Reconsideration denied March 12, 2015 -- Cert. applied for.
Official immunity. Floyd Superior Court. Before Judge Niedrach.
Womack, Gottlieb & Rodham, Ronald R. Womack, Steven M. Rodham, McRae, Stegall, Peek, Harman, Smith & Manning, Thomas H. Manning, for appellant.
Perrotta & Cahn, Robert W. Lamb, for appellees.
Andrews, Presiding Judge.
Carl Pauley was killed when the vehicle he was driving collided with a horse that strayed onto Highway 27 in Floyd County. Pauley's surviving spouse, Christine Pauley, acting individually and as administratrix of her husband's estate, brought wrongful death and survival claims against David Williams, a police officer employed by the Floyd County Police Department. Ms. Pauley's suit was brought against Officer Williams in his individual capacity, and sought to impose personal liability on Officer Williams on the basis that, while acting as a police officer responding to the stray horse on the highway, he negligently failed to remove the horse from the highway, and that [331 Ga.App. 130] this negligence caused the fatal accident. Asserting " official immunity" from these claims, Officer Williams moved for summary judgment, the trial court denied the motion, and Officer Williams appeals. For the following reasons, we find the suit was barred by " official immunity," and reverse.
The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee's independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.
Cameron v. Lang, 274 Ga. 122, 123 (549 S.E.2d 341) (2001) (citations and punctuation omitted); Gilbert v. Richardson, 264 Ga. 744, 750-753 (452 S.E.2d 476) (1994). Official immunity, which usually is a question of law, is an entitlement not to stand trial rather than a mere defense to liability. Cameron, 274 Ga. at 124. Thus, as a county law enforcement officer, Officer Williams is entitled to official immunity for the negligent performance of discretionary acts within the scope of his authority as an officer; he may be personally liable if he negligently performed a ministerial act or acted with actual malice or an intent to injure when performing a discretionary act. Cameron, 274 Ga. at 125-126; Phillips v. Hanse, 281 Ga. 133, 133 (637 S.E.2d 11) (2006). Because Ms. Pauley does not claim that Officer Williams acted with actual malice or an intent to injure, the issue is whether the alleged negligence involved discretionary or ministerial action.
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must [331 Ga.App. 131] be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.
Banks v. Happoldt, 271 Ga.App. 146, 149 (608 S.E.2d 741) (2004) (citations and punctuation omitted).
The record shows that, on the morning of the fatal accident, Officer Williams responded to a Floyd County 911 call that a horse was loose on Highway 27. The officer's police cruiser was equipped with a video camera that was activated and recorded events and time. After arriving on the scene, the officer located the horse in the median of the highway at about 4:38 a.m. The officer left the scene briefly, returned at about 4:57 a.m.,
spotted the horse in the roadway, and followed the horse in his cruiser with blue lights activated for a few minutes until about 5:00 a.m. The officer testified that every time he got near the horse in his cruiser the horse " took off." At about 5:03 a.m., the officer exited his cruiser, approached the horse on foot, and was able to get hold of the horse by its halter. The horse was wearing a halter without a lead rope. At about 5:05 a.m., the officer walked back to the cruiser leading the horse by the halter. At that point, with the horse in the median of the highway, the officer called police dispatch, and reported to his supervisor that he was having difficulty controlling the horse, was concerned about leaving the horse because it might run into the road, and asked for advice. The officer's supervisor told him that, if he left the horse, he should first lead the horse as far off the roadway as he could. The ...