City of Winder v. McDougald

Andrews, Presiding Judge,

dissenting.

I respectfully dissent.

The City of Winder is entitled to summary judgment because the sole proximate cause of the car crash that tragically killed 14-year-old Ashley McDougald was the child’s unlawful operation of the car and high speed flight from a City police officer attempting to carry out his lawful duty.

This is not a claim by an innocent third person who was injured or killed in a vehicular collision with a fleeing violator or the pursuing police officer. This suit was brought against the pursuing officer and his employer, the City of Winder, on behalf of the underaged driver who committed a traffic violation in the presence of the officer, ignored the officer’s attempts to stop her, and was killed when she *541struck a utility pole while fleeing from the officer at high speed. Georgia’s appellate courts have not previously addressed such a claim by a fleeing violator for damages suffered during unlawful flight from an identified police pursuer.1

Because there was no evidence the police officer acted with malice or an intent to injure in initiating or continuing the pursuit, the trial court properly granted summary judgment to the individual officer on the basis of official immunity. Cameron v. Lang, 274 Ga. 122, 123-126 (549 SE2d 341) (2001). The trial court denied summary judgment to the City, however, finding the City waived its immunity to the extent of insurance purchased to cover the officer’s car and that questions of fact existed as to whether the officer was negligent and the City was liable for that negligence on the basis of respondeat superior. See Gilbert v. Richardson, 264 Ga. 744, 753-754 (452 SE2d 476) (1994); Cameron, 274 Ga. at 126-127. The majority concludes the trial court properly denied summary judgment, but that it should have applied the “reckless disregard” standard set forth in OCGA § 40-6-6 (d) (2) instead of a negligence standard.

OCGA § 40-6-6 sets forth policies for officers engaged in vehicular pursuit of actual or suspected violators of the law. OCGA § 40-6-6 (a), (b), and (c) provide that a police officer using an audible signal and a flashing or revolving red or blue light while in vehicular pursuit of an actual or suspected violator may proceed past a red or stop signal after slowing down, exceed maximum speed limits as long as life or property is not endangered, and disregard regulations governing direction and turning. Subsection (d) (1), (2), and (3) address issues regarding the duty to other persons owed by an officer engaged in vehicular pursuit and the proximate cause of damage, injury, or death occurring during the pursuit. Subsection (d) (1) provides that subsections (a), (b), and (c) “shall not relieve the [officer] from the duty to drive with due regard for the safety of all persons.” Subsection (d) (2) further provides that:

When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the *542officer’s decision to initiate or continue the pursuit. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation.

Finally, subsection (d) (3) provides that “[t]he provisions of [subsection (d)] shall apply only to issues of causation and duty and shall not affect the existence or absence of immunity which shall be determined as otherwise provided by law.”

Taken as a whole, the provisions of OCGA § 40-6-6 cannot be construed to create a duty owed by pursuing police officers to fleeing violators. Rather, § 40-6-6 gives officers exceptional rights in operating vehicles while pursuing actual or suspected violators and establishes duties owed by pursuing officers to innocent persons other than fleeing violators. Although subsection (d) (1) (formerly subsection (d) of the pre-1995 version of the statute) refers to an officer’s “duty to drive with due regard for the safety of all persons,” this language was construed in the former version of the statute as creating a duty owed to innocent third persons, not to fleeing violators. Mixon v. City of Warner Robins, 264 Ga. 385, 387 (444 SE2d 761) (1994); Archer v. Johnson, 90 Ga. App. 418, 423-424 (83 SE2d 314) (1954). Subsection (d) (2) shows on its face that it applies only to claims by innocent third persons and creates no duty owed by a pursuing officer to an actual or suspected fleeing violator. It provides that an officer’s pursuit “shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures. . . .” OCGA § 40-6-6 (d) (2). To apply this subsection to a claim by a fleeing violator, it must be read to stand for the absurd proposition that a pursuing officer may be held liable as “the proximate cause” of a fleeing suspect’s injury or death when the injury or death was “caused by the fleeing suspect.” It also makes the implausible presumption that the legislature intended to treat claims by fleeing violators the same as those made by innocent third parties by applying the same “reckless disregard” standard to both.

If this were a case involving claims against the officer and the City by an innocent third person injured or killed in a collision with the fleeing violator, the provisions of OCGA § 40-6-6 (d) (2) would mandate application of the “reckless disregard” standard to the claim against the officer, as well as to the claim that the City was liable for the officer’s actions based on the principle of respondeat superior. Accordingly, a finding of proximate cause or contributing proximate cause would have to be supported by evidence that “the law enforce*543ment officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit.” OCGA § 40-6-6 (d) (2). Since the legislature has determined for reasons of public policy that an innocent third person must satisfy a stringent “reckless disregard” standard, common sense and public policy dictate that a more stringent standard applies to any claim by a fleeing violator.

A police officer’s duty to apprehend actual or suspected violators of the law is balanced under OCGA § 40-6-6 with a corresponding duty not to recklessly disregard the safety of innocent third persons during vehicular pursuit of those violators. Pearson v. City of Atlanta, 231 Ga. App. 96, 98 (499 SE2d 89) (1998); Cameron, 274 Ga. at 128. As to the fleeing violators themselves, the officer’s duty to pursue and apprehend them is a paramount public interest. Even if an officer’s pursuit is the cause in fact of injury to a fleeing violator during the pursuit, there is no corresponding duty to protect fleeing violators from their own criminal actions taken to avoid apprehension. See Lindstrom v. City of Corry, 563 Pa. 579 (763 A2d 394) (2000). To impose this duty would discourage police from pursuing the violators and encourage flight, thereby leaving potentially dangerous drivers on the road. It would also reward fleeing violators with causes of action for damages flowing from their own wrongdoing.

Where an actual or suspected violator flees from a police officer identified as such, the only basis for concluding that the officer’s vehicular pursuit may be the proximate cause or contributing proximate cause of damages, injury, or death suffered by the violator during the pursuit is evidence that the officer acted with actual malice or an intent to injure in initiating or continuing the pursuit. In other words, there must be evidence the officer had a deliberate or premeditated intention to inflict injury or take life, not merely an intention to do the act purportedly resulting in the injury or death. Kidd v. Coates, 271 Ga. 33 (518 SE2d 124) (1999); Adams v. Hazelwood, 271 Ga. 414, 415 (520 SE2d 896) (1999). Moreover, the absence of actual malice or intent to injure may be shown by evidence that the officer’s intentional acts were justified as taken in self-defense or in the defense of a third person. Kidd, 271 Ga. at 34. This is the standard applied to determine if an officer is entitled to official immunity from individual liability in all cases. It should not be easier for a fleeing violator to recover from the officer’s governmental employer which has waived its immunity to the extent of insurance coverage.

There is no claim and no evidence the pursuing officer acted with actual malice or an intent to injure in initiating or continuing the pursuit, so there is no basis for concluding that any action taken by the officer was the proximate cause or contributing proximate cause of the fatal crash suffered by the fleeing violator. Because the pursu*544ing officer had no duty to protect the fleeing violator from her own actions, and the sole proximate cause of the fatal crash was the unlawful high speed flight by the violator, the City of Winder is entitled to summary judgment.

Decided March 27, 2002 Carothers & Mitchell, Richard A. Carothers, William M. Coolidge III, for appellant. William S. Hardman, for appellees.

I am authorized to state that Judge Ruffin joins in this dissent.

Compare Poole v. City of Louisville, 107 Ga. App. 305 (130 SE2d 157) (1963) (the pursued did not know he was being chased by a police car, which was unmarked and gave no identifying signal, and was injured during a frightened attempt to escape).