United States Court of Appeals,
Eleventh Circuit.
Nos. 94-9098, 94-9158.
Mathew HAMILTON, By and Through Lovelurn HAMILTON, his next
friend, Lovelurn Hamilton, Administratrix of the Estate of Kim
Orlena Hamilton, Una Hamilton, Plaintiffs-Appellees,
v.
Charles CANNON, in his official capacity as Sheriff of Macon
County, Georgia, Ronald Duncan, Macon Co., GA, a political
subdivision of the State of Georgia, Michael Tookes, Defendants-
Appellants,
The Macon County Sheriff's Department, The Macon County/City of
Montezuma, Georgia, Department of Parks and Recreation, The City of
Montezuma, Georgia, Police Department, Freddy Mallard, Logan
Walton, XYZ Pool Management Company, Defendants,
The City of Montezuma, Lonnie Brown, Defendants-Appellees.
Mathew HAMILTON, By and Through Lovelurn HAMILTON, his next
friend, Lovelurn Hamilton, Administratrix of the Estate of Kim
Orlena Hamilton, Una Hamilton, Plaintiffs-Appellants,
v.
Charles CANNON, in his official capacity as Sheriff of Macon
County, Georgia, Ronald Duncan, Macon Co., GA, a political
subdivision of the State of Georgia, City of Montezuma, and Lonnie
Brown, Defendants-Appellees,
The Macon County Sheriff's Department, et al., Defendants.
April 19, 1996.
Appeals from the United States District Court for the Middle
District of Georgia. (No. 92-CV-276-3-MAC), Duross Fitzpatrick,
Chief Judge.
Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior
Circuit Judge.
CARNES, Circuit Judge:
These appeals arise from the tragic death of Kim Orlena
Hamilton at a Montezuma, Georgia municipal swimming pool. The
three plaintiffs—Hamilton's mother, Hamilton's minor child, and the
Administratrix of Hamilton's estate—brought this action in federal
district court alleging constitutional claims under 42 U.S.C. §
1
1983 and state law negligence claims. The complaint named as
defendants Macon County, Georgia; Macon County Deputy Sheriff
Ronald Duncan (in his individual and official capacities); and
Macon County Sheriff Charles Cannon (in his official capacity
only). We refer to these defendants as "the county defendants."
The complaint also named as defendants the city of Montezuma;
Michael Tookes, a lifeguard at the swimming pool (in his individual
and official capacities); and Lonnie Brown, the manager of the
pool (in his individual and official capacities). We refer to
these defendants as "the city defendants."2
The district court granted summary judgment to all of the
defendants on the plaintiffs' state law negligence claims, Hamilton
v. Cannon, 864 F.Supp. 1332, 1338 (M.D.Ga.1994), and we have
jurisdiction over that judgment pursuant to 28 U.S.C. § 1292(b).
The plaintiffs' appeal of that ruling is our case number 94-9158.
The court also granted Lonnie Brown summary judgment on the section
1983 claims, in his individual capacity, on the ground of qualified
immunity. Id. However, the court denied Tookes' and Duncan's
motions for summary judgment on the section 1983 claims, in their
individual capacities, holding that they were not entitled to
qualified immunity. Id. We have jurisdiction over Tookes' and
Duncan's appeal of that decision under Mitchell v. Forsyth, 472
1
Hamilton's mother has since been dismissed from the case
and is not a party to this appeal.
2
Additional defendants were also named, but the claims
against those defendants have been settled.
U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and their appeal
of that ruling is our case number 94-9098. The part of the case
involving the plaintiffs' federal claims against these individual
defendants in their official capacities, and against Macon County
and the City of Montezuma, is not before us.3
Although two appeals with two different case numbers are
before us, they are based on the same record and the same evidence.
The district court disposed of the defendants' motions for summary
judgment on the plaintiffs' state law negligence claims and the
defendants' motions for summary judgment on the federal claims in
a single order. We have consolidated the two appeals for
decisional purposes.
I. The Facts and Procedural Background
The procedural posture of these cases requires us to view the
facts, which are drawn from the pleadings, affidavits, and
depositions, in the light most favorable to the plaintiffs.
