In a recent and highly anticipated decision, Eshleman v. Key, the Supreme Court of Georgia addressed an interesting issue regarding the breadth of official immunity doctrine. Specifically at issue in Eshleman was whether official immunity shielded a police officer from liability when her K-9 dog escaped from her yard and allegedly attacked a child. In an unanimous decision, the Supreme Court of Georgia concluded that official immunity did in fact shield the officer from liability.
The police officer at issue in this case is employed by an Atlanta area law enforcement agency as both a police officer and dog handler. As part of her job, the officer is responsible for the care of a police dog. When not on duty, the officer keeps the dog at her home, which is near the home of the plaintiff. The alleged attack at issue occurred in 2011. One day in November of that year, the officer placed the dog in a kennel outside her home but did not adequately secure the kennel. Consequently, the dog absconded from the yard and encountered the plaintiff’s then 11-year-old son. The plaintiff alleged that the dog attacked his son, which caused serious injury to the child. The plaintiff sued the officer, who moved for summary judgment, arguing that official immunity shielded her from liability. The trial court denied the motion, and the Georgia Court of Appeals affirmed the trial court’s denial. The Supreme Court of Georgia, however, reversed.
Generally, a governmental official enjoys official immunity from a suit that alleges that he or she is personally liable for a tort associated with the execution of an official function. See, e.g., Roper v. Greenway, 294 Ga. 112, 113 (2013). Official immunity is, however, not available when the officer either acts maliciously, see, e.g., Cameron v. Lang, 274 Ga. 122, 124 (2) (2001), or negligently while executing a ministerial duty, see, e.g., Roper, 294 Ga. at 113. First, the Supreme Court of Georgia concluded that, since the officer’s responsibilities included providing for the care of the dog even when off-duty, negligence related to the officer’s care of the dog implicated an official function and thus presumptively entitled her to immunity. Of the two aforementioned exceptions, only the second provides a viable exclusion from official immunity under the circumstances. Accordingly, the court needed to determine whether the officer was exercising a ministerial duty or a discretionary function at the time.
A discretionary function is ordinarily defined as one that “calls for the exercise of personal deliberation and judgment . . . and acting on [immediate facts and circumstances] in a way not specifically directed.” Murphy v. Bajjani, 282 Ga. 197, 199 (1) (2007) (citation omitted). The Supreme Court noted that even when an officer owes a general duty of care, and therefore his or her conduct is directed to a certain extent, he or she will still be entitled to immunity as long as he or she has not been directed to act in a particular fashion and retains discretion in how to perform the act. See, e.g., Murphy, 282 Ga. at 199-200 (holding that, although a law required that an action be taken and set forth general parameters for its execution, the official was still required to exercise personal judgment, and therefore the official was performing a discretionary duty).
In this case , the law enforcement agency did not give any direction to the officer about how she should keep the dog restrained when not on duty. However, the plaintiff argued that O.C.G.A. § 51-2-7 and several municipal ordinances placed a specific duty on the plaintiff with regard to her restraint of the dog such that she was not exercising judgment and discretion at the time. Specifically, O.C.G.A. § 51-2-7 provides that “[a] person who owns or keeps a . . . dangerous animal . . . who, by careless management or by allowing the animal to go at liberty, causes injury to another person . . . may be liable in damages to the person . . . .” In this case, the Supreme Court concluded that, even though the statute placed a duty of reasonable care on the officer, the law did not direct the officer’s actions in a fashion that narrowly circumscribed the exercise of discretion. Therefore, the duty imposed by the statute could not be considered ministerial. The Supreme Court noted that the ordinances cited by the plaintiff similarly created a general duty of reasonable care and did not delineate with specificity the manner in which the officer should perform the duty. Accordingly, the Supreme Court concluded that the exception from official immunity was not satisfied, and therefore the officer was entitled to immunity.
As this case aptly demonstrates, even a straightforward lawsuit can raise an unexpected wrinkle that complicates the task of obtaining the desired relief. Indeed, the plaintiff in this case may have known that his neighbor was an officer and that the dog was a police animal, but he was likely not aware that these facts could ultimately end up barring liability. Prior to undertaking even seemingly straightforward litigation, someone who has been injured should always consider enlisting the aid of experienced counsel who can help deal with the wrinkles that can arise. The Atlanta dog bite injury attorneys at Christopher Simon Attorney at Law have represented many injured Georgians and can help you with the unexpected complexities that may arise in your case. Feel free to contact us for a free case evaluation if you’ve recently been injured and are curious about the strength of your case and options for recovery.
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