RANDOLPH, Justice, for the Court.
¶ 1. In this case under the Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to -23 (Rev. 2002 Supp. 2004), a city and its police officer appeal from a judgment against them for damages where the plaintiffs were injured when their truck was struck by a vehicle driven by a third party who was pursued by the officer. We affirm in part and reverse and remand in part.
FACTS AND PROCEEDINGS
¶ 2. Around dusk on December 21, 1999, officer Michael Tolbert of the City of Ellisville police department was on patrol when he spotted Joe C. Evans, Jr., driving a vehicle in the opposite direction. Aware of outstanding warrants for Evans, Tolbert made a u-turn, activated his blue lights and siren, and pursued Evans. Evans proceeded to leave the city limits of Ellisville, while heading northbound on Highway 29, with officer Tolbert in pursuit.
¶ 3. Tammy W. Richardson was also driving northbound on Highway 29. As she began to make a left hand turn into a residential driveway crossing the southbound lane of Highway 29, Evans crashed into her while passing other northbound traffic. In the car with Tammy was her minor daughter, Shana.
¶ 4. Tammy was transported first to South Central Regional Medical Center in Laurel, and then to Forrest General Hospital in Hattiesburg, where she was admitted for six days, and then discharged. She was soon readmitted for three additional days.
¶ 5. Tammy, her husband Ronnie, and Shana, filed this suit against the City of Ellisville, and officer Tolbert, individually, and in his official capacity.
¶ 6. Defendants filed their answer denying liability and raising as affirmative defenses: (1) the City is not liable to the Plaintiffs by reason of governmental immunity and (2) Tolbert is not liable to the Plaintiffs by reason of qualified immunity — performing police duties, in the scope of his employment. Following Circuit Judge Billy J. Landrum's recusal, Judge Robert L. Goza was specially appointed to hear the case which was set for a bench trial by agreed order.
¶ 7. At trial, Tolbert testified he began working for the Ellisville Police Department in November of 1998. Although he never received training for "hot" pursuits, he was trained in high speed vehicle driving, and he had studied the department's pursuit policy.
¶ 8. Tolbert testified regarding Evans's history with local law enforcement prior to the accident. Approximately one month before the accident, on November 17, 1999, he sought to execute an arrest warrant on Evans at Evans's residence at which time Evans started a fight with officer Tolbert and another officer. During the fight, Evans bit Tolbert and fled the scene. Tolbert filed charges against Evans for assaulting an officer. At the time of the pursuit, there were outstanding warrants for Evans's arrest.
¶ 9. Officer Tolbert testified that he saw Evans at an intersection. Tolbert made a u-turn and turned on his lights and then his siren as the chase began. Tolbert testified:
Q. As you pursued Evans's vehicle northbound on Highway 29 were there
any vehicles that got in between you and Mr. Evans's vehicle?
A. Yes, Sir.
Q. Can you tell the judge how many?
A. Five or six.
Q. Five or six?
A. Yes, sir.
Q. And what did those vehicles do?
A. They continued traveling north on 29. I think there was one or two of them that pulled over and let me get around, but most of them didn't. And he passed most of them.
Q. As a matter of fact at the point of the collision. There were four vehicles between — behind Mrs. Richardson's vehicle after you turned on the highway. Would that be a fair statement?
A. I believe it would be, yes sir.
Q. And two you said pulled off on the right-hand shoulder and let you by them?
A. I am guessing. There were some that pulled over and it was about two of them. I don't remember exactly how many there was. I don't remember exactly how many was between us.
Q. Okay. But suffice it to say, you didn't have a clear — it wasn't a clear line between you and Mr. Evans. You had the blue lights on. You had the siren on. There were vehicles in between. He got vehicles in between you. And you were still pursuing, right?
A. Could you repeat the first part?
Q. Yes, sir. There wasn't a clear line between you and Mr. Evans because he got vehicles in between you and him; is that correct?
A. Yes, sir.
* * * * *
Q. As you proceeded north, did you encounter other cars ahead of you in the northbound lanes of traffic?
A. Yes, sir.
Q. What did Mr. Evans do?
A. Passed them.
* * * *
Q. Officer Tolbert, why did you not go out into the northbound lane and follow Mr. Evans?
A. There was on-coming vehicles.
Officer Tolbert also completed an Offense Form, dated December 21, 1999, which was introduced into evidence, that Evans was "running oncoming traffic off the road" and that the Evans's vehicle passed several vehicles before striking the truck on the side. Officer Tolbert also admitted that both he and Evans were exceeding the posted speed limit.
