*1 that the testimony shows Appellant’s cause. than the effect rather shopping maneuvering of attention high level for her reason floor, the con- was watching closely cart, of not expense at the “I display table. including store’s fixtures placement of the gested get in here very small area area is a way, which this on this started did, I I can remember and my only thing that through, and your cart here, I had and legs with standing table vividly, this is a free this thing bumping. My primary keep from way little to to move table, do, I had to and at go around the away and get here, I moved the cart around right it was was point, whatever — well, I my . . . And foot that. get the table to around I I was thing next knew happened because the what had didn’t know .” . . going down. is a cor- the issue of distraction requested charge on
Appellant’s to the evidence at properly adjusted of the law and rect statement in its requested charge refusal to include trial. The trial court’s error, particularly so since the harmful instructions doctrine, result plain and should included the view charge given appeal. reversal of the Carley, Pope Presiding Judge Judge to state that am authorized join this dissent. Judge Johnson 1, December Decided denied December
Reconsideration Hyatt, M. Smith, Hyatt,
Charles H. John appellant. Booth, L. Sullivan, Hall, H. Eleanor Booth & Alexander Martel, appellee. COUNTY et al.
A92A1504. FEISE et al. CHEROKEE Birdsong, Presiding Judge. Cynthia Mary appeal
Plaintiffs Feise and Jonathan County and grant summary judgment to defendants Cherokee dam- Seay individually. The Feises filed suit for John as sheriff son, Feise, two-year-old was attacked ages holding after Mrs. neighbor, Scott whom repeatedly “sliced” with a knife teenaged neighbor had identified teenaged daughter the Feises’ and a Kramer house was peeping plagued as the tom who had them. The reports peeping tom behind the Feises’ home. After of a recurrence service, deputies military following Kramer’s return from incidents Deputy patrol. on extra placed neighbor’s the Feises’ and their houses backyards to see going even into the special patrols, Shields made yards. In shining spotlights he someone and into how would chase Hall he July Deputy Deputy Shields told feared incidents rape night Deputy situation. One Shields saw would escalate to deck; chase; jump gave Deputy off the he when figure Feises’ Hall up picked came on he resumed the search and Kramer was on a Deputy sought road near his house. Hall have the Feises and their *2 identify Construing Kramer. neighbors evidence on defendants’ (Holland summary favorably judgment motion for most Feises 442)), Corp., 4 teenaged their Sanfax daughter very upset her identify and friend were be asked to Kramer; they reputation knew for his bizarre and cruel behavior and They identify agreed only upon deputy’s were afraid. Kramer promise that not out get jail. girls, Kramer would of When relying assurance, upon this went outside and identified peep- Kramer as the tom, ing Kramer winked at them he and said would be back. He was mistakenly charged with a misdemeanor and was out on bail one- and-one-half hours. later, Feise, September 4,1990,
Six Mrs. weeks received tele- phone “I’m call from a male who said: going you your to carve and daughter . . up.” up quickly . The caller hung and Mrs. Feise called operator Meanwhile, to trace the call. the caller called again on waiting the call line and “I’m going get you you said: all what threatening did.” Mrs. Feise received three calls a row. She as- sumed these calls were made because “who else wanted to they do us harm?” The calls sounded as were pay made from a phone hung up but caller before calls could be Depu- traced. nearby ties checked phone stores and locations but nothing. found neighbors similarly also received a threatening day. call that Mr. sought arrested, and Mrs. Feise to have Kramer but the sheriff’s office attorney and the district probable told them was no cause to arrest because the calls were not traced. It suggested warrant, get Feises but the did they Feises not see how get could warrant if the police did not have probable cause arrest.
