CITY OF WINDER v. McDOUGALD et al., 254 Ga. App. 537

Miller, Judge. The City of Winder appeals from the trial court’s denial of its motion for

summary judgment. On appeal Winder contends that the trial court erred by (1) failing to strike plaintiffs’ expert affidavit, and (2) specifying the wrong legal standard on

summary judgment and denying

summary judgment to Winder. We discern no error and affirm. Viewed in the light most favorable to the plaintiffs, the evidence reveals that at 3:00 a.m. on June 21, 1999, Ashley McDougald snuck out of her parents’ home and took their car without permission. Ashley, who was 14 years old and did not have a license, drove without her headlights on and passed a police officer. The officer followed Ashley, and when Ashley did not turn on her headlights, the officer turned on his blue lights and siren. Instead of pulling over, Ashley attempted to flee by accelerating down the road.

The officer chased her, and Ashley sped through a parking lot, where she damaged her parents’ car and nearly collided with two parked cars. Ashley then drove on the wrong side of the road and sped up to 70 mph with the police officer still in pursuit two to three car lengths behind. When another officer heard over the radio that the pursuing officer was traveling at 70 mph, he told the pursuing officer to back off and terminate the pursuit. The pursuing officer continued the pursuit nevertheless.

As the pursuing officer and Ashley approached a curve in the road, the pursuing officer began to slow down because he did not believe that he could negotiate the curve at 70 mph. Ashley sped through the curve and was killed when she crashed into a utility pole. The McDougalds sued the pursuing officer and the City of Winder for the death of their daughter. The officer and Winder moved for

summary judgment. In response, the McDougalds submitted an affidavit from an expert in police training and procedures, which stated that the pursuing officer had violated several national and Winder police policies in his continued pursuit of Ashley. The expert contended that the accident that resulted in Ashley’s death could have been prevented had proper procedures been followed. Winder moved to strike the affidavit because the various national policies and some of the other documents identified in the affidavit were not attached to the affidavit.

Winder admits, however, that several of the documents, including the Winder policies on Vehicle Pursuit Actions, were part of the record before the court. The trial court granted

summary judgment to the pursuing officer, but determined that genuine issues of material fact remained regarding whether or not the pursuing officer “acted negligently in his pursuit of the decedent’s vehicle.” The trial court stated that Winder could be liable to the extent that the officer’s negligence was covered by insurance. 1. Winder contends that the trial court erred by failing to grant its motion to strike the McDougalds’ expert affidavit.

More specifically, Winder argues that the affidavit should not have been considered because some of the national policies and other documents that the expert relied upon were not attached to the affidavit. Although the record contains no ruling on Winder’s motion to strike, we will presume that the trial court reviewed all of the evidence before it in deciding the motion for

summary judgment. See E. H. Crump Co. &c. v. Millar, 200 Ga. App. 598, 600 (2) (409 SE2d 235) (1991). As Winder admits, several of the documents identified in the affidavit are matters of record. “[A]n affidavit need not attach material upon which it is based if that material is part of the record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based.” (Citation and punctuation omitted.) Augustine v. Frame, 206 Ga. App. 348, 349 (1) (425 SE2d 296) (1992).

To the extent that there are portions of the affidavit that rely on documents that are not a part of the record, we will not consider those portions of the affidavit here in determining whether the affidavit is sufficient to create a genuine issue of material fact to preclude

summary judgment. Cf. Jones v. Rodzewicz, 165 Ga. App. 635, 636-637 (3), (4) (302 SE2d 402) (1983). 2. Winder argues that the trial court erred by applying the wrong legal standard and denying its motion for

summary judgment. Winder contends that in determining a basis for holding Winder liable, the trial court applied a negligence standard to the pursuing officer’s conduct instead of the proper recklessness standard, and further contends that the McDougalds have failed to create any genuine issues of fact to preclude

summary judgment. We hold that issues of fact preclude

summary judgment. When reviewing the grant or denial of

summary judgment, we conduct a de novo review of the law and the evidence, construing the evidence and all reasonable deductions therefrom in favor of the non-movant. Strozzo v. Coffee Bluff Marina Property, 250 Ga. App. 212, 213 (1) (550 SE2d 122) (2001). Even if the trial court may have applied the wrong legal standard below, because our review on appeal is de novo we address the merits of the trial court’s denial of Winder’s motion for

summary judgment. To the extent that Winder maintains insurance, it can waive governmental immunity and be sued based on damages arising from the use of a motor vehicle. See Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001); OCGA § 33-24-51.

In this regard, Winder’s liability could be predicated on specific conduct of the pursuing officer: OCGA § 40-6-6 (d) (2) expressly pertains to those special circumstances where a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit.

In such circumstances, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. OCGA § 40-6-6 (d) (2).

That is, under amended OCGA § 40-6-6, a finding of proximate cause or contributing proximate cause must be supported by evidence that the officer acts with reckless disregard for proper law enforcement procedures in initiating or continuing the pursuit and this reckless disregard actually causes the damage, injury, or death. (Citations and punctuation omitted; emphasis in original.) Lang v. Becham, 243 Ga. App. 132, 133 (530 SE2d 746) (2000).

Viewed in the light most favorable to the McDougalds, the evidence reveals that the pursuing officer continued to chase Ashley after a fellow officer instructed him to end the pursuit. Although the pursuing officer slowed down as he approached the curve where the accident occurred, he did not indicate that he was abandoning the chase, but only that he was slowing down because he was afraid that he could not negotiate the curve at such a high speed. Furthermore, the McDougalds submitted an affidavit from an expert with over 30 years of teaching experience in law enforcement.

After reviewing the Winder policies on Vehicle Pursuit Actions and various other matters of record, including the statements of the pursuing officer and of the officer who instructed the pursuing officer to terminate the chase, the expert opined that the pursuing officer’s actions were in violation of Winder police policies and showed a “reckless disregard for proper police procedure.” The expert further opined that local police procedures required that the pursuit, which was initiated over a minor traffic violation, should have been terminated once Ashley recklessly drove past parked cars and started driving on the wrong side of the road.

The expert testified that if the pursuing officer had followed proper procedures, the victim’s life could have been saved. The McDougalds therefore presented some evidence that the pursuing officer acted with reckless disregard for proper police procedures, and the trial court properly denied Winder’s motion for

summary judgment. See Lang v. Becham, 243 Ga. App. at 134. Judgment affirmed. Johnson, P. J., Eldridge, Ellington and Phipps, JJ, concur. Andrews, P. J., and Ruffin, J., dissent.