Ambling Mgmt. Co. v. Miller

• Decision Date: 06 October 2014
• Docket Number: S13G1852.,Nos. S13G1843,s. S13G1843
• Citation: Ambling Mgmt. Co. v. Miller, 295 Ga. 758, 764 S.E.2d 127 (Ga. 2014)
• Parties: AMBLING MANAGEMENT COMPANY, LLC et al. v. MILLER. City Views at Rosa Burney Park GP, LLC et al. v. Miller.
• Court: Georgia Supreme Court

295 Ga. 758

764 S.E.2d 127

AMBLING MANAGEMENT COMPANY, LLC et al.

v.MILLER.

City Views at Rosa Burney Park GP, LLC et al.

v.Miller.

Nos. S13G1843

S13G1852.

Supreme Court of Georgia.

Oct. 6, 2014.

Hall Booth Smith, John E. Hall, Jr., James W. Standard, Jr., Duane L. Cochenour, Atlanta, for Ambling Management Company, LLC.

The Davis Bozeman Law Firm, Robert O. Bozeman, Mawuli M. Davis, M. Gino Brogdon, Sr., Cochran, Cherry, Givens, Smith & Sistrunk, Hezekiah Sistrunk, Jr., Shean D. Williams, Jane L. Sams, Summerville Moore, James D. Summerville, Sidney L. Moore III, Atlanta, for Miller.

Drew, Eckl & Farnham, Bruce A. Taylor, Jr., Atlanta, for City Views at Rosa Park GP, LLC.

Opinion

BENHAM, Justice.

This case is before us on the grant of appellants' petitions for writs of certiorari. On May 5, 2009, appellee Tramaine Miller was seriously injured when he was shot by Reginald Fisher, an off-duty POST-certified City of Atlanta (“APD”) police officer who had been patrolling the apartment complex in which Miller's quadriplegic aunt lived. Miller brought a series of tort claims against the apartment complex, its management company, and three individuals.¹ Miller's causes of action included claims for assault; battery; intentional infliction of emotional distress; false imprisonment; invasion of privacy; wrongful retention, supervision, hiring, entrustment, and training; premises liability; failure to warn; and punitive damages. Appellants moved for summary judgment, and the trial court granted the motions as to Miller's claims for vicarious liability; negligent hiring, retention, entrustment, and supervision; premises liability; and punitive damages. The trial court determined there was no vicarious liability because there was no evidence that the apartment or management company had directed Fisher's actions at the time the cause of action arose. Miller appealed the trial court's decision on his claims for vicarious liability, premises liability, and punitive damages. In Miller v. City Views at Rosa Burney Park GP, LLC, 323 Ga.App. 590, 592–598, 746 S.E.2d 710 (2013), the Court of Appeals reversed the trial court's grant of summary judgment to appellants on the vicarious liability and punitive damages claims and affirmed the trial court's grant of summary judgment on the premises liability claim. In reversing the trial court on the vicarious liability claim, the Court of Appeals found that there was some evidence that Fisher was performing duties directed by appellants and concluded that summary judgment was inappropriate. Id. at 595, 746 S.E.2d 710. The Court of Appeals reversed the judgment on the punitive damages claim because it had reversed the trial court's judgment on the vicarious liability issue. Id. at 597, 746 S.E.2d 710. As to the premises liability claim, the Court of Appeals reasoned that the trial court did not err because it found no evidence in the record that “defendants directed, condoned, or encouraged reckless or unlawful behavior by the off-duty officers.” Id. at 596, 746 S.E.2d 710. We granted appellants' petitions for writs of certiorari posing the following question: “Did the Court of Appeals' majority opinion err in focusing on the evidence of whether Officer Fisher was performing police duties not directed by his private employer at the time he approached and engaged Miller, instead of at the time the alleged causes of action arose?” We now affirm the Court of Appeals' ruling as being right for any reason.

