Mississippi Reports

WILLING v. BENZ, 2005-CA-00470-COA (Miss.App. 11-21-2006)
No. 2005-CA-00470-COA. Court of Appeals of Mississippi.
November 21, 2006. Petition for Rehearing filed December 5,







¶ 1. This wrongful death action brought under the
Mississippi Tort Claims Act (“MTCA”) arose from
circumstances surrounding the death of Joseph Erich
Willing, Sr. near the intersection of Mississippi State
Highway 49 and Mississippi State Highway 82 in Greenwood,
Mississippi on January 8, 2002. The Willings appeal to this
Court from the Leflore County Circuit Court’s grant of
summary judgment in favor of the City of Greenwood as well
as from the court’s award of attorney’s fees to Richard
Benz, Jr. Finding error only in the trial court’s award of
attorney’s fees, we affirm in part and reverse and remand
in part.


¶ 2. At approximately 6:18 a.m. on the morning of
January 8, 2002, Officer Scott Beck of the Greenwood Police
Department responded to a single vehicle accident near the
intersection of Mississippi State Highway 49 and
Mississippi State Highway 82 in Greenwood, Mississippi. The
driver of the vehicle informed Officer Beck that she was
traveling in the eastbound lane of Highway 82 when she hit
what appeared to be a patch of ice that caused her vehicle
to slide across the median into the westbound lane of
Highway 82. At approximately 6:35 a.m., Officer Beck
radioed the police dispatcher and reported the three to four
foot patch of ice on the road so that the Mississippi
Department of Transportation (“MDOT”) could be notified to
address the condition with sand or salt. Officer Beck then
completed his accident report and left the scene. A few
minutes after receiving the report from Officer Beck, the
police dispatcher notified MDOT of the ice on the highway.

¶ 3. At approximately 7:13 a.m. on the same morning,
Officer Beck was again dispatched to the intersection of
Highway 49 and Highway 82 in reference to another accident.
Sharon Simpson, the driver of the vehicle involved in this
accident, stated that she was traveling approximately
seventy miles per hour[fn1] east on Highway 82 when she
drove over a patch of ice and slid across the median,
hitting and killing Joseph Erich Willing, Sr. (“Willing,
Sr.”), who was in the process of repairing a construction
sign damaged in the first accident. The patch of ice
involved in this accident was apparently the same patch of
ice involved in the earlier accident. MDOT arrived to
address the patch of ice a few minutes before Officer Beck
left the scene of this second accident.

¶ 4. By the end of the day, Joseph Erich Willing,
Jr. (“Joseph”) had filed a complaint in the Circuit Court
of Leflore County, Mississippi as a wrongful death
beneficiary of Willing, Sr. Joseph contemporaneously
petitioned the Chancery Court of Leflore County for letters
of administration in the estate of Willing, Sr. The
chancery court granted this petition and also approved the
contingent fee contract between Joseph and his attorney
Richard Benz, Jr.[fn2] Subsequently, Jeanette Willing,
widow of Willing, Sr. and guardian of their two minor
children, filed a motion through separate counsel in the
Leflore County Chancery Court to set aside the order
granting letters of administration and approving the
contingent fee contract between Joseph[fn3] and Benz.
Acknowledging that Grenada County was the proper venue for
administration of Willing, Sr.’s estate and that Jeanette
Willing should have been given preference to administer the
estate, the Leflore County Chancery Court granted
Jeanette’s motion and entered an order to that effect on
April 5, 2002.[fn4] The contract for employment between
Joseph and Benz, insofar as it may have related to any
activity on behalf of Jeanette Willing or the two minor
children, was ordered “set aside, canceled and held for
naught” by the chancellor.

¶ 5. On July 2, 2002, Sharon Simpson filed an
interpleader counterclaim asking that $100,000, the policy
limits of her automobile liability insurance, be interpled
into the registry of the circuit court in which the
wrongful death action was pending. An agreed order was
entered by the circuit court granting Simpson’s
interpleader request and ordering all plaintiffs to release
Simpson from further liability. The circuit court then
entered an order disbursing the proceeds of the settlement
funds, finding that Benz was entitled to one-third of the
proceeds pursuant to the contingency fee contract signed by
Joseph on behalf of the wrongful death beneficiaries of
Willing, Sr.

