Whеn a young driver fled from the scene of a traffic stop, a Richmond County deputy sheriff gave chase. The pursuit quickly reached high speeds and ended only minutes later, when the fleeing driver collided with another car. Laura Felder was a passenger in that car, and she was killed in the collision. Her Estate and children brought this lawsuit against Ronnie Strength, the Sheriff of Richmond County, in his official capacity, alleging that the deputy, when he chose to continue the pursuit even after it reached high speeds, acted in reckless disregard of proper police procedures and thereby caused Felder’s death. The Sheriff moved for summary judgment, asserting both sovereign immunity and that the plaintiffs cannot prove that the choice of the deputy to continue the pursuit was a legal cause of Felder’s death. The trial court denied the motion for summary judgment, and the Sheriff appeals. We vacate the order denying the motion and remand the case for the court below to consider whether the Estate of Felder and her children have suffi cient evidence to create a jury question on the issue of cause in fact, but we find no error in the court’s denial of summary judgment on sovereign immunity and proximate cause grounds.
In an appeal from the denial of a motion for summary judgment, we undertake a de novo review of the record evidence, viewing it in the light most favorable to the nonmoving
Before the deputy finished writing these citations, Clark suddenly restarted his vehicle and drove away from the scene of the traffic stop. The deputy activated his emergency equipment and gave chase. 1 The pursuit covered more than four miles, 2 and Clark and the pursuing deputy reached speeds of at least 90 miles per hour. 3 In the course of the pursuit, the deputy observed Clark overtake other vehicles in a reckless manner and enter several intersections against traffic signals. As Clark entered the last of these intersections, his Blazer collided with a car in which Felder was a passenger. She was killed in the collision.
At the time of the pursuit, the Richmond County Sheriffs Office had adopted a written policy identifying the circumstances in which its officers were permitted to initiate and continue emergency vehicle pursuits. According to this policy, when an officer decides whether to give chase or continue a pursuit, “[fit is of paramount importance that [the] officer weigh the seriousness of the offense committed against the danger to the officer and others who might be affected by the pursuit.” Under the policy, “[p]ursuits should be undertaken only when reasonably necessary in the given circumstances.” The policy suggests that “[i]t may ... be wise to abandon pursuit of misdemeanor offenders and, in some cases even felony offenders, rather than continue a highly dangerous pursuit.” And the policy advises that “[s]trong consideration should be given to abandoning a pursuit” whenever, among other things, “the pursuit enters a populаted area and an unreasonable danger to the public exists” or “the subject can be identified to the point where later apprehension can be accomplished.” Because the policy requires a balancing of factors of which the pursuing officer has the most and best knowledge, the policy commits the decision about whether to initiate or continue a pursuit to the pursuing officer, at least in the absence of a command from a superior officer. The pursuing deputy in this case was familiar with this policy at the timе of the pursuit.
The policy also requires an officer, when he initiates a pursuit, to notify his field supervisor. In accordance with this provision of the policy, the pursuing deputy in this case contacted his field supervisor by radio as the pursuit began and informed the supervisor of his location and that he was engaged in a pursuit. The deputy also told his supervisor that the fleeing driver was being pursued for traffic violations only and that the driver might, the deputy believed, try to cross into South Carolina. The supervisor responded that, if the driver left Georgia, the deputy should disсontinue the pursuit at the state
In February 2009, the Estate of Felder and her children filed this lawsuit against the Sheriff in his official сapacity, alleging that the deputy’s decision to continue the pursuit of Clark was reckless and caused the death of Felder. 6 The Sheriff moved for summary judgment on two grounds. First, the Sheriff said, he was entitled to sovereign immunity. Second, he argued, the undisputed evidence established as a matter of law that the decision of the deputy to continue the pursuit was not the legal cause of the collision that killed Felder. The court below denied his motion, and this appeal followed.
1. We first consider whether the Sheriff is entitled to sovereign immunity in this case. Under our Constitutiоn, Georgia counties enjoy sovereign immunity,
Gilbert v. Richardson,
Under OCGA § 36-92-2 (a), the sovereign immunity of a county is waived “for a loss arising out of claims for the negligent use of a covered motor vehicle.” 7 A “covered motor vehicle” is any motor vehicle owned, leased or rented by the county, OCGA § 36-92-1 (2), and the Sheriff does not dispute that the patrol car in which his deputy pursued Clark was a “covered motor vehicle.” The Sheriff contends, however, that the claim in this case is not one for “the negligent use of” the patrol car. First, the Sheriff says, a deputy makes a “negligent use of” a vehicle only when he operates that vehicle in a negligent manner, and the safe operation of a vehicle while executing a reckless decision to continue a pursuit dоes not amount to operating the vehicle in a negligent manner. Second, the Sheriff says, the plaintiffs in this case allege that the decision of the deputy to continue the pursuit was reckless, and recklessness and negligence are mutually exclusive.
