Babette Maxwell, Individually and as of the Estates of William Irwin, and Lynda Irwin, and for and on Behalf of the Wrongful Death Beneficiaries of William Irwin, and Lynda Irwin v. Panola County, Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-01001-COA

BABETTE MAXWELL, INDIVIDUALLY AND APPELLANT
AS EXECUTRIX OF THE ESTATES OF
WILLIAM IRWIN, DECEASED, AND LYNDA
IRWIN, DECEASED, AND FOR AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF WILLIAM IRWIN,
DECEASED, AND LYNDA IRWIN, DECEASED

v.

PANOLA COUNTY, MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/28/2021
TRIAL JUDGE: HON. SMITH MURPHEY
COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: LARRY O. LEWIS
RALPH EDWIN CHAPMAN
DANA J. SWAN
ATTORNEY FOR APPELLEE: SIDNEY RAY HILL III
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 02/21/2023
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., GREENLEE AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. A married couple was driving down a highway in Panola County when a sheriff’s

deputy suddenly crossed into their lane. The two vehicles collided. The husband died at the

scene; the wife died shortly thereafter.

¶2. The couple’s estates sued the county for the deputy’s alleged negligence, arguing he

caused their deaths in violation of state law. After a bench trial, the circuit court found that
the deputy had not been acting in “reckless disregard” by driving into the couple’s lane.

Bound as we are by a deferential standard of review, we affirm.

FACTS

¶3. Except for one single point, the facts in this case are uncontested.

¶4. William and Lynda Irwin were driving westbound on Highway 6 through Panola

County. “In Panola County, Highway 6 is a four-lane divided highway that runs concurrent

with U.S. Route 278.” Irwin-Giles v. Panola County, 253 So. 3d 922, 924 (¶2) (Miss. Ct.

App. 2018). Mrs. Irwin was driving an SUV, going 75 miles per hour in a 65 miles-per-hour

zone. Highway 6 was four lanes, separated in the middle by a median patch.

¶5. Unbeknownst to them, Deputy Terry Smith was driving northbound on Lawrence

Brothers Road, which intersects with Highway 6. The deputy approached the stop sign at the

intersection and continued driving north. Next, the deputy approached the second

intersection. At the same time, the Irwins were fast approaching the intersection. There was

no stop sign at the second intersection, but there was a “stop bar” that required Deputy Smith

to yield to oncoming traffic.

¶6. As Deputy Smith crossed the intersection and drove into the westbound lane of

Highway 6, the Irwins’ SUV smashed into the deputy’s truck. The couple lost their lives as

a result of the accident.

¶7. Data retrieved from the black box in his truck would later reveal Deputy Smith did not

stop at the stop sign at the intersection of Lawrence Brothers Road and the eastbound lane

of Highway 6, nor did he stop before entering the westbound lane. It further revealed the

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deputy was initially driving 25 miles per hour, and his speed increased to 30 miles per hour

as he crossed into the westbound lane.

¶8. Despite this scientific data, Deputy Smith would later repeatedly testify under oath

that he recalled “stopping” and “double checking” to make sure traffic was clear.

PROCEDURAL HISTORY

¶9. The Irwin estates filed suit against Panola County, Panola County Sheriff’s

Department, and Deputy Terry Smith, stating Deputy Smith acted with reckless disregard for

the safety of the Irwins.1

Summary Judgment

¶10. Panola County later filed a motion for summary judgment arguing it should be granted

dismissal because Deputy Smith was not acting in reckless disregard, and there was

undisputed proof that the Irwins were speeding at the time of the accident. The trial court

granted the County’s motion for summary judgment finding no genuine issues of material

fact existed as to whether Deputy Smith acted with reckless disregard. The Estates

subsequently appealed from the trial court’s order granting the County’s motion for summary

judgment.

¶11. On appeal, we reversed the grant of summary judgment, finding there was a “genuine

issue of material fact as to whether [Deputy] Smith acted in reckless disregard of the Irwins’

safety.” Irwin-Giles, 253 So. 3d at 927 (¶17). In making that finding, we explored several

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The Irwin estates were originally administered by Beverly Irwin Giles, the sister of
Babette Maxwell and the daughter of William and Lynda Irwin. This suit is also brought for
and on behalf of the wrongful death beneficiaries of Mr. and Mrs. Irwin.

