author: KITCHENS, Justice, DICKINSON, Presiding Justice,

text:
    CITY OF JACKSON, Mississippi, v. Lee B. LEWIS, Oda Mae Green, and Sonya Stephens, on Behalf of the Wrongful Death Beneficiaries of Margaret E. Stephens, Deceased.
    No. 2011-CT-00787-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2014.

      Lara E. Gill, Ridgeland, Pieter John Teeuwissen, attorneys for appellant.
    Bo Roland, Dennis C. Sweet, III, Jackson, Dennis Charles Sweet, IV, Terris Ca-tón Harris, Jackson, attorneys for appel-lee.
   ON MOTION FOR REHEARING

ON WRIT OF CERTIORARI

KITCHENS, Justice,

for the Court:

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. After observing LaMarcus Butler turn off the lights of his vehicle’and make a u-turn in an apparent effort to avoid a police roadblock, Officer Gregory Jackson engaged the blue lights and siren of his patrol car and pursued Butler, at varying speeds, until Jackson’s superior officer instructed him by radio to desist. The fleeing Butler collided with a vehicle occupied by Margaret Stephens, Lee B. Lewis, and Oda Mae Green. Stephens died as a result of the crash, and Lewis and Green suffered severe injuries. Plaintiffs Lewis and Green, individually, and Sonya Stephens, on behalf of Margaret Stephens’s wrongful-death beneficiaries, filed suit in the Circuit Court of the First Judicial District of Hinds County against the City of Jackson, Mississippi. Following a bench trial in 2008, the trial court assessed 100 per cent of the fault to the City and entered judgment in favor of the Plaintiffs. The Court of Appeals reversed and rendered the circuit court’s holding, finding that Officer Jackson had not acted in “reckless disregard for the safety and well being of persons not engaged in criminal conduct,” and therefore, governmental immunity shielded the City from liability. City of Jackson v. Lewis, 2013 WL 2803891, at *1, 153 So.3d 714, 715-16 (Miss.Ct.App.2013).

¶ 3. Aggrieved, the plaintiffs sought review by this Court, asserting that the Court of Appeals: (1) misinterpreted the factors for determining reckless disregard by law enforcement personnel applied by this Court in City of Ellisville v. Richardson, 913 So.2d 973 (Miss.2005); (2) improperly weighed the evidence on appeal, made credibility determinations, and improperly rejected evidence that supports or reasonably tends to support the findings of the trial court; and (3) improperly substituted its judgment for the trial court’s credibility determination regarding expert testimony. We find dispositive the question of whether the Court of Appeals misinterpreted and misapplied the Richardson factors for determining reckless disregard by law enforcement officers. M.R.A.P. 17(h). Finding that the Court of Appeals erred, we reverse its judgment. We reverse the judgment of the Circuit Court of the First Judicial District of Hinds County and remand the case for an apportionment of damages.

FACTS

On August 21, 2001, at approximately 10:30 p.m., Officer Jackson was travel-, ing east on Monument Street in Jackson, Mississippi, en route to a roadblock set up at the intersection of Monument and Palmyra Streets. Officer Jackson observed a vehicle that was traveling east on Monument turn off its lights, make a u-turn, proceed west on Monument, and ultimately turn on Capers Avenue. Unbeknownst to Officer Jackson, Butler, the driver, had stolen the vehicle. When Officer Jackson observed the vehicle make a right onto Capers, he turned on his blue lights and siren and followed the vehicle down Capers. According to Officer Jackson, Butler seemed to slow down about five to ten miles per hour for a moment on Capers, as if he were going to stop. However, Butler did not stop, turning instead onto Green Avenue and then onto Capitol and Longino Streets while being followed by Officer Jackson. The two cars continued west on Longino, which becomes Maple Street after Longino’s intersection with Fortification Street.
Officer Jackson testified that while on Maple Street, between the intersections of Fortifieation/Longino and Maple/Martin Luther King Jr. Drive, Butler “punched it.” Officer Jackson radioed Sergeant Jonathan Crawford, his supervisor, and informed him of his whereabouts and that he was pursuing Butler for violating a traffic ordinance. At that time, Sergeant Crawford told Officer Jackson to terminate the pursuit. Officer Jackson stated that he turned off his blue lights and siren and slowed down, but continued on Maple. Officer Jackson stated that the last time he saw Butler was when Butler’s taillights passed through the Maple/Martin Luther King intersection. He further testified that as he continued on Maple, he saw smoke and debris in the air and notified dispatch that there was possibly an accident. When Officer Jackson arrived at the intersection of Maple and Bailey Avenue, he notified dispatch that indeed an accident had occurred and that an ambulance was needed. Butler’s vehicle had collided with the Plaintiffs vehicle after Butler ran through the traffic light.

Lewis, 2013 WL 2803391, at *1, 153 So.3d at 715-16.

STANDARD OF REVIEW

¶ 4. “A circuit court judge sitting without a jury is afforded the same deference as a chancellor.” City of Jackson v. Sandifer, 107 So.3d 978, 983 (Miss.2013) (citing City of Jackson v. Powell, 917 So.2d 59, 68 (Miss.2005)). This Court leaves undisturbed a circuit court’s findings following a bench trial unless the findings “are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sandifer, 107 So.3d at 983 (quoting Powell, 917 So.2d at 68). The circuit court’s findings “are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Jackson v. Law, 65 So.3d 821, 827 (Miss.2011) (quoting City of Ellisville v. Richardson, 913 So.2d 973, 977 (Miss.2005)). “Although 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.” Richardson, 913 So.2d at 978 (citing City of Jackson v. Brister, 838 So.2d 274, 277-78 (Miss.2003)).

DISCUSSION

¶ 5. The Mississippi Tort Claims Act (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 injury....” Miss.Code Ann. § ll-46-9(l)(c) (Rev. 2012). “Reckless disregard,” according to this Court, denotes “more than mere negligence, but less than an intentional act.” Law, 65 So.3d at 826 (quoting Miss. Dep’t of Pub. Safety v. Durn, 861 So.2d 990, 994 (Miss.2003)). Further, this Court “find[s] reckless disregard 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.’ ” Durn, 861 So.2d at 995 (quoting Maldonado v. Kelly, 768 So.2d 906, 910-11 (Miss.2000)).

¶ 6. In Brister, 888 So.2d at 280, this Court held that the standard articulated by the United States Court of Appeals for the District of Columbia “is instructive” in determining “whether a police chase constitutes reckless disregard.” The following six factors were considered: “(1) length of chase; (2) type of neighborhood; (3) characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; and (6) the seriousness of the offense for which the police are pursuing the vehicle.” Id. (citing District of Columbia v. Hawkins, 782 A.2d 298 (D.C.Ct.App.2001)). Justice McRae, concurring in result only in Johnson v. City of Cleveland, 846 So.2d 1031 (Miss.2003), included four additional factors: “(7) [wjhether the officer proceeded with sirens and blue lights; (8)[w]hether the officer had available alternatives which would [have] led to the apprehension of the suspect besides pursuit; (9)[t]he existence of police policy which prohibits pursuit under the circumstances; and (10)[t]he rate of speed of the officer in comparison to the posted speed limit.” Richardson, 913 So.2d at 977, 978 (citing Johnson, 846 So.2d at 1037 (McRae, P.J., concurring in result only)). In Richardson, this Court held that “it is appropriate for trial courts to consider all ten factors, and to look to the totality of the circumstances when analyzing whether someone acted in reckless disregard.” Richardson, 913 So.2d at 978.

¶7. At the time of Officer Jackson’s pursuit of Butler, the Jackson Police Department had in place policies regarding initiating and terminating pursuits, listed in General Order 600-20. With regard to the initiation of pursuits, General Order 600-20(2)(b) required that, “[bjefore initiating a pursuit the risks to society must be weighed against the benefits of apprehending the suspect.” General Order 600-20(2)(d) further provided that, “[ojfficers ■will initiate or continue a pursuit, of a law violator in a motor vehicle, only when the pursuit will be executed with caution so as not to create extreme or unreasonable danger for either the officer or the public.” (Emphasis added.)

¶8. General Order 600-20(5)(d)(l) provided:

Pursuits may be initiated when the officer knows that a felony has been committed and the officer has probable cause to believe that the individual committed the felony and the suspect’s escape is more dangerous to the community than the risks posed by the pursuit and the suspect clearly exhibits an intent to avoid arrest by using a vehicle to flee.

General Order 600-20(5)(d)(2) provided: The major factors for consideration of initiating a pursuit and/or the termination of a pursuit include the following:

a) safety of the public and officers,
b) seriousness of the offense/violation and the danger the suspect poses to the community if not immediately apprehended,
c) opportunity for delayed arrest of the violator,
d) traffic density and conditions,
e) weather and road conditions,
f) presence of passengers,
g) presence of pedestrians,
h) degree of control the suspect has over his vehicle,
i) speed and duration of the pursuit.

General Order 600-20(5)(d)(3) provided that, “[o]ffieers and supervisors must be constantly reassessing the pursuit to determine if it should be terminated.” (Emphasis added.)

