Hendon v. DeKalb County

Decision Date18 March 1992
Docket NumberA91A1534,Nos. A91A1533,s. A91A1533
Citation417 S.E.2d 705,203 Ga.App. 750
PartiesHENDON v. DeKALB COUNTY et al. PIRKLE v. HENDON.
CourtGeorgia Court of Appeals
The Keenan Ashman Firm, Don C. Keenan, David S. Bills, for appellant

Johnson & Montgomery, Albert S. Johnson, Susan C. Mullis, for appellees.

BEASLEY, Judge.

Hendon instituted this suit against DeKalb County and various of its officers and employees, based upon their response to a "911" emergency telephone call placed by him. The trial court held that the defense of sovereign immunity bars suit against the county and its officers in their official capacities, but that the police officer who had been dispatched to Hendon's residence could be sued in his individual capacity. Hendon appeals. The police officer, Pirkle, cross-appeals.

Summary of evidence related to issues on appeal

After suffering the onset of a stroke in the early morning hours of July 6, 1986, Hendon placed two "911" calls to DeKalb County's emergency telephone system, which is operated by the Communications Division of the DeKalb County Department of Public Safety. The second call, which is the only one in issue, began at 5:08 p.m. and ended at 6:04 p.m., was answered by switchboard operator Jackson. She testified that the caller was breathing heavily and unable to speak; she repeatedly asked him to state his name, address, and telephone number, and whether he needed an ambulance or police assistance, but his responses were incoherent and inaudible. At one point, Jackson told the caller that if he was playing on the phone, the police would come and take him to jail. She testified that she said this because she could only hear him breathing deeply, and they get a lot of crank calls from children who do that.

Hendon argues that during this telephone conversation, his respiratory pattern was labored, and although he was unable to speak clearly, on repeated occasions he made affirmative responses to questions as to whether he needed an ambulance; he repeatedly voiced the words "Help" and "Help me"; and he moaned and voiced other discernible expressions of physical pain.

The "911" telephone conversation was recorded on a reel-to-reel tape being played on a Dictaphone 5500 machine used by the county in operating its "911" system. From this tape, plaintiff made three audio tape recordings, which were admitted in evidence, as well as a videotape. One of these audio tapes technologically enhanced the sound quality of the conversation by deleting static and background noise. The videotape was not admitted in evidence. Jackson testified that although she could hear the caller uttering the words "Help" or "Help me" on the videotape, she could Shortly after the telephone conversation began, Jackson requested assistance from her supervisor Blackwell, who began to monitor the conversation and question the caller. At Blackwell's request, a Southern Bell operator traced the call. Blackwell told the operator that the caller was unable to breath and in distress.

not hear these words during the telephone conversation.

The procedure adopted is as follows. "911" switchboard operators ascertain the location of a call and determine whether the caller is requesting assistance from one of three response units: the police, firemen, or emergency medical service (EMS). Once that determination is made, the operator relays the information by computer to a radio dispatcher, who transmits the information through signals to the appropriate response unit in the geographical area in which the caller is located. The signal determines the priority of the call and the requested response unit. The switchboard operators and radio dispatchers relay whatever information is given them. If the requested response is unclear, the police are generally dispatched because they have the shortest response time. Discretion in determining the assistance which should in fact be provided is exercised by the response units on the scene.

Blackwell forwarded Hendon's call to the radio dispatcher as a Signal 13, which is a "check location" low-priority non-emergency dispatch directed to the police department. The proper response to a situation involving a person in respiratory distress is a Signal 02L, which is a high-priority "person down, life-threatening" medical emergency. This brings in an ambulance and emergency medical technicians. At the time of the dispatch, Jackson entered the following comments into the computer system: "Caller ... cannot give address/poss needs help/operator traced call to this address ... phone number comes back to Mr. E.T. Herndo [sic]."

The radio dispatcher, Fitzpatrick, testified that in a radio communication to Sergeant Pirkle, she stated that the caller was "possibly having respiratory distress," and she made this statement because Blackwell had repeatedly so advised. Blackwell denied telling Fitzpatrick that the caller was possibly having respiratory distress, and she testified that she would have sent an ambulance if she was aware that this was the problem.

