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Eshleman v. Key

Supreme Court of Georgia

June 29, 2015

ESHLEMAN
v.
KEY

Page 97

Certiorari to the Court of Appeals of Georgia -- 326 Ga.App. 883.

Hall, Booth, Smith, James H. Fisher II, Denise W. Spitalnick; Laura K. Johnson, Kendric E. Smith, for appellant.

Law Offices of Andrew W. Jones, Andrew W. Jones, M. Chase Swanson, for appellee.

BLACKWELL, Justice. All the Justices concur.

OPINION

Page 98

Blackwell, Justice.

Lynn Eshleman is employed with the DeKalb County Police Department as a law enforcement officer and dog handler, and in [297 Ga. 365] connection with her employment, she is responsible for the care and maintenance of Andor, a police dog trained to assist in the apprehension of persons suspected of criminal activity. When Eshleman is not working, she keeps Andor at her Walton County home, just down the street from the home of Benjamin Key. On November 6, 2011, Eshleman put Andor into a portable kennel outside her home, but she evidently failed to secure the kennel door. As a result, Andor escaped into the neighborhood, where the dog encountered Key's son, then eleven years of age. According to Key, the dog attacked his son, causing the child to sustain serious injuries to his arm. Key sued Eshleman, alleging that she failed to restrain Andor, and Eshleman moved for summary judgment on the ground of official immunity. The trial court denied her motion, Eshleman appealed, and the Court of Appeals affirmed the denial of summary judgment. See Eshleman v. Key, 326 Ga.App. 883 (755 S.E.2d 926) (2014). We issued a writ of certiorari to review the decision of the Court of Appeals, and we now reverse.

1. As a general rule, a county law enforcement officer enjoys official immunity from a lawsuit alleging that she is personally liable in tort for her performance of official functions.[1] See Roper v. Greenway, 294 Ga. 112, 113 (751 S.E.2d 351) (2013). See also Phillips v. Hanse, 281 Ga. 133, 133 (1) (637 S.E.2d 11) (2006); Cameron v. Lang, 274 Ga. 122, 124 (2) (549 S.E.2d 341) (2001); Gilbert v. Richardson, 264 Ga. 744, 752-753 (6) (452 S.E.2d 476) (1994). There are, however, two important exceptions to this rule. First, an officer has no immunity to the extent that she acted with malice or an intent to injure. See Cameron, 274 Ga. at 124 (2). Second, an officer has no immunity for negligence in the performance of a ministerial function. See Roper, 294 Ga. at 113.

As a DeKalb County Police officer and dog handler, Eshleman is responsible for the care and maintenance of Andor at all times, even when she is not working. For this reason, the allegation that Eshleman failed to secure the dog outside her home concerns her performance of an official function, and Eshleman presumptively is entitled to official immunity. Key does not contend that Eshleman acted with malice or an intent to injure anyone, and so, the first exception to the general rule of immunity does not apply. Unless the second exception [297 Ga. 366] applies, the general rule holds, and Eshleman is entitled to official immunity.

To define the scope of the second exception, this Court has distinguished between

Page 99

the ministerial functions of an officer, on the one hand, and official functions that involve an element of discretion, on the other:

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, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, ...

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