Ferguson v. City of Doraville

• Court: Georgia Court of Appeals
• Writing for the Court: BANKE; BIRDSONG; DEEN, P.J., and BENHAM; DEEN; BENHAM
• Citation: Ferguson v. City of Doraville, 186 Ga.App. 430, 367 S.E.2d 551 (Ga. App. 1988)
• Decision Date: 13 January 1988
• Docket Number: Nos. 75378-75380,s. 75378-75380
• Parties: FERGUSON v. CITY OF DORAVILLE et al. CITY OF DORAVILLE v. FERGUSON. RIFFE v. FERGUSON.

Page 551

367 S.E.2d 551

186 Ga.App. 430

FERGUSON v. CITY OF DORAVILLE et al.

CITY OF DORAVILLE v. FERGUSON.

RIFFE v. FERGUSON.

Nos. 75378-75380.

Court of Appeals of Georgia.

Jan. 13, 1988.

Rehearing Denied March 18, 1988.

Certiorari Denied April 14, 1988.

Michael L. Wetzel, Decatur, for Ferguson.

James C. Watkins, Edward E. Carter, Doraville, for City of Doraville.

Edward W. McCrimmon, Doraville, for Riffe.

BANKE, Presiding Judge.

William H. Ferguson brought suit against the City of Doraville and an as yet unidentified Doraville police officer to recover for personal injuries which he sustained when he was struck by an automobile while attempting to walk across a seven-lane highway at night in a highly intoxicated condition. Ferguson later amended his complaint to substitute Doraville police lieutenant Robert Riffe for the unidentified "John Doe" defendant named in the complaint. Both defendants counterclaimed pursuant to OCGA § 9-15-14 and Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), based on allegations that Ferguson's claim was substantially frivolous, substantially groundless, and substantially vexatious. Ferguson responded to these counterclaims by amending his complaint to assert abusive litigation claims against the defendants, thereby prompting Lt. Riffe to amend his counterclaim to assert an additional abusive litigation claim against Ferguson. The trial court granted summary judgment to the defendants with respect to Ferguson's personal injury claim but granted summary judgment to Ferguson with respect to the defendants' counterclaims. These appeals followed.

The relevant facts are, for the most part, undisputed. At approximately 12:25 a.m. on March 2, 1986, Lt. Riffe observed Ferguson asleep behind the wheel of a parked car on the premises of a "fast-food" restaurant located alongside the highway. Ferguson had pulled into the parking lot of this restaurant to sleep after attempting to drive home from a bar and realizing he was, in his words, "too drunk" to do so. Lt. Riffe approached Ferguson's vehicle, opened the door, and asked for and obtained Ferguson's driver's license. After determining that the vehicle was not stolen, he then instructed Ferguson not to attempt to drive the car. Ferguson's specific recollection of what Lt. Riffe told him was as follows: "He said something to the effect that I had better make a phone call and get somebody to come get me because he wasn't going to baby-sit me. He said anybody could have opened this door; I just did; and you better not move this damn car." Lt. Riffe's recollection of his instructions to Ferguson was somewhat different. He testified that he told Ferguson it would be "fine" if he wished to stay in the car and sleep but to "lock the doors and roll the windows partially up so he wouldn't get mugged."

Lt. Riffe left the scene immediately after this encounter, having made no attempt to take Ferguson into custody or to secure the keys to his vehicle. Ferguson subsequently left his vehicle and walked to the other side of the highway, where he entered a bar/lounge called the Lemon Peel. While inside, he telephoned his wife to ask her to come and pick him up and consumed at least two more drinks while waiting for her. He ultimately grew tired of waiting, left the bar and attempted to walk back across the highway. In the process, he was struck and severely injured by an unidentified hit-and-run motorist. The accident occurred at approximately 2:50 a.m., or about two-and-a-half hours after his encounter with Lt. Riffe. Ferguson's blood-alcohol content upon his arrival at the hospital for treatment following the accident was .29 percent.