¶ 6. Jeanette Willing, acting through separate
counsel, was allowed to intervene in the wrongful death
action, and her counsel immediately moved the Leflore
County Circuit Court to reconsider the disbursement order,
citing the fact that the Leflore County Chancery Court had
revoked the letters of administration it had granted to
Joseph and had invalidated the contract for employment
between Benz and Joseph as it may have related to activity
on behalf of Jeanette Willing or her two minor children.
This motion was denied by the circuit court on January 15,

¶ 7. Having received contingency fees from the
Simpson settlement proceeds and at the written request of
Joseph, Benz filed a motion to withdraw as counsel for
Joseph, and this motion was granted by order of the circuit
court on June 26, 2003. Pursuing their claims now by joint
representation, the Willings’ complaint was amended to add
the City of Greenwood as a defendant. The amended complaint
alleged negligence on the part of the city in failing to
warn of the icy condition on the highway. The city moved
for summary judgment asserting that it was immune from
liability by virtue of the MTCA. More specifically, the
city cited immunities found at sections 11-46-9 (1)(c),
(d), (q), and (v) as precluding liability for the city’s
acts or omissions regarding the death of Willing, Sr. The
circuit court granted the city’s motion for summary
judgment, dismissing the case with prejudice; however, the
circuit court found that immunity existed under subsections
(c), (d), and (q) only.

¶ 8. Aggrieved, the Willings appeal to this Court
urging that there are genuine issues of material fact as to
whether the city was entitled to immunity under any
provision of the MTCA and that therefore the grant of
summary judgment in favor of the city was error.
Additionally, the Willings appeal the circuit court’s grant
of a one-third contingency fee to attorney Benz from the
interpled settlement proceeds. The Willings assert that Benz
is entitled to contractual fees only with respect to his
representation of Joseph and that he is entitled to fees
based on quantum meruit with respect to work that may have
benefitted Jeanette Willing, the estate of Joseph Erich
Willing, Sr., and Jeanette Willing’s two minor children. We
find that there is no genuine issue as to whether the
immunities found in subsections (c) and (q) are applicable
to the Willings’ claims against the City of Greenwood and
therefore affirm the circuit court’s grant of summary
judgment. As to the award of contingent fees to attorney
Benz out of proceeds attributable to beneficiaries other
than Joseph, we reverse and remand the case with
instructions that the circuit court use quantum meruit to
determine the amount of fees owed to Richard Benz, Jr.


¶ 9. When reviewing a trial court’s grant of summary
judgment, this Court applies a de novo standard of review.
Busby v. Mazzeo, 929 So. 2d 369, 372 (¶ 8)
(Miss.Ct.App. 2006). Rule 56(c) of the Mississippi Rules of
Civil Procedure provides that summary judgment is proper
where “the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled
to a judgment as a matter of law.” When considering a
motion for summary judgment, the deciding court must view
all evidence in a light most favorable to the non-moving
party. Mazzeo, 929 So. 2d at 372 (¶ 8). Only when
the moving party has met its burden by demonstrating that
there are no genuine issues of material fact should summary
judgment be granted. Tucker v. Hinds County, 558 So. 2d
869, 872 (Miss. 1990). As applied to the case sub judice,
this Court must determine whether the City of Greenville
adequately demonstrated that there are no triable issues
with regard to whether the city is immune from liability
under the MTCA. See Mazzeo, 929 So. 2d at 372 (¶ 8)
(citing Lyle v. Mladinich, 584 So. 2d 397, 398 (Miss.

¶ 10. The circuit court’s decision to award
contingent fees to attorney Benz will not be disturbed
unless the trial judge’s decision was manifestly wrong,
clearly erroneous, or an improper legal standard was
applied. See Pannell v. Guess, 671 So. 2d 1310, 1313 (Miss.
1996) (citing Hill v. Southeastern Floor Covering Co., 596
So. 2d 874, 877 (Miss. 1992)). “For questions of law, our
standard of review is de novo.” In re Estate of Brewer, 755
So. 2d 1108, 1111 (¶ 10) (Miss.Ct.App. 1999) (citing
Smith v. Dorsey, 599 So. 2d 529, 533 (Miss. 1992)). We
conclude that the errors urged by the Willings as to the
award of contingency fees involve questions of law
regarding application of Mississippi’s wrongful death
statute. Therefore, we will analyze de novo the legal
standard applied by the circuit court.


¶ 11. The Willings’ appeal raises two factually and
legally distinct issues. We will therefore address each
issue separately.


¶ 12. The trial court held that the City of
Greenwood was immune from liability by virtue of three
immunity provisions found in the MTCA. The sections found
applicable by the trial court provide that:

A governmental entity and its employees acting within the
course and scope of their employment or duties shall not
be liable for any claim:

. . . .

(c) Arising out of 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;

(d) Based upon the exercise or performance or the failure
to exercise or perform a discretionary function or duty on
the part of a governmental entity or employee thereof,
whether or not the discretion be abused;

. . . .

