*1 “misde- that makes the distinction between has been person charged statute’s finds The majority lacking. “felony” meanor” charged a try person “a to jurisdiction court with plain language, court 40-6-393,” to divest a probate of Code serves Section violation per- when a underlying misdemeanor offense of over an jurisdiction of OCGA 40-6-393.9 felony with a violation § son has been charged felony case, simultaneously charged Perkins was In this (a)10 with misde homicide under vehicular § the misde probate disposed The court of driving. reckless meanor offense, to run consecutive reckless with its sentence driving meanor of charge felony vehicular pending to on imposed sentence to the reck authority The probate dispose court no homicide. Perkins offense, jurisdiction try it did not have to driving less since homicide, OCGA charge felony required on vehicular (d). probate judgment court’s entered Accordingly, 40-6-376 § void, may is and Perkins be wholly conviction driving the reckless of Perkins’ in bar grant plea tried on the vehicular homicide. The should be reversed. joins state that Ruffin in this dissent. Judge
I am authorized to July 200 Decided July Reconsideration McManus, Attorney, appellant. Kermit N. District for III, appellee. M. Hinman for Ralph TITTLE et al. v. CORSO et al.
A02A0828.
Phipps, Judge. his wife sued Gwinnett Sheriff County Deputy
Russell Department, alleging Paul Corso the Gwinnett Sheriff’s summary of torts. trial court variety motion immunity on the was entitled official judgment ground The court denied the Tittles’ motion to substitute the from suit. also in his The Tit- sheriff, department. official the sheriff’s both We affirm because there is no evidence that appeal rulings. tles jurisdiction Assembly empowered the Constitution define the The General is Const, I). (Ga. VI, Ill, Art. Par. the state courts Sec. offense, driving charged underlying rendering the vehicular Reckless (b). felony. § homicide a See OCGA 40-6-393 (d). 40-6-376 17-9-4. § OCGA See OCGA malice Corso acted with actual and the sheriff was entitled to sover- eign immunity.
Summary judgment proper genuine when is no issue of judgment fact and the movant is as a entitled matter of grant law.1We review de novo view the *2 evidence, all and reasonable and inferences drawn conclusions light it, in the favorable the nonmovant.2 light, Viewed in this the evidence shows that at about 1:00 a.m. watching having 6, 1999, on home, October Corso was television at just department. his shift the finished with sheriff’s He heard six to eight popping gunshots. “loud outside he noises” believed were emergency lights He the looked out window and saw a car police on, and he heard a broadcast over the radio shots had neighborhood.” been fired and officers should “check Corso respond my “[i]t decided to to the call because was so close house was about worried it.” driving
Meanwhile, Tittle was his wife and two children home. began repeatedly, The car to backfire and Tittle switched to “back “[s]omebody’sgoing roads” he because was afraid that to think we’re shooting something.” out here later, or A short while the muffler exploded caught entirely. fire, and the car shut off Tittle exited began “kicking body the car and the muffler around” half of his under the car. pulled up patrol stopped
Corso car, Tittle, in his near and shone patrol spotlight headlights ap- car’s onto Tittle. Corso proached gun put Tittle with stand, drawn and told him to complied. air, hands in and walk backward toward him. Tittle placed gun against Corso then down, ordered him to lie face weapons neck, and introduced himself. Corso searched him found Corso none. testified that he had lie down because him, had no handcuffs with and Tittle admitted that Corso did not hurt him. lying got down,
While Tittle was his wife out ofthe car and asked going get what was on. Corso told her to back in the car and that he “explain it in a minute.” Then Corso Tittle sit down cross- legged patrol while he went to his car to use the radio. tried to explain having trouble, that he was muffler him, but Corso told “Shut up. According “dispatched I’m in however, control.” to Tittle, Corso having requested and told that I them was car trouble.” Corso also backup. helped
