LOEHLE Et Al. v. GEORGIA DEPARTMENT OF PUBLIC SAFETY Et Al.
334 Ga. App. 836
Ga. Ct. App.2015Background
- On Jan. 6, 2009 Georgia State Patrol troopers pursued a vehicle reported stolen in a carjacking; the pursuit proceeded from I-75/85 onto an exit, through intersections, and briefly the wrong way on a one-block portion of Capitol Avenue, culminating in a collision that injured plaintiffs.
- Plaintiffs Allan Loehle and Nicole Livieratos (and as rep. of their minor) sued; DPS moved to dismiss on sovereign-immunity grounds; City of Atlanta destroyed audio recordings per a 120-day retention policy and plaintiffs moved for a spoliation sanction.
- The trial court found the troopers implemented DPS pursuit policies, acted with due regard, and therefore DPS did not waive sovereign immunity; it denied the spoliation motion because it found no notice of contemplated litigation prior to tape destruction.
- On interlocutory appeal, the Court of Appeals reviewed sovereign-immunity dismissal de novo (factual findings under any-evidence rule) and affirmed dismissal as to DPS because record evidence showed troopers followed DPS policies when initiating/continuing pursuit.
- The court vacated the denial of the spoliation motion and remanded, concluding the trial court applied an incorrect legal standard by requiring express/actual notice of litigation rather than considering constructive notice factors recognized by the Georgia Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DPS waived sovereign immunity under OCGA § 50-21-24(6) for pursuit-related negligence | Troopers negligently pursued: excessive speed, ran red lights, pursued in heavy traffic for a property crime, and ignored aerial monitoring — thus acted outside/contrary to DPS policy | Troopers followed DPS pursuit policies (weighed offense severity, traffic, used lights/siren, exercised due regard); conduct was execution of policy, so immunity applies | Affirmed: DPS did not waive immunity; evidence supports finding troopers implemented policy and acted with due regard |
| Whether destruction of APD audio recordings gives rise to spoliation remedy against City | City destroyed recordings under routine 120-day reuse policy after plaintiffs had constructive notice of litigation; spoliation remedy appropriate | City followed its retention policy and received no actual notice of litigation before tapes were reused; no duty to preserve | Vacated trial court denial and remanded: trial court used erroneous actual-notice-only standard; court directed reconsideration under Phillips factors (constructive/other notice) |
Key Cases Cited
- Ga. Dept. of Public Safety v. Davis, 285 Ga. 203 (2009) (distinguishes policy formulation from negligent execution; waiver where officer’s conduct clearly not pursuant to policy)
- Ga. Forestry Comm. v. Canady, 280 Ga. 825 (2006) (OCGA § 50-21-24(6) exempts policymaking decisions on method of law enforcement from liability)
- Phillips v. Harmon, 297 Ga. 386 (2015) (spoliation duty may arise from constructive notice; lists factors besides actual notice)
- Blackston v. Ga. Dept. of Public Safety, 274 Ga. App. 373 (2005) (sovereign immunity applied where troopers followed pursuit policy despite running signs/lights)
- Kitchens v. Brusman, 303 Ga. App. 703 (2010) (trial court has broad discretion resolving spoliation issues)