SECOND DIVISION MILLER, P. J., RICKMAN and PIPKIN, JJ.
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 31, 2024
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 under OCGA § 33-24-51 (b) through its law enforcement officers’ “use of
a vehicle.” The City appealed, and we reversed, concluding that Hernandez-Flores’
claims did not arise from the City’s use of a vehicle. City of Roswell v. Hernandez-
Flores, 365 Ga. App. 849 (880 SE2d 340) (2022). On certiorari, the Supreme Court of Georgia vacated our previous decision and remanded for us to consider the case in
light of its recent decision in McBrayer v. Scarbrough, 317 Ga. 387 (893 SE2d 660)
(2023), which overruled our prior opinion and many of the cases that we relied on in
our prior opinion. See Hernandez-Flores v. City of Roswell, Case No. S23C0351 (Jan.
9, 2024). Considering the guidance from McBrayer, we again conclude that
Hernandez-Flores’ injuries did not arise out of the negligent use of a motor vehicle,
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).
The relevant facts are set out in our previous opinion:
[I]n 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 toward him, and he drove to a nearby intersection ahead of the chase, parked and exited his patrol car, and obtained Stop Sticks from the trunk. While standing behind his car, Alston deployed the Stop
2 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.
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 [S]top [S]ticks mounted in the police car’s trunk and his deployment of the [S]top [S]ticks 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.
(Punctuation omitted.) Hernandez-Flores, supra, 365 Ga. App. at 850-851.
Considering the facts of this case anew, we again address Hernandez-Flores’
contentions that Officer Alston “used” his car for the purposes of OCGA § 33-24-51
(b) 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
3 Sticks. In light of McBrayer, there is now little question that all of these alleged acts
constituted the “use” of a vehicle as contemplated by OCGA § 33-24-51 (b). The
more problematic question, however, is whether Hernandez-Flores’ losses arose out
of any allegedly negligent use of Officer Alston’s police car, and, on this record, we
cannot conclude that they do.
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 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 and punctuation 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).
In pertinent part, OCGA § 33-24-51 (b) waives the sovereign immunity of local
government entities for losses “arising out of claims for the negligent use of a covered
motor vehicle[.]” In previous decisions, this Court interpreted this phrase to only
waive sovereign immunity for claims where the covered vehicle was actively in use “as
4 a vehicle.” See, e.g., Gish v. Thomas, 302 Ga. App. 854, 861 (2) (691 SE2d 900)
(2010). In McBrayer, the Supreme Court of Georgia rejected this narrow reading of the
phrase. The Supreme Court noted the definition of the word “use” as “being
employed or put into action or service,” and it noted that the statutory language did
not limit the definition of “use” to include only uses of a motor vehicle for mere
transportation. McBrayer, supra, 317 Ga. at 394-396 (2) (d). Considering the facts
presented in McBrayer, the Supreme Court concluded that the police officers “used”
a police car when they loaded a plaintiff into the car and restrained him there, even
though the car was not in motion or operational at the time. Id. at 396-397 (2) (d). In
doing so, the Supreme Court overruled this Court’s prior precedent limiting the
definition of “use,” which included our prior opinion in this case as well as many
cases that this Court relied on in our prior opinion in this case. Id. at 397 (2) (d) n.11.
Turning to the facts of this case, we first again conclude that Officer Alston’s
use of his patrol car to assist the pursuit, follow the pursuit on his radio, and drive to
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SECOND DIVISION MILLER, P. J., RICKMAN and PIPKIN, JJ.
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 31, 2024
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 under OCGA § 33-24-51 (b) through its law enforcement officers’ “use of
a vehicle.” The City appealed, and we reversed, concluding that Hernandez-Flores’
claims did not arise from the City’s use of a vehicle. City of Roswell v. Hernandez-
Flores, 365 Ga. App. 849 (880 SE2d 340) (2022). On certiorari, the Supreme Court of Georgia vacated our previous decision and remanded for us to consider the case in
light of its recent decision in McBrayer v. Scarbrough, 317 Ga. 387 (893 SE2d 660)
(2023), which overruled our prior opinion and many of the cases that we relied on in
our prior opinion. See Hernandez-Flores v. City of Roswell, Case No. S23C0351 (Jan.
9, 2024). Considering the guidance from McBrayer, we again conclude that
Hernandez-Flores’ injuries did not arise out of the negligent use of a motor vehicle,
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).
The relevant facts are set out in our previous opinion:
[I]n 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 toward him, and he drove to a nearby intersection ahead of the chase, parked and exited his patrol car, and obtained Stop Sticks from the trunk. While standing behind his car, Alston deployed the Stop
2 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.
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 [S]top [S]ticks mounted in the police car’s trunk and his deployment of the [S]top [S]ticks 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.
(Punctuation omitted.) Hernandez-Flores, supra, 365 Ga. App. at 850-851.
Considering the facts of this case anew, we again address Hernandez-Flores’
contentions that Officer Alston “used” his car for the purposes of OCGA § 33-24-51
(b) 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
3 Sticks. In light of McBrayer, there is now little question that all of these alleged acts
constituted the “use” of a vehicle as contemplated by OCGA § 33-24-51 (b). The
more problematic question, however, is whether Hernandez-Flores’ losses arose out
of any allegedly negligent use of Officer Alston’s police car, and, on this record, we
cannot conclude that they do.
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 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 and punctuation 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).
