Hanse v. Phillips

• Decision Date: 29 November 2005
• Docket Number: No. A05A0955.,A05A0955.
• Citation: 623 S.E.2d 746
• Parties: HANSE v. PHILLIPS et al.
• Court: Georgia Supreme Court

Page 746

623 S.E.2d 746

HANSE v. PHILLIPS et al.

No. A05A0955.

Court of Appeals of Georgia.

November 29, 2005.

Paula Morgan, Rory Starkey, Robert Ware, Office of the County Attorney, Atlanta, for S.C. Hanse.

Matthew Allen, Atlanta, David Sleppy, Edward Strain III, Lisa Bucko, Cathey & Strain, for Shamonda Phillips.

ANDREWS, Presiding Judge.

We granted Officer Sean Hanse's application for discretionary review of the trial court's order denying his motion for summary judgment. The issue on appeal is whether the trial court erred in not granting Hanse's motion for summary judgment on the grounds of official immunity. Because we conclude that Hanse was entitled to immunity from suit, we reverse.

In reviewing the denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga.App. 160, 163, 493 S.E.2d 540 (1997). Further, this Court construes the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991); Moore v. Goldome Credit Corp., 187 Ga.App. 594, 596, 370 S.E.2d 843 (1988).

This case arose after a high-speed chase that ended when the fleeing suspect, Tonialo Dennis, struck a car driven by Terron Phillips, killing him and injuring the three children who were passengers in the car. Shamonda Phillips and Aneisha Holland (collectively Phillips) sued Fulton County, Police Captain Hayes, Dennis, Lasonya Bellamy, the owner of the SUV that Dennis was driving, and Hanse, the officer closest to Dennis when the accident occurred. The only remaining claims at the time of this appeal are those against Officer Hanse in his individual capacity.

1. Hanse filed a motion for summary judgment claiming that the decision to engage in the high-speed chase was discretionary and therefore he was entitled to official immunity. We agree.

Official or qualified immunity protects county police officers from personal liability for discretionary action taken within the scope of their official authority, and performed without malice or an attempt to injure. Cameron v. Lang, 274 Ga. 122, 123(1), 549 S.E.2d 341 (2001). "This protection is particularly important in the context of a high speed pursuit where police officers must make a split-second decision on whether to initiate the pursuit or continue it and the type of risks to take." Id.

Cameron also notes that the U.S. Supreme Court has held that "qualified immunity is an entitlement not to stand trial rather than a mere defense to liability." Id. at 124(1), 549 S.E.2d 341. And this "provides persuasive reasons for resolving the issue of ... qualified immunity as early as possible in the legal proceedings." Id. The question of whether an officer is entitled to qualified immunity is a question of law for the court to decide. Conley v. Dawson, 257 Ga.App. 665, 668, 572 S.E.2d 34 (2002).

The evidence below was that on the evening in question, Hanse and other officers were conducting a road safety check. Hanse saw Lt. Michaud approach a stopped Suburban and talk to the driver who was later identified as Tonialo Dennis. As Michaud opened the SUV door, Dennis sped away. Lt. Michaud stated that "[a]s he [(Dennis)] was turning left to get back on the roadway, the door — my leg was up against the door, it spun me around." Michaud hollered to Hanse to go after the SUV and Hanse activated his lights and siren and pursued the SUV.

As Hanse pursued Dennis, he saw him disregard a stop sign, make several turns, and ignore a red light. Hanse called in on his radio and was given approval to continue the pursuit by Captain Hayes after Michaud informed Hayes that the SUV struck him. During the course of the pursuit, Dennis drove on the wrong side of the road, crossed four lanes of traffic on I-85, and crossed both a grass and a concrete median. There was testimony that speeds reached 80 miles an hour in the fast lane of I-85. Hanse stated that Dennis slammed on his brakes at one point because he appeared unable to decide which way to go. After slamming on his brakes, Hanse stated that Dennis lost control of the SUV and slid into the dirt median, striking Phillips's car.

Dennis submitted an affidavit for purposes of this suit claiming that his SUV was "struck and pushed" by a Fulton County police vehicle. He stated that immediately after losing control of the vehicle, he hit Phillips's car.