¶ 9. With regard to the termination of a pursuit, General Order 600-20(5)(e)(2) required termination “if the identification of the offender is known and is: a) not an immediate threat[,] b) not a violent felony suspect[,] c) a juvenile and poses no threat[,] d) a juvenile or adult and has committed only a misdemeanor offense.” (Emphasis in original.) General Order 600-20(5)(e)(3) continued: “A pursuit shall be terminated if the pursuit exposes the public or the officer to more danger than the violation or conditions justify.” Dennis Waller, who testified for the plaintiffs as an expert in the field of law enforcement, opined that Officer Jackson’s conduct constituted “a number of violations of that policy,” referring to General Order 600-20. The trial judge agreed, noting:

Mr. Waller opines that the pursuit in question should have never been commenced inasmuch as Officer Jackson never observed the commission of a felony nor had probable cause to believe that a felony had been committed. He further opines that the pursuit in question also should never have been commenced because Officer Jackson failed to weigh the basic interests of apprehending the suspect compared to the risks to society. According to Mr. Waller, it was these considerations which were analyzed by Sgt. Jonathan Crawford, Officer Jackson’s superior, which caused him to terminate the pursuit.

¶ 10. The findings of the trial court with regard to Waller’s testimony at trial are supported by the incident reports and trial testimony of Sergeant Chuck Lee of the Jackson Police Department Investigation Division, who investigated Officer Jackson’s pursuit of Butler. Sergeant Lee’s report stated that Officer Jackson’s conduct violated General Order 600-20(2)(b), (2)(d), and (5)(d). Lee wrote, “with the known facts as it relates to this pursuit, it is my belief and interpretation of the Jackson Police Department’s Pursuit Policy, that officer Jackson did not abide by this stated policy.” Lee’s supervisor, Lieutenant Greg King, agreed and wrote a memorandum concurring with Lee’s findings. At trial, Lee maintained that the pursuit policy had been violated. That said, Detective Ricky Purvis of the Jackson Police Department Internal Affairs Division wrote that he was not “able to find evidence to prove that Officer Jackson violated any of the department’s regulations as it relates to pursuits.”

¶ 11. The circuit judge found that “[t]he act of operating a vehicle [at night] without lights is a misdemeanor traffic violation,” and the Court of Appeals agreed: “[t]he factor examining the seriousness of the offense for which police are pursuing the suspect does not weigh in the City’s favor, as violating a traffic ordinance is hardly serious enough to trigger the initiation of a pursuit.” Lewis, 2013 WL 2303391, at *4, 153 So.3d at 718. The Court of Appeals concluded that “Officer Jackson undoubtedly violated JPD’s General Order by failing to weigh the seriousness of Butler’s offense against the risk of harm to the public. He was only aware of Butler committing a misdemeanor traffic violation at the time of the pursuit, not a felony.” Lewis, 2013 WL 2803391, at *3, 153 So.3d at 717.

¶ 12. We agree with the trial court and the Court of Appeals that the Jackson Police Department had in place, at the time of the pursuit of Butler by Officer Jackson, General Order 600-20, an official policy which prohibited continued pursuit under the circumstances. The Court of Appeals correctly noted that “the violation of a police policy is not dispositive of reckless disregard, but such violation is only one factor of ten to be considered.” Id. (citing City of Jackson v. Presley, 40 So.3d 520, 524 (Miss.2010)). We do not agree, however, that Officer Jackson’s initiation of pursuit violated General Order 600-20. But continuing pursuit, realizing that the suspect was unlikely to stop, constituted a violation of his department’s established policy. This Court “anchored” its decision in Brister “on the fact that the officers involved in the chase were violating a departmental order that a pursuit may only be initiated when a suspect’s escape is more dangerous to the community than the risk posed by the pursuit. Dum, 861 So.2d at 995 (citing Brister, 838 So.2d at 280) (emphasis added).

¶ 13. As with the “existence of a police policy which prohibits pursuit,” the trial court and the Court of Appeals agreed with regard to some of the Richardson factors. The circuit judge found that the pursuit “occurred at night where visibility was not as clear.” Officer Jackson signaled to the suspect with his blue lights during the pursuit, as noted by the trial judge. While the circuit court did not address the characteristics of the street in its Opinion and Order, Waller drove the route in preparation for trial and testified to “some variances of the road” beyond Fortification going east on Maple, and that the road “jogs to the left after a stop sign.”

¶ 14. The issue of the length-of-pursuit factor, however, is less clear. According to the trial court’s Opinion and Order, “[t]he investigation revealed that from the start of the pursuit until the accident, the distance was approximately 1.8 miles” and “the length of the pursuit in a measure of time was less than (4) minutes.” The parties dispute and the lower courts do not-agree, however, whether Officer Jackson actually ended his pursuit at the time Sergeant Crawford, Officer Jackson’s immediate supervisor, instructed him to do so. The trial court concluded that “the pursuit continued even though the officer was ordered to terminate the pursuit.” The Court of Appeals disagreed that Officer Jackson had failed to terminate the pursuit: “he complied, turning off his blue lights and siren although he continued on Maple Street.” Lewis, 2013 WL 2303391, at *3, 153 So.3d at 718. The Court of Appeals continued, “[tjhere is also no indication in the record that Officer Jackson was speeding or that there was a danger of harming someone,” and concluded “there was no deliberate disregard on Officer Jackson’s part.” Id. at *5, at 719.

¶ 15. Dennis Waller, accepted by the trial court as an expert in the field of law enforcement, stated that turning off the blue lights and siren is part of the termination procedure, but continued: “simply [to] turn your emergency equipment off and continue following the person at speeds greater than the speed limit or just continue following is not terminating because it doesn’t have the impact of affecting the perception of the driver you’re pursuing, and that’s who you are trying to get to slow down for the safety of the community.” Waller’s testimony that Officer Jackson failed to terminate the chase completely is consistent with this Court’s articulation of the applicable standard: “[t]he officer will either come to a complete stop in a safe location and await further instructions from the supervisor, or travel in the opposite direction of travel from the pursuit.” Law, 65 So.3d at 831 n. 11. Officer Jackson, as did the officer in Law, admitted at trial that he continued traveling in the direction of the pursuit. Id. He failed to take the sufficient steps required to communicate to the pursued suspect that the pursuit was at an end.

¶ 16. Also disputed was the speed at which Officer Jackson pursued Butler, the trial court found that “Officer Jackson pursued the vehicle driven by LaMarcus Butler for 1.8 miles at a speed well above the speed limit.” The Court of Appeals disputed the circuit court’s recitation of the facts, noting that “for approximately 1.2 miles of this distance, neither Butler nor Officer Jackson exceeded the posted speed limit.” Lewis, 2013 WL 2303391, at *3,153 So.3d at 717.

¶ 17. Officer Jackson testified that, throughout his pursuit of Butler, he maintained speeds within the posted speed limits. But, according to Officer Jackson, “[a]s soon as [Butler] got to the Maple Street Apartments, the driver of the pursued vehicle “punched it.” He continued, “[a]nd I believe at that time Sergeant Crawford asked me what my rate of speed was I believe. I’m not sure. And, as I was telling him, I guess the vehicle — the last I saw of the vehicle it was just crossing over [Martin Luther King, Jr., Drive].” Officer Jackson’s report stated that he continued to follow Butler’s vehicle beyond Martin Luther King Jr. Drive at a speed of forty miles per hour. Jackson testified that Maple Street had a posted speed limit of thirty-five miles per hour. He estimated Butler’s speed to be greater than sixty miles per hour.

¶ 18. The trial testimony of Waller conflicts with Officer Jackson’s assertions that he maintained the speed limit, even in the last, fateful stretch of the pursuit (six-tenths of a mile). Waller testified that the fact that Officer Jackson “saw flying debris and smoke at the intersection of Maple Street and Bailey” suggests that his speed would have to have been close to sixty miles per hour. Waller continued, “I don’t think that he would have been able to see flying debris if he had stopped or slowed down significantly.” Officer Jackson reported and testified, both in his interviews and at trial, that he knew an accident had occurred because he saw smoke and debris emanating from the Maple/Bailey intersection.

¶ 19. The Court of Appeals wrote, ‘Waller’s testimony that Officer Jackson pursued Butler for 1.8 miles at a speed well above the speed limit was simply a misunderstanding of the facts.” Lewis, 2013 WL 2303391, at *4, 153 So.3d at 718-19. But Waller never testified specifically that Officer Jackson and Butler had exceeded the speed limit during the entire pursuit. We agree that the trial court seemed erroneously to assume that the entire pursuit was high-speed, but this assumption was not based on anything that Waller had asserted. Waller agreed that the pursuit initially involved a relatively low speed; but when Butler and Officer Jackson reached Maple Street, both sped up to around sixty miles per hour. Waller testified that “60 miles per hour on Maple, it’s extremely reckless and probably homicidal.” Officer Jackson’s testimony that he saw flying debris provided an evidentia-ry foundation for Waller’s assertion that Officer Jackson was speeding closely behind Butler, and that Officer Jackson had not terminated pursuit of Butler at the time of the collision. It cannot be said that substantial evidence does not under-gird the findings of the trial court.

