cause No. A242-10-0097).

15R. 1291 (Complaint, Cause No. A2402-10-147).

16R. 1355 (Order of Consolidation).

17R. 118 (Motion to Dismiss, Alternatively Motion for Summary Judgment).

18R. 450 (Supplemental Motion to Dismiss, Alternatively for Summary Judgment).

19R. 996 (Order).

20R. 999 (Order).

21R.E. 033; R. 1084.

-4-

On November 5, 2014, the trial court conducted a hearing on damages.22 On November 21,

2014, the trial court awarded damages to the Guardianship of Shane Webb in the amount of

$1,400,000.00 and damages to Kathleen Webb, individually and on behalf of the wrongful death

beneficiaries, in the amount of $100,000.00.23 Applying the Mississippi Torts Claim Act’s statutory cap

on damages, the trial court entered a final judgment to the Guardianship of Shane Webb in the amount

of $466,666.67 and to Kathleen Webb, individually and on behalf of the wrongful death beneficiaries

of Christopher Webb, the amount of $33,333.33.24

C. Facts

On August 22, 2009, MDWFP officers Delcambre and Thrash, in separate marine patrol boats,

were patrolling the Tchoutacabouffa River.25 The river traffic at that time was heavy.26 While parked

at a pier in Bend 4, the officers observed a boat speeding and “chopping” and “skipping” in the water.27

Delcambre and Thrash decided to stop the driver for recklessly operating his vessel.28 Thrash entered

the river, activating his lights and sirens.29 Delcambre followed, activating his lights and signals and

22R.E. 059; R. 1127; Tr. 411.

23R.E. 061; R. 1129.

24Id.

25R.E. 85-86; Tr. 159-60; Tr. 227.

26R.E. 87; Tr. 161; Tr. 288 (Delcambre estimated that there were 100-200 boats in and out of the riverthat day).

27R.E. 104; Tr. 178; Tr. 230, 235. See R.E. 149, 150, 151, 152, 153, 154 and 155; Trial Exhibit P-1 at 132,187, 253, 254, 255 for depictions of the river and various river bends.

The officers were parked at “Bend 4.” Bernius had traveled through “Bend 5”and toward “Bend 4.” The officers witnessed Bernius recklessly operating his vessel as he maneuvered “Bend 4.” After witnessingBernius recklessly operate his vessel through “Bend 4”, Delcambre and Thrash exited the pier, activated theirlights and sirens and pursued Bernius.

28R.E. 105; Tr. 179.

29R.E. 104; Tr. 178.

-5-

following Thrash and Bernius down river.30

As the officers pursued Bernius into “Bend 3,”31 Thrash saw Bernius turn and acknowledge the

officers whose lights and sirens were signaling to Bernius to pull-over.32 Bernius then decelerated his

vessel and came to an idle in “Bend 2” of the river.33 Bernius maintained control of his vessel as he

decelerated and came to a stop.34 Thrash reached Bernius first and came to an idle on Bernius’ left

30Tr. 236.

31For a depiction of the bends, see R.E. 149, 150, 151, 152, 153, 154 and 155; Trial Exhibit P-1 at 132,187, 253, 254, and 255. See also R.E. 83, 104; Tr. 157, 178.

32Tr. 131. Thrashed was cross-examined about whether Bernius “ignored” the officers’ lights and sirens. Tr. 130-33. The Webbs offered Trial Exhibit P-1 at 16, Report to District Attorney Narrative, an investigativereport prepared by MDWFP M.Sgt. Keith Bond after the accident for the purpose of prosecuting Bernius. R.E.077; Tr. 322. Officer Bond’s report included a statement that Bernius “ignored” Thrash and Delcambre’ssignals to stop. See R.E. 07; Trial Exhibit P-1 at 16. The investigative report was the result of Bond’sinvestigation of and witness interviews concerning the accident. Delcambre and Thrash testified that they didnot prepare the Report to the District Attorney Narrative nor had they read the Report to the District AttorneyNarrative prior to trial. Tr. 131, 133; Tr. 237. Delcambre testified: “I do not know whose report this is . . . Idid not write this report.” Tr. 237. Both officers testified that it was not their perception at the time of thepursuit that Bernius was attempting to “ignore” their signals. R.E. 106; Tr. 131-33, 180. Bond testified that thestatement Bernius “ignored” the officer’s signals originated from the statements made by Bernius’ passenger,Dexter Bouie. Bouie’s written statement includes the comment that he “twice had to tell Bernius that officerswere behind him before he decelerated.” Tr. 353. It was never the perception of Thrash and Delcambre thatBernius was “ignoring” their signals to pull over. R.E. 106; Tr. 131-33, 180.

Thrash testified that “from my observation he did not ignore our signals . . . I didn’t do this report, butI can say that when I fell in behind Bernius and I came up on him he turned around and when he saw me hedecelerated his boat and began to stop. So in my opinion he did not ignore my blue lights and sirens.” R.E. 106;Tr. 131. Delcambre testified that there was nothing about their pursuit of Bernius that indicated to him Berniushad ignored their lights and sirens. R.E. 129; Tr. 290.

33Tr. 104 (Thrash testified: “When [Bernius] acknowledged that I was behind him, he decelerated . . . ”);R.E. 105; Tr. 179(Thrash stated: “we eventually got slowed down . . . [Bernius] turned around and noticed thatI was behind him and began decelerating his boat. We got stopped . . . right here in this curve [Bend 2] and thisis where I pulled up beside him and then Officer Delcambre had come up and said, . . . we kind of goteverything under control, and then Officer Delcambre said we need to get out of this . . . curve in the bend andinto the straightaway . . . I ordered Bernius that we needed to get out of the curve and into the straightaway. Hecomplied [sic] okay. . .”).

34R.E. 107; Tr. 181 (Thrash testified: “[Bernius] maintained control of his boat. . .He maintained a safedistance from the bank. He wasn’t all over the place. He, . . . maintained control of his boat and brought it downproperly.”).

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side.35 Delcambre pulled to Thrash’s port side (left) and Thrash was between Delcambre and Bernius.36

At the time of their initial contact with Bernius, Delcambre and Thrash recognized they were

in a “dangerous area”of the river, “Bend 2.”37 The officers testified that Bend 2 has blind spots where

boaters heading from either direction cannot see boaters approaching from the opposite direction.38

Trial Exhibits P-1 at 132, 187, 253 , 254, and 255 depict Bend 2 where Bernius idled his vessel and the

officers approached him.39

The officers testified that the result of their approach with Bernius was that the three vessels

were situated so as to occupy most of the width of the river, which, according to the officers, created

an eminent hazard for other boaters.40 Delcambre and Thrash’s opinion the area was hazardous was

based on a prior incident in which a jet ski operator nearly collided with the officers in the same area.41

In addition, according to Thrash, the river bank in Bend 2 was elevated at such a height such boaters

35R.E. 106-07; Tr. 180-181.

36R.E. 101; R.E. 12 at 130; Tr. 175; 291.

37R.E. 91, 93; Tr. 165, 167 (Thrash testified that in his opinion their three boat in Bend 2 created as“dangerous condition. . .because we had at least-two thirds of the river blocked and in a dangerous bend and . . . blind spot. So if somebody had come around from that straightway” and around the bend . . . one of the treeboats more than likely would have been hit.”). R.E. 130; Tr. 291(Delcambre testified: “I approached behindBernius’ boat, the stern of his boat . . . and slowed down and realized that we was in the blind dangerous bend.. . . ). Officer Bond who investigated the accident testified that from the statements Thrash and Delcambre gave,“the situation wasn’t safe enough” for them to question Bernius or his passenger, Dexter Bouie. Tr. 356-357.

38R.E. 90; Tr. 164; Tr. 260.

39R.E. 104, 107; Tr. 178, 181; Tr. 262.

40R.E. 90-91; Tr. 167-68; Tr. 261-62.

41R.E. 89-90; Tr. 162-63 (Thrash testified: “the prior year I was with Officer Delcambre and we had ajet ski come around that curve [Bend 2] on the wrong side of the river and just about hit us in OfficerDelcambre’s boat, . . . .He come real close. If it hadn’t have been a jet ski he probably would have it us if it hadbeen a regular boat”). R.E. 98; Tr. 172 (Thrash testified further: “I realized we were in that dangerous curve andfrom our prior experience in that dangerous curve and almost getting hit by the jet ski the prior year that weneeded to get out of that curve and into that straightaway.”); R.E. 130;Tr. 291(“[I]n that same location I was thereand a jet ski came around the bend, . . . as I was proceeding and we just about collided.”). While the trial courttook issue with the officers’ assertion that Bend 2 was dangerous, (R.E. 050; R. 1101) there was no evidence thatthe near-miss with the jet-ski operator was untrue.

