City of Atlanta v. Mccrary
| Decision Date | 03 November 2014 |
| Docket Number | Nos. A14A0602,A14A0691.,s. A14A0602 |
| Citation | 760 S.E.2d 696 |
| Parties | CITY OF ATLANTA v. McCRARY, et al. City of Atlanta v. Mersier. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Seth Robert Eisenberg, Atlanta, Cathy Hampton, Laura Sauriol Burton, for Appellant.
Bruce Fielding Morriss, Daniel Shim, Atlanta, for Appellee.
We granted interlocutory review to the City of Atlanta (the “City”) following the trial court's denial of its motion for summary judgment in two tort actions related to a deadly collision that occurred after a high-speed police chase. The City asserted sovereign immunity. However, the trial court concluded that fact questions existed as to whether the City maintained a nuisance by, inter alia, failing to enforce its own high-speed pursuit policy. The City contends that the trial court erred in determining that a nuisance theory could apply in the context of police pursuit cases and in finding that there were fact questions as to the existence of a nuisance. Finding error, we reverse.
Summary judgment is proper if 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. OCGA § 9–11–56(c). If a movant who does not bear the burden of proof at trial notes the absence of evidence to support an essential element of the respondent's case, the respondent must then identify evidence in the record giving rise to a triable issue. We review a trial court's grant of summary judgment de novo, construing the evidence and reasonable inferences in favor of the nonmoving party.
(Footnote omitted.) City of Atlanta v. Shavers, 326 Ga.App. 95, 95, 756 S.E.2d 204 (2014).
The evidence shows that Nicholas Dimauro and his patrol partner, both officers with the Atlanta Police Department's (“APD”) Auto Theft Task Force, were on patrol on the night of January 24, 2008, when they noticed a car with an improperly completed drive-out tag. Dimauro turned on his siren and lights, and followed the vehicle. Samuel Knight, the driver of the vehicle, did not stop but instead accelerated, and Dimauro gave chase.
Dimauro deposed that he soon determined that he did not have the legal basis under APD's high-speed chase policy either to have initiated or to continue the pursuit, and he terminated the chase by turning off his lights and siren and decreasing his speed. He lost sight of Knight's vehicle. Knight, by contrast, stated in an affidavit that he never lost sight of the police vehicle or its flashing lights. Dimauro deposed that he continued driving and that, about a mile after terminating pursuit, he came upon the site of a two-vehicle accident. He recognized the vehicle Knight had been driving. Knight had crashed head-on into a car driven by Eric McCrary. The collision killed McCrary and Knight's passenger, Shericka Hill.
The APD policy governing high-speed pursuits that was in effect in 2008, APD Standard Operating Procedure 3050 (“SOP 3050”), provided that an officer could initiate a high-speed pursuit only if (1) the suspect in the fleeing vehicle possessed a deadly weapon; (2) the officer reasonably believed that the suspect posed an immediate threat of physical violence to the officer or others; or (3) there was probable cause to believe that the suspect had committed a crime involving actual or threatened physical harm. The APD conducted an internal investigation, but did not discipline Dimauro because it found that he had terminated the pursuit in compliance with the policy.
Lora Mersier, the administratrix of Hill's estate, and Ernestine McCrary, the administratrix of Eric McCrary's estate, sued the City and Dimauro in his official capacity. They alleged that Dimauro and the City were negligent; that Dimauro's decision to initiate a high-speed chase under the circumstances violated APD's high-speed pursuit policy; and that the City had maintained a nuisance that endangered the public by failing to enforce its pursuit policy and by failing to train and supervise its officers under the pursuit policy.
The City and Dimauro moved for summary judgment. The City acknowledged that it had waived sovereign immunity up to $700,000 based on Dimauro's negligent use of a covered motor vehicle pursuant to OCGA § 36–92–2(a)(3), but sought to limit its liabilityto $700,000. The trial court granted summary judgment to Dimauro, finding him immune. The trial court declined to limit the City's liability to $700,000, concluding that a fact question existed as to whether the “continuous and regularly repetitious injurious act[s] required for a nuisance are present in this case and whether the City had knowledge of said condition[s].” The City appeals the denial of summary judgment in both cases, Case Nos. A14A0602 and A14A0691. The issues presented are identical; thus, the cases are consolidated for our review.
