IN THE SUPREME COURT OF MISSISSIPPI
N O. 2015-CT-00578-SCT MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES, AND PARKS

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

ON WRIT OF CERTIORARI DATE OF JUDGMENT: 12/02/2014 TRIAL JUDGE: HON. LISA P. DODSON TRIAL COURT ATTORNEYS: JOE SAM OW EN STEPHEN G. PERESICH BRETT K. W ILLIAMS THOMAS M. MATTHEW S, III COURT FROM W HICH APPEALED: CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY ATTORNEYS FOR APPELLANT: STEPHEN G. PERESICH JOHANNA M. McMULLAN ATTORNEYS FOR APPELLEES: JOE SAM OW EN ROBERT P. MYERS, JR. NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY IS REINSTATED AND AFFIRMED - 03/15/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. KITCHENS, PRESIDING JUSTICE, FOR THE COURT:¶1. O n A u g u s t 2 2 , 2 0 0 9 , two of f icers with the Mississippi Departm ent o f W ildl i f e , Fisheries, and Parks (MDW F P) observed Donald Bernius speeding on the T choutacabouf f a River in Harrison County , Mississippi. Prior to ef f ecting a s top, the of

f icers ordered Bernius

to m ove his boat t o what they contended was a saf er location on the river; but Bernius f led
in the opposite direction. Bernius’s vessel c ollided with a boat operated by Christopher
W e bb. The collision killed W ebb and s e r i o usly injured Shane W ebb. Two hours af ter the collision, Bernius’s blood-alcohol content was .25 percent. Kathleen W ebb, individually and

on behalf of Christ o p h e r W ebb’s wrongf ul-death benef

iciaries, and C andace W ebb, as Shane
W e bb’s guardian, f

iled a lawsuit pu r s u a n t t o the Mississippi Tort Claim s Act (MTCA) against the MDW FP, arguing that the of f icers had acted in reckless disregard f or the saf ety

o f o thers. The Circuit Court o f the Second Judicial District of Harrison County , f ollow i n g

a bench trial, agreed and r uled in f a vor of the W ebbs. The Mississippi Court of Appeals reversed and rendered a j udgm ent in f avor of the MDW FP, f

inding that the evidence did not dem onstrate that the of

f icers had acted w ith r eckless disregard. W e granted Candace W ebb’s Petition f or W rit of Certiorari

. Finding that the Mississippi Court of Appeals m isapplied the applicable standa r d o f review a nd substituted its j udgm ent f or that of the trial c ourt, we

reverse the judgm ent of that court and reinstate and af f i rm the judgm ent of the Circuit Court of the Second Judicial District of Harrison County

. FACTS AND PROCEDURAL HISTORY ¶2. The f

ollowing recitation of the f acts is repeated f

rom the decision of the Mississippi Court of Appeals:

2On August 22, 2009, MDW FP cons e r vation of f i cers Barry Delcam

bre and Michael Thrash witnessed Donald Bernius s p e e ding in a boat on the Tchoutacabouf

f a River. The of

f icers e ach n a v i g a

t e d t h eir separate p atrol boats into the ri ver to investigate and stop B ernius. Bernius saw the o f f icers and cam e to an initial stop in the m iddle of the river. According to the o f

f i c ers’ testim ony at trial, they recognized that their boats and Bernius’s b o a t w e re stopped in a “dangerous area” of the river. The of f icers t estif

ied that this particular area of the river, known as Bend 2 , h as blind spots where boaters heading f rom either direction cannot see other boaters approaching f

rom the opposite d irection. T he of f icers explained that, as a r esult of stopping a nd approaching Bernius, the three b oats were s i tuated in a position so as to o ccupy m ost of the width of the river, which, according to the of f icers, created an e m inent [ sic] hazard f or other b oaters. As a result, Of f icer Delcam

bre i nstructed Of

f icer Thrash to have B erniu s move to the nearby straightaway down the river to provide a s af er location f

or them to question Bernius. Of

f icer Delcam

bre proceeded ahead o f O f f icer Thrash and Bernius with the intention of blocking oncom ing traf f ic. Of f icer Thrash ordered Bernius to f ollow them out o f Bend 2 int o the st r aightaway , and Bernius agreed to com ply with the instructions. Of f i cer Thrash then proceeded to the straightaway af ter Of f icer D elcam

bre s o that Bernius could f

ollow him

. According to Of f i cer Thrash, B ernius f

ollowed him a s hort distance, and then Bernius abruptly turned his vessel 180 degrees and f led in the opposite d irection. Of f i cer Thrash then signaled to Of f i cer Delcam bre, and the of

f icers pursued Bernius.
At the s am e tim e, John Joachim was traveling down the river in his b oat i n the opposit e d i r e ction f

rom Bernius. Joachim provided in his s tatem ent that he observed Bernius speeding and recklessly driving on the wro n g s i de o f the river. As Bernius’s boat approached, Joachim had to use e v asive m aneuvers to avoid a collision with B e rnius. A f ter passing Joachim ’s b oat, B ernius collided with a boat operated by C hristopher [ W ebb]. The collision resulted in Christopher [ W ebb’s ] death and injuries to Shane [ W ebb], who was a passenger in Christopher [ W ebb’s] boat. Neither Of

f icer Delcam

b re nor Of

f icer Thrash witnessed the collision. Once the of f icers arrived a t 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 Medi c a l Center. Approxim ately two hou r s a f ter the accident, a blood sam ple was drawn f

r om B ernius, which indicated a .25 percent blood-alcohol concentration (BAC) level. Bernius later