1. When reviewing a trial court's grant of summary judgment, we conduct a de novo review of the facts to determine whether there is a genuine issue of material fact and to determine whether the undisputed facts, viewed in a light most favorable to the non-movant, warrant a judgment as a matter of law. Blockum v. Fieldale Farms Corp., 275 Ga. 798, 800, 573 S.E.2d 36 (2002). With this standard in mind, the evidence on summary judgment showed as follows. In 2008, Paul and Philip Kennon, owners of appellant City Views at Rosa Burney Park GP, LLC (“City Views”), engaged Bryan French, a POST-certified APD police officer, to patrol, during his off-duty time, the apartment complex, which was in an area known for a high volume of crime, including gang activity, illicit drug trading, and car theft. Appellant Ambling Management Company, LLC (“AMC”) provided onsite property management services at City Views through its employee Kelly Bunch who worked and lived on the City Views property. When French first began patrolling the property, a security guard service was also onsite; but at some point City Views terminated the security guard service and requested that French coordinate more hours of patrol by off-duty APD police officers. Paul Kennon communicated to French² that he wanted to increase the amount of arrests being made onsite in order to deter criminal activity at the apartments and in order to evict those tenants who were engaging in or facilitating onsite crime. French patrolled the apartments and enlisted other officers like Fisher to work shifts at City Views.³ All officers wore their APD-issued uniforms while patrolling at City Views and used their APD-issued equipment such as their service weapons and batons. Each officer was also required to have an approved permit from APD to perform off-duty “extra work,” such as patrolling apartment complexes. At the time leading up to the shooting, City Views would pay French a lump sum amount for the off-duty patrols and French would pay the other officers their share in cash.⁴

On May 5, 2009, Fisher was scheduled to work at City Views from 6:00 p.m. to 10:00 p.m.⁵ He arrived a few minutes early and contacted French by phone to alert him that he was working. He was dressed in his APD uniform, but arrived at City Views in his personal vehicle. At approximately 9:00 p.m., while sitting in his vehicle, Fisher observed Miller pull up and park in a handicap space. Fisher testified that he believed Miller walked to the apartment building's fire doors, but Miller testified, and a surveillance video apparently showed, that Miller entered through the main entrance of the building. Fisher testified that from his previous employment as a City of Atlanta fireman, he knew that drug dealers and drug users utilized the area by the fire doors for their illicit activities and so he stated his suspicions were raised about the possibility that Miller was selling or buying drugs based on his belief that Miller had walked near the building's fire doors. While Miller was inside the building, Fisher left his personal vehicle, walked over to Miller's vehicle and looked inside using his flashlight and did not see a handicap tag or sticker. Fisher also did not see any contraband. Fisher returned to his car. Miller stated that upon returning to his vehicle, he got in, started the engine, and put the car in reverse when he heard someone he did not see yelling at him to put his hands up. Miller says he complied with the command to put his hands up⁶ and, as he did so, he held his cell phone in his left hand. Miller said that after he put his hands up, the car window broke and he heard a gunshot. The next thing he remembered was waking up in the hospital.

Fisher said he had been instructed by property manager Kelly Bunch to keep the handicap spaces and fire lanes clear of unauthorized vehicles. Officer Fisher testified he approached Miller's car to discuss with him City Views' policy of keeping the handicap spaces clear. Fisher said he tapped on the car window to get Miller's attention and at that time saw Miller pull out of his pocket something that appeared to Fisher to be a piece of crack cocaine and put it in his mouth. According to Fisher, as Miller was putting the alleged drugs in his mouth, Miller was also slowly backing up the car, and the car “bumped” Fisher. Fisher said there was no gas to the vehicle when it bumped him and said he did not believe Miller was trying to hurt him with the car. Fisher, however, made a decision to arrest Miller for having illegal drugs. Fisher stated he issued commands to Miller that went unheeded and so he broke the driver's side window and then saw Miller make a move to reach for something under his car seat. Believing Miller had a weapon, Fisher shot Miller in the left side of the face. When a responding officer arrived on the scene, he found no drugs and no weapon on Miller's person or in his car.

2. City Views and AMC contend the Court of Appeals erred when it reversed the trial court's grant of summary judgment. They argue that the Court of Appeals opinion erroneously focuses on Fisher's conduct and intent as he approached Miller rather than focusing its analysis on Fisher's conduct and intent at the time the torts or causes of action arose. For reasons set forth below, we agree with appellants that the proper focus of analysis is to determine in what capacity the officer was acting at the time the tort arose.

This Court set forth the relevant analysis regarding a private employer's vicarious liability for actions of a “special” policeman in a trifecta of cases issued in the early twentieth century. See Massachusetts Cotton Mills v. Hawkins, 164 Ga. 594, 139 S.E. 52 (1927) ; Exposition Cotton Mills v. Sanders, 143 Ga. 593, 85 S.E. 747 (1915) ; Pounds v. Central of Georgia Ry. Co., 142 Ga. 415, 83 S.E. 96 (1914). In Pounds we explained:

The question arises, was ... the policeman, the agent of the city exclusively; or was he the agent of the company, with superadded police powers; or was he acting in a dual capacity? If a man is a policeman, and he has no duties to discharge, except police duties, proper for the public,—if he is acting as a public policeman and nothing else,—the mere fact that the company pays for his services does not make him the agent of the railway company. The company may become liable for his torts by directing them, even though he be a public officer. Or, he may have the functions of a public official, and also certain

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