City of Roswell v. Clementina Hernandez-Flores

• Court: Court of Appeals of Georgia
• Decided: October 28, 2022
• Docket: A22A0985
• Status: Published

Opinion

SECOND DIVISION RICKMAN, C. J., MILLER, P. J., PIPKIN, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

October 28, 2022

In the Court of Appeals of Georgia A22A0985. CITY OF ROSWELL v. HERNANDEZ-FLORES.

MILLER, Presiding Judge.

Clementina Hernandez-Flores was struck by a car driven by a suspect fleeing

from City of Roswell (“the City”) police officers, causing her to suffer major injuries.

After she filed a negligence suit against the City, the City moved for summary

judgment on sovereign immunity grounds. The trial court denied the motion after

concluding that issues of fact remained as to whether the City waived sovereign

immunity through its law enforcement officers’ “use of a vehicle,” and the City seeks

interlocutory review of that ruling. Because the record conclusively establishes that

Hernandez-Flores’ injuries did not arise from law enforcement’s “use of a vehicle,”

we conclude that she has failed to show a valid waiver of sovereign immunity, and

so we reverse the trial court’s denial of summary judgment. “On appeal from the denial or grant of summary judgment, the appellate court

conducts a de novo review of the evidence to determine whether there is 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.” (Citation

omitted.) Macon-Bibb County v. Kalaski, 355 Ga. App. 24 (842 SE2d 331) (2020).

So viewed, the record shows that, in March 2015, City of Roswell law

enforcement officers were engaged in a vehicle pursuit of a suspect fleeing after

committing a home invasion. Officer Lorne Alston, who was employed by the City

of Roswell Police Department, was driving his patrol car when he learned of the

high-speed pursuit in progress. Alston realized that the pursuit was heading towards

him, and he drove to a nearby intersection ahead of the chase, parked and exited his

patrol car, and obtained “Stop Sticks”1 from the trunk. While standing behind his car,

Alston deployed the Stop Sticks on the road. The suspect swerved to avoid the Stop

Sticks and lost control of his car, striking Hernandez-Flores, who was walking on the

sidewalk. As a result, Hernandez-Flores sustained multiple permanent injuries to her

head, neck, and leg, and she also suffered permanent memory loss.

1 “Stop Sticks” is the brand name for tire-deflating spikes that are occasionally used by law enforcement to end a police pursuit.

2 Hernandez-Flores filed suit against the City, asserting a claim for negligence.

The City moved for summary judgment on sovereign immunity grounds, and

Hernandez-Flores subsequently amended her complaint to assert that Alston was

negligent in his use of his patrol car and that sovereign immunity was thus waived in

accordance with OCGA § 33-24-51. The trial court denied the City’s motion for

summary judgment, finding that issues of fact remained as to whether Alston’s

“efforts to assist in the chase by using his patrol car to drive to the intersection, his

use of the police car to monitor the chase on his radio, his use of the Stop Sticks

mounted in the police car’s trunk and his deployment of the Stop Sticks while

standing behind the police car” constituted “use of the police car” for purposes of

waiving sovereign immunity. We granted the City’s application for interlocutory

review of this ruling.

On appeal, the City argues that the trial court erred in concluding that material

fact issues remained as to whether Alston’s actions during the incident constituted the

“use” of a vehicle so as to waive the City’s sovereign immunity. We agree.

Sovereign immunity is a threshold issue that the trial court is required to address before reaching the merits of any other argument. It is axiomatic that the party seeking to benefit from the waiver of sovereign immunity bears the burden of proving such waiver. Whether sovereign

3 immunity has been waived under the undisputed facts of this case is a question of law, and this Court’s review is de novo.

(Citation omitted.) Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 199

(1) (834 SE2d 593) (2019).

“Under Georgia law, municipal corporations are protected by sovereign

immunity pursuant [to] . . . Article IX, Section II, Paragraph IX [of the Georgia

Constitution], unless that immunity is waived by the General Assembly.” City of

Atlanta v. Mitcham, 296 Ga. 576, 577 (1) (769 SE2d 320) (2015). See also OCGA

§ 36-33-1 (a) (“[I]t is the public policy of the State of Georgia that there is no waiver

of the sovereign immunity of municipal corporations of the state and such municipal

corporations shall be immune from liability for damages.”). Georgia law provides that

municipal corporations waive immunity “for a loss arising out of claims for the

negligent use of a covered motor vehicle[.]” OCGA §§ 33-24-51 (b); 36-33-1 (a). In

order to establish that sovereign immunity has been waived, Hernandez-Flores must

therefore prove that her claim arose from the use of a municipal automobile – that the

vehicle “was both the cause in fact and the proximate cause of the injury.” (Citation

omitted.) Polk County v. Ellington, 306 Ga. App. 193, 198 (1) (702 SE2d 17) (2010).