In pertinent part, OCGA § 33-24-51 (b) waives the sovereign immunity of local
government entities for losses “arising out of claims for the negligent use of a covered
motor vehicle[.]” In previous decisions, this Court interpreted this phrase to only
waive sovereign immunity for claims where the covered vehicle was actively in use “as
4 a vehicle.” See, e.g., Gish v. Thomas, 302 Ga. App. 854, 861 (2) (691 SE2d 900)
(2010). In McBrayer, the Supreme Court of Georgia rejected this narrow reading of the
phrase. The Supreme Court noted the definition of the word “use” as “being
employed or put into action or service,” and it noted that the statutory language did
not limit the definition of “use” to include only uses of a motor vehicle for mere
transportation. McBrayer, supra, 317 Ga. at 394-396 (2) (d). Considering the facts
presented in McBrayer, the Supreme Court concluded that the police officers “used”
a police car when they loaded a plaintiff into the car and restrained him there, even
though the car was not in motion or operational at the time. Id. at 396-397 (2) (d). In
doing so, the Supreme Court overruled this Court’s prior precedent limiting the
definition of “use,” which included our prior opinion in this case as well as many
cases that this Court relied on in our prior opinion in this case. Id. at 397 (2) (d) n.11.
Turning to the facts of this case, we first again conclude that Officer 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. See 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
5 to the officer’s prior use of his vehicle to arrive on the scene). Additionally, we note
that the statute “requires a showing of the negligent use of a covered motor vehicle,
in order to provide for a waiver of county sovereign immunity.” (Citation and
punctuation omitted; emphasis in original.) Upshaw v. Columbus Consolidated Govt.,
369 Ga. App. 524, 535 (3) (894 SE2d 75) (2023). “Negligent” is generally defined as
“inattentive to what ought to be done; failing to take proper, necessary, or reasonable
care, and characterized by or displaying carelessness.” (Citation omitted.) Id.
Hernandez-Flores does not argue that Officer Alston was in any way “careless” when
he used his vehicle to follow the pursuit on his radio and drive to the scene of the
incident.
Second, we again conclude that Officer Alston’s storage of the Stop Sticks in
his car’s trunk also does not give rise to a waiver of sovereign immunity. In Polk
County v. Ellington, 306 Ga. App. 193, 199 (1) (702 SE2d 17) (2010), 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- 24-51], has nothing to do with whether certain rescue equipment was present on a county vehicle.
6 (Citations and punctuation omitted.) Although in Ellington we erroneously stated that
“for a waiver of sovereign immunity under OCGA § 33-24-51 to occur, the injury
complained of must originate in or flow from the use of the motor vehicle as a motor
vehicle,” (Citation and punctuation omitted; emphasis in original) id., which is the
statutory construction that was rejected in McBrayer, our analysis in Ellington
primarily relied on the reasoning that a claim based off of an allegedly negligent use of
safety equipment simply does not “arise” from the use of a vehicle to merely store
that equipment. See id. We cannot say that Hernandez-Flores’ injuries “arose out of”
the mere fact that the Stop Sticks were stored in the car. 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). This case is thus distinguishable
from the situation in McBrayer, where the officers’ use of the vehicle to detain the
plaintiff was a direct contributing factor to the plaintiff’s death. McBrayer, supra, 317
Ga. at 396-397 (2) (d). Compare also McElmurray v. Richmond County, 274 Ga. App.
605, 613 (2) (b) (618 SE2d 59) (2005) (sovereign immunity was waived where
government vehicles sprayed sewage sludge that directly caused the plaintiffs’
7 injuries). Finally, we again note that Hernandez-Flores does not argue that Alston was
negligent when using his car to store the Stop Sticks. See Upshaw, supra, 369 Ga. App.
at 535 (3).
The fact that Officer Alston was standing behind the parked car when he
deployed the Stop Sticks, however, presents a very close question, but we ultimately
conclude on these facts that this also is not an action that would waive sovereign
immunity. The critical fact that we find most persuasive is that the record is clear that
Officer Alston parked his car on the side of the road, not in the road, and so the car
was not “used” as part of a blockade to stop the fleeing suspect or divert him onto the
sidewalk where Hernandez-Flores was located. The record is also clear that the fleeing
suspect swerved to avoid the Stop Sticks, not Alston’s vehicle. Hernandez-Flores’s
reliance on our decision in DeKalb County School Dist. v. Allen, 254 Ga. App. 66 (561
SE2d 202) (2002), is therefore misplaced. In Allen, the plaintiff’s daughter was killed
when she was crossing the street after attempting to board a school bus. Allen, supra,
254 Ga. App. at 66-68. We concluded that the school bus was “in use” 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, the
8 presence of Alston’s vehicle at the scene did not play any such role in causing the
actual accident that caused Hernandez-Flores’ injuries. We emphasize that
Hernandez-Flores’ claims stem from Alston’s allegedly negligent use of the Stop
Sticks which led the fleeing suspect to change course and injure Hernandez-Flores,
rather than any use of his vehicle. We are thus compelled to conclude that Hernandez-
Flores’ claims did not “arise” from this use of a covered vehicle.
Accordingly, because we are again compelled to conclude that Hernandez-
Flores’ claims do not arise from any alleged negligent use of Officer Alston’s patrol
car, we reverse the trial court’s denial of summary judgment on sovereign immunity
grounds.
Judgment reversed. Rickman and Pipkin, JJ., concur.