(q) Arising out of an injury caused solely by the effect
of weather conditions on the use of streets and highways.
. . .

Miss. Code Ann. § 11-46-9 (1)(c), (d), and (q) (Rev.

¶ 13. The Willings argue that (1) a genuine fact
issue exists as to whether Officer Beck’s conduct with
respect to the icy condition on the highway amounts to a
“reckless disregard [for] the safety” of the traveling
public within the meaning of subsection (c); (2) the trial
court improperly held that the city’s duty to warn in this
case was discretionary as contemplated by subsection (d);
and (3) a genuine fact issue exists as to whether the
accident in question was caused solely by the effect of
weather conditions, precluding summary judgment pursuant to
subsection (q).

¶ 14. We note at the outset that counsel for the
Willings alluded in the appellants’ brief and more directly
during oral arguments that liability or immunity therefrom
should be analyzed separately with respect to the city’s
acts or omissions through Officer Beck and the city’s acts
or omissions by persons who may have been put on notice of
the icy conditions by Officer Beck. We find this contention
without merit as the only acts or omissions that may be
attributed to the City of Greenwood were those of Officer
Beck and those of dispatcher Lee Taylor who is also a
Greenwood city police officer. There is no evidence in the
record that any other city employee had knowledge of the
icy condition nor do the Willings identify any other city
employee who had a duty to act under the circumstances.
Accordingly, we find that all acts or omissions properly
attributable to the City of Greenwood were performed by
employees engaged in activities relating to police


¶ 15. The Willings appeal the circuit court’s grant
of summary judgment pursuant to section 11-46-9 (1)(c) of
the MTCA. This section affords immunity for acts or
omissions of police officers while performing
police-related activities unless the police officer “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. § 11-46-9 (1)(c) (Rev.
2002). The facts in this case are not disputed. The
characterization of these facts, however, is at issue. The
Willings contend that Officer Beck’s failure to take
additional steps between the occurrence of the two
accidents, separated by approximately forty-five minutes,
to warn the traveling public amounts to reckless disregard
for the traveling public’s safety or at the very least
creates a triable issue. We disagree.

¶ 16. Reckless disregard is a higher standard than
gross negligence. Miss. Dep’t. of Pub. Safety v. Durn, 861
So. 2d 990, 994 (¶ 10) (Miss. 2003). This standard
“embraces willful or wanton conduct which requires
knowingly and intentionally doing a thing or wrongful act.”
Id. at 995 (¶ 10) (quoting City of Jackson v.
Lipsey, 834 So. 2d 687, 691-92 (¶ 16) (Miss. 2003)).
“Reckless disregard usually is accompanied by a conscious
indifference to consequences, amounting almost to a
willingness that harm should follow.” Id. (quoting Maye v.
Pearl River County, 758 So. 2d 391, 394 (¶ 16)
(Miss. 1999)). Reckless disregard has consistently been
found where the conduct at issue demonstrated that the
actor appreciated the unreasonable risk at stake and
deliberately disregarded “that risk and the high
probability of harm involved.” Id. at 995 (¶ 13)
(quoting Maldonado v. Kelly, 768 So. 2d 906, 910-11
(¶ 11) (Miss. 2000)). “The plaintiff has the burden
of proving `reckless disregard’ by a preponderance of the
evidence.” Titus v. Williams, 844 So. 2d 459, 468 (¶
37) (Miss. 2003) (citing Simpson v. City of Pickens, 761
So. 2d 855, 859 (Miss. 2000)).

¶ 17. Under the standard discussed above, in order
to find that Officer Beck’s conduct amounted to reckless
disregard, the Willings must show facts from which a trier
of fact could conclude that: (1) the patch of ice created
an unreasonable risk; (2) this risk included a high
probability of harm; (3) Officer Beck appreciated the
unreasonable risk; and, (4) Officer Beck deliberately
disregarded that risk, evincing “almost a willingness that
harm should follow.” See Durn, 861 So. 2d at 995 (¶

¶ 18. There is no evidence in the record that would
indicate the probability of additional accidents. Although
the mere fact that the first accident occurred — and
a condition which contributed to that accident remained on
the highway — may indicate that additional accidents
were possible, we decline to address whether this
possibility would be sufficient to create a genuine issue
with respect to the first three factors specified in the
preceding paragraph. Instead, we find that the Willings
failed to provide sufficient proof that Officer Beck
deliberately disregarded the risk posed by the icy
condition, as required by the fourth factor enumerated
above. Absent a showing that Officer Beck deliberately
disregarded the risk posed by the patch of ice, there is no
genuine issue as to whether Officer Beck’s conduct amounted
to reckless disregard. We turn now to a discussion of this