Construing favorably (id.), evidence most to the Feises de- spite patrols expended by “extra” deputies before the threats received, revenge were despite deputies’ and heightened knowl- edge of dangerous propensities, Kramer’s after the threatening phone calls were nothing help sheriff did They the Feises. were left to their own devices. The threats made Kramer as the “get you with a you did,” motive to all for fright- what were so ening posed a threat of such imminent harm the next Feise, probation Mr. who ais officer policeman, and former go did not stayed to work family. day, however, with his During the it necessary for go pharmacy. him to gave He his gun wife a go it, told her not to outside without but she knew she could not happen broad would anything not think she did anybody shoot mailbox. outside to the son two-year-old took her so she daylight, He lying wait. house or stalking the been Kramer had Scott He a knife. repeatedly with her and slashed Mrs. Feise approached protect herself. flung up she her arm when deeply her slashed repeatedly run and Kramer turned to up her son and picked She away, but she and get managed her back. She her on slashed emotion- great deal have suffered in blood and baby covered were slashing. ally the result of sum- granted The trial court issue. immunity is
Sovereign Jonathan Cynthia Feise and Plaintiffs to defendants. mary judgment Held: appeal. enforce of law recently the basis debated This court protect an individual for failure to municipalities agencies ment Rome, City party, Jordan acts of a third the criminal 730) (cert. That decision granted). physical pre this court so it by majority concurred was not (b). Appeals Rule only. See Court cedent summary to defend- correctly granted The trial girls induced the two negligently the claim that ants on jail. get he never out by promising would identify Scott Kramer *3 assurance, nor was reasonably rely upon any such not Plaintiffs could Kramer’s attack. proximate cause of promise of such the failure probable lack of finding liability attach to defendants Nor does neighbor received Mrs. Feise and her to arrest Kramer after cause Doraville, Ferguson City 186 Ga. threatening phone calls. See 551). 430, However, apprehension that deputies’ heightened in view having their been ad- propensity, definite criminal Kramer was of suddenly received four plaintiffs neighbors that and their had vised fact ex- telephone day, questions calls in one viciously threatening im- family against the Feise this ist as to defendants’ by decoy by surveillance or stake-out specific danger, minent or may find that defend- their or some other means. The house reasonably presumed have who made four ants should telephone was Scott and that threatening calls on con- should have inferred that Kramer had desire to take re- overwhelming ceived an and immediate and intent family; that de- venge plaintiffs’ and “slice” certain members of family ordinary care to the Feise fendants did not exercise assault. from Kramer’s immediate in to defend- granting summary judgment
The trial court erred ants, duty to reasonable care imposition either under the of a exercise Jordan, dissent, in Jordan plurality held or under the as upon “special duty” analysis relied Jordan promise that a call to and an case. involved asserted
by police majority assistance. The found giving send evidence rise care, ordinary to a to exercise but dissent believed the infor- relayed exceedingly mation to the Jordan’s sister was so sparse impose ordinary was no basis to that exercise on knowledge care based a foreseeable risk harm. The dissent “special duty” grounds also found that arose that case on plaintiff “justifiably on relied” the defendant’s “affirmative un- plaintiff, assist the dertaking” or on the “[b]ased sparse imparted police by phone, information there is no basis to find the knowledge the failure to send a car could lead to the harm incurred. There is no evidence that inac- tion made the situation worse increased the Jordan.” Jordan at 673. “justifiable
The element of reliance” an “affirmative undertak- ing” the law agency enforcement under a duty analysis arose because police promised Jordan contended to send assistance promise. and she A relied on that failure of affirmatively assumed protect, plaintiff’s it, and the reliance on be the cause of Williams, (see Thomas v. damage some cases 409)), “justifiable this requirement reliance” should applied not be to cases which do not involve reliance on an affirmative See, e.g., Jordan at undertaking protect. fn. 1. Neither should plaintiffs by arguing confuse their chances arose out of a where, “special duty” here, plaintiff’s there is no evidence the reli- ance undertaking affirmative is what resulted harm. “justifiable
The element of “special reliance” based on duty” does not arise under the causation evidence this This case. obvi- ously “special means the duty” analysis is applicable not to this case case, and we have applied not it in this as expressly stated above. Therefore, contrary case, concurrence we have applied to this “special duty” case the analysis, as we have ex- pressly made clear. The facts in this case are far more compelling Jordan than those toward a ordinary to exercise care where the law enforcement agency knew or should have known that its acts *4 exposed omissions an individual family to the risk. The Feise so convinced Kramer an intended immediate assault that Mr. Feise stayed home from fortify work and tried to his family their home defendants, gun; with a having knowledge facts, of pertinent family left to their own devices guard and made no effort to against or draw out this attack which the Feises foresaw as an imme- diate danger.
