Supreme Court Finds Officer Entitled to Official Immunity for Off-Duty Dog Bite

June 30, 2015

The Georgia Supreme Court continued its recent trend of decisions detailing the scope of official immunity. In Eshleman v. Key, No. S14G1173, 2015 WL 3936075 (Ga. June 29, 2015), the Court determined that official immunity applies even where a statute and/or ordinance provides for definite duties, if complying with the law requires “an exercise of personal deliberation and judgment about what is reasonable in the particular circumstances presented” rather than requiring the carrying out of a specified task.

Lynn Eshleman was a DeKalb County Police Officer responsible for the care of a trained police dog, including while the dog remained at her residence following work. One day, the dog escaped its kennel at Eshleman’s home and attacked a neighbor’s eleven-year-old child, causing significant damage to the child’s arm. After the neighbor sued for Eshleman personally for her failure to restrain the dog, Eshleman moved for summary judgment based upon Official Immunity, which the trial court denied. After the Georgia Court of Appeals affirmed the decision of the trial court, the Supreme Court granted cert to review.

The Court began its discussion by acknowledging that generally, an officer enjoys Official Immunity from personal tort liability while engaged in the performance of official functions, and that the officer’s handling of the dog, even while off-duty, constituted such an official function. Noting that the negligent performance of a ministerial duty removes the protection of Official Immunity, the Court examined the nature of the defendant’s duty vis-à-vis the dog, eventually finding that the officer, although required by law to restrain the dog, retained the discretion to determine and employ the proper precautions and care necessary to keep the dog restrained. Accordingly, the Court found the officer’s duty discretionary, rejecting the Plaintiff’s argument that the Georgia Statute (O.C.G.A. § 51-2-7) and County Ordinances at-issue set forth an “absolute and sufficiently specific duty” to restrain the dog, finding rather that the laws set forth a “generalized duty not to permit a domesticated animal to be at large.” Since the officer was decidedly engaged in a discretionary – rather than a ministerial – function, the Court found the officer entitled to summary judgment on grounds of Official Immunity, as she had not acted with malice or intent to injure.

Georgia courts have recently set out to clarify the complex laws regarding Official Immunity. As the doctrine of Official Immunity – and its applicability in a given case – can determine the outcome of a lawsuit, those engaged in or contemplating a lawsuit involving a public agent should make careful note of these laws and consult an attorney familiar with their applicability and scope. The attorneys at Parks, Chesin & Walbert have extensive knowledge and experience handling cases that involve Official Immunity and are here to guide you. Contact our firm today at 877-986-5529 or firm@pcwlawfirm.com.

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