3pled guilty to boating under the inf luence (BUI) and causing death and injury

. Bernius is currently serving a twenty -y ear sentence in pris o n . A s the record ref lects, prior t o the incident, Bernius was a paraplegic and wheelchair bound.
In c onnection with the boating accident, the Mississippi D epartm ent o f M arine Res o u r ces (MDMR) investigated Of f icer Delcam

bre’s and O f

f icer Thrash’s conduct. Af

ter interviewing Of

f icer D elcam

bre a n d l istening to an interview of [ Dexter] Bo u i e , t h e passenger in Bernius’s boat, the MDMR determ i ned that Of f icers Delcam

bre and Thrash “ a c t e d com pletely within the scope of their duties

. . . .” The MDMR concluded “that the only people responsible f or this b oating accident were the pe ople involved in the actual accident.” The W e bbs s u bsequently f

iled s uit against the MDW FP under the M T C A, claim ing that Of f icers Delcam

bre and Thrash acted wi t h reckless d isregard f or the saf ety o f others when they f

ailed to d etain Bernius and instructed him to m ove to a saf er location.
At a bench trial held on February 18 and 19, 2014, O f f icers Delcambre and Thrash testif

ied to their k

nowledge and u n d e r s t anding of the MDW FP’s Standard O peration Procedures (SOPs) f or handling BUI sit u a t i o ns. Both of f icers testif

ied that, i n their i n i tial c ontact with B ernius, his dem eanor and handling of his vessel, am ong other things, f ailed to i ndicate he was im paired. Of f icer Thrash specif

ically testif

ied that, at the tim e, h e had no r easonable suspicion to believe Bernius was intoxicated. Of f icers Delcam

bre and Thrash testif

ied that their f

irst priority during their initial contact with B ernius was to ensure the saf ety o f other boat ers and citizens on the river. O f

f i cer Delcam

bre explained, “On that particular day [ ,] due to the river traf

f ic and the f

luctuations of the t r a f

f i c com ing north and south up the r i v e r w h ere we encountered Bernius there in [ B]end [ 2], due to the nature of where w e [ were]

. . . I m a de the judgm ent to m o v e a r o u n d the bend f or the saf ety of the people and every

body involved on the river.”

. . . The circuit court ultim ately held that, “ c o nsidering the totality o f the circum stances and the applicable law, as well a s the adm issions of the o f f icers, the of f icers acted in this case w ith reckless disregard

. ”

. . . T h e circuit court explained: [ The of f icers] did not exercise any of the care or consideration [ that] they were required to d o in their dealings with Bernius. They clearly intended that Bernius continue to operate his b oat

4without a ny r e s t r i c t ions f rom them and without their h aving ma de any inquiries as to his reckless operation, s p eeding, phy sical a bilities, or use of alcoholic beverages. They “ intended to do the act that caused harm to com e to the [ p]laintif

f .”
T h e circuit court ultim ately rendered a judgm ent f o r the W ebbs. The c i r c u i t c ourt conducted a dam ages h earing on N ovem ber 5, 2014, and aw a r d e d dam ages in the am ount of $1,400,000 to the guardianship of Shane, and dam ages of $100,000 to K athleen, individually and on behalf of Christopher’s wrongf ul-death bene f

i c i a ries. Af

ter apply ing the MTCA’s statutory c ap on dam ages, the c ircuit court ultim ately e ntered a f inal j u d gm ent to the guardianship of Sha n e in the am ount of $466,666.67, and to Kathleen, individually and on beh a l f of Christopher’s wrongf ul-death benef

iciaries, in the am ount of

$33,333.33.
Miss. Dep’t of Wildlife, Fisheries, and Parks v. Webb , 2017 W L 1 396686, **2-4 (Miss. Ct. App. Apr. 18, 2017). ¶3. T h e M i s s i s s i p p i C o u r t of Appeals held that “ the circuit c ourt’s judgme n t l a c k s

c r e d i b l e a n d s u bstantial evidentiary support.” Id. a t *11. The court continued: “[ t]he evidence
f ailed t o show that the of f icers’ conduct ‘evin c e d not only som e a p preciation of the

unr e a s o n a b l e r i sk involved, but also a deliberate disregard of that h igh r isk and the high probability of harm involved.’” Id. (quoting Bradley v . McAll i s t er , 929 So. 2d 377, 380 (Miss. Ct. App. 2006)).
STANDARD OF REVIEW ¶4. The applicable standard of review f ollows:
“A circuit court judge sitting without a j ury is af f orded the sam e d ef

erence as a c h ancellor.” City of Jackson v. Sandifer , 107 S o. 3d 978, 983 (Miss. 2013) (citing C ity of Jackson v. Powell , 917 So. 2d 59, 68 (Miss. 2 005)). This Court leaves undisturbed a c ircuit court’s f indings f o llowing a bench trial unless the f indings “are m anif

estly wrong, clearly e r r o n e ous, or an erroneous legal standard was applied.” Sandifer , 1 07 So. 3d at 983 (quoting Powell , 917 So. 2d at 68). The circuit court’s f indings “are s af

e on appeal w here they are

5supported by substantial, credible, and r easonable e vidence.” City of Jackson

v. Law , 65 So. 3d 821, 827 (Miss. 2011) (quoting Ci t y o f E l lisville v. Richardson , 9 13 So. 2d 9 73, 977 (Miss. 2005)). “Although reasonable m inds m ight dif f e r on the conclusion of whether or not the of f icer in question acted in reckless disregard, it is b ey ond this Court’s power to disturb the f indings of the trial judge if supported by substantial evidence.” Richardson , 913 So. 2d a t 9 78 (citing C

ity of Jackson v. Brister , 838 So. 2 d 2 74, 277-78 ( M i s s . 2003)). City of Jackson v. Lewis , 153 So. 3d 689, 694 (Miss. 2 014). “ In a bench trial, when the trial judge sits as the f

inder o f f

act, he [ or she] has the sole authority f o r d e t e r m ining the credibility of witnesses.” Brister , 838 So. 2d at 279 (citing Y arbrough v. Cam

phor , 645 So. 2d 867, 869 (Miss. 1994)).
DISCUSSION ¶5. The Mississippi Tort Claim s Act insul a t e s e mp l o y e e s o f a g o v ernm ental entity , “acting within the course and scope of their em ploy m ent,” f rom liability f

o r any claim while that em ploy ee is “engaged in the p erf orm ance or execution of duties or activities relating to police