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could not see oncoming traffic.42 At the time of the accident, no warning signs were posted on Bend

2, although at some point after the accident, warning signs were affixed for public notice at Bend 2.43

Delcambre instructed Thrash to have Bernius move to the nearby straightaway down river to

provide a safer location for them to question Bernius.44 Thrash then ordered Bernius to follow them

out of Bend 2 into the straightaway.45 Bernius responded that he would comply with the instructions,

stating “OKAY!”46 According to Thrash, Bernius appeared to understand what he (Thrash) had asked

him (Bernius) to do.47 Delcambre saw Bernius shake his head affirmatively in agreement.48 Dexter

Bouie, who was a passenger in Bernius’ boat, wrote in his statement given after the accident that Bernius

agreed to follow the officers into the straightaway.49

Delcambre proceeded ahead of Thrash and Bernius with the intention of blocking oncoming

42R.E. 89-90; Tr. 163-64 (Thrash testified: “The bank is real high and you can’t see any oncoming trafficand they can’t see you. So it’s a real blind spot. There’s no way – you can’t see anybody coming and they can’tsee you sitting there [in Bend 2]. . . . There is a blind spot from either way. It would be in that particular bend[Bend 2] either way it would be hard to see anybody coming from either direction depending on where you’reat in that bend. Yes, sir.).

43Id.

44R.E. 101; Tr. 175 (Thrash reading from his narrative statement that he prepared two days after theaccident and was made part of the investigative report that M.Sgt. Bond prepared testified: “Officer Delcambreon the port side of Officer Thrash’s boat said we need to get them out of the curve. Officer Thrash then statedto Mr. Bernius follow us to the straightaway out of this curve.

45R.E. 113-14; Tr. 187-88 (Thrash testified that he ordered Bernius to “follow us out of this curve intothe straightaway.” Thrash testified he was “stern” and that he believed that Bernius knew what he was beingasked to do.)

46 R.E. 101; R.E. 12 at 133; Tr. 175; Tr. 294(Delcambre testified that while he did not hear exactly whatThrash said to Bernius, he did see Bernius nod his head in agreement).

47R.E. 113; Tr. 187.

48R.E. 133; Tr. 294 (Delcambre testified that he saw Thrash talking to Bernius and he saw Bernius “nod,you know, nodded like okay. . .meaning like yes.”).

49R.E. 145 (Bouie Statement); Trial Exhibit P-1 at 27.

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boat traffic and secure the straightaway for the officers to interview Bernius.50 Thrash then proceeded

to the straightaway second so that Bernius could follow him to the straightaway.51 Bernius followed

Thrash a short distance then abruptly and unlawfully turned his vessel 180 degrees and fled in the

opposite direction.52 After seeing Bernius fleeing, Thrash signaled Delcambre and the officers pursued

Bernius.53

As Bernius fled, he was speeding and operating his boat recklessly on the wrong side of the

river.54 At the same time, a boat operated by John Joachim was traveling down river and had to use

evasive maneuvers to avoid a collision with Bernius.55

After passing the Joachim boat, Bernius collided with a boat operated by Christopher Webb.56

Neither officer witnessed the collision.57 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.58 Approximately two hours after the accident,

a blood sample from Bernius was drawn which indicated a .25 blood alcohol concentration level.59

At trial, the officers testified as to their knowledge and understanding of Mississippi’s boating

50R.E. 105; R.E. 12 at 134; Tr. 179, 295.

51R.E. 105; Tr. 179.

52Id.

53Id.

54See R.E. 149; Trial Exhibit P-1 at 31 (Joachim statement)).

55Id.

56Id.

57Tr.

58R.E. 79; Trial Exhibit P-1 at 18.

59Id.

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laws. Mississippi Code § 59-21-83 governs the operation of vessels on the state’s waterways and

prohibits boaters from operating their boats in a reckless manner.60 Mississippi Code § 59-23-7 governs

Mississippi’s boating under the influence (BUI) laws and prohibits boaters from operating a vessel while

intoxicated.61 The Legislature has delegated to the Mississippi Department of Wildlife, Fisheries and

Parks, the authority to enforce Mississippi boating laws.62 According to the officers, when they saw

Bernius skipping around Bend 4 in the river, he was violating Mississippi law prohibiting a boater from

60Mississippi Code § 59-21-83 provides:

No vessel shall be operated within this state in a reckless or negligent manner or at a rate ofspeed greater than is reasonable and prudent under the then existing circumstances or when theoperator is so physically or mentally incapacitated as to be incapable of safely operating suchvessel, or while the operator is under the influence of intoxicating liquor or narcotics . . .

61Mississippi Code § 59-23-7 provides, in part, that

(1) It is unlawful for any person to operate a watercraft on the public waters of this state who:

(a) Is under the influence of intoxicating liquor;(b) Is under the influence of any other substance which has impaired such person’sability to operate a watercraft;

62 Mississippi Code § 59-21-127 provides:

It shall be the duty of all enforcement officers to enforce, and to obey and carry out allinstructions, directions, rules and regulations of the commission with respect to theenforcement of the provisions of this chapter. . ..

Such enforcement officers shall have the power, and it shall be their duty, to execute allwarrants for violations of the rules and regulations of the commission and the provisions of thischapter; to serve subpoenas issued for the examination and investigation or trial of suchviolations; to board and examine, without warrant, any vessel required to be numbered underthis chapter, to ascertain whether any of the provisions of this chapter or any rule or regulationof the commission has been or is being violated, and to use such force as may be necessary forthe purpose of such examination and inspection; to arrest, without warrant, any personcommitting a violation of this chapter or the rules and regulations of the commission in thepresence of the enforcement officers, and to take such person before a magistrate or courthaving jurisdiction for trial or hearing; and to exercise such other powers of peace officers inthe enforcement of this chapter and the rules and regulations of the commission or of ajudgment for the violation thereof, as are not herein specifically provided. No enforcementofficers shall compromise or settle out of court any violation of the provisions of this chapteror any rule or regulation promulgated by the commission.

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operating his vessel in a reckless manner and at an excessive speed.63

At trial, Delcambre and Thrash also testified to their knowledge and understanding of the

MDWFP’s Standard Operation Procedures (SOPs) for handling boating under the influence situations

(SOP 07/03). They testified that in their initial contact with Bernius, his demeanor and handling of his

vessel, among other things, did not indicate that he was impaired.64 Thrash specifically testified that he

did not have reasonable suspicion to believe that Bernius was intoxicated.65

Thrash and Delcambre testified that their first priority during their initial contact with Bernius

was to ensure the safety of other boaters and citizens on the river.66 Delcambre testified:

On that particular day due to the river traffic and the fluctuations of the traffic comingnorth and south up the river where we encountered Bernius there in bend two, due tothe nature of where we [were] . . .I made the judgment to move around the bend for thesafety of the people and everybody involved on the river.67

There is no dispute that once in a safe location, the officers intended to investigate and if they gained

reasonable suspicion that Bernius was impaired by drugs or alcohol, they would have conducted field

sobriety testing.68 The MDWFP’s procedures only allow the officers to conduct field sobriety testing

63R.E. 100; Tr. 174.

64Thrash testified that from his observations, Bernius did not appear intoxicated. He testified thatBernius maintained control of his boat after recognizing that he was being pulled over and while they were idling,Bernius maintained a safe distance from the river bank, and Bernius maintained good posture as he was notslouched over. According to Thrash, Bernius’ body language at the time did not indicate insobriety. Tr. 181-182. Thrash testified further that Bernius was not belligerent and his demeanor did not demonstrate that he wasinebriated. R.E. at Tr. 187-89.

65R.E. 115; Tr. 189.

66Tr. 256 (“the SOP that the reckless operation gives probable cause – to go into BUI. He was operatingreckless at that time, but the nature of the stop we had to get him out of that bend for the safety of everybodyin the river to come . . .”); R.E. 12 at 142; Tr. 303 (Delcambre) (“I made [the decision to go around the bend]to protect the people, myself, Thrash Bernius and everybody coming north and south on the river.”)

67R.E. 144; Tr. 305.

68The officers admitted that they did not conduct a BUI screening interview and as such, did not getclose enough to Bernius to smell his breath, engage in conversation with Bernius, or ascertain whether he hadbeen drinking. R.E. 109; Tr. 183; R.E. 145; Tr. 306. Thrash stated he did not see Bernius or Bernius’ passengerDexter Bouie with a beer in their hands and while his range of sight did not include the interior of Bernius’ boat,

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after they have reasonable suspicion that a boater is under the influence of drugs or alcohol.69 Thrash

testified:

[w]e would have conducted a reckless operation stop to find out why he was operatingrecklessly and check his boating and safety equipment and basically conducted that stopand gone from there.

Tr. 193.

