Jordan v. City of Rome

417 S.E.2d 730, 203 Ga. App. 662, 92 Fulton County D. Rep. 124, 1992 Ga. App. LEXIS 595

• Court: Court of Appeals of Georgia
• Decided: March 20, 1992
• Docket: A91A2148
• Status: Published

Opinions

Sognier, Chief Judge.

Patricia Jordan and her husband, Cary Jordan, brought a negligence suit against the City of Rome, its chief of police, Joe Cleveland, and a police department radio dispatch officer, John Hellreigel, seeking damages incurred as a result of defendants’ failure to dispatch a police vehicle to the Jordans’ home in response to an emergency call. The Jordans also alleged that defendants’ negligent failure to respond was the result of improper training of radio dispatch officers. The trial court granted the defendants’ motion for summary judgment on the basis that defendants did not breach any “special duty” owed to Patricia Jordan. The Jordans appeal.

In its order on summary judgment, the trial court expressly noted that no question or defense of governmental immunity was raised by appellees. This holding is not challenged by appellees in this court. Although it is not affirmatively reflected in the record, it appears that appellee City has waived appellees’ immunity from liability for damages by the purchase of liability insurance that covered the City and its employees for acts of negligence committed in the scope of their duties. See OCGA §§ 36-33-1 (a), 36-33-3; Adams v. Perdue, 199 Ga. App. 476, 478 (405 SE2d 305) (1991) (municipality can waive governmental immunity to extent of liability insurance coverage). Thus, immunity is not an element in this appeal. Since the issue of the liability of a municipality and its officers for the actions of its police department was resolved in earlier opinions on the basis of the grant of governmental immunity, e.g., Pounds v. Central of Ga. R., 142 Ga. 415 (83 SE 96) (1914), in the absence of such immunity we address the issue for the first time in Georgia.

Construing the evidence most strongly in favor of appellants as respondents on motion for summary judgment, see generally Ingram v. JIK Realty Co., 199 Ga. App. 335, 336 (1) (404 SE2d 802) (1991), the record reveals that early in the morning of December 22, 1987, appellant Patricia Jordan (hereinafter Jordan) was at home with her children while appellant Cary Jordan was away. Hoyt Marks appeared at the door to the home and asked to speak with Dana Jordan Marks, his estranged wife and Cary Jordan’s sister. Jordan deposed that she could tell from Marks’ voice that he was drunk, and she did not allow him inside. Telling him to wait, she telephoned Dana, who instructed Jordan to let Marks inside, then call her back. Dana also to.ld Jordan that she (Dana) would call the police, although there is a conflict in their deposition testimony whether Dana stated she would make the call before or after she talked to Marks. Jordan deposed that she did not ask Dana to call the police, did not know why Dana said she would call the police, and did not ask why Dana thought the police should be called. Instead, Jordan returned to the door and let Marks inside. Jordan stated she was not afraid of Marks at the time and had never been bothered by him. After Marks finished the phone call to Dana, he refused to leave the house. Marks turned on Jordan with a knife and sexually assaulted her. Jordan deposed that she did not fight Marks, that she warned Marks the police were coming, and that she “just knew [the police] were going to come and get him” during the assault. In a call from Dana that Marks allowed her to answer during the assault, Jordan was able to respond negatively in response to Dana’s question whether the police had arrived and was reassured by Dana that she would “call [the police] back” even though Jordan was unable to alert Dana to what was happening. After further assaulting Jordan, Marks left approximately an hour and a half after his arrival. It is uncontroverted that on the night in issue, no police officer ever went to appellants’ home.