¶ 10. A witness, Bobby Reynolds, testified that he was standing out in his driveway at around 7:15 p.m., when he saw the police car go by with the lights on and the siren blowing. Reynolds stated that the accident occurred within 15 seconds from the time they passed his driveway. He was approximately 600 feet from the scene of the accident and heard, but did not see, the collision. Reynolds testified:
the pickup truck was hit hard in the left, the driver's door, and right behind in the bed of the truck, the bed of the truck and the camper hull that was on the truck was laying across the top of the gas meter that was sitting those (sic) people's yard. The truck was sitting off in the ditch above the driveway that it was going to, and the other car was sitting in the ditch above the driveway.
¶ 11. Following trial, the trial court entered a Memorandum Opinion and Judgment, awarding $95,000.00 to Tammy, $2,500.00 to Shana, and $1,000.00 to Ronnie, against the City and Officer Tolbert.
¶ 12. Defendants properly perfected their appeal and raise the following issues:
I. Whether finding of reckless disregard is contrary to the evidence.
II. Whether the trial court should apportion damages under Miss. Code Ann. § 85-5-7(7).
III. Whether damages were supported by medical proof in terms of probability.
ANALYSIS
¶ 13. This Court has stated:
The standard of review for a judgment entered following a bench trial is well settled. A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.
City of Jackson v. Brister, 838 So.2d 274, 277-78 (Miss. 2003) (citations omitted). "This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo."
Id. (citation omitted).
I. Reckless Disregard
¶ 14. This Court finds substantial, credible and reasonable evidence to support the trial court's finding of reckless disregard.
¶ 15. The trial judge, in his findings of facts and conclusions of law, determined the following:
[I]mmunity afforded under the Mississippi Tort Claims Act . . . does not apply if 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. In
Johnson v. City of Cleveland, 846 So.2d 1031, 1037 (Miss. 2003), our Supreme Court enumerated 10 factors to support a finding of reckless disregard in connection with police pursuits as follows:
1. The length of the chase
2. Type of neighborhood;
3. Characteristics of the streets;
4. The presence of vehicular or pedestrian traffic;
5. Weather conditions and visibility;
6. The seriousness of the offense for which the police are pursuing the suspect;
7. Whether the officer proceeded with sirens and blue lights;
8. Whether the officer had available alternatives which would led to the apprehension of the suspect besides pursuit;
9. The existence of police policy which prohibits pursuit under the circumstances; and
10. The rate of speed of the officer in comparison to the posted speed limit.
Additionally, the City of Ellisville had a Pursuit of Motor Vehicle policy which was admitted into evidence as Exhibit K. The City of Ellisville's Pursuit of Motor Vehicles policy Section 7748-6 enumerates that an officer must ask himself before initiating a fast pursuit such as:
1. Does the seriousness of the crime committed, or being committed, warrant a high speed chase at unsafe speeds?
2. What is the probability of apprehending the fleeing person?
3. Will the pursuit take place on residential streets, in a business district, or on a freeway? What is the danger to other innocent citizens in these areas?
4. What are the traffic and weather conditions?
5. What is the condition of the police cruiser? How are the tires, brakes, steering, etc.?
Therefore, I conclude as a matter of law that the Officer Tolbert's actions on the night in question violated the criteria established in the Johnson Case as well as the pursuit policy established by the City of Ellisville. . . . Evans under the circumstances was in disregard for the safety and well-being of others, including the Plaintiffs, who were lawful using the public highway and were not engaged in criminal activity.
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. Brister, 838 So.2d at 277-78.
¶ 16. The facts of the case sub judice are analogous to Brister, where this Court held that there was substantial evidence to support a finding of reckless disregard. In Brister, police pursued an unknown suspect who had been accused of check forgery. Id. at 276. The pursuit in Brister lasted less than 60 seconds over a distance of less than a mile in a residential area and resulted in the suspect's crash with another vehicle. Id. at 279. In Brister the trial court based its findings on various factors including that, the chase was contrary to a police department's general order, the officers were engaged in active pursuit up until the collision, the pursuit should have been terminated after the officers realized the suspect would not stop, and that the officers did not properly balance the public's safety versus immediate apprehension of a check forger. Id.
