Strength v. Lovett

• Decision Date: 30 November 2011
• Docket Number: No. A11A0672.,A11A0672.
• Citation: Strength v. Lovett, 311 Ga. App. 35, 714 S.E.2d 723, 11 FCDR 2529 (Ga. App. 2011)
• Parties: STRENGTHv.LOVETT et al.
• Court: Georgia Court of Appeals

311 Ga.App. 35

714 S.E.2d 723

11 FCDR 2529

STRENGTH

v.LOVETT et al.

No. A11A0672.

Court of Appeals of Georgia.

July 14, 2011.Certiorari Denied Nov. 30, 2011.

Burnside Wall, James W. Ellison, Augusta, for appellant.Finch, McCranie, Brown, Hendrix & Sullivan, Richard Wayne Hendrix, Atlanta, Frails & Wilson, Randolph Frails, Augusta, for appellees.BLACKWELL, Judge.

When a young driver fled from the scene of a traffic stop, a Richmond County deputy sheriff gave chase.The pursuit quickly reached high speeds and ended only minutes later, when the fleeing driver collided with another car.Laura Felder was a passenger in that car, and she was killed in the collision.Her Estate and children brought this lawsuit against Ronnie Strength, the Sheriff of Richmond County, in his official capacity, alleging that the deputy, when he chose to continue the pursuit even after it reached high speeds, acted in reckless disregard of proper police procedures and thereby caused Felder's death.The Sheriff moved for summary judgment, asserting both sovereign immunity and that the plaintiffs cannot prove that the choice of the deputy to continue the pursuit was a legal cause of Felder's death.The trial court denied the motion for summary judgment, and the Sheriff appeals.We vacate the order denying the motion and remand the case for the court below to consider whether the Estate of Felder and her children have sufficient evidence to create a jury question on the issue of cause in fact, but we find no error in the court's denial of summary judgment on sovereign immunity and proximate cause grounds.

In an appeal from the denial of a motion for summary judgment, we undertake a de novo review of the record evidence, viewing it in the light most favorable to the nonmoving parties, the Estate of Felder and her children in this case.Hood v. Todd,287 Ga. 164, 165, 695 S.E.2d 31(2010).So viewed, the record shows that on the evening of Saturday, March 1, 2008, around 9:00, a Richmond County deputy sheriff observed Jamie Ray Clark, a 19–year–old resident of South Carolina, make a u-turn in a Chevrolet Blazer, in disregard of a traffic signal at an intersection in downtown Augusta.The deputy initiated a traffic stop, and Clark pulled his vehicle to the shoulder of the street and stopped.Clark gave his provisional driver's license, which permitted him to drive only if accompanied by someone more than 21 years of age, to the deputy.Because the only passenger accompanying Clark was less than 21 years of age, another officer telephoned Clark's aunt and asked her to come to Augusta and pick up Clark and his passenger.As they awaited the arrival of Clark's aunt, the deputy began to write two traffic citations, one for disregard of a traffic control device, the other for driving in violation of license restrictions.

Before the deputy finished writing these citations, Clark suddenly restarted his vehicle and drove away from the scene of the traffic stop.The deputy activated his emergency equipment and gave chase.¹The pursuit covered more than four miles,² and Clark and the pursuing deputy reached speeds of at least 90 miles per hour.³In the course of the pursuit, the deputy observed Clark overtake other vehicles in a reckless manner and enter several intersections against traffic signals.As Clark entered the last of these intersections, his Blazer collided with a car in which Felder was a passenger.She was killed in the collision.

At the time of the pursuit, the Richmond County Sheriff's Office had adopted a written policy identifying the circumstances in which its officers were permitted to initiate and continue emergency vehicle pursuits.According to this policy, when an officer decides whether to give chase or continue a pursuit, “[i]t is of paramount importance that [the] officer weigh the seriousness of the offense committed against the danger to the officer and others who might be affected by the pursuit.”Under the policy, “[p]ursuits should be undertaken only when reasonably necessary in the given circumstances.”The policy suggests that “[i]t may ... be wise to abandon pursuit of misdemeanor offenders and, in some cases even felony offenders, rather than continue a highly dangerous pursuit.”And the policy advises that “[s]trong consideration should be given to abandoning a pursuit” whenever, among other things, “the pursuit enters a populated area and an unreasonable danger to the public exists” or “the subject can be identified to the point where later apprehension can be accomplished.”Because the policy requires a balancing of factors of which the pursuing officer has the most and best knowledge, the policy commits the decision about whether to initiate or continue a pursuit to the pursuing officer, at least in the absence of a command from a superior officer.The pursuing deputy in this case was familiar with this policy at the time of the pursuit.

