Graham v. City of Duluth

• Decision Date: 23 July 2014
• Docket Number: No. A14A0152.,A14A0152.
• Citation: Graham v. City of Duluth, 328 Ga.App. 496, 759 S.E.2d 645 (Ga. App. 2014)
• Court: Georgia Court of Appeals
• Parties: GRAHAM v. The CITY OF DULUTH.

328 Ga.App. 496

759 S.E.2d 645

GRAHAM

v.The CITY OF DULUTH.

No. A14A0152.

Court of Appeals of Georgia.

July 3, 2014.

Reconsideration Denied July 23, 2014.

Jarrod Hayes Oxendine, Duluth, Johnathan C. Gaskin, for Appellant.

Harvey S. Gray, Atlanta, for Appellee.

McMILLIAN, Judge.

This is the third appeal that has come before this Court stemming from the events of February 1, 2008, when Matthew Dailey, an intoxicated, off-duty City of Duluth (“the City”) police officer, attacked appellant Leresa Graham and others, including another off-duty police officer, Paul Phillips, who came to Graham's aid. In Dailey v. State, 313 Ga.App. 809, 723 S.E.2d 43 (2012), we affirmed Dailey's conviction on multiple crimes against four victims based on his actions that day. In Phillips v. City of Duluth, 322 Ga.App. XXIV (March 27, 2013) (unpublished), we affirmed without opinion the trial court's grant of summary judgment to the City of Duluth and two of its police department officials after Phillips filed suit against those defendants seeking damages for the injuries he suffered during the attack. Graham also brought suit ¹ against the City, the two police department officials and Dailey, and after dismissal of her claims against the two police officials, ² the trial court granted summary judgment to the City on Graham's remaining claims based on respondeat superior and negligent hiring and retention. Graham now appeals from that order.

The relevant circumstances surrounding Dailey's employment with the City of Duluth Police Department (“Department”) are as follows. Dailey submitted his application for employment to the Department in September 2002, indicating that he was currently certified as a police officer under Georgia law. The application contained a specific section on drug and alcohol use, under which Dailey indicated that he had never been arrested because of alcohol consumption or drug use, had never been disciplined or terminated from employment because of drug or alcohol use, had never called in sick because of drug or alcohol use, and during the past ten years, had never used alcohol during working hours. Further, Dailey also represented that he had never been arrested or convicted of any criminal offense or placed on parole or probation. There is no evidence in the record that any of Dailey's responses were false at the time they were made.

The first employer Dailey listed under the section on employment showed that Dailey currently worked as a “reserve” or “volunteer” motor deputy for the Fulton County Sheriff's Department and that he had done so since 1999. Dailey indicated his job duties included serving warrants, working at the jail, and assisting at special community events, and listed Major Richard Davis as his supervisor. The second employment Dailey listed was his employment by an advertising agency as an ad salesman to used car dealers, and this appeared to be Dailey's paid employment at the time he submitted his application.

Consistent with the Department's Standard Operating Procedures (“Operating Procedures”) governing the hiring and selection of new employees, Major Don Woodruff was assigned the task of conducting a pre-employment background check on Dailey. In December 2002, Woodruff obtained a copy of Dailey's officer profile report as maintained by the Peace Officers Standards Training Council (“P.O.S.T.”), which reflected that Dailey had obtained his jailer certification and basic law enforcement certification in 2001, and that Dailey's certifications had never been revoked or suspended. Woodruff obtained a copy of Dailey's birth certificate, high school diploma, college certification and driver's license, and performed a criminal background check of Dailey through the GCIC and NCIC, which indicated that Dailey had never been arrested, either in the state of Georgia or anywhere in the country.

As part of the pre-employment investigation, Woodruff was also required to interview Dailey's current and former employers, and Woodruff contacted Stanley Green at the Fulton County Sheriff's Office regarding Dailey's employment there. However, Woodruff indicated on Dailey's “Employment Check Off List” that Dailey was a “reserve” and that Green had no information about Dailey.

Dailey was not hired when he submitted his application in 2002, but a position became available about a year later, and Woodruff scheduled a personal interview with Dailey for September 30, 2003. A notation appearing on the Employment Check Off List indicates Dailey was made a conditional offer sometime around October 3, 2003, which was dependent on his evaluation by a licensed psychologist, which Woodruff arranged. Consistent with the Department's hiring policy, Woodruff also arranged for Dailey to undergo a polygraph examination by an independent polygrapher and a urine screen by an independent entity. Following the completion of these tests, Dailey was deemed fit for duty by the psychologist, drug free, and to have given non-deceptive responses during the polygraph examination.

Unbeknownst to the City, just a few weeks before he was hired, on September 21, 2003, Dailey had been involuntarily committed to a hospital for one night after an incident in his neighborhood (“neighborhood incident”). The record, which includes the incident report and an affidavit from one of Dailey's neighbors, shows that Dailey, while highly intoxicated, brandished his service weapon and two other weapons in front of his neighbors, who persuaded him to turn the guns over to them because of the danger presented by Dailey having guns in such an intoxicated state. However, Dailey, who stated to his neighbors he had so many guns because he was a police officer, asked for his guns back, and when his neighbors refused, he became “very angry,” and started to walk toward his house to get more guns he said he had there. At that point Dailey's neighbors became afraid for their safety and went inside and called police.

The police arrived and talked to Dailey. During this conversation, they detected a strong odor of alcohol emanating from Dailey's body and breath. Dailey told the officers that he was a Fulton County Sheriff's Deputy, admitted that one of the weapons he carried to his neighbors' house was his service weapon, and made a remark to them concerning whether they also carried their weapons when they were off-duty. The officers persuaded Dailey to stay at his house and go to sleep and sober up, and Dailey agreed that he would not go out again.

However, about five to ten minutes after the officers left, Dailey went back outside with a flashlight, which he shined into his neighbor's window. Dailey was using profanity, and the police were again summoned. The officers once again attempted to get Dailey to calm down, but Dailey started yelling words to the effect that he wanted to blow his brains out and then became angry at the officers. The officers tried to persuade Dailey to voluntarily get into their patrol car, and at first he appeared to be cooperating, but then he became belligerent and combative and eventually had to be handcuffed in order to be transported to the hospital for treatment.

On the way to the hospital, Dailey asked one of the police officers if he had ever been addicted to alcohol or drugs and when the officer replied in the negative, Dailey again became combative and attempted to kick out the rear passenger window of the patrol car. Dailey continued to be combative and belligerent after arriving at the hospital, and had to be restrained several times.

The incident report further shows that one of the officers contacted the Fulton County Sheriff's office to see if he could verify that Dailey's worked for them as a Deputy Sheriff. The officer spoke to Fulton County Jail shift commander Lt. Baker, who informed him that he did not know Dailey personally but that he would contact “Major Davis” and notify “O. P. S.” The officer also informed Lt. Baker about Dailey's “condition” and that he had been involuntarily committed because of suicide threats. Lt. Baker replied that he would have someone who could verify Dailey's employment contact the officer, but nothing is contained in the record to indicate what follow-up, if any, was done by the Sheriff's office.

As stated above, Dailey started working at the Department shortly after this incident, and the record does not contain any documented issues concerning his work performance after he was hired. However, in March 2005, Dailey advised his supervisor that he needed to take medical leave, and it was ultimately revealed that Dailey requested the leave so that he could participate in an alcohol treatment program. Dailey was scheduled to come back to work in April, and Major Woodruff arranged for him to undergo a psychological evaluation by a licensed psychologist before he could return to work, and, according to Woodruff's affidavit, Dailey was declared fit to return to duty. Dailey also provided a letter from a licensed counselor confirming that he was able to return to work and fulfill his duties. Later, in October 2005, Dailey also provided the City with a certificate showing he had completed a comprehensive evening alcohol and drug treatment program. There is nothing in the record to indicate that there were any reported incidents or performance issues related to Dailey's alcohol use after he returned to work following his treatment in 2005.

The incident in this case occurred almost three years later, on February 1, 2008. The record shows that Dailey came to work early that morning to meet with a solicitor about a court case; the solicitor submitted an affidavit that he was familiar with Dailey from having worked with him before and that at no time, including on that morning, had he ever observed any behavior that indicated Dailey was under the influence of alcohol. Dailey concluded his meeting, and then drove his patrol car to have the oil changed. After he completed that...