On March 28, 2013, the Georgia Court of Appeals held that innocent passengers unwittingly involved in a high speed police chase can sue the police for damages caused, in part, by a reckless disregard of proper police procedure. In so doing, the Court of Appeals noted that the police pursuit statute found at O.C.G.A. § 40-6-6(d)(2) was enacted by the Georgia Legislature to protect the rights of the innocent. The question according to the Court of Appeals is whether the injured party filing a claim against the police was innocent of wrongdoing. If innocent, whether a passenger inside the vehicle or a pedestrian outside the vehicle or any other third party, the Court of Appeals held that such a person could bring a claim provided they were innocent and were injured, in part, by reckless disregard of proper police procedure. Clayton County v. Austin-Powell, 321 Ga. App. 12, S. 40 S.E. 2d 831 (2013). Whether an innocent person is either inside or outside of a vehicle is no longer legally relevant.
On March 21 of this year, the mothers of the two teenagers killed in this precedent setting lawsuit finally settled with Clayton County after years of litigation. The facts involved two teenage boys who caught a ride with another teenager they did not know to go to the movies. The car was stolen, unbeknown to the teenaged passengers. When a police officer tried to pull the car over for a traffic violation, a 5 mile chase ensued, through 19 intersections. The passengers begged the driver to stop but he would not. At the end of the chase, the fleeing driver crashed into a tree killing himself and 2 of his 5 passengers. (See photographs of wreck scene.)
The McCobb case initially was dismissed by the Trial Court, who held that the Plaintiff failed to state a claim in their initial Complaint. This case was reversed by the Court of Appeals back in 2011 in the case of McCobb v. Clayton County, 309 Ga. App. 707, 710 S.E. 2d 207 (2011). Once the case was reversed and remanded back to the Trial Court, the County then filed a Motion for Summary Judgment, which again was granted by the Trial Court. In Clayton County v. Austin-Powell, decided by the Court of Appeals on March 28, 2013, Judge Deborah Benefield was reversed for a second time when the Court held that passengers involved in high speed police chases can sue provided they are completely innocent and unconnected by their actions with the reason for the pursuit. Once that ruling was entered by the Court of Appeals, the case was sent back to the Trial Court, who then ordered Court Ordered Mediation. After years of litigation, the County finally settled these two law suits for $2,050,000.00.
The Plaintiffs in the case were represented by Richard W. Hendrix of the Atlanta law firm of Finch McCranie, LLP. According to Hendrix, this is believed to be the first case in the State of Georgia in which passengers involved in a police chase have received financial compensation. According to Hendrix, the cases could open the way for other innocent victims to pursue their rights if unwittingly caught up in a police chase while occupying the fleeing vehicle. “Clayton County v. Austin-Powell is an excellent case because it supports the rights of innocent persons to bring claims where police recklessly disregard proper police procedure. If an innocent teenager is out on a date and their date flees because of an open container, a marijuana joint or otherwise, the innocent teenage passenger is not deprived of their rights. If a husband flees, if a date flees, if a friend flees, as long as the innocent passenger is not involved in the flight, does not encourage the flight or is otherwise involved in illegal conduct, they are no different in the eyes of the law than any other person on the roadway injured during a high speed pursuit.”
Most high speed pursuits involve non-violent suspects who are either violating traffic laws or are wanted for some other non-violent offense. If during a pursuit third parties are unnecessarily and recklessly endangered thereby, proper police procedure requires that such a pursuit be terminated. However, if the suspect being pursued is a murderer, rapist, or armed robber and is otherwise known to be dangerous and violent, then the dangers to the public, including passengers and other third parties can be justified even during a high speed pursuit because the need to apprehend is equal to or greater than the danger to the public caused by the pursuit.”
According to Hendrix, Clayton County v. Austin-Powell is a logical extension of Georgia law insofar as it continues to offer protection to innocent third parties injured or killed during dangerous high speed pursuits. After years of litigation, the County apparently decided to settle the cases rather than continue the dispute. The County was represented by the law firm of Freeman, Mathis and Gary and by attorneys Sun Choy and Jack R. Hancock.