IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00578-COA MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES, AND PARKS APPELLANT

v. CANDACE WEBB, THOMAS HARPER, AND KATHLEEN D. WEBB APPELLEES

DATE OF JUDGMENT: 12/02/2014 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: STEPHEN GILES PERESICH JOHANNA MALBROUGH MCMULLAN ATTORNEYS FOR APPELLEES: JOE SAM OW EN ROBERT P. MYERS JR. THOMAS M. MATTHEW S III NATURE OF THE CASE: CIVIL - W RONGFUL DEATH TRIAL COURT DISPOSITION: APPELLANT FOUND LIABLE TO APPELLEES; $466,666.77 AW ARDED TO CANDACE W E BB; $33,333.33 AW ARDED TO KATHLEEN W E BB DISPOSITION: REVERSED AND RENDERED - 04/18/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. CARLTON, J., FOR THE COURT: ¶1. Candace W ebb, the le g a l g u a r d i a n f o r m i nor Shane W ebb, and Kathleen W ebb, individually and on behalf of the wrongf u l-death benef

iciaries of Christoph e r Webb (collecti v e l y , t

h e W e b b s ) , f

i l e d s u it against the Mississippi Departm ent of W ildlif e, Fisheries, and Parks (MDW F P) u

n d e r t h e M i s s i s s i p pi Torts Claim Act (MTCA), claim ing that MDW FPconservation of f icers acted with r e ckless disregard f or the saf ety of Shane, Christopher, and other boaters using the Tchoutacabouf f a River i n Harrison County , Mississippi. See Miss. Code Ann. § 11-46-9 (Rev. 2012) (discussing governm ental im m unity f rom liability ). ¶2. The M DW FP f

iled a m otion to dism iss o r, alternatively , f or sum m ary j udgm ent, on October 27, 2010, and a sserted that exem ptions under the MTCA barred the W ebbs’ claim s. On N ovem

ber 5, 2010, the cases w e r e c o n s o lidated. 1 Following discovery , t he MDW FP f iled a supplem ental m otion to dism iss and/or, alternatively , f or sum m ary

judgm ent. ¶3. The circuit co u r t d e n i ed sum m ary judgm ent on J uly 25, 2012, and the Mississippi Suprem e Court subsequently denied the MDW FP’s petition f or i nterlocutor y r e v i ew. F o l l o w i ng a two-day bench trial on February 18-19, 2014, the c ircuit court held that th e

1 O n Ju n e 1 0 , 2 0 1 0 , C an d a ce f iled su it ag ain st M D WF P an d V icto r H a rrin g to n (th e o w n e r o f th e b o at o p erated b y D o n ald B ern iu s) o n S h an e’s b eh alf p u rsu an t to th e M T C A

. C a n d ace ch a rg ed th at M D WF P o f f icers acted w ith reck less d isreg ard f o r th e saf ety o f S h an e an d o th er b o aters u sin g th e T ch o u tacab o u f f a R iv er. O n Ju n e 1 7 , 2 0 1 0 , T h o m a s H arp er, as leg al g u ard ian o f K a iler H arp er, a m in o r, also f iled su i t ag ain st M D WF P u n d er th e M T C A

. T h o m as’s su it also ch arg ed th at M D WF P o f f i c e rs acted w ith reck less d isreg ard f o r th e saf ety o f K ailer an d o th e r b o aters u s in g th e T ch o u tacab o u f f a R iv er. M D WF P f

iled a m o tio n to co n so lid ate th e t w o cases o n Ju ly 1 5 , 2 0 1 0 , p u rsu an t to M ississip p i R u le o f C i v i l P ro ced u re 4 2 (a). T h e Web b an d H arp er cases w e re co n so lid ated o n S ep tem b er 2 3 , 2 0 1 0

. O n A u g u st 1 9 , 2 0 1 0 , K ath leen , in d iv id u ally , an d o n b eh alf o f t h e w r o n g f u l-d eath b en ef iciaries o f C h r isto p h er, b ro u g h t su it ag ain s t M D WF P , H arrin g t o n , an d B er n i u s . B y o rd er d ated N o v em

b er 5 , 2 0 1 0 , t h e circu it co u rt co n so lid ated K ath leen ’s su it w ith Ca nda c e’s an d T h o m as’s cases. B ern iu s an d H arrin g to n w ere su b seq u en tly d i sm issed w i th p rej u d ice, an d th e co n s o lid a ted cases p ro ceed ed ag a in st M D WF P

. F o u r-y ear-o ld K ailer w as also a p a s sen g er in th e Web b b o at. A l t h o u g h K ailer’s g u ard ian , T h o m as, in itially f iled s u it o n K ailer’s b eh alf , n o d am ag es w e r e so u g h t f o r an y alleg ed in j u ries to K a iler. A s su ch , d iscu s sio n s in th is ap p eal a re d irected to w a r d th e claim s o n b e h a l f o f C h risto p h er an d S h an e. T h u s, th e A p p ellees are co llectiv ely ref erred to in th is o p in i o n as “th e Web b s.” 2MDW FP of f icers acted in reckless disregard f or the saf e ty of others when the of

f icers told

a boater to m ove to a saf er a r e a a f t e r t h e y stopped him , but the s uspect s uddenly f led and caused a f

atal boat collision. The circuit court conducted a h earing on d a m ages on Novem ber 5, 2014, and awarded dam ages to the W ebbs. ¶4. The MDW FP now appeals, asserting that the circuit court e r r e d i n f i n d i ng that the
MDW FP of

f icers acted with reckless disregard f or the saf e ty o f others by ordering a suspect
to a s af er location to conduct a “stop.” Finding e rror, we reverse the judgm ent of the circuit court and render judgm ent in the MDW FP’s f avor. FACTS ¶5. On August 22, 2009, MDW FP conservation of f icers B arry

Delcam bre and Michael
T h r ash witnessed Donald Bernius speeding in a boat on the Tchoutacabouf f a R iv e r . 2 T h e of f icers e a ch navigated their separate patrol boats into the river t o i n vestigate and stop Bernius. Bernius saw the of f icers and cam e to an initial stop in the m iddle of the river. ¶6. According to the of f icers’ testim ony a t t rial, they r ecognized t h a t t h e i r b o ats and Bernius’s boat were stopped in a “dangerous area” of the river. The of f icers testif

i ed that this particular area o f the river, known as Bend 2, has blind spots where b o a t e r s heading f rom eit h e r d i r e ction cannot see other boaters a pproaching f

rom the opposite d irection. The of f icers explained that, as a result of stopping a nd approaching Bernius, the three b oats were

2 S ee M i ss. C o d e A n n . § 5 9 -2 3 -3 (e) (R ev . 2 0 1 3 ) (d ef in in g p u b lic w aters); M iss. C o d e A n n . § 5 1 -1 -4 (R ev . 2 0 1 6 ) (d iscu ssin g th e u se o f p u b lic w aterw ay s); M iss. C o d e A n n . § 1 -3

- 3 1 (R ev . 2 0 1 4 ) (d ef

in in g n av ig ab le w aters). 3situated in a position so as to occupy m ost of the width of the river, w hich, according to the

of f icers, c r e a t e d a n e m i nent hazard f or other boaters. As a result, Of f icer Delcam

bre instructed Of

f icer Thrash to have Bernius m ove to the n earby straightaway d own the river

to p rovide a saf

e r location f

or them to question B ernius. Of f icer Delcam

bre proceeded ahead of Of f i cer Thrash and Bernius with the intention of blocking oncom ing traf

f ic. ¶7. Of f icer Thrash ordered Bernius to f ollow them

out of Bend 2 into the straightaway , and B ernius agreed to com ply with the instructions. 3 Of f icer Thrash then proceeded to the straightaway a f

ter Of f icer Delcam

bre so that Bernius could fo l l o w h i m . According to Of f icer Thrash, Bernius f

ollowed h im a short distance, and then Bernius abruptly turned his vessel
180 degrees and f

led i n the opposite direction. Of f icer T hrash t hen signaled to Of f icer Delcam bre, and the of

f icers pursued Bernius. ¶8. A t the sam e tim e, John J oachim was traveling down t he river in h i s b o a t i n t h e opposite direction f

r om Bernius. Joachim provided in his s tatem ent that he observed Bernius speeding and recklessly d r iving on the w r o n g s i d e o f t he river. As Bernius’s boat approached, Joachim had to use evasive m aneuvers to avoid a collision with Bernius. Af ter passing Joachim ’s boat, B ernius c ollided with a boat operated by C hristopher. The collision resulted in Christopher’s death a nd injuries to Shane, who was a passenger in Christopher’s

3 A t t rial, O f

f icer T h rash clarif

i ed th a t B ern iu s resp o n d ed “O K A Y !” an d ap p eared to u n d erstan d w h at O f

f icer T h rash h ad ask ed h i m to d o . O f f icer D e lcam

b re testif ied th at h e a l s o s a w B e r n iu s n o d h is h ead af f irm ativ ely in ag reem en t. D ex ter B o u ie, a p assen g er in B e rn iu s ’ s b o at, w r o te in h is statem en t g iv en af ter t h e accid en t th at B ern iu s ag reed to f o llo w th e o f f icers in to th e straig h taw ay . 4boat.

