Innocent Killed in High Speed Chase
The law firm of McDonald & Cody, LLC in Cornelia, Georgia announces a significant settlement in the wrongful death of Mr. Riggins. The settlement was reached after expert Geoffrey Alpert gave his final report. Geoffrey Alpert is an expert in the use of deadly force with an emphasis on police chase and “high speed pursuit”. Geoffrey Alpert is a professor in the Department of Criminology and Criminal Justice in South Carolina. Geoffrey Alpert has published numerous articles in the area of “high speed chase” and use of excessive force. It was due in large part to his expected testimony that the municipality tendered its full policy limits in this tragic death.
In 2010, there were an estimated 35,000 police pursuits across the United States. (Statistics compiled by the National Highway Traffic and Safety Administration’s Fatality Analysis Reporting System, FARS, for 2010.) Nearly forty percent of those pursuits, or 14,000, resulted in crashes. Of that number, at least half resulted in injuries. Additionally, there were 350 pursuit-related fatalities.
Gus McDonald and Gerald Cody have secured a significant confidential settlement in a “high speed chase” that involved the death of a Cornelia man. When innocent bystanders are killed, especially when there is a “high speed” chase, the families of the victim are left to wonder why the chase began initially.
As recently as Saturday, October 19, 2014, police in Atlanta tried to pull a vehicle over (apparently the car was stolen and several teenagers were inside), but the driver took off, ran a red light and smashed into a Ford Mustang in an East Point intersection. The stolen car raced into the street and struck a Mustang, killing the passenger inside. Police said 29-year-old Tiffany Madison was killed in the wreck. Five people, including those in a third car, were taken to a nearby hospital, police said. The crash happened in a well-populated area.
A witness was quoted saying that a few moments prior, six children crossed the street. “Just the thought with that coming by here, just the thought it could’ve been those children, that’s just another big concern.”
The people who were hospitalized are expected to recover, while the teen suspect was taken to jail, according to police. Many municipalities have written policies that set the parameters of what is acceptable and what will not be tolerated during pursuits. Such policies must, however, leave room for the exercise of an officer’s discretion because the circumstances and timing of each potential or real pursuit will vary. Policies thus may provide factors officers should consider when engaging in a pursuit, and most policies fit into one of three basic models:
(1) judgmental—allowing officers to make all major decisions relating to initiation, tactics, and termination
(2) restrictive—placing certain restrictions on officers’ judgments and decisions; for example, the supervisor makes the final call
(3) discouragement—cautioning or discouraging any pursuit, except under the most severe of circumstances
Surprisingly, a police officer who has observed a noticeably intoxicated driver has no duty to protect a member of the general public from the negligence of the intoxicated driver by arresting or otherwise restraining the intoxicated driver from continuing to drive. Before a special duty can be imposed on the police officer to protect an individual from the negligence of the intoxicated driver, there must be a special relationship either between the police officer and the individual-which sets the individual apart from the general public, or between the police officer and the intoxicated driver-which imposes a duty on the officer to control the driver’s conduct. If, when the police officer encounters the intoxicated driver, the individual is not an identifiable victim in immediate danger of harm, there is no special relationship and no special duty to protect the individual from the intoxicated driver’s negligence. If the police officer’s encounter with the intoxicated driver is a passing one, there is no special relationship and no special duty imposed, because the police officer exercises no control over the intoxicated driver. Although a police officer has authority to arrest a driver without a warrant where an offense is committed in his presence or within his immediate knowledge, this authority alone does not create a duty to arrest for purposes of a tort action. Ga. Wrongful Death Actions § 2:51 (4th ed.) Landis v. Rockdale County, 212 Ga. App. 700, 445 S.E.2d 264 (1994), on remand for reconsideration of 206 Ga. App. 876, 427 S.E.2d 286 (1992), in light of City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861 (1993). See also Holcomb v. Walden, 270 Ga. App. 710, 607 S.E.2d 893 (2004), cert. dismissed, (May 12, 2005) (physical precedent only).Ga. Wrongful Death Actions § 2:51 (4th ed.)
Innocent Third Party Statute
Legislative action has perhaps made Nebraska the most plaintiff favorable state for injured third parties in police pursuit lawsuits. Nebraska’s “innocent third party statute” provides, “[i]n case of death, injury, or property damage to any innocent third party proximately caused by the action of a law enforcement officer employed by a political subdivision during vehicular pursuit, damages shall be paid to such third party by the political subdivision employing the officer.” Georgia should consider adopting a similar policy.
Georgia Law
In a recent 2014 decision, from the Georgia Appellate Courts in – City of Atlanta v. McCrary, 760 S.E.2d 696, 698 (Ga. Ct. App. 2014) GRANTED summary judgment to the City of Atlanta by stating that they felt sympathy for the deceased but the wrongful death was essentially part of police work in a dangerous situation.
The evidence shows that Nicholas Dimauro and his patrol partner, both officers with the Atlanta Police Department’s (“APD”) Auto Theft Task Force, were on patrol on the night of January 24, 2008, when they noticed a car with an improperly completed drive-out tag. Dimauro turned on his siren and lights and followed the vehicle. Samuel Knight, the driver of the vehicle, did not stop but instead accelerated, and Dimauro gave chase.
Dimauro deposed that he soon determined that he did not have the legal basis under APD’s high-speed chase policy either to have initiated or to continue the pursuit, and he terminated the chase by turning off his lights and siren and decreasing his speed. He lost sight of Knight’s vehicle. Knight, by contrast, stated in an affidavit that he never lost sight of the police vehicle or its flashing lights. Dimauro deposed that he continued driving and that, about a mile after terminating pursuit, he came upon the site of a two-vehicle accident. He recognized the vehicle Knight had been driving. Knight had crashed head-on into a car driven by Eric McCrary. The collision killed McCrary and Knight’s passenger, Shericka Hill.
The APD policy governing high-speed pursuits that was in effect in 2008, APD Standard Operating Procedure 1050 (“SOP 1050”), provided that an officer could initiate a high-speed pursuit only if (1) the suspect in the fleeing vehicle possessed a deadly weapon; (2) the officer reasonably believed that the suspect posed an immediate threat of physical violence to the officer or others; or (3) there was probable cause to believe that the suspect had committed a crime involving actual or threatened physical harm. The APD conducted an internal investigation, but did not discipline Dimauro because it found that he had terminated the pursuit in compliance with the policy.
Lora Mersier, the administratrix of Hill’s estate, and Ernestine McCrary, the administratrix of Eric McCrary’s estate, sued the City and Dimauro in his official capacity. They alleged that Dimauro and the City were negligent; that Dimauro’s decision to initiate a high-speed chase under the circumstances violated APD’s high-speed pursuit policy; and that the City had maintained a nuisance that endangered the public by failing to enforce its pursuit policy and by failing to train and supervise its officers under the pursuit policy. The Appellate Court agreed with the City.
