Hamilton Ex Rel. Hamilton v. Cannon

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-9098, 94-9158.

Mathew HAMILTON, By and Through Lovelurn HAMILTON, his next

friend, Lovelurn Hamilton, Administratrix of the Estate of Kim

Orlena Hamilton, Una Hamilton, Plaintiffs-Appellees,

v.

Charles CANNON, in his official capacity as Sheriff of Macon

County, Georgia, Ronald Duncan, Macon Co., GA, a political

subdivision of the State of Georgia, Michael Tookes, Defendants-

Appellants,

The Macon County Sheriff's Department, The Macon County/City of

Montezuma, Georgia, Department of Parks and Recreation, The City of

Montezuma, Georgia, Police Department, Freddy Mallard, Logan

Walton, XYZ Pool Management Company, Defendants,

The City of Montezuma, Lonnie Brown, Defendants-Appellees.

Mathew HAMILTON, By and Through Lovelurn HAMILTON, his next

friend, Lovelurn Hamilton, Administratrix of the Estate of Kim

Orlena Hamilton, Una Hamilton, Plaintiffs-Appellants,

v.

Charles CANNON, in his official capacity as Sheriff of Macon

County, Georgia, Ronald Duncan, Macon Co., GA, a political

subdivision of the State of Georgia, City of Montezuma, and Lonnie

Brown, Defendants-Appellees,

The Macon County Sheriff's Department, et al., Defendants.

April 19, 1996.

Appeals from the United States District Court for the Middle

District of Georgia. (No. 92-CV-276-3-MAC), Duross Fitzpatrick,

Chief Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior

Circuit Judge.

CARNES, Circuit Judge:

These appeals arise from the tragic death of Kim Orlena

Hamilton at a Montezuma, Georgia municipal swimming pool. The

three plaintiffs—Hamilton's mother, Hamilton's minor child, and the

Administratrix of Hamilton's estate—brought this action in federal

district court alleging constitutional claims under 42 U.S.C. §

1

1983 and state law negligence claims. The complaint named as

defendants Macon County, Georgia; Macon County Deputy Sheriff

Ronald Duncan (in his individual and official capacities); and

Macon County Sheriff Charles Cannon (in his official capacity

only). We refer to these defendants as "the county defendants."

The complaint also named as defendants the city of Montezuma;

Michael Tookes, a lifeguard at the swimming pool (in his individual

and official capacities); and Lonnie Brown, the manager of the

pool (in his individual and official capacities). We refer to

these defendants as "the city defendants."2

The district court granted summary judgment to all of the

defendants on the plaintiffs' state law negligence claims, Hamilton

v. Cannon, 864 F.Supp. 1332, 1338 (M.D.Ga.1994), and we have

jurisdiction over that judgment pursuant to 28 U.S.C. § 1292(b).

The plaintiffs' appeal of that ruling is our case number 94-9158.

The court also granted Lonnie Brown summary judgment on the section

1983 claims, in his individual capacity, on the ground of qualified

immunity. Id. However, the court denied Tookes' and Duncan's

motions for summary judgment on the section 1983 claims, in their

individual capacities, holding that they were not entitled to

qualified immunity. Id. We have jurisdiction over Tookes' and

Duncan's appeal of that decision under Mitchell v. Forsyth, 472

1

Hamilton's mother has since been dismissed from the case

and is not a party to this appeal.

2

Additional defendants were also named, but the claims

against those defendants have been settled.

U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and their appeal

of that ruling is our case number 94-9098. The part of the case

involving the plaintiffs' federal claims against these individual

defendants in their official capacities, and against Macon County

and the City of Montezuma, is not before us.3

Although two appeals with two different case numbers are

before us, they are based on the same record and the same evidence.

The district court disposed of the defendants' motions for summary

judgment on the plaintiffs' state law negligence claims and the

defendants' motions for summary judgment on the federal claims in

a single order. We have consolidated the two appeals for

decisional purposes.

I. The Facts and Procedural Background

The procedural posture of these cases requires us to view the

facts, which are drawn from the pleadings, affidavits, and

depositions, in the light most favorable to the plaintiffs.

