ESHLEMAN v. KEY

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Court of Appeals of Georgia.

ESHLEMAN v. KEY et al.

No. A13A1671.

Decided: March 28, 2014

While playing in his neighbor's yard, 11–year–old Chandler Key was bitten by a police canine that had escaped a kennel placed in the back of a parked pickup truck. The canine was owned by the DeKalb County Police Department (the department) and assigned to Lynn Eshleman, a department police officer and canine handler who was another of Key's neighbors. Key's father (individually and on Key's behalf) initiated this negligence action against Eshleman, alleging that she was liable because she had failed to properly restrain the canine. In her answer, Eshleman asserted that she was entitled to official immunity because in caring for the canine, she had been performing her duties as a department police officer. Eshleman admitted that she had not securely closed the door of the kennel and that the canine got out of her truck; she did not deny that the canine bit Key. Eshleman moved for summary judgment, asserting that Key could not recover because she was entitled to official immunity and Key had equal knowledge of the canine's propensities. Eshleman appeals from the trial court's denial of her summary judgment motion. We affirm.

1. “This [c]ourt has a duty to inquire into its jurisdiction to entertain each appeal.”1 “[T]he Georgia Code limits our jurisdiction to consider direct appeals to specific categories of judgments set forth in subsections (1) through (12) of OCGA § 5–6–34(a). All other judgments of a trial court are considered interlocutory and are therefore subject to the interlocutory appeal procedure set forth in OCGA § 5–6–34(b).”2

Although the order appealed from is interlocutory, we have jurisdiction under the collateral order doctrine․[O]fficial immunity is an entitlement not to stand trial rather than a mere defense to liability. And this Court has held that an order denying such an immunity claim is appealable under the collateral order doctrine because the order conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment.3

2. Eshleman contends that the trial court erred by denying her motion for summary judgment because her actions at the time of the incident were discretionary and were within the scope of her official authority as a canine handler with the department. Because Eshleman has not shown that the relevant actions were discretionary, she is not entitled to summary judgment on the basis of official 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.4

[O]n appeal from the denial or grant of summary judgment[,] the appellate court is to conduct a de novo review of the evidence to determine whether there exists 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.5

Viewed in the light most favorable to Key, the record shows the following. Eshleman was a police officer and canine handler with the department. The department owned “Andor,” a suspect-apprehension canine, and assigned Andor to Eshleman after Eshleman completed canine handler school. Pursuant to department policy, canine handlers were responsible for the care and maintenance of canines assigned to them.

Eshleman began taking Andor home with her and keeping him there. After noticing that the children who lived next door to her were looking over the fence that separated their yards, Eshleman spoke with them and their parents, cautioning them not to look over the fence because the act antagonized Andor. Eshleman also warned them that if they “ever ․ see him out, he happens to escape the fence or something, to just stand still.” When asked on deposition what it was about the children's actions that could put them in danger, Eshleman replied, “Well, when you run, you become a prey object to a dog.”

On November 6, 2011, Eshleman was off-duty, preparing to take Andor with her to visit a friend. Eshleman was loading her personal vehicle, a pickup truck which was parked in her driveway; the truck was equipped with a camper cover that had a door that folded down over the tailgate. Eshleman brought Andor out of her house and commanded him to jump into the back of the truck. Andor complied, then entered the kennel in the back of the truck. Eshleman swung the kennel door shut, and “assumed” it was closed. While the truck's tailgate was down and the camper cover was open, Eshleman stepped away from the truck to retrieve a water bottle from another vehicle. Andor jumped out of the truck and ran toward Key, who was playing football in Eshleman's next-door neighbor's yard. As Key tried to run away, Andor chased him, latched onto his arm, and “took [him] to the ground.” Key sustained a bite wound to his arm.

[C]ounty law enforcement officers such as [Eshleman] are entitled to official or qualified immunity for the negligent performance of discretionary acts within the scope of their authority, but they may be personally liable if they negligently perform a ministerial act or act with actual malice or an intent to injure when performing a discretionary act.6

The difference between ministerial and discretionary acts has been explained as follows: A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.7

To support her contention that the actions complained of were discretionary and taken within the scope of her official authority as a police officer and canine handler, Eshleman pointed to evidence that, as a department canine handler, she was responsible for Andor's care and maintenance even when she was off-duty;8 that there were no department policies or procedures for securing and transporting police canines in private vehicles; and that she had not received such training regarding private vehicles.

We agree with Eshleman that her actions at the time of the incident, in caring for and maintaining the police canine assigned to her, were taken within the scope of her official authority.9 Notwithstanding, she has not shown that the act from which the alleged liability arose10 —proper restraint of the canine by securely closing the kennel door—was discretionary.

“The rationale for [official] immunity is to preserve the public employee's independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.”11 Eshleman did not show that the act at issue in this case, restraining the canine by securely closing the kennel door, “call[ed] for the exercise of personal deliberation and judgment, which in turn entail[ed] examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.”12

Moreover, there was evidence that Eshleman's duty to properly restrain the canine was ministerial, to wit, “one that [was] simple, absolute, and definite, arising under conditions admitted or proved to exist, and requir[ed] merely the execution of a specific duty.”13 “A ministerial duty may be established by ․ a statute.”14

In his complaint, Key alleged that Eshleman violated OCGA § 51–2–715 by failing to properly restrain “a vicious animal.”16 Because Andor was a police canine, specially trained to apprehend suspects, there was some evidence that “the animal had a propensity to do the act which caused the injury and that the defendant knew of it.”17 Where the relevant facts pertaining to official immunity are in dispute, resolution of the factual issues is for the jury.18

“[Eshleman] bore the burden on summary judgment of demonstrating that [she] was entitled to official immunity by showing that the specific acts [she] performed were discretionary.”19 Inasmuch as she has not met that burden, the trial court did not err by denying her motion for summary judgment.

Judgment affirmed.

PHIPPS, Chief Judge.

ELLINGTON, P.J., and BRANCH, J., concur.

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