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When is a Law Enforcement Vehicle in Use for Purposes of Waiving Sovereign Immunity Under Georgia Law? 

6/26/23

By: Jacob E. Daly 

Georgia law waives the sovereign immunity of local government entities for claims based on bodily injuries or death that are caused by the negligent use of a covered motor vehicle by a local government officer or employee.  This waiver is limited to $500,000 for bodily injuries or death suffered by a one person in a single occurrence and $700,000 for bodily injuries or death suffered by more than one person in a single occurrence, unless the local government entity purchases insurance that has a greater amount of coverage.  A frequently litigated issue is what constitutes the use of a covered motor vehicle.  This is an important issue because a determination that the covered motor vehicle was not in use at the time of the incident usually means the local government entity’s sovereign immunity is not waived. 

The Georgia Court of Appeals has observed that determining whether an event arises from the use of a covered motor vehicle depends on the particular circumstances of a given case and is not amenable to a bright-line definition.  Not surprisingly, it has vaguely articulated the test as whether the injury or death originated from, had its origin in, grew out of, or flowed from the use of the vehicle as a vehicle.  Thus, for example, injuries sustained while performing maintenance work on a vehicle do not arise out of the use of the vehicle.  Similarly, injuries sustained by innocent bystanders when a vehicle that is fleeing from law enforcement crashes into their vehicle do not arise out of the use of the law enforcement vehicle because the law enforcement officer had ceased the pursuit and his vehicle was immobile and inoperative on the side of the road 20 miles away due to a blown tire. 

This issue recently arose in a case involving an arrestee’s death after he was restrained (both hands and feet), placed horizontally on his stomach on the back seat of a deputy sheriff’s patrol vehicle, and left unattended.  The Georgia Court of Appeals held that the patrol vehicle was not in use when the arrestee died because it was not being used as a vehicle in its ordinary sense; instead, it was being used to restrain or confine him as if it were a holding cell.  McBrayer v. Scarbrough, 364 Ga. App. 112 (2022).  Because the waiver statute does not apply to this type of use of a law enforcement vehicle, the defendant was entitled to sovereign immunity.  The Georgia Supreme Court agreed to review the case on certiorari, and it directed the parties to address the following questions: 

• Does “use” of a motor vehicle as provided in OCGA §§ 33-24-51(b) and 36-92-2 require the motor vehicle to be “actively in use” “as a vehicle” when the injury arose? 
• Does loading a person into or restraining a person in a patrol car constitute the “use” of a motor vehicle as to which sovereign immunity is waived under OCGA §§ 33-24-51(b) and 36-92-2? 

The Georgia Supreme Court held oral argument in McBrayer on June 20, 2023.  The plaintiff’s attorney essentially argued that the term “use” is not limited to “use as a vehicle” because there is no language in the statute that justifies such an interpretation.  Nevertheless, the plaintiff’s attorney also argued that an ordinary use of the back seat of a law enforcement vehicle is to hold arrestees.  The defendant’s attorney responded by arguing that a line must be drawn somewhere or else the litigation floodgates will be opened.  Justices Sarah Hawkins Warren and Andrew Pinson suggested that the definition of “use” depends on the type of vehicle being used and what that type of vehicle is typically used for.  Justice Charles Bethel wondered whether the definition of “use” should be connected to what the vehicle at issue is insured for.  The degree to which the Court decides to limit the term “use” will have important ramifications for the sovereign immunity of local government entities.  A decision is expected by mid-November 2023. 

For more information, contact Jacob Daly at jacob.daly@fmglaw.com or your local FMG attorney.