¶ 20. As to the type-of-neighborhood factor, the trial court concluded that “[t]he pursuit continued through a part of a residential area which bordered a library, convenience stores, at least two (2) apartment complexes, two (2) public parks and (2) schools.” The Court of Appeals agreed. But the parties and the lower courts dispute the presence of vehicular or pedestrian traffic on the night in question. Waller testified that law enforcement officers usually set up roadblocks in areas “where there would be some moderate amount of traffic” and that “there [were] obvious reasons why the sergeant terminated the pursuit. And I [Waller] can only surmise that one of those would be his knowledge of that area and the pedestrian and vehicular traffic at that time of day.”

The trial court articulated the same logic in its Opinion and Order, but the Court of Appeals disagreed. According to the Court of Appeals, “[t]here is nothing in the record that evidences the presence of pedestrian or vehicular traffic that night other than assumptions made by Plaintiffs’ expert, Dennis Waller....” Lewis, 2013 WL 2303391, at *3,153 So.3d at 718.

¶21. We find germane the knowledge of law enforcement authorities regarding, at a minimum, the potential for vehicular or pedestrian traffic in a particular area within their jurisdiction at a particular time of day. While it is true that no explicit fact testimony adduced at trial supports the assertion that traffic was heavy on the night in question, Sergeant Crawford testified that the presence of “stores, parks, schools, churches, houses, [and] residential areas” factors heavily into a decision whether or not to pursue. Crawford instructed Jackson to end pursuit: “I ordered it to be terminated due to the fact that I deemed it to be — would be possibly unsafe for the public.” (Emphasis added.) Further, Chuck Lee, a sergeant with the Jackson Police Department who investigated the incident, testified that the intersection where the collision occurred was a busy intersection. This testimony supports Waller’s expert opinion that Officer Jackson’s superior officer would not have terminated pursuit but for legitimate concerns regarding the potential for a high volume of traffic in the area.

¶ 22. The circuit judge did not mention in his Opinion and Order whether available alternatives to pursuit existed for Officer Jackson. But Jackson himself testified that, at one point during the pursuit, he was close enough to the suspect’s vehicle to see its license plate. He testified that, notwithstanding his ability to see it, he did not obtain the license plate information, nor did he convey that information to his dispatcher by radio. This Court in Brister found that the City of Jackson acted with reckless disregard, in part because the pursuing officers “[easily] could have ... written down the tag number.” Brister, 838 So.2d at 280.

¶ 28. The Court of Appeals noted that “it is unlikely that there were any available alternatives that would have led to Butler’s apprehension, as Officer Jackson did not know Butler’s identity at the time of the pursuit, which would have helped him locate Butler later.” Lewis, 2013 WL 2303391, at *4, 153 So.3d at 718 (citing Law, 65 So.3d at 829-30 (“The Jackson Police Department’s Pursuit Policy specifically stated that a factor in favor of terminating a chase is whether the suspect’s identity is known and apprehension at a later time is feasible.”)). But Officer Jackson did not avail himself of a very ready means of potentially identifying the suspect, the tag number of the car he was driving.

Totality of the Circumstances

¶ 24. The circuit court found that the totality of the circumstances preponderated in favor of the plaintiffs and that Officer Jackson’s conduct evinced reckless disregard for the public. The court concluded:

The investigation revealed that from the start of the pursuit until the accident, the distance was approximately 1.8 miles. Further, when Sgt. Crawford instructed Officer Jackson to stop the pursuit on Maple Street, Officer Jackson had pursued the vehicle for approximately 1.2 miles. The length of the pursuit in a measure of time was less than four (4) minutes. Officer Jackson testified that while pursuing Butler he ran at least three (3) traffic lights, and two (2) stop signs. The pursuit continued through part of a residential area which bordered a library, convenience stores, at least two (2) apartment complexes, two (2) public parks and two (2) schools. Moreover, the pursuit continued even though the officer was ordered to terminate the pursuit.

The Court of Appeals disagreed with the trial court’s reasoning, finding instead that “[t]he record does not show an unreasonable risk involved that night, despite the neighborhood consisting of parks, schools, and various other places where people are likely to gather.” ' Lewis, 2013 WL 2303391, at *5,153 So.3d at 719.

¶ 25. But this Court recently has held that evidence supported a finding of reckless disregard where the officer had pursued a suspect whom the officer knew to be a drug user and a prostitute. Law, 65 So.3d at 823. The suspect’s vehicle struck the one in which the Laws were traveling, causing injury to both of its occupants. Id. There, the pursuing officer’s supervisor had instructed him to terminate pursuit if the suspect started running red lights. Id. at 831. The officer continued the pursuit, “knowing he had no way to make [the suspect] stop.” Id. Further, even, though the officer did not chase the suspect to the point of impact, “he did not follow protocol for terminating the pursuit.” Id.

¶ 26. Indeed, the Court noted a number of mitigating circumstances in Law: “[the officer] eventually lost sight of [the suspect], eventually realized the dangerousness of the situation, decreased his speed, and did not pursue [the suspect] directly to the crash site_” Id. at 832. In the present case, Officer Jackson pursued Butler through stop lights and, despite the relatively slow pace of the pursuit, knew or should have known that Butler was not going to stop and that he, the pursuing officer, had no way to effectuate a stop. Further, as discussed in greater detail above, Officer Jackson did not follow established protocol for terminating the pursuit by subjectively signaling to Butler that pursuit had ceased.

¶ 27. Richardson involved a similar situation. There, an officer pursued a suspect for whom police had outstanding warrants. Richardson, 913 So.2d at 975. As in Law, the pursued suspect’s vehicle collided with the vehicle of a third party, causing injuries. Id. The Court refused to reverse the trial court’s finding of reckless disregard where “there was ample evidence to support violations of the City of Ellisville’s Pursuit of Motor Vehicles policy.” Id. at 979. The Court continued, “[t]he chase was not the result of a serious crime being committed at the moment. The two vehicles were exceeding the speed limit in a residential neighborhood, in the dark, with a low probability of apprehending the suspect....” Id. Thus, the Court found ample evidence supporting the trial court’s finding of reckless disregard. Id. at 982.

¶ 28. Here, Officer Jackson observed Butler violating a traffic ordinance, which was a misdemeanor offense, by turning off his car’s headlights and making a U-turn, ostensibly to avoid a police roadblock. With knowledge that the offending driver was traveling at night with headlights turned off, Officer Jackson pursued the vehicle for approximately 1.2 miles at a relatively moderate speed. Despite the initial speed of both vehicles, Officer Jackson testified that he ran three red traffic lights and two stop signs in pursuit of Butler’s car, knowing that the headlights on Butler’s car were not illuminated. Officer Jackson testified that, at one point, he could have availed himself of an opportunity to relay the tag number of Butler’s vehicle to dispatch, but chose not to do so.

¶ 29. Further, Officer Jackson violated various mandates of his department’s General Order 600-20 and failed to perform the requisite balancing of the gravity of the offenses the driver had committed versus the danger posed to the public by pursuing a fleeing vehicle. Most egregious was Officer Jackson’s wanton defiance of the order of his superior to terminate pursuit and his failure to comply with the standard articulated by this Court for communicating termination to the pursued party. Butler, for at least the final six-tenths of a mile of the chase, according to Officer Jackson, “punched it,” rapidly accelerating on a city street to what appeared to Officer Jackson to be about sixty miles per hour. According to Waller, because Officer Jackson was in a position to see flying debris, he too was traveling at around sixty miles per hour and continued in pursuit of Butler at the time of the collision.

¶30. Based on the totality of the circumstances, Officer Jackson recklessly disregarded the safety of the public by pursuing Butler. We cannot say that the trial court’s finding was unsupported by substantial evidence.

¶ 31. Nevertheless, on rehearing, we reverse the judgment of the Circuit Court of the First Judicial District of Hinds County and remand the case for further proceedings. The court held that “the acts and/or omissions of The City of Jackson and Officer Gregory Jackson ... were the proximate contributing causes of the accident at issue and constituted one hundred percent (100%) of the injuries sustained by the Plaintiffs.” The City of Jackson raised the issue of apportionment in its Reply Brief before the Court of Appeals, but argued that “the trial court failed to apportion percentages of fault for each party alleged to be at fault.” We find that the court did, in fact, apportion percentages of fault. But substantial evidence does not support the court’s finding that Butler’s actions “w[ere] not a proximate contributing cause of the accident at issue and constitute^] zero percent (0%) of the injuries sustained by the Plaintiffs.” Butler prompted the pursuit, and his vehicle actually collided into the one occupied by Stephens, Lewis, and Green. We therefore reverse and remand for an apportionment of damages, which shall take into account this contributing cause.

CONCLUSION

¶ 32. Substantial evidence adduced at trial amply supports the trial court’s finding that the City of Jackson, through Officer Jackson, acted with reckless disregard for the safety of the public on August 21, 2001, resulting in the death of Stephens and injury to Lewis and Green. Therefore, the City of Jackson may not avail itself of governmental immunity under the Mississippi Tort Claims Act. We reverse the judgment of the Court of Appeals, and we reverse the judgment of the Circuit Court of the First Judicial District of Hinds County and remand the case for proceedings consistent with this opinion.

