NEW MOTOR VEHICLE TORT CLAIMS ACT

I.          INTRODUCTION

A.        Defensible Pursuit  v. Indefensible Pursuit

Officer Good Guy is dispatched to the scene of an attempted robbery.   Upon arrival, Good Guy is confronted by Joe Convict who fires a weapon in Good Guy's direction.   As Convict gets in his car and speeds away, Good Guy sees two people lying on the ground with obvious gunshot wounds.   Good Guy gets in his vehicle and gives chase notifying his Supervisor over police radio that he is involved in a pursuit and is requesting assistance.   Good Guy remains at least five car lengths behind Convict with his blue flashing lights and siren engaged.  Convict runs a red light and smashes into Betty Innocent who dies as a result of the collision.

In such circumstances, the tragic death of Ms. Innocent is unlikely to result in a successful civil claim against either Officer Good Guy or the governmental entity for whom he is employed.  There was a clear and present danger to the safety of the public presented by Convict's actions and it was entirely consistent with proper police procedures to pursue Convict and to do so in a reasonable and prudent manner.

Alternatively, let us assume that Officer Fast and Loose, while eating his last doughnut of the morning, sees a vehicle drive past him which has an expired tag decal.  When Fast and Loose gets into his vehicle and motions for the driver to pull over, the driver, Joe Misdemeanor, pulls away at a high rate of speed.  Although Fast and Loose has noted the tag number of the vehicle and quickly confirms Joe's identity, he gives chase in a residential neighborhood where children are walking home from school. 

Both vehicles reach speeds up to a 100 mph with Fast and Loose's vehicle traveling within twenty feet of Joe's rear bumper.  Numerous traffic signals and stop signs are ignored both by drivers.  Over the radio, Captain Cautious directs Fast and Loose to call off the chase now that the driver has been identified but the Captain's command is ignored.   Fast and Loose engages his flashing lights but does not turn on his siren.  The City of Liability, Fast and Loose's employer,  has a written policy providing that officers not give chase in situations where only a minor traffic violation is involved.  As they are approaching a park and recreational area, Joe loses control of his vehicle and crashes into a group of school children, causing several deaths and injuries.

This latter scenario may well lead to a successful civil claim although, as we will see, one which will likely succeed only as against the City of Liability.   As a general rule, the officer retains immunity in such circumstances based upon his “discretionary” decision to initiate the pursuit.  Despite his personal immunity, where Fast and Loose's conduct can be equated with “reckless disregard for proper police procedures,” the City can be liable provided there exists automobile liability insurance which applies to the loss.  The City's liability is confined to the limits of such insurance coverage.

Was there justification to engage in a high-speed pursuit in a residential area where the only information available to the officer was that the individual being pursued had an expired tag?  After the individual had been identified by virtue of his tag number, what benefit was to be gained from the pursuit as contrasted with the obvious danger to the public which the pursuit would entail?  Once the chase reached an excessive rate of speed, should Officer Fast and Loose have terminated the pursuit?  What is the legal effect to be given to the Supervisor's directive to terminate the pursuit?  What legal effect is to be given to Fast and Loose's decision not to use his siren?  How is the liability issue affected by the City's written policy prohibiting pursuits for minor traffic violations?   Would the analysis change if it was Joe Misdemeanor who was injured rather than innocent bystanders?  Those are but a few of the questions we will try to answer in this survey of the current state of the law in Georgia surrounding police pursuits.

B.      The Scope of the Problem

It is estimated that the number of deaths arising from police pursuits far exceeds the number of deaths caused each year by any other police activity. Albert, The Constitutional Implications of High-Speed Pursuits under Substantive Due Process Analysis:  Homeward Through the Haze, 27 U. Mem. L. Rev. 599, 600 (1997).   While researchers are beginning to accumulate significant, high-quality data on the subject, the studies to date have been limited to single-agency information or studies from multiple agencies with restricted data.  Owens, The Inherent Constitutionality of the Police Use of Deadly Force to Stop Dangerous Pursuits, 52 Mercer L. Rev. 1599, 1603 (2001). 