Rodgers v. Horsley, 39 F.3d 308, 309 (11th Cir.1994). What we

consider to be facts for present purposes may not turn out to be

the actual facts if the case goes to trial. Swint v. City of

Wadley, 51 F.3d 988, 992 (11th Cir.1995). Viewed from the present

perspective, however, we take the facts to be as follows. On July

6, 1990, Hamilton, who was fourteen years old, accompanied her

sister and a friend to the Hill Street municipal swimming pool in

3

Macon County attempts to piggyback onto the interlocutory

appeal by Tookes and Duncan an appeal from the district court's

denial of summary judgment for the county. But we do not have

jurisdiction over the district court's denial of summary judgment

to the county, which was not a final judgment on the merits, an

interlocutory appeal certified pursuant to 28 U.S.C. § 1292(b),

or a decision denying qualified immunity.

Montezuma, Georgia. Hamilton did not know how to swim and did not

intend to enter the pool, but a boisterous group of swimmers

engaging in horseplay threw her into the water. The ultimate

result of this "dunking" was Hamilton's death.

Tookes assisted in managing the pool and served as lifeguard.

He had received no formal lifeguard training nor any instruction

with respect to drownings or other potential emergencies at the

pool. After Hamilton was thrown in the pool, she collapsed trying

to get out of the water. All Tookes knew to do was to remove her

from the pool and place her on the edge of it. Immediately after

Tookes removed Hamilton from the pool, Sharon Simpson, a bystander

who was trained in CPR, began administering CPR in an attempt to

revive Hamilton. Tookes stood by and wiped Hamilton's mouth from

time to time. After Simpson initiated CPR, Hamilton appeared to

begin shallow breathing and to revive slightly. There is testimony

that Hamilton held her head up, began to cough, and moved her arm.

Simpson felt a pulse and saw Hamilton trying to respond by moving

her eyes. Additionally, Hamilton moved her head in response to her

name. Tookes believed Hamilton was recovering and in no danger of

dying.

While this rescue attempt was underway, Macon County Deputy

Sheriff Ronald Duncan arrived at the scene. Duncan ordered

everyone to clear the area around Hamilton. Despite Simpson's

objections, Duncan specifically ordered her away from Hamilton.

Duncan then examined Hamilton's condition, but did not himself

undertake CPR efforts or take any other medical action on her

behalf, apparently believing that Macon County's emergency medical

technicians would arrive immediately after him. Those medical

technicians had been called and were enroute, but unfortunately,

they were confused about the location and mistakenly went to

another public swimming pool located several blocks away. This

mistake delayed their arrival by several minutes, and during that

time no one provided medical attention to Hamilton.

Once Simpson realized that Deputy Duncan had no intention of

administering CPR, she ran to her nearby home to retrieve her Red

Cross CPR certification card. Simpson was gone approximately five

minutes, and during that time neither Duncan, Tookes, nor the

Montezuma police officers who arrived in the interim provided any

medical attention to Hamilton. Upon Simpson's return, the medical

technicians still had not arrived, and Duncan permitted Simpson to

recommence CPR. Soon afterward, the technicians did arrive, having

learned this swimming pool's location from persons at the other

pool. Unfortunately, Hamilton had already passed the point at

which medical assistance could be of benefit. She was declared

dead soon after.

II. The Section 1983 Claims and Tookes'

and Duncan's Claims of Qualified

Immunity, Appeal No. 94-9098

A. Background

The plaintiffs presented claims pursuant to 42 U.S.C. § 1983,

which provides a tort remedy against persons acting under color of

state law for deprivations of rights secured by federal law.

Before a person, county, or municipality can be held liable under

section 1983, a plaintiff must establish that she suffered a

constitutional deprivation. E.g., Bradberry v. Pinellas County,

789 F.2d 1513, 1515 (11th Cir.1986). Further, to imposeindividual

liability on public officers, the plaintiff must prove that the

defendants violated not only a constitutional right, but a "clearly

established" constitutional right; otherwise the defendants are

protected by qualified immunity. E.g., Lassiter v. Alabama A & M

Univ., 28 F.3d 1146 (11th Cir.1994) (en banc).