¶9. Neither Of

f icer Delcam

bre nor Of

f icer T hrash witnessed the c o l l i s i o n . O n c e the of f icers a r rive d a t the scene of the accident, they b egan rescue procedures, tended to the injured, alerted authorities, a nd assisted Bernius out of the water. B e r nius was t reated at Biloxi Regional Medical Center. A pproxim ately two h o u r s a f ter the a ccident, a blood sam ple

was drawn f

rom Bernius, which indicated a .25 percent blood-alcohol concentration (BAC) level. 4 Bernius later p led guilty to boating under the inf luence (BUI) a nd causing death and injury

. B ernius is currently serving a twenty -y ear sentence i n prison. As the record ref lects, prior to the incident, Bernius was a paraplegic and wheelchair bound. ¶10. I n c o n n e c t i o n with the boating a c cident, the Mississippi D epartm e n t o f M a r i n e Resources (MDMR) investigated Of f icer Delcam

bre’s and Of

f i cer Thrash’s conduct. Af ter interviewing Of

f icer Delcam

bre a n d l istening to an interview of Bouie, the passenger in Bernius’s boat, the MDMR determ ined t hat O f f icers Delcam

b re and Thrash “acted

com pletely within th e s c ope of their duties

. . . . ” The MDMR concluded “that the only people responsible f

or this boating accident were the people involved in t he a ctual accident.” The W e bbs subsequently f iled suit agains t t h e M DW FP u nder the MTCA, claim ing that Of f icers Delcam

bre and Thrash acted with reckless d isregard f or the saf e t y of others when they f ailed to detain Bernius and instructed him to m ove to a saf

er location.

4 S ee M iss. C o d e A n n . § 5 9 -2 3 -7 ( 1 ) (R ev . 2 0 1 3 ) (statin g t h a t th e leg al B A C f o r b o atin g is .0 8 p ercen t ). 5¶11. At a bench trial held o n F e b r u a r y 1 8 a nd 19, 2014, Of f icers Delcam

bre and Thrash testif i ed to their knowledge and unders t a n d ing of the MDW FP’s Standard Operation Procedures (SOPs) f

or handling B UI situations. Both of f icers t estif

ied that, in their initial

contact with Bernius, his dem eanor and handling of his v essel, am ong o ther things, f ailed to in dicate h e w as im

paired. Of

f icer Thrash specif

ically testif

ied t hat, at the tim e, he had no reasonable suspicion to believe Bernius was intoxicated. ¶12. O f f i c e r s D e lcam

bre a nd Thrash testif

ied that their f

i rst priority during their initial

contact with B ernius was to ensure the saf ety of other boaters and ci tizens on the river. Of f icer D e l c a m

bre explained, “On that particular day [ ,] due to the river traf f ic and the
f luctuations of t he traf

f ic com ing north and south up the river where we encountered Bernius there in [ B]end [ 2], due to the nature of where we [ were]

. . . I m a d e the judgm e nt to m ove around the bend f

or the saf ety of the people and every

b ody involved on the river.” ¶13. Rely ing on City of Jackson v. Brister , 838 So. 2d 274 (Miss. 2003), the c ircuit court concluded that t he present case i n volved the of f icers’ f ailure to detain Bernius rather than their pursuit of him or their f ailure to arrest him

. The circuit court f ound that the of

f icers’ instructions to Bernius to m o v e toward the straightaway violated M issi s sippi boating laws and t he MDW F P’s SOPs. The c ircuit c ourt explained that Of f icers Delcam

b re a n d Thrash violated the MDW F P’s SOP 04

. 0 1 , w h i ch required the of f icers to issue boating-related citations “at the scene,” and that nothing in the SOP p erm itted the o f f icers to d irect “ the of f ending operator t o continue t o operate his v essel prior to issuing a citation.” The circuit

6court thus held the of f icers’ conduct in directing Bernius out o f the bend was in reckless disregard f

or the saf ety of the public. ¶14. In m aking t h i s f

i n d i n g , the circuit court relied on the M DW FP procedures set f orth in SOP 07/03 f

or h andling a BUI situation. SOP 0 7/03 def ines “probable c ause” a nd states that an of

f icer’s “ef f ort to establish probable cause f or BUI will be af

ter a n [ o ] f

f i c e r ’ s stopping of a water craf

t

. . . .” According to the circuit court, t he term “will” is m andatory

r ather than perm issive, such that the of f icers were not perm itted t o m ove or hav e B e r n i u s

m ove t o another location f or their “stop.” The circuit court recognized that law-enf orcem ent of f icers m ake decisions e very day “concerning t heir saf ety and others, [ and] that they are not
to be f aulted and do not becom e liable to t h o s e w h o may be injured sim ply because

som etim es those decisions w ere not the best d ecisions in hindsight

. . . .” Nevertheless, the circuit court f

ound the of

f icers’ decision to direct Bernius to m ove his b oat w as m ade with

a d eliberate disregard f

or the risk such t hat t he of f icers “were consciously indif f erent to the
consequences of their actions and inactio n s . ” According to the circuit court, this action constituted a f

ailure to exercise any c are, resulting in “wanton n e s s , ” a nd not a f ailure to exercise due care, which would have resulted in negligence. ¶15. The circuit court f

urther f ound that the evidence d iscovered af ter the a c cident f

ailed

to determ ine whether Of

f icers Thrash and Delcam

b re acted in r eckless disregard prior to the accident. Howe v e r , t h e circuit court did f ind that t he “ af

ter-accident inf

orm a tion” did “im pact on t he c redibility of t h e witnesses and the story told by the of f icers.” The circuit

7court explained the f a ct that Bernius was ultim ately determ ined to h ave a .25 percent BAC “does not m ean t hat the of f icers knew or should have k nown of that at t he tim e they stopped Bernius.

. . . It does, t hough, call into question the of f icers’ observations (or l ack t h e r e of ) [ of ] Bernius

. . . [ and] [ i ] t r a i ses a question in the court’s m ind about the accuracy of the of f icers’ observations of

Bernius or perhaps the accuracy of their testim ony .” ¶16. The circuit court also discussed Joshua Lord’s t estim o ny t hat, af ter the accident, he heard Of f i cer Delcam

bre tell other of

f i cers that “ t h e y s t o p ped Bernius because the [ other]
passenger was propping Bernius up a nd that t he t wo me n were back to back.” T he circuit

court acknowledged that Of f icer Delc a mb r e d e n ied m a king t his statem ent, but the court observed that “[ Of

f icer] Delcam

bre’s m em ory

was also questioned concerning the odor of intoxicants on Bernius af ter the a ccident.” The circuit c ourt explained that K eith Bond’s report f rom the accident “clearly s tates that O f f icer Delcam

b re told B ond at the scene af ter the accident that he sm e lled the odor of intoxicants on Bernius’s breath upon pulling Bernius
f rom the w ater f

o llo w i n g t h e a ccident.” The circuit court acknowledged that “[ Of f icer] Delcam bre agreed that at his deposition he s aid that he could not r ecall and s a id in his deposition that he did not s m ell that odor. H e say s that as of the t r i a l h e i s s a y i ng that he could n ot sm ell alcohol.” The c i r c uit court determ ined that, since Lord w as not af f iliated with any party in this case and did not know either Bernius o r Of f icer Delcam

bre, “there is

no reason at al l g i v e n a s to why Lord’s testim ony should be [ i n] question concerning the

statem ent.”

