Jordan v. City of Rome

• Decision Date: 20 March 1992
• Docket Number: No. A91A2148,A91A2148
• Citation: 203 Ga.App. 662,417 S.E.2d 730
• Parties: JORDAN, et al. v. CITY OF ROME, et al.
• Court: Georgia Court of Appeals

Page 730

417 S.E.2d 730

203 Ga.App. 662

JORDAN, et al. v. CITY OF ROME, et al.

No. A91A2148.

Court of Appeals of Georgia.

March 20, 1992.

Reconsideration Denied April 2, 1992.

Certiorari Granted May 22, 1992.

Robins, Kaplan, Miller & Ciresi, Daniel A. Ragland and William H. Stanhope, Atlanta, for appellants.

Brinson, Askew & Berry, Robert M. Brinson, J. Anderson Davis, and Robert N. Farrar, Rome, for appellees.

SOGNIER, Chief Judge.

Patricia Jordan and her husband, Cary Jordan, brought a negligence suit against the City of Rome, its chief of police, Joe Cleveland, and a police department radio dispatch officer, John Hellreigel, seeking damages incurred as a result of defendants' failure to dispatch a police vehicle to the Jordans' home in response to an emergency call. The Jordans also alleged that defendants' negligent failure to respond was the result of improper training of radio dispatch officers. The trial court granted the defendants' motion for summary judgment on the basis that defendants did not breach any "special duty" owed to Patricia Jordan. The Jordans appeal.

In its order on summary judgment, the trial court expressly noted that no question or defense of governmental immunity was raised by appellees. This holding is not challenged by appellees in this court. Although it is not affirmatively reflected in the record, it appears that appellee City has waived appellees' immunity from liability for damages by the purchase of liability insurance that covered the City and its employees for acts of negligence committed in the scope of their duties. See OCGA §§ 36-33-1(a), 36-33-3; Adams v. Perdue, 199 Ga.App. 476, 478, 405 S.E.2d 305 (1991) (municipality can waive governmental immunity to extent of liability insurance coverage). Thus, immunity is not an element in this appeal. Since the issue of the liability of a municipality and its officers for the actions of its police department was resolved in earlier opinions on the basis of the grant of governmental immunity, e.g., Pounds v. Central of Ga. R., 142 Ga. 415, 83 S.E. 96 (1914), in the absence of such immunity we address the issue for the first time in Georgia.

Construing the evidence most strongly in favor of appellants as respondents on motion for summary judgment, see generally Ingram v. JIK Realty Co., 199 Ga.App. 335, 336(1), 404 S.E.2d 802 (1991), the record reveals that early in the morning of December 22, 1987, appellant Patricia Jordan (hereinafter Jordan) was at home with her children while appellant Cary Jordan was away. Hoyt Marks appeared at the door to the home and asked to speak with Dana Jordan Marks, his estranged wife and Cary Jordan's sister. Jordan deposed that she could tell from Marks' voice that he was drunk, and she did not allow him inside. Telling him to wait, she telephoned Dana, who instructed Jordan to let Marks inside, then call her back. Dana also told Jordan that she (Dana) would call the police, although there is a conflict in their deposition testimony whether Dana stated she would make the call before or after she talked to Marks. Jordan deposed that she did not ask Dana to call the police, did not know why Dana said she would call the police, and did not ask why Dana thought the police should be called. Instead, Jordan returned to the door and let Marks inside. Jordan stated she was not afraid of Marks at the time and had never been bothered by him. After Marks finished the phone call to Dana, he refused to leave the house. Marks turned on Jordan with a knife and sexually assaulted her. Jordan deposed that she did not fight Marks, that she warned Marks the police were coming, and that she "just knew [the police] were going to come and get him" during the assault. In a call from Dana that Marks allowed her to answer during the assault, Jordan was able to respond negatively in response to Dana's question whether the police had arrived and was reassured by Dana that she would "call [the police] back" even though Jordan was unable to alert Dana to what was happening. After further assaulting Jordan, Marks left approximately an hour and a half after his arrival. It is uncontroverted that on the night in issue, no police officer ever went to appellants' home.

