Mixon v. City of Warner Robins

• Decision Date: 27 June 1994
• Docket Number: No. S93G1599,S93G1599
• Citation: 264 Ga. 385,444 S.E.2d 761
• Parties: MIXON et al. v. CITY OF WARNER ROBINS et al.
• Court: Georgia Supreme Court

Page 761

444 S.E.2d 761

264 Ga. 385

MIXON et al. v. CITY OF WARNER ROBINS et al.

No. S93G1599.

Supreme Court of Georgia.

June 27, 1994.

Reconsideration Denied July 21, 1994.

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

Charles L. Ruffin, David A. Pope, Jones, Cork & Miller, Warren C. Grice, Macon, for City of Warner Robins.

CARLEY, Justice.

James Franklin Cornelius drove his vehicle through an intersection without obeying a stop sign. He was seen doing so by appellee-defendant Officer Jeffrey Dumont of appellee-defendant City of Warner Robins (City). Officer Dumont initiated pursuit, but Cornelius refused to stop. Officer Dumont maintained his pursuit as Cornelius increased his speed. Cornelius eventually ran another stop sign and collided with a car which was being driven by Mrs. Cindy Mixon. Mrs. Mixon died as the result of the collision and appellant-plaintiff Mr. Jerry Mixon, individually and as the administrator of his wife's estate, brought suit against Officer Dumont, the City and Cornelius. The trial court granted summary judgment in favor of Officer Dumont and the City, finding that the actions of Cornelius were, as a matter of law, the sole proximate cause of the fatal collision.

The Court of Appeals affirmed the grant of summary judgment. Mixon v. City of Warner Robins, 209 Ga.App. 414, 434 S.E.2d 71 (1993). We granted certiorari to consider whether, as a matter of law, a jury would be unauthorized to find that the pursuit of Cornelius by Officer Dumont was a proximate cause of the fatal collision.

1. A police officer who is operating a patrol car shares the streets and highways with other members of the driving public and, as a general proposition, he has "[t]he duty at common law ..., relatively to persons and property on the highway, ... to exercise ordinary care to avoid injuring them." Giles v. Voiles, 144 Ga. 853(1), 88 S.E. 207 (1916).

The right to use the public thoroughfares with reasonable safety is an important liberty to be enjoyed by the citizen. The protection of his person and automobile while exercising this privilege against anyone, even an officer of the law who fails to use reasonable care [,] is guaranteed to him by [Art. I, Sec. I, Par. II of the Georgia Constitution of 1983].

Archer v. Johnson, 90 Ga.App. 418, 422, 83 S.E.2d 314 (1954).

However, a police officer is also a public servant whose professional duties include the apprehension of those who have violated the law. In the performance of his professional duties, an officer who is operating a patrol car may encounter a criminal suspect who is also operating a vehicle. When the officer initiates pursuit, the criminal suspect may immediately stop his vehicle and accede to the officer's show of authority. On the other hand, the criminal suspect may attempt to evade apprehension and, in so doing, disregard applicable traffic regulations. If the officer continues his pursuit under these circumstances, the fleeing criminal suspect's vehicle may ultimately strike another driver's vehicle and inflict an injury which, but for the officer's performance of his professional duty, would not otherwise have been sustained.

If the fleeing criminal suspect's vehicle does actually strike another driver's vehicle, he can be held civilly liable for the injuries resulting from his disregard of the applicable traffic regulations. Whether the officer, who was in ostensible performance of his professional duty, can likewise be held civilly liable is ultimately dependent upon whether the officer's pursuit of the fleeing criminal suspect can be deemed a "proximate cause" of the injury to the other driver.

[A] holding that a defendant's conduct is not the proximate cause of the plaintiff's injury does not constitute a determination that the defendant's conduct is not a cause in fact of the plaintiff's injury, but rather is in the nature of a policy decision by the court that, for a variety of reasons, e.g., intervening act, the defendant's conduct and the plaintiff's injury are too remote for the law to countenance a recovery.... [T]he proximate-cause rubric has been used as another way of saying, among other things, that the defendant was under no duty to protect the plaintiff from the injury which in fact occurred. [Cit.] (Emphasis supplied.)

McAuley v. Wills, 251 Ga. 3, 7(5), 303 S.E.2d 258 (1983). Thus, the instant case calls for "a policy decision" as to whether an officer's performance of his professional duty to apprehend criminal suspects is paramount to his duty to other drivers, such that the suspected criminal's "intervening act" of flight after pursuit was initiated mandates the conclusion that, as a matter of law, "no duty" was owed by the officer to protect another driver from an injury which "in fact" was caused by the continuing pursuit.