In connection with the boating accident, the Mississippi Department of Marine Resources was

asked to investigate Delcambre and Thrash’s conduct. The Mississippi Department of Marine

Resources found after speaking with “Officer Barry Delcambre [after the accident]. . . he described the

events that led up to the accident which he later put in his narrative to his agency” and after lisetning

to the interview of Bernius’ passenger, that “the actions of the two officers Delcambre, Thrash with the

Mississippi Department of Wildlife they [sic] acted completely within the scop of their duties. . . .It is

our conclusion that the only people responsible for this boating accident were the people involved in

the actual accident.”70 Thrash acted within the scope of their duties with the MDWFP and were not

responsible for the boating accident.71

D. Circuit Court Findings and Conclusions

There is no dispute that the officers sought to stop a boater (Bernius) who they witnessed

unlawfully operating his boat. There is no debate that after making initial contact with Bernius, the

officers believed they were in a hazardous area and they immediately asked Bernius to move to the

nearby straightaway, which they deemed a safe place to interview Bernius about operating his boat in

a reckless manner. This is the sum total of the trial court’s Findings and Conclusions pages one (1)

he did not did he see any beer cans in Bernius’ vessel on the areas of the boat he could see. Tr. 183.

69R.E. 169; Trial Exhibit P-1 at 141.

70See Mississippi Department of Marine Resources Investigative Report, Trial Exhibit 2.

71Id.

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through seven (7) and they are not disputed.72 The dispute lies in the trial court’s findings that

Delcambre and Thrash’s instructions to Bernius to move toward the straightaway was a violation of

Mississippi boating laws and the MDWFP’s BUI policy.73 The trial court ruled that the officers’

conduct in directing Bernius out of the bend was made in reckless disregard for the safety of the

public.74

Relying on City of Jackson v. Brister, 838 So. 2d 274 (Miss. 2003),75 the trial court concluded that

this case was a failure-to-detain case and not pursuit or failure-to-arrest case.76 The trial court ruled that

Delcambre and Thrash violated the Department’s SOP 4.1 that required the officers to issue boating-

related citations “at the scene”77 and that there was nothing that permitted the officers to direct “the

offending operator to continue to operate his vessel prior to issuing a citation.”78

The trial court relied on the Department’s 07/03 procedures for handling a BUI situation. SOP

07/03 defines “probable cause” and states that an officers’ “effort to establish probable cause for BUI

72R.E. 033; R. 1084.

73R.E. 050; R. 1101

74R.E. 057-058; R. 1108-09.

75In Brister, two City of Jackson officers, responding to a call from a bank of a check forgery, arrived atbank and rather than blocking the vehicle in or get the vehicle’s tag number, the forger was able to get into hervehicle and flee, and the officers pursued her. Brister, 838 So. 2d at 276-77. The forger’s vehicle then hit anothervehicle, killing the other driver. The trial court found the City fifty percent (50%) liable and the forger fiftypercent (50%) liable. The Supreme Court affirmed the trial court’s finding reckless disregard beginning with thefailure to block in the vehicle, violating the City’s General Order concerning pursuits, allowing the rookie officerto take the lead in the pursuit, pursuing through a heavily populated area, speeding, and so forth. The Courtstated that the fact that the officers did not intend that there be an accident “is of no concern,” and opined thatthe officers exhibited “conscious indifference” because they knew they had not complied with the City’s pursuitpolicy. The Court held that without adhering to the policy, the officers should have reasonably expected thepossibility of adverse consequences including a fatal accident. Id. at 281.

76R.E. 047; R. 1098.

77R.E. 049; R. 1100.

78Id.

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will be after an Officer’s stopping of a water craft. . . .”79 According to the trial court, the term “will”

is mandatory rather than permissive such that the officers were not permitted to move or have Bernius

move to another location for their “stop.”80

Although recognizing that law enforcement officers make decisions every day “concerning their

safety and others, [and] that they are not to be faulted and do not become liable to those who may be

injured simply because sometimes those decisions were not the best decisions in hindsight,”81 the trial

court nevertheless found the officers’ decision to direct Bernius to move his boat was made with a

deliberate disregard for the risk such that the officers “were consciously indifferent to the consequences

of their actions and inactions.”82 According to the trial court, this was a failure to exercise to any care

resulting in “wantonness” and not a failure to exercise due care which is negligence.83

III. SUMMARY OF THE ARGUMENT

The trial court improperly substituted its judgment and misapplied the reckless disregard

standard. The trial court’s findings and conclusions demonstrate an application of negligence, not the

higher reckless disregard standard that is required to find the MDWFP liable under the Mississippi Torts

Claim Act.

To find the MDWFP liable, the MDWFD’s officers must have fully “appreciated” a risk that

Bernius would disregard their lawful command, unlawfully flee from them and speed and operate his

vessel up river and collide with another vessel. To find the MDWFP liable, the officers must have

understood or realized that the risk that Bernius would disregard their lawful command, unlawfully flee

79R.E. 049; R. 1100.

80Id.

81R.E. 054; R. 1105.

82R.E. 057; R. 1108.

83R.E. 057-058; R. 1108-09.

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from them and speed and operate his vessel up river and collide with another vessel was “unreasonable.”

Moreover, to find MDWFP liable, officers must have “consciously disregarded” an unreasonable risk.

In the absence of any of these elements, the MDWFP is not liable to the Webbs. The trial court,

however, errantly found that the evidence satisfied these elements because the trial court erred in failing

to judge the actions of the MDWFP officers based on their assessment and perceptions at the time they

encountered Bernius. The trial court failed to rely on the officers’ reasonably held belief that if they

remained in Bend 2 to conduct their stop, the lives of others were in danger.

Although stating the standard, the trial court’s findings and conclusions evince that the court

did not apply “an o b je c tiv e s tan d ard w ith all th e fac to rs th at [th e o f f ic e rs ] w e re c o n fro n te d w ith ,

. . . takin g in to ac c o u n t th e fac t th at th e o f f ic e rs m u s t m ake s p lit-s e c o n d d e c is io n s .”84 The trial

court’s ruling is contrary to adhering to basic boating safety practices and sets a dangerous precedent

for officers conducting traffic stops who are also required by law to implement departmental policies

to investigate traffic stops and driving under the influence laws.

Finally, the trial court erred in failing to find that Bernius’ criminal acts of disobeying a lawful

command by the MDWFP law enforcement officers, unlawfully fleeing from the officers and operating

his vessel in a reckless fashion in violation of Mississippi’s boating laws constituted an intervening

superseding cause such that the MDWFP is not liable to the Webbs.

IV. ARGUMENT

A. STANDARD OF REVIEW

This Court reviews errors of law, including the proper application of the Mississippi Tort Claims

Act, d e n o v o . A circuit court’s findings are reviewed for manifest error. This Court will reverse a

84City of Jackson v. Powell, 917 So. 2d 59, 72 (Miss. 2005) (citing Graham v. Connor, 490 U.S. 386, 396-397(1989) (internal citations omitted)(emphasis added).

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circuit court’s findings which are unsupported by substantial, credible, and reasonable evidence.85

B. THE TRIAL COURT ERRED IN ITS APPLICATION OF THE “RECKLESS DISREGARD”

STANDARD.

1. Reckless disregard exceeds gross negligence and is present only wherethe evidence demonstrates that the actor failed to exercise any care.

The Mississippi Tort Claims Act shields the government from liability for

any act or omission of an employee of a governmental entity engaged in theperformance or execution of duties or activities relating to police or fire protectionunless the employee acted in reckless disregard of the safety and well-being of anyperson not engaged in criminal activity at the time of injury. . . .

Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012). The “reckless disregard” standard “exceeds gross

negligence and embraces willful and wanton conduct.”86 Such conduct is greater than negligence, but

“less than an intentional act.”87

Reckless, willful and wanton conduct is conduct or actions that are “‘so far from a proper state

of mind that it is treated in many respects as if harm was intended.’”88 Usually, these terms contemplate

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.”89 Under Mississippi law, “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.’”90

85City of Jackson v. Law, 65 So. 3d 821, 826 (Miss. 2011).

86Mississippi Dep’t of Pub. Safety v. Durn, 861 So. 2d 990, 994 (Miss. 2003).

87Law, 65 So. 3d at 826.

88Maldonado v. Kelly, 768 So. 2d 906, 910 (Miss. 2000) (emphasis removed) (quoting Maye v. Pearl RiverCounty, 758 So. 2d 391, 394 (Miss. 1999)).

89Maye, 758 So. 2d at 394.

90Durn, 861 So. 2d at 995 (quoting Maldonado, 768 So. 2d at 910-11).

