IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00892-COA PEARL RIVER COUNTY, MISSISSIPPI APPELLANT

v. JANICE BETHEA, JAKE BENEFIELD, A MINOR, BY AND THROUGH HIS MOTHER AND NEX T FRIEND, CHRISTINE BENEFIELD, GABRIELLE BENEFIELD, A MINOR, BY AND THROUGH HER MOTHER AND NEX T FRIEND CHRISTINE BENEFIELD, AND CHRISTINE BENEFIELD, INDIVIDUALLY APPELLEES

DATE OF JUDGMENT: 06/03/2014 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM W HICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: EDW ARD C. TAYLOR KRISTI ROGERS BROW N CHRISTOPHER H. MURRAY ATTORNEYS FOR APPELLEES: JAMES K. DUKES SETH M. HUNTER NATURE OF THE CASE: CIVIL - PERSONAL INJURY TRIAL COURT DISPOSITION: FOUND THAT APPELLANT W AS LIABLE AND IMMUNITY UNDER THE MISSISSIPPI TORT CLAIMS ACT DID NOT ATTACH; AW A RDED APPELLEES DAMAGES DISPOSITION: AFFIRMED - 12/01/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., ISHEE, AND FAIR, JJ. ISHEE, J., FOR THE COURT: ¶1. In D ecem

ber 2010, while on duty with the Pearl River County Sherif f ’s Departm ent, Deputy Joshua J. E nglish was involved in a c ar c rash in Poplarville, Mississippi, due to brakeissues in English’s vehicle. The vehicle with which he c o l l i ded contained Janice Bethea,

Jake Benef

ield, Gabrielle Benef

i eld, and Christine Benef ield. A s a result of the crash, Bethea and the Benef

ields suf f ered personal-injury and property d am ages. They soon f iled suit in the Pearl River County C ircuit Court ag a i n s t E n g l i sh through h is e m ploy er, Pearl River C ounty

. At trial, P earl River County a sserted im m unity through the Mississippi Tort Claim s Act (MTCA). The t rial jud g e f o u n d t hat im m

unity did n ot attach to Pearl River County b ecause English acted in reckless disregard f o r the saf ety of others b y continuing to drive a vehicle that h a d been signaling that there w ere brake p roblem s f or several weeks and f ailing to properly resolve the brake issues. Aggrieved, Pearl River County appeals. Finding no error, we af

f irm

. S TATEMENT OF FACTS ¶2. On Decem

ber 13, 2010, English was driving h is patrol v ehicle i n P op l a r ville while

on assignm ent with the sherif f ’s departm ent. English had traveled the route m a ny tim es and

w a s f a m iliar with t he area. On an approach to a stop sign, English p ressed the vehicle’s brakes to initiate a stop. H owever, English t estif ied that his brakes f

ailed, c a using him to run through the stop sign. ¶3. Bethea and t he Benef ields w ere traveling in the area on that day

. They too approached

t h e sam e stop sign com ing f rom a perpendicular direction. They stopped, t hen continu e d through the intersection. As they passed through the intersection, English collided with their vehicle while traveling approxim ately f orty m iles per hour, causing substantial dam age. ¶4. The record ref

lects that the brake-warning light in English’s vehicle had been on f o r

2several weeks prior to the ac c i d e n t, indicating t hat there was a problem w ith the vehicle’s

braking s y stem

. Inm ates at t h e P e arl River County Jail who had autom o tive experience inspected the vehicle in a m echanic shop m aintained by Pearl River County

. The inm ates could not f

ind any thing wrong with the b rakes. N onethe l e s s , t h e brake-warning light

rem ained lit. The s herif

f ’ s d e p a r t me n t asserted that one of its policies requires “vehiclem aintenance f

orm s” to be com

pleted when w o r k i s done on patrol cars. H owever, the sherif f ’s departm ent was unable to locate or produce any vehicle-m aintenance f orm s f or the vehicle i n question, including any docum entation relating to the b rake-warning-light issue. Regardless, English continued to drive the vehicle with the brake-warning light on. ¶5. D e p u t y J u s tin Farm er testif ied that he checked the brakes on the vehicle af ter th e accident and that the brake pedal was depressed a ll the way to the f loor, indicating that the brakes were not f