¶ 19. The city cites Durn for the proposition that
reckless disregard amounts “almost to a willingness that
harm should follow” from an act or omission. Durn, 861 So.
2d at 995 (¶ 10) (citation omitted). The Willings
counter this argument with Turner v. City of Ruleville, 735
So. 2d 226 (Miss. 1999), a case in which it was alleged
that an officer failed to arrest a motorist whom he knew to
be intoxicated. Id. at 227 (¶ 2). In Turner, the
court held that a plaintiff need not specifically plead
that the actor intended the harm that follows, only that he
“knowingly and intentionally do[] a thing or wrongful act.”
Id. at 230 (¶ 18). The Willings then analogize that
since Officer Beck intended to leave the scene after the
first accident, it was error for the circuit court to
summarily grant immunity under section 11-46-9 (1)(c). We
find this argument to be without merit.

¶ 20. The Willings misconstrue the procedural
posture of Turner. It was not held in Turner that the
officer’s conduct amounted to reckless disregard or even
that sufficient evidence existed which would preclude
summary judgment on this issue. The Turner court merely
held that “the facts pled do allege that [the officer]
wrongfully and intentionally allowed a visibly intoxicated
Smith to continue driving. By this alleged act, the officer
allegedly showed a reckless or wanton or willful disregard
for the safety of other drivers on the road, including
Turner.” Id. at 230 (¶ 20). It was the legal
sufficiency of the plaintiff’s pleadings at issue in
Turner, not the factual sufficiency as is before this
Court. The court’s holding in Turner did nothing to disturb
the requirement that a plaintiff prove wantonness, which
“is a failure or refusal to exercise any care, while
negligence is a failure to exercise due care.” Maldonado,
768 So. 2d at 912 (¶ 8) (citations omitted). The
holding in Turner is also in harmony with the holding in
Durn, as Turner requires that an intentional act be pled,
while Durn requires that the intentional act evince almost
a willingness that harm should result from that act.

¶ 21. The Willings concede that Officer Beck
notified his dispatcher of the condition of the highway and
that the dispatcher promptly notified the MDOT so that sand
and/or salt could be applied to the patch of ice. Yet, the
Willings insist that Officer Beck “did nothing to prevent
the second accident in which [Willing, Sr.] was killed.”
This contention, however, is inaccurate. To say that the
second accident was not prevented is not to say that no
effort was made to prevent it. It is undisputed that
Officer Beck notified his dispatcher with the intent that
the condition be addressed by the MDOT. It is similarly
without question that the dispatcher promptly notified the
MDOT of the patch of ice. Unfortunately, the MDOT did not
arrive on the scene until shortly after the fatal accident
involving Willing, Sr. The fact that the second accident was
not prevented does not change the fact that an effort was
made to that end. In light of these undisputed facts, we
certainly cannot agree with the Willings’ contention on
this point. Reasonable minds could not conclude, based on
the evidence presented, that Officer Beck’s conduct rose to
the level of wantonness, which, as mentioned above, “is a
failure or refusal to exercise any care, while negligence
is a failure to exercise due care.” Maldonado, 768 So. 2d
at 912 (¶ 8) (citations omitted) (emphasis added).

¶ 22. The Willings cite several cases which have
found reckless disregard by the conduct of police officers
in pursuit of fleeing suspects. The factors considered by
these courts in reaching their decisions include the length
of the chase, type of neighborhood, characteristics of the
streets, the presence of vehicular or pedestrian traffic,
weather conditions and visibility, and the seriousness of
the offense for which the police are pursuing the vehicle.
Durn, 861 So. 2d at 995 (¶ 13) (citing City of
Jackson v. Brister, 838 So. 2d 274 (Miss. 2003)). The first
five of these factors involve risk assessment of the
pursuit while the final factor requires a balancing of the
potential benefit of getting a suspect off of the streets
versus the risk involved in light of the previous factors,
i.e., a determination of which was the lesser of two evils.
We have outlined the risk assessment factors applicable to
the case sub judice which are analogous to those factors
mentioned above. Our case, however, is not as susceptible
to the “either/or” assessment present in the police pursuit
scenario. Nonetheless, we do recognize that this case
involves potential alternative choices, just as the court
in Brister noted that the officers could have blocked the
suspect’s car in the parking lot prior to giving chase but
failed to do so. Brister, 838 So. 2d at 280 (¶ 21).

