Official Immunity: Recent Georgia Supreme Court decision reaffirms need for specific directives before finding ministerial duty for public officers


By: Chuck Reed, Jr.

Last week, in Eshleman v. Key, 2015 WL 3936075 (June 29, 2015), the Georgia Supreme Court reversed the Court of Appeals’ denial of official immunity for an off-duty police officer whose police dog escaped from its kennel and bit a child. This reversal reaffirms that the presence or absence of specific directives will often be the turning point in analyzing immunity issues under Georgia law.

Eshleman was a canine handler with the DeKalb County Police Department and had a practice of taking her canine partner, “Andor,” home with her. Eshleman had warned her neighbor’s children to just stand still if they ever saw Andor outside the fence because Andor could perceive them as prey if they ran. One day, Eshleman had loaded Andor in a kennel in the back of her personal vehicle and, assuming the kennel door was secured, stepped away from the vehicle to retrieve some belongings. Andor saw the neighbor’s children playing nearby and escaped the kennel. When the child plaintiff attempted to run away, Andor chased him, latched onto his arm and took him to the ground. It was undisputed that the DeKalb County Police Department had no policies governing how to transport and secure canines in private vehicles, nor had Eshleman received any training on that topic.

However, in affirming the trial court’s denial of summary judgment, the Court of Appeals held that there was a genuine issue of material fact whether Eshleman violated O.C.G.A. § 51-2-7 regarding “vicious animals” and negligently failed to perform the ministerial duty of properly restraining Andor. Eshleman v. Key, 326 Ga. App. 883, 888-889 (2014). The Court of Appeals held that “Eshleman did not show that the act at issue in this case, restraining the canine by securely closing the kennel door, ‘called for the exercise of personal deliberation and judgment, which in turn entail[ed] examining the facts, reaching reasoned conclusions and acting on them in a way not specifically directed.” Id. at 887.

In reversing the Court of Appeals, the Supreme Court of Georgia held that while it was undisputed that Eshleman was acting in her official capacity in taking care of Andor, there was no evidence that she was engaged in a ministerial duty in doing so. The Supreme Court rejected the Court of Appeals’ citation to the general standard of care codified in O.C.G.A. § 51-2-7 as a ministerial duty for Eshleman holding that “in the context of official immunity [it] is not merely whether an officer owed a duty of care, but rather, whether the official owed a duty that is particularized and certain enough to render her duty a ministerial one.” Eshleman, 2015 WL 3936075 at *3. Since there were no standards governing how to properly restrain Andor, the Georgia Supreme Court found that the legal standards at issue required “an exercise of personal deliberation and judgment about what is reasonable in the particular circumstances presented.” Id. at 4.

While public employers have an interest in ensuring that their employees are properly trained in the procedures of their departments, Eshleman reaffirms that law enforcement and other public agencies should not inadvertently create liability through enacting specific directives concerning every area of their employee’s duties. The policy that provides instruction or grounds for discipline could also provide a basis for personal liability against that employee.