Rodgers v. Horsley, 39 F.3d 308, 309 (11th Cir.1994). What we
consider to be facts for present purposes may not turn out to be
the actual facts if the case goes to trial. Swint v. City of
Wadley, 51 F.3d 988, 992 (11th Cir.1995). Viewed from the present
perspective, however, we take the facts to be as follows. On July
6, 1990, Hamilton, who was fourteen years old, accompanied her
sister and a friend to the Hill Street municipal swimming pool in
3
Macon County attempts to piggyback onto the interlocutory
appeal by Tookes and Duncan an appeal from the district court's
denial of summary judgment for the county. But we do not have
jurisdiction over the district court's denial of summary judgment
to the county, which was not a final judgment on the merits, an
interlocutory appeal certified pursuant to 28 U.S.C. § 1292(b),
or a decision denying qualified immunity.
Montezuma, Georgia. Hamilton did not know how to swim and did not
intend to enter the pool, but a boisterous group of swimmers
engaging in horseplay threw her into the water. The ultimate
result of this "dunking" was Hamilton's death.
Tookes assisted in managing the pool and served as lifeguard.
He had received no formal lifeguard training nor any instruction
with respect to drownings or other potential emergencies at the
pool. After Hamilton was thrown in the pool, she collapsed trying
to get out of the water. All Tookes knew to do was to remove her
from the pool and place her on the edge of it. Immediately after
Tookes removed Hamilton from the pool, Sharon Simpson, a bystander
who was trained in CPR, began administering CPR in an attempt to
revive Hamilton. Tookes stood by and wiped Hamilton's mouth from
time to time. After Simpson initiated CPR, Hamilton appeared to
begin shallow breathing and to revive slightly. There is testimony
that Hamilton held her head up, began to cough, and moved her arm.
Simpson felt a pulse and saw Hamilton trying to respond by moving
her eyes. Additionally, Hamilton moved her head in response to her
name. Tookes believed Hamilton was recovering and in no danger of
dying.
While this rescue attempt was underway, Macon County Deputy
Sheriff Ronald Duncan arrived at the scene. Duncan ordered
everyone to clear the area around Hamilton. Despite Simpson's
objections, Duncan specifically ordered her away from Hamilton.
Duncan then examined Hamilton's condition, but did not himself
undertake CPR efforts or take any other medical action on her
behalf, apparently believing that Macon County's emergency medical
technicians would arrive immediately after him. Those medical
technicians had been called and were enroute, but unfortunately,
they were confused about the location and mistakenly went to
another public swimming pool located several blocks away. This
mistake delayed their arrival by several minutes, and during that
time no one provided medical attention to Hamilton.
Once Simpson realized that Deputy Duncan had no intention of
administering CPR, she ran to her nearby home to retrieve her Red
Cross CPR certification card. Simpson was gone approximately five
minutes, and during that time neither Duncan, Tookes, nor the
Montezuma police officers who arrived in the interim provided any
medical attention to Hamilton. Upon Simpson's return, the medical
technicians still had not arrived, and Duncan permitted Simpson to
recommence CPR. Soon afterward, the technicians did arrive, having
learned this swimming pool's location from persons at the other
pool. Unfortunately, Hamilton had already passed the point at
which medical assistance could be of benefit. She was declared
dead soon after.
II. The Section 1983 Claims and Tookes'
and Duncan's Claims of Qualified
Immunity, Appeal No. 94-9098
A. Background
The plaintiffs presented claims pursuant to 42 U.S.C. § 1983,
which provides a tort remedy against persons acting under color of
state law for deprivations of rights secured by federal law.
Before a person, county, or municipality can be held liable under
section 1983, a plaintiff must establish that she suffered a
constitutional deprivation. E.g., Bradberry v. Pinellas County,
789 F.2d 1513, 1515 (11th Cir.1986). Further, to imposeindividual
liability on public officers, the plaintiff must prove that the
defendants violated not only a constitutional right, but a "clearly
established" constitutional right; otherwise the defendants are
protected by qualified immunity. E.g., Lassiter v. Alabama A & M
Univ., 28 F.3d 1146 (11th Cir.1994) (en banc).
