Trammel v. Bradberry

Citation568 S.E.2d 715,256 Ga. App. 412
Decision Date31 May 2002
Docket Number No. A02A1097., No. A02A1096
PartiesTRAMMEL et al. v. BRADBERRY et al. Bradberry et al. v. Trammel et al.
CourtUnited States Court of Appeals (Georgia)


Clifford H. Hardwick, Roswell, for appellants.

Winburn, Lewis & Barrow, Gene M. Winburn, John J. Barrow, Athens, Gambrell & Stolz, Irwin W. Stolz, Jr., Atlanta, for appellees. ELDRIDGE, Judge.

This is an interlocutory appeal raising many issues from a personal injury action for negligence in failing to take medication and for an intentional tort for the criminal act of aggravated assault by a person adjudged not guilty by reason of insanity of all criminal acts. In addition, the appeal and cross-appeal contain a number of complex issues involving mental illness and arising from service, discovery, procedure, and substantive law. Thus, a lengthy analysis and factual recitation is necessary.

Horace D. Trammel, Jr. ("Tommy") was sued by Officer B.R. Bradberry, Gwinnett County Police Department, Special Weapons and Tactics, and his wife Elaine for shotgun wounds inflicted on the plaintiff while Trammel was being arrested at his home in Forsyth County on a commitment order from the probate court.

In August 1995, Tommy was hospitalized where he was diagnosed and treated for paranoid schizophrenia; when he ceased taking his medication, he was rehospitalized several times under the civil commitment criteria as a danger to himself and others. Tommy had no legal guardian appointed by the probate court.

Again, prior to January 13, 1996, Tommy stopped taking his medication and posed a danger to himself and others requiring his involuntary commitment, which he resisted violently for the first time. On that date, after obtaining a commitment order from the probate court, Horace D. Trammel, Sr. called the Forsyth County Sheriff's Department, requesting assistance in taking Tommy to the hospital and advised Sergeant Al Hurst that Tommy had guns. On several prior occasions the Forsyth County Sheriff's Department had assisted in the hospitalization of Tommy without any violence on the part of either. Sergeant Hurst and Trammel, Sr. went to Tommy's home, but Tommy was absent. Sergeant Hurst informed Trammel, Sr. that he would return later to pick Tommy up.

Returning later, Sergeant Hurst passed Tommy on the highway in his pickup truck, executed a turn, activated his blue lights and siren, and commenced to chase Tommy. Tommy fled, and more sheriff's deputies, a police helicopter, and Georgia State Patrol joined the pursuit. Sergeant Hurst called off the chase, because Tommy was headed home and could be taken into custody there.

A deputy disregarded the order to terminate the chase and cornered Tommy on a dead-end road near Tommy's residence. The deputy confronted Tommy with a drawn gun, firing at him. Tommy pulled a shotgun from his truck and returned fire. Tommy got back into his truck and drove off-road to his house, and the deputies struck the fleeing truck numerous times with their fire.

Tommy arrived home, and the deputies surrounded the house. They requested assistance from Gwinnett County's SWAT unit, of which Bradberry was on call and a responding member. The deputies and the SWAT team opened fire on the house and tried to use tear gas. They had orders to shoot to kill Tommy.

On the morning of January 14, 1996, the law enforcement officers stormed the house after assaulting it with explosives, which set the house on fire. Tommy was shot in the hand, and his shotgun was damaged by gunshots; he surrendered.

During the assault, Bradberry received a gunshot wound; at the time that he was wounded, Bradberry was on the other side of the house from where Tommy was apprehended.

After evaluation by the court-appointed psychiatrist for the state mental health department in the criminal prosecution, Tommy was diagnosed under D.S.M. IV as Delusional Disorder, Mixed Type (Grandiose Type and Persecutory Type) 297.1. On May 28, 1999, Tommy was adjudicated not guilty by reason of insanity by the Superior Court of Forsyth County as to all criminal acts and ordered confined to the forensic unit of the state mental health facility.

On January 2, 1998, while Tommy was confined in the Forsyth County Jail, Bradberry had Tommy personally served with a copy of a complaint and summons without having a legal guardian or next friend served. During discovery in this civil action, Bradberry sought to obtain Tommy's treatment records. Trammel, Sr. filed a timely answer.

Tommy objected to the discovery of his psychiatric records and refused to waive the privilege under OCGA § 24-9-2. The trial court ruled that there was no privilege since Tommy was committed under court order as not guilty by reason of insanity.