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To recover under the Mississippi Torts Claim Act, Mississippi Code§ 11-46-9(1)(c), it must be

proven that law enforcement officers acted with reckless disregard of the safety and well-being of others

that their conduct is almost grossly negligent, wanton and willful. Otherwise, the government has

immunity.91 Unlike ordinary negligence, or the failure to exercise due care, wantonness is failure to

exercise an y care.92 “Reckless disregard” under Mississippi Code§ 11-46-9(1)(c) requires an appreciation

of an unreasonable risk and a conscious indifference to the consequences that amounts “almost to a

willingness that harm should follow.”93 Willful and wanton conduct indicates degrees of fault

somewhere between intent to do wrong and the mere reasonable risk of harm involved in ordinary

negligence.94

Trial courts consider the totality of the circumstances in determining whether an actor’s conduct

constitutes reckless disregard.95 In considering the “totality of the circumstances,” a court, however,

should not abandon the essential requirements of the reckless disregard standard. In assessing a law

enforcement officer’s actions to determine “reckless disregard,” trial courts are required to judge an

officer’s actions using “an o b je c tiv e s tan d ard w ith all th e fac to rs th at th e y w e re c o n fro n te d w ith ,

. . . takin g in to ac c o u n t th e fac t th at th e o f f ic e rs m u s t m ake s p lit-s e c o n d d e c is io n s .”96

In finding reckless disregard, the trial court focused on whether the officers intended the act that

caused the harm.97 The trial court ignored the requirement that the “acts” must be ones taken with

91Turner v. City of Ruleville, 735 So. 2d 226, 229 (Miss. 1999)

92Maldonado, 768 So. 2d at 910.

93Durn, 861 So. 2d 990, 995 (Miss. 2003).

94City of Jackson v. Calcote, 910 So. 2d 1103, 1110 (Miss. Ct. App. 2005).

95City of Ellisville v. Richardson, 913 So. 2d 973, 978-979 (Miss. 2005).

96City of Jackson v. Powell, 917 So. 2d 59, 72 (Miss. 2005) (citing Graham v. Connor, 490 U.S. 386, 396-397(1989) (internal citations omitted)(emphasis added).

97R.E. 040-041; R. 1091-92.

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knowledge of an unreasonable risk and a high probability of harm, demonstrating that the officers faile d

to e xe rc is e an y c are such that the officer almost in te n d e d that harm should follow.98 The officers’

decision to move into the straightway did not exhibit a failure to exercise any care. The evidence fails

to support the conclusion that the officers acted wantonly, in an utter disregard of an unreasonable risk

with a high probability of harm to others.

2. There is no evidence that the officers “ap p re c iate d ” a risk that Berniuswould flee.

To find “reckless disregard” in the context of the Mississippi Code§ 11-46-9(1)(c) there must

be evidence the officers “appreciated” that their actions posed an unreasonable risk and a high

probability of harm to others.99 “Appreciate” means:

Appreciate. . . .When used with reference to the nature and effect of an act,“appreciate” may be synonymous with “know” or “understand” or “realize.”

Black’s Law Dictionary, 6th Edition, 1990. To conclude that the officers’ conduct amounted to “reckless

disregard,” the evidence must have demonstrated that they “kn e w , u n d e rs to o d o r re alize d ” there was

an “unreasonable risk” to the safety to others in their decision to move out of Bend 2 with the “high

probability of harm” that their decision might cause. To recover, the Webbs had to show that

Delcambre and Thrash kn e w , u n d e rs to o d o r re alize d there was an unreasonable risk to the public.

Without explanation, the trial court found that there was “appreciable risk” that Bernius would

flee:

Thrash and Delcambre admittedly appreciated the unreasonable risk to others on theRiver in allowing a person to recklessly operate a boat and/or to do so at anunreasonable speed . . .” and that “[i]t [was] . . . surprising only to Thrash andDelcambre that Bernius did not follow them, . . .”

R.E. 054. These findings lack sufficient evidentiary support. First, the officers did not allow a person

98Maldonado, 768 So. 2d at 910.

99City of Laurel v. Williams, 21 So. 3d 1170 (Miss. 2009).

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to recklessly operate a boat or operate a boat at an unreasonable speed. The evidence overwhelmingly

shows that they were in the process of stopping a boater, Bernius, from doing those very things.

Delcambre and Thrash “pulled Bernius over,” so-to-speak. Although brief, they stopped him and did

not allow him to continue to speed or recklessly operate his boat or speed. The officers’ command to

Bernius to move into the straightway was not made in a carte blanche fashion. The officers instructed

Bernius what to do and they expected him to comply, not only as he indicated he would, but because

he was lawfully required to follow their order.100 The evidence at trial supports this.

Contrary to unsupported conclusions by the trial court, there was no evidence that Bernius’

unlawful flight was a reasonable probability, likely or otherwise foreseeable to the officers. Instead, the

evidence was that Delcambre and Thrash held the reasonable expectation that Bernius would move out

of Bend 2 and into the safety of the nearby straightaway. Just as automobile drivers are expected to do

as instructed by police officers, Bernius was required to heed the officers’ instructions to him in the

operation of his boat.101 Bernius knew this as not only did he stop his boat in response to the law

enforcement officers’ sirens and signals, but followed Thrash toward the straightway for a short distance

after being told to do so. Bernius knew, as all licensed drivers and boaters do, that heeding the

commands of a law enforcement office is required by law.

The trial court made no findings concerning evidence that officers kn e w Bernius was a flight

risk. The evidence showed the opposite: the officers did not know Bernius nor was Bernius under

arrest.102 Further, there is no record evidence that Delcambre and Thrash kn e w , u n d e rs to o d an d

100See Mississippi Code § 97-35-7; see also infra fn. 142.

101It is a misdemeanor for drivers to refuse to heed the commands of law enforcement officers. Miss.Code Ann. § 97-9-72. Drivers are required to obey they visible or audible signals of law enforcement officers. See Miss. Code Ann. § 97-9-72 (driver must bring motor vehicle to a stop when a visible or audible signal by lawenforcement officer, by hand, voice, emergency light or siren is given).

102R. 120; Tr. 194 ; R.E. 035 (fn 4); R. 1086 (fn 4).

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re alize d Bernius was intoxicated.

There was no record evidence that Bernius could not operate his vessel in a safe manner.

Thrash testified Bernius was seated on his boat, had good posture and did not slur when he spoke.103

Bernius’ demeanor, his control of his boat, his operation of his boat on the correct side of the river

gave Thrash no reasonable suspicion that Bernius was intoxicated.104 Bernius exhibited no signs of

insobriety at the time of the stop. Simply stated, the officers did not kno w , u n d e rs tan d o r re alize any

risk when directing Bernius to move to a safer location.

The trial court’s findings, in effect, would require that law enforcement officers always assume

that reckless boaters are intoxicated and to immediately investigate regardless of whether the scene is

safe. Law enforcement officers, however, are not permitted to “assume” boaters they stop are impaired

by drugs or alcohol. Under the Department’s SOP 07/03, an officer must have a “reasonable belief”

that the operator of a watercraft is under the influence. . . .”105 Here, the officers did not have a

“reasonable belief” that Bernius was impaired. Although Bernius’ reckless operation of his vessel gave

them probable cause to pull Bernius over for a traffic stop, there was at that point no reasonable

suspicion of “BUI.”106 This is consistent with Mississippi law and the Fourth Amendment.

Before an individual can be charged with driving under the influence, the State musthave had sufficient probable cause to stop the individual in the first instance, and if achemical test is involved, must have had sufficient reasonable suspicion and probablecause to request a chemical test. Failure to meet these prerequisites is a violation of thedefendant’s Fourth Amendment rights against unreasonable search and seizure. . . .

103Tr. 104 (Thrash). The trial court noted that the officers testified that “Bernius did stop his boat” and that “he maintained sufficient control of the boat in the straightaway between Bends 4 and 3 as well as at the stopsuch that Bernius’ boat remained in place and did not strike either officers’ boat.” R.E. 039; R. 1090.

104Tr. 104, 110, 118.

105R.E. 168; Trial Exhibit P-1 at 140.

106Tr. 118 (Thrash testified: “[A]t the stop I didn’t observe any signs that would give me reason for[reasonable] suspicion. . . .”; R.E. 189; Tr. 189 (Thrash stated: “I didn’t have any reasonable suspicion to believethat he had been drinking at the time.”). Thrash testified further that officers must have reasonable suspicion thata boater is violating the boating under the influence laws before the MDWFP’s SOP comes into effect. Id.

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JEFFREY JACKSON & MARY MILLER, ENCYCLOPEDIA OF MISSISSIPPI LAW § 29:54 (West Group

2001)(citations omitted).

Here, the officers witnessed Bernius operating his vessel in a manner that violated Mississippi

law. Thus, they had “probable cause” to stop Bernius for a “traffic” violation. Bernius’ reckless

operation of his vessel and speeding, alone did not give the officers reasonable suspicion of BUI at the

time of the stop, nor did Bernius’ conduct at the time of initial contact.

It was undisputed that Bernius yielded and stopped upon seeing Thrash’s lights and sirens.

