(Ga. L. 1953, Nov.-Dec. Sess., p. 556, § 26; Code 1933, § 68A-107, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1990, p. 2048, § 5; Ga. L. 1995, p. 855, § 1; Ga. L. 2002, p. 579, § 4.)
Cross references.- Operation of ambulances and ambulance services generally, T. 31, C. 11.
Equipment of law enforcement and emergency vehicles, § 40-8-90 et seq.
Law reviews.- For article, "The Fall and Rise of Official Immunity," see 25 Ga. St. B.J. 93 (1988). For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003). For article, "Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law," see 57 Mercer L. Rev. 511 (2006). For annual survey on local government law, see 64 Mercer L. Rev. 213 (2012). For annual survey on local government law, see 65 Mercer L. Rev. 205 (2013). For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 295 (1995). For note on the 2002 amendment of this Code section, see 19 Ga. St. U.L. Rev. 243 (2002).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under Ga. L. 1933, § 68-301, and Ga. L. 1953, Nov.-Dec. Sess., p. 556, are included in the annotations for this Code section.
Construction with O.C.G.A. § 40-6-74. - Read together, O.C.G.A. §§ 40-6-6 and40-6-74 mandate that a driver has a duty to yield the right of way to an authorized law enforcement vehicle when the vehicle approaches making use of an audible signal and visual signal under normal atmospheric conditions from a distance of 500 feet to the front of such vehicle, and furthermore the statutes do not restrict an "audible signal" to only sirens, and § 40-6-6 does not apply only when the authorized law enforcement vehicle is responding to an emergency call; accordingly, it was proper to give instructions as to §§ 40-6-6 and 40-6-74 in a suit by a driver who ran into a house while the house was being moved and escorted by police vehicles. Hersh v. Griffith, 284 Ga. App. 15, 643 S.E.2d 309 (2007).
"Authorized emergency vehicle" must be certified.
- In a negligence action arising out of a motor vehicle collision, the court erred by charging the jury that the jury could find the defendant to be operating an "authorized emergency vehicle" privileged to disregard maximum speed limits and other traffic laws, since the defendant admitted the defendant was not "certified," as called for by O.C.G.A. § 40-1-1(5), and had not complied with the certification process. Pryor v. Phillips, 222 Ga. App. 116, 473 S.E.2d 535 (1996).
Time to address causation.
- Nothing in the language of O.C.G.A. § 40-6-6 on emergency vehicles requires a court to address the issue of causation before dealing with the public official defendants' immunity from liability. Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001).
Statute designed for innocent persons, not suspects.
- Appellate court erred in denying city's motion for summary judgment in a police pursuit case as the statute stating that a city could be held liable for injuries sustained during a police pursuit, under certain circumstances, applied only to innocent persons who were injured and not to fleeing suspects unless it was shown the officer intended to injure the suspect; since no such showing was made, the parents of the fleeing suspect who was killed trying to drive away from the officer could not recover from the city. City of Winder v. McDougald, 276 Ga. 866, 583 S.E.2d 879 (2003).
No issue of material fact as to applicability.
- Because the testimony of the driver and the passenger that it was raining so hard they failed to see or hear the fire truck before the collision could be construed consistently with the direct evidence that the fire truck was using an audible signal and flashing red lights visible from a distance of 500 feet, it was insufficient to create a genuine issue of material fact on the applicability of O.C.G.A. § 40-6-6. Brown v. DeKalb County, 333 Ga. App. 441, 777 S.E.2d 23 (2015).
Cited in Karp v. Niver, 142 Ga. App. 241, 235 S.E.2d 589 (1977); Walker v. Burke County, 149 Ga. App. 704, 256 S.E.2d 100 (1979); Jones v. Ray, 159 Ga. App. 734, 285 S.E.2d 42 (1981); Keener v. Kimble, 170 Ga. App. 674, 317 S.E.2d 900 (1984); Mills v. City of Atlanta, 175 Ga. App. 8, 332 S.E.2d 319 (1985); Martin v. Georgia Dep't of Pub. Safety, 257 Ga. 300, 357 S.E.2d 569 (1987); Banks v. Patton, 202 Ga. App. 168, 413 S.E.2d 744 (1992); Jackson v. State, 223 Ga. App. 27, 477 S.E.2d 28 (1996); Morgan v. Causey, 910 F. Supp. 651 (M.D. Ga. 1996); Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001); Roundtree v. Cloud, 250 Ga. App. 334, 551 S.E.2d 770 (2001); Brewer v. Atlanta South 75, Inc., 288 Ga. App. 809, 655 S.E.2d 631 (2007); Rahmaan v. DeKalb County, 300 Ga. App. 572, 685 S.E.2d 472 (2009); Westmoreland v. State, 287 Ga. 688, 699 S.E.2d 13 (2010).