8¶17. The circuit court ultim ately held that, “considering the t otality o f the circum stances

and the applicable law, as well as t he adm i ssions o f the of f i cers, t he o f

f icers acted i n this case with reckless disregard.” The circuit court f ound that, whether or not they knew or should have known that Bernius was intoxicated, the o f f i c e r s “adm ittedly appreciated the unreasonable risk to others on t he river in a l lowing a person to r ecklessly o p e rate a boat and/or to operate at an unreasonable speed.” The circuit court explained: [ The of f i cers] did not exercise any o f t he c are or consideration [ that] they were required to d o in t heir dealings with Bernius. T hey clearly intended t hat Bernius continue to o p e rate his boat without a ny restrictions f rom them and without their having m ade any inquiries as t o his reckless operation, s p eeding, phy sical abilities, or use of alcoholic beverages. They “intended t o do the act that caused harm

to com e to the [ p]laintif

f .” ¶18. The circuit court ultim ately rendered a judgme n t f or the W ebbs. The circuit court conducted a dam ages hearing on Novem ber 5, 2014, and awarded dam ages in the am ount of $1,400,000 t o the g u ardianship of Shane, and dam ages of $100,000 to Kathleen, i ndividually and on b ehalf of Christopher’s wrongf u l-death benef

iciaries. Af

te r a p ply ing the MTCA’s statutory cap on dam a ges, the circuit court ultim ately e ntered a f inal judgm ent to the guardianship of Shane in the am ount of $466,666.67, and to Kathleen, individually and on behalf of Christopher’s wrongf

u l-death benef

i ciaries, in the am ount of $33,333.33. ¶19. The M DW F P now appeals the circuit court’s judgm ent, arguing that the c i rcuit court im p roperly s ubstituted its judgm ent and m isapplied t he reckless

- d i s r e g a rd standard. The
MDW FP sub m i t s t

hat the circuit court’s f

indings and conclusions dem onstrate a n application

o f negligence, and not the h igher reckless-disregard standard t hat is required to f in d t h e
9MDW FP liable under the MTCA.
STANDARD OF REVIEW ¶20. “A circuit court j udge sitting w i t h o u t a j u r y i s af f o rded the sam e def

erence as a chancellor.” C ity of

Jackson v. Lewis , 153 So. 3d 689, 693 (¶4) (Miss. 2014). Accordingly , we will not disturb a circuit court’s f indings f ollowing a bench trial where the f indings are supported by substantial, credible, and reasonable evidence. I d. However, we m

ust reverse the circuit court’s f

indings where they a re m anif estly wrong or clearly erroneous, or the court applied an erroneous legal standard. Id. “ Although reasonable m inds m ight dif f er on the conclusion of whether or not the of f icer in q uestion acted in r eckless disregard, i t i s bey ond this Court’s power to disturb t he f indings of t h e t r ial judge if supported b y s u bstantial evidence.” Id

. (citing City of E llisville v. Richardson , 913 So. 2d 973, 978 (¶1 5 ) ( Miss. 2005)). W e review questions of law de novo. Richardson , 913 So. 2d at 977 (¶13).
DISCUSSION ¶21. The M DW FP a r g u e s t hat the circuit court e rred in its application of the “reckless disregard” s tandard. The MDW FP subm its that the circuit c ourt f ocused on whether the of f icers i n t e n d e d t h e act t hat caused the harm and ignored t he r equirem e nt t hat the act at issue m ust be m ade with knowledge of an unreasonable risk a nd a high probability of harm

. The MDW FP asserts that the evidence f ails t o support t he conclusion that the of f icers acted wantonly or in utter d i sregard of a n u n r easonable risk with a high probability o f harm to others.

1 0¶22. W e recognize that “[ t ]he M TCA is the exclusive rem edy f or f i ling a lawsuit against

a g o vernm ental e ntity a nd its em ploy ees.” C ity of

J ackson v. Jackson , 200 S o. 3d 1141, 1144 (¶10) ( Miss. Ct. App. 2016) (citing Brister , 838 So. 2d at 2 78 (¶15)). Section 11-46-9(1)(c) provides:
A governm ental e n t i ty and its e m ploy e es acting within the course and scope of their em

ploy m ent or duties shall n ot be l iable f or any c l aim : . . . [ a]rising o u t of any act or om i ssion of an em ploy ee of a governm ental entity enga g e d in the perf

orm a nce o r e xecution of duties or activities relating to p olice or f ire protection unless the e mp l o y ee acted in reckless d isregard of the saf ety and well-being of any person not engaged i n crim inal a ctivity at the tim e of injury [ .] ¶23. Under the MTCA, “ im m u n i t y a p p l i e s t o a n o f

f i c e r a c t i ng in the scope of his

em ploy m ent unless it is d e term ined that he acted in reckless disregard of the saf ety of an individual not engaged in crim i nal activity .” Jackson , 200 So. 3d a t 1144-45 ( ¶10). In determ ining what a ction constitutes “reckless disregard,” we l ook to guidance f r o m the
suprem e court. I n Maye v. Pearl River C ounty , 7 58 So. 2d 391, 394 (¶19) (Miss. 1 999), the
suprem e court described reckles s d i s r e g a r d a s a “ c o n s c i ous indif

f erence” to the c onsequences of an action, alm ost evinci n g a “ w i l l i n gness that h arm should f ollow.” In t he m ore recent

case of Lewis , 153 So. 3d at 693 (¶5), the suprem e court explained that reckless disregard is
“m ore t han m ere negligence, but l ess than an intentional act.” (citation om itted). The Lewis

court f urther provided that “reckless disregard occurs when the c onduct involved evinced not only som e appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.” Id. ( internal quotation m arks om itted);

1 1s e e a l

s o Thomas ex rel. T

homas v. Miss. D ep’t of Pub. S afety , 882 So. 2d 789, 796 (¶2 0 ) (Miss. Ct. App. 2004) ( f

inding that a police of

f icer’s f ailure t o check t h e driver’s sobriety
f ailed to rise to t he level of reckless disregard and “that there was suf f icient evidence f

or the trial judge to hold that [ the of f i cer’s] om ission [ t o check f or sobriety ] d id not rise to the level of gross disregard f

or [ the decedent’s] saf

ety ”). 5 ¶24. W h en determ ining r eckless disregard f or purposes of def

e ating im m

unity relative to law-enf orcem ent duties u nder the MTCA, this Court applies a t otality -of -the-circum stances standard. Id. at (¶12). Upon review, we m ust utilize an objective s tandard when determ ining the nature of the of

f icers’ actions, keeping in m ind all the f actors t hey were conf

ronted with while a lso “taking i nto account the f act that t he of

f i cers m ust m a k e split-second decisions.” Id. ( citing City o

f Jackson v. Powell , 91 7 S o . 2 d 5 9 , 7 2 (¶47) (Miss. 2 005)). I n so doing, “this Court m

ust consider all of

the events that occurred.” Id. ¶25. The MDW FP a rgues that the record f ails to contain suf

f icient evidence to support the circuit court’s f

ollowing f

indings: (1) the of

f icers “appreciated a risk” that Bernius would
f lee; (2) Of

f icers Delcam

bre and Thrash knew, u nderstood, or realized an unreasonable risk

or c onsciously disregarded a known unreasonable risk; and (3) Bend 2 w as not a d angerous section of the river. See Lewis , 153 So. 3d a t 693 (¶5). The M DW FP f urther subm its that the circuit c o u r t e r r e d b y : (1) apply ing a negligence standard instead of the standard f or