¶ 33. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS.

WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER AND KING, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY PIERCE AND COLEMAN, JJ.

DICKINSON, Presiding Justice,

concurring in part and dissenting in part:

¶ 34. The majority’s erosion of the Legislature’s public-policy decision to provide protection to police officers is improper, inappropriate, and unsupportable. The facts in this case do not come close to establishing that Officer Jackson acted with “reckless disregard of the safety and well-being” of the public, so I respectfully dissent.

¶ 35. We all agree that the Mississippi Tort Claims Act provides immunity to Officer Jackson unless he acted in “reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury....” We have held unambiguously, in the context of the Mississippi Tort Claims Act, “willful and wanton are synonymous with reckless disregard ... and that “reckless must connote ‘wanton or willful,’ because immunity lies for negligence.” We have further held that “ ‘wanton’ and ‘reckless disregard’ are just a step below specific intent,” and that “ ‘reckless disregard’ embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.”

¶ 36. Given the level of culpability our precedent requires for a finding of “reckless disregard,” I am prepared to say that — as a matter of law — Officer Jackson’s conduct did not amount to “reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury....”

¶ 37. At around 10:30 at night, Officer Jackson saw the suspect turn off his headlights and take a turn to avoid a road block. He pursued the car through a residential area for a short distance — 1.2 miles — without exceeding the speed limit, and he used his blue lights and sirens. After Officer Jackson radioed in, Sergeant Jonathan Crawford instructed him to end the pursuit. Officer Jackson complied and turned off his blue lights and sirens. At this point, the parties dispute whether Officer Jackson continued the chase after shutting off his lights and sirens, but all parties agree that he continued to travel in the same direction as Butler. Officer Jackson’s speed for the last six-tenths of a mile, also is in dispute. But, even if Officer Jackson did continue in Butler’s direction in excess of the speed limit for six-tenths of a mile, there is no evidence that his conduct was anything more than simple negligence. And, even if one argues that speeding in a residential area for six-tenths of a mile is grossly negligent, still, it cannot be said that this amounted to willful and wanton conduct or a reckless disregard for the safety of the public.

¶ 38. Neither Officer Jackson’s “continued” pursuit nor the resulting possibility that he violated a Jackson Police Department general order rises to the level of reckless disregard for the safety of the public. The majority disagrees with the Jackson Police Department’s Internal Affairs Department, which found that Officer Jackson did not violate a Jackson Police Department policy by continuing in the direction of the suspect after shutting off his blue lights and sirens. But again, even if he did, the violation of this policy — under these circunistances — cannot be considered reckless disregard for the public safety-

¶ 39. The majority also finds that Officer Jackson’s “failure to terminate pursuit, in spite of clear instructions from a superi- or officer to do so, constitutes reckless disregard, and exemplifies the wanton or wilful conduct....” I cannot agree. First, Officer Jackson did terminate his pursuit; no party contests that he turned off his blue lights and sirens, and he testified he also slowed down. Instead, the majority finds that, because Officer Jackson continued to travel in the direction of the suspect — after obeying orders to turn off his blue lights and sirens — he wantonly defied the order of his superior officer. And such a defiance amounts to a reckless disregard. Even if the facts are as the majority states, this conduct does not amount to an act that is “just a step below specific intent,” and it is not willful, intentional, or knowing disregard for public safety, and thus cannot amount to reckless disregard.

¶ 40. Because Officer Jackson clearly did not act with a reckless disregard for public safety, I would reverse and render a judgment in the City’s favor. So I respectfully concur in part and dissent in part.

PIERCE AND COLEMAN, JJ., JOIN THIS OPINION.

      . Butler, whose death certificate appears in the record, died at age 19 on May 28, 2004, of two gunshot wounds to the back. Those wounds were not related to the present case.

      . The circuit court assessed the following damages: $100,000 for Lewis, $100,000 for Green, and $500,000 for Stephens’s estate. Pursuant to the statute limiting governmental liability to a total of $500,000 for acts or omissions occurring on or after July 1, 2001, the circuit court reduced the award as follows: $71,428.57 for Lewis, $71,428.57 for Green, and $357,142.86 for Stephens’s estate. Miss.Code Ann. § 11-46-15 (Rev. 2012).

      . Facts are taken verbatim from the opinion of the Court of Appeals.

      . The accident report cites 21:41 as the time of the collision, which translates to 9:41 p.m. So Officer Jackson would have observed Butler’s vehicle and commenced pursuit some time before 9:41 p.m.

      . See Miss.Code Ann. § 63-7-7 (Rev. 2013) (“It is a misdemeanor for any person to drive ... any vehicle ... which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter.... ”); Miss.Code Ann. § 63-7-11 (Rev. 2013) ("Every vehicle upon a highway within this state during the period from sunset to sunrise and at any other tíme when there is not sufficient light to render clearly discernible shall be equipped with lighted front and rear lamps _") (emphasis added).

      . The Court of Appeals’ determination that Officer Jackson’s initiation of pursuit violated General Order 600-20 is overly broad. The mere fact that Officer Jackson "blue-lighted” the suspect after observing him turn off the car’s headlights and make a u-turn cannot be construed as error on Officer Jackson’s part. The danger posed to the public by a person's driving a vehicle after dark without headlights illuminated, clearly a law violation, necessitates pursuit by police. See Miss.Code Ann. §§ 63-7-7, -11 (Rev. 2013). But here, when it became apparent that the suspect did not intend to stop, at that point Officer Jackson should have reassessed the propriety of continued pursuit as required by the police department’s applicable policy.

      . According to Waller, this is the point at which Longino Street turns into Maple Street at Fortification Street.

      . In fact, at the time of Officer Jackson's pursuit of Butler, the Jackson Police Department’s policy, General Order 600-20(5)(c)(l)(d), (e), and (f) required officers initiating a pursuit to notify the Communications dispatcher a “complete description of suspect vehicle,” the vehicle’s “license plate information,” and the "suspect vehicle occupant information, number, sex, and description...." While Officer Jackson testified that he remained in communication with dispatch, he acknowledged that he did not transmit the tag number. Relation of this information could have led Officer Jackson to a realization that the vehicle Butler was driving happened to have been stolen. Knowledge that a felony had been committed might have made pursuit reasonable under General Order 600-20. But Jackson pursued the fleeing vehicle in the absence of such knowledge.

      . Our colleagues in the dissent would hold that Officer Jackson’s conduct did not rise to the level of culpability required under our precedent for a finding of "reckless disregard.” With respect, we disagree. We agree that reckless disregard requires wilful or wanton conduct, which this Court has defined as "knowingly and intentionally doing a thing or wrongful act,” as the dissent points out. City of Jackson v. Lipsey, 834 So.2d 687, 692 (Miss.2003) (citations omitted). But failure to terminate pursuit, in spite of clear instructions from a superior officer to do so, supports a finding of reckless disregard, and exemplifies the wanton or wilful conduct contemplated by this Court.

      . Miss.Code Ann. § 11 — 46—9(l)(c) (Rev. 2012).

      . Id.

      . Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss.1999);

      . Id.

      . Id. (citing Evans v. Trader, 614 So.2d 955, 958 (Miss.1993)).

      . City of Jackson v. Lipsey, 834 So.2d 687, 692 (Miss.2003) (citations omitted).

      . Id.

      . Miss.Code Ann. § 11 — 46—9(l)(c).

      . Whether he traveled at forty or sixty miles per hour when the posted speed limit was thirty-five is in question.

      . The trial court found that Officer Jackson's pursuit lasted a total of 1.8 miles.

      . Turner, 735 So.2d at 230 (citations omitted).


source: Caselaw Access Project

author: WALLER, Chief Justice,

license: Public Domain

text:
    Clayton Frank GUTIERREZ v. Trisha GUTIERREZ.
    No. 2013-CA-00779-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2014.

      David A. Pumford, Hattiesburg, attorney for appellant.
    Dean Holleman, attorney for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Clayton Gutierrez appeals from the divorce judgment of the Chancery Court of Harrison County, Second District, in which the chancellor granted Clayton’s wife Trisha lump-sum and periodic alimony incident to the divorce and found Clayton in contempt for failing to make court-ordered support payments to Trisha. Finding a lack of record support in the allocation of marital liabilities, we reverse the chancery court’s judgment and remand for further proceedings.

FACTS & PROCEDURAL HISTORY

¶ 2. Clayton and Trisha married on December 12, 1987. At the time, Clayton worked for his family’s seafood business, and Trisha was a student teacher. They had three children during their marriage. The parties separated in December 2009 but remained living together in the marital home. At the time of the separation, Trisha did not have a job outside the home. Clayton was still working for his family’s business, but he also worked in real estate and construction. Following the separation, Trisha enrolled at William Carey College and became recertified to teach, eventually obtaining a job as a first-grade teacher at D’Iberville Elementary School.

