S96Q1285. HAMILTON et al. v. CANNON et al.
S96Q1285
Supreme Court of Georgia
March 21, 1997
267 Ga. 655 | 482 S.E.2d 370
HUNSTEIN, Justice.
The mother, child and administrator of the estate of Kim Orlena Hamilton brought suit in the United States District Court for the Middle District of Georgia asserting state and federal causes of action arising out of Hamilton‘s death at a city swimming pool in Montezuma. Plaintiffs named as defendants Macon County, its sheriff, one of its deputy sheriffs, the City of Montezuma, the manager of the city swimming pool, and a lifeguard at that pool.
Construed in a light most favorable to plaintiffs as the respondents on motion for summary judgment, Lau‘s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the reсord reveals that Hamilton collapsed as she exited the waters of a City of Montezuma swimming pool. The lifeguard at the pool caught her and placed her on the deck where a pool patron began administering CPR. There was testimony indicating that Hamilton was responding to the CPR. An emergency telephone call was placed and a Macon County deputy sheriff arrived on the scene. The deputy ordered everyone to clear away and the pool patron applying CPR complied, thus ceasing her CPR efforts. CPR was resumed when the city police chief arrived and was continued by emergency medical technicians until doctors pronounced Hamilton dead at the hospital emergency room.
In their complaint, plaintiffs asserted that the county defendants were liable based upon the affirmative act of gross negligence allegedly committed by the deputy sheriff when he interrupted a private rescue attemрt without providing a meaningful alternative. Plaintiffs asserted the city defendants were liable based upon the negligent hiring, training, and supervision of the pool staff; the failure to control horseplay at the pool which led to Hamilton being thrown into the water; and the failure to intercede after the deputy sheriff interrupted the private rescue effort. The district court granted summary judgment to all defendants based on its application of the public duty doctrine in City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993). Plaintiffs appealed that ruling and, in Hamilton v. Cannon, 80 F3d 1525 (11th Cir. 1996), the Eleventh Circuit Court of Aрpeals submitted four state law questions for resolution by this Court. The questions certified by the Eleventh Circuit are:
(1) Does the “public duty doctrine” established in City of Rome apply outside the police protection context and in the circumstances of this case?
(2) Does the City of Rome public duty doctrine apply to affirmative acts of negligence, such as those alleged in this case, in addition to failures to act?
(4) Does the City of Rome special relationship test apply when a law enforcement officer acts with gross negligence in performing duties at the scene of an emergency, as is alleged in this case, such that the officer would not otherwise be shielded from liability by
1. In City of Rome, supra, this Court addressed whether the municipality and a member of its police department were liable to plaintiff, an assault victim, for the failure to respond to an emergеncy call made by members of the victim‘s family who had telephoned police when they learned a man they feared posed a threat of harm to the plaintiff‘s safety was at the plaintiff‘s home. This Court adopted the public duty doctrine to hold that a municipality may not be held liable for its failure to provide police protection based on a general duty to protect the public. Id. at 28. This Court recognized that a municipality may be held liable for a failure to prоvide police protection where the plaintiff can show the existence of a special relationship that could be established by a three-prong test set forth in the opinion. Id. at 29. Applying that special relationship test, we held that the municipal defendants were entitled to summary judgment because the plaintiff‘s evidence failed to establish one of the required prongs.
This Court subsequently addressed the public duty doctrine in Dept. of Transp. v. Brown, 267 Ga. 6 (3) (471 SE2d 849) (1996), an opinion rendered two months after the Eleventh Circuit certified the questions in this case. This Court rejected the DOT‘s assertion that it had no liability in the absence of a special relationship between the DOT and the plaintiff‘s decedent, a car collision victim. This Court unanimously ruled that “[o]ur decision in [City of Rome] was directed squarely and only at the duty owed by a governmental entity to provide police protection to individual citizens” and that the nature of that case “warrants limitation of the public duty doctrine adopted in [City of Rome] to the situation involved there.” Id. at 8 (3).
Our opinion in Brown is conclusive аs to the first certified question from the Eleventh Circuit: the public duty doctrine adopted in City of Rome is limited to the situation in that case and thus does not apply outside the police protection context. Accordingly, we answer the first certified question in the negative.
2. Our resolution of the first question renders it unnecessary for us to address the remaining questions, all of which are premised upon the extension of the public duty doctrine outside the police pro-
Questions answered. All the Justices concur, except Fletcher, P. J., Sears and Hines, JJ., who dissent.
FLETCHER, Presiding Justice, dissenting.
Although an argument can be made for limiting the public duty doctrine to police nonfeasance, no one on this Court has made it. Instead, in an answer that is shorter than the question raised, the majority decides that the public duty doctrine is limited to the “police protection context.” The opinion offers no explanation or support for its holding other than a citation to a case that also states a result without any рersuasive reasoning. The complex issues connected with the public duty doctrine deserve a more thoughtful discussion. Because the majority unnecessarily and unwisely limits the public duty doctrine, I dissent.