unctioning properly f

ollowing t he accident. An accident r econstructionist who investigat e d t h e s cene n oted a lack of skid m a rks on the road f rom English’s vehicle. This, the reconstructionist t estif ied, showed that neither the regular brakes nor the em ergency brake in English’s vehicle was in use im m ediately prior to the collision. ¶6. During the bench trial o n t h e ma t t e r , B e thea and the Benef ields pointed out that English was not wearing a seatbelt and did not have a valid d river’s license at the tim e of the accident. They also emp h a s i z e d that English was issued a traf f ic citation f

ollowing the accident f or his f ailure t o y i eld the right of way . W hile th e s e f a ctors were m entioned in support of their argum ent that E nglish acted recklessly , the trial centered on w hether English acted i n reckless d i sregard f or the saf ety of others b y d r i v i n g his patrol vehicle with the

3brake-warning light on.

¶7. At trial, Bethea and the B enef ields a sserted that i t was im proper to a llow i nm ates to inspect the vehicle instead of a private m echanic. H ow e v e r , inf orm a t ion surrounding the inm ates’ work on t he v e h i c l e was lim ited. Although vehicle-m aintenance f orm s were required to be c om

pleted af ter w o r k o n patrol vehicles was perf orm ed, there was no docum entation at all on the subject vehicle with r egard to m aintenance. E i ther the f orm s had

not been com

pleted or the f

orm s had been destroy ed. The lack of inf orm ation regarding the vehicle’s inner w orkings continued with the vehicle’s black box. Although the sherif f ’s departm ent was aware of the litigation surrou n d i n g t h e accident, the black box was also destroy ed bef

ore any o ne associated with Bethea and the Benef i elds could inspect it. ¶8. Af ter the close of t he bench trial, t h e t r i a l j u d ge issued his ruling. In his order, the trial judge acknowledged that a f orm al request f

or the m aintenance records and the black box

was n ot m ade until well af ter suit had been f

iled. H owever, an e xpert r etained by Bethea and the Benef ields contacted t he s h erif

f ’s departm ent within a week of the incident a n d indicated his i ntent to download the black box’s data. Additionally , Bethea and the B enef ields tim ely f iled notice of their claim under the MTCA nine m o nths af ter the accident occurred. Hence, the trial judge determ ined that Pearl River County should have protected the black box and
any m a intenance records f

rom destruction. Accordingly , the trial judge applied a negative inf erence of spoliation of

evidence against Pearl River County

. ¶9. The trial judge went on to f ind tha t E n g l i s h had acted in reckless disregard f or the saf ety of others. The trial judge determ ined t hat because the brake-warning l ight in the patrol

4vehicle rem ained lit even a f ter having been inspected, English was on notice that som ething

was s till w rong w ith t he b raking sy stem

. As such, English “intentionally elected to continue

to drive and operate a m otor vehicle that was s ignaling to its operator that ‘som ething’ was wrong som ewhere in the vehicle’s braking sy stem

. ” F urtherm ore, t he trial judge noted that since English knew that his v ehicle had brake issues, he f ailed to act accordingly “by slowing down suf f iciently f a r enough aw a y f

r o m t h e known stop sign so as to allow his vehicle to

c o me t o a stop or to slow substantially down prior to entering i nto t he intersection.” Ultim a tely , t he trial judge f ound in f avor of B ethea and the Benef ields. Pearl River County appeals. STANDARD OF REVIEW ¶10. It is well settled that the f indings of a c i rcuit j udge, sitting without a jury , “are saf e on appeal where they are supported b y substantial, credible, and reasonable e vidence.” Mayor & Bd. of Aldermen, City of Ocean Springs v. Homebuilders Ass’n o f Miss. Inc. , 932 So. 2d 44, 48 (¶6) (Miss. 2006) (citation and quotation om i tted). This Court will n ot disturb the f indings of a chancellor w hen the f indings are supported by substantial evidence unless the chancellor was clearly erroneous, was m an i f e s t ly wrong, or applied an erroneous legal standard. City of

Jackson v
. Perry , 764 So. 2d 373, 3 76 ( ¶9) (Miss. 2000) (citation om itted).

