Georgia Supreme Court Holds Dog Bite Victim Cannot Sue Police Officer

In Georgia, most dog owners can be held liable if their animal bites or injures someone. Unfortunately, “most dog owners” do not include police officers, according to a recent Georgia Supreme Court decision. The justices reversed a lower appeals court which previously held a police officer could be sued for failure to control a police dog that injured an 11-year-old child.

Eshleman v. Key

The defendant in this case is a DeKalb County police officer who is responsible for the care of a police dog. The officer keeps the dog at her home in Walton County. In November 2011, the officer placed the dog in a portable kennel outside her home. Due to the officer’s apparent failure to secure the kennel door, the dog escaped and encountered the child of one of the officer’s neighbors. The dog subsequently attacked the child, seriously injuring his arm.

Under Georgia law, “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.” Accordingly, the child’s father sued the police officer for negligence.

But the police officer argued she could not legally be held responsible. The Georgia Constitution provides state employees, including police officers, cannot be sued “for the performance or nonperformance of their official functions.” A state employee can only be sued for negligence in performing a “ministerial function,” that is carrying out a duty specifically required by law. When an employee is allowed to exercise discretion in performing her duties, she is immune from lawsuit.

Both the trial court and the Georgia Court of Appeals held the police officer in this case was exercising a ministerial function and therefore not entitled to immunity. The Georgia Supreme Court disagreed. In a unanimous June 29 opinion, the justices said the while the officer may have “owed a duty to manage or restrain” her police dog to prevent it from injuring others, this did not render the officer’s actions ministerial. “Ordinary care to restrain an animal requires the taking of reasonable measures to keep the animal restrained,” the Court explained, and that necessarily means individual owners have to exercise “personal deliberation and judgment.”

Similarly, the Court said the father could not sue the police officer for violating a Walton County ordinance requiring all animals be “kept under proper restraint” to avoid injuring others. Again, the Court said this imposed only a general duty of care and left to individual owners “the choice of reasonable measures.” In order to be considered a ministerial duty, the law must direct “the carrying out of a specified task.”

One way to impose a ministerial duty is for a state agency to implement specific policies requiring employees to act in a certain manner. As the Supreme Court noted in this case, DeKalb County did not give any “specific direction” to its officers on how to handle police animals during off-duty officers. Ultimately, the county’s lack of policy deprived the victim of his day in court.

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