Next, Corso Tittle to his feet walked over to the (c). Matjoulis Integon Corp., Gen. Ins. manner, in a hurtful this not that Corso did Tittle testified car. that he Tittle testified Although would.” like officer “just but Tittle, According hurt him. that Corso “scared,” he again [said], fucking Tf you hood and down on the “slammed me Corso then ” also told you up.’ and he’ll eat move, you, I’ll put my more off” and that moved, my he’d blow head “if I fucking Tittle that I did.” worse than you would “treat would arrive and car, walked of the patrol over the hood leaning Corso left Tittle in the any guns if were his wife there to Tittle’s and asked over He then of the car. her to out no, get and Corso asked car. She said children, sleeping, of whom was hurt one not to promised child inside. The gun if was a and asked leaned into car no.” “shook his head who was awake license that Tittle’s and ascertained officers arrived backup offering After present. were weapons clean and that no
check was in their car. them to leave assistance, permitted Tittles the officers slamming to Tittle’s head gun putting Corso denies did that Tittle car. He also maintains of his the hood He further asserts broken muffler. tell him about initially not not that he did head off and threatened to blow Tittle’s that he never *3 with the Tittles. confrontation “fucking” during his use the expletive aggravated Corso, imprisonment, false alleging sued distress, tres- infliction of emotional assault, battery, intentional infliction of Corso, intentional alleging Tittle’s wife also sued pass. the Gwin- the Tittles sued Finally, and trespass. emotional distress respondeat supe- theory under Department nett Sheriff’s the sher- Tittles’ motion to substitute trial court denied the rior. The that the sheriff ruling iff, employer, in official as Corso’s immunity, which sovereign entitled to the defense be Corso’s The trial court also county. waived by not been to he was entitled on the grounds motion for immunity. official in sum- granting the trial court erred
1. The Tittles fact exist issues of genuine to Corso becáuse mary judgment cannot malice. We demonstrated actual to whether his actions agree. authority and perform- of his acting scope within
Corso was fired” investigating in a “shots discretionary function an official ing claims, the Tittles’ immunity from Thus, he is entitled to official call.3 217) (1996) (deputy sheriff dis Rogers, 224 See Gardner v. Ga. duties). discretionary A discretion alleged performing patched investigate assault judgment, entails which in turn ary personal deliberation act calls for the exercise conclusions, way specifi acting not facts, reaching on them in examining reasoned Kelly, cally Todd v. Ga. directed. showing absent a that he acted with malice actual or intent to cause injury.4 injure The Tittles do not contend that Corso intended to They argue them. ice. Actual instead that his actions demonstrated actual mal-
malice, in the context of official means a delib- wrongful illegal erate intention to commit a act.5 up point The Tittles concede that Corso’s actions to the of radio- ing backup any They argue, do not show actual malice. however, subsequent unnecessary profanity that Corso’s use of and force do point, show actual because, malice at that Corso knew that Tittle merely problem Although was unarmed and had a with his muffler. way inwe no condone behavior, Corso’s described that, we must law, conclude as a matter of it not does rise to the level of actual malice. making helped Tittle testified that after call, the radio “just
to his feet like officer would” and escorted him to the Although gun car. Corso still held his in hand, his left the Tittles did — — testify contrary again not placed assertions their brief that Corso gun against testify Tittle’s neck. Tittle did that Corso threatened to shoot him or unleash his on him if he moved. In addition, Tittle testified that Corso “slammed” alleged Thus, car. the actions to constitute actual malice include the profanity, “slamming.” use threats, Although profanity may insulting, be distasteful and we cannot particularly conclude malice, that it shows actual in the absence of any epithets indicating any personal or other words bias. As we noted Gray,6 demonstrating in Woodward v. evidence “frustration, irrita possibly anger” penetrate tion, even is not sufficient to official immunity. Nor are Corso’s threats sufficient to establish actual mal- injure ice. Corso said that he would Thus, moved. if prevent intended, threats were ing danger present- face, on their Tittle from investigated might while Corso which have con- weapons dangers. tained then that or other While it is true that Corso knew unarmed, Tittle was we find no actual malice expressed desire that Tittle remain immobile while Corso’s attention *4 prepared say was directed elsewhere. We are not that an unarmed dangerous, particularly man cannot be to a lone officer in the middle night. point of the The Tittles out that the better course would have been for Corso to retrieve his handcuffs from the car and place restrain Tittle or him inside the car. But our task is not 4 Const, 1983, I, II, (d); Todd, Ga. supra. Art. Sec. IXPar. see 5 (2) (520 Hazelwood, 896) 414, (1999); Adams v. Hawkins, 271 Ga. SE2d Merrow v. 390, 336) (1996). 266 Ga. 391-392 SE2d (527 595) (2000). App. 847, 851, 241 Ga. n. 4 SE2d hindsight, have done. Corso should what decide, the benefit to We are only showed a deliber- his behavior with whether concerned wrongful circumstances act. Under the a to commit ate intention alleged no such threats evidence find that Corso’s we intention. police Finally, placement hood of the right “[T]he arrest or to make an malice. actual car does not show right necessarily investigatory stop some it the to use carries with physical Even degree accepting to effect it.”7 or threat thereof coercion “slamming,” action as of Corso’s Tittle’s characterization — — physical that Corso’suse of more does not show that act without force was so excessive intent to do unnecessary a deliberate as to demonstrate
or wrong. alleged behavior. we do not condone Corso’s
We reiterate that testimony But we him is understandable. that Corso “scared” Tittle’s “slamming” profanity, threats, and conclude that Corso’s cannot showed a deliberate an effort to restrain secure summary judgment wrongful opposed act, as intent to commit investigate and continued to
Tittle while Corso properly Corso’smotion for trial court the scene. The immunity.8 of official on the basis denying court erred also that the trial 2. The Tittles capacity, as a defendant. sheriff, in his official their motion to add the Having can claim the in his official the sheriff been sued immunity sovereign there was no waiver.9 to the extent defense of immunity pursuant sovereign waived The Tittles contend (b), provides, OCGA 33-24-51 which county, municipal corporation, or other
Whenever
purchase
political
insur-
of this state shall
subdivision
(a)
pro-
of this Code section to
ance authorized
subsection
liability coverage
negligence
any duly
autho-
vide
for the
attorney,
agent,
employee in
officer,
servant,
or
rized
(109
(Citation omitted.)
1865,
Connor,
LE2d
490 U. S.
SC
Graham
Court,
directly applicable
while not
additional words from the Graham
These
law rather than state
involved
violations of federal constitutional
because that case
law,
tort
are nonetheless instructive:
shove,
unnecessary
peace
every
may
push
even if it
later seem
of a
Not
chambers,
judge’s
The calculus of reasonableness
violates the Fourth Amendment.
embody
police
are often forced to make
for the fact that
must
allowance
-
tense, uncertain,
rapidly
judgments
split-second
in circumstances
that are
-
necessary
particular situation.
evolving
of force that is
about the amount
omitted.)
(Citation
Id. at 396-397.
8 Woodward, supra.
See
161) (1998); Coffey
Taylor,
v. Brooks
SE2d
See Stone v.
(2) (e) (500
341) (1998),
grounds,
County,
rev’d on other
892-893
Coffey,
performance governmental immu- shall nity be waived to the extent of the amount of insurance purchased. so . . . (a) limits the immunity waiver to § insurance cover
ing liability “arising by maintenance, reason of ownership, operation, any or use of motor vehicle the . . . county.”10Whether an event arises “use” of a motor depends vehicle on the circumstances of the case.
[Procurement of insurance under this statute does not constitute a waiver of sovereign immunity in to dam- regard ages caused by county’s negligence not connected with motor vehicles. This point addresses the issue of causation in relation to a county’s liability for the negligent use of a motor vehicle. In that regard, plaintiff in this action, tort as in any action, tort prove must causation and damages. With respect causation, to recover tort action, plaintiff prove must that the defendant’s action [misuse of a county vehicle] was both the cause in fact and the proximate cause of [the] injury.12 Tittles that their injury arose from Corso’s use of the car because the headlights and spotlight were used to illumi- nate the area and because Corso placed Tittle against the hood of the car. But even assuming, without deciding, OCGA 33-24-51 is applicable case, in this where negligence was not alleged, we find the patrol car was only remotely related to Corso’s tor- tious conduct and that the injuries Tittles’ were not caused “use” of the patrol as contemplated by that Code section.13
Having shown no waiver of sovereign Tittles have failed to show that the sheriff might have been liable under the doc- trine of respondeat superior for any alleged actions of Corso. Judgment Andrews, J, Johnson, J, P. Smith, P. affirmed. J., Blackburn, P. concur. J., Mikell, JJ, C. Miller and dissent. Judge, dissenting.