. . . protection unless the em ploy ee acted i n reckless disregard of the saf ety and wellbeing of any

person not engaged in crim inal activity at the tim e of injury

. . . .” Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012). ¶6. This Court has h eld that “‘[ r]eckless disre g a r d ’

. . . d e n o t e s ‘ mo r e t h a n m ere negligence, but less than an intentional act.’” Lewis , 153 So. 3d a t 693 (quoting Law , 65 So. 3d at 826). “‘Our case law i ndicates “reckless disregard” em b races willf

ul or wanton conduct which requires knowingly and i ntentionally doing a thing or wrongf ul act.’” M

iss. Dep’t of
Pub. Safety v. Durn , 861 So. 2 d 990, 995 (Miss. 2 003) (quoting City of Jackson v. Lipsey , 834 S o. 2d 687, 692 (Miss. 2003)). Moreover, “‘reckless disregard usually is accom panied

6by a conscious indif f erence t o c onsequences, am ounting alm ost t o a w ill ingness that harm should f ollow.’” Durn , 861 So. 2d at 995 (quoting Maye v. Pearl River Cty. , 758 So. 2d 391,
394 (Miss. 1999)). Reckless disregard occurs “when the ‘conduct involved evinced not only

som e appreciation of the unreasonable risk involved, b ut a lso a deliberate d isregard of that risk and the high probability o f harm involved.’” Durn , 861 So. 2d at 995 (quoting Maldonado v. Kelly , 768 So. 2d 906, 910-11 (Miss. 2000)). ¶7. The A lcohol Boating Saf ety Act provides: “It is unl a w f u l f o r any p erson to operate

a watercraf

t on the public w aters of this state who

. . . [ i]s u nder the inf luence of intoxicating liquor

. . . .” Miss. Code Ann. § 59-23-7(1)(a) (Rev. 2 013). M ississippi Code Section 59-21- 83 provides that:
No vessel shall be operated within this state in a reckless or negligent m anner or at a rate of s p e e d g r e a t er than is reasonable a nd prudent u nder the then existing circum stances or w hen 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 under the inf

l uence of intoxicating liquor or narcotics . . . . Miss. Code Ann. § 59-21-83 (Rev. 2013). ¶8. The Mississippi Departme n t o f Wi l d l i f e , F i s h e r i e s , and Parks issued Standard Operating Procedures (SOPs) f or enf orcing the Alcohol Boating Saf ety Act on February 20, 2006, which were to “ [ s]upersede[ ] all prior departm ental [ d]irectives on this subject.” SOP
04.01 requires c ustodial arrests f or “[ v]iolatio n s o f t he Alcohol Boating Saf e ty Act” and provides that f

or other violations, “a citation should be issued at the scene . . . .” SOP 04.01, in the case of a custodial arrest, sets f orth p rocedures f

or the of f icers to undertake in securing the vessel.

7¶9. SOP 07/03 states that, in order “to establish probable cau s e , a n O f f i c e r mu s t

. . . [ h]ave a reasonable belief that an operator of a watercraf t i s under the inf

luence; and

. . . [ m ] eticulously f

ollow the procedures necessary to f orm probable cause, to establish probable cause, and/or prim a f

acie intoxication.” (Em

phasis in original.) The SOP 07/03 continues: Since BUI a

pplies t o operators of watercraf t, which are underw a y , this will m ean that the ef

f ort t o establish probable cause f or BUI will begin af

ter an Of f icer’s stopping of

a watercraf

t, which is underway

. Generally , f

or an Of f icer t o s t o p a vessel that is underway , y ou m ust have observed that vessel being operated in a negligent or r e c k l e s s m anner, or observe the vessel or its operator in violation of som e other l aw or regulation (i.e. t oo m any occupants in t h e boat, im proper [ personal f

lotation d evices], etc.)[ .] However, an Of

f i cer m a y stop a boat f

or a r outine saf

ety check and then f o r a reasonable belief t h a t t h e operator m i ght be under the inf luence which begins the process f or establishing probable cause f or BUI[

. ]
NOTE: An Of

f icer m a y not use a s af

ety check as an excus e t o s t o p any watercraf t f or the sole purpose of attem pting to establi s h p r o b able cause f or BUI. Once a v e s sel has been stopped, the Of f icer m ay then ascertain if there is f urther probable cause to suspect that the operator or the vehicle is under the inf luence of alcohol, drugs, or a c o ntrolled substance. E v i d ence to warrant proceeding to the screening/intoxication interview include:
1. Slurred speech;
2. Poor balance (not as convincing on water due t o wave action);
3. Bloodshot ey es; and
4. Other b ehavioral anom alies that suggest the individual is not in com

plete control of

his or her f

aculties. (Em phases in original.)