To overcome the qualified immunity defense, the contours of
the right allegedly violated must be sufficiently clear that a
reasonable official would understand that what he was doing
violates that right. E.g., Anderson v. Creighton, 483 U.S. 635,
640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). That is to say,
"[u]nless a government agent's act is so obviously wrong, in the
light of preexisting law, that only a plainly incompetent officer
or one who was knowingly violating the law would have done such a
thing, the government actor has immunity from suit." Lassiter, 28
F.3d at 1149. "If case law, in factual terms, has not staked out
a bright line, qualified immunity almost always protects the
defendant." Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557
(11th Cir.1993).
The district court denied Tookes' and Duncan's motions for
summary judgment on qualified immunity grounds. The court held
that, viewing the evidence in the light most favorable to the
plaintiffs, the plaintiffs did state a claim for the violation of
a constitutional right, and that Tookes and Duncan were not
protected by qualified immunity because the constitutional right
claimed to have been violated was clearly established at the time
of their alleged conduct. We will first discuss the plaintiffs'
claim against Duncan, which is stronger than their claim against
Tookes.
B. Duncan
The sole constitutional right that the plaintiffs allege
Duncan violated is the Fourteenth Amendment's prohibition against
the deprivation of life, liberty, or property without due process
of law. The issue before us is therefore whether, in view of what
we take to be the facts for present purposes, Duncan's failure to
provide an adequate rescue, or his action in barring private rescue
attempts, ran afoul of a clearly established constitutional right.
The district court held it did and therefore denied Duncan's motion
for summary judgment. We review this question of law de novo.
E.g., Swint, 51 F.3d at 994.
The plaintiffs concede that, absent special circumstances,
individuals—even government officials—are under no duty to provide
rescue.4 However, "there are times when the Constitution requires
local governmental units to provide basic protective services to
individuals with whom the government has created a special
relationship." Bradberry, 789 F.2d at 1516 n. 2. The plaintiffs'
position on the merits is that under the facts, the special
relationship exception applies to impose liability on Duncan.
Because Duncan's qualified immunity defense is the issue at hand,
4
There is no general duty to rescue a stranger in distress,
even if the rescue can easily be accomplished. See, e.g.,
Jackson v. City of Joliet, 715 F.2d 1200, 1202 (7th Cir.1983),
cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720
(1984). And the fact that the defendant is a public officer adds
nothing. "[A] mere failure to rescue is not tortious just
because the defendant is a public officer whose official duties
include aiding people in distress." Id.
in order to prevail in this appeal the plaintiffs must convince us
that any special relationship law specifically imposing liability
under these factual circumstances was clearly established at the
time of Hamilton's death, July 6, 1990.
The plaintiffs argue that a special relationship arose,
imposing an affirmative constitutional duty upon Duncan, when
Duncan cleared the area around Hamilton and instructed Simpson to
discontinue CPR efforts, thereby implicitly taking responsibility
for Hamilton. The plaintiffs rely on three cases to establish with
the requisite clarity that under these circumstances a special
relationship was created between Duncan and Hamilton, so that a
negligent or reckless rescue attempt, or interference with a
bystander's rescue attempt, violated the Constitution.
The first case the plaintiffs point to as clearly establishing
this proposition of law is DeShaney v. Winnebago County Department
of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249
(1989). In DeShaney, the Supreme Court held that the government
did not violate the constitutional rights of a four-year-old child,
who was in the custody and control of his natural father, when his
father beat him severely. The county officials had been aware that
the father was abusing his child, and at one point the county had
taken the child into custody after he was admitted to a local
hospital with suspicious bruises and abrasions. However, the child
was released to his father after only three days in protective
custody. For the next six months, a county caseworker made monthly
visits to the DeShaney home, during which she observed a number of
suspicious injuries to the child's head. The caseworker recorded
these incidents in her files. The child was admitted to the
emergency room once again for injuries believed to be caused by
child abuse. Still, the county officials did not take the child
into custody. On the caseworker's next two visits to the DeShaney
home, she was told the child was too ill to see her, and no action
was taken. A few months later, DeShaney beat his child so severely
that the child suffered permanent brain damage and was rendered
profoundly retarded.
Despite repeated indications that DeShaney was abusing his
child, county officials had done nothing to protect the child.
Even under those egregious circumstances, the Supreme Court held
that there was no violation of any constitutional duty. In so
holding, the Court distinguished cases involving persons who were
in custody, such as prisoners and persons committed to mental
institutions, from the general public, holding that public
officials have no duty to protect individuals, generally. Id. at
198-201, 109 S.Ct. at 1004-06.