What has been extrapolated from the available data is that the rate of accidents arising from police pursuits ranges between 29% and 70% and that  injuries arising from such accidents, including death, occur in 11% to 27% of such cases.  Racines, Constitutional Law–To Chase or Not to Chase: What “Shocks the Conscience” in High-Speed Police Pursuits?  73 Temp. L. Rev. 413 (2000).  It has been reported by the National Highway Safety Traffic Administration that 5,306 deaths  occurred in pursuit cases over the past 16 years and that between 45% and 70% of all pursuits were initiated over traffic violations of one kind or another.  See Brief of Amicus Curiae, The Association of Trial Lawyers of America in Support of Respondents in County of Sacramento v. Lewis, available at 1997 WL 610592, and Avery, Police Chases: More Deadly than a Speeding Bullet?, Trial, Dec. 1997, n.1, p.52 (footnotes omitted).

Although many police officers serve an entire career without firing a weapon at anyone, almost every officer can expect to be involved in a police pursuit.   Deaths and serious injuries resulting from police vehicle accidents have been exposed recently to considerable publicity in the media.   The public is exposed almost daily to a local news broadcasts providing live coverage of a police pursuit in progress.  The focus of current “reality-based” television programming on daring escapes from police capture has served to heighten the interest of public agencies, media representatives, and private citizen groups.  This new focus of attention on police pursuits has led to reform in the policies, training and supervision of pursuit driving and has resulted in legislative enactments throughout the country, including here in Georgia. 

The subject of police pursuits poses vexing questions for state legislators and the judiciary who seek to balance the need for police authorities to apprehend criminals who seek to elude police capture with the often competing goal of protecting the public from the inherent risks associated with such activities.  Recent pronouncements on this subject by the United States Supreme Court, the Supreme Court of Georgia and the Georgia Legislature highlight the importance placed on achieving the balance necessary to accommodate these potentially competing interests. 

Injuries and deaths inflicted upon innocent third parties have led some to argue that police pursuits should never be undertaken when the offense involved is a minor crime or simple traffic violation.   Jenson, Note, Cooling the Hot Pursuit: Toward a Categorical Approach, 73 Ind. L. J. 1277, 1278 (1998).    Others have argued for a higher degree of police liability for damage and injuries resulting from police pursuits.  Finarelli, High-Speed Police Chases in Section 1983: Why a Definitive Liability Standard May Not Matter, 66 Def. Couns. J. 238, 246 (1999).   Legislative and judicial attempts to develop a comprehensive set of rules to address the myriad of factual scenarios which can arise from vehicle pursuits have generally been flawed.  As a result, new appellate decisions lead directly to new legislation requiring further interpretation by the court system.    To suggest that House Bill 1128 provides all of the answers is to ignore the complexity of the problem.

C.  Statement of the Issue

It would appear that when an individual flees unlawfully from the police, there exists justification for the authorities to pursue and apprehend such individual.   One cannot fathom that it would be appropriate to advise those who would disobey the law that all they need to do to avoid police capture is to drive off in their vehicle at high speed ignoring police commands to stop.  On the other hand, the safety of the public should not be jeopardized where other reasonable alternatives to pursuit can be utilized to bring such criminals to justice.   Civil liability for police pursuits must be structured to accommodate these competing social goals, providing police with the appropriate latitude to eliminate lawless behavior but without unreasonably endangering the public.

This memorandum will explore the civil liability aspects of police pursuits in the federal and state contexts.   Current and prior appellate case law in Georgia will be reviewed as well as House Bill 1128, a recently-enacted statutory effort at reform by the Georgia Legislature to address the police pursuit issue. Whether this new legislation will provide certainty to the process or simply add to the confusion remains to be seen.

II.       FEDERAL CLAIMS ARISING FROM POLICE PURSUITS

A.  Application of 42 U.S.C. § 1983 in Pursuit Cases

One might logically inquire how the Constitution of the United States is implicated when there is a police pursuit resulting in injury, either to the would-be escapee or to an innocent bystander.  Any such analysis must begin with 42 U.S.C. § 1983 which provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage...subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress.