8¶10. The trial c ourt ruled that, w hile “both o f f icers stated that they were going to m ove into the straightaway and then determ i ne why B ernius had been reckless a nd speeding and then
go into the BUI f

orm at,” neither of

f icer pointed to any

thing “(statute, SOP, rule, case law, etc.) which would indicate that this was an acceptable or perm issible procedure.” The trial court ruled:
In this case, SOP 4.01 provides that c itations are to be issued “at the scene.” That SOP does not provide that the of f icers m ay direct the of

f ending operator to continue to operate his vessel p rior to issuing a citation. Specif ically , it does not provide f

o r directing an oper a t or to m ove his v essel to another location. Movem ent o f the boat is perm itted only on a custodial arrest and t h e n that m ovem ent is not m ade by the of f ending operator. SOP 07/03 def ines “probab l e cause” and states that “the ef f ort to establish probable cause f or BUI will begin af ter an Of f icer’s stopping of a w atercraf t

. . . .” The word “will” is m andatory , not perm issive. SOP 07/03 then provides that a f ter stopping a v e s sel, “the Of f icer m ay then ascertain if

there is f urther probable cause . . .” and gives a list of evidenc e t o c o nsider to determ ine whether to proceed to “the screening/intoxication interview

. . . . ” These provisions indicate that the of f icer is r equired upon stopping a vessel t o begin his ef f orts to establish probable cause f

or BUI a nd that the of

f i cer m ay determ i ne that there is f urther probable cause by considering the f our ( 4) f actors lis t ed. If those f

our (4) f actors exist, the of

f icer then m

ust proceed to the screening interview. The trial court continued that Of f icers Thrash and D elcam

bre “decided without hesitation to direct Bernius to continue to operate his boat to travel to the s t r a i g h t a w a y bef o re either determ ining why Bernius was reckless and speeding or whether the use o f alcohol could be ruled out.” ¶11. The Court o f Appeals disagreed w i t h t h e t r i al court’s interpretation of the SOPs, concluding that, “due to public interest in the of f i cers’ saf ety when conducting a stop, we f ind that the of

f icers here possessed t h e d i s c r e t ion to request that B ernius pull out of the hazardous and high-traf

f ic area of the river.” W e c ann o t a g r e e with the conclusion of the

9Court of Appeals b ecause the t r i a l court’s interpretation of the MDW FP’s S OPs was not

m anif estly wrong, clearly erroneous, and it did not dem onstrate the application of an

erroneous legal standard. The Court of Appeals m ay have d i s a g r e e d with the trial court’s conclusions. But, with respect, that is not enough to reverse the trial court’s judgm ent. ¶12. The C ourt o f Appeals correctly observed that “Mississippi precedent establishes that

a violation of a SOP does not alone establish reckless disregard.” Webb , 2017 W L 1396686, *9 (citing City of Jackson v. Presley , 40 So. 3d 520, 524 (Miss. 2010)). 1 Trial courts m ust “‘look to the totality of the c ircum stances when analy zing whether som eone acted in reckless disregard.’” Lewis , 153 So. 3d at 694 (quoting R ichardson , 913 So. 2d at 977). ¶13. The appeals court f ound that “Of

f icer Thrash adm itted that, d uring the alleged stop, he did not ask Bernius or his p assenger whether they h ad consum e d ,” but that “he could not tell if Bernius’s speech w a s s l u r r e d because he only heard Bernius say ‘Okay ’ in response
to the com m and f

or Bernius to f

ollow the of

f icers to the straightaway .” Webb , 2017 W L 1396686, *6. Moreover, Of f icer T hrash testif

ied that he did not have r easonable suspicion that Bernius was under the inf luence: “Bernius ‘was seated on his boat a nd appeared to have good posture,’ and [ Of

f icer Thrash] was never close enough to Bernius to observe i f his ey es

1 The trial court o b s e r v e d t hat “[ t]his case . . . is not a p ursuit case . . . and no party suggests that the Court should r eview or consider the t e n (10) pursuit f actors.” See Lewis , 153 S o. 3d at 694). According to the trial court, “[ t]he actual p ursuit in this case had ended when Bernius stopped bef o re Bend 2. He was then being d etained by Thrash and Delcam bre and was under their direction and control. W hen [ Bernius] turned a r ound a n d s p ed away , neither Thrash nor Delcam bre was in pursuit.” T h e trial co u r t c o n tin u e d : “[ t] h e p arties ag ree th at th e C o u rt is to co n sid e r th e to tality o f th e circu m stan ces in arriv in g at a d eterm in atio n o f w h eth er th ere is reck l ess d i sreg ard in th is m a tter.” 1 0were bloodshot.

. . . B ernius exhibited no behavior anom a l i es s u ggesting that Bernius was

not in com

plete control of

his f a culties.” Id. The Court of Appeals continued: Of f icer Delcam

bre testif ied that, because o f the blindspot located in the bend where he and Of

f icer Thrash stopped Berniu s, h e was n ot close enough to Bernius’s boat to b e able to assess Bernius’s m e ntal, phy sical, o r sensory f aculties. Of

f icer D elcam

bre explained, “ W e never e n g a ged [ Bernius] in slurred speech. I never engaged him in a conversation. I never engaged him in any of that. My m ain o b

jective at the point w here we m ade contact was to get him out of the bend of the river.” Of f icer D e l cam

bre instructed Of

f i cer Thrash to tell Bernius to f

ollow the of

f icers a r ound the b end so they could saf ely question Bernius r egarding his excessive speeding and r eckless o p e r a tion of the boat.
Id. at 7. B oth Of

f icers Thrash and Delcam

bre testif ied that a “blind s pot” e xisted in the bend of the river where B e rnius was stopped. In a naly zing the totality of the circum stances, the
Court of Appeals relied solely on the t e s t i mo n y of Of f icers Thrash and Delcam bre. But it ignored the determ ination b y the tr i al court that the testim ony of Of f icers Thrash and Delcam bre lacked credibility

