Mixon v. City of Warner Robins, A93A0416

• Decision Date: 22 June 1993
• Docket Number: No. A93A0416,A93A0416
• Citation: 209 Ga.App. 414,434 S.E.2d 71
• Parties: MIXON v. CITY OF WARNER ROBINS et al.
• Court: Georgia Court of Appeals

Page 71

434 S.E.2d 71

209 Ga.App. 414

MIXON v. CITY OF WARNER ROBINS et al.

No. A93A0416.

Court of Appeals of Georgia.

June 22, 1993.

Reconsideration Denied July 13, 1993.

Certiorari Denied Oct. 28, 1993.

Order Vacated and Certiorari Granted Nov. 24, 1993.

Certiorari Withdrawn

Davis, Gregory, & Christy, Hardy Gregory, Jr., Vienna, O'Neal, Brown & Sizemore, Manley F. Brown, Macon, Carl A. Veline, Jr., Warner Robins, for appellant.

Jones, Cork & Miller, Charles L. Ruffin, David A. Pope, Warren C. Grice, Macon, for appellees.

JOHNSON, Judge.

City of Warner Robins traffic officer Jeffrey T. Dumont was stationed at an intersection in a residential neighborhood after the police department received several citizen complaints that motorists were running a stop sign there. He observed a car run the stop sign traveling at a speed of approximately 25-30 miles per hour. The driver was later identified as James Franklin Cornelius. Dumont activated his siren and lights and pulled in behind Cornelius, but Cornelius refused to stop. As departmental policy required in such situations, Dumont radioed dispatch and informed the operator that he was in pursuit of a suspect. After several blocks, Dumont was able to see Cornelius' tag number and read it to the dispatcher. At that point, Dumont ceased his pursuit of Cornelius and slowed down in anticipation of an approaching intersection. Cornelius did not slow down did not stop at the stop sign controlling the intersection, and collided with a car driven by Cindy Mixon, killing her instantly. The entire pursuit lasted less than one minute, and covered a distance of about 3,500 feet. Cornelius pled guilty to first degree vehicular homicide, fleeing from a police officer, and driving with a suspended license. Jerry C. Mixon, individually and as administrator of the estate of his late wife, sued the City of Warner Robins, Dumont, and Cornelius. Cornelius is not a party to this appeal.

The trial court granted a motion for summary judgment filed by the city and Dumont, finding that the actions of Cornelius were the sole proximate cause of the collision. Mixon appeals that ruling, as well as the trial court's denial of a motion to compel the city to produce Dumont's personnel records and the file of the internal investigation which the police department conducted after the collision.

1. Mixon asserts that the trial court erred in granting summary judgment to the city and Dumont by finding that Dumont's actions were not a contributing proximate cause of the collision. The parties to this appeal have cited cases from 33 foreign jurisdictions. The trial court relied on two Georgia cases, Sammor v. Mayor etc., of Savannah, 176 Ga.App. 176, 335 S.E.2d 434 (1985) and Peeples v. City of Atlanta, 189 Ga.App. 888, 377 S.E.2d 889 (1989).

In Sammor, a police officer observed an individual speeding through an intersection. The officer pulled onto the street, "activated his emergency lights and siren, notified headquarters of the situation over his radio, and began following the vehicle." Id., 176 Ga.App. at 176, 335 S.E.2d 434. The fleeing suspect's car collided with a third party's car at an intersection. The collision in Sammor, as in this case, occurred a few blocks from the officer's first observation of the speeding car. Mixon attempts to distinguish the facts of Sammor on the basis that in Sammor the offender was already speeding when the police began to pursue him. In this case the pursuit was prompted by the running of a stop sign. Mixon theorizes that Dumont's pursuit caused Cornelius to accelerate, thus causing the collision. ¹ After failing to obey the statutory duty to stop when the officer attempted to pull him over, Cornelius failed to stop at the stop sign controlling the intersection at which the collision occurred and collided with the car driven by the decedent. The offense giving rise to the pursuit and the collision in Sammor was speeding; in this case, the pursuit and the collision were predicated on Cornelius' refusal to stop at stop signs. Therefore, the factual distinction between the two cases is noted but of no consequence.

Sammor does not announce any general rule or provide any guiding principle to be used by trial courts in deciding the issue presented. Instead, it relies upon a finding that as a matter of law under the particular facts of that case the actions of the officer were too remote to be a contributing proximate cause of the plaintiff's injury.

Appellant is correct in pointing out that Peeples, supra, is not fundamentally a proximate cause case. Rather, this court was asked to review sovereign immunity and related liability issues arising out of a collision in which a stolen car being chased by a City of Atlanta police officer collided with a car being driven by Millie Ann Peeples. In the analysis, however, we concluded that "Plaintiff's decedent's death was due to the negligence or wilful misconduct of a fleeing felon in running a red light and as a consequence thereof striking the decedent's car." Peeples, supra, 189 Ga.App. at 891, 377 S.E.2d 889.

We attach no importance to the fact that the police officer in Peeples was pursuing a fleeing felon rather than a fleeing misdemeanant, as was the case in the action below. This must be so because when a driver flees the police trying to stop him for a traffic violation it would place an impossible burden on the officer to determine in a split second whether the offense for which the offender is ultimately charged will be a misdemeanor or a felony.

We recognize that there may be instances in which the actions of a police officer, at either the point at which a decision to pursue an offender is made or in the manner in which the pursuit is maintained, could lead to a rational inference that the officer's conduct was the proximate cause or a contributing proximate cause of an injury. Nonetheless, "Construing the evidence in favor of the appellant[s], and otherwise affording [him] the benefit of every doubt, the only rational inference which can be drawn from these facts is that Officer [Dumont's] actions did not constitute a proximate cause of the collision." Sammor, supra, 176 Ga.App. at 177-178, 335 S.E.2d 434.

We have reviewed the cases from foreign jurisdictions, as well as those Georgia cases relied upon by the trial court, addressing the issue of proximate cause in situations involving police pursuit in order to articulate for the first time in Georgia a general rule to guide the trial courts in their consideration of these cases. Cases of this nature involve a balancing of public policy interests, and the adoption of a general rule allows everyone to understand in advance...