Trial Attorney Blog
As we have blogged about on many occasions in the past, there are many unfortunate situations where third party innocent victims become involved in reckless and dangerous police chases. If the police are chasing a juvenile, a traffic offender or some other non-violent offender and while traveling at high speeds continues to chase the suspect under such dangerous conditions that they crash into an innocent third party, there should be legal liability for a reckless disregard of proper police procedure in this context. Indeed, under Georgia law, O.C.G.A. § 40-6-6 specifies that where there is evidence of a reckless disregard of proper police procedure in the decision to either initiate or continue a high speed pursuit, such reckless disregard can be the basis of liability against the police if an innocent third party is injured due to such recklessness. Notwithstanding the statute, it is commonplace in any case brought by an innocent victim against the police for the government entity involved to assert sovereign immunity as a defense.
This issue was decided long ago by the Georgia Supreme Court in a case called Cameron v. Lang. In that case the Georgia Supreme Court held that where a plaintiff proved that there was insurance coverage for the incident and also had proof that there was a reckless disregard of proper police procedure, then in that event, sovereign immunity would be waived. This is because Georgia law has long held that where there is insurance coverage applicable to the negligent use of a motor vehicle, sovereign immunity is waived for counties and municipalities.
The argument now being advanced by police departments is that “reckless disregard of proper police procedure” is not the same as “negligent” use of a vehicle. This is a specious argument that has been rejected by most courts that face it but nonetheless the argument continues to be made. Moreover, many governmental entities do not carry any insurance and even though there is a statute which specifies that all governmental entities must have certain minimum amounts of self insurance coverage up to certain statutory limits, entities
continue to claim that despite this law they still have sovereign immunity.
What is troubling about these cases is that whenever sovereign immunity is asserted as a defense, the defense bar takes the position that they may directly appeal an adverse ruling. There is a law on the books that states that counties, municipalities and other governmental entities should not even assert governmental immunity as a defense in these cases and yet they continue to do so. If these defenses are rejected by the courts, the government then appeals thereby delaying the resolution of the claim. Unfortunately, there is a case decided by the Georgia Supreme Court which has held in a different context that any time a defense of sovereign immunity is rejected by a Trial Court that the governmental entity may directly appeal that adverse ruling. This decision, however, is in contrast with the statutory language which states that governmental immunity may no longer be pled as a defense in any case where there is a statutory waiver of immunity, which is true for all police chase cases under the provisions of O.C.G.A. § 36-92-2(d)(4).
The bottom line to these cases is that any time an innocent victim is injured by a reckless disregard of proper police procedure that the innocent victim and/or their family will be in for a long legal battle. The police do not wish to be held accountable for reckless disregard of proper police procedure and will fight such cases typically until the bitter end. These cases are difficult to litigate but if one is patient and perseveres such a case should be presented to a jury for resolution.
Innocent victims are dying throughout this country and they deserve the right to present their claims to a jury of their peers where there is a proven reckless disregard of proper police procedure in the decision to initiate or continue a dangerous police pursuit. Yes – we want the bad guy captured. No – we do not want the death penalty imposed on innocent third parties where the bad guy is being chased for a non-violent offense. Accountability is the key if the police are to learn that they cannot chase under any circumstances.