Application
Legislative intent.
- Legislature intended by former Code 1933, § 68-301 to do two things: (1) to give the drivers of certain authorized emergency vehicles the right to travel when occasion required it at a speed in excess of the limit fixed by the provision applicable to motor vehicles generally; and (2) to protect the public on highways, and even those riding in the vehicles thus favored, from reckless disregard of their safety by the drivers of these privileged vehicles. Archer v. Johnson, 90 Ga. App. 418, 83 S.E.2d 314 (1954) (decided under former Code 1933, § 68-301).
Innocent citizens must not be unreasonably endangered.
- While it is most desirable and patently to the public interest that officers of the law proceed with much promptness and speed in overtaking and apprehending the violators of the law, and that the officers need not be answerable for simply exceeding the speed limits fixed by statute, yet the life and limb of innocent citizens must not be unreasonably endangered in the process. Archer v. Johnson, 90 Ga. App. 418, 83 S.E.2d 314 (1954) (decided under former Code 1933, § 68-301).
Georgia Court of Appeals concludes that the protection afforded innocent persons pursuant to O.C.G.A. § 40-6-6(d)(2) applies whether the innocent person is outside the vehicle or is an innocent passenger in the vehicle. Clayton County v. Austin-Powell, 321 Ga. App. 12, 740 S.E.2d 831 (2013), overruled on other grounds, Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015).
Determining driver's regard for others' safety.
- Conditions expressed in subsection (c) of Ga. L. 1953, Nov.-Dec. Sess., p. 556, when met, are to be taken into consideration in determining whether the driver of an authorized emergency vehicle exercising these statutory privileges has driven with due regard for the safety of others or has recklessly disregarded the safety of others. Poole v. City of Louisville, 107 Ga. App. 305, 130 S.E.2d 157 (1963) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).
Determining the emergency nature of a call.
- In determining whether a vehicle is driven in response to an emergency call, it is not only material, but essential, to consider such facts as disclose the nature of the call which was being answered. This involves both a statement of the substance of the call as the call came into the hospital and the substance or terms of the call as communicated to the driver of the ambulance. City of Macon v. Smith, 117 Ga. App. 363, 160 S.E.2d 622 (1968) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).
No marking of police cars as escort vehicles.
- In a suit by a driver who ran into a house while the house was being moved and escorted by police vehicles, there was no merit to the driver's argument that the police vehicles had to be marked as escort vehicles; that would be contrary to O.C.G.A. §§ 40-6-6 and40-8-91, which mandate proper markings for police cars and do not allow the vehicles to have amber lights. Hersh v. Griffith, 284 Ga. App. 15, 643 S.E.2d 309 (2007).
Vehicles in funeral procession.
- Vehicle traveling in funeral procession is not within one of the categories of emergency vehicles. Gaudry v. Brandt, 119 Ga. App. 237, 166 S.E.2d 737 (1969) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).
Privileges and conditions of operation.
- Ga. L. 1953, Nov.-Dec. Sess. p. 556 grants special privileges in operation of emergency vehicles, but sets out conditions for operation (which include the use of sirens and lights), and provides for liability when there has been a reckless disregard for the safety of others. Violation does not necessarily make the driver of the emergency vehicle liable, but it keeps open the issue of causation, which otherwise would be foreclosed. City of Winterville v. Strickland, 127 Ga. App. 716, 194 S.E.2d 623 (1972) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).
Evidence that a fire rescue emergency vehicle's lights were working properly at the time of an accident and testimony that the lights "were in compliance with Georgia law" was sufficient for a jury to have found that the lights were visible from a distance of 500 feet, in compliance with O.C.G.A. § 40-6-6 for purposes of allowing the vehicle to proceed through a red light; accordingly, a trial court properly denied a driver's motion for a directed verdict and judgment notwithstanding the verdict pursuant to O.C.G.A. § 9-11-50(a) arising from a collision that occurred at the intersection involving the driver's vehicle and the emergency vehicle. Wynn v. City of Warner Robins, 279 Ga. App. 42, 630 S.E.2d 574 (2006).
Officer failing to engage siren negligent.
- An officer whose emergency lights were in operation, but who failed to engage the officer's emergency siren before taking off in pursuit of an errant motor vehicle, was negligent. Herren v. Abba Cab Co., 155 Ga. App. 443, 271 S.E.2d 11 (1980).
