Eshleman v. KeyEshleman v. Key
- Reporters:
- , ,
- Before:
- Blackwell Justice.
Lynn Eshleman is employed with the DeKalb County Police Department as a law enforcement officer and dog handler, and in
1. As a general rule, a county law enforcement officer enjoys official immunity from a lawsuit alleging that she is personally liable in tort for her performance of official functions.1 See Roper v. Greenway, 294 Ga. 112, 113 (751 SE2d 351) (2013). See also Phillips v. Hanse, 281 Ga. 133, 133 (1) (637 SE2d 11) (2006); Cameron v. Lang, 274 Ga. 122, 124 (2) (549 SE2d 341) (2001); Gilbert v. Richardson, 264 Ga. 744, 752-753 (6) (452 SE2d 476) (1994). There are, however, two important exceptions to this rule. First, an officer has no immunity to the extent that she acted with malice or an intent to injure. See Cameron, 274 Ga. at 124 (2). Second, an officer has no immunity for negligence in the performance of a ministerial function. See Roper, 294 Ga. at 113.
As a DeKalb County Police officer and dog handler, Eshleman is rеsponsible for the care and maintenance of Andor at all times, even when she is not working. For this reason, the allegation that Eshleman failed to secure the dog outside her home concerns her performance of an official function, and Eshleman presumptively is entitled to officiаl immunity. Key does not contend that Eshleman acted with malice or an intent to injure anyone, and so, the first exception to the general rule of immunity does not apply. Unless the second exception
To define the scope of the second exception, this Court has distinguished between the ministerial functions of an officer, on the one hand, and official functions that involve an element of discretion, on the other:
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or prоved 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.
Murphy v. Bajjani, 282 Ga. 197, 199 (1) (647 SE2d 54) (2007) (citations omitted). See also Austin v. Clark, 294 Ga. 773, 774 (755 SE2d 796) (2014); McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009). When an officer is performing an official function with respect to which she owes no duty of care whatsoever — when the officer is equally permitted to choose to do anything or nothing at all — the officer necessarily is engaged in the performance of a discretionary function, nоt a ministerial one. But even when an officer clearly owes a duty of care and is absolutely required to do something, unless she has been commanded — by law or by the policy or directive of her employer — to do a particular thing, she still is engaged in the performance of a discretionary function. See Roper, 294 Ga. at 114-116. In Cameron, for instance, we held that a law enforcement officer engaged in a high-speed pursuit was performing a discretionary function for which he was entitled to official immunity, notwithstanding that the officer owed a generalized duty to drive with due regard for the safety of the public. 274 Ga. at 125-126 (2). See also Murphy, 282 Ga. at 199-200 (1) (although statutе absolutely “require[d] that action be taken and set[ ] forth parameters for the action to be taken,” the statute required school officials to exercise “personal deliberation and judgment,” and it did not, therefore, impose a ministerial duty); Harry v. Glynn County, 269 Ga. 503, 505 (2) (501 SE2d 196) (1998) (paramedic owed duty of care to patient, but paramedic nevertheless entitled to official immunity). As we have explained, “[a law, policy, or] instruction[ ] adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, sрecific duty.” Roper, 294 Ga. at 115 (citation and punctuation omitted).
2. In pertinent part,
A person who owns or keeps a viciоus or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. . . .
As our Court of Appeals has explained, the statute reсognizes that the keeper of an animal known to have vicious or dangerous propensities owes a duty of care with respect to the management and restraint of the animal for the protection of those who may come into contact with it. See Cowan v. Carillo, 331 Ga. App. 387, 389 (1) (771 SE2d 86) (2015). For our present purposes, we will assume that Andor — by virtue of having been trained to assist law enforcement in the apprehension of criminal suspects — is a “vicious or dangerous animal,” as that term is used in the statute.2 And we will assume that Eshleman, having been assigned responsibility for the care and maintenance of Andor, knew the dog tо be a “vicious or dangerous animal.” Assuming these things, it follows that Eshleman owed a duty to manage and restrain Andor so as to prevent the dog from injuring others.