Thrash testified that Bernius decelerated his vessel and came to idle, doing so in a proper manner, with

control, on the correct side of the river and at a safe distance from the river bank. There is no contrary

evidence. As a result, Thrash reasonably expected that Bernius would heed his command to move to

the straightaway. The trial court improperly conflated Bernius’ boat operation at an excessive speed

with “unreasonable risk” of potential flight. But, there is n o e v id e n c e to support the conclusion that

speeding means the boater will ignore a lawful command and flee when stopped.

The trial court focused on Delcambre and Thrash’s testimony that Bernius was speeding in a

reckless manner. But, Delcambre and Thrash intervened. The trial court’s finding that they deliberately

disregarded “the risk” rested on Delcambre and Thrash’s decision to direct Bernius to the safer

straightaway.107 This finding is false and clearly erroneous as Delcambre and Thrash intervened to

thwart “the risk” Bernius posed to others. The trial court’s conclusion suggests that the officers knew

Bernius would flee, but this lacks evidentiary support. The record reflects that the officers indisputably

were in the process of stopping and investigating a boat operator consistent with Mississippi Code § 59-

21-83. Delcambre and Thrash’s order to Bernius to move into the straightway was reasonable and made

with the proper intent, not reckless and indifferent.

Delcambre and Thrash’s decision to move to a safe location for investigation mirrors the

107R.E. 048.

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practice of other law enforcement officers such as police officers who stop a speeding automobile

driver. When a driver stops his vehicle in an area of the roadway which creates a hazardous condition

for the officer, the driver and other motorists, the officer would direct the driver to pull over or forward

to a safer location.108 A police officer did exactly that in Aguilar v. State, 2012 Tex. App. LEXIS 1677,

2012 WL 677505 (Tex. App. 2012). In conducting a stop in which the driver pleaded nolo contendere to

the offense of driving while intoxicated, the police officer activated his lights, intending to cause the

driver to pull over on the shoulder. Aguilar, 2011 Tex. App. LEXIS 1677, *3.

The vehicle continued on, passing several safe locations to pull over, and finally stoppedin an area adjacent to an entrance ramp, a location [the police officer] c o n s id e re dd an g e ro u s . Feeling it was unsafe to get out of his vehicle, [the police officer ] used hispublic address system to instruct the driver to pull forward and to the right. The driverfailed to respond to these instructions, causing [the police officer] to get out andapproach the [vehicle] where he instructed the driver to pull forward and to the right.

Id. at *3-4 (emphasis added).109

In People v. McGaughran, 601 P.2d 207 (Cal. 1979), the court, in discussing the constitutionality

of a stop, acknowledged:

although not specifically compelled by law, certain other steps customarily taken asmatters of good police practice are no less intimately related to the citation process: . ... if the vehicles of either are exposed to danger, the officer may require the driver toproceed to a safer location before the investigation continues.

Id. (citations omitted )(emphasis added).

In a more recent Georgia case, Rolland v. State, 742 S.E.2d 482 (Ga. Ct. App. 2013), officers

sought to pull a driver over for traffic violations. When the driver

108See, e.g., http://www.bluesheepdog.com/traffic-stop-safety-tips/ (“Location, location, location – Priorto making the stop, try to anticipate where would be the safest location to make the stop. Consider a locationwith lighting and out of the main flow of traffic. If the driver does not stop where you would like them to, usethe P.A. to direct them to a better location.”).

109In another Texas case addressing a driver’s motion to suppress evidence, an officer was proceedingto pull a driver over. Rivera v. State, 2001 Tex. App. LEXIS 4913 (Tex. App. San Antonio July 25, 2001). Thedriver, however, “stopped in a dangerous location and the officer advised [the driver] to move to a safer location. . . . Id. at *2.

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brought his vehicle to a complete stop, half of his vehicle was still on the road and halfwas on the shoulder of the road. Concerned that the vehicle was only partially off theroad, the officer approached [the driver] and requested that he move his vehicle to asafer location, and [the driver] complied.

Rolland, 742 S.E. 2d at 661. The driver was cited with driving under the influence. Id. These cases

demonstrate that ordering a driver to move to a safe location prior to investigation is a reasonable

measure to secure the safety of officers, drivers and the public.

The trial court’s findings suggested that the officers directed Bernius to continue to operate his

vessel in a reckless manner, which is completely false. Bernius had come to a controlled stop and

exhibited no signs of intoxication–to the officers. Further, there was no record evidence that Thrash

had reason to believe that Bernius would not heed his command.110 Indeed, Mississippi Code § 97-35-7

makes it unlawful for persons to refuse to “promptly comply with or obey a request, command, or order

of a law enforcement officer . . .,” and Thrash was within his authority to believe that his order would

be obeyed. As such, the trial court’s sarcastic comment that it came as “only a surprise to the officers”

that Bernius would flee is unsupported by the record. The trial court’s comment demonstrates that it

merely substituted its judgment after-the-fact.

The record is devoid of evidence that the officers kn e w , u n d e rs to o d o r re alize d that an

unreasonable risk of harm existed to the Webbs and others. As such, trial court’s finding that the

officers appreciated the risk of Bernius’ flight is error.

3. The evidence did not establish that Delcambre and Thrash knew,understood or realized an “un re as o n ab le ris k.”

In applying Mississippi Code§ 11-46-9(1)(c), this Court has distinguished a “reasonable risk” of

harm involving ordinary negligence from the required “unreasonable risk” or “wanton conduct”

required to find reckless disregard.111 Addressing the term “risk” in a negligence case, this Court has

110R.E. 120; Tr. 194 (Thrash testified that he had no reason to believe Bernius would flee.)

111 Maldonado, 768 So. 2d at 911.

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held:

[n]egligence . . . is conduct which falls below the standard established by the law for thestandard of others against un re as o n ab le ris k of h arm . The idea of risk necessarilyinvolves a recognizable danger based upon some reasonable belief that h arm mayfollow. A risk is a danger which is apparent or should be apparent to one in theposition of the actor. No man can be expected to guard against events which are notreasonably to be anticipated, or are so unlikely that the risk would commonly bedisregarded. Prosser, Torts (1941), Sec. 35.

Horne v. Moorhead, 228 So. 2d 369, 373 (Miss. 1969) (quoting Sturdivant v. Crosby Lumber & Mfg Co., 65 So.

2d 291, 294 (1953) (emphasis in original).

The trial court applied a mere negligence standard, finding “that there [was] a danger and a risk

of injury to others to allow someone to operate a boat recklessly, to speed, to be physically incapacitated

while operating a boat, or to be under the influence of alcohol while operating a boat.”112 This is an

error of law. There was no testimony that the officers reasonably recognized that Be rn iu s posed a

danger or a risk to others. Although Delcambre and Thrash testified, as any good officer would, that

operators under the influence of alcohol, physically incapacitated or who operate in a reckless manner

present a risk on public waterways, they did not kno w that Bernius posed any such risk once he came

to a stop.

Though Bernius was speeding, the officers stopped him. The officers did not ignore Bernius’

conduct; rather, they acted. As Delcambre testified, although some speeders may be under the influence

of alcohol when doing so, speeding alone does not support reasonable suspicion of intoxication, nor

does speeding support reasonable suspicion a stopped driver will flee. Thrash testified that it was the

first time that someone had fled from them.113

The record evidence does not reflect that the officers had reason to believe that Bernius would

flee. The officers’ efforts to move into the straightaway were consistent with safe boating practices to

112R.E. 055; R. 1106.

113Tr. 85.

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prevent harm to the public. The risk of Bernius’ flight was not apparent to the officers and there is no

evidence that the officers should have reasonably anticipated Bernius’ criminal conduct by fleeing.

4. The evidence failed to demonstrate Delcambre and Thrash “consciouslydisregarded” an unreasonable risk.

“Reckless disregard” under Mississippi Code§ 11-46-9(1)(c) must be proved by evidence that

the actor d e lib e rate ly d is re g ard e d a known unreasonable risk.114 Here, there was no evidence

Delcambre and Thrash “consciously disregarded” a known unreasonable risk. The trial court found that

the officers “deliberately disregarded the risk and were consciously indifferent to the consequences of

their actions and inactions.”115 This finding, however, ignores the undisputed testimony that Bernius

came to a controlled stop. The Webbs do not dispute that the officers ordered Bernius to move to

protect the public out of concerns for safety. The trial court’s finding, however, improperly substituted

the court’s judgment for the officers’ reason, judgment and discretion.

The trial court found (1) that the officers violated the BUI statute and the MDWFP’s SOPs and

(2) that because there are no exceptions to the BUI statute and the relevant SOPs, the officers

disregarded the law and the MDWFP’s mandatory guidelines in ordering Bernius to move to the

straightaway.116 The trial court erred as to both.