Dana deposed that she knew that Marks' presence at appellants' home meant that Marks had "escaped" from Northwest Regional Hospital where he was undergoing a program for alcohol abuse. She did not know if Marks was voluntarily involved in the program, but thought it was part of his probation as a habitual violator. She did not tell Jordan what she knew about Marks but deposed that after she spoke to Marks on the phone, she had her mother (and Jordan's mother-in-law) telephone the City of Rome Police Department. In Dana's presence, her mother told appellee Hellreigel, the person who answered the phone, that Marks was at appellants' home, that he was an escapee from Northwest Regional, and that there were "warrants on him ... for probation revocation." Dana then took the phone and recognized Hellreigel's voice because she had previously met him. Dana deposed that she identified herself and repeated the information her mother had given. She telephoned the City of Rome Police Department two more times, repeating the same information to Hellreigel, and both times in response to her inquiry Hellreigel told her that a car was en route to appellants' home.

In support of their motion for summary judgment, appellees adduced a transcript of the only call reflected on the master tape recording of the relevant duty shift regarding appellants' address. The unidentified caller asked for a car to be sent to appellants' address to have Marks removed from the caller's son's house and twice stated that Marks was "harassing" the caller's daughter-in-law. The caller also stated that there were warrants out for Marks' arrest, but did not state that Marks had escaped from Northwest Regional Hospital. The caller asked to speak to a particular officer and was placed on hold by Hellreigel, with the final comment on the tape transcript being Hellreigel's order to the requested officer to talk to the caller on another phone line. In his affidavit Hellreigel averred that after transferring the call to the other phone line, he became busy handling calls stemming out of a shooting in Rome and took no further action on the matter, assuming that the requested officer had handled the caller's problems.

1. The trial court based its ruling in favor of appellees on a line of foreign authorities, exemplified by Kircher v. City of Jamestown, 74 N.Y.2d 251, 544 N.Y.S.2d 995, 543 N.E.2d 443 (1989), which hold that although a municipality owes a "general duty" to protect the public at large, a breach of that duty does not impose liability for damages suffered by particular citizens except where there exists a special relationship between the police and that individual, whereby the police assumed a "special duty" to provide police protection to that particular individual. See 18 McQuillin, The Law of Municipal Corporations § 53.04(b), (c) and (e) (3d ed.). To determine whether a special duty existed, the courts look especially at whether there was "direct contact" between the police and the crime victim and an affirmative undertaking by the municipality to act on the victim's behalf on which the victim justifiably relied to his or her detriment. See Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 375, 505 N.E.2d 937, 940 (1987). ¹ A review of learned treatises and the cases cited by appellees reveals that the general duty/special duty analysis "developed to some extent from a commendable willingness of the courts to expand liability, in days when immunity was general, to egregious cases of failure to protect informers and other witnesses to whom protection had been promised...." 5 Harper, James & Gray, The Law of Torts § 29.6A, pp. 641-642 (2d ed.). See Cuffy, supra 513 N.Y.S.2d at 374, 505 N.E.2d at 939-940; see also cases cited in Annot., 38 ALR 4th 1194 (1985). While a majority of jurisdictions has allowed plaintiffs to pierce a governmental entity's immunity defense by applying the special duty analysis, a growing minority of jurisdictions has rejected or abandoned the general duty/special duty analysis where sovereign immunity has been abrogated or waived. E.g., Ryan v. State of Arizona, 134 Ariz. 308, 656 P.2d 597 (1982), superseded by statute as stated in Bird v. State, 170 Ariz. 20, 821 P.2d 287 (Ariz.App.1991); Leake v. Cain, 720 P.2d 152 (Colo.1986). The primary reason for this change is that where sovereign immunity does not apply, use of the special duty analysis creates a shield behind which governmental entities can avoid liability for negligent acts, thereby imposing a type of immunity unique to governmental defendants. See McQuillin, supra at § 53.04(b), pp. 166-167; Harper, James & Gray, supra at 640.

Given the constitutional and statutory language in Georgia waiving governmental immunity to the extent of applicable liability insurance coverage, we find that the principle behind the general duty/special duty analysis as set forth in the foreign jurisdictions cited by the trial court and appellees is not applicable in Georgia and affords no basis for the trial court's grant of summary judgment in favor of appellees.

2. Where sovereign immunity is waived or inapplicable, it is well established that suits against governmental entities are governed by the same general principles of tort law that apply to private entities. See, e.g., City Council of Augusta v. Mackey, 113 Ga. 64, 69, 38 S.E. 339 (1901) (city liable for negligent act "in the same manner and to the same extent that a private person would be.") It would seem that the general principle of tort law applicable here is the long established rule that private entities owe no duty to members of the general public to control the behavior of third parties or protect those endangered by the criminal...