Ferguson alleged in his complaint that his injuries were the proximate result of Lt. Riffe's breach of a "mandatory duty to arrest one who has operated a motor vehicle while under the influence of an intoxicant." He sought to hold the City of Doraville liable under the doctrine of respondeat superior, asserting that the defense of sovereign immunity had been waived to the extent of certain liability insurance purchased by the city. The trial court did not reach the immunity issue but granted summary judgment to the defendants based on a conclusion that no actionable breach of duty had occurred. On appeal, Ferguson no longer contends that Lt. Riffe breached a legal duty to arrest him but instead contends that the officer's instructions to him imposed a sufficient restraint on his freedom that he could be considered to have been under the officer's constructive care and custody at the time of the accident. Held:

1. Even accepting as accurate Ferguson's version of what Lt. Riffe told him during their encounter, it is apparent that the officer placed him under no greater restrictions with respect to the operation of his automobile than he was already under by virtue of the general criminal prohibition against driving a motor vehicle while under the influence of alcohol. See OCGA § 40-6-391(a). By no reasonable stretch of the imagination could it be inferred from any of the evidence in this case that Ferguson was under actual or constructive police custody at any time relevant to these proceedings.

With regard to Ferguson's original theory of liability, i.e., that Lt. Riffe breached a mandatory duty to make an arrest, we observe that it is by no means evident that Lt. Riffe was authorized to make an arrest under the circumstances. It is no crime merely to be intoxicated, see OCGA § 16-11-41, nor is it a crime merely to occupy a parked automobile while under the influence of alcohol. See generally OCGA § 40-6-391(a); Carr v. State, 169 Ga.App. 679, 314 S.E.2d 694 (1984). Thus, it is certainly conceivable that had Lt. Riffe in fact arrested Ferguson, he would thereby have subjected himself to suit for false arrest or false imprisonment rather than for negligence. As observed by former Chief Justice Warren in Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967), overruled on other grounds in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), "A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does."

It being apparent without dispute from the uncontroverted evidence of record in this case that Lt. Riffe did nothing to restrict Ferguson's liberty, expose him to greater danger, or otherwise adversely affect his position, we must agree with the trial court that the officer acquired no legal duty to protect him either from the consequences of his own behavior or from the negligence of others. See generally Ficken v. Southern Cotton Oil Co., 40 Ga.App. 841(1), 151 S.E. 688 (1930); Handiboe v. McCarthy, 114 Ga.App. 541, 543(3), 151 S.E.2d 905 (1966). Accord Barratt v. Burlingham, 492 A.2d 1219 (R.I.1985); Hildenbrand v. Cox, 369 N.W.2d 411 (Iowa 1985). Cf. Hostetler v. Ward, 41 Wash.App. 343, 704 P.2d 1193 (1985); Trautman v. City of Stamford, 32 Conn.Sup. 258, 350 A.2d 782 (1975). Compare Thomas v. Williams, 105 Ga.App. 321, 326(3), 124 S.E.2d 409 (1962). We accordingly hold that the trial court did not err in granting summary judgment to the defendants with respect to Ferguson's personal injury claim.

2. The issue of whether the trial court erred in granting summary judgment to Ferguson on the defendants' counterclaims is more problematical, thrusting us unavoidably into mind-numbing battle with the many-headed hydra of "abusive litigation" law.

(a) Subsection (a) of OCGA § 9-15-14 mandates that "reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position." (Emphasis supplied.) Subsection (b), on the other hand, provides that "[t]he court may assess reasonable and necessary attorney's fees and expenses of litigation ... if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification...." ¹

It would appear from the Supreme Court's decision in Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414, supra, that either of the above specified types of litigation abuse will also support a recovery of damages in tort. Id. at 96(13), 344 S.E.2d 414. However, the elements of such a recovery are entirely different. Whereas the Code section provides solely for the assessment of "reasonable and necessary attorney's fees and expenses of litigation," the damages recoverable under Yost consist of "special damages other than attorney fees and expenses of litigation; damages for mental distress, where there is either wilfulness, or wanton and reckless disregard of consequences which is the equivalent of wilfulness [cit.]; or nominal damages pursuant to OCGA § 51-12-4." Id. at 95(10), 344 S.E.2d 414. ²

The remedy available under the Code section also differs from that available under Yost in at least two other important regards. First, the precepts of Yost, being founded upon the ruins of the pre-existing torts of malicious use and abuse of process, have been held to be retroactive. See Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga.App. 790, 359 S.E.2d 920 (1987). The remedy created by the Code section, on the other hand, is available only with respect to "any claim, defense, or other position which is first raised in an action on or after July 1, 1986." Ga.L.1986, pp. 1591, 1593, § 3. With regard to abusive litigation claims arising prior to July 1, 1986, the Supreme Court specified in Yost that "the recoverability of attorney fees and expenses of litigation must be determined by [pre-]existing principles of...