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Securealert, Inc. v. Boggs

Court of Appeals of Georgia, Third Division

May 21, 2018

SECUREALERT, INC. et al.
v.
BOGGS et al. JUDICIAL ELECTRONIC MONITORING SERVICE, LLC et al.
v.
BOGGS et al.

          ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

          Ellington, Presiding Judge.

         Candace Boggs and other plaintiffs brought this wrongful death and personal injury action in the State Court of Dougherty County against SecureAlert, Inc., SecureAlert Monitoring, Inc., SecureAlert Enterprise Solutions, Inc., Emerge Monitoring, LLC, Judicial Electronic Monitoring Service, LLC, and Kathy Taylor-Parker.[1] The defendants are electronic pretrial release and monitoring service providers that were responsible for monitoring two men who allegedly shot and killed Jamey C. Spurlock. The trial court denied the providers' motions to dismiss the complaint. We granted the providers' applications for interlocutory appeal to consider whether they are protected from civil liability by statute. We have consolidated these appeals, [2] and, for the reasons explained below, we reverse.

         This Court reviews a trial court's ruling on a motion to dismiss de novo, viewing all well-pled allegations in the complaint as true. Carter v. Cornwell, 338 Ga.App. 662 (791 S.E.2d 447) (2016). In the complaint, the plaintiffs[3] alleged that in December 2013 the providers had contracts with the sheriff of Dougherty County to provide electronic monitoring services for defendants given pretrial release. One or more of the providers were monitoring, via ankle bracelets, Demetrice and Kovarious Price, who were awaiting trial on charges of aggravated assault and robbery (Demetrice) and armed robbery, kidnapping, and possession of a firearm during the commission of a crime (Kovarious). The pretrial release bonds ordered by the Superior Court of Dougherty County required "total lock-down house arrest" and the wearing of GPS electronic monitoring ankle bracelets with wireless cell phones. The plaintiffs alleged that the providers lost the ability to determine the whereabouts of the Prices and failed to notify law enforcement of that fact. The plaintiffs alleged that in the weeks following the Prices' release under house arrest they repeatedly violated the bond order by leaving their home and that the providers knew, or reasonably should have known, this and failed to notify law enforcement. On December 22, 2013, the Prices allegedly left their residence and shot and killed Jamey C. Spurlock during an armed robbery. The plaintiffs asserted claims for breach of contract (as third party beneficiaries), negligence, and negligence per se and alleged that the providers breached their duty to monitor the Prices, which proximately caused Spurlock's death.

         In their motions to dismiss, the providers argued, inter alia, that, taking the plaintiffs' allegations as true, the providers are immune from civil liability for the Prices' criminal acts pursuant to OCGA § 17-6-1.1 (i). OCGA § 17-6-1.1 authorizes a trial court to release a defendant from custody pending the trial of his or her case on the condition that the defendant comply with the terms and conditions of an electronic pretrial release and monitoring program which is approved pursuant to subsection (j) of the Code section. OCGA § 17-6-1.1 (a).[4] The statute also authorizes the sheriff of a county to enter into agreements with approved providers of electronic pretrial release and monitoring services. Id. "Any person or corporation approved by the chief judge of the court and the sheriff in their discretion who meets the [specified] minimum requirements may be approved to provide electronic pretrial release and monitoring services[, ]" OCGA § 17-6-1.1 (j), and "[a] bonding company, bonding agent, or probation service provider may be a provider of such services." OCGA § 17-6-1.1 (a).

         The immunity provision, OCGA § 17-6-1.1 (i), provides:

No defendant released under an electronic pretrial release and monitoring program under this Code section shall be deemed to be an agent, employee, or involuntary servant of the county or the electronic pretrial release and monitoring provider while so released, working, or participating in training or going to and from the defendant's place of employment or training. Neither the electronic pretrial release and monitoring provider nor the sheriff shall be civilly liable for the criminal acts of a defendant released pursuant to this Code section.

(Emphasis added.)

