Georgia Court of Appeals Reverses Trial Court and Holds that Question Regarding City’s Liability for Attack by Off-Duty Police Officer Should go to Jury

As Judge McMillian mentioned at the beginning of his opinion, the Georgia Court of Appeals is very familiar with the facts of Graham v. City of Duluth. This opinion was the third that the court has rendered related to an incident that occurred on February 1, 2008. On that day, an inebriated, off-duty police officer attacked a woman and another off-duty police officer who came to give aid. In earlier decisions, the Court of Appeals upheld the criminal convictions of the off-duty police officer and affirmed a trial court decision addressing civil claims brought by the second off-duty police officer. Now, more than six years after the incident, the Court of Appeals examines the civil claims brought by the woman who was attacked.
On appeal, the court needed to determine whether it was appropriate for the trial court to grant summary judgment for several claims in favor of the defendant, the City of Duluth. Although the officer was off duty when the incident occurred, the plaintiff argued that the city was nonetheless liable for the serious injuries caused by the officer’s conduct. Specifically, the plaintiff contended that the city was liable based on theories of respondeat superior, negligent hiring, and negligent retention. The trial court granted summary judgment in favor of the city on all these claims, and the Court of Appeals agreed with the trial court with respect to the respondeat superior and negligent retention claims. However, the appeals court reversed the grant of summary judgment with respect to the negligent hiring claim.
Pursuant to Georgia law, an employer “is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency.” OCGA § 34-7-20. Accordingly, it is well settled that an employer will be liable “for hiring or retaining an employee the employer knows or in the course of ordinary care should have known was not suited for the particular employment.” Munroe v. Universal Health Svcs., Inc., 277 Ga. 861, 862 (596 SE2d 604) (2004). In this case, the Court of Appeals noted that determining whether an employer exercised reasonable care in hiring an employee depends on the position for which the employee is hired. Thus, given the power associated with being a police officer, an employer must exercise a higher degree of care in selection in order for that exercise of care to be considered reasonable.

Just a few weeks prior to being formally hired, but months after he had originally applied and been interviewed, the police officer had been held at a local hospital for one night after an incident during which he reportedly belligerently brandished his service weapon – at the time of the incident, the officer was employed as a reserve motor deputy with the Fulton County Sheriff’s Office – and two other weapons at his neighbors while in a highly intoxicated state. The Fulton County Sheriff’s Office was informed of this situation, and although the city had conducted a background investigation, it curiously did not unearth this incident. The court looked to the Department’s “Operating Procedures” for conducting background investigations and noted that the protocol required that information on an applicant be updated at the moment employment is offered. Accordingly, the court determined that had the Department complied with its own protocol and contacted current and past employers at the moment employment was offered, it likely would have discovered this information. Since that information would obviously bear on the officer’s suitability for employment, a question of material fact did exist as to whether in performing its background investigation the city exercised reasonable care, and thus granting summary judgment was inappropriate. In addition, the court found that the injuries suffered by the plaintiff fell within the type of harm that could foreseeably result from the hiring of this officer, and thus it is permissible for a jury to ascribe fault to the city.
Although this decision is a victory for the plaintiff, she is still not assured recovery for her injuries. Rather, the plaintiff will now, six years after she was attacked, have the opportunity to bring her story to a jury that will decide whether, and how much, she will recover. Beyond the importance to the plaintiff, the Court of Appeals opinion also stands as a victory for numerous litigants who are harmed as a result of an employee’s conduct and, in particular, those harmed as a result of police misconduct. While litigation, as it has in this case, can take a considerable amount of time, getting full recovery for your injuries is possible. If you have been injured or otherwise harmed by an employee who was on the job or abusing power granted by his employment, the knowledgeable Atlanta injury lawyers at the Law Office of Terrence R. Bethune are ready to offer you guidance. For a free consultation, click here or call 1-800-487-8669.