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interrelated issues.

¶12. First, this Court considered that the Estate “presented evidence that Smith did not stop

or even slow down at the stop sign or in the median before proceeding into the westbound

lanes of [the] Highway[.]” Id.

¶13. We also considered the conflicting evidence regarding whether Deputy Smith could

see the Irwins’ SUV. Id. This Court stated, “The fact that Smith’s view was not obstructed

permits a reasonable inference that Smith did not look for traffic before he crossed [the]

Highway.” Id.

¶14. We further determined a fact-finder could conclude from the evidence in the record

that Smith “fail[ed] or refus[ed] to exercise any care,” which our Supreme Court has held

could constitute “reckless disregard.” Id. Since there were genuine issues of material fact,

we reversed and remanded. Id.

Trial

¶15. After remand, the case proceeded to a bench trial.

¶16. The trial court first heard from the law enforcement officer who arrived at the scene

of the accident. Trooper Justin Ales described the weather conditions on the day of the

accident as “clear.” He then stated he did not see anything that would obstruct a driver’s

view of oncoming traffic. He also testified the area was mostly “flat” and “level.” When

asked how far a driver could see from the intersection, he replied, “a quarter of a mile.”

¶17. The trooper then described the intersection of Lawrence Brothers Road and Highway

6—where the accident occurred. He testified there was a “[yield] line . . . on both sides of

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the cross over that indicates a stopping point for oncoming traffic.” When asked about the

circumstances contributing to the accident, he stated Deputy Smith “failed to yield right of

way.” The trooper testified that because of the deputy’s familiarity with the area, he would

have seen oncoming cars if he had stopped his truck and looked.

¶18. However, Trooper Ales also stated he did not know much of the information

ascertained from the black box. Specifically, he stated he did not know that Deputy Smith

did not stop at the stop sign or that he accelerated from 25 miles per hour to 30 miles per

hour while driving through the intersection. And on cross-examination, counsel for the

County asked if the accident seemed typical. The deputy responded, “true.”

¶19. Next, Deputy Smith testified. He stated he did not have on his lights or his sirens, as

he was returning to the station after unsuccessfully attempting to apprehend a suspect. He

also testified he was familiar with the intersection of Lawrence Brothers Road and Highway

6, as he had driven through it “thousands” of times.

¶20. The deputy was adamant he “stopped” and made sure traffic was “clear” before

driving through the intersection but “did not see anything” coming. When asked if anything

obstructed his vision to see oncoming traffic, he responded, “Nothing obstructed it that day

as I recall.” He continued, “I clearly remember what occurred that day. I stopped. I recall

stopping. I recall double-checking, making sure there’s no traffic. Accelerated not at a high

rate of speed. Accelerated to get through the intersection and proceed [north].”

¶21. The deputy repeatedly testified he stopped at the intersection. He further stated he

was not on his phone or his radio. The deputy said he was “clearly focused on driving” and

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did not speed through the intersection.

¶22. John Corbitt testified as an expert in accident reconstruction for the Irwin Estates.

The expert inspected both cars and downloaded data from each black box. He testified the

data showed Deputy Smith did not stop at the stop sign at the Lawrence Brothers Road and

Highway 6 intersection, nor did he stop at the second intersection where the Irwins’ SUV

collided with his truck. Specifically, Corbitt testified the Deputy “never applied the brakes”

and “steadily increase[d]” his speed from 25 miles per hour to 30 miles per hour through the

intersection.

¶23. The expert also testified the Irwins’ SUV was traveling 75 miles per hour at the time

of the crash. When asked if Deputy Smith would have seen the Irwins’ SUV had he stopped

and looked, the expert stated, “[Y]es, sir, plainly visible.”

¶24. He stated Deputy Smith did not exercise reasonable care in crossing Highway 6. In

his ultimate opinion, the proximate cause of the accident was “Deputy Smith failing to stop

and yield the right of way.”

¶25. The expert retained by Panola County, Brady McMillen, had a different view of the

facts. He also went to the scene of the accident and downloaded the data from the black

boxes in both cars. He testified that data from the black box indicated the Irwin vehicle

drove at a “constant speed of 75 mph.” While McMillen agreed Deputy Smith failed to yield

to oncoming traffic, he opined that “the excessive speed of the Irwin vehicle was a proximate

cause of the accident.”