Dana deposed that she knew that Marks’ presence at appellants’ home meant that Marks had “escaped” from Northwest Regional Hospital where he was undergoing a program for alcohol abuse. She did not know if Marks was voluntarily involved in the program, but thought it was part of his probation as a habitual violator. She did not tell Jordan what she knew about Marks but deposed that after she spoke to Marks on the phone, she had her mother (and Jordan’s mother-in-law) telephone the City of Rome police department. In Dana’s presence, her mother told appellee Hellreigel, the person who answered the phone, that Marks was at appellants’ home, that he was an escapee from Northwest Regional, and that there were “warrants on him ... for probation revocation.” Dana then took the phone and recognized Hellreigel’s voice because she had previously met him. Dana deposed that she identified herself and repeated the information her mother had given. She telephoned the City of Rome police department two more times, repeating the same information to Hellreigel, and both times in response to her inquiry Hellreigel told her that a car was en route to appellants’ home.

In support of their motion for summary judgment, appellees adduced a transcript of the only call reflected on the master tape recording of the relevant duty shift regarding appellants’ address. The unidentified caller asked for a car to be sent to appellants’ address to have Marks removed from the caller’s son’s house and twice stated that Marks was “harassing” the caller’s daughter-in-law. The caller also stated that there were warrants out for Marks’ arrest, but did not state that Marks had escaped from Northwest Regional Hospital. The caller asked to speak to a particular officer and was placed on hold by Hellreigel, with the final comment on the tape transcript being Hellreigel’s order to the requested officer to talk to the caller on another phone line. In his affidavit Hellreigel averred that after transferring the call to the other phone line, he became busy handling calls stemming out of a shooting in Rome and took no further action on the matter, assuming that the requested officer had handled the caller’s problems.

1. The trial court based its ruling in favor of appellees on a line of foreign authorities, exemplified by Kircher v. City of Jamestown, 543 NE2d 443 (N.Y. 1989), which holds that although a municipality owes a “general duty” to protect the public at large, a breach of that duty does not impose liability for damages suffered by particular citizens except where there exists a special relationship between the police and that individual, whereby the police assumed a “special duty” to provide police protection to that particular individual. See 18 Mc-Quillin, The Law of Municipal Corporations, § 53.04 (b), (c) and (e) (3d ed.). To determine whether a special duty existed, the courts look especially at whether there was “direct contact” between the police and the crime victim and an affirmative undertaking by the municipality to act on the victim’s behalf on which the victim justifiably relied to his or her detriment. See Cuffy v. City of New York, 505 NE2d 937, 940 (N.Y. 1987).¹ A review of learned treatises and the cases cited by appellees reveals that the general duty/special duty analysis “developed to some extent from a commendable willingness of the courts to expand liability, in days when immunity was general, to egregious cases of failure to protect informers and other witnesses to whom protection had been promised . ...” 5 Harper, James & Gray, The Law of Torts, § 29.6A, pp. 641-642 (2d ed.). See Cuffy, supra at 939-940; see also cases cited in Annot., 38 ALR4th 1194 (1985). While a majority of jurisdictions has allowed plaintiffs to pierce a governmental entity’s immunity defense by applying the special duty analysis, a growing minority of jurisdictions has rejected or abandoned the general duty/special duty analysis where sovereign immunity has been abrogated or waived. E.g., Ryan v. State of Arizona, 656 P2d 597 (Ariz. 1982), superseded by statute as stated in Bird v. State, 821 P2d 287 (Ariz. App. 1991); Leake v. Cain, 720 P2d 152 (Colo. 1986). The primary reason for this change is that where sovereign immunity does not apply, use of the special duty analysis creates a shield behind which governmental entities can avoid liability for negligent acts, thereby imposing a type of immunity unique to governmental defendants. See McQuillin, supra at § 53.04 (b), pp. 166-167; Harper, James & Gray, supra at 640.

Given the constitutional and statutory language in Georgia waiving governmental immunity to the extent of applicable liability insurance coverage, we find that the principle behind the general duty/ special duty analysis as set forth in the foreign jurisdictions cited by the trial court and appellees is not applicable in Georgia and affords no basis for the trial court’s grant of summary judgment in favor of appellees.