The specific provisions of the United States Constitution which might have application in a police pursuit case are the Fourth Amendment's prohibition against unreasonable seizures and the Fourteenth Amendment's prohibition against deprivations of life, liberty and property without due process.   It is the substantive aspect of due process which is implicated in pursuit cases. Lewis v. County of Sacramento, 523 U.S. 833, 838,118 S.Ct. 1708, 1713 (1998).

Generally speaking, Fourth Amendment claims can be predicated on negligence alone whereas substantive due process claims typically require a higher standard of liability sometimes described as gross negligence, deliberate indifference, recklessness or wanton and willful misconduct.  Compare Albright v. Oliver, 51 U.S. 266, 114 S.Ct. 807 (1994) with the discussion in Lewis, supra at 839-40.  The Circuit Courts of Appeal  have struggled mightily to reach consensus on the applicable standard for assessing  substantive due process claims, particularly in the area of police pursuits.  Albert, supra at 627-656.

B.  Lewis v. County of Sacramento

In Lewis, supra, the United States Supreme Court  resolved a split between the Circuit Courts of Appeal confirming that the proper standard for liability in police pursuit cases is to be determined solely by reference to the Due Process Clause of the Fourteenth Amendment.   Lewis at 833.  In such circumstances, liability can only attach where there exists a “purpose to cause harm unrelated to the legitimate object of arrest.”  Id. at 836, 854.  In the words of the Lewis Court, “the element of arbitrary conduct shocking to the conscience, necessary for a due process violation” is fulfilled only under circumstances where such intent exists.  Id. at 836. 

The factual scenario presented in Lewis is as follows.  James Everett Smith, a Sacramento County Sheriff's Deputy, along with fellow Deputy Murray Stapp, responded to a call to break up a fight.  Upon returning to his patrol car, Stapp saw a motorcycle approaching at high speed. The motorcycle was operated by 18-year-old Brian Willard and carried 16-year-old Philip Lewis as a passenger. Neither Willard nor Lewis had anything to do with the fight which prompted the initial call to the police.

Stapp turned on his overhead rotating lights, yelled to the boys to stop, and pulled his patrol car closer to Smith's, attempting to pin the motorcycle in.  Instead of pulling over, Willard slowly maneuvered his motorcycle between the two police cars and sped off.   Smith immediately engaged his emergency lights and siren, made a quick turn and began his pursuit.  For 75 seconds, over a course of 1.3 miles in a residential neighborhood, the motorcycle wove in and out of oncoming traffic, forcing two cars and a bicycle to swerve off of the road. The motorcycle and patrol car reached speeds of up to 100 mph with Smith following at a distance as close as a 100 feet.  It was noted by the Court that at that speed, Stapp would have required 650 feet to bring his vehicle to a stop.

Initially, it was noted that the Due Process Clause of the Fourteenth Amendment was founded on the proposition that individuals must be protected from “arbitrary” actions by the government.  As such, only the most egregious official conduct could be said to be “arbitrary in a constitutional sense.”  Lewis at 846.   Moreover, the cognizable level of executive abuse of power required to support such a claim is that which “shocks the conscience.”  Id.  The Due Process Clause  guarantee did not “entail a body of Constitutional Law imposing liability whenever  someone cloaked with state authority causes harm.” Lewis at 848.   Only conduct “intended to injure in some way” and deemed “unjustifiable by any government interest” would equate with the type of  “official action most likely to rise to the conscience-shocking level.”  Id. at 849.

It was conceded that “[d]eliberate indifference that shocks in one environment may not be so patently egregious in another” cautioning that the specific circumstances of each case must be carefully evaluated in the analysis. Lewis at 850.   Preserving the constitutional proportions of substantive due process demands an exacting analysis of the circumstances of each case before any abusive power could be condemned as “conscience-shocking.”  Because the very term “deliberate indifference” implies a standard that is only sensibly employed when “actual deliberation” is practical, a police officer deciding whether to give chase “must balance on the one hand the need to stop the suspect and show that flight from the law is not way to freedom, and, on the other, the high-speed threat to all those within stopping range, be they suspects, their passengers, other drivers, or bystanders.”  Id. at 853.  Accordingly, pursuits which result in injury but which are undertaken without intent to harm the suspect physically, or to worsen his legal plight, would not give rise to liability under the Fourteenth Amendment.

