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Wingler v. White

Court of Appeals of Georgia, First Division

December 7, 2017

WINGLER et al.
v.
WHITE et al.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          BARNES, PRESIDING JUDGE.

         The plaintiffs, Shirley and Nile Wingler, were injured when a speeding car driven by a suspect who was fleeing law enforcement crashed into their car. They sued the sheriffs of Lamar and Monroe Counties in their official capacities (the "Lamar Sheriff" and "Monroe Sheriff"), alleging that the reckless conduct of the sheriffs' deputies in initiating and continuing the high speed car chase proximately caused the injuries they sustained in the automobile collision. The trial court granted summary judgment to the Lamar Sheriff on the grounds that the plaintiffs' claims against him were barred as a matter of law by sovereign immunity; that the plaintiffs failed to establish proximate causation because the uncontroverted evidence showed that the Monroe deputies had taken exclusive control of the pursuit by the time of the collision; and that the plaintiffs failed to come forward with any evidence that the Lamar deputy involved in the pursuit acted with reckless disregard for proper law enforcement procedures. The trial court granted summary judgment to the Monroe Sheriff on the ground that the plaintiffs failed to come forward with any evidence that the Monroe deputies acted with reckless disregard for proper law enforcement procedures.

         The plaintiffs now appeal these summary judgment rulings by the trial court. For the reasons discussed more fully below, we conclude that the trial court committed no error in granting summary judgment to the Lamar Sheriff on sovereign immunity grounds. In contrast, we conclude that the trial court erred in granting summary judgment to the Monroe Sheriff because when the evidence is construed in favor of the plaintiffs, genuine issues of material fact exist as to whether the Monroe deputies acted with reckless disregard for proper law enforcement procedures in continuing the high speed chase. We therefore affirm in part and reverse in part.

         Summary judgment is proper if the pleadings and evidence "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). On appeal from the trial court's grant of summary judgment, "we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant." (Citation and punctuation omitted.) MCG Health v. Barton, 285 Ga.App. 577, 578 (647 S.E.2d 81) (2007).

         So viewed, the record shows that on the morning of February 6, 2013, sheriffs' deputies from Lamar and Monroe Counties pursued a driver fleeing from a routine traffic stop on a high speed chase that extended over 45 miles through several Georgia counties and reached speeds of 120 to 125 miles per hour.[1] The car chase began on Interstate 75 ("I-75") when a sheriff's deputy attempted to pull over a car allegedly for failing to maintain its lane of travel. The chase ended after the fleeing driver exited onto Georgia State Highway 247 ("Highway 247"), where he ran a red light and crashed into the plaintiffs' car in a congested intersection. What follows is a more detailed account of what transpired based on the evidence presented by the plaintiffs.

         Around 10:00 a.m., a Lamar County sheriff's deputy was in his patrol car monitoring southbound traffic on I-75 about three miles from the Monroe County line. The deputy was part of Lamar County's Interstate Criminal Enforcement ("ICE") Unit, which attempts to identify and apprehend drug traffickers and other serious offenders by "profiling potential suspects based on their driving behaviors."[2]

         While monitoring southbound traffic on I-75, the Lamar deputy saw a silver car with a Florida license tag traveling in the center lane that the deputy later testified was "straddling" the lane divider between the center and right lanes of the interstate.[3]When the deputy activated his blue lights to pull over the driver for the traffic violation of failure to maintain a lane of travel, the driver initially hesitated and appeared to be on his cell phone but then accelerated. The Lamar deputy decided to engage in a vehicle pursuit, activated his siren, alerted the police dispatcher that a pursuit was underway, and asked the dispatcher to notify the Monroe County Sheriff's Department. The deputy provided the license tag number of the car to the police dispatcher and learned that it was a rental car that had not been reported missing or stolen.

         When the Lamar deputy initiated the pursuit for the traffic violation, the weather was clear and dry and there was moderate traffic on the interstate. The pursuit quickly reached speeds of up to 120 to 125 miles per hour, with both the Lamar patrol car and fleeing car weaving in and out of traffic and other vehicles moving out of the way and off of the road to avoid a collision. The fleeing driver was "very aggressive" and "was driving all over the road, " and the Lamar deputy remarked over the radio that fleeing drivers "get stupid." As the Lamar deputy and the fleeing driver continued weaving through traffic, the deputy commented over the radio, "Come on, get out of the way. They going to wreck."

         About 10 miles after the pursuit entered Monroe County, three patrol cars driven by deputies of the Monroe County Sheriff's Department joined the chase. The police dispatcher advised the Monroe deputies and their supervisors who were listening over the radio that the pursuit was for the driver's failure to stop for a "routine traffic stop" and indicated that there were no "warrants . . . or anything like that" for the driver. Although disputed, there was evidence that the Monroe deputies and their supervisors did not inquire further into the reason for the pursuit or learn the specific violation that had been committed by the driver that precipitated the attempted stop. All of the deputies continued pursuing the fleeing driver at a high rate of speed with their lights and sirens activated. When one of the deputies was asked over the radio whether he could drive in front of the fleeing driver to slow him down, the deputy responded, "No, not in this traffic."

         The Lamar and Monroe deputies continued the high speed pursuit southbound onto Interstate 475 ("I-475"), which the Lamar deputy noted over the radio "gets real congested." One of the deputies pointed out over the radio that the fleeing driver was "all over the place, " and the deputies advised the dispatcher that the driver was "going all over the place, weaving back and forth." One of the Monroe deputies later testified that the fleeing driver had been "erratically" changing lanes without signaling and was going into the emergency lane to avoid traffic. At times during the chase, the pursuing deputies drove within two or three car lengths of the fleeing driver and in the lane next to him, but they were unable to force him to slow down or stop. Other deputies positioned on foot on the side of the interstate also attempted to disable the fleeing car by throwing down "stop sticks" onto the road, but the driver evaded them. Additionally, the Monroe deputies planned to perform a precision immobilization technique ("PIT maneuver") to stop the fleeing driver, but they were unable to get into position to perform the PIT maneuver during the chase.

