City of Atlanta v. Fry

Court of Appeals of Georgia

City of Atlanta v. Fry

251 S.E.2d 90, 148 Ga. App. 269, 1978 Ga. App. LEXIS 3070

CourtCourt of Appeals of Georgia

DecidedNovember 7, 1978

Docket55889

StatusPublished

Cited by12 cases

This text of 251 S.E.2d 90 (City of Atlanta v. Fry) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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City of Atlanta v. Fry, 251 S.E.2d 90, 148 Ga. App. 269, 1978 Ga. App. LEXIS 3070 (Ga. Ct. App. 1978).

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Opinions

Banke, Judge.

The appellees, two former Atlanta police officers, brought suit against the City of Atlanta, its Bureau of Police Services, and several members of the police hierarchy alleging that they had been demoted in violation of their constitutional rights. Specifically, they alleged that their demotions came about as a direct result of certain comments attributed to them in a newspaper article. The relief sought was back pay lost as a result of the demotion, plus costs and attorney fees. Following a trial by the court without a jury, the appellees were awarded a judgment against the city and the Bureau of Police Services for the amount claimed. For reasons unstated, the trial court did not include the individual defendants in the judgment but apparently exonerated them from liability. The city appeals. Held:

"A municipality is not liable for the negligence or misconduct of its officers in the performance of governmental functions.” Thomas v. Williams, 105 Ga. App. 321 (2) (124 SE2d 409) (1962). See Code §§ 69-301, 69-307; Davis v. City of Rome, 23 Ga. App. 188 (3) (98 SE 231) (1919). It cannot be gainsaid that the operation of a police department, including the hiring, firing, promotion, demotion, and transfer of officers, is a governmental function. Therefore, the claim against the city and the Bureau of Police Services is barred, and the judgment against them must be reversed. Accord, Echols v. DeKalb County, 146 Ga. App. 560 (1978). See generally 57 AmJur2d 115, Municipal &c. Tort Liability, § 104; 62 CJS1174, Municipal Corporations, §§ 584,734. The appellees’ only cause of action was against the individual officers responsible for their demotion.

The recent United States Supreme Court case of Monell v. Dept. of Social Services of the City of New York, 436 U. S. 658 (98 SC 2018, 56 LE2d 611) (1978), which has been alluded to, though not cited, by the appellees, does not require a different result. That case holds that "a local government may not be sued for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether [270]*270made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. [Referring to 42 USC § 1983, which provides a federal cause of action for violation of federal constitutional rights.]” Monell, 56 LE2d, supra, 638. Assuming purely for the sake of argument that this decision would otherwise have any application to this case, there has been no evidence that the appellees’ demotion came about as the result of the enforcement of an official city policy.

Argued June 5, 1978 Decided November 7, 1978 Rehearing denied December 1, 1978 Ferrin Y. Mathews, John E. Dougherty, Nina M. Radakovich, Henry M. Murff, for appellants. James C. Carr, Jr., Cullen M. Ward, Terry Pickren, for appellees.

Judgment reversed.

Bell, C. J., Quillian, P. J., Shulman and Birdsong, JJ., concur. Deen, P. J., Webb, McMurray and Smith, JJ., dissent.

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Banke, Judge.

The appellees, two former Atlanta police officers, brought suit against the City of Atlanta, its Bureau of Police Services, and several members of the police hierarchy alleging that they had been demoted in violation of their constitutional rights. Specifically, they alleged that their demotions came about as a direct result of certain comments attributed to them in a newspaper article. The relief sought was back pay lost as a result of the demotion, plus costs and attorney fees. Following a trial by the court without a jury, the appellees were awarded a judgment against the city and the Bureau of Police Services for the amount claimed. For reasons unstated, the trial court did not include the individual defendants in the judgment but apparently exonerated them from liability. The city appeals. Held:

"A municipality is not liable for the negligence or misconduct of its officers in the performance of governmental functions.” Thomas v. Williams, 105 Ga. App. 321 (2) (124 SE2d 409) (1962). See Code §§ 69-301, 69-307; Davis v. City of Rome, 23 Ga. App. 188 (3) (98 SE 231) (1919). It cannot be gainsaid that the operation of a police department, including the hiring, firing, promotion, demotion, and transfer of officers, is a governmental function. Therefore, the claim against the city and the Bureau of Police Services is barred, and the judgment against them must be reversed. Accord, Echols v. DeKalb County, 146 Ga. App. 560 (1978). See generally 57 AmJur2d 115, Municipal &c. Tort Liability, § 104; 62 CJS1174, Municipal Corporations, §§ 584,734. The appellees’ only cause of action was against the individual officers responsible for their demotion.

The recent United States Supreme Court case of Monell v. Dept. of Social Services of the City of New York, 436 U. S. 658 (98 SC 2018, 56 LE2d 611) (1978), which has been alluded to, though not cited, by the appellees, does not require a different result. That case holds that "a local government may not be sued for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether [270]*270made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. [Referring to 42 USC § 1983, which provides a federal cause of action for violation of federal constitutional rights.]” Monell, 56 LE2d, supra, 638. Assuming purely for the sake of argument that this decision would otherwise have any application to this case, there has been no evidence that the appellees’ demotion came about as the result of the enforcement of an official city policy.

Argued June 5, 1978 Decided November 7, 1978 Rehearing denied December 1, 1978 Ferrin Y. Mathews, John E. Dougherty, Nina M. Radakovich, Henry M. Murff, for appellants. James C. Carr, Jr., Cullen M. Ward, Terry Pickren, for appellees.

Judgment reversed.

Bell, C. J., Quillian, P. J., Shulman and Birdsong, JJ., concur. Deen, P. J., Webb, McMurray and Smith, JJ., dissent.

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251 S.E.2d 90, 148 Ga. App. 269, 1978 Ga. App. LEXIS 3070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-atlanta-v-fry-gactapp-1978.

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