OCGA § 41–1–1 provides that “[a] nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may be otherwise lawful shall not keep it from being a nuisance.” For a municipality to be held liable for creating or maintaining a nuisance, “the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act)[.]” (Footnote omitted.) Hibbs v. City of Riverdale, 267 Ga. 337, 338, 478 S.E.2d 121 (1996). Further, “there must be the maintenance of a dangerous condition on a continuous or regular basis over a period of time in which no action or inadequate action is taken to correct the condition after knowledge thereof.” (Footnote omitted; emphasis in original.) Heller v. City of Atlanta, 290 Ga.App. 345, 350(2), 659 S.E.2d 617 (2008), aff'd Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 268(3), 674 S.E.2d 914 (2009) (). Whether a nuisance exists is generally a fact question, but “under some factual situations it can be held as a matter of law that no nuisance exists.” City of Bowman v. Gunnells, 243 Ga. 809, 811(2), 256 S.E.2d 782 (1979).
It is undisputed that in the wake of accidents resulting from high-speed chases, in 2002, the City established a pursuit policy aimed at increasing safety for police officers and citizens. The APD's Planning and Research Accreditation Unit (“PRAU”) produces annual reports that analyze APD's pursuit activity and identify trends. In November 2007, the year prior to the accident at issue in the instant case, PRAU completed its Pursuit Analysis Report for 2006 data. This report indicates that although the City requires that documentation be filed after a high-speed chase, less than half of such pursuits were documented as required. Further, the report notes that less than half of the documented pursuits were justified by one of the three grounds required by the SOP 3050.
Despite the incomplete documentation, the report determined that of the 35 pursuits documented during 2006, nine involved accidents and two resulted in an injury. The report found a significant decline in the number of accidents and in the number and severity of injuries reported between 2005 and 2006. Specifically, the 2006 report stated that compared to 2005, “there does appear to be a greater rate of compliance that indicates an increased understanding of the SOP.” The 2006 report further stated that there was a great reduction in accidents and injuries compared with the prior year, and indicated that if future analyses showed officers engaging in pursuits that did not comply with the SOP 3050, training would likely be required. The report also noted that the City's pursuit form, APD Form 602, was being updated to better reflect the details of a pursuit. The report concluded by acknowledging a need for improvement, but finding that the APD's “goal of reducing the risk presented by vehicle pursuits to officers and citizens is being realized.”
The City released its 2007 pursuit analysis report in April 2008, three months after the accident at issue. The report showed that police pursuit logs, which had been incomplete for 2006, were not available in 2007, although pursuit reporting was available from other units. The report found that of the 27 pursuits reported, 13 contained information regarding an accident and 10 involved injuries. The report determined that although the percentage of accidents rose in 2007, “pursuits as a whole have been reduced.” The report recommended improved reporting processes and training, including for the Auto Theft Task Force for which Dimauro worked. It also noted that multi-unit meetings and reviews recommended in the prior year's report had been scheduled and that pursuit reporting forms were being updated as previously recommended. The report also found that
far fewer of the reported pursuits, on their face and as reported, violated the requirements set forth in APD.SOP.3050 (4.1.2) than in any other year of analysis. Those pursuits that were engaged against policy were done so because of crimes that do not meet the requirements spelled out in the SOP. Compared to the analysis of 2005 and 2006 pursuits there appears to be a far greater rate of compliance. This indicates an increased understanding of the SOP. There was also a reduction in the rate of accidents and injuries, especially to uninvolved third parties.
(Emphasis supplied.) Further, the report determined that the APD's “goal of combating crime while reducing the risk presented by vehicle pursuits to officers and citizens is being realized.” The PRAU report for the first quarter of 2008 noted four pursuits, including, apparently, the pursuit at issue here and the resulting...
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