THE SCOPE OF THE PUBLIC DUTY DOCTRINE
1. In City of Rome v. Jordan1, this Court addressed whether city police officers owed a duty to a sexual assault victim to respond to an emergency request for help. Adopting the public duty doctrine, we held that a municipality may not be liable for its failure to provide police protection based on а general duty to protect the public. Instead, a special relationship between the injured party and the governmental tortfeasor must exist that sets the individual apart and engenders a special duty owed to that individual by the municipality. To establish a special relationship, the plaintiff must show “(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the municipality that inaction cоuld lead to harm; and (3) justifiable and detrimental reliance by the injured party on the municipality‘s affirmative undertaking.”2 Applying the special relationship test to the facts in Jordan, we concluded that the City of Rome was entitled to summary judgment because Patricia Jordan failed to show that she relied on police to dispatch a vehicle to her home in response to telephone calls that others made from another house.
The decision in Jordan gave two reasons for adopting the public duty doctrine. First, the special relationship requirement rеstricted the government‘s liability for the actions of third parties in a way
The majority opinion today ignores both reasons for adopting the public duty doctrine. Unlike other states that have adopted the public duty doctrine, this Court limits it to the police protection context. This result excludes other public employees who are charged with protecting the general public from the actions of third persons in emergency situations, such as firefighters. It also exposes police officers to liability when their actions fаll “outside the police protection context,” whatever that term means. It apparently does not cover many routine actions that police officers undertake to protect the public, including the deputy sheriff‘s exercise of crowd control in this case.
Moreover, the majority‘s reliance on Dept. of Transp. v. Brown6 as its sole authority is unpersuasive. In a one-paragraph discussion, this Court declined in Brown to apply the public duty doctrine to allegations that the Georgia Department of Transportation was negligent in designing and operating a highway. Although there were myriad ways to distinguish Jordan, this Court stated that “the essential difference” in Jordan was “the involvement of third parties whose behavior may be unpredictable.”7 In a cursory analysis, the decision concluded that the difference in duties “warrants limitation of the public duty doctrine adopted in Jordan to the situation involved there, the provision of police services.”8
In retrospect, this “distinction” makes no sense since both police departments in responding to reports of crime and DOT planners in dеsigning highways have to deal with the unpredictable behavior of human beings. Moreover, neither police nor DOT have more than a general duty to control the conduct of third persons. Not only is the analysis in Brown unsound, but its holding is ambiguous on whether the public duty doctrine applies to police protection or to police ser-
Based on the dangerous nature of police work and our reasons for adopting the public duty doctrine, I disagree with the majority‘s holding that the doctrine is limited to police protection. Instead, consistent with both Jordan and Brown, I would hold that the public duty doctrine applies to police and other public employees who provide police services.9 These services include preserving public order; promoting public health, safety, and morals; and preventing, detecting and punishing crime.10 This definition protects public еmployees who provide police services from unreasonable liability and protects local governments from unreasonable interference with their decisions on allocating limited community resources.
LIABILITY OF COUNTY DEFENDANTS
2. The plaintiffs allege that the county was negligent in one way: deputy sheriff Duncan interrupted a private rescue without providing a meaningful alternative. Because I believe the public duty doctrine should encompass the provision of police services, I would apply it to the deputy sheriff‘s actions in this case. Specifically, Duncan is a law enforcement officer who performed traditional police services when he responded to the call for an ambulance, turned on his siren and blue lights while driving to the pool, and exercised crowd control at the emergency scene.
Affirmative Acts of Negligence
3. The claim against the county is based on allegations that Duncan‘s affirmative acts of negligence made Hamilton‘s injuries worse. In Jordan, we lеft open the question whether a special duty is required despite evidence of an affirmative act of negligence.11 I conclude that the public duty doctrine should apply to affirmative acts of negligence as well as the failure to act.12 It is difficult to distinguish
Special Relationship
4. In determining whether the plaintiff established that Hamilton and the deputy sheriff had a special relationship, I do not believe that this Court is limited to the special relationship test set forth in City of Rome v. Jordan.16 As stated in footnote four of the Jordan opinion, we did not determine in that case “whether a special duty may exist even in the absence of a special relationship where a police officer is present at the scene of a crime, has the knowledge and the resources to act to the benefit of the injured party, yet does not act.”17 That footnote suggests that a police officer may have a special duty to a specific individual without meeting the requirements of the special relationship test established in Jordan.