. “In a bench trial, when the trial judge sits as the f i nder of f act, [ s]he has the sole authority f or determ ining the credibility of witnesses.” Brister , 838 So. 2d at 279 (citing Y

arbrough , 645 So. 2d at 869). ¶14. Of f icer Keith Lewis Bond, a conservation of f icer with the MDW FP, prepared a report f ollowing the a ccident which was subm itted to the district attorney

. He stated in that report that O f f icers Thrash and D elcam

bre had, prior to stopping Bernius, “ initiated b lue lights and siren in a n attem

pt to s top Bernius as he passed f alling in behind him southbound as he ignored their signals.” Both Of f icers Thrash and Delcam

bre attem pted t o discredit this report during the bench trial. O f

f i cer Thrash stated that “when [ Bernius] saw m e he decelerated his boat and began to stop. So in m y opinion he did not ignore m y b lue lights a nd s irens.” Of f icer

1 1Delcam

bre t estif ied that the sentence in the r eport indicating that B ernius had ignored the blue lights and siren w as not correct. The tri a l c o u r t f ound that “ [ t ]he of

f icers pursued Bernius down the straightaway between Bends 3 a nd 4, around [ B ]end 3, and eventually got Bernius stopped just bef

ore Bend 2.” ¶15. Jo s h u a L o r d , w h o was boating on August 22, 2009, helped Of f icers Thrash and Delcam bre in g etting Bernius to shore and in searching in the water f or the deceased victim

. Lord testif

ied, without o bjection, that he had heard Of f icer Delcam

bre state to other MDW FP of f icers that Of

f i cer Delcam

bre had “stop[ ped] the boat because his passenger was propped
up on his back holding him up keeping him abl e to d rive.” Of f icer Delcam

bre, d uring the bench trial, denied that he had told any one that he had observed Bernius being propped up in the boat by

his passenger, Dexter Bouie. ¶16. The accident occurred at 4:15 p.m . (16: 1 5 ) and Bernius’s blood w as drawn at 6:30
p.m . (18:30), two hours and f if teen m inutes later. The report f r o m the Mississippi Crim e Laboratory i ndicates that Bernius’s blood-alcohol content was .25%. Both Of f icers Thrash and Delcam

bre a g r eed that “an individual with a .25 B AC has s evere im pairm ent of all

m ental, phy sical a nd sensory f unction.” O f

f icer Delcam

bre stated that a person w ith such
im p airm ent “couldn’t stand u p, couldn’t articulate, y ou know, in speech, could m ean no hand
or ey e c o ordination.” ¶17. The trial court stated that “the f act that Bernius was ultim ately determ ined to have a
BAC of .25% does not m ean that the of f icers knew or should have k nown of that a t the t im e they stopped Be r n i u s,” but that such determ ination does “ c all into question the of f icers’

1 2observations (or lack thereof ) of Bernius.” The trial court m entioned O f f icer Delcam

bre’s

t e s t i m ony “that a BAC of .25% is a severe im pairm ent and that a person with that B A C i s unable to stand, cannot articulate, and has no hand/ey e coordination.” The court continued: “[ i]t raises a question in the Court’s m ind about the accuracy of the of f icers’ o bservations of Bernius or perhaps the accuracy of their testim ony .” The court f ound that L ord’s testim ony that, “af ter the a ccident, he heard D e l cam b re tell other of

f icers that they stopped Bernius b e c a use the passenger was p ropping Bernius u p a nd that the two m en w ere back to back,” called into question the veracity of Of f icer Delcam

bre’s testim ony deny i ng having said that. ¶18. Of f icer Bond’s report also stated that O f f icer D elcam

bre a nd Lord “stated that they could s m ell the distinct odor of an intoxicating beverage on Bernius’s b reath” as the pair of them extracted the paraplegic (Bernius) f rom the w ater and into Of f icer Delcam

b r e ’ s boat
f ollowing the accident. L o r d t e s t i f ied at the b ench trial that “the sm ell was very strong

com ing of

f o f [ B ernius’s] b reath of

alcohol.” O f

f icer Delcam

b re t estif ied a t the b ench trial “[ i]t’s f alse” in r ef

erence to the MDW FP report prepared by Of f icer Bond. Lord described Bernius’s behavior a s, “[ i]n one w ord, wasted.” The trial court f o und that L ord’s testim ony

was credible, noting that “Lord is not af f iliated w ith any party i n this case and did not know either B ernius or Delcam

b re.” The trial court continued that “[ t]here was no plausible reason, in f a ct, no reason at all given as to why Lord’s testim ony

should be questioned concerning this statem ent.” ¶19. Of f icer Thrash testif

ied that, when he and Of

f icer T hrash began the process of getting Bernius to stop h i s boat, “at the tim e we were in that dangerous bend and we needed to get

1 3out of that dangerous bend to a long straightaway , a n d at that tim e we would have c onducted

an interview, but a t that tim e he [ gave] us no reasonable suspicion to believe that he had been drinking.” Of

f icer Thrash then a greed that he a nd Of f icer Delcam

bre h ad stopped Bernius

not only to “determ ine why he was driving recklessly ” but a lso “to rule out the use of alcohol

