Georgia Dept. of Public Safety v. Davis

• Decision Date: 27 March 2009
• Docket Number: No. S08G0722.,S08G0722.
• Citation: 285 Ga. 203,676 S.E.2d 1
• Parties: GEORGIA DEPARTMENT OF PUBLIC SAFETY v. DAVIS et al.
• Court: Georgia Supreme Court

285 Ga. 203

676 S.E.2d 1

GEORGIA DEPARTMENT OF PUBLIC SAFETY v. DAVIS et al.

No. S08G0722.

Supreme Court of Georgia.

March 27, 2009.

Thurbert E. Baker, Attorney General, Robert Lee Bunner, Assistant Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Department of Law, for Georgia Department of Public Safety.

Paul H. Felser, Felser Law Firm, P.C., Zipperer, Lorberbaum & Beauvais, Eric Raymond Gotwalt, Ralph R. Lorberbaum, Savannah, for Davis et al.

CARLEY, Justice.

State Trooper David Phillips was traveling behind a pickup truck driven by Pamela Davis, who is a rural mail carrier, when he began running radar on vehicles that were approaching him in the other lane. Phillips was using Ms. Davis' truck as a cover in a technique known as blocking. Ms. Davis stopped her truck, which had a flashing strobe light on top, signaled a left turn, and waited for traffic to clear. Once Phillips realized that Ms. Davis had stopped, he braked as hard as possible, but was unable to avoid a collision with her truck.

Ms. Davis and her husband Scott Davis (Appellees) brought suit against the Department of Public Safety. The Department moved for summary judgment based on the exception in OCGA § 50-21-24(6) to the waiver of sovereign immunity in the Georgia Tort Claims Act. The trial court denied the motion, and the Court of Appeals affirmed on interlocutory appeal. Department of Public Safety v. Davis, 289 Ga.App. 21, 656 S.E.2d 178 (2007). We granted certiorari to consider whether the Court of Appeals correctly analyzed OCGA § 50-21-24(6) in light of Georgia Forestry Comm. v. Canady, 280 Ga. 825, 632 S.E.2d 105 (2006).

In Canady, we recognized that our construction of OCGA § 50-21-24(6) should accomplish a "balance between the inherently unfair and inequitable results from the strict application of sovereign immunity and the need to limit the State's exposure to tort liability that the General Assembly expressed as its goal in OCGA § 50-21-21." Georgia Forestry Comm. v. Canady, supra at 830, 632 S.E.2d 105. Including all of the relevant language, OCGA § 50-21-24(6) reads as follows: "The state shall have no liability for losses resulting from ... the failure to provide, or the method of providing, law enforcement, police, or fire protection...." Canady interpreted the phrase "method of providing" police or fire protection as covering the acts or omissions of state employees in both making and implementing policy, thereby achieving "complete protection of the policy-making decisions of the executive branch[] of government from judicial review." Georgia Forestry Comm. v. Canady, supra. Trooper Phillips may have been implementing policy when he caused the collision in question. However, a separate issue must be addressed in this case. Appellees assert that the evidence shows that their alleged losses did not result from an implementation of policy. This issue can only be resolved by construing and applying the portion of OCGA § 50-21-24(6) which mandates that, in order for the state to be immune from liability, the alleged losses must "result[] from" the method of providing police or fire protection.

Our opinion in Canady carefully reviewed precedent from four other states having exceptions to the waiver of sovereign immunity which are identical or nearly identical to OCGA § 50-21-24(6), and we selected the approach of Texas and West Virginia. Georgia Forestry Comm. v. Canady, supra at 827-830, 632 S.E.2d 105. Both decisions relied upon in Canady, State of Texas v. Terrell, 588 S.W.2d 784, 788 (Tex.1979) and Beckley v. Crabtree, 189 W.Va. 94, 428 S.E.2d 317, 320-321 (1993), fully support the proper construction of OCGA § 50-21-24(6). The balanced approach of Terrell and Beckley includes a test for determining whether the alleged losses result from the making or implementation of a policy decision:

Resolution of the issue of whether a loss or claim occurs as a result of the method of providing law enforcement protection requires determining whether the allegedly negligent act resulted from the manner in which a formulated policy regarding such protection was implemented.

Beckley v. Crabtree, supra at 321. Under this test, if the allegedly negligent act resulted from the manner in which a policy regarding police protection was implemented, the alleged losses are not a result of that implementation and, therefore, the state is not immune from liability.