Although a person generally does not have a duty to assist other persons in danger,18 a person who undertakes a rescue generally has
Since I believe these principles generally should apply to public employees as well as private citizens, I conclude that a police officer creates a special duty under the public duty doctrine when the officer voluntarily assumes a duty to act for the protection of injured persons at an emergency scene.20 This duty is based not on a general duty to protect the рublic; rather, it is based on the specific actions of the police officer at the scene of the emergency in exercising control over an identifiable individual and voluntarily undertaking to assist that person. Like private persons who act as Good Samaritans, police officers who engage in the rescue of an injured person have a special duty not to make that person‘s situation worse or affirmatively increase the harm associated with that рerson‘s circumstances.21
Applying this ruling, I conclude that the facts viewed in the light most favorable to the plaintiff establish a special relationship between Hamilton and deputy sheriff Duncan that sets Hamilton apart from the general public and engenders a special duty owed by the county to her. Specifically, the plaintiff alleges that the private rescuer was administering CPR and Hamilton was responding positively to it when deputy sheriff Duncan assumed control of the emergency scene and ordered the rescuer to clear away. The plaintiff further alleges that Duncan did not attempt to administer CPR himself or allow anyone else to administer it for several minutes and that the delay made Hamilton‘s condition worse. Based on these facts, I would hold that Duncan had a special duty to not worsen Hamilton‘s condi-
This analysis is сonsistent with the rationale behind the public duty doctrine. Once Duncan had specifically identified Hamilton as a member of the public who needed assistance and took charge of her perilous situation, neither Duncan nor the sheriff‘s department was engaged in a “resource-allocating” function. Moreover, finding a special relationship in this case is consistent with the liability exposure of a private party for the actions of a third party.
Because I find that a sрecial relationship existed between Hamilton and the deputy sheriff, it is not necessary to reach the issue of detrimental reliance raised in the third certified question. By not reaching the detrimental reliance prong of the Jordan test, I do not mean to foreclose the possibility that the detrimental reliance prong could be satisfied under the circumstances of this case.
Claims of Gross Negligence
5.
A law enforcement officer shall not be liable at law for any action or actions done while performing any duty at the scene of an emergency except for gross negligence, willful or wanton misconduct, or malfeasance. As used in this Code section, the term “law enforcement officer” means any peace officer who is employed by this state or any political subdivision thereof and who is required by the terms of his employment, whether by еlection or appointment, to give his full time to the preservation of public order or the protection of life and property or the prevention of crime. Such term shall include sheriffs and deputy sheriffs.
By its terms, the statute does not create a duty. Instead, it provides immunity from liability where a duty exists.22
Just as I would determine that the public duty doctrine applies to allegations of affirmative acts of negligence, I would hold that allegations of gross negligence are not exempt from the public duty doctrine. As illustrated by this case, there often is no difference between evidence of negligence and gross negligence and, although not bind-
LIABILITY OF CITY DEFENDANTS
6. In their first amended complaint and responsе to the city‘s motion for summary judgment, the plaintiffs allege that the city was negligent in (a) hiring, training, and supervising the pool staff; (b) failing to control the horseplay that caused Hamilton to be thrown into the water; and (c) failing to intercede after the deputy sheriff interrupted the private rescue effort. The first allegation deals with the city‘s policies and practices; the remaining two allegations address the lifeguard‘s and pool manager‘s actions at the swimming pool.
(a) In Jordan, we did not address the plaintiff‘s additional allegation that the Rome police department was negligent in training radio dispatch officers because that claim did not deal with the duty of police officers to respond to emergency requests for help.24 Implicit in that decision was the conclusion that the public duty doctrine does not apply to a claim of negligence in training emergency personnel. I would expressly decide today that the public duty doctrine does not apрly to claims for negligent hiring, training, and supervision of public employees. Unlike the emergency situations in which a police officer is required to make a split-second decision about a course of action to protect individuals, the government makes a more deliberate and informed decision in hiring or training personnel. In that situation, no special duty is required in addition to the general duty of government to hire qualified personnel, provide adequate training, and exerсise competent supervision. As a result, the public duty doctrine does not apply to Hamilton‘s claim against the city for negligent hiring, training, and supervision of pool personnel.
(b) The remaining issue is whether Hamilton must show a special relationship with the lifeguard and pool manager under the public duty doctrine. As in the negligent hiring claim, I would refuse to extend the public duty doctrine to the negligence claims against the employees at the city-operated swimming pool. Unlike poliсe, the
In conclusion, I agree with the majority opinion that the public duty doctrine does not apply to the actions of the city‘s pool manager, lifeguard, or hiring personnel since none of the claims against the city involves police servicеs. I disagree, however, that the public duty doctrine established in City of Rome v. Jordan is limited to the police protection context. Instead, I would hold that the public duty doctrine applies to the claims against the county, but that a special relationship was established between Hamilton and the deputy sheriff under the circumstances of this case.
I am authorized to state that Justice Sears and Justice Hines join in this dissent.
DECIDED MARCH 21, 1997.
Wolfe & Steel, L. David Wolfe, Bodker, Ramsey & Andrews, Stephen C. Andrews, David J. Maslia, for appellants.
Jones, Cork & Miller, Thomas C. Alexander, William T. Prescott, Smith, Welch, Studdard & Brittain, Shawn M. Story, Ellis, Easterlin, Peagler, Gatewood & Skipper, George M. Peagler, Jr., John T. Croley, Jr., for appellees.