¶ 3. Trisha filed for divorce in March of 2010, and Clayton filed a counterclaim for divorce in response. Although the parties initially asserted various fault grounds for divorce, eventually they agreed to proceed on the ground of irreconcilable differences. In their Voluntary Consent to Divorce, the parties reached an agreement for the custody and visitation of the children. The parties’ remaining contested issues dealt primarily with the equitable distribution of marital assets and liabilities.

¶4. Several temporary hearings were held prior to the final trial on the merits. In a May 4, 2010, temporary order, the chancery court ordered Clayton to “continue to pay the necessities of the marriage, including but not limited to utilities, mortgages, cellular telephones, automobile notes, automobile insurance, health insurance, gas and groceries of the wife.” Subsequent to the entry of this order, Trisha filed several motions for citation of contempt against Clayton, claiming that he had failed to pay for necessary family expenses. The chancery court ruled on Trisha’s first motion, finding Clayton in contempt for failing to pay $7,656.27 in necessary expenses. However, the chancellor reserved ruling on all other subsequent contempt issues until the trial on the merits.

¶ 5. A trial on the contested issues was held in April 2012. The majority of the evidence presented at trial focused on the value of Clayton’s interests in various business ventures, including his family’s seafood business, Global Seafood Technologies, Inc. Evidence regarding the parties’ net worth was highly conflicting. The chancellor noted that Clayton had represented his family’s net worth to be as high as $13,000,000 in financial statements given to banks two years prior to the filing of the divorce, but that this figure had shrunk to $1,400,000 a few weeks after Trisha filed her divorce complaint. By the time of trial, Clayton represented his net worth to be zero. Annette Herrin, a court-appointed business valuation expert, and James C. Stokes, Clayton’s accountant, each offered their respective opinions regarding the value of Clayton’s various business interests. Herrin placed a value on Clayton’s equity interests in his various business ventures at $618,500. Stokes claimed that Clayton’s net worth was approximately -$70,000, but could drop as low as -$800,000 due to other potential liabilities.

¶ 6. In its divorce judgment, the chancery court granted the parties a divorce on the grounds of irreconcilable differences and adopted the parties’ child-custody and visitation agreements. Then, the chancellor reviewed the Ferguson factors for the equitable distribution of marital property and divided the parties’ marital estate into four categories: (1) assets available to be distributed, (2) assets already distributed or sold, (3) assets foreclosed on and sold, and (4) Clayton’s business interests. The chancellor determined that the net marital estate, which consisted primarily of Clayton’s business interests, was valued at $501,647, allocating $35,685 to Trisha and $465,962 to Clayton. Trisha’s share of the net marital estate consisted of her vehicle, her checking and retirement account, the couple’s interest in several parcels of real estate, and proceeds from other marital assets that had been sold during the divorce. The chancellor balanced the apportionment of assets by granting Trisha lump-sum alimony of $215,139.50, to be paid in five annual installments. In addition, after considering the Armstrong factors, the chancellor awarded Trisha $2,000 per month in permanent alimony.

¶7. With respect to Trisha’s previous contempt motions, the chancellor found Clayton in contempt for failing to pay $16,019 in family expenses as required by previous temporary orders, entered judgment in that amount in Trisha’s favor, and awarded Trisha $2,500 in attorney’s fees.

¶ 8. Clayton now appeals from the chancery court’s judgment, raising the following issues:

I.Whether the chancery court erred in its calculation of marital assets and liabilities.
II. Whether the chancery court erred in its valuation of Clayton’s interest in Global Seafood Technologies, Inc.
III. Whether the chancery court erred in awarding Trisha lump-sum and periodic alimony.
IV. Whether the chancery court erred in finding Clayton in contempt of court and awarding Trisha a judgment and attorney’s fees for the same.

STANDARD OF REVIEW

¶ 9. A chancellor’s findings will not be disturbed upon review unless the chancellor was manifestly wrong, clearly erroneous, or applied an incorrect legal standard. A.B. v. Y.Z., 60 So.3d 737, 739 (Miss.2011). Where there is a question of law, the appellate court applies a de novo standard of review. Estate of Davis v. O’Neill, 42 So.3d 520, 524 (Miss.2010). “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (Miss.2000) (citing Hammett v. Woods, 602 So.2d 825, 827 (Miss.1992)).

DISCUSSION

I. Whether the chancery court erred in its calculation of marital assets and liabilities^

¶ 10. Clayton claims that the chancery court made several serious errors in its calculation of marital assets and liabilities which, taken together or individually, skewed the court’s equitable distribution and require reversal. Specifically, Clayton attacks the chancery court’s division of the second mortgage on the marital home and valuation of his interest in his family’s seafood business and other business ventures. Clayton’s argument regarding the valuation of his family’s seafood business will be discussed later in Section II of this opinion. We discuss each of Clayton’s other assignments of error separately.

A. Whether the chancellor incorrectly divided the second mortgage on the marital home as a liability to both parties.

¶ 11. The parties’ marital home was subject to two mortgages at the time of the separation. Prior to trial, the bank holding the first mortgage foreclosed on the house, and it was sold for $828,000. This amount covered all of the first mortgage and left a balance of $341,686 on the second mortgage. In determining how the marital estate should be distributed, the chancellor assessed the balance of the second mortgage equally as a $170,818 liability to both Clayton and Trisha. Clayton argues that the chancery court should have assigned the entire second mortgage as a liability to him. Increasing the allocation of debt Clayton is required to pay on the second mortgage would decrease the assets to be awarded to Trisha. Clayton claims that the trial court’s error in allocating the second mortgage calls into question its large award of lump-sum alimony to Trisha.

¶ 12. During trial and at other hearings before the chancery court, Clayton testified that, although both he and Trisha had signed the deed of trust on the second mortgage, Trisha had not signed the promissory note. Therefore, according to Clayton, Trisha would not be responsible for repaying any of the outstanding balance on the second mortgage. The chancellor recognized this fact in the judgment of divorce, noting that responsibility for the second mortgage was Clayton’s alone. The chancellor also listed the second mortgage as one of Clayton’s debts during his discussion of the Armstrong factors for awarding alimony.

¶ 13. The record does not contain evidence that demand has ever been made for the deficiency on the second mortgage, which is required under Mississippi law before a mortgagee can collect a post-foreclosure deficiency. See Lake Hillsdale Estates, Inc. v. Galloway, 473 So.2d 461, 466 (Miss.1985) (“[A] mortgagee’s right to a deficiency decree is not absolute.”); Miss. Valley Title Ins. Co. v. Horne Constr. Co., Inc., 372 So.2d 1270, 1272 (Miss.1979) (“[Sjince the mortgaged premises constitute the primary fund for the payment of the mortgage debt, it is only where the mortgagee has endeavored to collect it out of the land that a just judgment for deficiency can be entered.”). Assuming that the holder of the second mortgage intends to collect on the remaining balance, neither party has cited any authority addressing whether Trisha can be held legally responsible for paying the deficiency if Clayton cannot pay. Also, while the chancellor noted that Clayton might not have to pay back the deficiency, he never expressly addressed the parties’ respective obligations in the event the second mortgagee did obtain a deficiency judgment.

¶ 14. After reviewing the evidence presented at trial and the chancellor’s divorce judgment, this Court cannot determine the chancellor’s rationale with respect to the allocation of the parties’ second mortgage. It appears from the record that Trisha did not sign the note that was secured by the second mortgage, and was not legally responsible for it. Nevertheless, the chancellor ordered her to pay half of that obligation. This Court is unable to ascertain whether the chancellor mistakenly ordered her to pay half the note, or instead ordered her to pay half the note as a part of the chancellor’s equitable distribution of all the marital assets and liabilities. We therefore reverse the chancellor’s equitable distribution of the parties’ assets and liabilities and remand this case for a more definite explanation and finding regarding the second mortgage debt, if any.

B. Whether the chancellor erred in valuing Clayton’s interest in several business ventures at zero, rather than negative figures.

¶ 15. Clayton argues that Annette Herrin, a court-appointed business valuation expert, incorrectly assigned values of zero to his ownership interests in two business entities, Biloxi Realty Group, LLC, and G & G Trading Company, Inc., where his interests in those entities should have been given negative values. Thus, Clayton argues that the chancellor erred in relying on Herrin’s findings in calculating the value of Clayton’s share of the marital estate.

¶ 16. Clayton owns a twenty-five percent interest in both Biloxi Realty and G & G. Using the net-asset valuation method, and excluding any type of personal or professional goodwill, Herrin determined that the liabilities of each of these entities exceeded the value of their assets. Herrin also noted that some of the entities’ liabilities consisted of loans owed either to each other or to other businesses in which Clayton had an ownership interest. Ultimately, Herrin valued Clayton’s interests in Biloxi Realty and G & G at -$242,966 and - $5,416, respectively. However, at the end of her valuation reports, Herrin listed the values of Clayton’s interests in Biloxi Realty and G & G as “NONE.”