To overcome the qualified immunity defense, the contours of

the right allegedly violated must be sufficiently clear that a

reasonable official would understand that what he was doing

violates that right. E.g., Anderson v. Creighton, 483 U.S. 635,

640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). That is to say,

"[u]nless a government agent's act is so obviously wrong, in the

light of preexisting law, that only a plainly incompetent officer

or one who was knowingly violating the law would have done such a

thing, the government actor has immunity from suit." Lassiter, 28

F.3d at 1149. "If case law, in factual terms, has not staked out

a bright line, qualified immunity almost always protects the

defendant." Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557

(11th Cir.1993).

The district court denied Tookes' and Duncan's motions for

summary judgment on qualified immunity grounds. The court held

that, viewing the evidence in the light most favorable to the

plaintiffs, the plaintiffs did state a claim for the violation of

a constitutional right, and that Tookes and Duncan were not

protected by qualified immunity because the constitutional right

claimed to have been violated was clearly established at the time

of their alleged conduct. We will first discuss the plaintiffs'

claim against Duncan, which is stronger than their claim against

Tookes.

B. Duncan

The sole constitutional right that the plaintiffs allege

Duncan violated is the Fourteenth Amendment's prohibition against

the deprivation of life, liberty, or property without due process

of law. The issue before us is therefore whether, in view of what

we take to be the facts for present purposes, Duncan's failure to

provide an adequate rescue, or his action in barring private rescue

attempts, ran afoul of a clearly established constitutional right.

The district court held it did and therefore denied Duncan's motion

for summary judgment. We review this question of law de novo.

E.g., Swint, 51 F.3d at 994.

The plaintiffs concede that, absent special circumstances,

individuals—even government officials—are under no duty to provide

rescue.4 However, "there are times when the Constitution requires

local governmental units to provide basic protective services to

individuals with whom the government has created a special

relationship." Bradberry, 789 F.2d at 1516 n. 2. The plaintiffs'

position on the merits is that under the facts, the special

relationship exception applies to impose liability on Duncan.

Because Duncan's qualified immunity defense is the issue at hand,

4

There is no general duty to rescue a stranger in distress,

even if the rescue can easily be accomplished. See, e.g.,

Jackson v. City of Joliet, 715 F.2d 1200, 1202 (7th Cir.1983),

cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720

(1984). And the fact that the defendant is a public officer adds

nothing. "[A] mere failure to rescue is not tortious just

because the defendant is a public officer whose official duties

include aiding people in distress." Id.

in order to prevail in this appeal the plaintiffs must convince us

that any special relationship law specifically imposing liability

under these factual circumstances was clearly established at the

time of Hamilton's death, July 6, 1990.

The plaintiffs argue that a special relationship arose,

imposing an affirmative constitutional duty upon Duncan, when

Duncan cleared the area around Hamilton and instructed Simpson to

discontinue CPR efforts, thereby implicitly taking responsibility

for Hamilton. The plaintiffs rely on three cases to establish with

the requisite clarity that under these circumstances a special

relationship was created between Duncan and Hamilton, so that a

negligent or reckless rescue attempt, or interference with a

bystander's rescue attempt, violated the Constitution.

The first case the plaintiffs point to as clearly establishing

this proposition of law is DeShaney v. Winnebago County Department

of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249

(1989). In DeShaney, the Supreme Court held that the government

did not violate the constitutional rights of a four-year-old child,

who was in the custody and control of his natural father, when his

father beat him severely. The county officials had been aware that

the father was abusing his child, and at one point the county had

taken the child into custody after he was admitted to a local

hospital with suspicious bruises and abrasions. However, the child

was released to his father after only three days in protective

custody. For the next six months, a county caseworker made monthly

visits to the DeShaney home, during which she observed a number of

suspicious injuries to the child's head. The caseworker recorded

these incidents in her files. The child was admitted to the

emergency room once again for injuries believed to be caused by

child abuse. Still, the county officials did not take the child

into custody. On the caseworker's next two visits to the DeShaney

home, she was told the child was too ill to see her, and no action

was taken. A few months later, DeShaney beat his child so severely

that the child suffered permanent brain damage and was rendered

profoundly retarded.