5 A u n if o rm traf f ic citatio n m a y b e issu ed f o r reck l ess d riv in g . M iss. C o d e A n n . § 6 3 -3 -1 2 0 1 (R ev . 2 0 1 3 ); M iss. A t t’y G en . O p ., 1 9 9 2 W L 6 1 4 0 5 3 , G ro ss (Ju ly 1 5 , 1 9 9 2 ). 1 2determ ining reckless disregard; and (2) f ailing to f ind that Bernius’s unlawf ul actions were the intervening and superseding cause of the boating accident. ¶26. The record ref

lects that, at the bench trial, the c i r c u i t c o u r t h e a r d t estim ony f rom Of f icer Thrash; Of

f icer Delcam

bre; Bond, a conservation of f icer at the MDW FP who was called to the scene t o investigate the accident and B U I c h a r g e s; and Lord, a witness to the incident on the river. ¶27. At trial, O f

f icer T hrash testif

ied that h e was an e x p e r t i n boating saf ety and BUI enf orcem ent. However, Of

f icer Thrash adm itted tha t t h e i n c i d ent at issue on August 22, 2009, was the f

i rst tim e he had b een involved in a BUI stop and the f irst tim e t hat som eone suspected of

reckless boating had ever “run” f rom him while perf

orm ing a stop. ¶28. During cross-exam i nation, Of f icer Thrash adm itted that, as an MDW FP o f f i cer, he is obligated to stop any vessel h e reasonably suspects is being o perated by an individual who

m ay be phy s ically incapacitated and incapable of s a f ely o p e r a t ing the vessel. Mississippi Code Annotated section 59-21-83 (Rev. 2013) prevents the reckless or negligent operation of watercraf

t vessels on Mississippi waters and states:
No vessel shall b e operated within this state in a r eckless o r n egligent m anner or at a rate of speed g r e a t e r t han is reasonable a nd prudent u nder the t hen existing ci rcum stances o r when the operator is so phy sically or m entally incapacitated as to b e incapable of saf ely operating such v essel, or while the operator is u nder the inf

lu e n c e of intoxicating liquor o r narcotics, o r when such vessel is overloaded bey ond its reasonable carry ing capacity

. Of f icer Thrash t estif

ied that he was unable to enf orce s e c t i on 59-21-83 b ecause he never received the chance t o do so. Of f icer Thrash t estif

ied that he stopped Bernius because
1 3Bernius was operating his boat in a reckless m anner. Of f icer Thrash e x p l a i n e d , however, that he and Of

f icer Delcam

bre were unable to perf

orm a “com

plete stop” of Bernius prior to Bernius f leeing because “ I pulled u p [ be]side him , but [ with] the wave action and every thing I never could get up beside him to do a com

plete stop.” ¶29. R e g a r d i n g w h ether or not the of f icers possessed probable cause to s u s p e c t t h a t Bernius was operating the vesse l under t he inf luence o f alcohol or drugs, Of f i cer Thrash adm itted that, during the alleged stop, he did not ask B ernius o r his p assenger whether they had consum ed alcohol. Of f icer T hrash testif

i ed t hat he c ould n ot tell if Bernius’s speech was slurred b ecause he only heard Bernius say “ O k ay ” i n response to the com m and f or Bernius

to f ollow the o f

f icers to the straightaway

. Of f icer Thrash also testif

ied that, during the stop, Bernius “was s eated on his b oat and he appeared to have good p osture,” and he was never close enough to Bernius t o observe if his ey es were b loodshot. Of f i cer Thrash f

urther stated that Bernius exhibited no behavior anom alies suggesting t hat Bernius was n ot in com plete control of his f

aculties. Of

f icer Thrash adm itted that it would have been reckless of him to
not consider whether B ernius was under the inf luence of alcohol or drugs bef ore he allowed him t o continue to o perate h is boat. However, Of f i cer Thrash testif

ied that his in t e r a c t i on with B ernius during t he stop f ailed to give him reasonable suspicion that Bernius m ay have been under t he inf

luence. The record ref

lects that, when Of

f icer Thrash com m anded Bernius

to f ollow the of

f icers around the bend to t he straightaway to conduct the s top, Be rnius

rem ained in control of

his boat and f

ollowed the of

f i cers a short distance bef

ore f leeing.

1 4¶30. Of

f icer Delcam

bre testif ied that he worked at the MDW FP f or approxim ately

twenty

f ive y ears and was a n expert in boating s af ety a n d BUI enf

orcem e nt. O f

f icer Delcam

bre also testif i ed t hat, between the y e ars 2002 and 2009, he was involved in m ore than 100 stops f or boaters operating their vessels in a reckless m anner. ¶31. Of f icer Delcam

bre testif ied that, because of the b lindspot located in the bend where he and Of f icer Thrash stopped Bernius, he was not close enough to Bernius’s boat to be able

to assess Bernius’s m ental, phy sical, or sensory f aculties. Of

f icer Delcam

bre explained, “W e

never engaged [ Bernius] in slurred speech. I never engaged him in a conversation. I never engaged him

in any of that. My m ain objective at the point where we m a de contact was to get him out of the bend o f the river.” Of f icer Delcam

bre i n s t r u c t e d O f f icer Thrash to tell
B e rnius to f

ollow the of

f icers around the bend so t hey could saf ely question Berniu s regarding his excessive speeding and reckless operation of the boat. ¶32. At the conclusion o f the trial, the circuit court entered a n o r d e r o n J u n e 6, 2014, f inding t hat Of

f icers T hrash and D elcam

bre acted w ith reckless disregard of the saf ety and well-being of

Shane and Christopher. 6 ¶33. As stated, “[ a] circuit court judge s itting without a jury is af f orded the sam e def

erence

as a chancellor,” and we will not disturb a circuit court’s f in d i n gs f ollowing a bench trial

6 In its o rd er, th e circu it co u rt stated th at t h e issu e s b ef o re th e co u rt w ere (1 ) w h eth er th e o f f icers’ acts an d o m i ssio n s cau sed o r co n trib u t ed to th e accid en t, an d (2 ) w h eth er th o se acts o r o m issio n s co n stitu te r e ck less d isreg ard o f th e saf ety a n d w ell-b ein g o f S h an e an d C h risto p h er. 1 5where the f indings are supported by

substantial, credible, and reasonable evidence. Lewis , 153 So. 3d at 693 (¶ 4 )

. W e will reverse the circuit court’s f indings only upon a determ ination that the f

indings are m anif

estly wrong or clearly erroneous, o r t h e c ourt applied an erroneous legal standard. Id. Furtherm o re, it is b ey ond the power of this Court

to disturb the circuit court’s f indings regarding a determ ination of reckless disregard where those f i ndings are supported by

substantial evidence. I

d. (citing Richardson , 913 So. 2d at 978 (¶15)). In a bench trial, the trial judge sits as the trier of f act and “has the s ole authority
f or determ ining the credibility of the witnesses.” City of J ackson v. Lipsey , 8 34 So. 2d 687, 691 (¶14) (Miss. 2003). ¶34. Turning to review the circuit court’s f indings, the r ecord ref

lects t hat, in m aking its determ ination regarding whether the of f icers exhibited reckless disregard, the circuit court discussed section 59-21-83, wh i c h governs boating saf ety

. Section 59-21-83 provides in pertinent part:
No vessel s hall b e operated within this state in a r eckless o r n egligent m anner or at a rate of speed greater than i s r e a s o n able a nd prudent u nder the t hen exi sting circum stances o r when the operator is so phy sically or m entally incapacitated as to b e incapable of saf ely operating such vessel, or while the operator is u nder the inf

luence of intoxicating l i q u or o r narcotics, o r when such vessel is overloaded bey ond its reasonable carry ing capacity

. ¶35. The record ref

lects that the circuit c ourt took issue with the MDW FP of f i cers’ request f or Bernius to m ove his boat t o a straightaway f or s a f e t y purposes. The circuit court also discussed two M DW F P SOPs: SOP 04.01, which p r o v i d e s t h e guidelines f or m aking an arrest, and SOP 07/03, which concerns the guidelines f or enf orcing the BUI law. The circuit
1 6c o u r t f

o und that, although both Of f icers Thrash and Delcam

bre stated they were aware o f section 59-21-83 and the SOPs, they f ailed to com

ply with the SOPs. ¶36. SOP 04.01 provides in pertinent part:
For violations of l aws enf orced prim arily by [ M]DW FP,