¶ 23. The Willings do not specify any particular
alternative course of conduct that Officer Beck should have
taken, only generally that he should have performed his
duty to warn. The Willings admit, as discussed infra, that
Officer Beck’s duty to warn did not include a duty to erect
warning signs. We can speculate as to the feasibility and
effectiveness of several alternatives, but there is no
evidence in the record to support these speculations. In
contrast, we can say with virtual certainty that had the
officer in Turner taken the intoxicated motorist into
custody, the accident in that case would not have occurred.
Similarly, in Brister and other police pursuit cases, we
can say that had the officers not engaged in pursuit of the
suspects, or had disengaged the pursuit, the accidents would
not have occurred. We cannot, nor can the Willings, assert
similar certainty about Officer Beck’s alleged failure to
act as the Willings do not produce any specific alternative
choices that Officer Beck should have taken, much less the
potential benefits versus risks that an alternative would
have produced. The questions left in our minds by the
absence of such evidence in the record include: (1) whether
Officer Beck should have remained on the side of the
highway with his blue lights on (if this were done, we are
not convinced that motorists would necessarily have known
that there was a patch of ice on the road); (2) whether
Officer Beck should have blocked off or barricaded this part
of the highway (this alternative was not suggested by the
Willings, and the record does not reflect the feasibility
of this alternative, the effect on traffic, the potential
harm versus benefit, or even whether Officer Beck or the
city had authority to pursue this alternative).

¶ 24. In light of the foregoing discussion, we are
not convinced that sufficient evidence exists in the record
to support a finding that Officer Beck was even negligent.
We certainly do not find that sufficient evidence exists
from which a trier of fact could conclude that Officer Beck
or the city failed or refused to exercise any care or that
his actions evinced “almost a willingness that harm should
follow.” It follows that Officer Beck’s conduct did not
rise to the level of reckless disregard. Thus, we find the
circuit court’s grant of summary judgment as to the conduct
of Officer Beck appropriate.


¶ 25. The city originally relied only on sections 11
§ 46-9 (1)(c), (q), and (v) as the bases for its
summary judgment motion. However, the city filed a
supplemental motion for summary judgment, asserting that
the city was immune pursuant to the “discretionary function
or duty” immunity found in subsection (d). Relying on
Collins v. Tallahatchie County, 876 So. 2d 284 (Miss.
2004), an opinion handed down after submission of the
city’s original motion for summary judgment, the city
asserted that Officer Beck’s conduct with respect to the
icy condition was discretionary and that the “ordinary
care” standard held applicable to discretionary duties in
prior case law was no longer applicable pursuant to the
supreme court’s holding in Collins. We agree with the city
that Collins abrogated the duty to exercise ordinary care
in carrying out a “discretionary function or duty.”
Accordingly, in determining whether an act or omission
falls within the immunity granted by section 11-46-9
(1)(d), the relevant inquiry begins and ends with the
determination of whether the conduct complained of was

¶ 26. In order to make the determination of whether
governmental conduct is discretionary, this Court employs
the public policy function test as adopted by the
Mississippi Supreme Court in Jones v. Miss. Dep’t of
Transp., 744 So. 2d 256, 260 (¶ 11) (Miss. 1999)
(citing United States v. Gaubert, 499 U.S. 315, 322
(1991)). The public policy function test properly
acknowledges the purpose of the discretionary function
exception, which is “to prevent judicial second-guessing of
legislative and administrative decisions grounded in
social, economic, and political policy through the medium
of an action in tort.” Id. at (¶ 10) (citing
Gaubert, 499 U.S. at 323)). To determine whether an act is
a “discretionary function or duty” under this test, “it
must first be determined whether the activity involved `an
element of choice or judgment.'” Id. (quoting Gollehon
Farming v. United States, 17 F. Supp. 2d 1145, 1154 (D.
Mont. 1998)). If the activity in question does involve an
element of choice or judgment, then it must be determined
“whether the choice involved social, economic or political
policy.” Id.; see also Stewart v. City of Jackson, 804 So.
2d 1041, 1047 (¶ 11) (Miss. 2002); Dotts v. Pat
Harrison Waterway Dist., 933 So. 2d 322, 326 (¶ 9)
(Miss.Ct.App. 2006).

¶ 27. While we agree with the trial court that the
conduct of Officer Beck involved the exercise of choice or
judgment, we find that the trial court failed to consider
the second prong of the public policy function test, which
requires that the choice involve “social, economic, or
political policy.” Accordingly, we cannot, at this time,
affirm the judgment of the trial court as to the
applicability of section 11-46-9 (1)(d).