DISCUSSION ¶11. O n a ppeal, Pearl R iver County asserts that the trial judge im proper l y f

o u n d t h a t English acted in r eckless disregard and tha t im m unity should h ave attached under the MTCA. Pearl River County also claim s that the trial judge erred by f inding a negative inf

erence of

5spoliation of evidence.
I. MTCA Im m u nity ¶12. Suits against a m

unicipality are brought under the MTCA. Miss. Code Ann. § 11-46-1

t o -23 (Rev. 2012 & S upp. 2015). In order f or a m unicipality to waive govern me n t a l im m unity f rom s uit, t he s tate a ctor in question or its em ploy ee m ust b e f ound to have “acted in reckless d isregard of t he s a f e t y and well-being of any person not engaged in crim inal activity at the tim e of injury .” Miss. C ode A nn. § 1 1-46-9(1)(c) (Supp. 2015). The Mississippi Suprem e Court has def i n ed “reckless disregard” when used in m otor-vehicle

cases as: [ T]he voluntary wrongf

u l doing b y [ a] m otorist of an im proper or w rongf

ul act, o r with k

nowledge of existing conditions, t he voluntary ref raining f rom doing a proper or prudent act when s u c h a n a c t o r f ailure to act evinces an e n t ire abandonm e nt of any care, and heedless i ndif f erence to results wh i c h m ay f ollow a nd the r e ckless taking o f [ a] chance of [ an] accident h a p p e ning without intent that any

occur. Maldonado v. Kelly , 768 So. 2d 906, 909 (¶8) (Miss. 2000) (citation om itted). ¶13. Here, the trial judge dete r mi n e d t h a t s everal f actors contributed to a f

inding that English acted in r eckless d isregard of the s af e ty o f others i n this case. A s stated earlier, English’s brake-warning light h ad been on f or sev e r a l w e eks p rior to t he accident. The record indicates that English took the vehicle to a m echanic shop m aintained b y Pearl River County w here inm ates with autom otive experience worked on v ehicles owned by Pearl River County

. English testif

ied t hat t he inm ates inspected the vehicle but c ould f ind nothing wrong with the brakes. Nonetheless , t h e b r a ke-warning light rem ained lit. E nglish continued driving the vehicle with t he b rake-warning light on until the subsequen t a c cident.

6Furtherm o re, the record ref lects that as English was nearing the stop sign in question, he was driving at a rate of f

orty m iles an hour and had not a t tem pted to slow the vehicle natu r a l ly prior to depressing t he brake pedal. The record f urther shows that the em ergency brake in the vehicle had not been utilized prior to im pact. ¶14. The trial judge noted all of these f actors i n h is f

inal order. The trial j udge additionally discussed the f

act t hat English h a d n o t b e e n wearing a seatbelt and d id n ot have a valid d r i v e r’s license at the tim e o f the accident. T he trial judge also m entioned th e t r a f f i c violation Engli s h r e c e ived as a r esult of h is running the stop sign. Pearl R iver County challenges the trial j udge’s consideration of these f actors in his f

inal o pinion. W e f

ail to see how these f

actors are relevant to the question of w hether or not English acted with reckless disregard f

or t h e saf ety of others. His f

ailure to wear a seatbelt and his continued driving f or several w eeks with a n expired license do n ot contribute to a showing that English was acting recklessly at the tim e of the accident or in the weeks l eading up to the accident. These were

m ere technical violations, which we do not f ind contributed to the accident. ¶15. Additionally , it is undisputed by both parties that English’s f ailure to y ield the right of way at the intersection was the result of brake f ailure. The vehicle’s brake issues are at the center of the a rgum ent over w h e t her reckless disregard was involved i n the accident. Indeed, the b u l k of the trial judge’s opinion f ocuses o n t he brake-warning-light issue – an issue which we also regard as pivotal. As such, w hile we see no probative value in the trial court’s consideration of t he a f orem entioned f

actors, we f

ind any error to be harm less at m ost. ¶16. W i th respect to the brake-warning-light issue, Pearl River County a sserts that the trial