Although DeShaney held that there was no constitutional
violation in that case, the plaintiffs attempt to extract from
DeShaney a clearly established rule that a state has an affirmative
duty to protect people when the state imposes a limitation on the
individual's freedom to act on her own behalf. But DeShaney
reached no such holding, and instead held that the failure of the
government actors in that case to "rescue" the young child from the
abusive father to whom the child had been returned did not violate
the Constitution. If anything, the holding in
DeShaney establishes
that the rule the plaintiffs seek is far from clearly established.
The plaintiffs also rely upon our decision in Wideman v.
Shallowford Community Hospital, Inc., 826 F.2d 1030 (11th
Cir.1987), which held that a county government's practice of using
its emergency medical vehicles to transport patients only to
hospitals that guarantee the payment of the county's medical bills
does not violate any right protected by the federal Constitution.
Toni Wideman, who was at the time four months pregnant, began
experiencing abdominal pain. She called her obstetrician, who
instructed her to come immediately to Piedmont Hospital. Wideman
called the 911 emergency telephone number and requested an
ambulance to take her to Piedmont. Wideman asked the Emergency
Medical Service employees who responded to her call to take her to
Piedmont where her doctor was waiting, but because of the county's
policy they refused and instead took Wideman against her wishes to
a different hospital. The attending physician at that hospital
spoke by phone to Wideman's obstetrician at Piedmont and, after a
substantial delay, Wideman was transferred to Piedmont. At that
point, however, Wideman's obstetrician was unable to stop her
labor, and Wideman gave birth to a premature baby, who survived for
only four hours. Id. at 1031.
The Wideman Court held that the county's practice of
transporting emergency patients only to certain hospitals did not
violate the Constitution. Id. at 1036. In so holding, the Court
discussed at some length the "special relationship" cases. Quoting
from a Seventh Circuit decision, the Court observed that " "[t]he
contours of what constitutes a "special relationship" between a
municipality, acting through its officials, and its citizens are
hazy and indistinct.' " 826 F.2d at 1035 (quoting Ellsworth v.
City of Racine, 774 F.2d 182, 185 (7th Cir.1985), cert. denied, 475
U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986)). The Court went
on to state: "It is possible, however, to discern certain general
guidelines regarding the existence of such a right-duty
relationship," and then observed that "[t]he primary thread weaving
these special relationship cases together is the notion that if the
state takes a person into custody ... or assumes responsibility for
that person's welfare, a "special relationship' may be created in
respect of that person." Id. The only example given was in the
prison context. The Wideman Court stated that "a constitutional
duty can arise only when a state or municipality, by exercising a
significant degree of custody or control over an individual, places
that person in a worse situation than he would have been had the
government not acted at all." Id. Then came the following
statement, upon which the plaintiffs in this case place much
emphasis: "Such a situation could arise by virtue of the state
affirmatively placing an individual in a position of danger,
effectively stripping a person of her ability to defend herself, or
cutting off potential sources of private aid." Id.
Those passages from Wideman are clearly dicta, because they
were in no way essential to Wideman 's holding of no liability.
The law cannot be established by dicta. Dicta is particularly
unhelpful in qualified immunity cases where we seek to identify
clearly established law. See, e.g., Jones v. White, 992 F.2d 1548,
1566 (11th Cir.) ("[F]or law-of-the-circuit purposes ... [the
review of any precedent] ought to focus far more on the judicial
decision than on the judicial opinion." (citation and quotation
marks omitted) (alterations in original)), cert. denied, --- U.S.
----, 114 S.Ct. 448, 126 L.Ed.2d 381 (1993).
