Standard v. Hobbs, A03A1437.

• Citation: 589 S.E.2d 634,263 Ga. App. 873
• Decision Date: 04 November 2003
• Docket Number: No. A03A1437.,A03A1437.
• Parties: STANDARD et al. v. HOBBS.
• Court: United States Court of Appeals (Georgia)

589 S.E.2d 634

263 Ga. App. 873

STANDARD et al. v. HOBBS.

No. A03A1437.

Court of Appeals of Georgia.

November 4, 2003.

Cook, Noell, Tolley, Bates & Michael, Edward D. Tolley, Robert C. Irwin III, Athens, for appellants.

Cruser & Mitchell, William T. Mitchell, Deana Simon-Johnson, Norcross, Tucker, Everitt, Long, Brewton & Lanier, Benjamin H. Brewton, Augusta, for appellee.

SMITH, Chief Judge.

Dianne Standard brought suit against a McDuffie County sheriff's deputy to recover damages for personal injuries she and her daughter sustained as a result of a collision between the car she was driving and a car driven by Clinton Hoyt Braswell. At the time of the collision, the deputy was pursuing Braswell at high speeds.¹ The trial court granted summary judgment to the officer, Michael Hobbs, finding that Hobbs's actions were discretionary rather than ministerial, that the county's waiver of sovereign immunity through the purchase of insurance for its vehicles did not apply here, and that proximate cause had not been shown because Standard had not established that the officer acted with reckless disregard for her safety. Standard challenges all three findings. We agree with Standard that the trial court erred in finding that the county's waiver of sovereign immunity did not apply in this case. But because the trial court correctly found that Hobbs's actions were discretionary and that Standard did not show that Hobbs acted with reckless disregard, we affirm the grant of summary judgment to Hobbs.

Construed in the light most favorable to Standard as the respondent on the motion for summary judgment, the evidence in the record shows that Braswell was wanted for several armed robberies in Richmond County and was believed to be armed and dangerous. Law enforcement officers from various jurisdictions were involved in the pursuit of Braswell. Jefferson County Investigator Robert Chalker, who was in an unmarked car, first spotted Braswell's car and began following it on Interstate 20. Hobbs was notified about Braswell by his dispatcher. After Braswell exited the interstate onto Highway 17, Hobbs fell in directly behind Braswell's car, and Georgia Bureau of Investigation Special Agent David Rush began following Chalker to assist. When Braswell's car reached a section of road with wide shoulders, Hobbs "thought that would be a good place to try to get him pulled over." He notified the dispatcher and activated the blue lights on his patrol car, but Braswell kept going. At that point, "the traffic was real thick" and Braswell "wasn't running. He just wasn't pulling over." But when Braswell turned onto Highway 43 with the officers in pursuit, the traffic became lighter. The road was not "very heavily traveled," and Braswell "started speeding as though he were trying to run away." McDuffie County Sheriff Logan Marshall monitored the pursuit over the radio and spoke to Hobbs several times, and a State Patrol helicopter was dispatched to monitor the pursuit and advise the officers on the ground. The pilot spotted only one other car on the road during the pursuit.

Braswell was driving at very high speeds, and the officers were attempting to keep up with him. Agent Rush estimated that at times he was "running probably 120." In the interest of safety, the officers slowed at intersections and stop signs even though Braswell did not, causing them to lose ground at times. Adding difficulty to the pursuit, the road they were traveling on was "just super crooked. It goes around and crooks around, and is just as crooked as a snake's back." The officers had their lights on and their sirens blaring to warn the public of the danger. During the chase, officers made attempts to stop Braswell in various ways, without success. When Hobbs noted that Braswell had blown his right front tire and "was on the rim on the right front," he felt that they were "getting close to the end now."

