Conley v. Dawson, No. A02A1117
| Decision Date | 01 October 2002 |
| Docket Number | No. A02A1118., No. A02A1117 |
| Citation | 572 S.E.2d 34,257 Ga. App. 665 |
| Parties | CONLEY v. DAWSON et al.; Dawson et al. v. Conley. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Oliver, Maner & Gray, Patrick T. O'Connor, Savannah, Al Grieshaber, Jr., Albany, for appellant.
Gregory, Christy & Maniklal, Hardy Gregory, Jr., Cordele, B.T. Edmonds, Albany, for appellees.
Chambless, Higdon & Carson, Mary M. Katz, Macon, Lokey & Smith, Malcolm Smith, amici curiae.
Lashonda Daniels died as a result of an automobile collision with Donald Laster, who was driving a truck owned by his employer, Rent-A-Center, Inc. City of Albany police officer O.C. Conley investigated the collision. Daniels' mother, Jessie Dawson, brought this wrongful death action against Laster, his employer, and Officer Conley, in his individual and official capacity as a police officer of the City of Albany. In her complaint, Dawson alleged, among other things, that Officer Conley conspired with the remaining defendants to commit fraud. Specifically, Dawson contends that Officer Conley deliberately excluded from his police report information from a witness whose account of the accident placed fault on Laster and that the officer destroyed the contact information for that witness. Dawson also sought damages for intentional infliction of emotional distress.
Officer Conley moved for summary judgment, arguing that Dawson's claims failed as a matter of law, that the individual claim against Officer Conley was barred by official immunity, and that the official claim against Officer Conley was precluded by Dawson's failure to file an ante litem notice. The trial court granted Officer Conley partial summary judgment as to Dawson's claim for intentional infliction of emotional distress but denied the motion as to the remaining claims against Officer Conley.
In Case No. A02A1117, following our grant of his application for interlocutory appeal, Officer Conley appeals the trial court's partial denial of his motion for summary judgment. Dawson cross-appealed in Case No. A02A1118, challenging the trial court's partial grant of summary judgment to Officer Conley. For reasons set forth below, we reverse in Case No. A02A1117 and affirm in Case No. A02A1118.
"In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence."1 To prevail at summary judgment under OCGA § 9-11-56(c), the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law.2
Viewed most favorably to Dawson, the evidence shows that when Officer Conley arrived at the scene of the accident, he obtained oral statements from Laster and Irwin Cloud, who was a station attendant at a gas station located near the scene of the accident. Officer Conley deposed that no other person at the scene indicated that they witnessed the accident. However, according to Jim Thurman, a former police officer who investigated the collision on behalf of Dawson, Officer Conley told him that a white male approached him at the scene, stating that he witnessed the accident, and that Laster had caused it. Officer Conley told Thurman that he excluded the white male's information from his police report because he decided that the man could not have witnessed the accident. Officer Conley did not have the white male's information when he talked to Thurman but promised to send it, which he never did. Two other witnesses also deposed that there was a white male at the scene who said that he witnessed the accident.
Laster deposed that Officer Conley told him that there were two witnesses, one who corroborated Laster's version of the accident and another who was "completely off base." Laster recalled that he told Officer Conley that the witness could not have seen him because Laster entered the roadway from a completely different direction from that described by the witness. When asked about the witness or his conversation with Thurman during his deposition, Officer Conley stated that he did not recall the witness or his conversation with Thurman.
1. In his first enumeration of error, Officer Conley contends that a suit against him in his official capacity is equivalent to a suit against the City of Albany, and that the trial court erred in denying summary judgment on Dawson's claim because Dawson failed to give the City ante litem notice of her claim. Dawson agrees, noting that she subsequently dismissed her claim against Officer Conley in his capacity as a City of Albany police officer. "[A]ny cause of action averred against a municipal police officer in his official, as opposed to his personal/individual, capacity is in reality suit[ ] against the municipality."3 Thus, the claim against Officer Conley in his official capacity was not sustainable without the ante litem notice.4 Accordingly, the trial court erred in failing to grant summary judgment on that claim.
2. In his next enumerated error, Officer Conley argues that the trial court erred in denying him summary judgment due to his official immunity, as there was no evidence of malice on his part toward Dawson. We agree.
Qualified immunity,5 also known as official immunity, "protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption."6 We have held that "[a police officer] may be held liable for the negligent performance of official functions in conducting and reporting the accident investigation only if these acts were committed with actual malice or with actual intent to cause injury."7 In Merrow v. Hawkins,8 our Supreme Court held that in the context of official immunity, "actual malice" requires a deliberate intention to do wrong.9
Dawson argues that a question of fact arises as to whether Officer Conley acted with malice because of the officer's business relationship with Rent-A-Center. Officer Conley had previously opened an account with the company and had come to know one of the managers, Virgil Young. Young came to the scene of the accident and accompanied another manager to visit Laster later that evening at the hospital. Officer Conley also came by the hospital to talk with Laster about the collision.
Laster testified that on the day after the collision, a Rent-A-Center manager told him not to worry, that he would "go and talk with the officer and get the reports and all of that," and that Laster should focus on his recovery. Rent-A-Center manager Allan Williams deposed that Officer Conley visited the Rent-A-Center office on the morning after the accident but could not recall exactly why the officer did so. Officer Conley deposed that he would have been off duty that morning and does not recall going to the Rent-A-Center office. He did recall, however, that he visited Laster at his home on that evening to take his statement. Officer Conley deposed that his account with...
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