Hanse denied striking the SUV and stated that he was approximately 50 yards away when the accident occurred. This is supported by the testimony of a witness who described the incident and stated that the driver of the SUV "faked like he was going to go 166 off the Langford Freeway, but at the last minute, he got back over. He jumped back over right there in that center media [sic]. And when he jumped over in that center media, that's when the green Malibu what Mr. Phillips was driving, the black Suburban hit his car and knocked him off the roadway, and he ran into the concrete bridge." Then the witness described it again, still without mentioning any contact between the Suburban and a police car. When questioned about any contact with a police car, the witness said "[m]aybe at one time, at one time." And, when asked where the contact occurred, the witness replied, "About a quarter of a mile before we got up to the merging lane where 166, Lakewood Freeway, and 75-85 breaks off." The witness never stated that the SUV lost control when the police car "bumped" him, but only stated that the SUV "sped up more."

There was also evidence introduced that the officer's General Orders Manual stated that "[t]o avoid being arrested, many motorists will take imperiling chances. Regardless of the extenuating circumstances, the pursuing officer shall not duplicate these hazards." Also, an officer must, in all cases, "operate his vehicle in a manner showing consideration for his own safety, the safety of the violator[,] and the safety of others who may be using the roadway." The manual also provides that "[d]eliberate physical contact between any two vehicles at any time will not be justified," and an "[o]fficer will not bump or ram a fleeing vehicle."

In ruling on Hanse's motion for summary judgment, the trial court's order concludes that although the decision to initiate and continue a chase was discretionary,¹ Hanse did not have discretion to violate county policy during the chase. The court found issues of fact as to whether Hanse had intentionally rammed the SUV.

It is not clear whether the trial court held that Officer Hanse was not entitled to official immunity as a matter of law or whether a question of fact remained concerning its applicability. See City of Atlanta v. Heard, 252 Ga.App. 179, 181, 555 S.E.2d 849 (2001). Likewise, it is unclear what disposition the dissent is advocating. It appears, however, that the dissent is stating that whether Hanse is entitled to official immunity is, contrary to the law stated above, an issue of fact for the jury to decide.

In Cameron v. Lang, supra, it was alleged that, during a high-speed chase, the police officer acted in reckless disregard for the public safety by running a stop sign and failing to use his car's siren and emergency lights. In finding that the trial court properly granted summary judgment to the law enforcement officers based on their official or qualified immunity from personal liability, the Supreme Court found that the law enforcement officers exercised discretion in responding to the emergency calls when they decided to engage the suspected car thieves in a high-speed pursuit. Id. at 125, 549 S.E.2d 341. Pertinently, in its analysis, the Court noted that the allegations that one of the officers, "ran the stop sign without turning on his blue lights or his siren [does] not change his decision to engage in a high speed pursuit into a ministerial act." (Emphasis supplied.) Id. See also Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990), which held that "[t]he decision to rush to the scene of the disorder lay within [the officer's] discretion. . . . The fact that he did so negligently does not place him outside the rule. To say that it did would render the rule meaningless." Id. at 208(1), 392 S.E.2d 235.

Standard v. Hobbs, 263 Ga.App. 873, 589 S.E.2d 634 (2003), is almost directly on point. Standard brought suit against a sheriff's deputy for damages for personal injuries that she and her daughter sustained when a suspect fleeing from a high-speed pursuit collided with her car. Standard argued on appeal that the trial court erred in ruling that the deputy's decision to continue the high-speed pursuit was a discretionary act. She claimed that because there was a written departmental policy, which the deputy violated, mandating that he end the pursuit, the decision was a ministerial rather than a discretionary duty. Id. at 875, 589 S.E.2d 634. In rejecting this contention, the Court held that the standard operating procedure (SOP) of the sheriff's office, while containing guidelines and boundaries prohibiting certain acts, clearly placed responsibility for the decisions inherent in a high-speed chase with the individual officer. The SOP stated: "`The responsibility for the decision to pursue a suspected violator and the methods to be employed rest solely with the individual officer. In arriving at this decision, an officer must carefully consider all factors involved, all possible consequences, and the safety of citizens whose protection is the major objective.'" Id. at 877(1), 589 S.E.2d 634.

In the instant case, the General Orders Manual states that "[t]he ultimate decision to initiate the pursuit of a fleeing vehicle is the responsibility of the initiating officers." And, "[i]t is the responsibility of the primary unit to reach a rational conclusion whether or not to pursue a fleeing vehicle." Also, "[t]he law permits officers who are engaged in hot pursuit or...