The policy of this state with regard to the corresponding duty that is owed to other drivers by an officer who is engaged in the vehicular pursuit of a criminal suspect is expressed by way of statute. An officer who is operating a law enforcement vehicle in pursuit of a suspected criminal "shall not [be] relieve[d] ... from the duty to drive with due regard for the safety of all persons." OCGA § 40-6-6(d). It has long been recognized that, pursuant to this statute, an officer's performance of his professional duty is not to be considered paramount to the duty that he owes to other members of the driving public.

The legislature intended by [OCGA § 40-6-6(d) ] ... to protect the public on highways ... from reckless disregard of their safety by the drivers of [pursuing law enforcement] vehicles.... It is desirable ... that the officer overtake and apprehend the criminal, but it is equally as important that innocent persons, whether or not connected with the emergency to be met, not be maimed or killed in the operation.

Archer v. Johnson, supra at 424, 83 S.E.2d 314 (1954).

OCGA § 40-6-6(d) does not authorize the imposition of civil liability upon an officer simply because another driver is injured in the course of the pursuit of a criminal suspect.

No provision of law "places an absolute duty on any driver to avoid a collision. All the circumstances and conditions at the time and place[,] including the conduct of other drivers, must be taken into account." [Cit.]

Roesler v. Etheridge, 125 Ga.App. 358, 359(1), 187 S.E.2d 572 (1972). However, OCGA § 40-6-6(d) does provide for the continuing existence of a pursuing officer's corresponding duty to other drivers and, in so doing, it precludes an avoidance of civil liability simply because the officer was in the performance of his professional duty when another driver was injured. The officer's performance of his professional duty may be a factor to be considered in determining his civil liability to other drivers, but it is not determinative as to his lack of civil liability. If, under "all the circumstances and conditions," the officer's act of pursuing a criminal suspect's vehicle was nevertheless performed without the requisite due regard for the safety of all persons and an injury to another driver results, the officer can be held civilly liable. See Bynes v. Stafford, 106 Ga.App. 406, 408(3), 127 S.E.2d 159 (1962).

OCGA § 40-6-6 does not specifically provide that the pursuing officer can be held civilly liable for an injury which is actually inflicted by the fleeing criminal suspect rather than by the officer himself. However, OCGA § 40-6-6 likewise does not specifically provide that the pursuing officer is afforded immunity from civil liability under those circumstances. What OCGA § 40-6-6(d) does provide, unambiguously and without qualification or exception, is that the pursuing officer "shall not [be] relieve[d] ... from the duty to drive with due regard for the safety of all persons." Thus, the officer's avoidance of civil liability cannot derive from the mere intervening flight of the criminal suspect, but is solely dependent upon the officer's own adherence to his duty to drive with the requisite due regard for the safety of others. Accordingly, if a vehicular pursuit is undertaken or performed without the requisite due regard for the safety of all persons and an injury occurs as the consequence, the officer can be held civilly liable even though the injury was actually inflicted by the fleeing criminal suspect.

Under the law, there may be a recovery against either or both of the responsible parties where their separate and independent acts concur to produce a single injury, despite the fact that the injury may not have happened had only one of the acts of negligence occurred, and despite the fact that the duty owed by each defendant may not be the same. [Cit.]

McBerry v. Ivie, 116 Ga.App. 808, 812, 159 S.E.2d 108 (1967).

In this case, the Court of Appeals correctly recognized the competing public policy interests applicable to police pursuit situations:

Police officers have a duty to apprehend lawbreakers and society has a strong interest in allowing the police to carry out that duty without fear of becoming insurers for the misdeeds of the lawbreakers they pursue.

The general public also has a significant interest in not being subjected to unreasonable risks of injury as the police carry out their duties under circumstances which require them to pursue fleeing suspects.

Mixon v. City of Warner Robins, supra at 416, 434 S.E.2d 71. After analyzing the cases from other jurisdictions, the Court of Appeals sought to

establish a rule which ... strikes the best balance between the conflicting public policies[:] ... [W]hen a police officer is pursuing a fleeing suspect, and the suspect injures a third party as a result of the chase, the officer's pursuit is not the proximate cause nor is it a contributing proximate cause of those injuries unless the plaintiff can show that the conduct of the police officer, either...