That Mrs. Feise went outside her home without a gun does not as a matter law recovery, of bar nor does it relieve duty defendants of a
21 required carry, and Citizens are not may find existed. which a she could not shoot use, Feise stated as matter of law. Mrs. gun a a a have a child or could been anyone; of Kramer’s attack the victim gun pro- a danger using incapable understanding case is that Mrs. should plaintiffs’ An element of tect herself. or else shoot Scott imprisoned her home forced to be not have been continuing at security would be physical than her or more her, assuming a of defendants to risk a result of the failure as of the case. they duty in all the circumstances had such a jury finds in Jor- in the dissent principle outlined clings dissent to the The if had a dan, is, only they liable be supra, that that defendants relationship” which was created between duty “special a terms of duty specific to establish a police sufficient claimant as- particular harm. dissent the claimant from question of “special duty” is a law serts that whether there is a However, very is de- complaint that each case. when circumstances, duty in should have a fendants undertaken analysis duty if finds no existed barring recovery a court that self-defeating. no such is circular and the defendants undertook duty complaint This is bottomed on defendants’ failure to assume a from against foreseeable imminent Kramer; duty recovery to undertake such bars defendants’ failure law, duty saying as a matter of this is the same as exists unless reasoning duty protect. undertook a The result of always police agency is make immune from that a can itself act, simply by in cases of wilful or criminal derelic- failing duty pro- a by police tion could court decide end, duty” logical “special analysis tect. is thus Carried to its such cases, except be to the of these inappropriate shown to indisputably protect. where fact undertake the did immunity, by making The dissent creates a form of a find- ing fact The cases for the idea jury. that should be cited (Bradley that existence of a is an issue of law a court Wessner, (296 Fed. Center and First Ga. Fretthold, &c. Bank Brunswick v. 485-486 128)) First Federal &c. Bank support proposition. do not Zayre Atlanta, Brunswick Shockley stems “ 179), actually [question held: ‘The is of] law; par- defined breach is determined usually question ticular facts. . . . This be referred (or jury, always referred, allegations and should so evi- unless dence) controversy beyond show there was no such breach of Therefore, duty. . .’ (Emphasis supplied.) . Id. at 673. [Cits.]” Shockley cannot be to allow the court to decide used the basis above, “special whether these cases. As said *5 duty” analysis only generally appropriate is where there was an af- protect. is a term to undertaking firmative It be used to allow a threshold, case, every danger court to decide at the in whether a reasonably by police. may foreseeable A decide the if issue (id.) “beyond controversy” the evidence shows that there was no rea- foreseeability danger giving general sonable of rise to a under principles negligence law summary judgment procedure. of and question
The dissent concedes the is one of reasonable foresee- but, “special ability, calling duty” question, this a contends that the trial court had the it. If form immunity decide a of is desired, it, peculiar the legislature judicial analysis should enact police immunity by allowing should not be used to create a court at the threshold the issue is to decide factual of what foresee- policy cases, Serious in able. considerations abound these foreseeability of generally standard reasonable is sufficient query. question necessarily The what is “reasonable” asks what is rea- in all the exigencies. sonable circumstances peers not unequipped question. If, to consider this to the jurors, minds reasonable all the in particular imposed case “provide personal 24-hour protection to citizens under or like these circumstances” proper or some other (as fears), form of surveillance the dissent we will not hold this to be inappropriate, guarantee view the constitutional of “protection property” noted concurrence Jordan v. City Rome, (Ga. supra I, I, at 669 II), Const. Art. Sec. Par. a legislatively absence of police immunity. enacted
Furthermore, concluding that the circumstances were not suffi- cient to inform defendants of a “substantial likelihood” of immediate danger attack, risk attempts dissent higher create a proof by standard of which these cases judged. Making should be issue one “substantial likelihood” rather than “reasonable foresee- ability” really adds nothing to if inquiry, since was rea- sonably foreseeable it must be in legal concluded terms that there was a “substantial likelihood” of it. But “substantial likelihood” were supplant used to traditional negligence law and to require a sort of “certain foreknowledge,” it will create immunity except for wil- ful torts.
As to the dissent’s conclusion that there was no these factual circumstances did not inform “sub- stantial likelihood” of this danger, obviously imminent cannot law, be said as a matter of “beyond issue is not contro- (id.) versy” jury, inasmuch like Mr. attack, may come opposite to the conclusion. Where reasonable minds differ as foreseeability attack, to the ques- of Kramer’s necessarily tion is jury. to exer- that defendants had jury may
A find this case from the criminal acts of Scott ordinary protect plaintiffs cise care that this reasonably foreseeable to defendants it was Kramer because known their defendants knew or should have would occur and attack risk. The trial court exposed plaintiffs or failure to act acts summary judgment to defendants. granting erred J., J., Cooper, P. concur. Judgment McMurray, reversed. J., J., Sognier, Carley, P. J., only. C. Beasley, concurs in *6 J., Andrews, J., Johnson, J., Pope, dissents. specially. concur disqualified. concurring specially. Judge, Chief
Sognier, opinion extending fully part majority’s I concur as to that of the duty plurality this court in recognized to counties the first a (417 730) (2) Rome, City Jordan v. 203 Ga. 666-667 (1992) municipality persons municipal a owes within its bounda that in duty ordinary protect against care to them the ries a to exercise unpredictable parties tentional and criminal acts of third when it rea sonably exposed knew or should have known that its acts or omissions persons municipalities, those to a foreseeable risk of harm. As with duty power counties assume an See government. this inherent (a) (1). IX, II, fully Ga. Const. Art. Sec. Par. III I concur toas part majority’s opinion holding summary that of the that to judgment appellees improper questions because of fact exist whether such a duty appellees in regard appellants. arose as to to
I in judgment only part opin- concur as to that majority’s analyzing judice light “general ion the facts of the case sub in duty/special duty” analysis in Jordan dissent. To the extent majority’s opinion in analysis may appropriate intimates that applicable other cases or is otherwise I Georgia, judgment concur I agree plurality application with the Jordan that analysis statutory contravenes language and constitutional Georgia authorizing governmental immunity the waiver of to the ex- (1). applicable liability tent of coverage. insurance Id. at 664-666 I am authorized to Presiding Judge Carley Judge state that join Johnson special this concurrence. Judge, dissenting.
