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Vidal v. Leavell

Court of Appeals of Georgia

July 14, 2015


Official immunity. Fulton State Court. Before Judge Dixon.

Robert N. Godfrey, Tamara N. Baines, LaShawn W. Terry, Veronica L. Hoffler, for appellant.

The Orlando Firm, Craig T. Jones, for appellee.


Page 634

Ray, Judge.

Ashley Leavell filed a complaint against Officer Jose Vidal, Southern Restaurant Management, Inc. d/b/a International House of Pancakes, and Buckhead IHOP, Inc., alleging that Officer Vidal, an [333 Ga.App. 160] off-duty officer hired to provide security at an IHOP restaurant, used excessive force when arresting her. Officer Vidal filed this direct appeal pursuant to the collateral order doctrine[1] seeking review of the trial court's denial of his motion for summary judgment filed on official immunity grounds. For the following reasons, we reverse the denial of his summary judgment motion.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga.App. 362 (739 S.E.2d 801) (2013).

The record shows that in the early morning hours of April 23, 2011, Leavell and a friend went to the Buckhead IHOP after having drinks at a bar. After being seated, Leavell noticed Officer Vidal approach a nearby booth and begin to speak to a group of young women seated there. Leavell stated

Page 635

in her affidavit that " I could not hear whet was being said, but I saw the officer force himself into their booth and begin pushing two of the women into the wall with the full weight of his body as the women screamed hysterically." Officer Vidal was engaged in an attempt to arrest the IHOP patrons in the booth. Leavell testified that she began to video the scene with her cell phone because she believed the officer was acting too aggressively. Officer Vidal instructed the women in the booth, and all those around him, to stop touching him. After another officer arrived and appeared to be engaged in stopping the officer from his interactions with the women, Leavell testified that she grabbed Officer Vidal's shoulder " to get his attention so he would see that [she] was videoing him[,]" and Officer [333 Ga.App. 161] Vidal slapped her in the face. Video footage of the incident reveals that Leavell then violently swung at the officer several times before another officer grabbed her arm.[2] As the other officer was holding her arm, Officer Vidal punched Leavell on the side of the head. Officer Vidal then " threw [Leavell] to the floor, dragged [her] to the front entrance, and handcuffed" her. Leavell was placed under arrest for obstruction and assault. An ambulance was called, and Leavell was evaluated at the hospital. After the incident, Leavell learned that other IHOP customers had videoed the incident and uploaded the videos to

Leavell filed suit against Officer Vidal for, inter alia, battery, negligence and unconstitutional arrest using excessive force. Officer Vidal filed a motion for summary judgment alleging that the claims against him were barred by the doctrine of official immunity. Without making any findings of fact or conclusions of law, the trial court denied the motion.

Officer Vidal contends that no question of material fact exists as to whether his actions against Leavell were done with malice or with an intent to injure her and, thus, the trial court erred in denying his summary judgment motion on the grounds of official immunity. We agree.

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 ...

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