The district court thought that the Wideman case clearly
established that Duncan's actions in this case violated Hamilton's
constitutional rights. The district court drew from Wideman the
general proposition that a constitutional duty can arise when a
state or municipality exercises a significant degree of custody or
control over an individual and places that individual in a worse
5
situation than if the government had not acted at all. The
Wideman Court said that such a situation could arise if the
government affirmatively placed an individual in a position of
danger or cut off potential sources of private aid; but the
Wideman opinion itself characterized those statements as only
"general guidelines." 826 F.2d at 1035. Moreover, the general
propositions discussed in Wideman had little to do with the facts
of that case, which in turn are not sufficiently similar to the
5
This Court and others have extended the state custody
exception beyond actual incarceration or involuntary
institutionalization only when there is some kind of physical
restraint by the state that triggers an affirmative
constitutional duty of care and protection. We explained in
Lovins v. Lee that "special relationship decisions stand only for
the proposition that when the State takes a person into its
custody and holds him there against his will, the Constitution
imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being. The duty
in such cases arises from the limitations which the government
has imposed on the freedom of the individual to act on his own
behalf." 53 F.3d 1208, 1210 (11th Cir.1995) (citation and
quotation marks omitted). If a person's attendance in an area is
voluntary, and she was not physically placed there by the state,
she cannot be considered to be in custody and subject to the
exception discussed in Wideman. See Rogers v. City of Port
Huron, 833 F.Supp. 1212, 1218 (E.D.Mich.1993).
facts of this case. See Rodgers v. Horsley, 39 F.3d 308, 311 (11th
Cir.1994) ("the question in this case, as in all qualified immunity
cases, is fact specific"); Adams v. St. Lucie County Sheriff's
Dep't., 962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson, J.,
dissenting) ("The facts need not be the same as the facts of the
immediate case. But they do need to be materially similar."),
approved en banc, 998 F.2d 923 (11th Cir.1993). In short, the
district court relied upon dicta from Wideman as having clearly
established the law, something that dicta cannot do.
Finally, the plaintiffs rely upon our holding in Cornelius v.
Town of Highland Lake, 880 F.2d 348 (11th Cir.1989), cert. denied,
494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990). In that
decision we held that a town could have violated the constitutional
rights of a town employee when it placed work release inmates in
close proximity to the employee who had no choice, if she wanted to
keep her job, but to continue working around the inmates. Id. at
356. Cornelius did not involve any rescue-type situation. Its
facts are far removed from the present case.6 We held in Lassiter
that, "[f]or the law to be clearly established to the point that
qualified immunity does not apply, the law must have earlier been
developed in such a concrete and factually defined context to make
it obvious to all reasonable government actors, in the defendant's
6
Further, Cornelius' viability is questionable in light of
the Supreme Court's subsequent decision in Collins v. City of
Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261
(1992), which held, in effect, that no special relationship for
substantive due process purposes arises from an employment
relationship with the government. Id. at 127-28, 112 S.Ct. at
1070. We noted in Lovins, 53 F.3d at 1211, that two panels of
this Court have expressed doubt about the continuing validity of
Cornelius in the wake of Collins.
place, that "what he is doing' violates federal law." 28 F.3d at
1149. Cornelius did not develop the law in the context of a law
enforcement officer failing to provide competent rescue services or
interrupting a bystander's rescue efforts. Consequently, it cannot
have clearly established the law applicable to the present case.
In summary, the three cases that the plaintiffs rely upon did
not develop the law plaintiffs assert in a sufficiently concrete
and factually defined context to serve as the basis for the denial
of qualified immunity in this case. The concrete and factually
defined contexts of those three cases make them distinguishable
from this one.7 We said in Lassiter that the most common error we
encounter in qualified immunity cases involves the point that
"courts must not permit plaintiffs to discharge their burden by
referring to general rules and to the violation of abstract
"rights.' " Id. at 1150. We emphasized that "[g]eneral
propositions have little to do with the concept of qualified
7
The case that most strongly lends support to plaintiffs'
position is the Seventh Circuit decision in Ross v. United
States, 910 F.2d 1422 (7th Cir.1990). In Ross, the Seventh
Circuit, under factual circumstances more egregious than those in
this case, held that recklessness can establish a due process
violation when the defendant state actor's interference with
rescue attempts by other officials disregards a "known and
significant risk of death." Id. at 1433. However, even if Ross
were indistinguishable, Seventh Circuit decisions can not clearly
establish the law for purposes of qualified immunity in this
circuit. E.g., D'Aguanno v. Gallagher, 50 F.3d 877, 881 n. 6
(11th Cir.1995) ("The remaining cases on which plaintiffs rely do
not come from the U.S. Supreme Court, the Eleventh Circuit Court
of Appeals, or the Florida Supreme Court and, therefore, cannot
show that plaintiffs' right to due process was clearly
established."); Courson v. McMillian, 939 F.2d 1479, 1497-98 &
n. 32 (11th Cir.1991) (law can be "clearly established" for
qualified immunity purposes by decisions of U.S. Supreme Court,
Eleventh Circuit Court of Appeals, or highest court of state
where case arose).