Immunity of deputy.
- After a sheriff's deputy caused a collision with another vehicle when the deputy failed to use the deputy's blue lights or siren when responding to an emergency call, the deputy was entitled to immunity in the absence of insurance purchased by the county which would protect the deputy. Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990).
Deputy sheriff's high-speed response to an emergency call was a discretionary act which was protected by sovereign immunity even if the deputy acted negligently. Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994).
Injury resulting from police officer's high speed pursuit.
- Fact an officer was performing the officer's professional duty in pursuing a suspect did not preclude the imposition of liability; the decision to initiate or continue pursuit of a suspect could be negligent when heightened risk of injuries to third parties was unreasonable in relation to the interest in apprehending the suspect so that genuine issues of material fact existed as to the reasonableness of the officer's conduct. Mixon v. City of Warner Robins, 264 Ga. 385, 444 S.E.2d 761 (1994), superseded by statute as stated in City of Winder v. McDougald, 276 Ga. 866, 583 S.E.2d 879 (2003); But see Pearson v. City of Atlanta, 231 Ga. App. 96, 499 S.E.2d 89 (1998), overruled on other grounds by Strength v. Lovett, 311 Ga. App. 35, 714 S.E.2d 723 (2011); Thompson v. Payne, 216 Ga. App. 217, 453 S.E.2d 803 (1995).
Officer could not be held liable in negligence after the evidence showed that the officer balanced the risks involved in pursuit of a fleeing vehicle and did not violate the principles set forth in O.C.G.A. § 40-6-6. Wilson v. City of Atlanta, 223 Ga. App. 144, 476 S.E.2d 892 (1996).
Officer's actions of slowing before going through a red light, exceeding the speed limit during light or nonexistent traffic, and disregarding regulations governing direction of traffic movement when oncoming traffic was light or nonexistent, as a matter of law, did not constitute a "reckless disregard" of law enforcement procedures, and were actions expressly authorized by O.C.G.A. § 40-6-6. Pearson v. City of Atlanta, 231 Ga. App. 96, 499 S.E.2d 89 (1998), overruled on other grounds by Strength v. Lovett, 311 Ga. App. 35, 714 S.E.2d 723 (2011).
Trial court erred in denying summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a city and the city's employees in a wrongful death action; a police officer's actions were not the proximate cause of a decedent's death during a crash with a vehicle which was fleeing from police at high speed, and therefore O.C.G.A. § 40-6-6(d)(2) did not apply. City of Pooler v. Edenfield, 263 Ga. App. 278, 587 S.E.2d 408 (2003).
Deputy who was involved in a high-speed chase with a suspect was not liable for injuries a motorist sustained when the suspect's vehicle hit the motorist's vehicle because the deputy was performing a discretionary function when the deputy decided to pursue the suspect and the deputy did not act in reckless disregard of proper law enforcement procedures. Standard v. Hobbs, 263 Ga. App. 873, 589 S.E.2d 634 (2003).
In an arrestee's 42 U.S.C. § 1983 suit against a lead pursuit deputy and the supervisor for using excessive force to stop the arrestee's car during a high-speed chase, the arrestee's negligence claim against the county was not precluded by O.C.G.A. § 40-6-6(d)(2) because the claim was not based on the officers' decision to initiate and pursue a high-speed chase, but rather, was based on the officers' decisions to ram the arrestee's vehicle; the right to ram a vehicle was not one of the specific "exceptional rights" granted to pursuing officers under the statute. Harris v. Coweta County, F. Supp. 2d (N.D. Ga. Sept. 25, 2003).
Because police officers followed procedures in pursuing an individual in a high-speed chase, the officers did not violate O.C.G.A. § 40-6-6; consequently, because O.C.G.A. § 50-21-24(6) provided the Georgia Department of Public Safety (DPS) with immunity from liability for injuries resulting from the pursuit, the trial court properly granted summary judgment to the DPS. Blackston v. Ga. Dep't of Pub. Safety, 274 Ga. App. 373, 618 S.E.2d 78 (2005).
Whether a police officer disregarded traffic rules, pursuant to O.C.G.A. § 40-6-6(d)(2), while engaged in a high-speed pursuit of a fleeing suspect, did not change the fact that the decision to pursue the suspect was a discretionary one for which the officer was entitled to official immunity against a negligence action asserted by the individuals who were injured in a car that was involved in an accident as a result of the chase. Hanse v. Phillips, 276 Ga. App. 558, 623 S.E.2d 746 (2005).