         During the pursuit on I-475, the Lamar deputy allowed the Monroe deputies to take the lead. As the pursuit continued, the Lamar deputy's patrol car hit the median, blew a tire, and had to drop out of the chase altogether. The Monroe deputies continued the high speed pursuit for approximately 20 more miles after the Lamar deputy was forced out of the pursuit by the blown tire.

         According to the Monroe deputies, the driver of the fleeing car at one point during the continued pursuit on I-475 threw a "white powdery" substance out of his car window, which hit the front of one of the deputies' patrol cars and exploded. However, the dash cam video recording from one of the Monroe County patrol cars does not show a white powdery substance being thrown or striking any of the patrol cars and exploding, [4] transcripts of the audio recorded police communications do not contain any reference to the thrown powder, and the fleeing driver was never charged with any drug offenses related to the alleged powder.

         The fleeing driver exited onto Highway 247, which was congested with heavy traffic and contained four-way intersections controlled by traffic lights. The fleeing driver continued at a high rate of speed, drove onto the grassy median to avoid traffic, and proceeded through congested intersections. The pursuing Monroe patrol cars slowed down but continued to have their lights and sirens activated. Ultimately, the fleeing driver drove at a high rate of speed through a red light at an intersection near Galleria Mall and collided with the plaintiffs' car, causing the plaintiffs to sustain serious injuries. The driver of the fleeing car, a young man, was apprehended after initially attempting to flee on foot. A small bag of marijuana was found in his car, and he was driving with a suspended license. The fleeing driver later pled guilty to two counts of serious injury by vehicle and other offenses, resulting in a 20-year sentence.

         The plaintiffs sued the Lamar and Monroe Sheriffs in their official capacities for the injuries they sustained in the automobile collision. The plaintiffs alleged that the sovereign immunity otherwise afforded the defendant sheriffs when sued in their official capacities was waived because the plaintiffs' injuries arose out of the deputies' negligent use of county motor vehicles. See OCGA §§ 33-24-51 (b); 36-92-2 (a), (d). The plaintiffs further alleged that the sheriffs' deputies from both counties that pursued the fleeing car acted with reckless disregard for proper law enforcement procedures by initiating and continuing a dangerous high speed chase based on a minor traffic offense and thus were the proximate cause of the accident. See OCGA § 40-6-6 (d) (2).

         Following discovery, the defendant sheriffs moved for summary judgment. The Lamar Sheriff argued that the claims against him were barred by sovereign immunity because the Lamar deputy's patrol car had become disabled and was no longer involved in the pursuit when the plaintiffs sustained their injuries, such that the car was not in "use" as a county motor vehicle as that term has been strictly construed under our precedent. Alternatively, the Lamar Sheriff argued that the plaintiffs could not establish proximate causation with respect to the Lamar deputy because the pursuit was under the exclusive control of the Monroe deputies when the collision occurred, and that the plaintiffs failed to present any evidence that the Lamar deputy acted with reckless disregard for proper law enforcement procedures. The Monroe Sheriff did not contest that Monroe County's sovereign immunity had been waived, but argued that the plaintiffs failed to present any evidence that the Monroe deputies acted with reckless disregard for proper law enforcement procedures.

         The plaintiffs opposed the summary judgment motions, relying primarily upon the dash cam video recordings from the patrol cars, the transcripts of the audio recorded police communications during the pursuit, and expert testimony regarding proper law enforcement pursuit procedures to support their claims. After conducting a hearing on the motions, the trial court granted summary judgment to the defendant sheriffs on all of the asserted grounds. This appeal by the plaintiffs followed.

1. The plaintiffs first argue that the trial court erred in concluding that their claims against the Lamar Sheriff were barred as a matter of law by sovereign immunity and in granting summary judgment to the Sheriff on that basis. We disagree.
Under the Georgia Constitution, . . . sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. Sovereign immunity has been extended to counties and thus protects county employees who are sued in their official capacities, unless sovereign immunity has been waived.

(Citations and punctuation omitted.) Butler v. Carlisle, 299 Ga.App. 815, 818 (1) (683 S.E.2d 882) (2009). See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). See also OCGA § 36-1-4 ("A county is not liable to suit for any cause of action unless made so by statute."). Accordingly, a sheriff sued in his official capacity may invoke the county's sovereign immunity unless it has been waived by the county. Nichols v. Prather, 286 Ga.App. 889, 893 (2) (650 S.E.2d 380) (2007).

         "Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue." McCobb v. Clayton County, 309 Ga.App. 217, 217-218 (1) (a) (710 S.E.2d 207) (2011). The issue of sovereign immunity and its waiver generally should be considered before addressing issues of causation. Cameron v. Lang, 274 Ga. 122, 126 (3) (549 S.E.2d 341) (2001). "Any waiver of sovereign immunity must be established by the party seeking to benefit from that waiver." Butler, 299 Ga.App. at 818 (1).

         The plaintiffs rely on the statutory waiver of sovereign immunity for the negligent use of county motor vehicles. More specifically, the plaintiffs rely on OCGA § 33-24-51 (b), which provides for a waiver of county sovereign immunity "for a loss arising out of the negligent use of a covered motor vehicle, " up to the limits of insurance coverage purchased by the county or the minimum monetary limits required by OCGA §36-92-2 (a).[5] The sovereign immunity afforded a sheriff sued in ...


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