immunity" and that the facts of a case relied upon to clearly
establish the law must "be materially similar," because "[p]ublic
officials are not obligated to be creative or imaginative in
drawing analogies from previously decided cases." Id. (citation
and quotation marks omitted). It would take much creativity and
imagination to glean from the factually distinguishable cases upon
which the plaintiffs rely a clearly established rule of law that an
unsuccessful, negligent, or reckless rescue attempt, or
interference with a bystander's rescue attempt, amounts to a
constitutional violation. We decline to exercise such creativity
and imagination, because qualified immunity doctrine prohibits it.
The district court should have granted Duncan's motion for
summary judgment in his individual capacity on qualified immunity
grounds.
C. Tookes
We now turn to the district court's order denying Tookes'
motion for summary judgment, in his individual capacity, on
qualified immunity grounds. All Tookes did was remove Hamilton
from the pool and place her on the ground beside it. The
plaintiffs do not contend that Tookes interfered with Simpson's
rescue attempt, or that he affirmatively did anything at all
improper. They simply contend that he should have done more.
Everything we said as to Duncan applies equally, or with even
more force, to Tookes. There are no decisions clearly establishing
that Tookes' alleged nonfeasance rises to the level of a
constitutional violation. At oral argument, the plaintiffs
conceded that if Tookes had left Hamilton in the pool to drown,
that inaction would not have violated Hamilton's constitutional
rights. However, plaintiffs argue that because Tookes rescued
Hamilton from the pool he incurred a constitutional duty to
continue rescue efforts even if he was not properly trained to do
so. We doubt that the Constitution requires such a rule of law,
under which some rescue effort is worse than none from the
rescuer's perspective. Although we do not have occasion to pass on
the merits of the plaintiffs' constitutional claim against Tookes,
we note that it does border on the frivolous.
The district court should have granted summary judgment to
Tookes in his individual capacity on qualified immunity grounds.
We turn now to the plaintiff's state law negligence claims.
III. The State Law Negligence Claims, Appeal No. 94-9158
The plaintiffs brought various state law negligence claims
against the city defendants and the county defendants. The
district court granted summary judgment to all of the defendants on
these negligence claims, relying on Georgia's "public duty"
doctrine as established by City of Rome v. Jordan, 263 Ga. 26, 426
S.E.2d 861 (1993). Originating in 1993, the public duty doctrine
represents a relatively recent development in Georgia law. In
Jordan, a sexual assault victim brought a negligence suit against
the City of Rome for failing to dispatch a police car to her home
after the victim's sister had made several calls requesting police
assistance. The Georgia Supreme Court held that, "where failure to
provide police protection is alleged, there can be no liability
based on a municipality's duty to protect the general public."
Jordan, 426 S.E.2d at 863. However, the court further held that
"the municipality may be subject to liability for the nonfeasance
of its police department" in circumstances where there exists a
"special relationship" between the municipality and the individual.
Id. The court then set up a three-pronged test to determine
whether such a special relationship exists. Satisfaction of the
test requires:
(1) an explicit assurance by the municipality, through
promises or actions, that it would act on behalf of the
injured party;
(2) knowledge on the part of the municipality that inaction
could lead to harm; and,
(3) justifiable and detrimental reliance by the injured party
on the municipality's affirmative undertaking.
Id. The court adapted this test from the rule in a New York case,
Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505
N.E.2d 937 (1987).
Applying the test to the facts of Jordan, the Georgia Supreme
Court held that no special relationship existed between the victim
and the municipality because the "detrimental reliance" element of
the test could not have been met where the victim did not speak to
the police and could not have known whether they had made any
promise of assistance. Jordan, 426 S.E.2d at 864.