¶ 17. In response to Herrin’s report and testimony, Clayton called his accountant, James C. Stokes, to testify regarding the value of Clayton’s business interests. Stokes testified that he agreed with Her-rin’s report and understood how she reached her results, but he disagreed with the fact that she had ignored Clayton’s negative equity in Biloxi Realty and G & G. In Stokes’s opinion, the excess liabilities owed by Biloxi Realty and G & G either should have been recognized as negative figures, or they should have been written off and shown as income. Stokes also alleged that Clayton was personally liable for the debts of Biloxi Realty and G & G. Based on the values included in Herrin’s report and Clayton’s financial disclosures to the Court, Stokes opined that Clayton had a net worth of -$70,000. However, Stokes stated that Clayton’s net worth could be as low as -$800,000 if his interests in Biloxi Realty and G & G were given negative value rather than zero value and if Clayton was called on personally to repay the entities’ debts.

¶ 18. We find that the chancellor did not err in accepting Herrin’s valuation of Clayton’s business interests over the valuations by Clayton and Stokes. “[A] chancellor is justified in rejecting the values an appraiser places on assets where there is reason to doubt the trustworthiness of the appraisal.” A & L, Inc. v. Grantham, 747 So.2d 832, 842 (Miss.1999) (citing Carrow v. Carrow, 642 So.2d 901, 907 (Miss.1994)). In its judgment of divorce, the chancery court recognized the discrepancies between Clayton’s financial disclosures to the court and the other evidence presented at trial, noting that “[t]he court was troubled, more than once, by [Claytonj’s testimony and his lack of truthfulness regarding the assets of the marital estate and his earnings.” In addition, when addressing the need for alimony in this ease, the chancellor stated, “The ability of this court to determine [Clayton]’s earning capacity is difficult. His lack of truthfulness was evident throughout. His exaggerated lifestyle, i.e., hunting, traveling, extravagant home, were not consistent with lack of earnings.” The chancellor found that Clayton had presented no documentation to support his claim that he was personally liable for the debts of Biloxi Realty or G & G. The chancellor rejected Stokes’s valuations because they were based on mere speculation regarding potential liabilities. Accordingly, the chancellor held that Clayton had failed to show that Herrin’s valuation of his business interests was incorrect. We find that the chancellor’s ruling was not manifestly incorrect and was supported by substantial credible evidence.

II. Whether the chancellor erred in its valuation of Clayton’s interest in Global Seafood Technologies, Inc.

¶19. Clayton owns a 13.5646% interest in Global Seafood. Global Seafood is a publicly traded corporation, but its stock is currently delisted. Herrin did not use the price of Global Seafood’s stock to determine the value of Clayton’s interest in the company. In fact, Clayton did not present any evidence at trial regarding the price of Global Seafood’s stock. Instead, Herrin determined the net value of the corporation’s assets and then calculated Clayton’s interest as a percentage of that value, taking into account a lack-of-control discount. Using this method, Herrin determined that Clayton’s interest in Global Seafood was worth $379,900. Clayton did not present any evidence contradicting Herrin’s valuation, and the chancellor relied on Herrin’s valuation in determining the equitable distribution of marital assets.

¶ 20. On appeal, Clayton concedes that Mississippi law requires an asset-based approach to business valuations in divorce cases, as goodwill is not an asset that can be divided between the spouses. See generally Yelverton v. Yelverton, 961 So.2d 19, 29 (Miss.2007). Nevertheless, Clayton maintains that Herrin incorrectly valued his interest in Global Seafood because he owns only stock and has no control over the sale of the company’s assets.

¶21. Clayton argues that the chancery court impermissibly pierced the corporate veil by valuing his ownership interest as a percentage of the value of the company’s assets. It is true that the chancery court generally cannot divide assets belonging to a corporation through equitable distribution in a divorce. See Skinner v. Skinner, 509 So.2d 867, 870 (Miss.1987) (finding that the chancellor erred in awarding former wife a vehicle belonging to a corporation which was owned solely by the former husband). However, the chancellor did not award Trisha any of Global Seafood’s assets; Clayton was awarded his full interest in the corporation. The chancellor merely adopted the only valuation of Global Seafood that was presented at trial. And while Global Seafood technically is a publicly traded corporation, the evidence produced at trial revealed that Clayton’s interest in the company extended beyond mere stock ownership. Herrin testified that Global Seafood’s financial statements included substantial unsecured loans to Clayton which had never been repaid. Nevertheless, Herrin determined the fair-market value of Clayton’s interest using the willing-buyer, willing-seller model as required by this Court, see Ferguson, 639 So.2d at 929, taking into account the fact that a willing buyer would not enjoy the same control over the company as Clayton. We find that the chancellor’s valúation of Clayton’s interest in Global Seafood was not manifestly incorrect and was supported by substantial credible evidence.,

III. Whether the chancery court erred in awarding Trisha lump-sum and periodic alimony.

¶22. “If there are sufficient marital assets which, when equitably divided and considered with each spouse’s non-marital assets, will adequately provide for both parties, no more need be done.” Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). However, where the equitable division of property creates a deficit for one of the spouses, “alimony based on the value of nonmarital assets should be considered.” Id. An award of alimony can be determined only after the chancellor has equitably divided the marital estate and determined that one spouse has suffered a deficit. Lauro v. Lauro, 847 So.2d 843, 848 (Miss.2003).

¶ 23. In this case, the chancellor determined that the parties’ marital estate was worth $501,658; thus, an equal share of the estate would be worth $250,829. However, the bulk of the marital estate’s value was attributable to Clayton’s business interests, and Clayton retained these business interests when the marital estate was divided. Thus, the equitable portion of the marital estate awarded to Trisha was valued at only $35,685. The chancellor awarded Trisha lump-sum alimony in the amount of $215,139.50 to account for the deficit between the value of her equitable share of the estate and the value of an equal share. He also awarded Trisha periodic alimony of $2,000 per month. However, Trisha’s relatively small estate value is largely attributable to the $170,818 liability assigned to her, representing half of the balance of the second mortgage on the marital home, which she or Clayton may never have to pay.

¶ 24. This case is being remanded for the chancery court to determine whether Trisha or Clayton has any legal responsibility to repay the second mortgage and to reallocate the mortgage liability accordingly. Where it is necessary to reverse the chancery court’s division of the marital estate, an accompanying award of alimony should also be reversed, as a reallocation of marital assets and liabilities may obviate the need for alimony. See Lauro, 847 So.2d at 850; Henderson v. Henderson, 703 So.2d 262, 266 (Miss.1997). Accordingly, on remand, the chancellor should revisit his award of alimony to Trisha after determining what, if anything, is owed on the second-mortgage deficiency, and who, if anyone, is responsible for repaying it.

IV. Whether the chancery court erred in finding Clayton in contempt of court and awarding Trisha a judgment and attorney’s fees for the same.

¶ 25. At an April 28, 2010, temporary hearing, the chancellor enjoined the parties from making any unnecessary expenditures. This injunction was memorialized in a temporary order on the following day. In an additional temporary order on May 4, 2010, the chancellor ordered Clayton to “continue to pay the necessities of the marriage, including but not limited to utilities, mortgages, cellular telephones, automobile notes, automobile insurance, health insurance, gas and groceries of the wife.” Clayton also was ordered to pay Trisha $750 per month for “other expenditures.” Both parties were ordered to provide copies of their receipts and credit-card statements to each other at the end of each month.

¶ 26. On January 26, 2011, Trisha filed a motion requesting the chancery court to find Clayton in contempt for, among other things, failing to make support payments as required by the court’s previous temporary orders. The court held a hearing on the motion on February 16, 2011. At the conclusion of the hearing, the chancellor found Clayton in contempt for failure to make the required support payments and entered a judgment of $7,656.27 in Trisha’s favor. An order to this effect was entered on March 23, 2011. The order stated that Clayton would be given credit for any amounts included in the contempt judgment that were found to be “not for family necessities as provided in the Court’s prior orders.” The court reserved the issue of attorney’s fees until trial.

¶ 27. On May 3, 2011, Trisha filed another motion requesting the trial court to find Clayton in contempt for failing to make support payments of approximately $7,000 after the court’s previous contempt order. In a July 8, 2011, temporary order addressing the issue, the chancery court directed the chancery clerk to release $7,656.27 from the court registry to Trisha to cover the initial contempt judgment. The chancery court also modified Clayton’s support payment, ordering the chancery clerk to release $2,250 per month from the court registry for the next four months to Trisha to pay for her gas and groceries; the marital home’s water, sewer and cable bills; and the children’s dance classes. The chancellor further ordered that “[a]ll marital debts, including the marital home electricity bill, previously paid by [Clayton] per order of this Court shall continue to be his responsibility until further order of this Court.” The chancellor then concluded, “This does away with the language of the prior Temporary Order wherein [Clayton] was ordered to pay the other marital necessities of the wife.” The chancery court reserved ruling on the pending contempt issues, as well as the issue of whether Trisha’s claimed expenses were “reasonable and necessary family expenses for which she is entitled to reimbursement.”