¶ 17. The trial court in the case sub judice considered ten factors as enumerated in Johnson v. City of Cleveland, 846 So.2d 1031 (Miss. 2003), in support of its finding of reckless disregard. The first six factors were enumerated in this Court's majority opinion in Johnson, while the last four were contained in the concurring in result only opinion written by Presiding Justice McRae, Id. at 1037. It is appropriate for trial courts to consider all ten factors, and to look at the totality of the circumstances when analyzing whether someone acted in reckless disregard. The evidence in this case reveals that the chase lasted for nine-tenths of a mile, occurred at night, in a residential area on a hilly, curvy, two-lane road with medium levels of traffic. The officer traveled this road frequently and had prior knowledge that it was a residential area and continued to pursue Evans after Evans had run oncoming traffic off the road. The officer was not in pursuit of an unknown suspect. In fact, the officer had previous encounters with Evans, knew where Evans lived, knew Evans's mother, and knew that Evans was likely to try to avoid arrest which he did even after colliding with the Richardson's vehicle. Nevertheless Tolbert elected to continue the pursuit while Evans weaved in and out of traffic at excessive speeds and endangered the safety of innocent citizens.
¶ 18. Evans's outstanding warrants included misdemeanor charges and one charge for assaulting an officer, as a result of Evans's biting Tolbert's hand during Tolbert's last unsuccessful attempt to arrest Evans. Tolbert testified that he did not know if Evans had been charged for a felony or misdemeanor. There was also testimony to establish the fact that the officer proceeded with his sirens and flashing lights up until the time of the accident, that he was driving in excess of the speed limit, and that there were at least four cars between the officer and Evans at the time of the accident. Evans passed approximately six vehicles, including those four, all within a chase that lasted less than one mile, and Tolbert continued the pursuit until the point of impact.
¶ 19. Furthermore, there was ample evidence to support violations of the City of Ellisville's Pursuit of Motor Vehicles policy. The 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, as he was known to flee and had successfully fled in the past.
¶ 20. The City of Ellisville's Pursuit of Motor Vehicles Policy requires officers to weigh the seriousness of the offense against the hazards present to innocent citizens who may become involved and to continually ask this question as the chase continues. The policy also requires officers to "immediately terminate a fresh pursuit whenever . . . [the] safety of innocent citizens outweighs the danger to the community if the suspect were not immediately apprehended." This policy was clearly violated, as it was in Brister, where this Court found that the officers did not properly balance the public's safety versus immediate apprehension of the suspect. 838 So.2d at 281.
¶ 21. This Court in Brister found that,
[t]he circuit judge clearly based his findings on substantial, credible, and reasonable evidence. Applying our appropriate legal standard and recent caselaw, that is all that is necessary. Had a jury tried this case, it could have reasonably found that all of these circumstances establish more than simple negligence. The learned trial judge found by looking at the totality of the circumstances that the officers acted with reckless disregard to public safety. That is exactly what our caselaw requires.
Id. at 279. Applying this precedent, as this Court is required, there is substantial and credible evidence to support a finding of reckless disregard in the case sub judice. This issue is without merit.
II. Whether the trial court should apportion damages under Miss. Code Ann. § 85-5-7(7).
¶ 22. The City argues that the trial court erred by not apportioning fault. The Richardsons' complaint specifically alleged that Evans acted negligently.
¶ 23. Miss. Code Ann. § 85-5-7 (1991) provides in pertinent part:
(1) As used in this section "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including but not limited to negligence, malpractice strict liability, absolute liability or failure to warn.
. . .
(7) In actions involving joint tort-feasors, the trier of fact
shall determine the percentage of fault for each party alleged to be at fault.
(Emphasis added).
¶ 24. The City relies on Brister, 838 So.2d 274, where the plaintiff filed a suit against the city and the trial court found that the officer acted in reckless disregard and allocated fifty percent (50%) liability to Slater, the suspect being pursued, and fifty percent (50%) liability to the City of Jackson. This Court affirmed the trial court stating: "We find no abuse of discretion by the trial judge whose ruling is supported by substantial, credible and reasonable evidence." Id. at 276.