4 A determination of whether an event arises from the “use” of a motor vehicle depends largely on the circumstances, and a bright-line definition is elusive. But statutes that provide for a waiver of sovereign immunity, such as OCGA § 33-24-51, are in derogation of the common law and thus are to be strictly construed against a finding of waiver. . . . [I]n construing the meaning of “use,” we have explained that the question to be answered is whether the injury originated from, had its origin in, grew out of, or flowed from the use of the motor vehicle as a vehicle. However, while the term does extend beyond actual physical contact, it does not imply remoteness. And this is reflected in our case law in that when we have found a waiver of sovereign immunity for the “use” of a motor vehicle, it has concerned motor vehicles that were actively in use when the injury arose[.] (Citations and punctuation omitted; emphasis in original.) Bd. of Comm. of Putnam County v. Barefoot, 313 Ga. App. 406, 408-409 (1) (721 SE2d 612) (2011).

To meet this burden, Hernandez-Flores alleged that Alston used his car as a

vehicle when he (1) monitored the high-speed chase while in the car; (2) stored the

Stop Sticks in the trunk of the car; and (3) stood behind the car as he deployed the

Stop Sticks. When we consider Hernandez-Flores’ injury, we conclude that none of

these activities, either considered together or in isolation, constitute the “use” of an

automobile required to waive sovereign immunity.

5 First, Alston’s use of his patrol car to assist the pursuit, follow the pursuit on

his radio, and drive to the intersection is too attenuated and remote from the harm to

Hernandez-Flores to waive immunity, particularly since the car had already been

parked on the side of the road at the time of the incident. We have previously held

that “use of a motor vehicle” means “motor vehicles that were actively in use when

the injury arose.” (Citation omitted.) Wingler v. White, 344 Ga. App. 94, 101 (1) (808

SE2d 901) (2017). Alston was not actively using his vehicle in this manner at the time

Hernandez-Flores’ injury occurred, and so this use of a vehicle is not sufficient to

constitute waiver. See, e.g., Campbell v. Goode, 304 Ga. App. 47, 50-51 (2) (695

SE2d 44) (2010) (no waiver found under OCGA § 33-24-51 because any alleged

negligence that happened during a police officer’s pat-down search of a robbery

suspect was unrelated to the officer’s prior use of his vehicle to arrive on the scene).

Second, Alston’s storage of the stop sticks in his car’s trunk also does not give

rise to a waiver of sovereign immunity. In Ellington, supra, we stated that

we decline to hold that the use, failure to use, or misuse of emergency medical or safety equipment arises out of the maintenance or operation of a county vehicle merely because such equipment is stored or transported on, is removed from, or is left off of, such a vehicle. The operation or maintenance of any motor vehicle, as used in [OCGA § 33-

6 24-51], has nothing to do with whether certain rescue equipment was present on a county vehicle.

(Citations and punctuation omitted.) Ellington, supra, 306 Ga. App. at 199 (1).

Additionally, we note that it was Alston’s actual use of the Stop Sticks that allegedly

led the fleeing suspect to injure Hernandez-Flores, not his storage of the Stop Sticks

in his car. Alston’s alleged tortious conduct thus did not “originate in” or “flow from”

the fact that the stop sticks were stored in the car, nor was such storage the direct

cause of Hernandez-Flores’s injuries. See Harry v. Glynn County, 269 Ga. 503, 504

(1) (501 SE2d 196) (1998) (transportation of a patient by an ambulance did not waive

sovereign immunity because this use of the vehicle did not play a part in causing the

patient’s injuries, which stemmed from a paramedic’s misdiagnosis and not the

ambulance transport itself); Tittle v. Corso, 256 Ga. App. 859, 864 (2) (569 SE2d

873) (2002) (sovereign immunity was not waived for alleged injuries caused from a

deputy pulling up in a patrol car and assaulting the plaintiff while placing him against

the hood of the car because the car was “only remotely related to the deputy’s alleged

tortious conduct”). Compare with McElmurray v. Richmond County, 274 Ga. App.

605, 613 (2) (618 SE2d 59) (2005) (sovereign immunity was waived where

government vehicles sprayed sewage sludge that caused the plaintiffs’ injuries).

7 Next, the fact that Alston was standing behind the parked car when he deployed

the Stop Sticks also does not mean the car was “in use.” Our decision in Ankerich v.