It was deemed of significance that Officer Smith was faced with a course of lawless behavior for which the police were not to blame. They had done nothing to cause Willard's high speed driving in the first place, nothing to excuse his flaunting of commonly understood law enforcement authority to control traffic, and nothing (beyond a refusal to call off the chase) to encourage Willard to race through traffic at breakneck speed.  Willard's outrageous behavior was practically instantaneous as was Smith's instinctive response:

While prudence would have repressed the reaction, the officer's instinct was to do his job as a law enforcement officer, not to induce Willard's lawlessness, or to terrorize, cause harm or kill. Prudence, that is, was subject to countervailing enforcement considerations, and while Smith exaggerated their demands, there is no reason to believe that they were tainted by an improper or malicious motive on his part.”

Lewis at 855.

Following Lewis, it is unlikely that police pursuit claims will remain a viable option in federal court.  To be held liable, there must be evidence (1) that the officer acted with a “purpose to cause harm unrelated to the legitimate object of arrest,” (2) that he acted with a “specific intent to injure, unjustifiable by any government interest,” and (3) that such conduct “shock the conscience.”  Thus, negligence, gross negligence, deliberate indifference to or reckless disregard for a person's right to life and personal security will not establish a federal claim in the pursuit context.

C.  Is the Door Still Open?

It is important to keep in mind that it was the perpetrator in Lewis who was killed by virtue of the pursuit.  Would the Supreme Court's analysis have been different were an innocent bystander struck and killed by the perpetrator's vehicle or, worse yet, by the officer's vehicle?  The reasoning employed by the Court would suggest that the same standard would apply, however, a definitive answer to such inquiry must await further decisions from the federal courts seeking to apply Lewis in other factual contexts.

III.       STATE LAW CLAIMS ARISING FROM POLICE PURSUITS

A.  Immunity Under the Georgia Constitution

Any review of the law in Georgia relating to police pursuits must begin with an analysis of the doctrines of sovereign and official immunity as provided for in the Georgia Constitution.   Pursuant to Art. 1, Sec. 2, ¶ 9(e) of the Constitution of Georgia, the State's defense of sovereign immunity is extended to include “the state and all of its departments and agencies” unless waived by “[a]n Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.”  Although the Georgia Torts Claims Act provides for such waiver, counties and cities are expressly excluded from the Act's purview.  O.C.G.A. § 50-21-22 (5).  Accordingly, a prospective claimant seeking to avoid  sovereign immunity otherwise available to a county or city must point to a legislative waiver of sovereign immunity which expressly provides for such waiver and the extent of the waiver provided.

Under Art. I, Sec. II, ¶ 9(d), immunity from civil liability extends to “all officers and employees of the state or its departments and agencies,” including police officers, except where injury or damage arises from a “negligent performance of, or negligent failure to perform, their ministerial functions” or “if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” As is discussed more fully below, the willingness of Georgia's appellate courts to view a police officer's decision to “initiate” a pursuit as an “official function” requiring deliberation and judgment has operated to shield police officers from individual liability arising from pursuits.  This is generally true irrespective of whether the officer negligently fails to perform a ministerial function during the pursuit, such as operating his vehicle without blue flashing lights or siren, or acts in direct violation of departmental policy governing pursuits.

B.  The Applicable Georgia Statutes

The next logical step in the analysis is to determine which statutes provide for an express waiver of immunity and the extent of such waiver.   In the context of police pursuits, several statutes have to be considered.  Generally speaking, the existence of automobile liability insurance is the determining factor of whether immunity applies in favor of the county or city for whom the officer engaged in the pursuit is employed.  Even where such insurance exists, however, the standard of liability to be applied for assessing the employer's liability in such cases has only recently been clarified.   See City of Winder v. McDougald, 254 Ga.App. 537, 562 S.E.2d 826 (2002). 

II 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. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation.

II The provisions of this subsection shall apply only to issues of causation and duty and shall not affect the existence or absence of immunity which shall be determined as otherwise provided by law.

6.                  It shall be unlawful for any person to operate an authorized emergency vehicle with flashing lights other than as authorized by subsection (c) of this Code section.