The district court in this case applied the same reasoning in
granting summary judgment to the defendants on the state law
negligence claims. Turning directly to the third prong of the
test, the court reasoned that, because Hamilton was unconscious at
the time, she could not have relied on any undertaking of the
defendants. Hamilton, 864 F.Supp. at 1338. More specifically, the
court noted that "she was incapable of taking any affirmative act
that might signify reliance." Id. The district court explained:
"As Georgia law now stands it appears that municipalities can be
held liable for their negligence only if the injured party is
conscious and communicating, but once the victim becomes incapable
of expressing assent municipal liability ceases." Id.
The plaintiffs argue that the "special relationship" test of
Jordan does not control this case. Although they state the
argument in several ways, the plaintiffs' basic position boils down
to this syllogism:
(1) Jordan applies to cases of failure to provide police
protection;
(2) This case has nothing to do with failure to provide police
protection;
(3) Therefore, Jordan is irrelevant to the determination of
this case.
With respect to the city defendants, the plaintiffs argue that
Jordan is plainly inapplicable because the state law negligence
claims against the city defendants have nothing whatsoever to do
with police conduct and, additionally, that Jordan only applies to
nonfeasance, not affirmative acts of negligence.
With respect to the county defendants, the plaintiffs'
argument is a slightly different variation on the same theme.
First, the plaintiffs argue that although police conduct is
involved in the case against the county defendants, the claims
against those defendants are based on negligent interference with
a private rescue effort rather than failure to provide police
protection. Making the point in a slightly different way, the
plaintiffs argue that, quite separate from any "special
relationship" duty owed to Hamilton by Duncan under the Jordan
analysis, Duncan owed Hamilton an independent duty to exercise
ordinary care once he had taken control of the situation and had
ordered Simpson to stop administering CPR. Additionally, the
plaintiffs argue that, even if Jordan applies to the claims against
the county defendants, the district court erred in its application
of the reliance prong of the test by requiring "an affirmative act
that might signify reliance." Id. They argue that Jordan did not
expressly set up an affirmative act requirement and that, under the
circumstances, reliance should be implied or imputed to Hamilton by
others at the scene.
In general, the defendants' arguments are the converse of the
plaintiffs' arguments; the defendants argue for a broad
interpretation of Jordan to insulate them from liability. Both the
city defendants and the county defendants contend Jordan applies
outside the realm of police conduct and applies both to affirmative
acts of negligence as well as nonfeasance. The city defendants
also point out that the plaintiffs have not alleged that the city
defendants committed any affirmative negligent acts with respect to
Hamilton and thus even if Jordan only shields defendants in cases
of nonfeasance, it still shields them.
The plaintiffs' position that Jordan is limited to failure to
provide police protection, or to municipal nonfeasance, would seem
to be a plausible interpretation of the decision. The opinion
contains no less than five references that lend support to this
view. See Jordan, 426 S.E.2d at 862 ("when considering ... failure
to provide police protection") (emphasis added); 862 n. 2 ("We
wish to point out that this case involves the municipality's
failure to act, as opposed to any affirmative act of negligence.");
863 ("where failure to provide police protection is alleged")
("nonfeasance of [municipality's] police department") (emphasis
added); 863 n. 4 ("where a police officer is present at the scene
... yet does not act ") (emphasis added). Nonetheless, Jordan does
not expressly say that its applicability is to be limited to
situations of police nonfeasance, and there is some indication to
the contrary.
For example, in City of Lawrenceville v. Macko, 211 Ga.App.
312, 439 S.E.2d 95 (1993), some homeowners sued the City of
Lawrenceville alleging that the city was negligent in failing to
properly inspect property prior to the issuance of a building
permit. The Georgia Court of Appeals held that the city's
sovereign immunity defeated the plaintiffs' claims. Id. 439 S.E.2d
at 98-99. In the alternative, the court held that even in the
absence of sovereign immunity, the public duty doctrine of Jordan
would have operated to prevent recovery because the plaintiffs had
not shown that the city owed them a duty of care greater than it
owed the general public. Id. at 99.
The only other reported Georgia case we have found that
involves Jordan is Georgia Department of Transportation v. Brown,
218 Ga.App. 178, 460 S.E.2d 812 (1995). In Brown, the survivors of
a motorist who was killed at an intersection sued the Georgia DOT
because the DOT opened the road with two-way stop signs prior to
completion, rather than the four-way traffic lights that the plans
required. The court held that the public duty doctrine of Jordan
did not apply where the legislature had provided for a remedy under
the Georgia Tort Claims Act. Id. at 817. However, the court was
not required to determine whether Jordan would have barred recovery
in the absence of a statutory right of action.
