City of Roswell v. Hernandez-Flores

Facts

In City of Roswell v. Hernandez-Flores, the trial court denied the Defendant’s Motion for Summary Judgment regarding the city’s sovereign immunity arising from the serious injuries a pedestrian sustained when a suspect fleeing a police pursuit struck her. The Court of Appeals reversed the denial of summary judgment to the City and held that Plaintiff failed to show a valid waiver of the City’s sovereign immunity, and therefore, judgment as a matter of law was warranted. 

In March 2015, officers from the City of Roswell were pursuing a suspect who committed a home invasion. One of the Roswell officers, who was ahead of the suspect, heard on the radio that the chase was heading toward him. That officer drove to a nearby intersection, exited his patrol car, took out “Stop Sticks” (tire-deflating spikes) from his trunk, and deployed the spikes while standing behind his patrol car. 

The fleeing suspect swerved to avoid the Stop Sticks and crashed into the Plaintiff as she was walking on a nearby sidewalk.

Plaintiff filed a negligence claim against the City for her multiple permanent injuries, alleging that the City waived sovereign immunity pursuant O.C.G.A. § 33-24-51 because the use of the Stop Sticks arose out of the officer’s use of his patrol vehicle.

The City filed a Motion for Summary Judgment, arguing that it was entitled to sovereign immunity because there was no waiver of immunity. It contends that the waiver provided for in O.C.G.A. § 33-24-51 did not apply because it did not arise out of the use of a motor vehicle. 

The trial court disagreed and denied the City’s Motion, finding that there were genuine issues of material fact on whether the officer’s “efforts to assist in the case by using his patrol car to drive to the intersection, use of the patrol car to monitor the chase on his radio, use of the spikes from the patrol car’s trunk, and deploying the spikes while standing behind the patrol car” constituted “use of the police car” for purposes of waiving sovereign immunity. The City appealed. 

Issue and Holding

Did the Plaintiff’s injuries arise out of the use of a motor vehicle to create a waiver of sovereign immunity under O.C.G.A. § 33-24-51?

No

Reasoning

Sovereign immunity is an issue of law that the trial court must address before the merits of remaining arguments move forward to the trier of fact.

Municipal Corporations Waiver of Immunity

O.C.G.A. § 33-24-51(b) and § 36-92-2 provide that municipal corporations waive immunity “for a loss arising out of claims for the negligent use of a covered motor vehicle.” To waive sovereign immunity, Plaintiff must prove that her claim arose from the use of the City’s vehicle that was both the cause in fact and proximate cause of her injury.

There is no bright-line rule for the “use” of a City vehicle. Instead, the “use” depends on the circumstances surrounding the injury. However, the common law demonstrates that the waiver statutes are to be strictly construed against finding a waiver because they are in derogation of the common law.

Use of the Vehicle

Factors to consider when determining “use of the vehicle” include whether the injury “originated from, had its origin in, grew out of, or flowed from” the use of the motor vehicle “as a vehicle.” This term extends beyond the vehicle actually making physical contact but does not imply remoteness. For example, a court could consider whether the storage of equipment in a county vehicle constitutes “use” of the motor vehicle.

Was the officer’s vehicle actively in use when Plaintiff’s injuries occurred?

The vehicle should be actively in use when the injury arose. Wingler v. White, 344 Ga. App. 94, 101 (2017).

The Court of Appeals reasoned that the officer’s use of his patrol car to assist the pursuit, follow the pursuit on his radio, and drive to the intersection was “too attenuated and remote” from the harm to Plaintiff to waive immunity. At the time of Plaintiff’s injuries, the car was already parked, which means it was not actively in use at the time of injury. 

Did the officer’s storage of the tire-deflating spikes in the trunk of his patrol car give rise to Plaintiff’s injuries? 

The Court of Appeals recognized it had previously held that a claim did not arise out of the “maintenance of operation of a county vehicle merely because such equipment is stored or transported on, or is removed from, or is left off of, such a vehicle.” Polk County v. Ellington, 306 Ga. App. 193, 199 (2010). 

The officer’s storage of the spikes in his patrol car’s trunk did not give rise to waiver of sovereign immunity because, at most, it was the officer’s use of the spikes (not even the storage of the spikes) that led to Plaintiff’s injuries.

Was the patrol car in use “as a vehicle” when the officer stood behind the car to deploy the spikes?

When a patrol car is stationary and being used as an “ancillary prop” to assist an officer, it is not being used as a vehicle. Ankerich v. Sanvko, 319 Ga. App. 250, 253-55 (2012). (Officer directing traffic while patrol car was parked less than 20 feet away with the lights activated.) When an officer left a detainee and loaded gun in a stationary patrol car, and the detainee used the gun to commit suicide, the patrol car was not in use as a vehicle. Gish v. Thomas, 302 Ga. App. 854, 861 (2010). 

At the time of Plaintiff’s injuries, the officer was using his patrol car as a static prop to deploy the spike and not as a vehicle. As a result, standing behind the vehicle did not give rise to a waiver of sovereign immunity.

Conclusion

Hernandez-Flores reminds us that a municipal corporation’s waiver of sovereign immunity is a question of law. When considering the “use of a vehicle” waiver, the court must consider the entirety of the circumstances to decide whether Plaintiff’s injuries “originated from” or “flowed from” any “use” of a City vehicle being used “as a vehicle.” 

As to the question of whether the City vehicle was in “use,” we have to remember that the ONLY way to constitute a waiver of sovereign immunity is if Plaintiff’s injuries were caused by that vehicle actively being used as a vehicle. 

Arguably, if an officer placed a bomb in the trunk of a car to transport it, and Plaintiff was injured from the bomb exploding from the trunk of the City vehicle, then we could possibly make the argument that Plaintiff’s injuries flowed from the vehicle being used as a vehicle when that happened. People use the trunks of vehicles to transport things. If the bomb was simply being stored in the trunk with no intention of ever transporting it somewhere, that may not be enough to show the vehicle was still being used “as a vehicle.” Instead, the vehicle would have been used as a storage center.

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Citation: City of Roswell v. Hernandez-Flores, A22A0985 (Ga. Ct. App. Oct. 28, 2022)