Delcambre and Thrash never conducted a BUI screening because Bernius fled. The officers

intended to cite Bernius for reckless operation and, according to standard practice for a BUI violation,

intended to screen Bernius if he gave them reasonable suspicion that he was under the influence of

alcohol.117 During the initial contact, Bernius exhibited no signs of intoxication, after decelerating to

114Durn, 861 So. 2d at 995.

115R.E. 057; R. 1108.

116R.E. 049-050; R. 1100-01.

117Tr. 251. Delcambre testified that once in the straightaway they would have asked Bernius why herecklessly operating his vessel and if they perceived that he was impaired at that time and stuff, they would havegon “into the BUI format.” Id. The trial court acknowledges that “[t]heir testimony is clear that their intention

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a controlled stop and to idle position.118 Bernius acknowledged Delcambre and Thrash’s command to

move to the straightaway and complied.

The trial court’s finding of reckless disregard rests on its holding that agency procedures

precluded Delcambre and Thrash from ordering Bernius to a safer location. The trial court held that

SOP 04.01’s requirement that citations be issued “at the scene” prohibited officers from directing

Bernius or any boater to move his vessel to another location prior to investigating the reason for

reckless boat operation.119 According to the trial court, under the SOP, movement of the boat is only

permitted on a custodial arrest.120 The trial court’s reading of the SOP is illogical and at odds with law

enforcement practices. Law enforcement officers necessarily must be able to control and conduct safe

traffic-type stops and direct drivers to move to safer nearby-locations do so. The trial court’s view of

the SOP guidelines precludes law enforcement officers from ensuring the safety of the public. Such a

view is unrealistic and unreasonable.121

The trial court’s reading of the MDWFP’s operating procedures is not only illogical but

constitutes plain error. The trial court found that “SOP 07/03 then provides that after stopping a

vessel, ‘the Officer may then ascertain if there is further probable cause . . . to proceed to ‘the

was to move Bernius to the straightaway and then do what they were required to do to determine why Berniuswas recklessly operating his boat and if Bernius was impaired or under the influence.” R.E. 047; R. 1098.

118Tr. 296 (Delcambre testified that at the time that Bernius turned his head and looked at officer Thrashand nod his head “yes,” he was in control of his boat.”).

119R.E. 049; R. 1100.

120Id.

121By way of example, where a law enforcement officer finds a driver with his vehicle stopped across aset of railroad tracks, is the officer not permitted to order the driver to move first and investigate af te r he hassecured the safety of the driver, the public, and himself? The trial court’s ruling here indicates that withmandatory guidelines to investigate for driving under the influence, an officer lacks authority to demand thedriver to move before investigating. This rational disregards common sense safety practices.

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screening/intoxication interview . . . .’”122 According to the trial court, these provisions eliminate any

discretion of law enforcement officers to “first” assure that the location of the traffic stop is safe. This

interpretation, however, is not supported by the operating procedures. The trial court faulted

Delcambre and Thrash for directing Bernius to move to the straightaway before they ruled out Bernius’

“use of alcohol. . . ”123 But, ignoring an eminent hazard to investigate for BUI was impossible, as

Delcambre explained that at the point Bernius was stopped and because

of [the] blind bend . . .we could not initiate, we could not stay there but a brief moment.Anytime a boat -- because we had two boats, possibly three boats blocking the riverand if a boat would have come northbound then we would have had all our lives wouldhave been in danger as well.

Tr. 261.

The MDWFP’s guidelines do not prevent law enforcement officers from safely conducting

stops. Indeed, the MDWFP’s mission stated in SOP 7/03 is

to enforce the laws of the United States and the State of Mississippi on the public watersunder the jurisdiction of the State of Mississippi so as to protect all persons from injuryand/or loss of life and to safeguard property.

R.E. 167; Trial Exhibit P-1 at 139.

The BUI operating procedures do not govern here. The trial court’s conclusions suggest that

Delcambre and Thrash ignored SOP 07/03. The trial court claims that “[t]his is so, however, only

because the officers chose to make it so.” The trial court’s analysis is flawed because it fails to account

for situations in the field in which law enforcement officers find themselves and those which cannot

or are not controlled by them. Delcambre and Thrash did not control the location which Bernius

ultimately brought his boat to stop. The fact is, the officers were attempting to control the location of

the stop by ordering Bernius to move forward, down river.

122Id.

123R.E. 050.

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In the trial court’s analysis, the MDWFP officers have no discretion as to how to conduct a stop

and investigation because there is no procedure that provides that they can do so. But, the testimony

was that no guideline procedure existed as to how to handle a stop in a hazardous river bend. Rather,

that is matter of common sense and experience. MDWFP officers necessarily rely on their experience,

safe boating practices and judgment in the field to make safe stops and investigate.124 While the trial

court held that no statute, regulation or MDWFP guidelines permitted the MDWFP officers to decide

what is safe, there is likewise no statute, regulation or MDWFP guideline designating the procedures for

addressing a traffic stop in a river bend the officers deemed hazardous. Simply put, regulations and

agency procedures are not required for law enforcement officers to exercise good judgment and

discretion in safe boating practices.

The MDWFP’s “Guidelines” are not intended to cover every scenario in which an officer

attempts to stop a boater. Such is impossible. Each scene and each stop is unique and officers

necessarily must exercise their discretion on every occasion and sometimes, as here, in split-seconds.

Here, there is no evidence that Delcambre and Thrash’s actions were violated MDWFP’s SOPs. The

officers’ actions were consistent with the MDWFP’s guidelines and the BUI statute and the public policy

behind each.

124Thrash testified:

Q. Now when you interact with boaters on the river in your experience do you encounterdifferent type boats, different type people, different type circumstances?

A. Yes, sir, I do.Q. Do these encounters from time to time present unique challenges to you?A. Yes.Q. Do they present challenges where you have to make split second judgments?A. Yes, sir. Q. In those situations do you use reasonable judgment based upon your training to the

best of your ability? A. Yes, I do.

R.E. 136; Tr. 297.

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5. The trial court’s finding Bend 2 was not a dangerous river bend was error.

The trial court’s found that there was no evidence that Bend 2 was a blind or dangerous river

bend. The trial court’s ruling, however, is clearly erroneous as it evinces the trial court’s clear

misapprehension of the unique characteristics of the River, although the trial court acknowledged that

the photographs “do show a sharp curve as Bend 2.”125 Moreover, the trial court’s ruling is erroneous

because the issue was whether the officers reasonably believed Bend 2 was dangerous as the officers

conduct is to be judged based on what they “w e re c o n fro n te d w ith , . . . ” not with what in hindsight

may be a more reasonable alternative to split-second decisions officers make in the field.126

The trial court’s ruling implies that the officers fabricated the claim that Bend 2 was dangerous.

To the trial court, it was but a “bald assertion.”127 The officer’s, however, have consistently written,

reported and testified and it is not disputed that the reason they asked Bernius to move to the

straightaway was due to their opinion, view and judgment that Bend 2 was a “dangerous” area for the

men in their three (3) boats to remain for any length of time. Delcambre and Thrash’s narratives written

shortly after the accident provide:

[By Delcambre:] Officer Thrash stopped the boat while Officer Delcambre approachedthe boat on the port side. Officer Delcambre told Officer Thrash to have the operatormake the bend of the river and to pull up in the straight-away. Officer Delcambreproceeded to go around the bend toward the straight-away to clear traffic.

R.E. 080; Trial Exhibit P-1 at 19.

125R.E. 050.

126City of Jackson v. Powell, 917 So. 2d 59, 72 (Miss. 2005) (citing Graham v. Connor, 490 U.S. 386, 396-397(1989) (internal citations omitted)(emphasis added).

127R.E. 050. The trial court’s comment insinuates the officers has some sinister motive or falsely testifiedwhen declaring their opinion that Bend 2 was a sharp and hazardous river bend. The trial court’s view is,however, unsupported by any evidence whatsoever. First, a disinterested witness expressed her unsolicitedopinion the officers and Bernius were in an unsafe location. See Trial Exhibit P-1 at 42. Second, the officers haveconsistently opined since the day of the accident that Bend 2 is a sharp and dangerous river bend. See R.E. 080,081 (MDWFP’s officers Fact Supplement containing their statements was written two days after the accident).

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[By Thrash:] Officer Delcambre on the port side of Officer Thrash’s boat said, weneed to get them out of the curve. Officer Thrash then Stated to Mr. Bernius “followus to the strait away out of this curve,” Mr. Bernius said “okay.” Officer Thrash andOfficer Delcambre proceeded out of the curve and into the strait away.

R.E. 081; Trial Exhibit P-1 at 20. In the investigative report, M.Sgt Bond reported:

MSgt. Delcambre advised Pvt. Thrash and instructed Bernius that they would continuedownstream out of the blind curve and into the safer straight portion of the river. . . .

