Harper v. City of East Point

515 S.E.2d 623 (1999)

237 Ga. App. 375

HARPER v. CITY OF EAST POINT et al.

No. A98A2352.

Court of Appeals of Georgia.

March 30, 1999.

Certiorari Denied September 17, 1999.

*624 Wayne B. Kendall, Atlanta, for appellant.

Hollberg, Weaver & Kytle, George M. Weaver, Atlanta, for appellees.

BEASLEY, Presiding Judge.

Michael Crook, a city police officer for East Point, sexually assaulted Tawana Harper when over her objection he locked her in the back of his patrol car, stroked her inner thigh, and masturbated in front of her.[1] Harper sued him, the City of East Point, and the city's police chief. Because of a bankruptcy discharge, she dismissed the causes of action against Crook. As to the claim of negligent hiring and retention remaining against the city and its police chief (jointly referred to herein as the "City"), the court entered summary judgment in their favor. Harper appeals, claiming evidence shows the City had constructive knowledge of Crook's propensity to commit this act.

1. The City contends the statute of limitation had run prior to the filing of the complaint. It did not argue this point in its written summary judgment motion or brief or at the hearing but conceded that this was a renewal action under OCGA § 9-2-61.

Nothing in Lau's Corp. [v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991) ], places a *625 burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present its entire case on all allegations in the complaint even on issues not raised in the defendants' motion.[2]

Issues not argued in support of the motion for summary judgment will not be considered on appeal where plaintiff could have presented evidence to rebut them.[3] Had the City raised the statute of limitation in its motion, Harper would have had the opportunity to present evidence that this was a renewal action.

2. The City persuaded the trial court that Harper presented no evidence it had constructive knowledge of Crook's propensity to sexually assault another person. "An employer's liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee's propensity to engage in the conduct which caused the plaintiff's injury."[4] Proof of such leaning must consist of evidence substantially related to the injury-causing conduct.[5] Lying about employment qualifications, for example, does not constitute evidence of violent tendencies.[6]

Harper presented evidence from which a jury could find that the City should have known that Crook was prone to committing a sexual assault. Construed in plaintiff's favor, the evidence shows that prior to hiring Crook the City was aware he had pled guilty to making harassing phone calls to a female companion and had misrepresented in his employment application his relationship to that woman, hiding the incident. After Crook's hiring, a citizen's complaint about Crook resulted in an investigation that uncovered three sexually inappropriate encounters between Crook and female citizens.

In the first, Crook, while purporting to conduct an investigation, queried a woman in a parking lot. During the encounter he asked whether she was cold in her spandex shorts and leered at her body. Feeling "eerie," she walked away, only to have him follow her very slowly in his police car. He approached her again, asking her if she had seen a suspect, to which she replied she had not. She started walking homeward at a fast pace, and he again followed her in his car, staring. She took a back entrance to her apartment complex so he could no longer follow her.

About a month later (again while conducting an "investigation"), he asked a second woman in the same neighborhood whether she was wearing shorts under her nightgown, commented on her tan, inquired if she was married, and remarked that she needed a boyfriend to take care of her. She responded negatively to his inquiries. He called her to his car window and asked her a second time if she was sure she did not need a boyfriend. Later he came to her house to speak to her again when he suspected that she had complained of his conduct and that a formal investigation was underway. She did not pursue the matter further for fear of Crook.

The third woman spoke of an uncomfortable encounter occurring around the same time. While making official inquiries, Crook had tried to look around her door as she stood in her nightgown behind it.

Crook's conduct, as reported to the City, represented an increasingly aggressive progression of sexual deviancy. Beginning with a guilty plea on making harassing phone calls to a woman, the behavior escalated to asking intimate questions of female citizens, to following a woman in a police car, to repeatedly asking a female citizen if she needed a boyfriend, *626 to trying to peer around a door at a woman in her nightgownall the time while using his badge and the cover of official police investigation to try to cow these women into submission.

A jury could find that Crook's conduct gave warning to the City that his behavior reflected an escalating sexual deviancy likely to result eventually in the sexual assault of a female while he was on duty. Significantly, the female officer investigating the matter for the City reported to her superior that based on the standard sex crimes courses in which all officers are trained, she felt Crook's behavior was a "textbook case" of sexual deviancy and should be investigated further. The male superior ignored the suggestion and simply told Crook not to repeat the behavior. No professional counseling, no reassignment to team him with another officer, no sanction to curb future behavior was imposed. Tragically for Harper, the one-time instruction was insufficient.

Unlike Bunn-Penn v. Southern Regional Med. Corp.,[7] prior to the Harper incident Crook did not merely exhibit voyeuristic tendencies. He acted upon those tendencies by harassing women and following one in his car.[8] Moreover, Crook was a police officer, a position that wields enormous power and intimidation over those vulnerable citizens an officer is sworn to protect. The City as his employer owed a higher duty to protect citizens from abuse of that power, a duty which private employers do not share. Under the Georgia Constitution, "[p]rotection to person and property is the paramount duty of government...."[9] Even security employers are expected to exercise greater care in employment decisions.[10] Those responsible for clothing citizens with police power must be even more vigilant.

