Lively v. Trust

• Decision Date: 11 September 1987
• Docket Number: No. 74806,74806
• Citation: 361 S.E.2d 516,184 Ga.App. 361
• Parties: LIVELY et al. v. TRUST.
• Court: Georgia Court of Appeals

Page 516

361 S.E.2d 516

184 Ga.App. 361

LIVELY et al. v. TRUST.

No. 74806.

Court of Appeals of Georgia.

Sept. 11, 1987.

Rehearing Denied Sept. 29, 1987.

Certiorari Denied Nov. 4, 1987.

Michael R. Hauptman, Robert G. Rothstein, Atlanta, for appellants.

Albert S. Johnson, Wade H. Watson III, Karen G. Kirkpatrick, James S. Owens, Jr., Atlanta, for appellee.

POPE, Judge.

Plaintiffs Paul and Agnes Lively filed a lawsuit against defendant Trust and others arising out of the death of their son. Defendant Trust, a DeKalb County police officer, arrested the decedent when he found him seated behind the wheel of an automobile which had struck a utility pole in a single car accident. The decedent was able to respond to the officer's questioning at the scene but was unsteady on his feet and exhibited slurred speech and behavior otherwise consistent with intoxication. Therefore, defendant placed decedent under arrest for driving under the influence of alcohol and/or drugs. Defendant discovered a pint of brandy approximately one-third full and a bottle of prescription medicine on the front seat of the automobile. When defendant asked decedent how many pills he had taken, decedent responded he had taken only two. Before transporting decedent to the police station for booking, defendant first transported him to the hospital for blood testing. Defendant informed hospital personnel that the subject may have been taking medication. Once decedent was booked for his arrest at the police station he became unresponsive to defendant's questioning. Pursuant to DeKalb County rules, the decedent was examined by a nurse before admission to jail. Upon the recommendation of the county nurse, emergency medical services were immediately called and decedent was transported to the hospital where he died from ingestion of excessive amounts of prescription drugs. Plaintiffs allege, inter alia, defendant is liable for negligence per se for violation of OCGA § 30-1-3(b). Plaintiffs appeal from the grant of partial summary judgment to defendant as to the allegation of negligence per se.

"In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against." Potts v. Fidelity Fruit, etc., Co., 165 Ga.App. 546, 547, 301 S.E.2d 903 (1983). The issue in this case is whether a person intoxicated by alcohol and drugs is within the class protected by OCGA § 30-1-3(b). According to said statute, "[b]efore any person who is found in a semiconscious or unconscious condition may be charged with a crime, it shall be the duty of all law enforcement officers in this state to make a diligent effort to determine if such person is an epileptic or diabetic or a person who is suffering from any other type of illness which would cause semiconsciousness or unconsciousness." In the event the officer determines a person "is actually suffering from an affliction which would cause semiconsciousness or unconsciousness" the statute imposes a duty on the officer to seek medical care for the person. Id.

"It is, of course, fundamental that 'the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.' Ford Motor Co. v. Abercrombie, 207 Ga. 464, 467 (62 SE2d 209) [ (1950) ]." City of Jesup v. Bennett, 226 Ga. 606, 608, 176 S.E.2d 81 (1970). The preamble to House Bill No. 485, entitled "Protection of Persons Suffering from Certain Illnesses" (emphasis supplied), states its purpose is to provide certain rights to "any person who suffers from epilepsy, diabetes, a cardiac condition, or any other type of illness which causes temporary blackouts, semi-conscious periods, or complete unconsciousness...." Ga.L.1965, p. 176. Georgia was the first state to enact a statute addressing the duty of law enforcement officers to disabled persons. 9 Uniform...