¶ 25. In the case sub judice, Evans was not named as a defendant. However, there was testimony that Evans was the driver of the vehicle that collided with the plaintiffs. The Richardsons also alleged in their complaint that Evans "negligently entered the southbound lane of Highway 29, and while so doing, his motor vehicle collided with the motor vehicle driven by the plaintiff, Tammy Richardson, and occupied by the plaintiff, Shana Richardson, a minor, as the passenger." Nevertheless, the trial judge failed to address in his Memorandum Opinion and Judgment or his Judgment denying defendants' motion for reconsideration, that he apportioned fault between the joint tortfeasors as required by Miss. Code Ann. § 85-5-7.
¶ 26. The Richardsons contend that the City first raised the issue of apportionment on appeal and has, therefore, waived any right to apportionment. However, the Richardsons pled the negligence of Evans in their complaint. Obviously the issue of Evans's negligence was before the court, as the trial judge addressed Evans's negligence in his Memorandum Opinion. Finally, in their Motion to Reconsider before the trial court the City and Officer Tolbert sought relief of the trial court, wherein they stated: "The damages of Plaintiff were charged solely to the Defendant without offset, credit or pro-ration to the negligence of Evans." This Court finds that this plea for relief was sufficient, albeit a poor choice of words, to provide the trial court an opportunity to correct this error. Miss. Code Ann. § 85-5-7 requires the trier of fact to apportion fault.
¶ 27. Whether there are joint tortfeasors is a question of fact. In the Memorandum Opinion and Judgment, the trial judge found that:
it was undisputed that (a) Mrs. Richardson was not engaged in the commission of a crime and the time of the collision and was not guilty of negligence which caused or contributed to it and (b)
the that negligence of Joe C. Evans, Jr. in operating his vehicle at an unsafe speed, failing to maintain adequate control over the vehicle and failing to maintain a proper lookout for others was the direct cause of the collision . . .
(Emphasis added). The trial judge later concluded that Tolbert's "action was the proximate cause of the collision and of the resulting injuries to Tammy and Shana Richardson as well as the damage to the vehicle of Ronnie Richardson." (Emphasis added).
¶ 28. The trial court's findings are ambiguous, and this constitutes plain error. See Selman v. Selman, 722 So.2d 547, 554 (Miss. 1998).
¶ 29. It is unclear from the trial court's memorandum opinion and judgment and judgment overruling the motion to reconsider if either it assessed the plaintiffs' total damages in an amount greater than the judgment, and accordingly reduced the award by a percentage of fault assessed to Evans, or if it determined the total damages suffered by plaintiffs and assessed no percentage of fault to Evans. Therefore, we must reverse and remand to the trial court for a specific finding of the total damages suffered by each plaintiff, and for a specific finding of the respective percentages of fault of Tolbert and Evans, if any, and then direct the trial court to enter final judgment accordingly.
III. Whether damages were supported by medical proof in terms of probability.
¶ 30. The City contends that the trial court erred in finding that Tammy's injuries were permanent and this error is reflected in the award of damages to her. It argues that the medical evidence does not support the award and the finding of permanent injury is contrary to the evidence.
The City requests that, if this Court finds Tolbert and the City liable, and if the case is not reversed for a new trial, then the damage award should be reduced.
¶ 31. The Richardsons point out that Dr. Keith Melancon's medical records reflect that Tammy had a grade two lateral ligament complex left ankle sprain. They state that Tammy physically demonstrated to the court the condition of her ankle and testified about continuing problems with the ankle, then three and one-half (3 1/2) years post accident. The defendants provided the court with no testimony to rebut Tammy's contention of injury to her ankle, of indefinite duration.
¶ 32. Tammy was transported to South Central Regional Medical Center and then to Forrest General Hospital where she was admitted for six days. Tammy was diagnosed with a sprained left ankle, bilateral pulmonary contusions, multiple rib fractures and possible Thoracic 11, Thoracic 12 and Lumbar 1 compression fracture.
Multiple fractures on the left posteriorly at ribs 6 and 7 and a possible 10th rib fracture on the right.
The age of the possible compression fracture could not be determined.
¶ 33. During her hospitalization, Tammy underwent physical therapy and respiratory therapy. Tammy was discharged, with a prescription for Tylox and Valium and went home. But later that same day, she sneezed, causing her to lose her breath, and was taken back to the hospital where she was hospitalized for an additional three days.