7judge erred by f inding that a n i nspection of the vehicle’s brake sy stem by inm ates at Pearl River C ounty ’s m echanic s hop was im proper and that English knowingly drove h is vehicle

on public s treets with def

ective brakes. Specif

ically , the trial judge questioned the expertise and knowledge o f t he inm ates working on the vehicle and insisted that “[ patrol] vehicles be

m aintained with great diligence and by com p etent m echanics and technicians.” ¶17. W e acknowledge t hat it is com m on practice f or inm ates with particular skills to utilize those s kills while incarcerated. W e see no harm in all o w i n g i nm ates with k nowledge and experience in a

uto m echanics to perf

orm basic and routine m aintenance of v ehicles. Here, however, the problem in English’s vehicle was n ot routine. A problem in a vehicle’s braking
sy stem is a serious issue. This is particularly so when, as stated by th e trial judge, it is

c o m m o nplace “ f

or a police m otor vehicle to be involved in high[

- ]speed c hases o r o t h e r high[

- ]risk situations where it is critical to the saf ety and well being of

the m o tor[ -]vehicle operator and the innocent citizenry at large that these vehicle b e maintained w ith great diligence . . . .” ¶18. Even if the braking issue at hand were considered routine m aintenance and, theref ore, within t he sc o pe of work o f the inm ates, the f act t hat the brake-warning light r em ained on despite the inm ates’ insistence that there was not a b rake issue indicates that the problem was
not resolved. If t he i n ma t e s c o u l d not identif y why t he brake-warning light was on, the vehicle should have been sent to a m echanic’s shop em ploy ing e ither m ore h ighly sk i lled workers o r m o r e t e c h n i c a lly advanced equipm ent that c ould identif y the problem and im p lem ent a solution. T he vehicle should not have been released back into com m ission with

8the sy stem

continuing to indicate a brake problem

. ¶19. In that vein, English, being aware that the brake-warning light w a s s t i l l on in the vehicle during the weeks leading up to the accident, should not have continued driving the vehicle in a prof

essional c apacity

. As correctly stated by the trial j udge, i t is not uncom m on f or patrol ve h i c l e s t o becom e engaged in pursuits o r circum stances requiring high speeds. Hence, a patrol vehicle’s braking sy stem is of particular im portance. W e agree that it was reckless of Englis h to drive a patrol vehicle that he knew was signaling a problem with its brakes. ¶20. Additionally , while English was not involved in a high-speed venture at the tim e of the incident, he was, nonetheless, rapid l y a pproaching a stop s ign of which he was well aware and in a vehicle that continued to signal brake issues. As stated by the trial judge: [ A] reasonably p rudent person approaching a n intersection where he k n o w s there is a stop sign does not m aintain a speed o f [ f orty ] m iles per h our until the m om ent he arr i v e s a t t h e stop sign. A reasonably prudent person begins to slow down or start apply ing the brakes som e distance prior to reach i n g the point where the vehicle has to cease all f orward m ovem ent. ¶21. Pearl River County a ttacks t h e t r i a l j u dge’s use of the words “ reasonably prudent person” as an im

pro p e r s t a n d ard of care applied to English. W e agree that the words “reasonably prudent p erson” are u sually applied in general-negligence actions. However, in this case, the trial judge properly cited the r e c kless-disregard standard of care and consistently analy

zed the case under that elevated standard throughout the opinion. W e f ind that the trial judge’s use of t he words “reasonably prudent person” he r e w a s n o t ref lective of a l e g a l s t a n d a r d applied to the case. Rather, it would appear that the t rial judge sim ply

9used these words descriptively to em phasize a point. ¶22. W h ile w e would not h a v e u t i l i z e d t h e w ords “reasonably prudent person” in the subject analy sis, we do, however, f ollow the trial judge’s reasoning. English knew that his patrol vehicle was signaling to him that his brakes wer e ma l f unctioning in som e way . Knowing that f

act, he should not have been driving the vehicle. Even s e tting the brake-light issue aside, E nglish should have acted with m ore c aution when a pproaching the stop sign in question. The trial judge’s com m entary had m erit in th a t it was r eckless of English to approach the stop sign in question so quickly a n d without attem pting to naturally slow down the vehicle bef

ore apply ing t he brakes. This i s particula rly valid when f actoring in the vehicle’s brake issues. ¶23. As noted previously , a trial judge’s f indings will only be reversed when the trial judge