The court erred in granting summary judgment to the City of East Point on the negligent retention claim.

The negligent hiring claim against the City of East Point and Chief McLendon has no merit, for at the time of hiring the evidence of Crook's deviancy was, standing alone, insufficient to alert the employer of a potential sexual aggressor. The expert testimony of inadequate investigation was not submitted to the court before the summary judgment hearing, but was filed after the court entered its order. The court properly exercised its discretion to refuse to consider that evidence.[11] Summary judgment on the negligent hiring claim in favor of the City of East Point and Chief McLendon was proper.

3. Chief McLendon asserted official immunity as an additional defense.

The Georgia Tort Claims Act (the "Act") excludes from its waiver of sovereign [and official] immunity "losses resulting from... (t)he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused." OCGA § 50-21-24(2).[12]

The Act contains a

definition of discretionary function or duty: "a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors." OCGA § 50-21-22(2).[13]

Hiring, firing, and disciplining an individual as a police officer require the exercise of professional deliberation and judgment. Chief McLendon's actions in this matter were part of his discretionary governmental *627 functions.[14] Because there was no evidence that Chief McLendon acted maliciously, wilfully, or corruptly, the court did not err in granting summary judgment to him on the negligent hiring and retention claims.[15]

Judgment affirmed in part and reversed in part.

POPE, P.J., and RUFFIN, J., concur.

NOTES

[1] Crook pleaded guilty to two counts of simple battery (merged) and one count of public indecency with respect to this incident. The court fined him $7,500 with $125 in surcharges and imposed 12 months probation for simple battery and 12 months consecutive probation for public indecency, plus $20 per month for probation supervision. Forty hours of community service and counseling for sexual behavior were special conditions of probation. We note that restitution to the victim could have been ordered. OCGA § 17-14-3. This may have been the only achievable remedy against him for such a terrible ordeal at the hands of a public servant. The victim has medical expenses, not to mention the horror of the experience or the pain of memory. The legislature has "declared [it] to be the policy of this state that restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system." OCGA § 17-14-1. Judges have the power to carry out this policy, to implement it, and to assure that it is given meaning in the lives of victims of crime.

[2] Hodge v. SADA Enterprises, 217 Ga.App. 688, 690(1), 458 S.E.2d 876 (1995).

[3] Maxwell v. Mayor &c. of Savannah, 226 Ga. App. 705, 711(4), 487 S.E.2d 478 (1997).

[4] (Footnote omitted.) Grand Union Co. v. Miller, 232 Ga.App. 857, 863(6), 503 S.E.2d 49 (1998); Kemp v. Rouse-Atlanta, Inc., 207 Ga.App. 876, 878(1), 429 S.E.2d 264 (1993) ("`[a]n employer's liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee's violent and criminal propensities'"), quoting Odom v. Hubeny, 179 Ga.App. 250, 252(2), 345 S.E.2d 886 (1986).

[5] Fortune v. Principal Financial Group, 219 Ga. App. 367, 371-372(1), 465 S.E.2d 698 (1995).

[6] Id.; Edwards v. Robinson-Humphrey Co., 164 Ga.App. 876, 880, 298 S.E.2d 600 (1982).

[7] 227 Ga.App. 291, 294(2), 488 S.E.2d 747 (1997).

[8] See Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 234(2), 378 S.E.2d 857 (1989).

[9] Ga. Const. of 1983, Art. I, Sec. I, Par. II.

[10] C.K. Security Systems v. Hartford Accident &c. Co., 137 Ga.App. 159, 161(2), 223 S.E.2d 453 (1976).

[11] See Myers v. Barnard, 180 Ga.App. 192, 193, 348 S.E.2d 733 (1986) (affidavit filed after summary judgment order entered was properly not considered).

[12] Rhoden v. Dept. of Pub. Safety, 221 Ga.App. 844, 845(1), 473 S.E.2d 537 (1996).

[13] Dept. of Transp. v. Brown, 267 Ga. 6, 7(1), 471 S.E.2d 849 (1996).

[14] See, e.g., Bontwell v. Dept. of Corrections, 226 Ga.App. 524, 527(4)(a), 486 S.E.2d 917 (1997) (physical precedent only) ("the operation of a state or county correctional institute ... including the degree of training and supervision to be provided over its officers, is a discretionary governmental function") (emphasis in original); Holsey v. Hind, 189 Ga.App. 656, 657(1), 377 S.E.2d 200 (1988) ("[n]o one, for example, would seriously contend that a decision by a prosecutor on such a matter as hiring or firing a secretary would be anything other than administrative, although such a decision would obviously involve an exercise of judgment or discretion connected with the duties of his office").

[15] See Parker v. Wynn, 211 Ga.App. 78, 438 S.E.2d 147 (1993).