House Bill 1128, which becomes effective January 1, 2005, adds a new subsection (d)(4) as follows:

(4)       Claims arising out of this subsection which are brought against local  government entities, their officers, agents, servants, attorneys, and employees shall be subject to the procedures and limitations contained in Chapter 92 of Title 36.

C.  The Applicable Case Law

Subsection (d)(2) above was added to § 40-6-6 in1995 in direct response to Mixon v. City of Warner Robins, 264 Ga. 385, 444 S.E.2d 761 (1994).  It now seems obvious that some enterprising plaintiff's lawyer would make the argument that use of the term “due regard for the safety of all persons” as used in § 40-6-6(d)(1) mandates the conclusion that an officer who “negligently” causes injury arising from the use of an emergency vehicle in a police pursuit case is liable to the injured party as is the entity for whom the officer is employed.

In Mixon, the surviving spouse of a motorist brought an action against a police officer, city and suspect being chased by the police officer when the motorist was killed in a collision with the suspect's vehicle.  The trial court granted summary judgment for the City of Warner Robins and its police officer which judgment was affirmed by the Georgia Court of Appeals.  209 Ga.App. 414, 434 S.E.2d 71 (1993).    Certiorari was granted by the Georgia Supreme Court which reversed the Court of Appeals and held as follows:  (1) the fact that the officer was performing his professional duty in pursuing suspect did not preclude the imposition of liability; (2) the decision to initiate or continue the pursuit of the suspect could be deemed “negligent” when a high risk of injury to third parties was unreasonable in relation to the governmental interest in apprehending the suspect; and (3) there were genuine issues of material fact which a jury must assess to determine the reasonableness of the officer's conduct.   Mixon at 385.

In so holding, the Mixon Court agreed with the plaintiff that the “due regard” language in § 40-6-6(d)(1) created a negligence standard which typically would require a jury trial.  Confirming that such negligence could be found to be the proximate cause of the death of plaintiff's decedent, the Court framed the issue as follows:

Thus, the officer's avoidance of civil liability cannot derive from the mere intervening flight of the criminal suspect, but it is solely dependent upon the officer's own adherence to his duty to drive with the requisite due regard for the safety of others.  Accordingly, if a vehicular pursuit is undertaken or performed without the requisite due regard for the safety of all persons and an injury occurs as the consequence, the officer can be held civilly liable even though the injury was actually inflicted by the fleeing criminal suspect.  

Mixon at 388. 

§ 40-6-6 was substantially modified by the Georgia Legislature in direct response to Mixon.  Ga. L. 1995, p. 855, § 1.   Although the “due regard” language in subsection (d)(1) was not repealed, subsections (d)(2) and (3), as set forth above, were added to the statute.   If the Legislature had not responded in this fashion, it is likely that every police pursuit case would result in a jury trial.

There have been no less than fifteen Georgia appellate decisions since 1991, six in the past two years alone, which specifically address civil liability for injuries and deaths arising from police pursuits.  It is safe to conclude that the courts have had considerable difficulty articulating a standard of general application in such cases.  Unfortunately, legislative attempts at clarification have likewise presented problems of interpretation by the courts. 

D.  Defining the Standard of Liability

Four appellate decisions rendered  between March 16, 2000 and March 27, 2002 provide considerable insight for the practitioner attempting to analyze liability in a pursuit case involving injury or death.  An examination of these four cases follows below. 

In Williams v. Solomon, 242 Ga. App. 807, 531 S.E.2d 734 (2000), a motorist sued the mayor and alderman of the City of Savannah and a city police officer for injuries sustained in a collision with a patrol car pursuing a fleeing felon suspected of having stolen a vehicle.  There were allegations made that the officer was not using his flashing lights and siren when he struck and injured the plaintiff.  The Court of Appeals initially determined, as had prior cases, that when reviewing a police officer's conduct for purposes of assessing his individual liability in a pursuit case, the officer's decision to engage in the pursuit is to be viewed as a “discretionary” official function for which he has immunity in the absence of an intent to injure or actual malice.    Id. at 808-09. 