a pplied an e rroneous legal standard o r the f indings “are m anif

e stly wrong [ or ] c l e a r l y erroneous.” City of

Jackson , 7 64 So. 2d at 376 (¶9) (citation om itted). T he opinion of a trial judge sitting without a jury will b e upheld as long as it is “supported b y substantial, credible, and reasonable evidence.” Mayor & Bd. of Aldermen, City of Ocean Springs , 9 32 So. 2d at 48 (¶6) ( citation and quotation om itted). Wh e n considering the af orem entioned points

cum ulatively – the brak e - w a r n i n g light rem aining on even af ter inspection, English’s continued driving of t he v ehicle f or several weeks with the brake-warning light on, and English’s rapid approach to the stop sign in a vehicle with brake issues

– we sim p ly cannot f ind error in the trial j udge’s ruling. W e f ind that the r ecord conta i n s a mp l e evidence to support the trial judge’s f indings. This issue is without m erit.

1 0II. Spoliation of Evidence

¶24. W e have previously h eld that “[ w]hen evidence is lost o r d estroy ed by one party (the ‘spoliator’), thus hindering the other party ’s a bility to prove his case, a presum ption is raised that the m issing evidence would have been unf avorable to t he party responsible f or its loss.”
Y oung v. Univ. of Miss. Med. C tr. , 914 So. 2 d 1272, 1277 ( ¶ 1 9 ) (Miss. C t

. App. 2005) (quoting T

homas v. Isle of Capr i C asino , 781 S o. 2d 125, 133 (¶37) (Miss. 2001)). W e f urther stated t hat “[ a] f

i nding of spoliation m ay be supported b y intentional or negligent destruction of evidence by the spoliator.

. . . [ T]he p resum ption of unf

avorability created by a f inding of spoliation allows the f act-f inder to draw a general negative inf erence f rom the f act of spoliation.” Id . (em

phasis added and citations om itted). ¶25. Here, Pearl R iver County i ncorrectly a s serts that in order f or a negative inf

erence o f spoliation to be inf

erred the trial judge m

ust have f ound t hat the spoliator acted i ntentionally

. However, as s t ated above, negligent destruction o f evidence i s also grounds f or a f inding of spoliation. Pearl R iver County adm its that the vehicle’s m a i ntenance r ecords and black box

were destroy e d b e f

ore the expert hired by Bethea and the Benef ields could exam ine them

. The suprem e court addressed n egligent spoliation o f e vidence in Thomas , 781 S o. 2d at 133 (¶38), where evidence was destroy ed by the Isle o f C apri Casino but the casino m aintained that it was unexplainable and not deliberate. The suprem e court stated: The Isle [ of C apri Casino]

. . . argue[ s] t hat the negative presum ption r aised by spoliation “ma y o n l y be drawn when the destruction is unexplained or d e l i berate.” However, the inf orm ation [ in question] w as not lost by [ a n ] a c t of God or in a f

ire, but was destroy ed by the a ctions of t he Isle [ o f Capri Casino] . . . when . . . [ it] was aware of the pending dispute.

1 1Id

. The s a m e is true here. The m aintenance records and the b lack box were destroy ed by

Pearl River C ounty – though perhaps m erely by negligence – with knowledge of the pending dispute. ¶26. Pearl River County , however, argues t hat B ethea and the Benef ields did not m ake a f orm al request to r eview the m aintenance records and b lack box until well af t er the lawsuit had been f

iled. The trial judge acknowledged t his f act, but f ound “that the evidence supports

a f i nding that [ Pearl R i ver County was] m o re than aware that [ Bethea and the Benef ields] had attorney s involved and [ were] investigating t he vehicle accident bef ore the v ehicle, the

m aintenance records, and the black box were d estroy ed o r d isposed of .” Nonetheless, Pearl River C o u n t y a s s e rts that the trial judge im properly considered t he testim ony of an expert witness who indicated t hat attorney s f or both parties had discussed the need f or him to review

t h e m a intenance records and the black box, t hereby inf orm ing Pearl River C oun t y mo n t h s prior to the f

o r ma l n o tice. Pearl River County claim s that the testim ony in question was inadm issible hearsay

