Waiver of Sovereign Immunity in Pedestrian Accident Sent Back to Court of Appeals
A Georgia motorist was struck by a car driven by a suspect fleeing from the police, causing her to suffer major injuries. After she filed a negligence suit against the City of Roswell, the City moved for summary judgment on sovereign immunity grounds. The trial court denied the motion after concluding that issues of fact remained as to whether the City waived sovereign immunity under O.C.G.A. § 33-24-51(b) through its law enforcement officers’ “use of a vehicle.” The City appealed, and the Court of Appeals reversed, concluding that the plaintiff’ claims didn’t arise from the City’s use of a vehicle.
On certiorari, the Supreme Court of Georgia vacated the previous decision of the Court of Appeals and remanded the case for that court to consider the case in light of its recent decision in McBrayer v. Scarbrough (2023). That case overruled the Court of Appeals’ prior opinion in this dispute and many of the decisions upon which it relied. The Supreme Court held that by reading into O.C.G.A. § 33-24-51(b) and O.C.G.A. § 36-92-2(a) the terms “actively as a vehicle,” the Georgia Court of Appeals changed the plain meaning of “use” and restricted the scope of the local government’s waiver of sovereign immunity. As a result, the Supreme Court held that the use of a motor vehicle as provided in O.C.G.A. §§ 33-24-51(b) and 36-92-2 was not limited by the terms actively in use as a vehicle as to which sovereign immunity is waived under O.C.G.A. §§ 33-24-51(b) and 36-92-2.
Background
In March 2015, Roswell police were engaged in a vehicle pursuit of a suspect fleeing after committing a home invasion. A police officer was driving his patrol car when he learned of the high-speed pursuit in progress. He realized that the pursuit was heading his way, so he drove to a nearby intersection ahead of the chase, parked and exited his patrol car, and git the Stop Sticks from the trunk of his patrol car. While standing behind his car, he deployed the Stop Sticks on the road. The suspect swerved to avoid the Stop Sticks and lost control of his car, striking the plaintiff, who was walking on the sidewalk. As a result, the plaintiff sustained multiple permanent injuries to her head, neck, and leg, and she also suffered permanent memory loss.
The plaintiff sued the City, asserting that the police officer was negligent in his use of his patrol car and that sovereign immunity was thus waived in accordance with O.C.G.A. § 33-24-51. The trial court denied the City’s motion for summary judgment, finding that issues of fact remained as to whether the officer’s efforts to assist in the chase by using his patrol car to drive to the intersection, his use of the police car to monitor the chase on his radio, his use of the Stop Sticks mounted in the police car’s trunk, and his deployment of the Stop Sticks while standing behind the police car constituted “use” of the police car for purposes of waiving sovereign immunity. The Court of Appeals granted the City’s application for review of this ruling.
Application of McBrayer
In light of McBrayer, Presiding Judge M. Yvette Miller said there was little question that all of the alleged acts constituted the “use” of a vehicle as contemplated by O.C.G.A. § 33-24-51(b). However, the more problematic question was whether the plaintiff’s losses arose out of any allegedly negligent use of the officer’s police car.
In pertinent part, O.C.G.A. § 33-24-51(b) waives the sovereign immunity of local government entities for losses “arising out of claims for the negligent use of a covered motor vehicle.” In previous decisions, the Court of Appeals interpreted this phrase to only waive sovereign immunity for claims where the covered vehicle was actively in use “as a vehicle.”
In McBrayer, the Supreme Court of Georgia rejected this narrow reading of the phrase. The Supreme Court noted the definition of the word “use” as “being employed or put into action or service,” and it noted that the statutory language didn’t limit the definition of “use” to include only uses of a motor vehicle for mere transportation.
Judge Miller said that considering the facts presented in McBrayer, the Supreme Court concluded that the police officers “used” a police car when they loaded a plaintiff into the car and restrained him there, even though the car wasn’t in motion or operational at the time. In doing so, the Supreme Court overruled the Court of Appeals’ prior precedent limiting the definition of “use,” which included its prior opinion in this case as well as many cases upon which it relied in its prior opinion in this case.
Was Immunity Waived?
Judge Miller and the Court of Appeals concluded that the officer’s use of his patrol car to assist the pursuit, follow the pursuit on his radio, and drive to the intersection is too attenuated and remote from the plaintiff’s harm to waive immunity. Additionally, the Court noted that the statute requires a showing of the negligent use of a covered motor vehicle to provide for a waiver of county sovereign immunity. “Negligent” is generally defined as “inattentive to what ought to be done; failing to take proper, necessary, or reasonable care, and characterized by or displaying carelessness.” Here, the plaintiff didn’t argue that the officer was in any way “careless” when he used his vehicle to follow the pursuit on his radio and drive to the scene of the incident.
In addition, the Court of Appeals concluded that the officer’s storage of the Stop Sticks in his car’s trunk also didn’t give rise to a waiver of sovereign immunity. A claim based on an allegedly negligent use of safety equipment simply didn’t “arise” from the use of a vehicle to merely store that equipment.
The Court couldn’t say that the plaintiff’ injuries “arose out of” the mere fact that the Stop Sticks were stored in the car. Therefore, this case was distinguishable from the situation in McBrayer, where the officers’ use of the vehicle to detain the plaintiff was a direct contributing factor to the plaintiff’s death.
Here, the fact that the officer was standing behind the parked car when he deployed the Stop Sticks presented a very close question, Judge Miller observed; however, the court ultimately concluded that on these facts this wasn’t an action that would waive sovereign immunity. The critical fact was that it was clear that the officer parked his car on the side of the road, not in the road. As such, the car wasn’t “used” as part of a blockade to stop the fleeing suspect or divert him onto the sidewalk where the plaintiff was. The record was also clear that the fleeing suspect swerved to avoid the Stop Sticks, not the police car. The presence of the police car at the scene didn’t play a role in causing the actual accident that caused the plaintiff’s injuries, Judge Miller concluded.
Accordingly, the Court of Appeals held that the plaintiff’s claims didn’t arise from any alleged negligent use of the officer’s patrol car. As a consequence, the trial court’s denial of summary judgment on sovereign immunity grounds was reversed. City of Roswell v. Hernandez-Flores, 2024 Ga. App. LEXIS 453 (Ga. App. October 31, 2024).
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