. . . .” Of f i cer Delcam

bre testif ied that “we h ad at least two-thirds of the r iver blocked and
in a dangerous bend and t h e b l i n d spot. So if som ebody had com e around f rom that straightaway and around that [ blind spot] right there one of the three boats m ore than likely would h ave been hit.” The trial court f ound that “the only evidence that Bend 2 was really either blind or d a ngerous is the testim ony of Thrash and Delcam bre” and that such testim ony

am ounted to n othing m ore than “well-rehe a r sed m antra.” The court f urther questioned the veracity o f

the of f icers’ testim ony

by pointing out that: [ i]f these of

f i cers r eally believed that Bend 2 was a blind, dangerous curve and was as dangerous as they would like f o r this C ourt t o believe, they cannot truly believe that it was saf

e or reasonable to order an acknowledged rec kless operator to drive h is boat through that d angerous a r e a u n f ettered i n any m anner. A c c ording to the trial c ourt, “[ t]he photographs do show a sharp curve as Bend 2, b u t t h e points of ref

erence in the photographs do not lend them selves t o any r e a l a s sessm ent that Bend 2 is a blind curve or a dangerous curve.” ¶20. Of f icer Thrash testif

i ed that it was im

possible to have m oved Bernius’s b oat to or near

a pier close in proxim ity to the plac e a t w h i c h B e r n ius’s boat had been stopped in Bend 2 because i f “y ou have two b oats side by side and a boat com es by y ou at f u ll speed the wake action could actually break y o u r a r m o r f i n g e r s . . . while y ou’re sitting there try ing to

1 4conduct a n interview.” He s tated, however, t h a t t h e d anger of a collision d ue to the blind

curve of Bend 2 would have been avoided e ntirely by m oving the boats to or close t o t h e nearby pier. The trial court f ound that Thrash’s testim ony c oncerning the possibility that an

arm o r f i nger could be broken d

u e to the w ake of passing boats was “not c redible.” The trial

court observed that “these of f icers are experienced enough to avoid b reaking a f inger sim ply be c a u se a boat is docked a t a pier.” She continued: “[ t]hese are experienced of f i cers who dock boats every day

. They w ere b oth, in f a ct, a t a p ier or dock when they f irst saw Bernius and y et there is no report of any f inger breaking incident occurring there.” ¶21. W e cannot discard the trial court’s f inding that the testim ony of Of f icers Thrash and
D e l c a m b re was not credible because substantial, credible, and reasonable evidence in th e record contradicts the of

f icers’ testim ony . The trial court ultim a tely f ound that: [ w]hether the of

f icers knew that Bernius was intoxicated or n ot and whether they s hould h ave k

nown or not, Thrash and Delcam bre adm ittedly appreciated the unreasonable risk to others on the River in allowing a p erson to recklessly operate a boat and/or to operate at an unreasonable speed. T h ey acknowledged that there was a probability of harm to others if

they perm itted such a person to operate a boat i n t h a t ma nner. Y et they not only perm itted Bernius to continue to operate his boat, they directed him

to do so.
I n r e v ersing and rendering the trial court’s judgm ent, the Court o f Appeals igno r e d substantial, credible, and reasonable evidence adduced in the bench trial which supported the trial court’s f

inding that Of

f icers Thrash and Delcam

bre a cted with reckless disregard f or the saf ety of others.

1 5CONCLUSION

¶22. It is p ossible that r easonable m inds could dif f er on the question o f whether Of f icers Thrash and Delcam

bre acted in reckless d isregard f or the saf ety of others

. But, despite substantial evidence adduced at trial supporting the thorough f inding by the Circuit Court of the Second Judicial District of Harrison County

that Of f icers Thrash and Delcam

bre acted
in reckless disregard f

or the s af ety of others, the Mississippi Court of Appeals disagreed with the court’s conclusion and substituted its own f indings of f

act. Accordingly , we reverse the judgm ent of

the Mississippi Court of

Appeals and reinstate and af f irm the judgm e nt of the Circuit Court of

the Second Judicial District of H arrison County

. ¶23. THE J U D G M E N T O F T H E C O URT OF APPEALS IS R EVERSED. THE JUDGMENT OF T HE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY IS REINSTATED AND AFFIRMED. WALLER, C.J., RANDOLPH, P.J., KING, BEAM AND CHAMBERLIN, JJ., C O N C U R . MAX WELL, J., CONCURS IN PART AND IN RESULT WITH O U T SEPARATE W RITTEN OPINION. COLEMAN, J ., DISSENTS WITH SEPARATE WRITTEN OPINION. ISHEE, J., NOT PARTICIPATING. COLEMAN, JUSTICE, DISSENTING: ¶24. The p laintif

f s bor e t h e b u r d e n of producing evidence that the law enf orcem ent of

f icers
in the case sub judice acted with reckless disregard. Even in l ight of our highly def erential standard o f review, the plaintif f s f ailed to produce evide n c e that the of f icers in question appreciated the r isk of the suspect f leeing o r consciously disregarded any r isk. A review of the trial court’s order indicates that the trial j udge b ased her ju d gm ent in f avor of the plainti f f s on a rejection of the def enses of f ered by the Departm e nt rather than suf f icient, af f irm ative proof of

f ered by the plaintif

f s t o show reckless disregard on the part of the

1 6of

f icers. In doing so, the trial court e rr e d b y r e versing the burden of p roduction. Accordingly , the trial court erred in granting judgm e n t in f avor of the plaintif

f s, and I, with respect, dissent.
Standard of Review ¶25. “A circuit court j udge sitting without a j ury i s af f orded t h e s a me d e f

e r e n ce as a chancellor.” City of Jackson v. Lewis , 153 So. 3d 689, 693 (¶4) (Miss. 2014). Accordingly , we will not disturb a circuit court’s f indings f ollowing a bench trial where the f indings are supported by substantial, credible, and reasonable evidence. Id. However, we m ust reverse the circuit court’s f

indings where they are m anif estly w rong or clearly erroneous, or the court applied an erroneous legal standard. Id. “A l t h o u g h 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 d i s t u r b the f indings of the trial judge if supported b y s u bstantial evidenc e . ” I

d . ( c i ting City of E

llisville v. Richardson , 913 So. 2d 973, 978 (¶15) (Miss. 2005)). W e review questions of law de novo. Richardson , 913 So. 2d at 977 (¶13). Analy sis ¶26. The plaintif

f s bore the burden of

proving that Of

f icers Delcam

bre and Thrash acted with reckless disregard. H inds C ounty v. Burton , 187 So. 3d 1016, 1022 (¶17) (Miss. 2016). Theref ore, the plaintif

f s had to prove, by a pre p o n d e r a n c e of the evidence, both that the of f icers appreciated the risk of the suspect f leeing the scene and causing another a ccident and that they deliberately disregarded the r i sk and “ h igh probability ” of harm r esulting theref rom .

