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City of Atlanta v. McCrary

Court of Appeals of Georgia

July 16, 2014

CITY OF ATLANTA
v.
McCRARY et al. CITY OF ATLANTA
v.
MERSIER

Reconsiderations denied July 31, 2014 -- Cert. applied for.

Page 697

Nuisance. Fulton Superior Court. Before Judge Campbell.

Cathy Hampton, Laura S. Burton, Seth R. Eisenberg, for appellant.

Morriss & Shim, Bruce F. Morriss, Daniel Shim, for appellees (case no. A14A0602).

W. Bryant Green III, Sandra F. Lekan, for appellee (case no. A14A0691).

RAY, Judge. Andrews, P. J., Barnes, P. J., Doyle, P. J., Boggs and Branch, JJ., concur. McFadden, J., dissents.

OPINION

Page 698

Ray, Judge.

We granted interlocutory review to the City of Atlanta (the " City" ) following the trial court's denial of its motion for summary judgment in two tort actions related to a deadly collision that occurred after a high-speed police chase. The City asserted sovereign immunity. However, the trial court concluded that fact questions existed as to whether the City maintained a nuisance by, inter alia, failing to enforce its own high-speed pursuit policy. The City contends that the trial court erred in determining that a nuisance theory could apply in the context of police pursuit cases and in finding that there were fact questions as to the existence of a nuisance. Finding error, we reverse.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together [328 Ga.App. 747] with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). If a movant who does not bear the burden of proof at trial notes the absence of evidence to support an essential element of the respondent's case, the respondent must then identify evidence in the record giving rise to a triable issue. We review a trial court's grant of summary judgment de novo, construing the evidence and reasonable inferences in favor of the nonmoving party.

(Footnote omitted.) City of Atlanta v. Shavers, 326 Ga.App. 95, 95 (756 S.E.2d 204) (2014).

The evidence shows that Nicholas Dimauro and his patrol partner, both officers with the Atlanta Police Department's (" APD" ) Auto Theft Task Force, were on patrol on the night of January 24, 2008, when they noticed a car with an improperly completed drive-out tag. Dimauro turned on his siren and lights, and followed the vehicle. Samuel Knight, the driver of the vehicle, did not stop but instead accelerated, and Dimauro gave chase.

Dimauro deposed that he soon determined that he did not have the legal basis under APD's high-speed chase policy either to have initiated or to continue the pursuit, and he terminated the chase by turning off his lights and siren and decreasing his speed. He lost sight of Knight's vehicle. Knight, by contrast, stated in an affidavit that he never lost sight of the police vehicle or its flashing lights. Dimauro deposed that he continued driving and that, about a mile after terminating pursuit, he came upon the site of a two-vehicle accident. He recognized the vehicle Knight had been driving. Knight had crashed head-on into a car driven by Eric McCrary. The collision killed McCrary and Knight's passenger, Shericka Hill.

The APD policy governing high-speed pursuits that was in effect in 2008, APD Standard Operating Procedure 3050 (" SOP 3050" ), provided that an officer could initiate a high-speed pursuit only if (1) the suspect in the fleeing vehicle possessed a deadly weapon; (2) the officer reasonably believed that the suspect posed an immediate threat of physical violence to the officer or others; or (3) there was probable cause to believe that the suspect had committed a crime involving actual or threatened physical harm. The APD conducted an internal investigation, but did not discipline Dimauro because it found that he had terminated the pursuit in compliance with the policy.

Lora Mersier, the administratrix of Hill's estate, and Ernestine McCrary, the administratrix of Eric McCrary's estate, sued the City [328 Ga.App. 748] and Dimauro in his official capacity. They alleged that Dimauro and the City were negligent; that Dimauro's decision to initiate a high-speed chase under the circumstances violated APD's high-speed pursuit policy; and that the City had maintained a nuisance that endangered the public by failing to enforce its pursuit policy and by failing to train and supervise its officers under the pursuit policy.

The City and Dimauro moved for summary judgment. The City acknowledged that it had waived sovereign immunity up to $700,000 based on Dimauro's negligent use of a covered motor vehicle pursuant to OCGA ...


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