R.E. 077; Trial Exhibit P-1 at 16. Moreover, in sworn statements made in support of MDWFP’s

summary judgment motion, the officers testified that the reason they sought to move to the straightaway

was for safety reasons.128 The Webbs have never challenged the fact the officers b e lie v e d they were

in a dangerous area and that was the reason they asked Bernius to move to the straightaway.

The trial court’s conclusion is clearly erroneous error in light of the testimony that (1)

Delcambre and Thrash believed Bend 2 was a dangerous bend, (2) that Bend 2 contained “blind spots”

for boaters and (3) that a prior incident in the same bend occurred caused them to believe that Bend

2 was “dangerous.” The trial court’s findings illustrate its improper substitution of its own judgment

for the officers’ judgment made in the field who must make split-second decisions to secure the safety

of the public and themselves.129 The trial court’s finding also reflects the use of a negligence standard

instead of the “reckless disregard” standard. The proper focus is not whether the trial court believed

Bend 2 was dangerous. The issue is whether it was reasonable for the officers to believe they were in

a dangerous location or situation.

The trial court rejected Delcambre and Thrash’s testimony regarding the hazardous river bend

as “bald assertion” without definitive measurements or photographs of what approaching vessels

mighthave seen.130 First, the trial court has improperly shifted the evidentiary burden to the MDWFP

128R. 493-496; 500-503.

129See Powell, 917 So. 2d at 72.

130R.E. 050.

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here.131 It was not the officers’ burden to conclusively establish that Bend 2 was hazardous. The issue

was whether there was credible evidence for the officers to believe the area was hazardous and that

remaining in the bend placed the public, Bernius and his passenger and themselves in danger. The trial

court’s findings here were also erroneous. The photographs unquestionably depict the sharp river

bend.132 One of the witnesses to the accident also described the area of the bend as unsafe.133 In

addition, the fact that within in the time frame of the stop and shortly thereafter there were three other

boaters who either did travel or would have traveled the very area of Bernius’ initial stop evinces the

very concerns the officers had with that location. First, the Joachim boat which was nearly hit by

Bernius but for their evasive maneuvers was traveling through Bend 2. Second, eventually, had the

officers and Bernius remained in the area, the Webb boat and its occupants would have entered the

bend. Third, the evidence demonstrated that boater Joshua Lord was boating up river through Bend

2. With so many boaters moving in and out of the same area around the same time, it is understandable

that the officers sought a wider and safer place to investigate Bernius.

The trial court determined that “the only testimony of any untoward event ever occurring

previously at Bend 2 was the testimony that the year before the accident, the officers had almost been

hit by a jet ski coming around Bend 2 . . . ”134 The trial court held this was insufficient basis for the

officers to believe that Bend 2 was hazardous. The trial court’s conclusions were manifestly in error.

Trial Exhibits P-1 at 132, 187, 253, 254, 255 clearly depict the sharp curve in the river.135

131See Morton v. City of Shelby, 984 So. 2d 323 (Miss. Ct. App. 2007) (plaintiff has burden to prove recklessdisregard).

132R.E. 151, 152, 153, 154, and 155; Trial Exhibit P-1 at 132, 187, 253, 254 and 255.

133Witness Kelly Moses wrote that she believed “they were moving across the river to a s af e r are a . . .” Trial Exhibit P-1 at 42 (emphasis added).

134R.E. 050 (emphasis in original).

135R.E. 151, 152, 153, 154, and 155.

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Depending on where vessels are located on either side of the bend, it is obvious that a blind spot exists

to vessels navigating the bend. There was no testimony or evidence presented that Bend 2 did not have

blind spots. There was no evidence or testimony that the officers did not have a prior incident in the

area of Bend 2. Thrash testified and it was undisputed that the apex of the curve is built up and boaters

cannot see over the land oncoming vessels that are approaching. The evidence and testimony evinced

the fact that there was sufficient grounds for the officers to believe Bend 2 offered a hazardous

condition and remaining in the location for the stop and investigation was unsafe. Plainly, the trial

court supplanted its view for the perception of the officers and its finding was clearly erroneous.

6. The police pursuit cases assist the court in assessing the conduct ofDelcambre and Thrash.

The trial court erred in its application of the reckless disregard standard.136 This Court has

enumerated ten factors to use in assessing whether an officer’s conduct amounts to “reckless disregard”

in vehicular pursuit cases. Ellisville v. Richardson, 913 So. 2d 973 (Miss. 2005). These cases are relevant

because they involve decisions officers make in the field and their effect on the public’s safety. Vehicle

pursuit cases generally involve whether an officer’s decision to continue a pursuit was in compliance

with procedures pertaining to police pursuits. Richardson, 913 So. 2d at 979; Brister, 838 So. 2d at 279.

The factors considered in police pursuit cases include: (1) the length of the pursuit; (2) the type of

neighborhood; (3) the characteristics of the streets; (4) the presence of pedestrians and traffic; (5)

weather conditions; (6) the seriousness of the offense undergirding the pursuit; (7) the use of sirens and

blue lights; (8) available alternatives to the pursuit; (9) relevant police policies; and (10) speed of the

pursuit and speed limits. Richardson 913 So. 2d at 977. Police pursuit cases examine law enforcement

officer’s conduct in balance with the need for public safety and to apprehend law breakers.

Applying the pursuit cases here supports the conclusion that Delcambre and Thrash did not

136R.E. 042.

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recklessly disregard public safety. Here, the area of the river was winding, narrow and had blind spots.

It is undisputed that the area where the officers’ stopped Bernius contained sharp curves and had several

bends and short straightaways.137 The officers testified that the area where they stopped, Bend 2, was

a particularly dangerous part of the River.138 Delcambre and Thrash’s actions did not violate any policy.

The MDWFP’s procedures did not prohibit directing Bernius to a safer area. The trial court’s finding

that the officers failed to comply with the MDWFP’s guidelines which requires law enforcement officers

are to issue citations “at the scene,” is erroneous because there is no guideline providing that safe

boating practices should be disregarded in the exercise of the officers’ duty to issue citations “at the

scene.”

Generally, law enforcement officers do not issue reckless driving and speeding citations, i.e.,

traffic citations, at a “station house.” Rather, they do so in the field. Like police pursuit matters, typical

police policies provide that officers must terminate and forgo a pursuit altogether if the officer

recognizes safety of innocent citizens outweighs the danger to the community if the suspect were not

immediately apprehended.139

The trial court insisted that this was a “failure to detain” case more like City of Jackson v. Brister,

838 So. 2d 274 (Miss. 2003).140 Brister is distinguishable because the officers in that case violated the

City’s General Order concerning pursuits which they were not prohibited from implementing by an

uncontrollable situation. There is no MDWFP policy regarding how Delcambre and Thrash were to

handle a traffic stop investigation in an area they deemed too dangerous in which to remain. The

137See R.E. 151; Trial Exhibit P-1 at 132.

138Tr. 163 (Thrash testified: “The bank is real high and you can’t see any oncoming traffic and they can’tsee you. . . .”).

139See Richardson, 913 So. 2d at 979.

140See supra, fn.75.

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officers in Brister had, but failed, to take the time to record the forger’s license plate in compliance with

the City’s pursuit policy. They were not faced with being hit or injured by complying with the pursuit

policy.

In sum, the police pursuit cases establish that the safety of the public is the key component for

assessing an officer’s conduct when pursuing by vehicle or making a stop. The principle that officers

possess the authority to have a driver to move to safer area is not new.141

C. BERNIUS’ UNLAWFUL CONDUCT IS THE INTERVENING ANDSUPERSEDING CAUSE OF THE BOATING ACCIDENT.

The trial court erroneously failed to find that Bernius’ unlawful actions were the intervening and

superseding cause of the boating accident. It is undisputed that the officers deemed the area of the river

where Bernius came to a stop too dangerous for them to conduct “a stop.” Likewise it is undisputed

that the officers ordered Bernius to move the straightaway down river to provide a safer location for

them to question Bernius and that Bernius agreed to do so. It is further undisputed that the officers,

once in the straightaway, intended to conduct “a traffic stop” and follow MDWFP’s guidelines for

handing boaters whom they have gained reasonable suspicion for a BUI violation. There is no debate

that Bernius followed Thrash a short distance then abruptly and unlawfully turned his vessel 180 degrees

and fled. It is clear that Bernius’ disobedience of a lawful command from the MDWFP officers was

a criminal act. It is clear that Bernius’ flight was a criminal act, and it is clear that Bernius’ reckless

operation of his vessel c au s e d the crash which killed Webb and injured others. Yet, the trial court

141See e.g., State v. Berry, 2007 N.S. Super. LEXIS 1490 (March 14, 2007) (officer asked a driver to movehis vehicle to a safer location before asked for his identification); see also, Molnar, JP, “Traffic Stop Survival, Part1,” Law Officer, RSS , Webb. June 1, 2010 (“[I]t was important to know where a safe traffic stop could beperformed without being compromised. . . . .You can’t always control where a violator will stop, but you canincrease the odds of a safe stop by knowing your beat and where the best places are to conduct business. . .”;seealso, http:// www.bluesheepdog.com/traffic-stop-safety-tips/ (“Location, location, location – Prior to makingthe stop, try to anticipate where would be the safest location to make the stop. Consider a location with lightingand out of the main flow of traffic. If the driver does not stop where you would like them to, use the P.A. todirect them to a better location.”).