It was not our purpose in Canady, nor was it necessary, to address the question, answered in Terrell and Beckley, of when the alleged losses "result from" the method of providing police or fire protection. We touched on this question only in dicta in Georgia Forestry Comm. v. Canady, supra at 829-830, n. 2, 632 S.E.2d 105. In that footnote, we noted that Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614, 618 (2002) "appears to be more limiting of the coverage of the exception." Georgia Forestry Comm. v. Canady, supra at 829, n. 2, 632 S.E.2d 105. Indeed, the language of Burdette seems, contrary to Canady, to exclude the implementation of policy from those acts or omissions which constitute a method of providing police or fire protection. However, we then attempted briefly to clarify our understanding of Beckley as holding that "negligent acts of employees acting pursuant to policy would be subject to the application of sovereign immunity while negligent acts of employees not acting pursuant to policy would not." Georgia Forestry Comm. v. Canady, supra at 830, n. 2, 632 S.E.2d 105. By construing Beckley as subjecting only negligent acts of employees "acting pursuant to policy" to the application of sovereign immunity, we were making the same critical distinction made in both Terrell and Beckley between two forms of negligence. Although the dissent dismisses that distinction as appearing only in Burdette and as a "sleight of hand," it is clearly set forth in the following language of Terrell and Beckley which is completely ignored in the dissenting opinion:

"[I]f the negligence causing an injury lies in the formulating of policy—i.e., the determining of the method of police protection to provide—the government remains immune from liability. If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist under the [Tort Claims] Act." [Cit.] (Emphasis omitted.)

Beckley v. Crabtree, supra (citing State of Texas v. Terrell, supra). Only in the former situation is there a danger of circumventing OCGA § 50-21-24(6) by "an indirect attack [on policymaking] via a lawsuit brought against a state governmental entity based on the alleged negligence of a state employee providing police, law enforcement, or fire protection pursuant to policy." Georgia Forestry Comm. v. Canady, supra at 830, 632 S.E.2d 105. There is no such danger here if Ms. Davis' "injury did not result from the implementation of a formulated policy." Beckley v. Crabtree, supra.

The fact that the injury occurred during implementation of policy does not control the determination of whether that injury "result[ed] from" the making or implementation of policy. The state is immune from liability if the alleged negligence causing an injury, which injury occurs during implementation of policy, lies in some defect in the policy itself. The state is not immune from liability where its employee is implementing a non-defective policy, but does so in a negligent manner. Although the state may be immune from liability for negligence in creating a certain policy which causes injury during its implementation, such immunity is unavailable for an employee's allegedly negligent act or omission which is not authorized by any policy.

It is undisputed that the Department of Public Safety

has a policy of detecting and apprehending individuals who exceed the speed limit by use of radar and motor vehicles. Such a policy decision is not subject to an attack of negligence under [the Tort Claims] Act. This policy, however, obviously does not include directing the officer to strike any vehicle in his path in apprehending a speeder.

State of Texas v. Terrell, supra (quoted in Beckley v. Crabtree, supra). As the Court of Appeals recognized, "the record ... contains evidence that the State Patrol Crash Review Board found that the accident was preventable and that Trooper Phillips did not operate his car `in a manner consistent with policy and training.'" Department of Public Safety v. Davis, supra at 23, 656 S.E.2d 178. Under this evidence, therefore, he clearly was not "acting pursuant to policy." Georgia Forestry Comm. v. Canady, supra at 830, n. 2, 632 S.E.2d 105. "Basically, he followed too closely and did not pay attention. This is not a policy decision, but rather simple, preventable negligence." Department of Public Safety v. Davis, supra. Any such negligence "was not a part of the formulated policy. Therefore, the State is subject to liability for injuries resulting from the negligence, if any, of the highway patrolman in colliding with [Ms. Davis'] vehicle." State of Texas v. Terrell, supra (quoted in Beckley v. Crabtree, supra).

A contrary holding would render meaningless the statutory language that the state is not liable for losses "resulting from" a policy decision with respect to the provision of law enforcement, police, or fire protection. Under the Department's construction of OCGA § 50-21-24(6), the state is not liable for the negligence of a state employee who is at the time implementing a method of providing police or fire protection, regardless of how unrelated that negligence may be to any policy decision. Such a construction would effectively eliminate the balanced approach of Canady, in disregard of the very precedent most heavily relied on in that case, by converting an exclusion of policy decisions into "a general exclusion for any act or omission that occurs while an officer is providing...