. . . custodial arrests will be m ade only

f or the f ollowing violations: a) All Class 1 Gam e and Fish Violations; and b) Violations of

the Alcohol Boating Saf

ety Act; c) Narcotic[ ]s violations[ .]
For violations o f laws enf orced prim arily by [ M ]D W F P o t h e r t han those name d a b o v e , a citation should be issued [ at] the scene[ ,] and the def endant should not be detained f

u rther except in extraordinary circum stances. ¶37. In e xam ining SOP 04.01, t he circuit court f ound t hat the S OP provides that citations

are to be issued “ at t he scene, ” a n d i t “ does not provide that the of f icers m ay direct the of f ending operator to continue t o operate his vessel p rior to issuing a citation. Specif ically , it does not provide f

or directing an operator to m ove his vessel to another location.” ¶38. SOP 07/03 provides in pertinent part: [ I]t shall be part of the m i ssion of [ MDW F P] t o enf orce the laws of the U nited States and the State of Mississippi on the public waters under the jurisdiction of the State of Mississippi so as to protect all persons f rom injury and/or loss of lif e and to saf

eguard property [ .]

. . . . Once a v essel has been stopped, the Of f icer m ay then ascertain if there is f urther probable caus e t o s uspect that the operator of the vessel is under the inf luen c e of alcohol, drugs, or a controlled substance. Evidence to warrant proceeding to the screening/intoxication interview include:
1 71. Slurred speech;

2. Poor balance (not as convincing when on water due to wave action); 3. Bloodshot ey e s; and 4. Other behavioral anom alies that suggest the individual is not in com plete control of

his or her f

aculties.

. . . . If , in the Of f i cer’s best judgm ent, the subject display s outward signs of being under the inf

luence, the Of

f icer shall proceed to the screening interview.
In its order, the circuit court f o und that SOP 07/03 indicates that an of f icer “is required upon stopping a vessel to begin his ef f orts to establish probable cause f or BUI.” ¶39. The circuit c ourt r ecognized that both o f f icers conf irm ed they w ere f

am iliar with the SOPs, and the circuit c ourt acknowledged Of f icer T hrash’s testim ony that “[ t]he SOPs never

cam e into ef

f ect b e c a u s e t h e y never had the opportunity to put [ t he SOPs] i n e f f ect.” The circuit c ourt determ ined that “ this is so, h o w e v e r , only because the of f icers chose to m ake it so.” As a result, the circuit court held that “the of f icers did n ot c om

ply with the SOPs in this case.” The circuit c ourt f u rther determ ined that “it is also clear that the o f f icers gave no consideration to ensuring that Bernius did not continue t o recklessly operate his vessel during their trip down the river.” ¶40. The c i r c u i t c o u r t determ ined that, a f t er the of f icers perf orm ed their initial stop of Bernius f or recklessly operating his boat, t he of f icers then l acked authority to direct Bernius

1 8to m ove o ut of t he h azardous area on the river. 7 Precedent, however, ref lects t hat speeding

a n d r eckless-driving citations are treated signif icantly dif

f e rently f r om driving-under

- t h e inf luence arrests. ¶41. The circuit court also f ound that the of

f icers’ def e nse rested solely

on their position that their boats and Bernius’s b o a t w e r e s topped in a d angerous bend of the river and blocking a portion of the river, and that the of f icers wanted t o m o ve the boats around the bend and down river to a dif f erent point in the straightaway bef ore proceeding to determ ine why Bernius had been reckless and speeding. The circuit court acknowledged the of f icers’
argum ent that this was a reasonable and necessary judgm e nt on their part, and not reckless disregard. However, t he circuit c ourt held that “the of f icers’ well-rehearsed m antra of Bend
2 being a blind, dangerous curve is not supported by evidence in the record.” The c i r c u i t
court explained tha t o n l y Of f icers Thrash and D elcam bre testif ied a s to the bend’s dangerousness. The circuit court stated that the photos of the bend adm itted into evidence “do not lend them selves to any real assessm ent that [ B]end 2 is a blind curve or dangerous curve,” and t he c o u r t pointed to Of f i cer Delcam

bre’s testim ony that n o warning signs appeared at Bend 2 concerning any danger or hazard. ¶42. The circuit court f ound the f

acts of Brister, 838 So. 2d at 281 (¶23), to b e sim ilar to the case at hand. I n Brister , the s uprem e court f ound the f act that the of

f icers in that case did

not intend an accident to occur was “of no concern,” and it opined that t he of f icers exhibited

7 S ee M iss. C o d e A n n . § 5 9 -2 1 -8 3

. 1 9“ c o n scious indif f erence knowing they had not com p lied with

. . . the existing governi n g policy of t h e p o l i c e d e p artm ent at that tim e.” Id. The suprem e court explained that, “[ w]ithout adhering to that policy , the of f icers should have reasonably e xpected the possibility of adverse c onsequences[ ,] includin g a f atal accident[ ;] thus plaintif f s clearly proved reckless disregard to the general public saf e t y . ” I d. However, B rister addresses a

case of high-speed pursuit only and does not address an of f i cer’s discretion to conduct a stop in a saf e area that does not obstruct traf f ic. ¶43. Mississippi precedent establishes that a v iolation of a SOP does not a l o n e e stablish reckless disregard. C ity of Jackson v. Presl e y , 4 0 S o . 3d 520, 524 (¶16) (Miss. 2010). Rather, reckless disregard constitutes “ m ore than m e r e n egligence, but less than an intentional act,” and m

u st be shown by c onduct that evinces “ n ot only s om e appreciation of the unreasonable risk inv o lved, but a lso a d eliberate disregard of that risk and the high probability

of harm involved.” Jackson , 200 So. 3d at 1145 (¶11). ¶44. In Thomas , this Court exam ine d a c a s e w h e re an intoxicated d river was issued a speeding ticket b ut the police of f i cer f ailed to check the driver’s sobriety during the traf

f ic stop. Thomas , 882 So. 2d at 791 ( ¶3). The driver l ater wrecked his vehicle, resulting in the death of his son, who was a passenger in the car. Id. a t (¶4). I n r e v iewing the case, this
Court f ound t h e c ircuit c ourt applied a reckless-disregard standa r d under the MTCA f or im m unity f or liability f

or the Mississippi Departm ent of Public Saf ety (MDPS) and its of

f icer who issued the speeding t icket but f ailed to check the driver’s sobriety

. Id. at 793 (¶14).

2 0This Court af f irm ed t he circuit court’s judgm ent that the of f icer’s f ai l ure to check the driver’s sobriety f

a iled to rise to the level of reckless disregard, and we explained “that there

was suf f icient evidence f

or the trial judge to hold that [ the of f icer’s] om ission [ to check f or sobriety ] did not rise to the level of gross disregard f

or [ the decedent’s] saf

ety .” I d. at 796 (¶20). See also Miss. Code Ann. § 11-46-9(1)(c) (discussing reckless disregard). ¶45. The Thomas court distinguished its f acts f rom those in Turner v. City of Ruleville , 735
So. 2d 226, 230 (¶21) ( Miss. 1999), explaining that, “[ i]n Turner , the court f ound reckless disregard on the part of a police of f icer who a llowed a visibly intoxicated driver to continue driving.” Id. at 797 (¶23). The Thoma s c o u rt held that, in the case bef ore it, “it was not obvious

. . . that [ the driver] was i ntoxicated” based on the MDPS of f icer’s observations of the driver during t he traf

f ic stop. Id. The Thomas court ultim ately determ ined t hat “[ t]here is no e v idence that [ the driver] w as visibly i ntoxicated while he was in [ the MDPS of f icer’s] presence.” Id. ¶46. In Bradley v. McAllister , 929 So. 2d 3 77, 3 80 (¶12) (Miss. Ct. App. 2006), this Court acknowledged that, in cases where “of f icers were held to have acted in reckless disregard of the saf ety of others[ ,]