Arrestee's negligence and battery claims against a deputy and other law enforcement officers failed because the arrestee was unable to show that the deputy acted with actual malice or actual intent to cause injury, which showing was required under Georgia case law discussing O.C.G.A. § 40-6-6(d)(2), when the deputy bumped the arrestee's car to stop the car after the arrestee led the deputy on a six-minute, 10-mile high-speed chase. Harris v. Coweta County, 261 Fed. Appx. 213 (2008)(Unpublished).
Because the legislature enacted O.C.G.A. § 40-6-6(d)(2) to limit liability when a fleeing suspect injures an innocent person, the legislature did not intend simultaneously to expand liability to cover injuries to the fleeing suspect. The fleeing suspect may be able to recover for the suspect's own injuries if an officer acts with an actual intent to cause injury as the phrase "actual intent to cause injury," which contains aspects of malice, means an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. Harris v. Coweta County, 261 Fed. Appx. 213 (2008)(Unpublished).
In a wrongful death action by a decedent's estate and her children against the county sheriff, the relevant conduct supporting a finding of proximate cause under O.C.G.A. § 40-6-6 was the decision of the sheriff's deputy to initiate or continue pursuing a fleeing suspect, not how the deputy drove the vehicle during the course of the pursuit. Thus, the trial court did not err in denying summary judgment on proximate cause grounds when there was some evidence from which a reasonable jury could have concluded that the deputy chose to continue the pursuit with conscious indifference to whether continuing the pursuit violated proper law enforcement procedures. Strength v. Lovett, 311 Ga. App. 35, 714 S.E.2d 723 (2011), cert. denied, No. S11C1794, 2011 Ga. LEXIS 979 (Ga. 2011).
Trial court erred in granting summary judgment to the city because genuine issues of material fact remained as to whether, under O.C.G.A. § 40-6-6(d)(2), the officer acted with reckless disregard of proper law enforcement procedures and the officer's actions were thus the proximate cause of the collision between the fleeing suspect and the driver. The driver's and passenger's affidavits were sufficient to create genuine issues of material fact regarding whether the officer acted with reckless disregard for proper law enforcement procedures in the officer's pursuit, which may be found to constitute a proximate cause of the driver's injuries. Ray v. City of Griffin, 318 Ga. App. 426, 736 S.E.2d 110 (2012).
Discretion applies to driver of ambulance.
- Public employee's act of driving an ambulance was a discretionary act and, thus, the employee could not be held liable when the employee collided the ambulance with another vehicle while responding in the ambulance to an emergency call, even though the public employee may have been driving the ambulance negligently, as the law suspended the mechanical application of certain traffic rules and left the employee with the discretion to determine how to best respond to an emergency while driving the ambulance; accordingly, the trial court properly granted summary judgment to the employee after a wrongful death action was filed against the employee arising out of the collision. Smith v. Bulloch County Bd. of Comm'rs, 261 Ga. App. 667, 583 S.E.2d 475 (2003).
Reckless disregard for proper law enforcement procedures in high speed pursuit.
- After the plaintiff in a wrongful death action presented some evidence that the defendant, a deputy sheriff, acted with reckless disregard for proper law enforcement procedures at the time the officer engaged in a high speed pursuit, the trial court erred in granting summary judgment to the defendant. Lang v. Becham, 243 Ga. App. 132, 530 S.E.2d 746 (2000).
After the plaintiffs were injured when a speeding car driven by a suspect who was fleeing law enforcement crashed into the plaintiffs' car, summary judgment was improperly granted to the Monroe County Sheriff as the Monroe deputies acted with reckless disregard of the Monroe County pursuit procedures in continuing a high speed chase of the fleeing driver because the pursuit of the fleeing driver was initiated based on a minor traffic violation; the Monroe deputies were informed by the police dispatcher that there were no warrants for the driver; and the fleeing driver reached speeds of 120 to 125 miles per hour, aggressively wove in and out of traffic, and drove through red lights at congested intersections. Wingler v. White, 344 Ga. App. 94, 808 S.E.2d 901 (2017), cert. denied, No. S18C0651, 2018 Ga. LEXIS 467, cert. denied, No. S18C0649, 2018 Ga. LEXIS 522 (Ga. 2018).
Police pursuing suspect did not waive sovereign immunity.
- In a case arising from a police chase, the trial court properly granted the police department's motion to dismiss on sovereign immunity grounds because the trial court correctly found that the police department did not waive sovereign immunity since the pursuing officers faithfully implemented the police department's policies and procedures and did not waive sovereign immunity pursuant to O.C.G.A. § 50-21-24(6). Loehle v. Ga. Dep't of Pub. Safety, 334 Ga. App. 836, 780 S.E.2d 469 (2015).