Andrews, holding concur correctly granted that the trial court sum- mary judgment on the claim that negligently the defendants induced an identification of I respectfully majority’s Kramer. dissent from conclusion summary that the trial in granting court erred to County neg- defendants on the claim that Cherokee and its sheriff ligently protect failed to Mrs. Feise from Kramer’s attack.
One of government provide police protec- the functions of is to Thus, police have jurisdiction. general
tion for citizens within its a duty protect persons, from criminal attack to citizens third private generally a individual has no affirmative to aid whereas Nevertheless, general governmental the victim of such attack. protect public support is not alone a sufficient to a basis tort against government action failure its citizens party’s activity. from harm caused a third assault or other criminal When a claim is negligently failed . public,
member of the issue is threshold whether the exercise of general duty, special relationship was created between the specific duty claimant and the sufficient to establish a Jordan the claimant from the harm. See City Rome, 730) (1992) (Andrews, J., (cert, dissenting) granted). the context aof tort claim that “[I]n [county’s] police negligently police protection failed furnish Feise], application of a in scope type limited [Mrs. relationship [county] police between the claimant and the is a tradi- concept applicable tional tort law both government private en- tities.” Id. at In general, 671-672. A has B prevent C, A harming unless has relationship with B imposes which B, A to control or a relationship A exists between and C C Systems Associated Health gives protection. Jones, App. 798, (1988); Restatement, *7 2d, Law of Torts 315. §
Limiting scope the government’s duty of the under these circum- is stances not a form immunity, resurrected of sovereign otherwise waived to the extent of coverage, question insurance but involves of law on Bradley duty. the threshold tort Center issue of See generally Wessner, (296 199, 693) (1982) 250 Ga. SE2d (setting “a forth legal duty to conform to a of by standard conduct the raised law for protection the of others against unreasonable risks of harm” threshold element a cause of for negligence). action Ultimately, de- fining scope legal duty of in any setting involves pol- unavoidable icy kind, decisions. In present cases of proper it is to some degree unique consider the by government functions undertaken pro- viding police protection, and the limited resources allocated to the performance of these functions. The duty analysis undertaken cases, however, these any is special not based on given status gov- ernment, but on principles the same tort applied which would be private individuals like fairly circumstances. task apply is to duty analysis traditional unique often presented by tort claims negligent perform governmental failure to func- tion. Limiting scope duty relationship terms of between plaintiff is concept. defendant not a novel In premises liabil- ity duty by premises actions the owed the owner of the to one enter- ing according relationship varies to whether the to the owner of the one entering trespasser, is that of licensee or invitee. See Adams & (1989). Adams, Torts, Georgia Law of 4-1§ reasonable, therefore, scope duty
It is legal to limit the of the imposed they negligently provide for claims that failed to know, protection. know, When should that there is a substantial likelihood a citizen is in immediate being subjected to an physical unreasonable risk of serious harm person, actions of a third this is special sufficient to create a rela- tionship giving specific duty rise to for the to exercise reason- able care to the citizen special harm.1 Whether a relationship giving specific legal duty rise to a pecu- exists under the liar question facts of each case is generally a of law for the court. See Fretthold, First Fed. &c. Bank 482, Brunswick v. 195 Ga. (394 128) (1990) (while 485-486 issues negligence are ordina- rily fact, court). for the finder of question is for the In the liable; absence of such a the defendant is not such a does exist, the issue of negligence is for the trier of fact.