1 7City of Jackson v. Lewis , 153 So. 3d 689, 6 9 3

- 6 9 4 ( ¶ 5 ) (Miss. 2014). In short, plaintif f s f ailed to produce suf

f icient evidence to prove their claim

. ¶27. P l a i n t i f

f s , i n t h eir case-in-chief

, called f our witnesses: Of

f icer Thra s h , O f

f i c e r Delcam bre, Master Sergeant Keith Bond of the D epartm ent o f W ildlif e, Fisheries, and Parks, and Joshua Lord. Of the f our, only Of

f icers Thrash a nd D elcam

bre had p ersonal knowledge of the events surrounding the stop of Bernius a nd the f actors that weighed in the decision of the of f icers to order Bernius to f ollow them to a straightaway in the river. Master Sergeant Bond testif

ied about the contents of the report of the accident prepared by the Departm ent, and Lord witnessed the a f term ath of the underly ing collision. Via none of the witnesses did the plaintif

f s produce evidence that Of f icers Thrash and D elcam bre acted with reckless disregard as the phrase is def i ned above. ¶28. W i thout q

u estion, at the tim e of the underly i ng incident, Of f icer Thr a s h w a s l e s s experienced. The stop of Bernius was the f irst tim e he p articipated in stopping a boater f or what turned o u t t o b e b oating under the inf luence. Of

f icer T hrash acknowledged that Bernius o perated the boat prior to the initial stop in a m anner which indicated a l a c k of control and recklessness. He denied knowing at the tim e of the stop t h a t B e r n ius’s blood alcohol level was elevated. A f t e r t he initial stop, when Thrash pulled his boat up next to
B e r n i u s ’ s , Bernius appeared to have good posture and did not speak in a way that Thrash could appreciate that he was slurring words. Of f icer T hrash testif

ied that, other than t he initial m anner described above in which Bernius operated h is b oat c om ing around the river bend, he observed no s igns or “behavioral anom alies” i ndicating Bernius did not have control

1 8of his f

acultie s . R e g a r d i ng the d ecision to order Bernius to f ollow the o f

f icers out of the river bend and to a straightaway , Thrash testif ied as f ollows:
W e ll, at the t im e we were in that dangerous bend and we needed t o g et out of that dangerous bend to a l o n g straightaway , and at that tim e we would have conducted an interview, but at that tim e he gave u s no reasonable suspicion to believe that he had been drinking. Of f icer Thrash consistently denied that, at the tim e h e o r d e r e d B e rnius to f ollow, he had reasonable suspicion that Bernius had been drinking. He t estif ied that , h ad Bernius not
attem pted to f lee, he a nd O f

f i c e r Delcam

bre would have questioned him and, if during questioning, he had exhibited signs of having consum e d alcohol, investigated accordingly

. Of f icer Thrash testif

ied that he had m ade o ther stops f or reckless operation and f ound that the boat operator had consum ed no alcohol. ¶29. T h e t e s t i mo ny of O f f icer Delcam

bre resem

bled that of Of

f icer Thr a s h

. O f

f i c e r Delcam bre agreed that Bernius sped and operated h is boat in a reckless m anner bef ore the stop. Of f i cer Delcam

bre conf i rm ed that the initial s top was v ery brief , about f if teen seconds, and that the boats never cam e to a com p lete halt but continue d t o mo v e at “idle speed.” Of f icer D elcam

bre did not interact with Bernius, b ut h e d id instruct Of f icer Thrash to order Bernius out of the bend and i nto a straightaway

. Of f icer Delcam

b re steadf astly testif

ied that

at the tim e of the v ery brief stop, the stop w as occasioned by Bernius’s reckless operation of his craf t and that no reasonable suspicion of boating under the inf

luence of alcohol arose. ¶30. The trial j udge’s opinion c haracterized the Departm e nt’s def ense as resting “solely on their position t h a t t h e b oats w ere stopped in a dangerous b end of the River, that they were blocking a portion of the River.

. . .” The trial judge rejected the def ense as not credible. She

1 9did not b elieve Of f icers T hrash’s and Delcam bre’s t estim o ny that the bend in the river was

a dangerous place to stop. Of course, a s t h e f i nder o f f act, the trial judge is the arbiter of witness c r e d i b i l i t y . However, the p laintif f bore the b urden of proof , Hinds County v. Burton , 187 So. 3d 1016, 1022 (¶17) (Miss. 2 016), not the Departm ent. It is not enough that the trial court r ejected wh a t i t v i e wed as the sole def ense of the Departm ent. T he plaintif f

m ust of f er evidence that shows the of f icers acted with reckless disregard. ¶31. The trial judge r elied heavily on the undisputed f a c t t h a t B e r n i u s ’ s blood alcohol

c ontent later was determ i ned to be .25 percent, but n either Of f icer Thrash nor Of

f i ce r Delcam bre knew at the tim e of the stop what his blood alcohol l evel later would prove to be. Of f icer Thrash testif