. . . [ t ]he c om m on thread

. . . is that the c onduct involved evinced not only som e appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high p robability of harm involved.” (internal quotation m arks om itted) (citing Lipsey , 834 So. 2d at 693 (¶21)). ¶47. In t he case bef

ore us, the circuit court f

ound that t he of

f i c e r s ’ c o nduct violated the

2 1applicable SOP, and t hus, the c ourt held that the of f icers’ violation of this SOP by requesting that Bernius f

ollow them to a straightaway and out o f the hazardous area of the river supported a f

inding o f reckless d isregard. However, a review of SOP 0 4.01 ref lects no provision prohibiting of

f icers f rom requesting a boater pull to a saf e area to conduct a traf

f ic stop. 8 Furtherm ore, we f i nd that the v iolation of t his SOP f ails to necessar i l y e s t a b l i sh reckless disregard by

the of f icers. ¶48. The r ecord ref

lec t s t h at the Tchoutacabouf f a River constituted a public Mississippi waterway

. 9 In the context o f probable cause and traf f ic stops, M ississippi precedent ref lects that “the decision to s top an autom obile i s reasonable where the police h ave probable cause
to believe that a traf

f ic v iolation has occurred.” Adams v. City of Booneville , 910 So. 2d 720,
723 (¶10) (Miss. Ct. App. 2 005) (citing Henderson v. S tate , 878 So. 2d 246, 247 (¶8) (Miss.

8 S O P 0 4 .0 1 p ro v id es in p ertin en t p art:
F o r v io latio n s o f law s en f o rced p rim arily b y [ M ] D WF P , . . . c u s to d ial arrests w i ll b e m ad e o n ly

f o r th e f o llo w in g v i o l atio n s: a) A l l C lass 1 G am e an d F ish V io latio n s; an d b ) V io l atio n s o f

th e A lco h o l B o atin g S af ety A ct[ ;] c) N a rco tic[ ] s v i o latio n s[ .]
F o r v io latio n s o f l a w s en f o rced p rim arily b y [ M ] D WF P o th er th an th o se n am ed ab o v e, a citatio n sh o u ld b e issu ed [ at] t h e scen e[ ,] an d th e d ef en d an t sh o u ld n o t b e d e tain e d f

u rth er ex cep t in ex trao r d in ary circu m stan ces.

9 S ee M iss. C o d e A n n . § 1 -3 -3 1 (d ef i n i n g n av ig ab le w aters); M iss. C o d e A n n . § 5 1 -1

- 4 ( d i scu s sin g th e u se o f p u b lic w a terw ay s); M iss. C o d e A n n . § 5 9 -2 3

- 3 (e) (d ef in in g p u b lic w a ters). 2 2Ct. App. 2004)). 10 Clearly , t he MDW F P possessed both the a uthority to regulate the boating

t r a f f ic on the Tchoutacabouf f a River and the discretion t o do s o i n a saf e m anner. Disobey ing an of

f icer’s direction to p ull over is a violation of t he law. See M iss. C ode Ann. § 9 7-9-72 (Rev. 2014); s ee also Victor W

. Carm ody , K evin T

. Stewart & Lance O. Mixon, Mississippi DUI Law and Practice § 13:1 (2012). The United States Suprem e C ourt has held that an of f icer who lawf

ully stops an autom obile f or a traf f ic violation has the right to order the d river to step o ut of the autom obile. Pennsylvania v. Mimms , 434 U.S. 106, 111 (1977). The Court expla i n ed that, “[ w]hat is at m ost a m ere inconvenience[ ,]” such as ordering a driver to exit his vehicle, “cannot prevail when balanced a gainst legitim a te concerns f or the of f icer’s saf ety .” Id. 11 ¶49. In apply ing the law applicable t o traf f ic stops to the instant case, due to public interest in the of f icers’ saf ety w hen conducting a stop, we f ind that t he of

f icers here possessed the discretion to request that Bernius pull out of the hazardous and high-traf f ic area of the river. Theref ore, af ter reviewing the record, and keeping in m ind our standard of review, we f ind the circuit court erroneously applied the legal standard f or r eckless disregard to t his case. See Thomas , 882 So. 2 d at 796 (¶20). The e v i d e n c e f a i l ed t o show that the of

f icers’ conduct

10 T erry v. O h io , 3 9 2 U .S . 1 (1 9 6 8 ).

11 T h e S u p rem e C o u r

t h as b alan ced th e law -en f o rcem en t i n t erest i n h av i n g th e d riv er ex it th e v eh icle ag ain st th e i n terest o f t h e d r i v er’s p riv acy . T w o p u b lic-in terest co n cern s su p p o rted th e ex it o rd er: (1 ) t h e o f f icer’s saf ety in av o id in g v io len t co n f ro n tatio n s p o ssib le in an y traf

f ic sto p , an d (2 ) m in im izin g th e h azard o u s a c cid en tal in j u r y f ro m p assin g traf

f ic. S ee M a ryla n d v. Wilso n , 5 1 9 U .S

. 4 0 8 , 4 1 3

- 1 4 (1 9 9 7 ); M im m s , 4 3 4 U

. S

. at 1 1 1 ; see g en era lly O h io v. R o b in ette , 5 1 9 U .S . 3 3 , 3 9 -4 0 (1 9 9 6 ). 2 3“evinced not only som e appreciation of the unreasonable risk involved, but also a deliberate

disregard of

that risk and the high probability of h arm i nvolved.” See Bradley , 929 So. 2d

at 3 80 (¶12). As a r esult, we f i nd the circuit court’s judgm ent lacks credible and s u bstantial evidentiary support. W e theref o re reverse t he circuit court and render j udgm ent in f avor of the MDW FP. ¶50. T H E J U D G M E N T O F T H E H A RRISON COUNTY C I R C U I T C O U R T , SECOND JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES. IRVING AND GRIFFIS, P.JJ., FAIR, WILSON AND G R E E N LEE, JJ., C O N C UR. BARNES, J., C ONCURS IN PART AND IN T HE RESULT WITHOUT SEPARATE OPINION. LEE, C.J., DISSENTS WITH SEPARAT E WRITTEN OPINION, JOINED BY I SHEE AND W ESTBROOKS, JJ. WESTBROOKS, J., D I S S E N T S W I T H S E P A R A T E W R I T T E N O P I N I O N , J O I N E D BY LEE, C . J . ; I S H E E , J., JOINS IN PART. LEE, C.J., DISSENTING: ¶51. I join in Judge W estbrooks’s d issent, but I write separately to em phasize that it is o ur standard of review t hat com pels m e to do so. “W h en reviewing the circuit court’s f act-based
f indings, we only exam ine w hether t h e c ircuit court abused its discretion and whether the record contained s ubstantial credible e vidence to support the decision.” Booth v. W illiams , 200 So. 3d 1053, 1061 (¶26) (Miss. Ct. App. 2016). W h ile the particular f acts of this case

a r e s u c h that I m ay have decided it dif f erently , o ur l aw precludes m e f rom doing so. Our standard of review dictates that “we m ust af f irm the [ circuit court’s] decision, regardless of what a ny o f us individually m ight have ruled had we been the judge, unless there is a def inite and f irm conviction that the court below com m itted clear error.” Ferguson v. Univ. of Miss.
2 4Med. Ctr ., 179 S o. 3d 1060, 1 064 (¶17) (Miss. 2015) (internal quotation m arks om itted ).