On February 16, 1998, Tommy filed a motion to dismiss for failure to state a claim in lieu of an answer, which was not ruled upon until October 9, 2001. On April 20, 2000, Tommy filed a motion to dismiss for want of service. On May 15, 2000, the Bradberrys amended their complaint.

On March 13, 2000, Trammel, Sr. filed a motion for summary judgment, which was denied. On July 12, 2001, both Trammels filed a motion to dismiss as a sanction for violation of OCGA § 24-9-21. The plaintiffs moved for entry of a default judgment, which was denied.

Case No. A02A1096

1. The Trammels raise as error that the trial court found that service can be perfected upon an insane person without complying with the statutory requirements of OCGA § 9-11-4(d)(4) that they assert are required for service on the insane. While this is enumeration of error 8, it should be dealt with first, because it goes to the trial court's personal jurisdiction over Tommy. We do not agree with the Trammels' contention.

Under OCGA § 9-11-4(e)(4), when a person "has been judicially declared to be of unsound mind or incapable of conducting his own affairs and for whom a guardian has been appointed," then the guardian must be served. The adjudication of unsound mind refers to all classes of mental illness or other conditions under OCGA § 29-5-1(a) where the probate court determines that a person needs a guardian to handle his affairs and to manage his property. Shea v. Gehan, 70 Ga.App. 229, 230-232, 28 S.E.2d 181 (1943) (probate court has jurisdiction to determine that person needs a guardian because he or she is insane); Royal Indem. Co. v. Agnew, 66 Ga.App. 377, 379-380, 18 S.E.2d 57 (1941) (guardians are appointed for mentally incompetent, insane persons, non compos mentis, deaf and dumb, habitual drunkards, and imbeciles from age or other cause who cannot manage their estate). Only the probate court has jurisdiction to determine if a person is civilly incompetent and in need of a guardian of either their person or property or both.1Shea v. Gehan, supra at 229, 28 S.E.2d 181; Meadors v. Walden, 28 Ga.App. 409(1), 111 S.E. 227 (1922). To have a guardian appointed does not mean that the person meets the civil criteria for involuntary commitment to a mental hospital; however, involuntary civil commitment would satisfy the need for a guardian to be appointed by the probate court. Tucker v. American Surety Co. &c., 78 Ga.App. 327, 329-330(1), 50 S.E.2d 859 (1948). A civil commitment does not act as a procedure to have a guardian appointed, because many psychotic people have no estate to administer.

Thus, Tommy's current and prior commitments to psychiatric hospitals under the civil or criminal commitment criteria would permit the appointment of a guardian for him. However, there is no evidence in the record that Tommy has been adjudicated as incompetent by the probate court and had a guardian appointed. Unless and until there has been an adjudication by the probate court of Tommy's incompetence, OCGA § 9-11-4(d)(4) does not apply; therefore, any lawful means of service will confer personal jurisdiction over him. Sellers v. Bell, 151 Ga.App. 440, 441(1), 260 S.E.2d 538 (1979). Thus, personal service on Tommy in the Forsyth County Jail was valid and sufficient to withstand a motion to dismiss. OCGA § 9-11-12(b)(4), (5).

2. Trammel, Sr. contends that the trial court erred in denying his motion for summary judgment. We agree.

Trammel, Sr. went to the probate court to obtain an order to again involuntarily commit Tommy, because Tommy was off his medication and acting psychotic in that Tommy believed that the Federal Bureau of Investigation, the Georgia Bureau of Investigation, and Governor Zell Miller were lurking outside to kill him. At the time that Trammel, Sr. asked for the assistance of the Forsyth Sheriff's Department in taking Tommy by force for an involuntary commitment to a psychiatric hospital, he knew that Tommy had become a danger to himself and others by stopping his medication. Trammel, Sr. specifically warned Sergeant Hurst that Tommy had guns in his possession. The father did not provide the guns to Tommy nor know where Tommy obtained possession of the guns; however, the record shows that Tommy bought the guns prior to his first commitment and retained possession of them. This indicated both actual knowledge and foreseeability that Tommy could shoot at someone or shoot himself.

The general rule that the intervening criminal act[s] of a third person will insulate a defendant from liability for an original act of negligence does not apply when it is alleged that the defendant had reason to anticipate the criminal act.... Here, [the person with a special relationship of control may be] liable to third parties because [he] violated [his] duty owed to those third parties to conform to a given standard of conduct.

(Citations and punctuation omitted.) Bradley Center v. Wessner, 250 Ga. 199, 202-203, 296 S.E.2d 693 (1982) (duty of care to third persons when a special relationship based upon physical control exists). Thus,

where the course of treatment of a mental patient involves an

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