E.  The Established Law Prior to House Bill 1128

Viewing the case law from the perspective of local governments and police officials, there are some very positive aspects to the appellate decisions to date.  Thus, it seems clear that police officers are entitled to immunity in virtually every pursuit case unless there exists evidence of an intent to injure or actual malice.  The precise circumstances under which a prospective plaintiff can meet such an evidentiary burden in such cases is perplexing indeed.  Moreover, the rule affording immunity to police officers in such case applies even where the officer fails to utilize his flashing lights and siren or acts in direct violation of departmental policy governing pursuits. 

A second positive aspect of existing case law is that a “negligence” standard will not be applied to assess the liability of the city or county for whom the officer is employed.   Rather, only where the officer acts with “reckless disregard for proper police procedures” can his governmental employer be held liable and only then where an insurance policy otherwise applies to the loss.   A negative implication of the decisional law to date is that an affidavit from an police “expert” offering an opinion that the officer's conduct constituted reckless disregard for proper police procedures will typically require that claims against governmental employers in such circumstances proceed to a trial by jury.

IV.   HOUSE BILL 1128

House Bill 1128 was adopted during the 146^th General Assembly and generally becomes effective January 1, 2005.  Ga. L. 2002, p. 579.  The newspaper accounts of this legislation suggest only that cities and counties must now purchase liability insurance to cover claims arising out of the negligent use their motor vehicles.  In part this is correct.  Thus, beginning January 1, 2005, cities and counties in Georgia are required to purchase and maintain such insurance with minimum limits of coverage as follows:  $100,000 per person/$300,000 aggregate, and $50,000 property damage for incidents occurring on or after January 1, 2005 through and including December 31, 2006.  O.C.G.A. § 36-92-2.  The mandatory coverage limits increase beginning January 1, 2007 to $250,000 per person/$450,000 aggregate/$50,000 property damage.  Beginning January 1, 2008, the limits increase to $500,000 per person, $700,000 aggregate and $50,000 property damage. 

Rather than accomplishing the desirable goal of mandatory insurance coverage alone, the legislation also amends O.C.G.A.  §§ 33-24-51, 36-33-1, and 40-6-6 and creates an entirely new set of statutes found at O.C.G.A. §§ 36-92-1 to -5.   As is the case with any new legislative scheme, many of the doctrines established through prior case law will be subject to re-examination as lawyers create new legal arguments based on the language utilized in House Bill 1128.

O.C.G.A. § 33-24-51 provides for waiver of sovereign immunity for municipal corporations, counties or “other political subdivisions”of the State of Georgia to the extent that such entities, in their discretion, secure and provide insurance coverage for liability on account of bodily injury, death or property damage “arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state.”  As it existed prior to House Bill 1128, subsection (b) of § 33-24-51 provided that where such entities purchase the insurance authorized, “governmental immunity shall be waived to the extent of the amount of insurance so purchased.”   Subsection (c) provided that such entities would be liable for negligence, as provided within the section, “only for damages suffered while the insurance is in force but in no case in an amount exceeding the limits or the coverage of the insurance policy.”  Finally, subsection (d) provided that in the event a verdict is rendered by a jury which exceeds the applicable limits of the policy, the Court “shall reduce the amount of said judgment or award to a sum equal to the applicable limits stated in the insurance policy.”

New Chapter 92 contains five separate statutes which, no doubt, will be subjected to legal interpretation in future cases.  O.C.G.A. § 36-92-1 defines a “claim” as “any demand against a local government entity for money for a loss caused by negligence of a local government entity officer, or employee using a covered motor vehicle while carrying out his or her official duties or employment.”  A “covered” motor vehicle is defined as “any motor vehicle owned by the local government entity” and “any motor vehicle leased or rented by the local government entity.”  Local government entities are defined to mean “counties, municipal corporations or consolidated city-county governments, but specifically do not include a local school system.” 

Subsection (d) of § 36-92-3 provides that settlements or judgments in an action or settlement on a claim brought “pursuant to this chapter” constitute “a complete bar to any further action by the claimant against a local government officer or employee, or the local government entity by reason of the same occurrence.” This subsection is made expressly subject to the provisions of O.C.G.A. § 51-1-32 through § 51-1-34.   It would appear that the res judicata doctrine provides such finality and it is not easily understood why this subsection was necessary.  Finally, subsection (e) of § 36-92-3 provides that the chapter would not “waive the workers' compensation exclusive remedy when local government officers or employees are injured on the job.”