Savko, 319 Ga. App. 250 (734 SE2d 805) (2012), is instructive on this point. In

Ankerich, a law enforcement officer was standing in an intersection directing traffic

with her patrol car parked less than 20 feet away with the lights activated. Id. at 250-

251. The officer signaled a bus to enter the intersection, which struck a car the officer

had not seen. Id. Although the patrol car was nearby with lights activated, we found

it was not in use because it was used as a stationary “ancillary prop” to assist the

police officer in directing traffic and was not used as a vehicle. Id. at 253-255 (1).

This situation is additionally analogous to that in Gish v. Thomas, 302 Ga. App. 854,

861 (2) (691 SE2d 900) (2010). In Gish, a deputy sheriff transporting a suicidal

detainee left both the detainee and a loaded gun in a patrol car, and the detainee used

the gun to commit suicide. Id. at 855-857. The detainee’s estate sued claiming, among

other things, that sovereign immunity had been waived by the deputy’s negligent use

of the patrol car. We found that the patrol car was not in use “as a vehicle” for the

purpose of waiving immunity because the car was “essentially being used as a

holding cell.” Id. at 861 (2); see also McBrayer v. Scarborough, ___ Ga. App. ___

(874 SE2d 146) (2022) (immunity was not waived for a police suspect who died

8 while being held in an inoperative police car that was not being used as anything

other than a holding cell at the time of the suspect’s death). We have concluded

similarly in numerous other cases that police officers using their vehicles as static

props does not constitute using their vehicles “as vehicles.” See, e.g., Williams v.

Whitfield County, 289 Ga. App. 301, 302-305 (656 SE2d 584) (2008), superseded by

statute on other grounds, as stated in Columbus Consolidated Govt. v. Woody, 342

Ga. App. 233, 237 n.4 (802 SE2d 717) (2017) (large excavator on the side of the road

used to warn motorists of a road closure was not used “as a vehicle” because it was

“merely present as a static physical mass”); Saylor v. Troup County, 225 Ga. App.

489, 490 (484 SE2d 298) (1997) (sovereign immunity was not waived for an injury

caused by a swing blade attached to a police car because the car was “inoperative,

[and] parked off the roadway with its engine not engaged”). Additionally, the fleeing

suspect also allegedly swerved to avoid the stop sticks, not Alston’s vehicle, and thus,

the vehicle’s presence at the scene did not directly contribute to the accident and

Hernandez-Flores’ injuries.2 Thus, similarly, here, the fact that Alston deployed the

2 For this reason, Hernandez-Flores’s reliance on our decision in DeKalb County School Dist. v. Allen, 254 Ga. App. 66 (561 SE2d 202) (2002), is misplaced. In Allen, the plaintiff’s daughter was killed when she was crossing the street after attempting to board a school bus which turned out not to be hers. Allen, supra, 254 Ga. App. at 66-68. We concluded that the school bus was “in use” at the time of the

9 Stop Sticks while standing behind his vehicle does not mean that he was using his car

as a vehicle

Finally, we again emphasize that “statutes that provide for a waiver of

sovereign immunity, such as OCGA § 33-24-51, are in derogation of the common law

and thus are to be strictly construed against a finding of waiver.” (Citation omitted;

emphasis in original.) Barefoot, supra, 313 Ga. App. at 408-409 (1). Thus, even if we

consider the entirety of the circumstances and all of these alleged uses of Alston’s

vehicle together, we cannot say that any use of Alston’s patrol car “as a vehicle” was

sufficiently related to Hernandez-Flores’ injuries to constitute waiver of sovereign

immunity.

Our General Assembly has recognized “the inherently unfair and inequitable

results which occur in the strict application of the traditional doctrine of sovereign

immunity.” OCGA § 50-21-21 (a). It has also determined, however, that such

concerns must yield to the “public good” and “public need” for the “broad range of

services and . . . functions” provided by governmental employees, “regardless of how

incident because it was operational , and we concluded that such use was related to the daughter’s death because “[b]ut for the bus’s presence, the child would not have exited her mother’s car and the accident would not have happened.” Id. at 70 (1). In this case, Alston’s vehicle did not play any such key role in causing the actual accident that caused Hernandez-Flores’ injuries.

10 much exposure to liability may be involved,” id., and we are bound to defer to the

decisions of that body. Because Alston’s patrol car was not in use “as a vehicle” for

the purpose of waiving sovereign immunity at the time that Hernandez-Flores was

injured, we reverse the trial court’s denial of summary judgment.

Judgment reversed. Rickman, C. J., and Pipkin, J., concur.