¶26. Ultimately, the trial court, sitting as the finder of fact, determined Deputy Smith

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“exercised at least some degree of care, even if he was negligent in failing to stop and/or

perceive the Irwins’ vehicle prior to entering the intersection.” Based upon this factual

finding, the trial court found the deputy was not acting in reckless disregard.

¶27. Aggrieved, the Irwin Estates appealed.

DISCUSSION

Substantial evidence supports the trial court’s conclusion that the deputy
did not act in reckless disregard.

¶28. The Estates argue the trial court did not correctly apply the Mississippi Tort Claims

Act (MTCA) as a matter of law. Specifically, the Estates contend the trial court should have

found that Deputy Smith acted in reckless disregard.

¶29. “Immunity is a question of law.” Miss. Dep’t of Pub. Safety v. Durn, 861 So. 2d 990,

994 (¶7) (Miss. 2003). “Questions concerning the application of the MTCA are reviewed

de novo.” Id.

¶30. “Cases brought under the MTCA are tried without a jury.” Id. “The circuit court has

the sole authority for determining the credibility of witnesses when it sits as the trier of fact.”

Id. “A circuit court judge sitting as the trier of fact is given the same deference with regard

to his fact finding as a chancellor, and his findings are safe on appeal when they are

supported by substantial, credible, and reliable evidence.” Id.

¶31. “The MTCA shields the government from liability based on any act or omission of an

employee of a governmental entity engaged in the performance or execution of duties or

activities relating to police or fire protection unless the employee acted in reckless disregard

of the safety and well-being of any person not engaged in criminal activity at the time of

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injury.” City of Jackson v. Graham, 226 So. 3d 608, 611 (¶10) (Miss. Ct. App. 2017).

¶32. “Reckless disregard denotes more than mere negligence, but less than an intentional

act.” Id. “Further, reckless disregard is found when the conduct involved evinced not only

some appreciation of the unreasonable risk involved, but also a deliberate disregard of that

risk and the high probability of harm involved.” Id. (emphasis added).

¶33. There is a key case explaining what constitutes reckless disregard in a case of this

type. Maldonado v. Kelly, 768 So. 2d 906, 908 (¶2) (Miss. 2000). An officer approached

the stop sign of an intersection. Id. He stated he stopped and looked both ways for

oncoming traffic. Id. Seeing none, he drove through the intersection. Id. at (¶3). However,

the officer’s view was partially blocked by a water tower, and his car collided with another

man’s car. Id. But there was no evidence that the man was speeding at the time of the

accident. Id. The man brought suit, and the trial court found the officer’s conduct exhibited

a reckless disregard for the man’s safety and well-being. Id. at 909 (¶6).

¶34. Our Supreme Court reversed this finding and held that any mistake made by the law

enforcement officer did not constitute reckless disregard. Id. at 911 (¶12). It stated terms

such as “willful, wanton, and reckless” refer to “conduct which is still merely negligent,

rather than actually intended to do harm, but which is so far from a proper state of mind that

it is treated in many respects as if harm was intended.” Id. at 910 (¶8). The Court also drew

a distinction between wantonness and negligence. Id. “Wantonness is a failure or refusal

to exercise any care, while negligence is a failure to exercise due care.” Id. (emphasis

added). Conduct that rises to the level of reckless disregard “evince[s] not only some

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appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and

the high probability of harm involved.” Id. at 911 (¶11).

¶35. In determining whether the officer’s actions constituted reckless disregard, the Court

considered that the officer was “aware of the nature of the intersection and took steps to

avoid the collision.” Id. at (¶12). Specifically, he “exercised due care by stopping and

looking both ways before driving through an intersection.” Id. While the officer may have

been negligent, the Court ultimately ruled there was “no indication [he] acted with deliberate

disregard to the consequences of attempting to cross the intersection.” Id. Therefore, the

Court reversed the trial court’s ruling. Id.

¶36. The Supreme Court has also applied the rule to show what does constitute reckless

disregard. Maye v. Pearl River County, 758 So. 2d 391, 395 (¶24) (Miss. 1999). A deputy

was leaving the parking lot of the Pearl River County jail. Id. at 392 (¶2). “After checking

all his rear view mirrors, he backed his car from the parking space straight up the incline to

the entrance of the parking lot.” Id. at (¶3). “Even though the deputy checked his mirrors,

he testified he could not see the road from the parking lot because the jail and the lot sit

below the level of the road.” Id. “The deputy was attempting to back up the incline far

enough into the entrance to make a left hand turn through the parking lot and then exit the

parking lot through another entrance onto [a] road.” Id.