O.C.G.A. § 36-92-4 provides that local governmental entities may provide for payment of claims, settlements and judgments, and their associated costs through “any method including, but not limited to, self-insurance, use of a fund within the local government's budget for payment of claims, the purchase of liability insurance, participation in an inner-local risk management agency¼or a combination thereof.”  Subsection (b) provides that no award for damages under the chapter would include “punitive or exemplary damages.”  Because local governmental entities are entirely immune from punitive or exemplary damages in any event, it is difficult to ascertain why this subsection was necessary. 

Subsection (c) of § 36-92-4 provides that documents and information which would otherwise be protected by the attorney-client privilege or work product doctrine is to be considered “privileged and confidential” and “shall not be subject to disclosure until final disposition of a claim.”  Whether this means that an insurance company's entire claims file is subject to disclosure after “final disposition of the claim” will have to await an appellate decision.  Moreover, this subsection seems to provide additional statutory support for the attorney-client privilege and work product doctrines separate and independent from decided case law to date on the subject. 

Subsection (d) prohibits “execution or levy against the local government entity's property or funds.”  This is likewise a new provision of Georgia law which will, no doubt, be tested by lawyers for plaintiffs and defendants.   Subsection (e) provides that where the local government entity fails to purchase policies of insurance or contracts of indemnity which are required, the fiscal year aggregate liability of any local government entity under the chapter “shall not exceed any self insurance or other reserve or funds established to pay claims arising out of this chapter.”  This subsection appears to be directly in conflict with the waiver provided in O.C.G.A. § 36-92-2.  Assume that the local government entity simply fails to purchase any liability insurance as required by the statute and further fails to establish any “self insurance or other reserve or fund established to pay claims” arising out of the chapter.  Would this mean that the local governmental entity would have no liability to an injured plaintiff?  Rest assured that this argument will be advanced by defense counsel representing local governments.

V.  CONCLUSION        

House Bill 1128 may ultimately create more problems than it resolves.  Existing case law provides some element of certainty with regard to the individual officer's liability as well as the standard of liability for assessing claims against the officer's employer arising from pursuit cases.  Such certainty could be jeopardized by the new legislation's ambitious attempt to cover the waterfront on this subject.  Hopefully, legislative intent will be given effect and this will not occur.  Clearly, police officers must be given broad discretion to apprehend criminals and make our society safe from lawless behavior without fear of civil liability for minor errors in judgment.  Despite this author's personal viewpoint, it is clear that the public debate will continue.

SUMMARY OF GEORGIA APPELLATE
CASE LAW ON POLICE PURSUITS SINCE 1991

1.                  City of Winder v. McDougald, 254 Ga. App. 537, 562 S.E.2d 826 (2002)

See discussion in text.

2.                  Roundtree v. Cloud, 250 Ga. App. 334, 551 S.E.2d 770 (2001)

This case involved a claim by a motorist asserting a negligence claim against the City of Macon, two city police officers and chief of police for injuries sustained by an individual seeking to elude police capture.  The trial court granted summary judgment to the City of Macon, both police officers and the chief which judgment was affirmed based on Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001).

3.                  Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001)

See discussion in text.

4.                  Williams v. Solomon, 242 Ga. App. 807, 531 S.E.2d 734 (2000)

See discussion in text.

5.                  Lang v. Becham, 243 Ga. App. 132, 530 S.E.2d 746 (2000)

See discussion in text.

6.                  Wilson v. City of Atlanta, 223 Ga. App. 144, 476 S.E.2d 892 (1996)

This case involved a claim by a motorist alleging negligence and nuisance claims against the City of Atlanta and a city police officer for injuries sustained when a car driven by a suspect being pursued by the police collided with the motorist during the chase.  The trial court granted summary judgment to all defendants which was affirmed on appeal based on Mixon, supra.  The Court of Appeals determined that the police officer acted with “due regard” for the safety of other drivers as a matter of law and, thus, could not be held liable for negligence. 

7.              Thompson v. Payne, 216 Ga. App. 217, 453 S.E.2d 803 (1995)