There was no evidence that she filled a prescription following discharge from the hospital.
¶ 34. Tammy testified that she underwent physical therapy once a week for six weeks and had two follow-up visits with Dr. Melancon for her ankle while was swollen and painful. Dr. Melancon gave her three injections to her ankle to try to reduce the swelling. Tammy's last visit to Dr. Melancon was in March of 2000.
¶ 35. Tammy testified how the accident impacted her life. Prior to the accident, she did all the cooking, cleaning and laundry along with gardening and yard work. After the accident, she wore a back brace for approximately a month after being discharged from the hospital. Following being discharged from the hospital, she wasn't able to do anything for herself and Shana and her husband both had to help her bathe and they did all the cooking, cleaning and laundry.
¶ 36. During February, Tammy was still using the back brace but could bathe herself and take care of herself. It was in March that she started her normal household activities.
¶ 37. Tammy was in her last semester at Jones County Community College, and her instructors found an old recliner and placed it in the classroom so she wouldn't have to sit up straight. This allowed her to graduate on schedule.
¶ 38. Following graduation, Tammy was employed by Entel Corporation. Tammy testified her injuries made it difficult to perform her duties:
If I was on maintenance that night, if I had to so a lot of reaching and stretching over my tools, by the end of the evening, my left side would be sore, my back would be sore. By the end of my shift, my complete shift, my foot and ankle would swollen (sic) so badly that I had to take my shoes off. In fact, I even purchased one size larger and just
tied the shoelaces tighter because I knew by the end of the evening, I was going to be filling them up with the swelling.
Tammy worked for Entel for a year and then took medical leave.
¶ 39. Regarding "lingering effects" from the injuries she sustained in the accident, Tammy testified over three years post accident:
I still have the swollen ankle, and swollen foot every day if I am standing on my feet. If I've been on my feet doing housework, by the end of the day it is swollen. Then I also get — I call them Charlie horses. Muscle spasms, or whatever you want to call them. If I happen to stretch my left arm out, I get them on my left side and towards the back. Other than that, it's mostly the ankle that has been the biggest problem.
¶ 40. Dr. Kirk Banquer, a general surgeon, was deposed, and his deposition was entered into evidence at the close of the trial. Dr. Banquer first saw Tammy on December 22, 1999, the night of the accident. Dr. Banquer testified regarding Tammy's injuries and her treatment while she was hospitalized, and stated that Tammy had fractured three ribs in the accident, and was complaining primarily of chest pain, lower back pain, and left hip pain. Dr. Banquer opined that, based upon a reasonable degree of medical certainty, there was no future limiting problem or restrictions of physical activities because of her rib fractures. However, he did give her instructions to follow-up with Dr. Melancon for treatment for her ankle and spine fractures.
¶ 41. The trial judge stated:
I further find that Shana Richardson has fully recovered from the injury to her right elbow and shoulder without permanent injury or impairment. Tammy Richardson, however, suffered severe pain from her injuries. She has recovered from the injury to her ribs but continues to have pain and swelling in her ankle which will continue indefinitely and must therefore be considered as a permanent injury.
Tammy testified to the fact that she still had problems with pain and swelling three and a half years after the accident. She testified that a place on her ankle stays swollen and is completely numb. "Any witness is competent to testify who has evidentiary facts within his personal knowledge, gained through any of his senses. A nonprofessional witness may describe personal injuries. Physical pain, weakness, exhaustion and the like are matters one may testify about." Stratton v. Webb, 513 So.2d 587, 590 (Miss. 1987). This Court finds that the testimony of pain and swelling three and a half years after the accident was sufficient to find an injury of indefinite duration. Thus, this issue is without merit.
CONCLUSION
¶ 42. This Court finds sufficient evidence to support the trial court's decision that Tolbert acted in reckless disregard. This Court also finds that there was sufficient medical proof to establish damages. However, because the trial court erred in failing to apportion fault between Evans and Tolbert, we must reverse and remand to the trial court for a specific finding of the total damages suffered by each plaintiff, and for a specific finding of the respective percentages of fault of Tolbert and Evans, if any, and then for the trial court to enter final judgment accordingly.
¶ 43. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
COBB, P.J., CARLSON AND GRAVES, JJ., CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J. AND EASLEY, J. SMITH, C.J., AND DIAZ, J., NOT PARTICIPATING.