Russell v. Barrett
| Decision Date | 16 February 2009 |
| Docket Number | No. A08A1754.,A08A1754. |
| Citation | 673 S.E.2d 623,296 Ga. App. 114 |
| Parties | RUSSELL v. BARRETT. |
| Court | Georgia Court of Appeals |
Calvin D. Lowery, for appellant.
Coy J. Johnson, Jr., Rolesia B. Dancy, Robert D. Ware, Overtis H. Brantley, Atlanta, for appellees.
Tekemah Russell, individually and as the administrator of the estate of her son Detrick Corbett, Jr., filed an action against Jacquelyn Barrett, in her capacity as Sheriff of Fulton County, the Fulton County Sheriff's Department (the "Department"), and Vivian Dixon Bradford, individually and as the Deputy Sheriff of Fulton County, alleging claims of negligence, failure to train, instruct, and supervise, assault and battery, and respondeat superior. Russell also alleged that the defendants violated the decedent's civil rights under 42 U.S.C.A. § 1983. The defendants filed a motion for summary judgment as to each of Russell's claims, which the trial court granted without specifying the reasons therefor. On appeal, Russell challenges the trial court's ruling. We affirm.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e).1
Properly viewed, the record shows that at approximately 1:30 a.m. on May 22, 2002, Deputy Sheriff Vivian Dixon Bradford, Deputy Donnie Lee McBee, Deputy Kirby Early, and Sergeant Reginald Poplus of the Fulton County Sheriff's Department's Fugitive Unit were en route to search for an escapee from the Fulton County jail when they approached the scene of an automobile accident. McBee and Poplus were following Bradford and Early in Early's vehicle. Poplus, who was in charge, indicated that the officers should check out the accident. Bradford and McBee exited their vehicles, and Early and Poplus parked.
Bradford testified that she saw a woman lying in the street and a man sitting behind the steering wheel of a vehicle parked in the street. Bradford recalled that just before they stopped, the man ran around the rear of the car and removed a baby from the car. Bradford exited her vehicle and approached the man, identifying herself as a deputy of the sheriff's office. Bradford testified that the man started walking away from the accident, and when she asked him to talk to her, he ran up the street carrying the baby.
Bradford pursued the man, later identified as Detrick Corbett Sr., the father of the decedent, who ran on the sidewalk for about half a block then up a driveway to a salvage yard. Bradford testified that because the area was dark and the driveway even darker she could not see the suspect so she drew her weapon. Bradford recalled that fellow officer McBee was running toward her on the sidewalk at the time but was not close to her yet. Bradford saw Corbett holding the baby as he walked down the driveway toward her so she tried to reholster her gun. Corbett suddenly lunged at her, and they fought for the gun. Bradford recalled that she yelled at McBee that the suspect had her gun. Bradford continued to struggle with Corbett; they both went down and the gun discharged. The bullet hit the baby, and he was killed instantly.
Bradford testified that she had heard nothing about Corbett or the accident over her radio when they stopped at the accident scene. Bradford could not say who pulled the trigger. According to Bradford, Corbett pleaded guilty to felony obstruction of a police officer and aggravated assault of a police officer in connection with the incident.
Deputy McBee testified that once Bradford began to chase Corbett, McBee followed her to provide backup. McBee further testified that he saw Corbett as he walked down the driveway toward Bradford and that he did not think that Corbett had a weapon. For that reason, McBee did not draw his weapon. McBee saw Corbett lunge at Bradford and witnessed the ensuing struggle between them. When he heard the gunshot, McBee was about three to four feet away from them. McBee saw that the baby had been shot.
On cross-examination, McBee acknowledged that Corbett committed no crime when he ran away from Bradford. However, he testified that an officer might conclude that Corbett's actions constituted misdemeanor obstruction, although in McBee's opinion, such a charge would have been "shady" under the circumstances. McBee also testified that he did not recall telling Poplus who shot the child. Poplus, however, testified that McBee told him that Bradford shot the weapon.
1. In Russell's first two enumerated errors, she argues that Bradford is not immune from suit because her use of deadly force was a ministerial act, rather than a discretionary one. We disagree.
Although the trial court did not specify the reason for its ruling in its order, we begin our analysis with a discussion of qualified immunity because our Supreme Court has held that "a court must consider as a threshold issue whether the officer is entitled to qualified immunity from personal liability in a lawsuit for damages."2 The doctrine of qualified immunity stems from the 1991 amendment to the Georgia Constitution, which provides, in pertinent part, that
[e]xcept as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.3
The doctrine has developed primarily in Georgia through case law.4 In its essence, qualified immunity mandates that a public employee is not immune from suit when he performs ministerial acts negligently or performs ministerial or discretionary acts with malice or an intent to injure; rather, he or she is immune from suit only for the negligent performance of discretionary acts.5
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.6
Russell contends that Bradford failed to perform a ministerial act; i.e., protect innocent bystanders, such as the decedent in this case. The law does not support this contention. In Gilbert,7 our Supreme Court concluded that an officer's act of rushing to respond to an emergency call was discretionary.8 In Cameron,9 the Court deemed discretionary the officers' decision to engage in a high speed pursuit against persons suspected of stealing a car.10 Our Supreme Court noted in Cameron its holdings in Merrow v. Hawkins11 that a law enforcement officer exercises discretion in entrusting a car to a jail inmate,12 and in Kidd v. Coates13 that an officer's conduct of firing a gun at a suspect while executing a search warrant is deemed discretionary.14 In each of these cases except Kidd,15 an innocent bystander was injured when the officer performed his or her duties.16 Accordingly, here, we conclude that Bradford's decision to pursue Corbett was a discretionary act. Therefore, Bradford is immune from suit unless she acted with malice or an intent to injure.17
Russell argues that Bradford is not protected by qualified immunity because she violated the Department's policy on the use of deadly force,18 and that such violation constituted a wilful and wanton act. However, the 1991 amendment specifies the actions that remove the protection of immunity — those done with actual malice or with actual intent to cause injury. Our Supreme Court has construed the term "`actual malice' [as requiring] a deliberate intention to do wrong."19
Russell has presented no evidence that Bradford acted with actual malice or intent to cause injury. Russell relies instead on Truelove v. Wilson20 for the proposition that "[p]roof of wilful or wanton conduct will remove the shield of sovereign immunity."21 But Truelove does not warrant the result urged by Russell. In that case, the plaintiffs' child was fatally injured when a metal soccer goal fell on her when she knelt to tie her shoe during physical education class.22 Plaintiffs sued the school district, the board of education and its members, and several other individuals in their official capacities.
At the outset, we point out that the principle espoused in Truelove concerns sovereign immunity, not qualified immunity.23 In Truelove, we reversed the grant of summary judgment to the plaintiffs, finding evidence of gross negligence rather than wanton or wilful conduct, which would have...
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...sheriff's supervision, training, hiring, and firing decisions are discretionary under Georgia law. See, e.g., Russell v. Barrett, 296 Ga.App. 114, 120, 673 S.E.2d 623, 629 (2009) (“[T]his Court has consistently held that the operation of a police department, including the degree of training......
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