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failed to find that these criminal acts were not the intervening superceding cause of the boating accident.

Delcambre and Thrash reasonably and lawfully believed that Bernius, who had been given a

lawful command, would not violate Mississippi § 97-35-7142 which requires citizens to comply with a

lawful command by a law enforcement officer. Based on circumstances of their contact with Bernius,

they had no reasonable reason to expect Bernius to commit criminal acts and, as such, it was not

reasonably foreseeable to the officers that Bernius would likely violate their command, flee and cause

an accident. Bernius’ intentional and deliberate criminal conduct is an intervening superseding cause

of the Webbs’ injuries such that the officers and MDWFP cannot be held liable to them.

The Mississippi Supreme Court has found that a criminal act can be a superceding intervening

cause. “This Court repeatedly has stated that “[g]enerally, ‘criminal acts can be intervening causes which

break the causal connection with the defendant’s negligent act, if the criminal act is not within the realm

of reasonable foreseeability.’” Double Quick, Inc. v. Moore, 73 So. 3d 1162, 1166-67 (Miss. 2011) (quoting

O’Cain v. Harvey Freeman & Sons, Inc., 603 So. 2d 824, 830 (Miss. 1991)). In Southern Heritage Insurance Co.

v. C.E. Frazier Construction Co., 809 So. 2d 668, 672 (¶10) (Miss. 2002), the supreme court held that,

“[w]here a thief acts unlawfully and steals [a] vehicle, the thief’s negligent and unlawful driving of the

vehicle after the theft constitutes an intervening act which supersedes the liability of the negligent owner

of the vehicle.”

About the actions of others acting independently of an alleged wrongdoer, the Mississippi

Supreme Court has stated:

Consecutive wrongs, done by independent agents, cannot be conjoined to increase orenlarge the responsibility of one of them.” One person is negligent on a particular

142 Mississippi Code § 97-35-7 provides that “[w]hoever. . ., fails or refuses to promptly comply with orobey a request, command, or order of a law enforcement officer, having the authority to then and there arrestany person for a violation of the law to . . . (i) [a]ct or do or refrain from acting or doing as ordered, requestedor commanded by said officer . . . shall be guilty of disorderly conduct, . .and, upon conviction thereof, suchperson or persons shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or imprisonmentin the county jail for not more than six (6) months, or by both such fine and imprisonment.”

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subject-matter; another person, moving independently, comes in, and either negligentlyor maliciously so acts as to make the negligence of the other injurious to a third person. In such a case the person so interfering “acts as a nonconductor and insulates” thenegligence of the other person. . . .

Robinson v. Howard Bros. of Jackson, Inc., 372 So. 2d 1074, 1075 (Miss. 1979) (quoting Bufkin v. Louisville and

N.R. Co., 137 So. 517 (1931). The court in Robinson acknowledged that “[f]oreseeability is key in

determining whether a criminal act is a superceding, intervening cause.” Id. at 1076. In Robinson, the

Supreme Court found that while the defendant unlawfully sold a minor a gun and ammunition, the

minor’s criminal act of murder was not foreseeable. Id. This Court also noted a “clear statement” on

the question of foreseeability in Prosser, Law of Torts, 4th Ed. pp. 173, 174:

There is normally much less reason to anticipate acts on the part of others which aremalicious and intentionally damaging than those which are merely negligent; and thisis all the more true where, as is usually the case, such acts are criminal. . . . [I]n theabsence of any reason to expect the contrary, the actor may reasonably proceed uponthe assumption that others will obey the criminal law . . .

Robinson, 372 So. 2d at 1076.

In another case, Permenter v. Milner Chevrolet Co., 91 So. 2d 243 (1956), the Mississippi Supreme

Court held that an actor who violated a statute was not responsible for the damages that occurred as

a result of a third party’s negligence. The defendant, Milner Chevrolet Co., violated the statute

prohibiting leaving the key in the ignition of an unattended automobile. Id. at 244. The automobile

was stolen and plaintiff was injured when the stolen car collided with the vehicle in which he was riding.

The Supreme Court held that although the defendant was guilty of negligence by violating the statute,

the reckless driving of the thief was an independent intervening agency which caused the accident and

superseded the original act of negligence. Id. at 252.

Thrash and Delcambre reasonably expected Bernius to comply not only with their command

to move into the straightway, but based on the circumstances, they reasonably expected that Bernius

would not commit further criminal acts. Bernius’ criminal conduct is an intervening superseding cause

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of the Webbs’ injuries such that MDWFP cannot be held liable to them.

V. Conclusion

The trial court misapplied the “reckless disregard” standard, improperly supplanting its view in

the stead for the officers. The trial court’s opinion evidences a clear misunderstanding of the unique

challenges marine officers face on a moving body of water. The officers’ encounter with Bernius was

similar to a police officer driving up alongside a driver, realizes that the location the driver chose to stop

is unsafe for the officer and the public and who then instructs the driver to pull forward to a safer

location. Law enforcement officers use their experience and professional judgment in deciding where

to ultimately issue a citation. The “at the scene” language of the MDWFP guidelines do not preclude

an officer from directing a boater to move to a safer location. The trial court manifestly erred in finding

that the officers violated the MDWFP guidelines for this reason.

It is undisputed in this case that:

1. The officers saw Bernius violating Mississippi boating safety laws and they sought tostop him.

2. Witnessing a boater operating his vessel in a reckless manner gave the officers probablecause to stop the boater for reckless boat operation. Not all boaters who operate avessel recklessly or at an excessive speed are doing so under the influence of alcohol.

3. At the time of their initial contact with Bernius, the officers determined that they werein an unsafe location and Thrash instructed Bernius to follow them to the straightawaydown river. It is undisputed that Bernius agreed to do so. It is undisputed that Thrashnor Delcambre witnessed any thing to indicate to them that Bernius could not operatehis vessel safely.

4. Thrash and Delcambre intended to and would have implemented the MDWFPguidelines for handling boating stop and BUI enforcement once they were safelysituated in the straightaway, provided reasonable suspicion existed.

5. Bernius unexpectedly and unlawfully fled from the officers, operated his vessel in a

reckless manner and caused the boating accident that killed Christopher Webb andinjured Shane Webb.

On these undisputed facts, the trial court’s finding and conclusions that the officers acted in

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reckless disregard for the safety of others are clearly erroneous and should be reversed.

This the 29th day of December, 2016.

Respectfully submitted,

MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS

BY: PAGE, MANNINO, PERESICH & McDERMOTT, P.L.L.C.

BY: /s / Ste p h e n G. Pe re s ic h STEPHEN G. PERESICHMS Bar No. 4114

PAGE, MANNINO, PERESICH & McDERMOTT, P.L.L.C.759 Vieux Marche Mall Post Office Drawer 289Biloxi, Mississippi 39533Telephone: (228) 374-2100Facsimile: (228) 432-5539stephen.peresich@pmp.org

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CERTIFICATE OF SERVICE

I, STEPHEN G. PERESICH, of the law firm of Page, Mannino, Peresich & McDermott,

P.L.L.C., do hereby certify that I have this date electronically filed a true and correct copy of the above

and foregoing Ap p e llan t’s B rie f with the Court using the MEC system which sent notification to the

following:

Counsel for Candace Webb & Thomas HarperJoe Sam Owen, EsquireOwen, Galloway & Myers, PLLCPost Office Box 420Gulfport, MS 39502jso@owen-galloway.com

Counsel for Kathleen D. Webb Thomas M. Matthews, IIIAttorney at Law125 West College AvenueWiggins, Mississippi 39577matthewsthomasmj@bellsouth.net

Further, a copy of the Ap p e llan t’s B rie f was also served via United States Mail, postage pre-paid to:

Judge Lisa P. DodsonCircuit Court of Harrison CountyPost Office Box 1461Gulfport, MS 39502

This the 29th day of December, 2016.

/s/ Stephen G. Peresich STEPHEN G. PERESICH

PAGE, MANNINO, PERESICH & McDERMOTT, P.L.L.C.759 Vieux Marche Mall Post Office Drawer 289Biloxi, Mississippi 39533Telephone: (228) 374-2100Facsimile: (228) 432-5539stephen.peresich@pmp.org

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