Gish v. Thomas

• Decision Date: 17 March 2010
• Docket Number: A09A1944.,No. A09A1855,A09A1855
• Citation: 691 S.E.2d 900
• Parties: GISH, et al. v. THOMAS, et al. Pike County v. Gish, et al.
• Court: Georgia Court of Appeals

691 S.E.2d 900

GISH, et al. v. THOMAS, et al.

Pike County v. Gish, et al.

Nos. A09A1855, A09A1944.

Court of Appeals of Georgia.

March 17, 2010.

COPYRIGHT MATERIAL OMITTED

Casey & Gilson, George P. Shingler, Atlanta, for appellants.

Jason C. Waymire, for appellees.

ADAMS, Judge.

On December 9, 2005, Beverly Gish, as administratrix of the estate of her son, Jesse Brandon Gish, filed a complaint for damages asserting both federal and state law claims in the United States District Court for the Northern District of Georgia against Pike County, Georgia; Jimmy Thomas, the sheriff of Pike County; and William Gilmer, a Pike County deputy sheriff. Thomas and Gilmer were sued in both their individual and official capacities. The district court granted the defendants' motion for summary judgment on the federal law claims on March 7, 2007, and dismissed all the state law claims without prejudice.

On August 21, 2007, Gish, individually and as administratrix of the estate of her son, filed a complaint for wrongful death and damages pursuant to OCGA § 9-2-61(a) and (c) (the renewal statute). Defendants answered and then moved for summary judgment on the grounds, inter alia, that they were shielded from suit by the doctrines of sovereign and official immunity. After the trial court denied the motion in part and granted the motion in part, the parties filed their appeals to this Court. Gish's appeal has been docketed in this Court as Case No. A09A1855 and the County's cross-appeal has been docketed in this Court as Case No. A09A1944. We have consolidated these appeals for our review.

The critical facts here are essentially undisputed, and will be taken verbatim from the trial court's extensive order:¹

On December 10, 2003, Jesse Brandon Gish was arrested by the Pike County Sheriff's Department for simple battery (family violence) after attacking his mother and was transported to the Pike County Jail. At the Pike County Jail, it was determined that Brandon Gish was potentially suicidal and had even attempted suicide two days prior to his arrest. Pike County Jail does not have appropriate staff or medical resources to handle detainees with mental health needs, so Lt. Moorman, the Jail Administrator, decided to transfer Mr. Gish somewhere with a full-time medical staff and facilities sufficient to provide constant monitoring of Mr. Gish.

Deputy William Gilmer was subsequently assigned to transport Mr. Gish to the Clayton County Jail. Deputy Gilmer transferred Mr. Gish using his regularly assigned vehicle, a marked patrol car with darkly tinted windows. The front and back seat areas of the patrol vehicle are separated by a metal and Plexiglass partition that can be bolted into place; moreover, "(s)et into the partition is a sliding Plexiglass window, which can be locked in place or opened." Deputy Gilmer never used or operated this security screen and was unfamiliar with the mechanical workings of it. The patrol vehicle was covered under an insurance policy purchased by Pike County that covers money damages for liability arising from the ownership, maintenance or use of a covered vehicle.

Deputy Gilmer was aware that Mr. Gish was being transferred to Clayton County for mental health reasons, specifically that he may be suicidal or may have made suicidal threats. Deputy Gilmer handcuffed Mr. Gish with his hands behind his back, placed him in the rear of his patrol vehicle, buckled the seatbelt, got in the driver's seat, and drove Mr. Gish to the Clayton County Jail. During the drive, Mr. Gish managed to unbuckle his seatbelt and maneuver his hands, while cuffed, to the front of his body. Deputy Gilmer was unaware of this until he opened the back door to remove Mr. Gish from the vehicle.

Upon his arrival at the Jail, Deputy Gilmer placed his loaded service pistol, along with some other items, on the front seat of his patrol car because the Clayton County Sheriff's Office does not permit firearms inside the jail. Deputy Gilmer then exited the vehicle and retrieved Mr. Gish from the back to escort him inside and turn him over to the jail staff. At the Jail, Deputy Gilmer delivered a "Transfer of Custody" form containing a hand-written notation regarding Mr. Gish: "Has made suicidal statements/is bi-polar," and informed an official that Mr. Gish should be placed on suicide watch. Mr. Gish was, in fact, placed on suicide watch at the Clayton County Jail, and remained at the facility without any significant incidents for two days.

On December 12, 2003, Mr. Gish was scheduled to appear before the Pike County Magistrate Court in connection with the criminal charges against him. Deputy Gilmer was assigned to transport Mr. Gish from the Clayton County Jail to the Magistrate Court and back again. He picked up Mr. Gish, handcuffed him in front, and placed him in the back seat of the patrol car; during the drive to Pike County, Gish appeared calm and stared out the window. After Mr. Gish's appearance at Magistrate Court, Deputy Gilmer was again assigned to drive Mr. Gish to the Clayton County Jail. Deputy Gilmer did not recall Mr. Gish saying anything and stated in his deposition that Mr. Gish appeared "calm, normal and in the same state of mind as when (Deputy) Gilmer had picked him up." Upon reaching the Clayton County Jail, Deputy Gilmer pulled through the gate and parked in the "sally port" area. He then removed his loaded gun, among other things, from his duty belt and placed these on the front passenger seat. A few minutes² after exiting the vehicle, Deputy Gilmer went to the rear door of the patrol vehicle to remove Mr. Gish. While Deputy Gilmer was outside his vehicle, Mr. Gish managed to retrieve the Deputy's gun from the front seat of the car, placed the gun in his mouth, and pulled the trigger. Upon opening the door and seeing Mr. Gish bleeding, Deputy Gilmer rushed to the jail and requested medical help. Medical personnel attempted to resuscitate Mr. Gish, but were unsuccessful and he was pronounced dead on arrival at Southern Regional Medical Center.³

Case No. A09A1855

1. We turn first to the issue of whether official immunity shielded the individual defendants in this case to the extent they were sued in their personal capacities. See Cameron v. Lang, 274 Ga. 122, 123(1), 126(3), 549 S.E.2d 341 (2001) (the threshold issue is whether the County and the individual defendants are protected from suit by the doctrines of official and sovereign immunity).

Under the doctrine of official, or qualified, immunity, law enforcement officers may be personally liable for negligent actions taken in the performance of ministerial functions, but are immune from personal liability for discretionary acts taken within the scope of their official authority and performed without wilfulness, malice, or corruption. Cameron, 274 Ga. at 123(1), 549 S.E.2d 341.

Stated succinctly, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee's independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Footnote omitted.) Daley v. Clark, 282 Ga. App. 235, 238(2), 638 S.E.2d 376 (2006).

The trial court in this case found that the act of transporting prisoners was a discretionary function, and that since there were no allegations or evidence of actual malice or an intent to injure, Gilmer and Thomas were entitled to summary judgment on the claims asserted against them in their individual capacities.⁴ Gish argues, however, that Gilmer committed two negligent ministerial acts—he left his loaded weapon on the front seat of his vehicle and he handcuffed Brandon improperly. Thus, in determining the propriety of the trial court's ruling on this issue, we must determine whether Gilmer was performing a discretionary function, as the trial court found, or whether this case is more properly viewed as involving the negligent performance of two ministerial acts, as Gish urges.

We have explained the difference between ministerial and discretionary acts as follows:

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

(Footnote omitted.) Golden v. Vickery, 285 Ga.App. 216, 217-218, 645 S.E.2d 695 (2007). And in determining

whether an action is discretionary or ministerial, the court must focus on the character of the specific actions taken by the government official or employee, not the general nature of the job. Under this standard it makes no difference that the official is required to perform discretionary acts if the complained-of act is more properly characterized as ministerial. The grant of qualified immunity, then, is really more in the nature of a transitory privilege rooted in the fear that a contrary rule would inhibit the judgment upon which good government rests. The single overriding factor is whether the specific act from which liability allegedly arises is discretionary or ministerial. This determination is made on a case-by-case basis.

(Punctuation and footnotes omitted.) Heller v. City of Atlanta, 290 Ga.App. 345, 347-348(1), 659 S.E.2d 617 (2008).

In Cameron, our Supreme Court found that initiating a high speed chase against persons suspected of car theft was a discretionary act, noting that it had "previously held that a law enforcement officer exercises discretion in responding to an emergency...