Clayton Cnty. v. Segrest

• Citation: 775 S.E.2d 579,333 Ga.App. 85
• Decision Date: 13 July 2015
• Docket Number: No. A15A0502.,A15A0502.
• Parties: CLAYTON COUNTY v. SEGREST.
• Court: United States Court of Appeals (Georgia)

333 Ga.App. 85

775 S.E.2d 579

CLAYTON COUNTY

v.SEGREST.

No. A15A0502.

Court of Appeals of Georgia.

July 13, 2015.

Certiorari Denied Oct. 19, 2015.

Freeman, Mathis & Gary, Jack R. Hancock, Sun S. Choy, A. Ali Sabzevari, for appellant.

Larry E. Stewart, R. Andres Marierose, for appellee.

Opinion

ELLINGTON, Presiding Judge.

During a police pursuit, the suspect's vehicle struck the motorcycle of James Segrest, who died from his injuries. Karen Segrest, James Segrest's surviving spouse, filed this wrongful death action against Clayton County. Segrest contended that the County's officer showed reckless disregard for proper law enforcement procedures in his decisions to initiate and continue the pursuit of the suspect, and so caused the decedent's death. Following our grant of its application for interlocutory appeal, the County appeals from the trial court's order denying its motions to disqualify Segrest's experts and its motion for summary judgment. The County claims that the trial court erred in denying its motions to disqualify to the extent that the experts' opinions are not reliable, do not assist the trier of fact, and amount to legal conclusions. The County further contends that, as its officer did not recklessly disregard proper law enforcement procedures, the trial court erred in denying its motion for summary judgment. For the reasons set forth below, we affirm the trial court's order denying the County's motion for summary judgment, and, as to the order denying the County's motions to disqualify, we affirm in part and reverse in part.¹

Under OCGA § 9–11–56(c),

[s]ummary judgment is warranted 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. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475–476, 759 S.E.2d 557 (2014).

The evidence shows that on the evening of August 14, 2008, Lance Locke was driving south on I–75 when he saw a Clayton County police officer parked on the side of the freeway. Locke saw the officer pull out and begin to accelerate behind him. The County's officer testified that when Locke passed by he saw him speeding, change lanes, and “cut[ ] off” another vehicle, which was forced to brake in order to avoid a collision. The officer assessed that Locke was operating his vehicle with no regard for his safety or the safety of others, and that he had committed the offense of reckless driving. Locke averred that he did not make any abrupt lane changes, cut off any cars, or come close to causing or being in a wreck.

When Locke exited off of I–75 onto State Route 54, the officer also exited the freeway. As Locke exited the highway, his car crossed the right fog line of the exit ramp. After Locke reached the end of the ramp, his car again crossed the fog line as he made a right turn from the ramp onto State Route 54, and at that time the officer activated the blue and red lights of his patrol car, signaling that Locke should pull over and stop. According to the officer, he initiated the traffic stop because of Locke's multiple lane violations and reckless driving. He also maintained that he had reason to suspect Locke was driving under the influence.

Rather than stop, Locke accelerated and attempted to elude the officer. Locke averred that he had previously received a traffic citation for which he had failed to appear in court, and he assumed that the officer had signaled for him to stop because a warrant had been issued on the outstanding traffic ticket. According to Locke, he knew of no traffic violation that he had made from the time he first saw the officer until the officer signaled him to pull over and stop.

The officer pursued Locke on State Route 54, a 45 mph zone, through intersections and red traffic lights at up to 110 mph, but Locke was traveling even faster. During the pursuit, Locke's vehicle struck the motorcycle driven by the decedent, who died from the resulting injuries. Locke averred that he would not have accelerated to the speeds which he reached had the officer not chased him; rather, Locke maintained, had the officer not initiated or had discontinued the chase, he would have slowed down and turned off the road within a few blocks.

1. As a preliminary issue, the County represents that the material facts, as shown by the deposition testimony of its officer, are undisputed because the conflicting portions of Locke's affidavit are not competent evidence.² The County shows that, in a June 26, 2009, hearing, Locke pled guilty to, among other charges arising out of his actions on August 14, 2008, driving under the influence, reckless driving, failure to maintain lane, and speeding. Therefore, the County argues, those portions of Locke's affidavit in contradiction to his testimony at that hearing should not have been considered for purposes of summary judgment. The County does not present any legal authority to support its argument that portions of Locke's affidavit are not competent evidence. Accordingly, we deem the argument abandoned. See Court of Appeals Rule 25(c)(2) ; Dixon v. MARTA, 242 Ga.App. 262, 266(4), 529 S.E.2d 398 (2000) (Rhetoric is not a substitute for legal analysis, which requires “a discussion of the appropriate law as applied to the relevant facts.”).

2. The County claims that the opinions of Segrest's experts, Geoffrey Alpert and Andrew Scott, are unreliable, would not assist the trier of fact, and amount to legal conclusions, and that the trial court therefore erred in denying its motions to disqualify these experts. OCGA § 24–7–702(b)³ provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact in issue, an expert may testify thereto if “[t]he testimony is based upon sufficient facts or data,” “[t]he testimony is the product of reliable principles and methods,” and “[t]he witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.” The proffering party bears the burden of presenting evidence of reliability. See HNTB Ga., Inc. v. Hamilton–King, 287 Ga. 641, 646(2), 697 S.E.2d 770 (2010). And “[t]he determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” (Citation and punctuation omitted.) Id. at 642(1), 697 S.E.2d 770.

(a) The County first asserts that the trial court erred in failing to exclude Alpert's and Scott's testimony because their opinions were based on their own unsupported beliefs. See, e.g., L–3 Communications Titan Corp. v. Patrick, 317 Ga.App. 207, 213 –214(1), 729 S.E.2d 505 (2012) (“[T]he trial court abused its discretion in admitting opinion evidence which is connected to existing data only by the ipse dixit of the expert.”) (punctuation and footnote omitted). More specifically, the County asserts that Alpert's and Scott's testimony as to what constitutes proper law enforcement procedures in the context of police pursuits⁴ is not supported by reliable principles and methods.

“In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witness' qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” (Citations omitted.) HNTB Ga., Inc. v. Hamilton–King, 287 Ga. at 642(1), 697 S.E.2d 770.

Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert's range of experience and training.

(Citations omitted.) Id. See generally Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). However, “[t]here are many different kinds of experts and many different kinds of expertise, and it follows that the test of reliability is a flexible one, the specific factors neither necessarily nor exclusively applying to all experts in every case.” (Citation and punctuation omitted.) HNTB Ga., Inc. v. Hamilton–King, 287 Ga. at 643(1), 697 S.E.2d 770. “It is the possession of special knowledge derived either from experience, study, or both in a field of expertise that makes one an expert.” (Punctuation and footnote omitted.) Brady v. Elevator Specialists, Inc., 287 Ga.App. 304, 306(1), 653 S.E.2d 59 (2007).

The record shows that both Alpert and Scott possess specialized knowledge concerning police pursuits, as well as the policies and procedures applicable thereto, and that the foundation for their knowledge is derived from study or experience. Alpert, a professor of criminology, has conducted extensive research in the field of police pursuits, including applicable policies and procedures, for approximately 30 years, and in the course thereof he has interviewed hundreds of officers and hundreds of suspects and has evaluated thousands of official police pursuit records. Alpert has also authored numerous peer reviewed articles on the subject of police chases. Scott has over 30 years of law enforcement experience, including extensive experience with police chases and the policies and procedures applicable thereto. See Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (“[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive...