TUCKER v. PEARCE et al.
A14A2105
Court of Appeals of Georgia
March 30, 2015
Reconsideration denied April 14, 2015
771 SE2d 495
DOYLE, Presiding Judge.
is judicially estopped from asserting an unencumbered interest in the property. Thus Wells Fargo’s complaint was timely.
(d) Barron contends that the trial court failed to consider his submission of material facts as to which there exists a genuine issue. But the trial court’s application of judicial estoppel controls all material issues of fact regarding Wells Fargo’s claims.
3. Barron has not argued or cited authority in support of his counterclaims and, accordingly, has abandoned any claims of error in that regard. See Court of Appeals Rule 25 (c) (2). Moreover, all of Barron’s counterclaims are dependent on the same issue resolved by way of judicial estoppel. For all of the above reasons, the trial court did not err by granting summary judgment in favor of Wells Fargo on its claims and on Barron’s counterclaims.
4. Barron’s assertion in his reply brief that his original counsel was ineffective is not grounds for reversal. “[T]he constitutional right to effective assistance of counsel does not extend to participants in a civil dispute.” Mathes v. Mathes, 267 Ga. 845 (483 SE2d 573) (1997) (citation omitted). Moreover, this Court will not consider arguments raised for the first time in a reply brief. Vann v. Finley, 313 Ga. App. 153, 154, n. 2 (721 SE2d 156) (2011).
Judgment affirmed. Barnes, P. J., and Boggs, J., concur.
DECIDED MARCH 26, 2015 —
RECONSIDERATION DENIED APRIL 14, 2015.
Mickey J. Barron, pro se.
Baker Donelson Bearman Caldwell & Berkowitz, Scot H. Michalove, Daniel P. Moore, for appellee.
TUCKER v. PEARCE et al.
A14A2105
Court of Appeals of Georgia
March 30, 2015
771 SE2d 495
Tammy Pearce (“the Plaintiff”), individually and as administrator of the estate of her husband, Christopher Pearce (“Pearce”), filed a wrongful death suit against Glynn County Police Officer Henry Tucker after Pearce committed suicide while in the custody of the Glynn County Police Department. Officer Tucker filed a motion for summary judgment, and, following a hearing, the trial court denied in part Officer Tucker’s motion.1 Officer Tucker appeals, contending that the trial court erred by denying his motion for summary judgment because any negligent acts on his part were discretionary and because there was insufficient evidence that his acts proximately caused Pearce’s death. For the reasons that follow, we reverse.
To prevail at summary judgment under
OCGA § 9-11-56 , the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.2
On appeal from a denial of a motion for summary judgment, we conduct a de novo review of the evidence.3
So viewed, the evidence shows that Pearce suffered from major depressive disorder. On Sunday, October 26, 2008, Hugh Harrison, Pearce’s pastor at the People’s Liberty Baptist Church, noticed that something was bothering Pearce. Pearce told Harrison that Harrison had been a good friend to him, and Harrison thought it was odd that Pearce used the past tense.
Later that night, at around 9:45, Pearce rang the doorbell at Harrison’s home. Harrison looked out of the peephole, and when he observed that Pearce was holding a gun, Harrison retrieved and loaded his own gun. Meanwhile, Harrison’s wife called 911 and reported that Pearce had a gun and was possibly on medication. A few minutes later, Pearce again rang the doorbell of Harrison’s home and knocked on the door with the butt of his gun.
At approximately 10:15 p.m., Officer Tucker and Officer Tomlinson arrived at Harrison’s home in response to the 911 call. Pearce was walking down Harrison’s driveway toward the officers as they arrived. The officers stopped their cars, got out, and approached Pearce, who had tucked his gun in the back of his waistband. The officers then drew their weapons. On Officer Tucker’s orders, Pearce put up his hands and got down on his knees, and Officer Tomlinson took Pearce’s gun. Officer Tucker handcuffed Pearce, and the officers placed Pearce in the back of Officer Tucker’s patrol car. Other than indicating that his shoulder hurt, Pearce did not say anything to the officers, and he had a blank look on his face. Pearce was cooperative, but his silence and “weird look” struck Officer Tucker as odd.
While still at the Harrisons’ residence, Officer Tomlinson retrieved Pearce’s driver’s license, which was wrapped in two notes. The first note read, “Tammy and kids, [not]
After placing Pearce in the car, the officers went inside the Harrisons’ house. Harrison told the officers that Pearce was not acting like himself at church that day or evening and that Pearce seemed upset. Harrison also told police that Pearce had previously been in prison. Officer Tomlinson recalled that Harrison told him that Pearce “had been suffering from problems with his shoulder and had been in a lot of pain.” Harrison did not mention that Pearce might have been on medication,4 nor did he indicate any concern regarding Pearce’s mental health.
Officer Tomlinson called ahead to Glynn County Police Department headquarters and requested a criminal history report on Pearce to determine whether Pearce was a convicted felon. Officer Tucker then transported Pearce to police headquarters to detain him there pending a review of his criminal history.
When Officer Tucker arrived at headquarters shortly before 11:00 p.m., he got Pearce out of the car and walked him inside. Pursuant to standard procedure and not because of any concerns regarding the possibility of Pearce harming himself, Officer Tucker had Pearce remove his shoes, belt, tie, and the contents of his pockets. Officer Tucker then patted down Pearce and placed him in a holding cell, which contained a video camera. Officer Tucker advised dispatch that there was a detainee in the holding cell so that dispatch could monitor the cell through the connected video feed.
Officer Tucker also filled out a holding cell property receipt for Pearce’s personal property and had Pearce sign the receipt, which was stapled to a holding cell medical screening form that, pursuant to police department policy, officers were required to complete prior to placing an individual in a holding cell.5 The form was not completed, nor was it submitted to the on-duty supervisor, as required by police department policy. According to Officer Tucker, who was responsible for completing the medical screening form, he forgot to do so for Pearce.6 Officer Tucker later testified, however, that he did not believe that Pearce “was in any danger of hurting himself.” Instead, based upon his observations of Pearce, including his possession of a gun and the Harrisons’ statements to police, Officer Tucker believed that Pearce had gone to the Harrisons’ home to inflict harm upon them.
After leaving Pearce in the holding cell at approximately 10:54 p.m., Officer Tucker went to his sergeant’s office, where he was joined by Officer Tomlinson. At 11:01 p.m., another officer checked on Pearce, who appeared to be fine. At approximately 11:15 p.m., Officer Tomlinson left the sergeant’s office and discovered Pearce in the corner of
On appeal, Officer Tucker argues that the trial court erred by denying his motion for summary judgment on the ground of official immunity and because there was insufficient evidence that his acts proximately caused Pearce’s death. Pretermitting whether official immunity bars the plaintiff’s claims against Officer Tucker, the trial court erred by denying him summary judgment because there is no justiciable issue of causation.
The issue here is whether Officer Tucker’s failure to medically screen Pearce “was the proximate cause of [Pearce’s] suicide or whether the suicide was an unforeseeable act that was not caused by [Officer Tucker’s] failure to [act].”7
From a legal point of view, proximate cause means that the suicide must have been a foreseeable result of the negligence of the tortfeasor. Negligence is not actionable unless it is the proximate cause of the injury. A wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. Generally, suicide is an unforeseeable intervening cause of death which absolves the tortfeasor of liability. Although, there is an exception to this general rule: Where the tortfeasor’s wrongful act causes the injured party to kill himself during a rage or frenzy, or in response to an uncontrollable impulse, the wrongful act is considered to be the proximate cause of the suicide.8
In Harvey v. Nichols, the plaintiff filed a wrongful death action against the sheriff, the jail manager, and two detention officers after 17-year-old Thomas Reagin hanged himself with a bed sheet in a holding cell.9 During booking, Reagin revealed that he had “some” psychiatric problems as a child and had undergone anger management, but according to a county officer,
Reagin did not appear to be a danger either to himself or others, and ... he gave no indication of unusual behavior. However, because of Reagin’s age and the seriousness of the crime with which he was charged, [the officer] wrote on the intake form that Reagin should be placed in an observation cell “due to high risk.”10
Later, after meeting with Reagin for 30 to 45 minutes, reviewing the nurse’s notes, and speaking with a detective regarding his impressions of Reagin, the jail manager reassigned him from an observation cell to a holding cell at approximately 4:00 p.m.11 Detention Officers Ledford and Gardner were responsible for monitoring the holding cells.12 There was conflicting evidence regarding whether Ledford and Gardner took Reagin his dinner at 5:30 p.m. or 7:30 p.m., and although Ledford claimed to have checked on Reagin between 8:00 p.m. or 8:15 p.m, there
We concluded that “[t]he actions of Ledford and Gardner, dictated as they were by established procedure and requiring merely the execution of a specific duty, were ministerial in nature,” and because there was some evidence that they failed to monitor Reagin “on a regular basis and were thus negligent in performing their duties, ... the trial court erred [by] granting summary judgment to [them] on official immunity grounds.”15 We also concluded, however, that
there was no evidence that Reagin’s suicide was a probable consequence of the detention officers’ failure to monitor his cell. All of the jail personnel who encountered Reagin testified that he acted in a normal fashion, was outgoing and under control, and readily spoke with the officers. Nothing about his behavior suggested anything out of the ordinary or that he might be a danger to himself. Reagin was not placed on suicide watch. Nothing in the record before this Court suggests that, if the surveillance protocol had been followed, Reagin would not have been able to take his own life. Any assertion that Reagin’s attempt at suicide would have been unsuccessful if procedure had been followed is pure speculation.16
Accordingly, we affirmed the grant of summary judgment to Ledford and Gardner because “as a matter of law,” their “failure ... to observe Reagin on a regular basis was not the proximate cause of Reagin’s [suicide].”17
Here, as in Harvey, “[t]here is no evidence that [Pearce] was in a rage or frenzy or had an uncontrollable impulse when he took his life. On the contrary, [Pearce] was calm and controlled and appear[ed] to have known what he was doing.”18 Accordingly, the exception does not apply, leaving the general rule regarding suicide and proximate cause that “suicide is an unforeseeable intervening cause of death which absolves [Officer Tucker] of liability.”19 Viewed in favor of the plaintiff, there is no evidence that Pearce would have been unable to commit suicide if Officer Tucker had medically screened him before placing him in the holding cell. The plaintiff’s argument that during such a screening Pearce would have offered information or acted in a manner indicating that he was a suicide risk or that Officer Tucker would have concluded that Pearce was a suicide risk is purely speculative.20 And “uninformed speculation[,] which raises merely a conjecture or possibility[,] is not sufficient to create even an inference of fact for consideration on summary judgment.”21 Pearce’s suicide was an unforeseeable intervening act for which Officer Tucker was not liable, and therefore, the trial court erred by denying Officer Tucker’s motion for summary judgment.22
Judgment reversed. Phipps, C. J., Andrews, P. J., Ellington, P. J., Dillard and McMillian, JJ., concur. Miller, J., dissents.
TUCKER v. PEARCE et al.
A14A2105
Court of Appeals of Georgia
March 30, 2015
771 SE2d 495
MILLER, Judge, dissenting.
To prevail at summary judgment under
On the night of Sunday, October 26, 2008, Christopher Pearce went to his pastor’s home with a gun. The pastor had noticed that something was bothering Pearce earlier that day at church service. Obviously concerned, the pastor called 911, and Glynn County Police Department Officers Tucker and Tomlinson responded and took Pearce into custody and down to the police station. Less than an hour after being taken to the police station and having been placed in a holding cell, Pearce was dead.
Police officers’ discretionary actions are covered by official immunity. See McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009). This protection is essential so that they can confidently and expeditiously do their jobs. Police officers, however, have certain routine acts that are ministerial in nature. See id. (a ministerial act is one that is simple, absolute, and definite, requiring merely the execution of a specific duty). These acts are part of the routine duties that police officers are trained to perform each and every day. After taking someone into custody and placing him in a holding cell, Glynn County Police Department officers must, among other things, inquire into a detainee’s health, fill out a medical screening form and submit the completed form to their on-duty supervisor. Glynn County Police Department Order 22.16.3 (E) provides:
The officer must fill out the screening form noting and inquiring as to: 1. The current health of the detainee[;] 2. Medications taken by detainee[;] 3. Behavior, including state of consciousness and mental status[;] and 4. Body deformities, trauma markings, bruises, lesions, ease of movement, etc.
The majority does not address the threshold issue of official immunity. The acts of inquiring into the detainee’s health, completing the medical screening form and giving the form to the on-duty supervisor were simple, absolute, definite, and mandatory acts, governed by clear Department policies and procedures. These were unquestionably ministerial acts.23
Viewing the record in the light most favorable to Pearce, there were numerous red flags that would have alerted a reasonable person that Pearce was suicidal.24 In this case, Pearce went to his pastor’s home with a gun; Pearce was carrying two suicide notes, stating that he was in too much pain and seeking forgiveness; it was reported to police that Pearce was possibly on medication; and Officer Tucker undeniably knew that Pearce was acting abnormally.25 Despite all
Contrary to the majority’s contention that the policy did not require Officer Tucker to talk to Pearce before completing the medical screening form, the policy specifically states that the officer must “inquire” as to the detainee’s health, behavior, medications, and markings. An inquiry is required by both the form and the policy on its face.26 Here, there is no evidence that the officers investigated, inquired into or asked about any of these factors. Inquiring into Pearce’s health could have revealed his suicidal intentions.
The department’s medical screening policy is in place specifically to determine whether a person being detained has any physical or emotional problems that need medical attention. Given all the evidence in this case, Officer Tucker’s failure to fulfill his ministerial acts raises genuine issues of material fact for the jury as to whether Officer Tucker was negligent and whether the simple acts of inquiring into Pearce’s health, completing the medical screening form and notifying the on-duty supervisor would have alerted the officers to provide some care that could have prevented Pearce’s death. See Meagher v. Quick, 264 Ga. App. 639, 644 (1) (594 SE2d 182) (2003) (where officers failed to fulfill the ministerial duty of completing a report, there was a genuine issue of material fact as to whether their failure to do so resulted in a child’s death).
The majority’s assertion that Pearce’s theory of causation is speculative and that the medical screening would not have revealed that Pearce was suicidal is misguided. This is not a plain and undisputed case where this Court can say, as a matter of law, that Pearce’s suicide could not have been prevented. It is not for this Court to usurp the place of the jury and determine causation. See Ogletree v. Navistar Intl. Transp. Corp., 245 Ga. App. 1, 3 (1) (535 SE2d 545) (2000) (issues of causation are for the jury to resolve and should only be determined as a matter of law in plain and undisputed cases). Harvey v. Nichols, which the majority relies upon, is not this case, on the facts or the law.27 Moreover, Georgia has rejected the notion that suicide is per se an intervening act. See Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 116 (3) (b) (372 SE2d 265) (1988).
Officers cannot ensure the safety of everyone in custody, and this case will not open the floodgates of litigation against them. Officers can, however, ascertain whether a detainee is at risk and take the necessary precautions. Public safety cannot stop at the jail house door, and police officers are not free to ignore the clear and specific requirements mandated by their department’s policies and procedures. Contrary to the majority’s opinion, this suicide might have been prevented if Officer Tucker had fulfilled his simple ministerial acts, which were intended to prevent exactly the type of harm that occurred here. Accordingly, this case cries out for a closer look by a jury.
DECIDED MARCH 30, 2015 —
RECONSIDERATION DENIED APRIL 14, 2015 —
Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry Readdick, Richard K. Strickland, Steven Blackerby, Aaron W. Mumford, for appellant.
Bowen Painter, W. Andrew Bowen, Paul W. Painter III; Brennan Wasden & Painter, W. Richard Dekle, for appellees.