Determining the applicability of Jordan to this case is
problematic. The Jordan decision itself represents the only time
the Georgia Supreme Court has spoken to the issue, but the language
of the opinion may not delineate the limits of the doctrine it
announces. One Georgia appellate court case, Macko, seems to
signal an expansive application while the more recent decision in
Brown declined to extend the doctrine. Although both the
plaintiffs and defendants cite to extra-territorial case law to
buttress their Jordan arguments, those cases are not particularly
helpful because they do not determine the correct rule in Georgia
and because they are in conflict.
Application of the Jordan public duty doctrine outside the
police nonfeasance context has significant public policy
ramifications, and we are in doubt about the matter. When such
doubt exists as to the application of state law, a federal court
should certify the question to the state supreme court to avoid
making unnecessary state law guesses and to offer the state court
the opportunity to interpret or change existing law. Mosher v.
Speedstar Div. of AMCA Int'l, Inc., 52 F.3d 913, 916-17 (11th
Cir.1995). "Only through certification can federal courts get
definitive answers to unsettled state law questions. Only a state
supreme court can provide what we can be assured are "correct'
answers to state law questions, because a state's highest court is
the one true and final arbiter of state law." Sultenfuss v. Snow,
35 F.3d 1494, 1504 (11th Cir.1994) (en banc) (Carnes, J.,
dissenting), cert. denied, --- U.S. ----, 115 S.Ct. 1254, 131
L.Ed.2d 134 (1995).
While we could make an Erie8 guess as to the applicability of
the Jordan public duty doctrine to this case, we have determined
that the more prudent course is to submit the issue to the Georgia
Supreme Court. Accordingly, we respectfully certify the following
questions of law to the Supreme Court of Georgia:9
(1) Does the "public duty doctrine" established in City of
Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861 (1993), apply outside
the police protection context and in the circumstances of this
case?
(2) Does the Jordan public duty doctrine apply to affirmative
acts of negligence, such as those alleged in this case, in addition
to failures to act?
(3) Does the "reliance prong" of the Jordan special
relationship test require an objective manifestation of assent by
the plaintiff, or may assent be inferred from the reliance of
others or from the circumstances of this case?
8
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938).
9
Additionally, the defendants argue that even if the Jordan
public duty doctrine is inapplicable to these facts, we should
affirm the summary judgment in their favor on the basis of lack
of causation, or the Georgia "good Samaritan" statute. The
district court relied solely on the Jordan public duty doctrine
in granting summary judgment to the defendants on the state law
negligence claims. The district court declined to reach the
merits of these additional defenses, and so do we. If it is
necessary to consider these defenses after the Georgia Supreme
Court answers our certified questions regarding the applicability
of the Jordan doctrine, we will do so at that time.
(4) Does the Jordan special relationship test apply when a law
enforcement officer acts with gross negligence in performing duties
at the scene of an emergency, as is alleged in this case, such that
the officer would not otherwise be shielded from liability by
Ga.Code Ann. § 35-1-7 (1993)?
Our statement of the questions is not meant to limit the scope
of inquiry by the Supreme Court of Georgia. On the contrary:
[T]he particular phrasing used in the certified question[s]
[are] not to restrict the Supreme Court's consideration of the
problems involved and the issues as the Supreme Court
perceives them to be in its analysis of the record certified
in this case. This latitude extends to the Supreme Court's
restatement of the issue or issues and the manner in which the
answers are to be given....
Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th Cir.1968). The
entire record in this case, together with copies of the briefs of
the parties, is transmitted herewith.
QUESTIONS CERTIFIED.
IV. Conclusion
We REVERSE the district court's denial of summary judgment to
Tookes and Duncan in their individual capacities insofar as the
federal constitutional claims are concerned. We CERTIFY the state
law issues to the Georgia Supreme Court, and we WITHHOLD any
decision about the district court's grant of summary judgment on
the state law claims until we receive the answers to that
certification.10
10
The time for any rehearing petitions and suggestions will
not begin to run in either of these two appeals, which we have
consolidated, until we have disposed of the state law claim
issues following the Georgia Supreme Court's decision of the
certified questions.