Tittle v. Corso

569 S.E.2d 873, 256 Ga. App. 859
CourtCourt of Appeals of Georgia
DecidedOctober 15, 2002
DocketA02A0828
StatusPublished
Cited by33 cases

This text of 569 S.E.2d 873 (Tittle v. Corso) 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.

Bluebook
Tittle v. Corso, 569 S.E.2d 873, 256 Ga. App. 859 (Ga. Ct. App. 2002).

Opinions

Phipps, Judge.

Russell Tittle and his wife sued Gwinnett County Deputy Sheriff Paul Corso and the Gwinnett County Sheriff’s Department, alleging a variety of torts. The trial court granted Corso’s motion for summary judgment on the ground that he was entitled to official immunity from suit. The court also denied the Tittles’ motion to substitute the sheriff, in his official capacity, for the sheriff’s department. The Tittles appeal both rulings. We affirm because there is no evidence that [860]*860Corso acted with actual malice and the sheriff was entitled to sovereign immunity.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.1 We review a grant of summary judgment de novo and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.2

Viewed in this light, the evidence shows that at about 1:00 a.m. on October 6, 1999, Corso was watching television at home, having just finished his shift with the sheriff’s department. He heard six to eight “loud popping noises” outside that he believed were gunshots. He looked out the window and saw a car with its emergency lights on, and he heard a broadcast over the police radio that shots had been fired and officers should “check the neighborhood.” Corso decided to respond to the call because “[i]t was so close to my house I was worried about it.”

Meanwhile, Tittle was driving his wife and two children home. The car began to backfire repeatedly, and Tittle switched to “back roads” because he was afraid that “[s]omebody’s going to think we’re out here shooting or something.” A short while later, the muffler exploded and caught fire, and the car shut off entirely. Tittle exited the car and began “kicking the muffler around” with half of his body under the car.

Corso pulled up in his patrol car, stopped near Tittle, and shone the patrol car’s spotlight and headlights onto Tittle. Corso approached Tittle with his gun drawn and told him to stand, put his hands in the air, and walk backward toward him. Tittle complied. Corso then ordered him to lie face down, placed a gun against his neck, and introduced himself. Corso searched him for weapons and found none. Corso testified that he had Tittle lie down because he had no handcuffs with him, and Tittle admitted that Corso did not hurt him.

While Tittle was lying down, his wife got out of the car and asked what was going on. Corso told her to get back in the car and that he would “explain it in a minute.” Then Corso had Tittle sit down cross-legged while he went to his patrol car to use the radio. Tittle tried to explain that he was having muffler trouble, but Corso told him, “Shut up. I’m in control.” According to Tittle, however, Corso “dispatched and told them that I was having car trouble.” Corso also requested backup.

Next, Corso helped Tittle to his feet and walked him over to the [861]*861patrol car. Tittle testified that Corso did this not in a hurtful manner, but “just like any officer would.” Although Tittle testified that he was “scared,” he again denied that Corso hurt him. According to Tittle, Corso then “slammed me down on the hood and [said], Tf you fucking move, I’ll put my dog on you, and he’ll eat you up.’ ” Corso also told Tittle that “if I fucking moved, he’d blow my head off” and that more officers would arrive and would “treat you worse than I did.”

Corso left Tittle leaning over the hood of the patrol car, walked over to Tittle’s car, and asked his wife if there were any guns in the car. She said no, and Corso asked her to get out of the car. He then promised not to hurt the children, one of whom was sleeping, and leaned into the car and asked if there was a gun inside. The child who was awake “shook his head no.”

The backup officers arrived and ascertained that Tittle’s license check was clean and that no weapons were present. After offering the Tittles assistance, the officers permitted them to leave in their car.

Corso denies putting a gun to Tittle’s head or slamming him against the hood of his patrol car. He also maintains that Tittle did not initially tell him about the broken muffler. He further asserts that he never threatened to blow Tittle’s head off and that he did not use the expletive “fucking” during his confrontation with the Tittles.

Tittle sued Corso, alleging false imprisonment, aggravated assault, battery, intentional infliction of emotional distress, and trespass. Tittle’s wife also sued Corso, alleging intentional infliction of emotional distress and trespass. Finally, the Tittles sued the Gwinnett County Sheriff’s Department under a theory of respondeat superior. The trial court denied the Tittles’ motion to substitute the sheriff, in his official capacity, as Corso’s employer, ruling that the sheriff would be entitled to the defense of sovereign immunity, which had not been waived by the county. The trial court also granted Corso’s motion for summary judgment on the grounds that he was entitled to official immunity.

1. The Tittles argue that the trial court erred in granting summary judgment to Corso becáuse genuine issues of material fact exist as to whether his actions demonstrated actual malice. We cannot agree.

Corso was acting within the scope of his authority and performing an official discretionary function in investigating a “shots fired” call.3 Thus, he is entitled to official immunity from the Tittles’ claims, [862]*862absent a showing that he acted with actual malice or intent to cause injury.4 The Tittles do not contend that Corso intended to injure them. They argue instead that his actions demonstrated actual malice. Actual malice, in the context of official immunity, means a deliberate intention to commit a wrongful or illegal act.5

The Tittles concede that Corso’s actions up to the point of radioing for backup do not show any actual malice. They argue, however, that Corso’s subsequent use of unnecessary profanity and force do show actual malice because, at that point, Corso knew that Tittle was unarmed and merely had a problem with his muffler. Although we in no way condone Corso’s behavior, as described by the Tittles, we must conclude that, as a matter of law, it does not rise to the level of actual malice.

Tittle testified that after making the radio call, Corso helped him to his feet “just like any officer would” and escorted him to the patrol car. Although Corso still held his gun in his left hand, the Tittles did not testify — contrary to assertions in their brief — that Corso again placed the gun against Tittle’s neck. Tittle did testify that Corso threatened to shoot him or unleash his dog on him if he moved. In addition, Tittle testified that Corso “slammed” him against the patrol car. Thus, the actions alleged to constitute actual malice include the use of profanity, threats, and “slamming.”

Although profanity may be distasteful and insulting, we cannot conclude that it shows actual malice, particularly in the absence of any epithets or other words indicating any personal bias. As we noted in Woodward v. Gray,6 evidence demonstrating “frustration, irritation, and possibly even anger” is not sufficient to penetrate official immunity.

Nor are Corso’s alleged threats sufficient to establish actual malice.

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Bluebook (online)
569 S.E.2d 873, 256 Ga. App. 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tittle-v-corso-gactapp-2002.