¶ 28. On March 23, 2012, Trisha filed yet another contempt motion against Clayton, claiming that he now owed more than $16,000 in support payments pursuant to the court’s prior temporary orders. The chancellor addressed the ongoing contempt issue during the trial on the divorce. At trial, Clayton introduced into evidence several spreadsheets documenting Trisha’s claimed monthly expenses. Clayton explained to the court why he believed some of the expenses did not qualify as “necessities of the marriage,” per the court’s previous orders. Clayton also stated that he believed he was not obligated to continue making certain payments after the court’s July 8, 2011, temporary order “[did] away with the language of the prior Temporary Order wherein [Clayton] was ordered to pay the other marital necessities of the wife.” Clayton believed he owed Trisha only approximately $3,000 for necessary expenses, which he claimed he had failed to pay only because he did not have the money.

¶ 29. The chancery court did not rule on Trisha’s final contempt motion until it entered its final judgment of divorce. At the end of the judgment, the chancery court found Clayton in contempt of its May 4, 2010, temporary order requiring him to pay “necessities of the marriage.” The chancery court accepted all of Trisha’s documented expenses without comment and entered judgment against Clayton in the amount of $16,019. The court also awarded Trisha attorney’s fees of $2,500 for Clayton’s contempt.

¶30. On appeal, Clayton argues that the chancery court erred in finding him in contempt and awarding Trisha attorney’s fees because the record does not support a finding that he willfully disobeyed the court’s orders. Specifically, Clayton argues that the chancellor’s May 4, 2010, temporary order and July 8, 2011, temporary order create ambiguity regarding his support obligation, which the chancellor never resolved.

¶ 31. “[C]ontempt matters are committed to the substantial discretion of the trial court[.]” Morreole v. Morreole, 646 So.2d 1264, 1267 (Miss.1994). The chancellor’s findings will not be disturbed unless manifestly wrong. Wing v. Wing, 549 So.2d 944, 947 (Miss.1989). The purpose of civil contempt is to compel parties to obey the orders of the court. Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987). Before a party may be held in contempt for failure to comply with a judgment, “the judgment must be complete within itself ... leaving open no matter or description or designation out of which contention may arise as to its meaning.” Wing, 549 So.2d at 947 (citations omitted). In defending against a civil contempt claim, a party can argue that his or her violation of the court’s order was not willful or deliberate as to be labeled “contumacious.” Dunaway v. Busbin, 498 So.2d 1218, 1222 (Miss.1986). Another defense to civil contempt is the party’s honest inability to perform according to the dictates of the order or decree. Prestwood v. Hambrick, 308 So.2d 82( 85 (Miss.1975). But the defendant has a duty to prove his inability with particularity and not in general terms. Hargrove, 516 So.2d at 1357. Finally, “no charge of contempt will be sustained where the final decree is insufficient to advise the party affected in clear and unequivocal language of that which he has been ordered to do.” Switzer v. Swit-zer, 460 So.2d 843, 846 (Miss.1984).

¶ 32. We find that the chancellor’s contempt judgment and award of attorney’s fees against Clayton was manifestly in error. The chancellor’s May 4, 2010, temporary order required Clayton to pay for all the necessary expenses of the marriage, in addition to paying Trisha $750 per month for “other expenses.” However, the July 8, 2011, temporary order created several obvious ambiguities regarding Clayton’s continuing support obligations. In that order, the chancellor ordered Clayton to continue paying “all remaining marital debts,” but also authorized him to cease paying the mortgages on the marital home, and excused him from paying “the other marital necessities of the wife.” Thus, through the July 8, 2011, temporary order, the chancellor arguably excused Clayton from continuing to pay Trisha’s monthly expenses, or, at the very least, make the $750 monthly “other support” payments. The chancellor acknowledged this ambiguity during a subsequent contempt hearing when he stated, “But this order — the last sentence of paragraph 2, this does away with the language of the prior temporary order where in [sic] [Clayton] was ordered to pay the other marital necessities of the wife.” But the chancellor never resolved this ambiguity in favor of either party, and continued to reserve ruling on the issue until trial, when Trisha had accumulated close to $20,000 of claimed monthly expenses. Trisha included the unpaid $750 monthly payments in her final report of her monthly expenses at trial, but a genuine dispute existed as to whether Clayton was required to make those payments after July 2011. See Wing, 549 So.2d at 947 (reversing chancellor’s contempt judgment against former husband for failing to abide by a provision of a property-settlement agreement, where a genuine dispute existed regarding the interpretation of the provision).

¶ 33. Clayton admitted that he had failed to reimburse Trisha for some of her valid monthly expenses. Thus, a finding of contempt may be in order. However, the chancery court must resolve the ambiguity. in its previous orders before it can determine the actual amount of Clayton’s deficiency. Accordingly, we reverse the chancery court’s contempt judgment and award of attorney’s fees and remand this case for further proceedings. See Lahmann v. Hallmon, 722 So.2d 614, 623 (Miss.1998) (holding that a an ex-spouse who successfully prosecutes a petition for citation of contempt is eligible for an award of attorney’s fees).

CONCLUSION

¶ 34. This Court affirms the chancellor’s valuation of Clayton’s interests in Global Seafood, Biloxi Realty, and G & G. However,.we find that the chancellor erred in assigning the balance of the parties’ second mortgage as a liability to both parties. Because equitable distribution and alimony must be considered together, we must also reverse the chancellor’s award of alimony to Trisha. Finally, we find that the chancellor erred in finding Clayton in contempt of an ambiguous court order. Accordingly, we reverse the chancellor’s equitable distribution of the marital estate, the award of alimony to Trisha, and the contempt judgment against Clayton, and remand this case to the chancery court for further consideration of these issues.

¶ 35. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

DICKINSON AND RANDOLPH, P JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. PIERCE, J., NOT PARTICIPATING.

      .The chancery court entered its Final Judgment of Divorce on April 17, 2013, and a Corrected Final Judgment of Divorce on April 23, 2013. The Corrected Final Judgment of Divorce will be referred to as "the divorce judgment.”

      . Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).

      . Armstrong v. State, 111 So.2d 988 (Miss.1993).

      . During the pendency of the litigation, the parties had to sell many assets to enable them to continue paying necessary expenses. The proceeds of these sales were deposited in the court registry and disbursed to pay the parties’ attorneys’ fees, expert-witness fees, and other expenses.


author: IRVING, P.J.,

text:
    CITY OF JACKSON, Mississippi, Appellant v. Lee B. LEWIS, Oda Mae Green, and Sonya Stephens, On Behalf of the Wrongful Death Beneficiaries of Margaret E. Stephens, Deceased, Appellees.
    No. 2011-CA-00787-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.
    Rehearing Denied Oct. 22, 2013.

      Pieter John Teeuwissen, Lara E. Gill, Ridgeland, attorneys for appellant.
    Dennis C. Sweet III, Jackson, Dennis Charles Sweet IV, Terris Catón Harris, attorneys for appellees.
   IRVING, P.J.,

for the Court:

¶ 1. Lee B. Lewis, Oda Mae Green, and Sonya Stephens, on behalf of the wrongful death beneficiaries of Margaret E. Stephens (the Plaintiffs), filed a complaint in the Hinds County Circuit Court against the City of Jackson, Mississippi (the City), and Officer Gregory Jackson for damages resulting from an automobile collision between LaMarcus Butler and the Plaintiffs. After a bench trial, the circuit court entered its final judgment for the Plaintiffs and assessed 100% liability against the City. The City appeals and argues that there is no substantial ■ and credible evidence that Officer Jackson acted in reckless disregard for the safety and well being of persons not engaged in criminal conduct. Finding no reckless disregard on the part of Officer Jackson, and that the City is protected by governmental immunity, we reverse and render.

FACTS

¶ 2. On August 21, 2001, at approximately 10:30 p.m., Officer Jackson was traveling east on Monument Street in Jackson, Mississippi, en route to a roadblock set up at the intersection of Monument and Palmyra Streets. Officer Jackson observed a vehicle that was traveling east on Monument turn off its lights, make a u-turn, proceed west on Monument, and ultimately turn on Capers Avenue. Unbeknownst to Officer Jackson, Butler, the driver, had stolen the vehicle. When Officer Jackson observed the vehicle make a right onto Capers, he turned on his blue lights and siren and followed the vehicle down Capers. According to Officer Jackson, Butler seemed to slow down to about five to ten miles per hour for a moment on Capers, as if he were going to stop. However, Butler did not stop, turning instead onto Green Avenue and then onto Capitol and Longino Streets while being followed by Officer Jackson. The two cars continued west on Longino, which becomes Maple Street after Longino’s intersection with Fortification Street.

¶ 3. Officer Jackson testified that while on Maple Street, between the intersections of Fortification/Longino and Maple/Martin Luther King Jr. Drive, Butler “punched it.” Officer Jackson radioed Sergeant Jonathan Crawford, his supervisor, and informed him of his whereabouts and that he was pursuing Butler for violating a traffic ordinance. At that time, Sergeant Crawford told Officer Jackson to terminate the pursuit. Officer Jackson stated that he turned off his blue lights and siren and slowed down, but continued on Maple. Officer Jackson stated that the last time he saw Butler was when Butler’s taillights passed through the Maple/Martin Luther King intersection. He further testified that as he continued on Maple, he saw smoke and debris in the air and notified dispatch that there was possibly an accident. When Officer Jackson arrived at the intersection of Maple and Bailey Avenue, he notified dispatch that indeed an accident had occurred and that an ambulance was needed. Butler’s vehicle had collided with the Plaintiffs’ vehicle after Butler ran through the traffic light.