2. Where sovereign immunity is waived or inapplicable, it is well established that suits against governmental entities are governed by the same general principles of tort law that apply to private entities. See, e.g., City Council of Augusta v. Mackey, 113 Ga. 64, 69 (38 SE 339) (1901) (city liable for negligent act “in the same manner and to the same extent that a private person would be.”) It would seem that the general principle of tort law applicable here is the long established rule that private entities owe no duty to members of the general public to control the behavior of third parties or protect those endangered by the criminal conduct of third parties. Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982).² When applied to private entities that exist to provide private medical treatment or fine dining or vacation accommodations, the rationale behind the rule is apparent. However, when the very existence of the entity in issue is predicated upon the exercise of police powers, such as the protection of individuals from the criminal acts of third parties, the rationale behind the rule falters.

A municipality assumes the protection of persons within its boundaries as an inherent power of government which is granted by the people to its municipal agents. See DeBerry v. City of LaGrange, 62 Ga. App. 74, 77-78 (8 SE2d 146) (1940). The charter that created the City of Rome as a legal entity explicitly places upon the City, its chief of police, and its police officers the duty “to preserve the peace, protect life and property, [and] prevent as far as possible the violations of the ordinances of [the City] and the laws of [Georgia].” Ga. L. 1918, pp. 813, 869, §§ 97, 98. Unlike the treatment center in Bradley Center or the Chinese restaurant in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the City of Rome exists in part to protect its citizens from the criminal acts of third parties. Because of this basic distinction between municipal police departments and private parties, we do not find the rule set forth in Bradley Center, supra, applicable to appellees in the case sub judice.

We hold that no question exists that the City owes the persons within its municipal boundaries a duty to exercise ordinary care to protect them against the intentional and often unpredictable criminal acts of third parties. We further hold, however, that the undertaking of this affirmative duty does not render the City or any municipal corporation an insurer of the safety of every person within its boundaries or subject it to “wholesale liability in negligence to all crime victims on generalized charges of insufficiency of care in law enforcement.” Harper, James & Gray, supra at 640-641. Rather, we hold that where a foreseeable risk of harm develops that is not caused by or created by the municipality, its duty to exercise ordinary care to protect an individual within its boundaries from the intentional and unpredictable criminal acts of third parties arises only when it reasonably knew or should have known that its acts or omissions exposed an individual to the risk.

Our holding is consistent with Georgia law that “[n]egligence consists of exposing another to whom one owes a duty ... to a foreseeable unreasonable probability of harm. Reasonable foresight does not require of a [party] that he anticipate exactly what will happen and exercise perfect judgment to prevent injury. ‘Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.’ [Cit.] ‘Negligence is predicated on faulty or defective foresight rather than on hindsight which reveals a mistake.’ [Cits.]” Ellington v. Tolar Constr., 237 Ga. 235, 238 (227 SE2d 336) (1976). “A party is required only to foresee and guard against that which can be reasonably anticipated to happen, not against that which is only remotely and slightly possible.-[Cit.]” Savannah Bank &c. Co. v. Weiner, 193 Ga. App. 616, 617 (1) (388 SE2d 725) (1989). We note that our holding is consistent with statutory law in which the Legislature, while allowing the general public to bring negligence suits against municipalities for defects in the public roads of the municipality’s streets, has relieved the municipality from any and all liability for those defects except, inter alia, where the municipality negligently created the defect or where it has “actual notice” of the defect. See OCGA § 32-4-93 (a); Andrews v. City of Macon, 191 Ga. App. 745, 746-747 (2) (382 SE2d 739) (1989).

Although the question whether a duty exists is for the court, First Fed. &c. Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 485-486 (394 SE2d 128) (1990), questions of negligence, diligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them except in plain and indisputable cases. Storer Communications v. Burns, 195 Ga. App. 230 (393 SE2d 92) (1990). “The Summary Judgment Act does not authorize the trial court to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury. The sole function of the court on a motion for summary judgment is, rather, to determine whether there exists a genuine issue of material fact.” (Citations and punctuation omitted.) Collins v. Newman Machine Co., 190 Ga. App. 879, 884 (380 SE2d 314) (1989). In determining whether appellees knew or should have known that Jordan was in need of protection and thus breached their duty to exercise ordinary care to provide that protection, the evidence in the record presents clear and unavoidable fact disputes on the questions whether the City and the chief of police, through Hellreigel, received notice; whether, if notice was received, it was sufficient to alert them that a situation existed requiring them to fulfill their duty to exercise ordinary care to protect Jordan; and whether, assuming notice was received, they then reacted appropriately (e.g., whether it was appropriate to wait for some confirmation from Jordan before dispatching a police car, whether the response was within the capabilities of the City’s resources, etc.).