We recently considered and rejected these very arguments in our decision in
McCobb v. Clayton County,
2. We next consider the Sheriffs contention that the evidence establishes as a matter of law that the decision of the deputy to continue his pursuit of Clark was not a legal cause of the collision that killed Felder. About causation, the Sheriff makes two distinct arguments. First, the Sheriff points out, when someone is killed in a collision with a suspect who is fleeing from a pursuing law enforcement officer, the officer’s decision to initiate or continue the pursuit is the proximate cause of the collision only to the extent that the officer decided to initiate or continue the pursuit in reckless disregard of proper law enforcement procedures. OCGA § 40-6-6 (d) (2). Here, the Sheriff asserts, there is no evidence that the deputy pursuing Clark acted in reckless disregard of proper law enforcement procedures. Second, the Sheriff says, the decision of the deputy to continue his pursuit of Clark is not the cause in fact of the сollision because there is no proof that, but for the decision to continue the pursuit, Clark would not have collided with the car in which Felder was a passenger. We will address these arguments in turn.
Before we reach these arguments, however, it is appropriate to review some of the settled principles that a trial court applies when considering a motion for summary judgment and that we apply when reviewing the denial of such a motion. Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law.
Cowart v. Widener,
(a) According to the common law, the plaintiff in any tort case must prove that the wrongful conduct of thе defendant is the legal cause of his injuries, and to prove causation, the plaintiff must show that the wrongdoing is both a cause in fact and a proximate cause of the injuries.
Calhoun First Nat. Bank v.
Dickens,
[T]he injury must be the natural and probable consequence of the [wrongful conduct], such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrong-doer as likely to flow from his act. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended.
Ga. Dept. of Human Resources v. Bulbalia,
In response to the holding of our Supreme Court in
Mixon v. City of Warner Robins,
When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. . . .
Here, the parties dispute whether there is any evidence from which a jury properly might conclude that the deputy pursuing Clark “acted with reckless disregard for proper law enforcement procedures” when he decided to continue the pursuit until the time Clark collided with the vehicle in which Felder was a passenger.
Our analysis begins with the question of exactly what procedures — the procedures that a reasonable law enforcement agency would adopt, the standard procedures that most law enforcement agencies have adopted, or the actual procedures that the agency employing the pursuing officer in a particular case has adopted — are the “proper law enforcement procedures” to which OCGA § 40-6-6 (d) (2) refers. Our Supreme Court has never addressed the question, and neither has our Court. 8 But it is a question that we need not answer definitively in this case. Here, as we understand the evidence, the standard policy of law enforcement agencies with respect to pursuits of fleeing suspects and the actual policy of the Richmond County Sheriffs Office on the same subject are not that different. 9 Both require that an officer balance the need to immediately apprehend a fleeing suspect against the risk to the officer and the public of initiating or continuing a pursuit. So, we now turn to whether there is some evidence from which a rational jury might properly find that the pursuing deputy acted in reckless disregard of these law enforcement рrocedures when he decided to continue the pursuit in this case.
We think the record does contain such evidence. As we noted earlier, it is undisputed that, at the time the pursuit commenced, the deputy only intended to cite Clark for traffic violations and had no intention of taking him into custody, instead arranging for his aunt to drive him home. When Clark fled, the deputy had confirmed his identity and still had his driver’s license. Knowing nothing more than these facts, the field supervisor concluded that the pursuit ought to be discontinued. And there is evidence that, during the course of the pursuit, the pursuing dеputy observed Clark driving at high speeds, reaching at least 90 miles per hour in a zone in which the maximum speed limit was 45 miles per hour, overtaking other vehicles in a reckless manner, and entering several intersections against traffic signals, circumstances that apparently were unknown to the field supervisor.
The Richmond County Sheriffs Office policy provides that “[s]trong consideration should be given to abandoning a pursuit”
To show proximate cause under OCGA § 40-6-6 (d) (2), the Estate of Felder and her children must show, at a minimum, that the deputy “acted with reckless disregard for proper law enforcement procedures in [his] decision to . . . continue the pursuit.” And “reckless disregard” is generally understood to mean “[cjonscious indifference to the consequences (of an act).” Black’s Law Dictionary, p. 1276 (7th ed. 1999). It is undisputed that the deputy was aware of the policy of the Riсhmond County Sheriffs Office concerning pursuits at the time he pursued Clark, and there is some evidence, recited above, from which a reasonable jury could, we think, properly conclude that the deputy chose to continue the pursuit with “conscious indifference” to whether continuing the pursuit violated proper law enforcement procedures.