But as we noted earlier, the important question in the context of official immunity is not merely whether an officer owed a duty of care, but rather, whether the official owed a duty that is particularized and certain enough to render her duty a ministerial one. We suppose that an absolute duty to restrain an animal at all costs — a duty that implies strict liability — might amount to a ministerial duty when owed by a public officer. We already have held, on the other hand, thаt a generalized duty to merely exercise reasonable care may not be
The statute speaks in terms of liability, and rather than directly stating the relevant duty of care, it identifies instead the circumstances that mark a breach of that duty: “careless management” and “allowing the animal to go at liberty.” “Careless management” quite clearly implies only a generalized duty of ordinary care. See Cowan, 331 Ga. App. at 391-392 (1) (b). See also Southern R. Co. v. Horine, 121 Ga. 386, 386 (2) (49 SE 285) (1904) (“The words ‘carelessly’ and ‘negligently’ are synonymous.“); Ferrell v. Haas, 136 Ga. App. 274, 276 (220 SE2d 771) (1975) (same). As for the statutory reference to “allowing the animal to go at liberty,” it too implies only a generalized duty to exercise ordinary сare to keep a vicious or dangerous animal restrained so as to prevent injury to others. The statute always has been understood as merely a recognition of the duty at common law with respect to vicious and dangerous animals. Harvey v. Buchanan, 121 Ga. 384, 385 (49 SE 281) (1904). And more than a hundred years ago, this Court addressed that duty in the context of a case involving allegedly vicious or dangerous animals that ran loose, holding that it is a duty to exercise ordinary care:
Relatively to a person on a public highway, who is injured by vicious or dangerous horses which may have been hired to a customer by a liveryman, if such injury arises from the exercise of the vicious propensity, the owner will be held liable therefor, if he hired such horses, knowing them to have vicious or dangerous propensities, or having reasonable grounds for so knowing, and was wanting in ordinary care for the protection of the public against injury from the exercise of such propensities.
Logan v. Hope, 139 Ga. 589, 589 (2) (77 SE 809) (1913) (emphasis supplied).3 See also Taft v. Taft, 209 Ga. App. 499, 500-501 (2) (433 SE2d 667) (1993) (speaking of negligence in the context of liability
Moreover, the statutory reference to “allowing the animal to go at liberty” is comparable to language in other “running at large” statutes, which generally have been understood by the courts and commentators to permit liability only upon a showing of negligence. Sеe West v. West, 299 Ga. App. 643, 645 (683 SE2d 153) (2009) (construing
Ordinary care to restrain an animal requires the taking of reasonable measures to keep the animal restrained. And that, in turn, necessarily requires personal deliberation and judgment. How much of a danger does a particular animal present? Is a fence enough to hold it? How high of a fence? If a tether is required, is the rope or chain strong enough? What about visitors who may enter the premises — how are they to be protected? And when the animal is transported, what sort of portable kennel is sufficient to hold it? The lаw requires the keeper of a vicious or dangerous animal to ask these sorts of questions, but neither the statute nor the common law supplies simple answers. What should be done always will depend to some extent on the circumstances. And that means that the duty cannot — when applied to a рublic officer — be characterized properly as a ministerial one. See Grammens v. Dollar, 287 Ga. 618, 621 (697 SE2d 775) (2010) (“Where the [law or] policy requires the public official to exercise discretion in the implementation of the [law or] policy, the [law or] policy does not require the performance of a
3. Kеy also contends that Eshleman had a ministerial duty to restrain Andor under Walton County Code §§ 10-3 and 10-4,4 but these ordinance provisions are no more particularized than
4. The duties that Eshleman was alleged to have violated were not ministerial ones because, although the duties reflected in
Judgment reversed. All the Justices concur.