ied that Bernius sat upright and with g ood posture. The plaintif f s f ailed

to produce any evidence that the of f icers had reason to believe Bernius w as intoxicated at the tim e of the stop. Nowhere in the record is evidence by the plaintif f s that shows either of

f icer directed Bernius t o continue operating his boat despite r e a c h i n g a belief that Bernius was intoxicated. Accordingly , the Departm ent’s operating procedures, upon which the plaintif f s rely a s evidence o f reckless disregard, do not support the verdict, because i t is undisputed that the of f icers never f

orm ed a reasonable suspicion that Bernius was intoxicated until well af ter the stop. The f

i nding of the trial judge that the Departm ent did not contest that its of f icers
h ad f ailed t o f ollow the operating procedures lacks evidentiary support. Both of f icers testif i ed consistently that, because they had no reasonable s us p i c i o n that Bernius was intoxicated, the operating procedures governing boating under the inf luence never cam e into play

.

2 0¶32. The trial judge f aults the of

f icers f or allowing Bernius to continue to operate his boat
in order to m ove i nto a straightaway

. However, in the absence of evidence that the of f icers had reaso n t o believe Bernius was intoxicated, in m y opinion, such a d ecision does not constitute reckless d isregard, which would requ i r e t hat the of f icers a p preciated the risk of Bernius again operating h is boat recklessly and that they acted i n disregard of that risk. City of Jackson v. Lewis , 153 So. 3d 6 89, 693-694 (¶5) (Miss. 2014). T he f acts of the case sub judice can be contrasted with those of Turner v. C ity o f Ruleville , 735 So. 2d 2 26 (Miss. 1999). There, the plaintif f allege d t h a t a p olice of f icer had f

ailed to stop an obviously intoxicated driver f

rom d riving. Id. at 227 (¶ 2). The tria l c o u r t g ranted the c ity ’ s m otion under Mississippi Rule of Civil Procedure 12(b)(6) to dism iss, but the Suprem e C o u rt reversed. W e wrote, “[ T]he f acts pled do allege that h e wrongf ully and intentionally allowed

a visibly intoxicated Sm ith t o continue d riving. By this a l leged act, t h e o f f icer allegedly showed a reckless or wanton o r willf ul disregard f

or the saf ety of other drivers o n the road, including Turner.” Id. at 2 30 (¶ 19). In today ’s case, suf f i cient eviden ce did not exist to support a f

inding that Bernius was visibly intoxicated at the tim e o f the i nitial stop. W here
in T urner , the trial court erred in dism issing the com plaint because the plaintif f had alleged that the o f f icer knew o f the risk of the driver’s intoxication and allowed h im to drive any way , in the case sub judice there is no evidence that the of f icers acted in s im i l a r d i s r e g a r d o f a known risk. Lewis , 153 So. 3d at 693-694 (¶5). ¶33. Also persua s i v e i s t h e r easoning of the Mississippi Court of Appeals in Thom as v. Mississippi Departm ent of P u b l i c S a f ety , 8 82 So. 2 d 789 (Miss. Ct. App. 2004). In

2 1Thom as , a highway patrolm an stopped a driver f or speeding and i ssued a speeding ticke t

. Id. at 791 (¶ 3). Af

ter the s top, the driver drove eight m iles and w recked his van; the wreck
f atally i njured the driver’s son. Id. at 791 (¶ 4). The decedent’s w r ongf ul-death heirs f

iled suit against the Departm ent of Public Saf ety , contending that the f

ailure of the patrolm an to check the driver f

o r driving under the i n f

luence caused the a ccident. Id. at 791 (¶ 7). Although three witnesses at the scene of the wreck testif i ed that they sm e lled alcohol on the driver’s breath, the h i ghway patrolm an who perf orm e d the stop denied s m elling alcohol on the driver at the tim e of the stop. I d . a t 7 9 1 ( ¶¶ 3, 5). The trial court f ound that the patrolm an’s actions did n ot rise to the l evel of reckless disregard, and the Court of Appeals af f irm ed. The Court of

Appeals reasoned, in part, as f ollows: There was evide n c e i n p h a se one of the DUI detection p rocess that suggests that M r. Thom as was sober. W hen Of f icer Johnson pursued Mr. Thom as, he noted that a p r oper turn signa l f o r a lef t turn was executed. Of

f icer Johnson als o o b s e r v ed Mr. T hom as properly t urn into M rs. Montgom ery ’s residence and s af ely stop. W hen Mr. Thom as drove on the road lead ing to Mrs. Montgom ery ’s residence, h is s peed was f orty to f o rty -f ive m iles per hour, not an excessive s peed. Of

f i cer Johnson t estif

ied that evadi n g a n a r r est is not necessarily an indi c a t i o n o f intoxication. He also testif ied that in his sixteen y ea r s a s a highway patrolm an he has stopped n um e r ous p eople f or speeding who a re n ot under the inf

luence and that he should look at o ther things bef ore deciding that a driver m ight be intoxicated.
Id. at 795 (¶ 19). The f

acts upon which the Court of Appeals relied are sim i lar to the f acts of the c a se s ub judice

. In today ’s case, the of f icers testif

ied that boaters who are sober regularly are stopped f

or reckless boating, and they both testif

ied that they

did not observe
any signs that Bernius was intoxicated during the brief stop.

2 2¶34. For the f o reg o i n g r e a s o ns, the plaintif f s’ p roof at trial did not s u f f ice t o show that Of f icers Thrash and D elcam

bre acted with reckless disregard when they i nstructed Bernius

to f ollow them t o a dif

f e rent part of the river. I w ould reverse t h e t r i a l c o u r t ’s j udgm ent against the Departm ent of W ildlif e, Fisheries, and Parks.

2 3