¶ 4. Additional facts, as necessary, will be related in the discussion and analysis of the issue.

DISCUSSION AND ANALYSIS OF THE ISSUE

¶ 5. An appellate court will not disturb a' circuit court’s findings following a bench trial when those findings are supported by substantial, credible, and reasonable evidence. City of Jackson v. Law, 65 So.3d 821, 826 (¶ 15) (Miss.2011).

¶ 6. The Mississippi Tort Claims Act (MTCA) “cloaks governmental entities ... with immunity based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the governmental entity or employee thereof[.]” Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 924 (¶ 17) (Miss.2006) (quoting Miss.Code Ann. § ll-46-9(l)(d) (Rev.2002)) (internal quotation marks omitted). A governmental entity and its employees acting in the course and scope of their employment are entitled to this immunity “unless the employee acted in reckless disregard for the safety and well-being of any person not engaged in criminal activity at the time of the injury[.]” Miss.Code. Ann. § 11-46-9(l)(c) (Rev.2012). The Mississippi Supreme Court has stated that reckless disregard is “usually accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.” City of Jackson v. Presley, 40 So.3d 520, 523 (¶ 13) (Miss.2010) (quoting Maldonado v. Kelly, 768 So.2d 906, 910 (¶ 8) (Miss.2000)) (internal quotation marks omitted).

¶ 7. In determining whether a police officer acted with reckless disregard during a pursuit, the supreme court has mandated that courts consider ten factors. Those factors are: (1) the length of the pursuit, (2) the type of neighborhood in which the pursuit took place, (3) the characteristics of the streets on which the pursuit took place, (4) the presence of vehicular or pedestrian traffic, (5) the weather conditions and visibility, (6) the seriousness of the offense for which police are pursuing the suspect, (7) whether the officer proceeded with sirens and lights, (8) whether the officer had available alternatives that would lead to the apprehension of the suspect besides pursuit, (9) the existence of a police policy that prohibits pursuit under certain circumstances, and (10) the officer’s rate of speed in comparison to the posted speed limit. City of Jackson v. Gray, 72 So.3d 491, 496-97 (¶ 17) (Miss. 2011).

¶ 8. In Presley, the supreme court determined that an officer did not act in reckless disregard when her view was obstructed by a large truck while she was crossing a “high-risk” intersection responding to a call, causing her to strike Presley’s vehicle. Id. at 521 (¶¶ 4-5). The supreme court noted that the officer “exercised some measure of safety precaution by employing her blue lights and siren, activating her buzzer to alert traffic while she was crossing the lanes, and crossing one lane at a time. Such actions hardly can be characterized as reckless and indifferent to the safety of others.” Id. at 524 (¶ 17).

¶ 9. The Jackson Police Department’s (JPD) General Order 600-20 provides:

Pursuits may be initiated when the officer knows that a felony has been committed and the officer has probable cause to believe that the individual committed the felony and the suspect’s escape is more dangerous to the community than the risks posed by the pursuit and the suspect clearly exhibits an intent to avoid arrest by using a vehicle to flee.

Officer Jackson undoubtedly violated JPD’s General Order by failing to weigh the seriousness of Butler’s offense against the risk of harm to the public. He was only aware of Butler committing a misdemeanor traffic violation at the time of the pursuit, not a felony. However, the violation of a police policy is not dispositive of reckless disregard. See id. at 524 (¶ 16). As stated, there are ten factors that must be examined to determine whether an officer has acted in reckless disregard of the public’s safety during a pursuit. We now turn to an examination of the other nine factors.

¶ 10. The record indicates that from the point where Officer Jackson began following Butler to the site of the collision is 1.8 miles. However, for approximately 1.2 miles of this distance, neither Butler nor Officer Jackson exceeded the posted speed limit, although they ran three traffic lights and two stop signs. From the point where Longino becomes Maple to the point of the collision is approximately six tenths of a mile. The record also reflects that the travel time from when Officer Jackson began following Butler to when he arrived at the site of the collision was less than four minutes. At the point where Longino becomes Maple, “Butler punched it,” although, according to Officer Jackson, Officer Jackson never exceeded sixty miles per hour. However, it was his opinion that Butler did so. He testified that the last time he saw Butler’s taillights was when Butler’s vehicle passed though the intersection of Maple and Martin Luther King Drive, and it was his opinion that at that time, Butler was probably traveling at least sixty miles per hour. After Officer Jackson passed through that intersection, his supervisor instructed him to terminate the pursuit, and he complied, turning off his blue lights and siren although he continued on Maple Street. However, he testified that he was not following Butler, as he did not know where Butler’s vehicle was at that time. He estimated his speed to be forty miles per hour when he passed through the intersection of Maple and Martin Luther King Drive.

¶ 11. The neighborhood in which the pursuit took place is residential in nature, and the streets consist of only two lanes. Officer Jackson testified that there were two public parks, a Boys and Girls Club, two schools, a laundromat, and a convenience store in that area, but there is no evidence in the record that people were present at any of these locations at that time of night. There is nothing in the record that evidences the presence of pedestrian or vehicular traffic that night other than the assumptions made by Plaintiffs’ expert, Dennis Waller, a former law enforcement officer with more than thirty years of experience. Waller testified that it can be assumed that in an area where a checkpoint is set up, there would be heavy vehicular and pedestrian traffic. There is no evidence as to the weather conditions and visibility on the night of the pursuit.

¶ 12. The factor examining the seriousness of the offense for which police are pursuing the suspect does not weigh in the City’s favor, as violating a traffic ordinance is hardly serious enough to trigger the initiation of a pursuit. However, Officer Jackson proceeded with his siren and lights activated until Sergeant Crawford told him to terminate the pursuit. Officer Jackson stated that he maintained speeds either under or right at the posted speed limits. Also, it is unlikely that there were any available alternatives that would have led to Butler’s apprehension, as Officer Jackson did not know Butler’s identity at the time of the pursuit, which would have helped him locate Butler later. See Law, 65 So.3d at 829-30 (¶ 33).

¶ 13. In City of Jackson v. Thornton, 94 So.3d 1186, 1194 (¶ 33) (Miss.Ct.App.2011), this Court considered the “totality of the circumstances in conjunction with the ... analysis of the applicable ten factors” and concluded that JPD officers acted with reckless disregard. As in' the present case, the officers’ actions in Thornton violated the general order. However, other factors contributed to the finding of reckless disregard. The pursuit in Thornton took place over five miles at 8:30 a.m. on a school day, with the officers “speeding through heavily trafficked neighborhoods, with cars, pedestrians, and school children located on and around the streets.” Id, The officers in Thornton were traveling at speeds of fifty-five to eighty miles per hour in a forty-mile-per-hour speed zone. Id. at (¶ 32). The circumstances in the present case are not nearly as egregious as those in Thornton.

¶ 14. The circuit court found that Officer Jackson pursued Butler for 1.8 miles at a speed well above the speed limit and. that both vehicles exceeded 60 miles per hour at some point during the pursuit. This finding is not supported by substantial, credible, and reasonable evidence. The record is devoid of any evidence that Officer Jackson was speeding for the entire 1.8 miles, much less exceeding sixty miles per hour. No doubt, the circuit court relied on Waller’s testimony. However, Waller himself admitted that some of his opinions were based largely on assumptions, and from our review of the record, it appears that Waller’s testimony that Officer Jackson pursued Butler for 1.8 miles at a speed well above the speed limit was simply a misunderstanding of the facts. Further, his opinion that both vehicles exceeded sixty miles per hour at one point, and that even after turning his lights off, Officer Jackson continued to pursue Butler is just not undergirded by the evidence. Rule 702 of the Mississippi Rules of Evidence states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

There is nothing in the record and no scientific basis on which Waller could have based his opinion that indicated that Officer Jackson continued to pursue Butler after he had been ordered to terminate the pursuit, or that the actual pursuit took place for 1.8 miles. Assumptions hardly satisfy Rule 702’s requirement of reliable principles and methods.

¶ 15. Based on the totality of the circumstances, we cannot find that Officer Jackson acted in reckless disregard for the safety of the public. “Reckless disregard occurs when the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.” Law, 65 So.3d at 826 (¶ 17) (Miss.2011) (quoting Miss. Dep’t of Public Safety v. Durn, 861 So.2d 990, 995 (¶ 13) (Miss.2003)) (internal quotation marks omitted). The record does not show an unreasonable risk involved that night, despite the neighborhood consisting of parks, schools, and various other places where people are likely to gather. There is also no indication in the record that Officer Jackson was speeding or that there was a danger of harming someone. Therefore, it follows that there was no deliberate disregard on Officer Jackson’s, part. As such, the circuit court erred in finding that Officer Jackson acted in reckless disregard and that the City was not immune from liability under the MTCA.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ„ CONCUR. CARLTON AND JAMES, JJ„ DISSENT WITHOUT SEPARATE WRITTEN OPINION.