In a recent case, a police dog bit an eleven-year-old. The dog had escaped from a kennel in a police officer’s personal pick up truck. The canine was owned by the police department and assigned to a police officer and canine handler who was a neighbor of the injured child.
The boy’s father sued the officer for negligence. He argued she had failed to restrain the dog appropriately. The police officer answered she had official immunity. In taking care of the dog at home she had been performing her duties as a police officer employed by the government. She admitted she hadn’t securely shut the kennel and she admitted the boy had been bitten.
Nonetheless, she moved for summary judgment, claiming she was protected by official immunity and the eleven-year-old had equal knowledge of the dog’s tendencies. The trial court denied her motion. She appealed. The appellate court explained official immunity exists where someone is entitled not to have to stand trial. When an order denies immunity, it is appealable even though it is not a final judgment.
The police officer argued that her actions related to the dog bite were discretionary and within the scope of her official authority as a police dog handler. The appellate court determined that she had not shown the her actions in connection with restraining the dog were discretionary.
The record showed the department owned “Andor,” the dog in question. He was assigned to the defendant after she completed dog handling school. Handlers were responsible for the care of those dogs assigned to them. In this case, the defendant took the dog home with her and kept him there. She noticed neighbor kids peering over the fence that separated her yard from theirs. She warned them not to look over the fence because this action provoked the dog. She also warned them that if they saw the dog out to stand still. When asked about this warning at deposition, she testified that when someone runs, he or she becomes the dog’s prey object.
On the day of the accident the defendant was not on duty. She was preparing to take Andor to a friend’s place. She loaded her pickup and told the dog to jump in the back of it. Andor went into the kennel in the back of the truck. She closed the door, assuming it was properly shut She left the truck to get water from another car. Meanwhile Andor leaped out of the truck and charged at little boy playing in a neighboring yard. As the boy tried to get away, the dog chased him and took him to the ground.
The appellate court explained that an officer that is usually entitled to official or qualified immunity for her negligent performance of discretionary job-related acts, can be held personally liable for negligent performance of a ministerial act or where she acts with actual malice.
A ministerial act is one that is simple and definite. A discretionary act calls for the exercise of personal judgment, examining the facts and reaching a reasoned conclusion. The defendant believed the act at issue here was discretionary and within the scope of her official authority. The court found there was evidence that her duty to properly restrain the dog was ministerial—the dog had a propensity to bite and the defendant knew that. Resolution of factual issues related to official immunity is jury questions.
If you are hurt or a loved one is killed due to negligence, you may be able to recover compensation for your losses. Experienced Atlanta personal injury attorney Terrence R. Bethune can evaluate your case and fight for any compensation you may deserve. Contact us at 404-875-7800 or via our online form.
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