Verdict - Summer 2015 - (Page 40)

> CASE UPDATES What's New? BY SHAUN O'HARA SUPREME COURT OF GEORGIA injections and stitches. Eshleman argued The Court of Appeals found, there was some ISSUES OPINION ON POLICE that she was entitled to official immunity evidence that Eshleman's duty to properly OFFICER'S OFFICIAL IMMUNITY because in caring for the canine, she had restrain the dog was ministerial. The appel- The Supreme Court of Georgia in Eshleman been performing her duties as a police officer. late court held that a ministerial duty may v. Key, S14G1173 (June 29, 2015) reversed a She argued Key could not recover damages be established by a statute, and that under Georgia Court of Appeals decision and ruled because of official immunity. O.C.G.A. § 51-2-7, a "person who owns or that a police officer cannot be held liable for Eshleman filed a motion for summary keeps a vicious or dangerous animal of any injuries suffered by a boy who was bitten by judgment arguing that she was protected by kind and who, by careless management her police dog because she is protected by official immunity. The trial court denied her or by allowing the animal to go at liberty, official immunity. motion and the Court of Appeals affirmed. causes injury to another person," may be In November 2011, 11-year-old Chandler The issue on appeal was the difference liable to the injured person. According to the Key was attacked by a police dog while play- between discretionary and ministerial Court of Appeals, "because the dog was a ing in the yard. The DeKalb County Police duties. According to the Court, discretionary police canine, specially trained to apprehend Department owned the dog, which was acts are those requiring personal delibera- suspects, there was some evidence that 'the assigned to Officer Eshleman. Eshleman, tion, decision-making, and judgment. While animal had a propensity to do the act which who lived in Key's neighborhood, kept the ministerial duties are absolute, simple, and caused the injury and that the defendant dog at her home when she was not working. involve merely the execution of a specific knew of it." The Court of Appeal concluded After noticing that neighborhood children task or direction. Under public official immu- that "where the relevant facts pertaining to were peering over the fence into her yard, nity, officials are afforded greater protec- official immunity are in dispute, resolution of Eshleman spoke with them, cautioning them tion when they are faced with a situation the factual issues is for the jury." not to look over the fence because the act that requires them to make a judgment call, Eshleman appealed to the Supreme Court, antagonized the dog. She also warned them so that they can make that decision with- which agreed to review the case to determine that if they ever see him out, to just stand out fear of being sued. They are offered whether the Court of Appeals was wrong in still. When asked what it was about the chil- less protection when they are performing ruling that § 51-2-7 creates a ministerial duty dren's actions that could put them in danger, simple, automatic tasks governed by clear in this case. Eshleman replied, "when you run, you become rules. According to the Court, county law Justice Blackwell, writing for the major- prey to a dog." enforcement officers such as Eshleman are ity, held that the Court of Appeals was wrong On Nov. 6, 2011 Eshleman, who was off- entitled to official immunity for the negligent in ruling that O.C.G.A. § 51-2-7 can create a duty, was preparing to take the dog with her performance of discretionary acts within ministerial duty. The Court held that "we will to visit a friend. She placed the dog in a kennel the scope of their authority, but they have assume that Eshleman, having been assigned in her truck; however, she neglected to secure no immunity if they act with malice or intent responsibility for the care and maintenance the crate's door. The dog jumped from the to injure, or if they negligently perform a of the dog, knew the dog to be a 'vicious or truck and ran into the yard where Key was ministerial act. While the Court of Appeals dangerous animal.'" The Court stated further playing. As Key tried to run away, the dog agreed with Eshleman that her actions at that "assuming these things, it follows that chased him, latched onto his arm and dragged the time of the incident in caring for the Eshleman absolutely owed a duty to manage him to the ground. dog were within the scope of her official and restrain the dog so as to prevent the dog Key's father sued Eshleman, alleging she duties, "she has not shown that the act from from injuring others." However, "the impor- was negligent for failing to properly restrain which the alleged liability arose - proper tant question in the context of official immu- the canine. Key suffered a laceration and restraint of the canine by securely clos- nity is not merely whether an officer owed a puncture wound and had to be treated with ing the kennel door - was discretionary." duty of care, but rather, whether the official 40 Georgia Trial Lawyers Association

Table of Contents for the Digital Edition of Verdict - Summer 2015

President’s Message
GTLA President’s Gala
Trying a Sex Abuse Case Against a Local Church in a Conservative Venue
New Strategies and Interventions to Curtail Discovery Abuses
High-Speed Police Chases and Injured Innocent Bystanders
When One Award is Not Enough
Three Strategies to Fend off a Funding Attack
Recent Updates to Georgia Suggested Pattern Jury Instructions (Civil), July 2013 – Present
The Hidden Predator Act: How House Bill 17 Will Impact Victims’ Rights in Georgia
New Lawyers’ Corner: Trying a Low-Damage Jury Case
Professional Practice Pointers: Updates on E-filing, the Court of Appeals, and a New Traffic Division in DeKalb State
Case Updates: What’s New?
Workers’ Comp Updates
Notes: What’s New with GTLA Members
Welcome New GTLA Members!
Index to Advertisers

Verdict - Summer 2015