¶37. As the deputy was leaving, a woman was driving into the parking lot. She saw the

deputy backing toward her car and blew her horn. Id. at (¶4). But he backed into her car

nonetheless. Id. The woman’s car sustained damages to her front left fender and driver’s

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door. Id. at (¶8). She also hit the dashboard, injuring her right knee. Id. at (¶9). She sued

the County. Id. at 393 (¶12). The trial court held the plaintiff failed to make the necessary

showing that the deputy intended to hit the lady’s car. Id. The woman appealed. Id.

¶38. On appeal, the Supreme Court began by clarifying there is no requirement to show

intent to harm to remove an act from immunity. Id. The Court then explained reckless

disregard is “just a step below specific intent.” Id. at 394 (¶16). In determining whether the

deputy acted with reckless disregard, the Court considered several facts. Id. at 395 (¶22).

First, the deputy backed out of the parking lot knowing he could not see the cars behind him.

Id. Next, although he checked his mirrors, the deputy knew this would not allow him to see

oncoming cars. Id. Lastly, the Court stated that based on the damages to the woman’s car,

it was obvious the deputy drove “much too fast.” Id. Ultimately, the Court found the

deputy’s actions rose “above simple negligence to the level of reckless disregard of the safety

and well-being of others.” Id.

¶39. Like the officer in Maldonado, Deputy Smith was aware of the nature of the

intersection. When asked if he was familiar with the intersection, he responded, “Yes.”

Deputy Smith had driven through the intersection many times. The deputy also testified he

took steps to avoid a collision. He repeatedly stated throughout the trial that he recalled

stopping at the intersection and making sure the highway was clear before driving through

the intersection.

¶40. The Estates cite Maye to support their contention that Deputy Smith acted with

reckless disregard. But this case is distinguishable from Maye. Unlike the officer in Maye,

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Deputy Smith never testified he was unable to see the highway. In fact, the deputy testified

that “nothing obstructed [his vision] that day.” Deputy Smith also testified he made sure the

highway was clear before driving through the intersection. Lastly, there was no evidence

Deputy Smith sped through the intersection. However, there was uncontested evidence the

Irwin SUV was driving 10 miles per hour over the speed limit.

¶41. There was essentially one disputed fact at trial: whether Deputy Smith looked for

traffic before crossing Highway 6. The Estates’ expert testified the proximate cause of the

accident was Deputy Smith’s failure to yield, but Deputy Smith testified he looked for

oncoming traffic before driving through the intersection. While Deputy Smith’s testimony

that he stopped at the stop bar directly conflicts with the black box data, this does not lead

to the inescapable conclusion that all his testimony lacked credibility. Sitting as the finder

of fact, the trial court found credible the deputy’s testimony that he looked but did not see

the Irwins before crossing. As a result, this case is closer to Maldonado than Maye, and the

deputy’s negligence does not rise to the level of reckless disregard.

¶42. It is well established that “[t]he circuit court has the sole authority for determining the

credibility of witnesses when it sits as the trier of fact.” Durn, 861 So. 2d at 994 (¶7).

Furthermore, “[a]lthough reasonable minds might differ on the conclusion of whether or not

the officer in question acted in reckless disregard, it is beyond this Court’s power to disturb

the findings of the trial judge if supported by substantial evidence.” City of Jackson v.

Johnson, 343 So. 3d 356, 378 (¶57) (Miss. 2022). Given this deferential standard of review

and the conflicting evidence presented at trial, we cannot say that the trial court erred in

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finding the failures by the deputy did not constitute reckless disregard.

CONCLUSION

¶43. Whether Deputy Smith acted with reckless disregard was a question of fact for the

trial court to resolve at trial. The trial court held Deputy Smith more likely than not looked

in both directions before crossing the highway, but he simply failed to see the Irwins’ SUV.

Because this act of negligence does not rise to the level of reckless disregard required to

compensate a claimant under the MTCA, we affirm the judgment of the trial court.

¶44. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR.
McDONALD, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION.

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