City of Winder v. McDougald

Fletcher, Chief Justice.

We granted certiorari in this case to consider whether a municipality may be held liable for injuries a suspect incurs when the suspect is fleeing police in a high speed chase. The Court of Appeals held that the municipality could be liable for the wrongful death of the suspect upon a showing that the police officer acted in reckless disregard of proper police procedures.¹ Because the wrongful death claim was brought by the parents of the fleeing suspect and the reckless disregard standard of OCGA § 40-6-6 (d) (2) applies only to the claim of an innocent party, we reverse.

Fourteen-year-old Ashley McDougald took her father’s car without permission and was driving in the City of Winder at 4:40 a.m. without turning on the car’s headlights. A City police officer observed another vehicle flash its lights at McDougald and when McDougald failed to turn on the lights, the officer turned on his blue flashing lights and began to follow McDougald. When McDougald continued to drive without headlights, the officer turned on his siren and McDougald sped away. While the officer followed McDougald, she increased her speed and soon lost control of the car and hit a utility pole. McDougald was killed and her parents sued the officer and the City. The trial court denied summary judgment for the City, holding that the City had waived immunity to the extent of its insurance coverage and that it could be liable if the officer acted negligently.² The Court of Appeals affirmed the denial of the City’s motion, but held that the standard for liability under OCGA § 40-6-6 (d) (2) was whether the police officer acted in reckless disregard of proper police procedures.

Prior to 1995, OCGA § 40-6-6 (a) provided that an officer pursuing a suspect “shall not [be] relieve [d] . . . from the duty to drive with due regard for the safety of all persons.” In Mixon v. City of Warner Robins,³ this Court relied on this provision to hold that a municipality could be liable for injuries to an innocent third party caused by a suspect who was fleeing police. A municipality’s civil liability “is solely dependent upon the officer’s own adherence to his duty to drive with the requisite due regard for the safety of others.”⁴ Summary judgment would be appropriate only if the evidence demanded a finding that the officer properly balanced the risk to the safety of other drivers in the pursuit against the interest in apprehending the suspect. Under this standard, the Court concluded that the trial court had erred in entering summary judgment for the defendants, and thus, the Court expanded the liability of police and municipalities.

In response to Mixon, the legislature amended OCGA § 40-6-6 (d) to provide that an officer’s pursuit of a suspect “shall not be the proximate cause or a contributing proximate cause of the damage, injury or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures.”⁵ By imposing a reckless disregard standard in place of the negligence standard of Mixon, the legislature narrowed the circumstances in which an innocent party injured by a fleeing suspect could recover from the municipality. Because the legislature enacted subsection (d) (2) to limit liability when a fleeing suspect injures an innocent person, we conclude that the legislature did not intend simultaneously to expand liability to cover injuries to the fleeing suspect. The Court of Appeals’ contrary holding disregards the legislative intent underlying OCGA § 40-6-6 (d) (2), is inconsistent with public policy, and leads to an absurd result.⁶

Our conclusion is supported by the appellate courts’ interpretations of OCGA § 40-6-6 (d) prior to its 1995 amendment. In 1954 the Court of Appeals emphasized the public policy of protecting innocent third parties, stating that while “[fit is desirable . . . that the officer overtake and apprehend the criminal, . . . it is equally as important that innocent persons, whether or not connected with the emergency to be met, not be maimed or killed in the operation.”⁷ Additionally, the other cases interpreting the pre-amendment version of OCGA § 40-6-6 (d) all involved a claim for recovery by an innocent person.⁸ Because the legislature sought to restrict rather than expand liability, and the statute has been previously construed to protect innocent parties only, we hold that OCGA § 40-6-6 (d) (2) does not govern the claim of the fleeing suspect.

The fleeing suspect may be able to recover for her own injuries if an officer acts with an actual intent to cause injury.⁹ However, the trial court concluded that there was no evidence that the officer acted with malice or an actual intent to cause injury, and therefore, that issue is not before us in this case.

Judgment reversed.

All the Justices concur, except Sears, P. J, Benham and Thompson, JJ, who dissent.

1 City of Winder v. McDougald, 254 Ga. App. 537 (2) (562 SE2d 826) (2002).

2 The trial court granted summary judgment to the individual officer based on official immunity and that ruling was not challenged on appeal.

3 264 Ga. 385 (444 SE2d 761) (1994).

4 Id. at 388.

5 1995 Ga. Laws 855, codified as OCGA § 40-6-6 (d) (2).

6 See New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 495 (117 SE2d 538) (1960) (“Where the letter of the statute results in absurdity or injustice or would lead to contradictions, the meaning of general language may be restrained by the spirit or reason of the statute”).

7 Archer v. Johnson, 90 Ga. App. 418, 424 (83 SE2d 314) (1954).

8 Mixon, 264 Ga. at 387; Wilson v. City of Atlanta, 223 Ga. App. 144 (476 SE2d 892) (1996); Thompson v. Payne, 216 Ga. App. 217 (453 SE2d 803) (1995); Banks v. Patton, 202 Ga. App. 168 (413 SE2d 744) (1991); Archer, 90 Ga. App. at 418.

9 See Kidd v. Coates, 271 Ga. 33, 34 (518 SE2d 124) (1999).