The Sheriff says that we ought not focus on the decision to continue the pursuit and that we instead should ask whether the deputy operated his own vehicle recklessly during the course of the pursuit, noting that the Estate of Felder and her children do not offer any criticism of the deputy, “other than his mere mental decision to
pursue Clark.” And the Sheriff argues that there is no evidence whatsoever in this case that the deputy himself drove in a reckless manner while pursuing Clark. But our consideration of proximate causation under OCGA § 40-6-6 (d) (2) is guided by the statute itself, and the statute says quite unambiguously that the relevant issue is whether the deputy “acted with reckless disregard for proper law enforcement procedures
in [his] decision to initiate or continue the pursuit.”
OCGA § 40-6-6 (d) (2) (emphasis supplied). When we consider the meaning of a statute, “we always must presume that the General Assembly means what it says and says what it means.”
Northeast Atlanta Bonding Co. v. State of Ga.,
Notwithstanding the plain meaning of the statute, the Sheriff points to our decision in
Pearson v. City of Atlanta,
(b) We next turn to the question of cause in fact. To show that the wrongful conduct of the defendant is a cause in fact of his
injuries, a plaintiff ordinarily must prove that, but for this conduct, he would not have sustained the injury: “The defendant’s conduct is not a cause of the event, if the event would have occurred without it.”
English v. Crenshaw Supply Co.,
We are not in a position, however, to review the question of cause in fact because the court below did not address that question in its order denying the Sheriffs motion for summary judgment. Our Supreme Court has acknowledged that, when this Court reviews a decision of a trial court on a motion for summary judgment, it sits as a court for the correction of errors of law. See
City of Gainesville v. Dodd,
Moreover, even if we properly could consider cause in fact, see
Smith v. Henry,
In addition, the order of the court below granting in part the motion to exclude says that the expert properly can testify about whether the deputy acted in reckless disregard of proper police procedures when he chose to continue his pursuit of Clark. We note that some of his testimony about reckless disregard also may bear upon the question of cause in fact, including testimony about research that shows, the expert says, that most fleeing suspects will slow down if a pursuit is discontinued and they feel sаfe. The parties do not specifically address in their briefs whether testimony of this kind is excluded by virtue of the partial grant of the motion to exclude. For all these reasons, we think it best for the court below to address the question of cause in fact in the first instance. Because the Sheriff properly raised the question of cause in fact in his motion in the court below, and because the court did not address that question, we vacate the order denying the motion for summary judgment and remand for the court below to address cause in fact. See
Harris Ventures,
Judgment vacated and case remanded with direction.
Notes
At some point, another officer joined the pursuit, fell in behind the deputy who had initiated the traffic stop originally, and transmitted location updates and other information by radio to police dispatchers throughout the course of the pursuit.
It appears that the pursuit occurred on two major roads — Broad Street and Gordon Highway — in and near downtown Augusta. According to a Sheriffs Office supervisor, on a typical Saturday evening, one would find “light to medium” traffic on these roads.
Clark and thе deputy reached these high speeds while driving in a zone in which the maximum speed limit was 45 miles per hour.
Clark did not, in fact, drive toward the state line as the deputy had expected he would.
At his deposition, the deputy explained that an officer might not receive a radio transmission if another officer were transmitting on the same channel at the same moment or if he were in an area with poor radio reception. When it became apparent to the supervisor that the deputy had not received the instruction to discontinue the pursuit, the supervisor and a lieutenant with the Sheriffs Office attempted to raise the deputy again on the radio, but they were unable to do so. They received a “busy signal’’ when they tried to contact the deputy again, which indicated either that multiple users were transmitting on the same frequency or that the deputy was in an area with poor reception.
In their complaint, the plaintiffs also named the consolidated government of Augusta-Richmond County as a defendant, but they subsequently dismissed their claims against the County without prejudice.
This waiver is a limited one. Sеe OCGA § 36-92-2 (a) (3), (b).
In one recent case, we treated the actual policy of the law enforcement agency with which the pursuing officer was employed as the “proper law enforcement procedure,” without discussing this question expressly. See
Rahmaan v. DeKalb County,
To the extent there is any difference between the standard policy and the policy of the Richmond County Sheriffs Office, an expert for the plaintiffs suggested that the Richmond County policy might be less protective of the public. Any such difference, however, is not material to this appeal.
In their briefs in this Court, the plaintiffs say that “[i]t was not nеcessary that [the deputy] impose the death penalty on innocent motorists in order to capture a traffic violator, but that is what he decided to do.” But there is no evidence in this case that the deputy intended that harm come to anyone as a result of his decision to pursue Clark, and for this reason, even if he acted with “reckless disregard for proper law enforcement procedures,” we think there is no good reason to say that the deputy chose to “impose the death penalty on innocent motorists.” Reckless disregard for a policy and intent to cause death to another are not the same, as the plaintiffs admit elsewhere in their brief.