The initial radio dispatch was received by Officer C.E. Hall, who was the first officer to arrive on the scene. He recognized the name Hendon to be that of a lawyer or judge. Sergeant Pirkle, who next arrived, knew Hendon was a former superior court judge. Pirkle testified that Hendon had a reputation for heavy drinking, and in a radio communication from him to Fitzpatrick he stated that Hendon sounded drunk. Hall checked all windows and doors in an attempt to gain entry into the house. He advised Pirkle that he could break the glass in the back door and easily gain entry. Pirkle knocked on the back door and requested Fitzpatrick to inform the caller that Pirkle was at the door and wanted to be let in. In response, Fitzpatrick erroneously stated that Hendon "refused" to come to the door. She was later given a reprimand as a result, in that "refused" means unwilling, which significantly differs from "unable." At 6:02 p.m., Pirkle made a radio dispatch stating, "We're going to be 10-8 [in service]. I assume he's 10-4 [ok]."

The following day, at approximately 5:00 p.m., Hendon's son returned home from out of town and found his father lying next to his bed and wearing a pajama top. He called "911" and an ambulance was sent. There was expert testimony that the delay in the receipt of medical care and treatment significantly contributed to Hendon's permanent neurological damage.

Procedural history

Hendon filed this complaint against: DeKalb County; F.D. Hand, Jr., individually and in his official capacity as the Director of the DeKalb County Department of Public Safety; Leroy Pirkle, individually and in his official capacity as DeKalb County Police Sergeant; and "Jane Doe" and "John Roe," unidentified persons in their individual Plaintiff seeks recovery against the defendants under state tort law and 42 U.S.C. § 1983. He alleges that "[d]efendants' acts or omissions to act, as set forth in this Complaint, constituted gross negligence, conscious and deliberate indifference to the consequences, conscious and reckless disregard for the consequences, callous and arbitrary misuse and abuse of governmental power and authority, intentional wanton and willful misconduct, and/or bad faith."

and official capacities as DeKalb County "911" emergency telephone system switchboard operators, police dispatchers, police officers, and employees or officials with responsibility for implementing the "911" system and supervising or training its personnel.

After discovering the identities of the unknown defendants, Hendon sought to amend his complaint to add as party defendants Blackwell, Fitzpatrick, Hall, and Jackson, Brooks (another "911" switchboard operator), and Noles (Manager of the Communications Division of the Department of Public Safety). For insufficient service and for expiration of the statute of limitation, the trial court denied Hendon leave to so amend.

The court granted defendants' motion to dismiss those parts of plaintiff's complaint based on 42 U.S.C. § 1983. As to plaintiff's state tort claims, the court held that under the state statutory scheme governing "911" emergency telephone systems, sovereign immunity bars suit against the county, but that county employees are personally liable for wilful misconduct, gross negligence, or bad faith.

The court initially denied the county's motion for summary judgment based on the fact that in 1985 the county established a self-insurance fund which operates as a waiver of sovereign immunity under the Georgia Constitution, Art. I, Sec. II, Par. IX, as held in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301, 357 S.E.2d 569 (1987). Following the decision of the Georgia Supreme Court in Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990), the court reversed the ruling and held that DeKalb County had not waived its defense of sovereign immunity. Summary judgment was entered in favor of the county, as well as Hand and Pirkle in their official capacities.

However, the court ruled that as to claims filed against Pirkle in his individual capacity, he was not entitled to summary judgment, because allegations that he acted outside his official capacity by acting maliciously, wantonly, and recklessly are based on disputed facts which must be determined by a jury. Because of the absence of such allegations against Hand, the court ruled that he was entitled to summary judgment as to the claims filed against him in his individual capacity.

Case No. A91A1533

1. Appellant contends that the trial court erred in failing to hold that the defense of sovereign immunity was waived through the county's establishment and funding of a program of "self-insurance." He relies on the provision in the Georgia Constitution of 1983, Art. I, Sec. II, Par. IX, that "the defense of sovereign immunity is waived as to those actions for the recovery of...

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