Appellees also argue that even if there was a duty to exercise ordinary care to protect Jordan, summary judgment was nevertheless properly granted in their favor because it was Marks’ intervening criminal act, not their failure to exercise ordinary care that was the proximate cause of appellants’ injuries. We do not agree with appellees that as a matter of law, appellees could not reasonably have anticipated that the probable and natural consequence of a breach of their duty to exercise ordinary care to protect an individual against the intentional acts of a third party would be a criminal assault on the individual by the third party. See Bradley Center, supra at 202-203. Rather, in the circumstances of this case we hold that the question of reasonable foreseeability, like the question of breach of duty, is for a jury’s determination rather than summary adjudication by the court. Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 878 (392 SE2d 535) (1990).

3. Based on its ruling that appellees breached no special duty to appellants, the trial court also granted summary judgment to appellees on the other allegation in appellants’ complaint that the injuries they incurred when appellees failed to respond to the emergency call were the result of appellees’ negligent and improper training of the police department’s radio dispatch officers. Although the basis for that ruling was erroneous, see Divisions 1 and 2, supra, it is well established that a judgment that is right for any reason will be upheld. See generally Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). We find that the entry of summary judgment on this part of appellants’ complaint was proper on another basis.

In support of their motion for summary judgment, appellees submitted the affidavit of appellee Hellreigel, in which he set forth that he was trained by a seasoned dispatcher on the methods of gathering information over the phone, dispatching vehicles, and other matters required to perform his job. Appellees also presented the affidavit of the senior radio dispatcher who was working with Hellreigel who detailed his training and methods followed by the radio dispatch officers on watch during the incident in question. Appellants adduced no evidence to rebut these affiants’ statements about the training they received or otherwise create a genuine issue of fact whether the training that the radio dispatch officers received was not sufficient to enable them to perform their jobs. “Once the moving party for summary judgment has carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. [Cits.]” Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159) (1987). Thus, although the record presents a question of fact whether Hellreigel failed to perform his duties properly in handling the calls allegedly made by Dana Jordan Marks and Jordan’s mother-in-law, there is no dispute in the evidence regarding the overall training of radio dispatch officers employed by the City. Therefore, appellees were entitled to the grant of partial summary judgment on this allegation. OCGA § 9-11-56 (c).

Judgment affirmed in part and reversed in part.

McMurray, P. J., Carley, P. J., and Cooper, J., concur. Beasley, J., concurs specially. Birdsong, P. J., Pope, Andrews and Johnson, JJ., dissent.

1 Kircher, supra, the case cited by the trial court, typifies the application of the special duty analysis. In that case, witnesses observed the plaintiff being forced into a car. The witnesses followed the car but, coming upon a police officer, stopped to inform him of the suspected crime. The officer, although given the tag number of the car, failed to report the incident. The plaintiff was driven to a distant location, beaten and raped, then locked in the car’s trunk, from which she was rescued 12 hours later. The Kircher court held that the plaintiff could not pierce the governmental defendants’ immunity because, under the special duty analysis, “by virtue of her unfortunate circumstances, [she] could not communicate with the police and thus obviously could not rely on their assurances of assistance.” Id. at 446.

2 See also Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (Chinese restaurant not liable for robbery of patrons in parking lot); Adler’s Package Shop v. Parker, 190 Ga. App. 68 (378 SE2d 323) (1989) (liquor store not liable for criminal assault on shopper leaving store); Washington Road Properties v. Stark, 178 Ga. App. 180 (342 SE2d 327) (1986) (hotel not liable for rape and robbery of patrons).