. ¶27. W h ether or not the testim ony at hand was perm issibl e i s mo o t. T here w as am ple evidence outside of the testim o ny in question t hat supports B ethea a n d the Benef ields’ position that Pearl River County was aware o f p ending litigation and s hould not have allowed the m aintenance records and the black box to be destroy ed. The expert witness also testif ied that he cam e to the scene of the accident seven day s af ter the accident occurred and viewed the autom obiles involved, including English’s patrol vehicle. W h ile t here, he testif ied that he spoke with a representative of the sherif f ’s departm e nt about downloadin g t h e i n form ation

1 2contained in the black box. Approxim ately nine m onths af

ter the accident, Bethea and the Benef ields placed Pearl River County on f orm al notice that they were f iling suit pursuant to the MTCA. Six m onths af ter that, the instant suit was f i l e d , a n d P earl River County was served with process. ¶28. As s t a t e d p r e v i ously , a s long as a trial judge’s opinion f ollowing a bench trial is supported by s ubstantial evidence, we will not overturn it. W e agree that Pearl River County

was suf f iciently aware t hat Bethea and the Benef ields were p ursuing litigation in this m atter. The e xpert witness’s t estim ony r egarding the attorney s’ conversations is m erely one lay er in the stack of evidence showing that Pearl R iver County was on notice such that it should have preserved all inf

orm ation relevant to the accident t hat was in its possession. This a rgum ent is m e ritless. ¶29. Finally , Pearl River County argues t hat the trial judge f ailed t o a rticulate i n his order what evidence would have b een f ound in t h e m aintenance records and t he b lack box that would have been unf

avorable to Pearl River County

. W e f ind this argum ent to be baseless.
In his order, the trial judge sum m arized his opinion on why the i nf orm ation contained in the

m aintenance records and the black box would have been probative as f ollows: First, the brake[

- ]m aintenance light had been on f or several weeks. S econd, there is no r ecord of m aintenance t o correct the f aulty brakes. Third, t he black box[ ,] w hich could have p rovided critical inf orm ation about t he brakes on the subject car and accident, along w ith i nf orm ation about t he def

endant’s actions in [ the] seconds preceding [ the] im pact, was destroy ed or d isposed of by [ Pearl River C ounty .]

. . . [ T]he n egative presum ption of s p oliation

. . . is warranted due t o t h e destruction o r disposition of item s by [ P earl River County ] which m ay have provided key

inf orm ation supporting [ its] claim s. ¶30. We f

i n d t h i s t o be a suf

f icient explanation o f why inf orm a tion c ontained i n t h e

1 3m aintenance records a nd black box would have been valuable. It is without question that the

m aintenance records would have shown whether or n o t the vehicle was inspected by the inm ates in an ef

f ort to resolve the brake-light issue a n d, if i nspected, what actions w ere taken

to reso l v e t he brake-light issue including what, i n particular, the inm ates f o und when investigating the vehicle’s b r ake issues. W i th regard to the bla c k box, B e thea and the Benef ields’ expert witness at trial testif ied t hat the black box would have g iven inf orm ation f o r t w e n t y s econds bef

ore the collision and f

ive seconds af

ter t he collision on topics including, but n o t l i mi t e d to, braking, details on the application of the brakes, speed, accelerator-pedal percentage, e ngine-th r o t t l e p e r c e n t a g e , a

n d A B S ( a n t i

- l o c k b r a k i n g s y s t e m ) activation. Such inf

orm a tion would have painted a clear picture to the trial judge as to the state of the vehicle leading up to the collision, as well as the m a nner in which English was driving leading up to the collision. ¶31. G i v e n t h e i n f

o rm ation b ef

ore us, we sim

p ly cannot f

ind error in the t rial judge’s determ ination that t he case warranted a negative inf erence of spoliation of evidence against Pearl River County . This issue is also without m erit. ¶32. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS AFFIRMED. A LL COSTS OF THIS APPEAL ARE ASSESSED T O THE APPELLANT.
L E E , C . J . , I R

V I N G A N D G R I F F I S , P . J J . , B A R N E S , C A R

L T ON, FAIR, JAME S AND WILSON, JJ., CONCUR. MAX WELL, J., NOT PARTICIPATING.

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