         As noted by the trial court, there is no Georgia law construing this statute or discussing the immunity of private companies under these circumstances. Because the arguments on appeal involve the meaning of the statute, "the threshold issue is whether the language is plain and unequivocal, in which case judicial construction is not permitted, or whether it is ambiguous, in which case judicial construction is appropriate. A statute is ambiguous when it is susceptible of more than one natural and reasonable interpretation." (Citations and punctuation omitted.) Fulton County Bd. of Tax Assessors v. Greenfield Investment Group, LLC, 313 Ga.App. 195, 197-198 (721 S.E.2d 128) 130 (2011). "[W]hen a statute is plain and susceptible of but one natural and reasonable construction, a court must simply follow the literal language of the statute, unless doing so would lead to absurd or wholly impracticable consequences." (Citation and punctuation omitted.) City of Atlanta v. City of College Park, 311 Ga.App. 65, 68-69 (2) (715 S.E.2d 158) (2011).

         When a statute is ambiguous, the cardinal rule of statutory construction is to determine the legislative intent and purpose behind the statute and to effectuate that intent and purpose. Carringer v. Rodgers, 276 Ga. 359, 363 (578 S.E.2d 841) (2003); OCGA § 1-3-1 (a). In so doing,

[f]irst, courts should construe a statute to give sensible and intelligent effect to all provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless. Second, a court's duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious. Third, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole. We also presume that when enacting a statute, the General Assembly meant what it said and said what it meant. We do not limit our consideration to the words of one subsection of a statute alone, but consider a particular provision in the context of the statute as a whole as well as the context of other relevant law, constitutional, statutory, and common law alike.

(Citations and punctuation omitted.) West v. City of Albany, 300 Ga. 743, 745 (797 S.E.2d 809) (2017). In addition,

it has always been a rule of construction of statutes that those in derogation of the common law, that is[, ] those which give rights not had under the common law, must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute. The legislature is presumed to act with knowledge of this rule of construction, and with that body only lies the right and privilege to grant rights not given under the common law and to extend and broaden any rights so granted. Such is not the function of the courts.

(Citation and punctuation omitted.) Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 512 (1) (614 S.E.2d 745) (2005).

         As noted above, the second sentence of OCGA § 17-6-1.1 (i) provides that an electronic pretrial release and monitoring provider "shall not have no civil liability for the criminal acts of a defendant released pursuant to [the] Code section." The plaintiffs argue that interpreting this provision as protecting electronic pretrial release and monitoring providers from all civil liability for the criminal acts of monitored defendants renders the first sentence of the subsection superfluous. Specifically, the plaintiffs contend that the first sentence of the subsection (a supervised defendant "shall not be deemed to be an agent, employee, or involuntary servant of . . . the electronic pretrial release and monitoring provider while so released, working, or participating in training or going to and from the defendant's place of employment or training"[5]) protects a provider from imputed or vicarious liability based on the doctrine of respondeat superior, where the principal is entirely responsible for the agent's negligence and the liability cannot be apportioned between the principal and the agent/tortfeasor.[6] The plaintiffs contend that, if the second sentence provides absolute immunity to the monitoring company there would be no need for the General Assembly to state in the first sentence that monitoring companies are not liable based on agency principles or the theory of respondeat superior "because the absolute immunity would subsume that lesser immunity." We disagree.

         Under the first sentence of OCGA § 17-6-1.1 (i), if the conditions of a defendant's pretrial release permitted him or her to drive to work, and the defendant negligently injured someone while driving, the provider would not be vicariously liable for the defendant's negligence based on a theory that an agency or master- servant relationship is created by the monitoring program. The second sentence of the subsection, however, addresses an entirely different kind of derivative liability, liability for the criminal acts of another. Under Georgia law, "as a general rule, there is no duty to control the conduct of third persons to prevent them from causing physical harm to others." (Citation omitted.) Bradley Center, Inc. v. Wessner, 250 Ga. 199, 201-202 (1) (296 S.E.2d 693) (1982). An exception to this rule, as explained in Restatement (Second) of Torts § 319 (1965), is that

[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third ...

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