An argument may be made that framing the trial court’s analysis in general special terms of a relationship risk, and foreseeable duplicates part of the factfinding process normally is re- served for the in negligence However, cases. given unique function of providing protection general public, the lim- given ited resources perform task, potential and the for limit- claims, less numbers of negligence it necessary is clearly address scope before exposing potential for breach duty. Nevertheless, of such when defined terms of a relationship plaintiff defendant, between the its exis- tence or non-existence will be based on the facts spe- of the case. The cial relationship-duty question issue, is a threshold should re- solved the court as a matter of law where support the facts such a determination. Baird, See Trammell v. 445) (1992) (plaintiff relationship trespasser as a matter of law). Where the trial court is unable to conclude as a matter of law whether or not a relationship existed, properly becomes a question factual for resolution the jury along with other negligence Murray issues. See Hutto, Biscuit Co. v. 385-386 182) (1969) (question plaintiff fact as to whether stood *8 in relationship trespasser licensee). or
After Kramer was identified the Feises’ daughter neigh- and a daughter bor’s peeping arrested on tom charges, he was released 1 agree majority four-part with establishing relationship test for City Rome, set out supra, the dissent in Jordan v. was sufficient under the facts case, but not here.
26 later, custody day. from the same About six weeks Mrs. Feise and neighbors anonymous threatening phone received was calls. Kramer caller, as the Mrs. him although identified Feise feared that was because she knew of no else have a motive harm who would though they pay them. The phone, calls sounded as were from police checking were unable locate caller local stores phone police locations. The were unable to arrest Kramer for lack probable next cause.2 The Kramer assaulted Mrs. Feise front of her residence. my view,
In special relationship no existed a matter of law be- case, plaintiffs tween the and the therefore the specific duty prevent harm. There was no claim that previously plaintiffs, Kramer had any assaulted the nor di- rect evidence threatening that Kramer caller. The threatening calls, conjunction circumstances, with all the other did not estab- lish a danger substantial likelihood immediate of an attack. I am unable to learning conclude that of the anonymous calls under these circumstances was sufficient to inform the that there was a sub- plaintiffs stantial likelihood were in immediate of be- ing subjected to an unreasonable risk serious harm the at hands of Kramer. To relationship conclude that giving rise to a exists this case would be tantamount to subjecting police potential liability for provide personal the failure to pro- 24-hour tection citizens under these or like circumstances. The trial court held, correctly law, aas matter of that the specific defendants had no legal duty attack, Mrs. Feise from the properly granted summary judgment in favor of the defendants. Decided December denied
Reconsideration December Lupa,
Gerard J. appellants. for Drew, Farnham, Eckl Mitchell, & William T. Theodore Free- probable The lack of type cause in this case illustrates of dilemma in which may placed duty creating potential liability officers when a imposed tort for failure to imposition a citizen criminal act. of such a under these circum “puts police precarious position stances choosing potential officers in the between claims arrest, potential injured parties false tort third failure arrest. . . [and discouraging] have added effect of] the reasonable exercise of discretion officers, encouraging] marginal supported by only slight arrests cases evidence of County, (An conduct.” Landis Rockdale (1992) criminal drews, J., dissenting). *9 man, appellees. THE
A92A1674. WELCH v. STATE. 22) Judge.
Pope, Tommy appeals Defendant W. Welch his conviction count attempt two Georgia to sell cocaine and counts of violation of the Substances Although Controlled Act for sale of cocaine. the de- represent fendant has no himself also represented by (Hance (1) 184) Kemp, (1988)), counsel throughout trial proceedings permitted representation both defendant and his counsel. On appeal, defendant and his counsel filed separate separate enumerations of error and briefs. We have examined both sets of error enumerations of and find no revers- error. ible
1. Both defendant and counsel argue his trial court erred in denying indictment, his motion for directed verdict to Count of the charging attempt with defendant sell cocaine. The indictment al- leged agreed quantity defendant to sell “a of cocaine” under- agent agreed “price upon quantity.” cover Both defendant argue his presented counsel prove allega- evidence tions of this count of the disagree. indictment. We Two informants who assisted the undercover officers the transactions with defend- ant and his co-defendants testified that agreed provide defendant them with at a if they give cocaine later time him would One of $200. the informants testified defendant “talked weight about and volume.” We conclude the evidence was sufficient to create an for jury issue determination and the trial court did not denying err defendant’s motion for directed verdict on this count.
2. Both defendant
argue
and his counsel
the trial court erred in
denying defendant’s motion for directed
II
verdict
Counts
and III
indictment,
charging him with the sale of
Both argue
cocaine.
implicating
evidence
in the
defendant
two transactions
conflicting testimony
is the
of the two
they
informants who admitted
drug
were convicted
given
violators. The
testimony
credit to be
impeached
a witness where
for conviction
involving
crime
moral
turpitude is
jury
proper
determine under
instructions from
Taylor Marsh,
(1) (130
the court.