Issue of material fact as to fire truck's operation.- A genuine issue of material fact existed as to whether the fire truck proceeded past the red signal only after slowing down as may be necessary for safe operations and with due regard for the safety of all persons; thus, the trial court erred in granting summary judgment. Brown v. DeKalb County, Ga. App. , S.E.2d (June 17, 2015).
No waiver of immunity.
- Because O.C.G.A. § 40-6-6 applies only when a defendant's actions are not entitled to immunity, the statute had no application in an action arising from an accident occurring when the defendant officer was within the scope of the officer's official authority while pursuing a suspected stolen vehicle. Williams v. Solomon, 242 Ga. App. 807, 531 S.E.2d 734 (2000).
In a tort action for personal injuries and property damage arising from an auto collision filed against a city, because the facts did not involve an officer's pursuit of a fleeing suspect, or damages caused by a fleeing suspect, O.C.G.A. § 40-6-6 did not apply to the action and, thus, the trial court erred in relying on the statute as a ground for granting summary judgment to the city on sovereign immunity grounds. Weaver v. City of Statesboro, 288 Ga. App. 32, 653 S.E.2d 765 (2007), cert. denied, No. S08C0421, 2008 Ga. LEXIS 221 (Ga. 2008).
Jury Instructions and Issues
Charge of violation against arresting officer.
- In prosecution of a case involving traffic violations, since the arresting officer's guilt or innocence of the offense of violating O.C.G.A. § 40-6-6 was not an issue, the trial court did not abuse the court's discretion in curtailing the defendant's cross-examination of the officer regarding such a violation. Horton v. State, 206 Ga. App. 242, 424 S.E.2d 882 (1992).
Charge proper.
- Trial court did not err in failing to give requested jury instructions by a driver whose vehicle was involved in a collision with a city fire rescue van as the trial court's instructions under O.C.G.A. §§ 40-6-6 and40-6-20(a) properly allowed the jury to determine whether the rescue van was an authorized emergency vehicle that complied with § 40-6-6, and the instructions also adequately informed the jury that the city had the burden of proof on the issue. Wynn v. City of Warner Robins, 279 Ga. App. 42, 630 S.E.2d 574 (2006).
Arresting officers have broad authority.
- Former Code 1933, § 68-301 was but a modern expression of the doctrine that arresting officers, "the ministers of justice," have a broad scope of authority and freedom of action while in the performance of the officers very responsible functions. Archer v. Johnson, 90 Ga. App. 418, 83 S.E.2d 314 (1954) (decided under former Code 1933, § 68-301).
Jury question whether proper care exercised.
- Neither proceeding past signal, nor exceeding speed limit by emergency vehicle, is of itself negligence. But whether the care required by law was exercised in doing either of these things will generally be a question for the jury as are other questions of negligence. Bynes v. Stafford, 106 Ga. App. 406, 127 S.E.2d 159 (1962) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).
Jury question on whether passenger in stolen vehicle was innocent person.
- Trial court erred by granting summary judgment to a county in a wrongful death action because there existed issues of fact as to whether the passenger in a stolen vehicle was an innocent person killed during the officer's pursuit of a fleeing suspect. Clayton County v. Austin-Powell, 321 Ga. App. 12, 740 S.E.2d 831 (2013), overruled on other grounds, Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015).
Error to instruct failure to stop negligence per se.
- Trial judge erred in instructing the jury that it was negligence per se for an ambulance, even on an emergency call, to fail to stop at a traffic control light when the color was red. Royal Cab Co. v. Hendrix, 96 Ga. App. 44, 99 S.E.2d 355 (1957) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 556).
RESEARCH REFERENCES
Am. Jur. 2d.
- 7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 226, 298 et seq.
Negligent Operation of Emergency Vehicle, 10 POF3d 203.
C.J.S.- 60A C.J.S., Motor Vehicles, § 870 et seq.
ALR.
- Applicability of motor vehicle regulations to public officials or employees, 19 A.L.R. 459; 23 A.L.R. 418.
Validity of statute or ordinance giving right of way in streets or highways to certain classes of vehicles, 38 A.L.R. 24.
Liability for personal injury or damage from operation of fire department vehicle, 82 A.L.R.2d 312.
Liability arising from accidents involving police vehicles, 83 A.L.R.2d 383.
Liability of governmental unit or its officer for injury or damage from operation of vehicle pursued by police, 83 A.L.R.2d 452.
Propriety of and liability arising from police use of precision immobilization technique or similar act, 42 A.L.R.7th Art. 2.