Mikell, I respectfully dissent Division of the majority opinion find a genuine issue of material fact remains as to whether Corso acted with actual malice. 10(Emphasis supplied.) Harry Glynn County, v. 12 (Citations omitted; emphasis original.) Lincoln
Edmond, 13 See id. evidence, where the properly Summary judgment is no genu- that there shows and depositions, including pleadings is entitled moving party and that the fact as to ine issue given should be respondent law.14The a matter of judgment to a construe court should doubt, and the reasonable benefit of all therefrom arising and conclusions all inferences evidence the motion.15 party opposing toward the favorably *6 when Corso testified that Russell During deposition, moved, I fucking me if he told scared, “because he was up, lifted he tried to that when deposed further head off.” Tittle my he’d blow I’m in said, con- muffler, up. “Shut to Corso about explain radio, he using the Tittle, Corso finished after According trol.” to the police him over Tittle, up, walked picked grabbed move, I’ll “If hood, said, you fucking him down on slammed said, going “There’s He also you up.” and he’ll eat my dog you, put worse you to treat here, they’re going . . . and more officers to be that he over- arrived, and Tittle testified I than did.” Two this dog. “So all brought that he had not comment heard Corso and he up, eat me to have thinking going time I’m deposed. had a dog,” never even is defined sim- context of official malice,
Actual in the long It has been held wrong.”16 intention to do a “deliberate ply as pecu- an act is done is intention with which law that criminal bar, at the evi- In the case to decide.17 jury a matter for liarly permits to the dence, favorably when construed that actual malice malice.181 believe that Corso acted with inference language, partic- opprobrious of profane, be inferred from the use can force, and a drawn threats, a display when ularly coupled court, appellate not an analysis, jury, In final it is for weapon. whether Corso in this case and determine the evidence weigh reverse the wrong.” Accordingly, intended to do “deliberately to Corso. summary judgment grant of Judge Judge Chief Blackburn
I am authorized to state that Miller in this dissent. join 2 July 9, 200 Decided July 31,2002
Reconsideration 14 (c). 9-11-56 OCGA 15 (1) (541 33) (2000). 205, App. Enterprises, SE2d Bakhtiarnejad 247 Ga. v. Cox omitted.) (Citation Hazelwood, 271 Ga. Adams v. 896) (1999). SE2d State, SE2d Climpson v. (c) (527 595) Gray, Cf. Woodward Stewart, E.
Larry appellants. for Blum, appellees.
Kristina H. LIBERTY A02A1373. CANAL INSURANCE COMPANY v. MUTUAL INSURANCE COMPANY. Judge.
Eldridge, This is an appeal from cross-motions compensation subrogation brought by workers’ suit Canal Insurance Adjusting Services, c/o O’Steen the workers’ Company compensation insurer, who did in the employee’s not intervene tort suit Lib- erty Company, third-party insurer, Mutual Insurance tortfeasor’s although it was Liberty on notice. Mutual settled the tort suit injured for a employee recovery for pain suffering only, and were substantial economic damages wages for lost and medical expenses remaining of the uncompensated excess paid by benefits The trial Canal. court denied Canal’s motion and granted Liberty motion, Mutual’s because Canal’s derivative claim was lost when the employee’s suit was dismissed with prejudice. *7 in Absent intervention such tort suit to its protect subrogation right, Canal could never carry burden to prove employee had fully been compensated injuries and damages, barring thus of any right subrogation. We affirm. July 2, 1997,
On Robert E. Wilson, of Thomas employee Trucking Company, personal injuries sustained arising out scope employment through negligence Harry’s Farmers Market, Inc. and Harry’s. Liberty Harry’s sued Mutual insured and entered defense for its insured to the Canal paid suit. Wilson’s med- ical and expenses compensation benefits for the injuries arising from the occurrence.
Although Canal notice of the third-party tort action employee, Canal chose not to intervene Wilson’s tort suit. Lib- Mutual was erty on notice that Canal had workers’ compensation lien for subrogation the economic benefits Canal had Prior paid. to trial and entry of judgment, Liberty Mutual settled the suit with for only i.e., Wilson his noneconomic damages, pain suffering, $100,000, dismissed Wilson the suit with At the prejudice. settlement, time $133,000 Wilson of which special $40,000 were lost wages. paid $27,186.16 unreimbursed Canal had $52,650 expenses medical in disability Liberty benefits. Mutual opinion was of the that the settlement with Wilson was than full less economic compensation injuries for his both non- damages, economic evidence in the suit.