Af ter reviewing the r e cord, I c annot agree with the m a j ority that the c ircuit court abused its discretion or that t here was not substantial credible evidence t o support its f indings. As such, I would af

f irm the judgm ent of

the circuit court and thus, respectf ully dissent. ISHEE AND WESTBROOKS, JJ., JOIN THIS OPINION. WESTBROOKS, J., DISSENTING: ¶52. I a m o f t h e o p i n i o n t h a t t here is substantial, credible, and reasonable e vidence to support the trial court’s f

inding of reckless disregard. Theref ore, I respectf

u lly dissent.
DISCUSSION ¶53. MDW FP Of

f icers Michael Thrash and Barry Delcam bre 1 2 witnessed a boat traveling

on the T choutacabouf

f a River speeding and operating i n a reckless and u n c ontrollable

m anner. There w a s t estim ony p resented that t he of f icers saw Bernius being “propped up” ( b a c k to back) by a passenger while Bernius was operating the boat. The o f f icers stopped Bernius i n Bend 2, which is a part of the river the of f icers conten d e d i s a dangerous area. T h e o f f icers did not inquire whether B ernius was able to o perate his boat at this tim e. Instead, Of

f icer Thrash instructed Bernius to m ove to a straightaway down t he river. Of f icer

12 A t th e tim e o f t h e crash , O f f icer T h r ash h ad b e en em

p lo y e d b y M D WF P f

o r j u st o v er tw o an d a h a lf y ears. H e receiv ed h is B U I t rain in g ro u g h ly t w o m o n th s p rio r to th e accid e n t

. A cco rd i n g to testim o n y , th is sto p w as th e f i rst t im e h e h ad ev er b een in v o lv ed in a B U I sto p o r in v estig a t i o n . O f f icer D elcam

b re h ad b een e m

p lo y ed b y th e M D WF P f o r tw en ty -tw o y ears at th e tim e o f th e accid e n t. H e h ad b e en in v o lv ed w i th o v er o n e h u n d r ed sto p s f o r reck less o p eratio n o f

a v essel. 2 5Delcam

bre proceeded down the river ahead of Of f icer Thrash, and Bernuis was ordered to
f ollow Of f i c e r Thrash. According to Of f icer Delcam

bre’s testim ony , they were going to

m ove about one hundred f if ty y ards down the river to f urther talk to Bernius. At this tim e, both of f icers were in f

ront of Bernius. ¶54. B e r nius f

ollowed the of

f icers out of Bend 2, th e n t u r n e d h i s b o a t a r o u n d a n d recklessly sped of f in the o pposite direction. John Joachim , a witness of the accident, was traveling down the r iver and observed Bernius recklessly s p eeding on the wrong side of the river, t raveling away f

rom the of

f i c e r s . Joachim testif

ied he had to m aneuver his boat to avoid a collision with Bernius. ¶55. A f

ew m o m ents later, Bernius crashed i nto a boat operated by C hristopher W ebb. It is unclear how f

ar away Bernius t raveled away f rom the of

f icers; however, the o f

f icers did

n o t witness the crash. Christopher was killed in the crash, and Shane W ebb a n d K a i l e r Harper, passengers on Christopher’s boat, were injured. B e r n ius and a passenger on Bernius’s boat, Dexter Bouie, were thrown into the water. Neither Bernius nor Bouie was seriously injured. The W ebbs 1 3 f iled suit against the MDW FP under the MTCA. The W ebbs

1 3 C a n d ace Web b , leg al g u ard ian f o r S h an e W eb b , an d T h o m as H arp er, l e g a l g u ard ian o f

K alier Web b f

iled su its ag ain s t M D WF P ch arg in g th at th e o f f icers acted w ith reck less d isreg ard f

o r th e saf ety o f S h an e an d K ailer. T h e se cases w ere co n so l id ated ag ain st M D W F P

. K ath leen Web b , o n b eh alf o f th e w ro n g f u l-d eath b en ef

ici a r i e s o f C h risto p h er Web b , b ro u g h t su it ag ain st M D WF P , B ern i u s , a n d V icto r H arrin g to n (leg al o w n er o f th e b o at o p erated b y B ern iu s). T h e claim s w ere h eard p u rsu an t to th e M ississip p i T o rts C laim s A c t (M T C A ). A s a resu lt, all t h ree cases w ere co n so lid ated ag ain st M D WF P

. N o d am ag es w e re so u g h t o n K ailer’s b eh alf

. T h eref o re , t h i s a p p eal d iscu sses t h e case o n b eh alf o f C h risto p h er Web b an d S h an e Web b (“Web b s”). 2 6asserted the of f icers acted with reckless disregard f or the saf ety of others. ¶56. The trial court held that the of f i cers’ conduct i n directing Bernius out of the bend was i n r e c k l e s s disregard f

o r the saf ety of the public. I agree. The m ajority opines tha t t h e of f icers’ deviation f

rom the MDW FP SOPs (standard operating procedures) did not am ount
to t he deliberate disregard f o r t h e s a f e ty of others. W e do not believe that deviating f rom standard procedure alone i s dispositive of the issue of reckless d isregard. However, here it is one of the f actors t he trial court considered alongside the totality of the c i rcum stances to render a f i nding of reckless disregard. The trial court determ ined that “the parties h ave cited

num erous cases f

rom the appellate courts of Mississippi.” “A review of t hose cases clearly reveals t h a t , while there are guidelines f or a pply ing t he reckless disregard standard, the ultim ate decision concerning recklessness is very m uch f act-driven, hence the totality of the circum stances requirem e nt.” I agree with the trial court’s f i ndings. ¶57. “Based o n o u r s tandard of review, the circuit judge’s f indings are saf

e on appeal if they are s upported by substantial, credib l e , a n d r easonable evidence.” City o f Jackson v. Brister , 838 So. 2d 274, 278-79 (¶19) (Miss. 2003). “Furtherm ore, in a bench trial such as the case at b a r , w h e n t h e t r i al judge sits as the f inder of f act, he has the s ole authority f or determ ining the credibility of w itnesses.” Id

. ( citations o mitted). I f i nd t he evidence supports a f

inding that t he o f

f icers acted in reckless disregard f or public saf

e t y , because they did not conduct the stop or control Bernius p roperly

. I n Brister , t he court upheld a t rial
court’s f inding o f reckless disregard involving two police of f icers in pursuit of a v ehicle. Id

.

2 7at 281 (¶24). A driver was killed as a result of the pursuit. Id

. at 276 (¶1). The c ourt held:

Thus, the f

act here that the of

f i cers did not intend that a f atal accident would result a s a direct consequence of their h igh s peed chase in violation of Jackson Police Departm e nt existing written policy is of no concern. B rister need only show that the of

f icer actions rose to t h e l e v e l of recklessness. Here, it is suf f icient t hat Brister has shown, and t he trial judge s o f o und, that the o f

f icers initiated a h igh s peed chase with conscious indifference knowing t hey had not com plied with Order 600–20 which was the existing governing policy of the police departm ent at that tim e. Id. a t 2 81 (¶23) (em

phasis added) (internal citations and q uotations m arks om itted). In this

case, both of

f icers allowed Bernius to continue to operate his boat without any restrictions,

even t hough it was a gainst t he SOP regarding reckless operation of the boat. Both of f icers adm itted that no distance of operation is perm i tted f or a r e c k less operator or a n operator under the i nf

luence of alcohol. A s a result of the of f icers’ conscious indif

f erence f or f ailure

to control Bernius af

t er they m ade contact with him , the trial court f ound their actions rose to the level of

reckless disregard, and I agree. ¶58. “Reckless disregard is m ore than m ere negligence, but less than an intentional act.” City of J ackson v. Law , 65 S o. 3d 821, 826 (¶17) (Miss. 2011) (citations om itted). “Reckless disregard occurs when the conduct i nvolved evinced not only s o m e a ppreciation of the

u n r e asonable risk i nvolved, but also a deliberate disregard of that risk a nd the high probability o f harm i nvolved.” I d. (internal quotation m arks om itted). B ernius was allowed

to operate his boat a t such a reckless speed af ter the stop w as m ade that n either of the of f icers actually w itnessed t he accident. This dem o nstrates the of f i c e r s ’ f a ilure t o c o ntrol Bernius af ter the s top. N either of the of f icers noticed that Bernius turned his boat around in the

2 8opposite direction and proceeded to speed again af ter the s t o p . M oreover, neither of the of f icers took the steps to ensure Bernius was not drunk while o perating the boat. The trial

court f ound that neither Of

f icer Thrash nor Of

f icer D e l cam

bre perf orm ed a ny investigation, obtained a ny inf

orm a tion, or m a d e any inf orm ed d ecision regarding Bernius’s continued operation of the boat. A ccording to the SOP m anual, the of f icers were required to determ ine the reason Bernius was operating h i s boat in a reckless m anner, i ssue a citation, and investigate to determ ine whether Bernius was i ntoxicated. However, the of f i cers chose not to f o llow those procedures in this case. ¶59. The SOP 07/03 provides, in part, as f ollows:

. . . . Once a v essel h a s been stopped, the Of f icer m ay then ascertain if there is f u r t her probable cause to s uspect that the operator of the vessel is under the inf luence o f alcohol, drugs, or a controlled substance. Evidence to warrant proceeding to the screening/intoxication interview include: 1. Slurred speech; 2. Poor balance (not as convincing when on water due to wave action); 3. Bloodshot ey e s; and
4. Other behavioral anom ali e s t hat suggest t he individual is not i n com plete control of his or her f

aculties. Of f icers Thrash and Delcam

bre testif i ed they did not witness any behavioral abnorm alities d e mo nstrating that Bernius was not in com plete control of his f

aculties or intoxic a t e d

. However, Joshua Lord, a witness at the t rial, testif ied O f f icer Delcam

bre t old another of

f icer

2 9that B ernius was stopped, b ecause he observed som eone p ropping Bernius up (back to back)

while he (Bernius) was operating the boat. Of f icer Delcam

bre disputes Lord’s te s t i mo ny regarding his statem ent. However, the t rial c o urt noted that Lord was an uninterested party in the m atter and did not appear t o have any reason to be untruthf ul. Of f icer T hrash testif

ied he noticed Bernuis’s wheelchair and colostom y bag af ter he a pproached Bernius on the boat. This Court recognizes that the presence of a wheelchair does not in and of itself suggest one is not control of his f

aculties. However, the presence of the wheelchair and colostom y bag coupled w ith being propped u p while recklessly ope r ating the boat should have given the of f icers e n ough heightened awareness t o c o n d u ct an investigation of som e kind in that

m om ent. Moreover, trial counsel a sked Of f icer Thrash if he had a heightened awareness that he had j ust stopped a boat driving at a r ecklessly high speed, and that the operator of the boat

m ay h a ve som e s ignif

icant phy s i cal issues. He replied in the af f irm ati v e . H owever, the of f icers chose neither to inquire nor control Bernius at that tim e. ¶60. Af ter the cras h , Bernius’s BAC was .25 percent – well above t he

. 08 percent legal lim it. W hile B e r n i u s ’ s B AC level was taken af ter the incident, the evidence calls into question the of

f i cers’ credibility regarding B ernuis’s dem eanor and reckless o peration of the boat bef ore the accident. Lord testif ied he detected a strong sm e l l of alcohol com ing f

rom Bernius, y et Bernius never u ttered a word to him

. T he evidence sh o ws t hat a m ere investigation or issuance of a citation af ter stopping the boat would have p ut the of f icers on notice of a potential BUI situation. This ty p e of investigation is required under suspicion of

3 0BUI according to the BUI handbook.

¶61. Of f icer Thrash also testif

ied he did not com e to a com p lete “ s top” because of wave action. However, at the tim e contact was m ade with Bernius, h is boat h ad halted and had not continued to m ove. Bernius’s b oat did not m ove again until Of f i cer T hrash ordered him to f ollow behind him

. Interestingly , Of f icer Thrash testif

i ed h e was close e n ou g h t o Bernius

to a sk Bernius to f

ollow him ; however, Of

f i cer Thrash did not at least ask Bernius if he had been drinking (as required by the BUI-stop m anual). M ore im portantly , both of

f icers adm itted they did not have the authority to m ake t heir own guidelines r egarding the stop, y et they deviated f

r o m the SOP. ¶62. In Turner v. C ity of Ruleville , 735 S o. 2d 226, 227 (¶2) ( Miss. 1999), T rista Turner

was i njured in a collision with a drunk driver. Turner f iled a com plaint in S unf

lower County Circuit Court against the drunk driver and the City of R uleville, “ a lleg[ ing] t hat although [ the of f icer ] k n e w t h a t [ a drunk driver] was intoxicated and incapable of driving his vehicle in

a saf e and prudent m anner, [ the] [ o]f f icer allowed [ the drunk driver] t o c o ntinue d r i v i n g .” Id

. “This, Turner c harged, constituted reckless disregard of the saf ety and well being of
Turner and others traveling o n the highway who were not engaged in crim inal activity at the tim e of i njury .” Id

. The court f ound t hat “because willf

ul and wanton are sy

nony m ous with reckless disregard[ ,] and because the o f f icer w a s a l leged to have acted willf ully and wantonly , the com

plaint did state a claim upon w hich relief c ould be granted.” Id

. at 230 (¶22). T h e f

a c t s in this c ase are som ewhat analogous to Turner

. By allowing Bernius to

3 1operate his b oat af ter the initial stop and f

ailure to control him , the of f icers dem onstrated a reckless disregard f

or the public’s saf

ety and the reckless disregard f or Bernius’s saf

ety

. ¶63. “The suprem e court has[ ,] however[ ,] analy z e d cases in which of

f i cers were held to have acted in reckless d isregard of the saf ety o f o t h e r s i n other contexts.” Bradley v. McAllister , 929 S o. 2d 377, 380 (¶12) (Miss. C t. App. 2006). “The com m on thread of these

ca s e s is that the conduct involved evinced not o nly som e appreciation of the u nreasonable risk involved, but also a deliberate disregard of that risk a n d the high p robab i lity of harm involved.” I

d

. (citation and quotation m arks om itted). In this case, both of f i cers adm itted they we r e o bligated to enf orce, without exception, the boating laws of Mississippi. The of f icers asserted t he area where they in i t i a l l y s topped B ernius w as dangerous, and they agreed to m ove to a saf

e r location f

or a stop. However, the trial court f ound that the of

f icers did not present any evidence that the bend was dangerous other than the i r o w n t e s t im ony . No “hazardous” or “ warning” signs w ere p osted d uring the tim e o f the crash a r o und Bend
2. No p ictures were of

f ered of Bend 2 f

rom the angle in which the o f f icers a rgued t heir boats

were com i ng f

rom . The photographs adm itted into e v idence showed a pier protruding into the river. However, O f

f i cer Thrash gave testim ony that he did not dock a t the p ier, because the three boats would have blocked traf f ic there. However, the trial court f o und no evidence

to support that testim ony . T he trial court f ound that surely other boaters would b e able to see three boats bef

ore com ing too close t o a v o i d contact. This conscious indif f e r ence of the of f icers to deviate f

rom the SOP m anual resulted in a f ailure-to-control situation. The trial

3 2court determ ined that, “It is a lso clear that the of f icers gave n o consideration to ensuring that
B e r nius did not continue to recklessly operate his vessel during t heir trip down t he ri v e r . ” The of f icers’ conduct evinced not only som e appreciation of the unreasonable risk involved (deviation f

r om SOP), bu t a l s o a deliberate d isregard o f that risk by allowing Bernius to continue operating the boat and not conducting a BUI investigation at the stop. ¶64. The m ajority applies the laws dealing with traf f ic stops t o this case. They opine that the of f icers p ossessed the discretion t o request Bernius to pull out of t he hazardous and hightraf f i c a r ea o f the river. I assert this is a case of “f ailure to control” during and af ter a stop.
I am o f t he opinion that a “stop” of a boat carries greater risk and requires m o re t hought f or the s af ety of the public. Theref ore, when the of

f i cers deviated f

rom the m anual, at a

m inim um , they should have taken f urther precaution by asking a sim ple question and gaining control o ver Bernius’s ab i lity t o operate his boat. The S OPs a nd laws regulating boating saf ety exist to ensure that accidents of this nature d o not occur. Theref o re, under the totality of the circum s tances, I opine the of f icers’ actions w ere s uch t hat a trial c o u r t could render a f inding of reckless disregard f

or the saf ety of others. ¶65. Respectf

ully , I dissent. LEE, C.J., J O I NS THIS OPINION; ISHEE, J., JOINS THIS O PINION IN PART.

3 3