Shortly thereafter, the helicopter pilot advised the pursuing officers to proceed with caution because a vehicle was approaching at the next intersection. Braswell had already passed through the intersection, but Hobbs, who was leading the pursuit, slowed down "almost to a complete stop." When he resumed speed, he saw Braswell disappear around a "pretty hard curve" and heard the helicopter pilot report a wreck. Upon reaching the scene, he saw that Braswell had collided with the Standard vehicle as it proceeded out of the Standards' driveway and onto the road. Braswell's car was across a ditch on the left side of the road; the Standard car was parallel with the ditch and "straddling" it. Gasoline had spilled, and the officers pulled Braswell away from his car because "there was some smoke ... some gasoline had spilled and ... there was some fear that there may be a fire." Braswell's leg appeared to be broken, and Hobbs and Rush secured him until he could be attended by EMS personnel. Standard and her daughter sustained multiple serious injuries.

1. Standard contends that the trial court erred in ruling that Hobbs's decision to continue the high speed pursuit was a discretionary act. She argues that written departmental policy "mandated" that Hobbs end the pursuit, making it a ministerial duty, which Hobbs violated. We do not agree.

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.

(Citation omitted.) Phillips v. Walls, 242 Ga.App. 309, 311(1), 529 S.E.2d 626 (2000).

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee's independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight. This protection is particularly important in the context of a high speed pursuit where police officers must make a split-second decision on whether to initiate the pursuit or continue it and the type of risks to take.

(Punctuation and footnotes omitted; emphasis supplied.) Cameron v. Lang, 274 Ga. 122, 123(1), 549 S.E.2d 341 (2001).

In Cameron, our Supreme Court consolidated two cases in which police officers were engaged in high speed chases of persons suspected of car theft. The court held that the officers "were exercising their discretion" and were entitled to qualified immunity. Id. at 125-126(2), 549 S.E.2d 341. In one case, in fact, during the chase a Savannah police officer ran a stop sign without activating his lights or siren. The Supreme Court held that this act did "not change his decision to engage in a high speed pursuit into a ministerial act, but merely raise[d] a question of fact concerning whether he drove with due regard for the public's safety." (Footnote omitted.) Id. at 125, 549 S.E.2d 341.

Standard correctly notes that our courts have held in certain cases that when "a governmental department creates its own policy requiring certain actions under certain situations, then the actors for that department have a ministerial duty to follow the policy. Obedience of the departmental policy is ministerial." See, e.g., Happoldt v. Kutscher, 256 Ga.App. 96, 98, 567 S.E.2d 380 (2002) (county ordinance requires county's subdivision review officer to perform ministerial duty of inspecting subdivision construction sites to ensure compliance with requirements of ordinance); Wanless v. Tatum, 244 Ga.App. 882, 884, 536 S.E.2d 308 (2000) (employee county engineer had ministerial duty to obey county policy requiring the investigation of complaints regarding county roads); Phillips, supra, 242 Ga.App. at 312(1), 529 S.E.2d 626(a) (actions of road crews in carrying out directions regarding inspection and maintenance are ministerial); Lincoln County v. Edmond, 231 Ga.App. 871, 874(2), 501 S.E.2d 38 (1998) (because county policy dictated that tree blocking county road must be removed, time and manner of doing so are ministerial acts). As Standard also points out, however, "[t]he decision whether acts are ministerial or discretionary is determined by the facts of the particular case. [Cit.]" Keener v. Kimble, 170 Ga.App. 674, 675(2), 317 S.E.2d 900 (1984). Here, neither the policy nor the act in issue is comparable to those in the cases cited by Standard.

At the time of this occurrence, the McDuffie County Sheriff's Department did have a written standard operating procedure governing high speed pursuit. The document cautions officers "to avoid contributing to the danger already created by the violating motorist," not to duplicate a fleeing suspect's unnecessary risks, and various other cautions, all of which Standard claims were ministerial duties that Hobbs violated. Standard also claims that under subsection (e) of the portion of the directive governing "termination of pursuit," an officer is required to terminate a high speed pursuit if "[a]dditional information is obtained that would allow for the later apprehension of the violator." She asserts that Hobbs violated his ministerial duty to do so when he continued the pursuit after the helicopter was dispatched because he knew that the helicopter was overhead and capable of tracking the fleeing car.

We do not agree with Standard's characterization of the...