The policy also requires an officer, when he initiates a pursuit, to notify his field supervisor.In accordance with this provision of the policy, the pursuing deputy in this case contacted his field supervisor by radio as the pursuit began and informed the supervisor of his location and that he was engaged in a pursuit.The deputy also told his supervisor that the fleeing driver was being pursued for traffic violations only and that the driver might, the deputy believed, try to cross into South Carolina.The supervisor responded that, if the driver left Georgia, the deputy should discontinue the pursuit at the state line.⁴The deputy then told his supervisor that he still was in possession of the driver's license of the fleeing driver, at which point the supervisor responded that the deputy should discontinue the pursuit immediately and instead obtain warrants for the arrest of the driver.The deputy testified, however, that he did not hear the instruction to discontinue the pursuit immediately.⁵The deputy did not inform his supervisor during the course of the pursuit of the high speeds at which he and Clark were traveling.

In February 2009, the Estate of Felder and her children filed this lawsuit against the Sheriff in his official capacity, alleging that the deputy's decision to continue the pursuit of Clark was reckless and caused the death of Felder.⁶The Sheriff moved for summary judgment on two grounds.First, the Sheriff said, he was entitled to sovereign immunity.Second, he argued, the undisputed evidence established as a matter of law that the decision of the deputy to continue the pursuit was not the legal cause of the collision that killed Felder.The court below denied his motion, and this appeal followed.

1.We first consider whether the Sheriff is entitled to sovereign immunity in this case.Under our Constitution, Georgia counties enjoy sovereign immunity, Gilbert v. Richardson,264 Ga. 744, 747(2), 452 S.E.2d 476(1994), and can be sued only if they have waived their immunity.Cameron v. Lang,274 Ga. 122, 126(3), 549 S.E.2d 341(2001).A lawsuit against a sheriff in his official capacity is considered a suit against the county, and the sheriff is entitled to assert any defense or immunity that the county could assert, including sovereign immunity.Gilbert,264 Ga. at 746(2), n. 4, 452 S.E.2d 476.See alsoSeay v. Cleveland,270 Ga. 64, 65–66(1), 508 S.E.2d 159(1998).The question, then, is whether the sovereign immunity of Richmond County has been waived with respect to the claim asserted against the Sheriff in this case.

Under OCGA § 36–92–2(a), the sovereign immunity of a county is waived “for a loss arising out of claims for the negligent use of a covered motor vehicle.”⁷A “covered motor vehicle” is any motor vehicle owned, leased or rented by the county, OCGA § 36–92–1(2), and the Sheriff does not dispute that the patrol car in which his deputy pursued Clark was a “covered motor vehicle.”The Sheriff contends, however, that the claim in this case is not one for “the negligent use of ” the patrol car.First, the Sheriff says, a deputy makes a “negligent use of” a vehicle only when he operates that vehicle in a negligent manner, and the safe operation of a vehicle while executing a reckless decision to continue a pursuit does not amount to operating the vehicle in a negligent manner.Second, the Sheriff says, the plaintiffs in this case allege that the decision of the deputy to continue the pursuit was reckless, and recklessness and negligence are mutually exclusive.

We recently considered and rejected these very arguments in our decision in McCobb v. Clayton County,309 Ga.App. 217, 221(1), 710 S.E.2d 207(2011), where we said that “a claim that an officer acted with reckless disregard for proper law enforcement procedures in pursuing a fleeing suspect comes within the ambit of claims for negligent use of a city- or county-owned motor vehicle.”The analysis of these issues in McCobb is reasoned and reasonable, and we will not revisit it in this case.Under McCobb, the sovereign immunity of the Sheriff is waived as to the claims that the Estate of Felder and her children assert against him.

2.We next consider the Sheriff's contention that the evidence establishes as a matter of law that the decision of the deputy to continue his pursuit of Clark was not a legal cause of the collision that killed Felder.About causation, the Sheriff makes two distinct arguments.First, the Sheriff points out, when someone is killed in a collision with a suspect who is fleeing from a pursuing law enforcement officer, the officer's decision to initiate or continue the pursuit is the proximate cause of the collision only to the extent that the officer decided to initiate or continue the pursuit in reckless disregard of proper law enforcement procedures.OCGA § 40–6–6(d)(2).Here, the Sheriff asserts, there is no evidence that the deputy pursuing Clark acted in reckless disregard of proper law enforcement procedures.Second, the Sheriff says,...