The Buckley Brown Blog

On April 24, 2008, several Buckley Brown attorneys will join a distinguished panel of speakers for a one day seminar addressing issues related to Municipal and Governmental Liability claims.  Among the scheduled speakers are United State Magistrate Judge Alan J. Baverman, University of Georgia School of Law Professor Thomas A. Eaton, and Bryan A. Downs, City Attorney for the City of Decatur, Georgia.  The seminar—appropriate for attorneys as well as human resource and claim professionals serving federal, city, county, law enforcement and state governmental agencies—will address recent trends and issues in cases involving claims against governmental agencies and individuals serving the federal, state and local governments.  Registration, directions and other information is available at www.iclega.org/schedule.html.

The public duty doctrine dictates whether a governmental entity owes a duty of care to an individual.  Previously, the Georgia Supreme Court has applied the public duty doctrine only to cases involving police protection.  The defendant in Gregory v. Clive, S06G2138 (10/9/2007) asked for the public duty doctrine to be extended to the “general provision of government services under the ‘police power’ of local governments, if a special relationship between the plaintiff and the governmental entity can be shown.”  In Gregory, the plaintiffs built a house and barn on their property.  Clive, a building inspector with the county, inspected Gregory’s house and issued a certificate of occupancy, but did not inspect the barn.  The barn collapsed, injuring Gregory.  In the lawsuit, Gregory alleged that if the barn had been inspected, its defects would have been discovered.  The Georgia Supreme Court rejected plaintiff’s request to extend the doctrine, confirming that the public duty doctrine applies only in the context of the “provision of police protection services traditionally done by police enforcement personnel.”

For more information, please contact Tim Buckley at (404) 633-9230.

Under the Georgia Constitution, counties are immune from lawsuits unless waived by statute. So when Vincent Currid’s estate filed suit against DeKalb State Court Probation Department, DeKalb County defended the suit on sovereign immunity grounds.  Plaintiff alleged that the Department was liable under the Community Service Act for gross negligence, recklessness, and willful indifference to Mr. Currid’s safety when he died after falling from the back of a DeKalb County sanitation truck while fulfilling community service.  Plaintiff asked the Court to recognize an implicit waiver in the Community Service Act to comport with the policy that a county is not protected by sovereign immunity when it acts willfully or wantonly.  The Court of Appeals rejected Plaintiff’s plea, reiterating that constitutional sovereign immunity is only waived by explicit language in a statute and finding no such language in the Community Service Act.  DeKalb State Court Probation Dept. v. Currid, A07A1123 (9/26/2007).

For more information, please contact Tim Buckley at (404) 633-9230.

The Georgia Court of Appeals recently redefined how sheriffs are viewed under state law in Nichols v. Prather, A07A0148 (7/16/2007). Previously, in Brown v. Dorsey, 276 Ga. App. 851, 625 S.E.2d 16 (2005), the Court of Appeals held that sheriffs are not policy-makers for the purpose of holding a county liable for violations of 42 U.S.C. § 1983 because counties have no control and thus have no authority to alter a sheriff department’s policies. Nichols, on the other hand, involved a deputy sheriff (Nichols) who, while driving his patrol car without his lights or sirens activated, struck and killed the plaintiff’s decedent. Plaintiff brought suit against Nichols, Pickens County, and Pickens County Sheriff, Billy Wofford. With respect to the liability of Pickens County, the Court of Appeals held that a county cannot be vicariously liable for the alleged negligence of a sheriff’s deputy because sheriff’s deputies are employees of the sheriff only. The Court of Appeals explained that its decision in Brown v. Dorsey applied only to immunity for a sheriff’s violation of 42 U.S.C. § 1983 and had no application to a sheriff’s liability under respondeat superior for his deputy’s negligence or the county’s liability under agency principles.

For more information, please contact Tim Buckley at (404) 974-4570.

In a First Amendment Retaliation Case, an employee argues retaliation by an employer based on an employer’s action that is likely to harm the employee’s use of constitutionally protected speech. To prevail, the plaintiff must prove: (1) his speech was on a matter of public concern; (2) his First Amendment interest in engaging in the speech outweighs his employer’s interest in prohibiting the speech; and (3) his speech played a “substantial part” in the adverse employment decision. Speech is a matter of public concern when the employee speaks as a citizen, not an employee fulfilling official duties. If a person speaks as an employee, then there is no claim for First Amendment Retaliation. Garcetti v. Ceballos, __ U.S. ___, 126 S.Ct. 1951 (2006). Speech is made in fulfillment of official duties when it is made as part of the plaintiff’s role as an employee. Unprotected speech includes a district attorney’s memo criticizing the use of an affidavit to secure evidence, and a financial aid counselor’s reporting on fraudulent management and use of federal financial aid funds. It appears that a First Amendment Retaliation Claim will be successful only when the speech is outside the areas of the employee’s job responsibilities completely or when the statements are made in a public forum. Battle v. Board of Regents for the State of Ga., 468 F.3d 755 (11^th Cir. 2006); Springer v. City of Atlanta, WL 2246188 (N.D.Ga., 2006).

For more information, please contact Denny Brown at (404) 974 - 4571.

Although police officers are granted immunity from personal liability for discretionary acts within the scope of their authority, a police officer may be personally liable for even discretionary acts when done with actual malice or with the intent to injure. An act is done with actual malice when the police officer has a deliberate intention of wrongdoing. In contrast, a police offices performing a ministerial duty does not need specific intent of wrongdoing and may be found personally liable based on negligence. Phillips v. Hanse, 281 Ga. 133, 637 S.E.2d 11 (2006).

For more information, please contact Tim Buckley at (404) 974-4570.

Under the public duty doctrine, a governmental unit cannot be held liable for its duty owed to the general public. In Georgia, the public duty doctrine applies only to cases involving police protection. The Court of Appeals of Georgia rejected the argument that building inspection services were covered by the doctrine because they were government services under police powers for the protection of the public welfare. The court explained the doctrine did not apply to such services because it concerns police protection, not police powers. Clive v. Gregory, 280 Ga.App. 836 (2006).

For more information, please contact Tim Buckley at (404) 974- 4570.