Despite repeated indications that DeShaney was abusing his

child, county officials had done nothing to protect the child.

Even under those egregious circumstances, the Supreme Court held

that there was no violation of any constitutional duty. In so

holding, the Court distinguished cases involving persons who were

in custody, such as prisoners and persons committed to mental

institutions, from the general public, holding that public

officials have no duty to protect individuals, generally. Id. at

198-201, 109 S.Ct. at 1004-06.

Although DeShaney held that there was no constitutional

violation in that case, the plaintiffs attempt to extract from

DeShaney a clearly established rule that a state has an affirmative

duty to protect people when the state imposes a limitation on the

individual's freedom to act on her own behalf. But DeShaney

reached no such holding, and instead held that the failure of the

government actors in that case to "rescue" the young child from the

abusive father to whom the child had been returned did not violate

the Constitution. If anything, the holding in

DeShaney establishes

that the rule the plaintiffs seek is far from clearly established.

The plaintiffs also rely upon our decision in Wideman v.

Shallowford Community Hospital, Inc., 826 F.2d 1030 (11th

Cir.1987), which held that a county government's practice of using

its emergency medical vehicles to transport patients only to

hospitals that guarantee the payment of the county's medical bills

does not violate any right protected by the federal Constitution.

Toni Wideman, who was at the time four months pregnant, began

experiencing abdominal pain. She called her obstetrician, who

instructed her to come immediately to Piedmont Hospital. Wideman

called the 911 emergency telephone number and requested an

ambulance to take her to Piedmont. Wideman asked the Emergency

Medical Service employees who responded to her call to take her to

Piedmont where her doctor was waiting, but because of the county's

policy they refused and instead took Wideman against her wishes to

a different hospital. The attending physician at that hospital

spoke by phone to Wideman's obstetrician at Piedmont and, after a

substantial delay, Wideman was transferred to Piedmont. At that

point, however, Wideman's obstetrician was unable to stop her

labor, and Wideman gave birth to a premature baby, who survived for

only four hours. Id. at 1031.

The Wideman Court held that the county's practice of

transporting emergency patients only to certain hospitals did not

violate the Constitution. Id. at 1036. In so holding, the Court

discussed at some length the "special relationship" cases. Quoting

from a Seventh Circuit decision, the Court observed that " "[t]he

contours of what constitutes a "special relationship" between a

municipality, acting through its officials, and its citizens are

hazy and indistinct.' " 826 F.2d at 1035 (quoting Ellsworth v.

City of Racine, 774 F.2d 182, 185 (7th Cir.1985), cert. denied, 475

U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986)). The Court went

on to state: "It is possible, however, to discern certain general

guidelines regarding the existence of such a right-duty

relationship," and then observed that "[t]he primary thread weaving

these special relationship cases together is the notion that if the

state takes a person into custody ... or assumes responsibility for

that person's welfare, a "special relationship' may be created in

respect of that person." Id. The only example given was in the

prison context. The Wideman Court stated that "a constitutional

duty can arise only when a state or municipality, by exercising a

significant degree of custody or control over an individual, places

that person in a worse situation than he would have been had the

government not acted at all." Id. Then came the following

statement, upon which the plaintiffs in this case place much

emphasis: "Such a situation could arise by virtue of the state

affirmatively placing an individual in a position of danger,

effectively stripping a person of her ability to defend herself, or

cutting off potential sources of private aid." Id.

Those passages from Wideman are clearly dicta, because they

were in no way essential to Wideman 's holding of no liability.

The law cannot be established by dicta. Dicta is particularly

unhelpful in qualified immunity cases where we seek to identify

clearly established law. See, e.g., Jones v. White, 992 F.2d 1548,

1566 (11th Cir.) ("[F]or law-of-the-circuit purposes ... [the

review of any precedent] ought to focus far more on the judicial

decision than on the judicial opinion." (citation and quotation

marks omitted) (alterations in original)), cert. denied, --- U.S.

----, 114 S.Ct. 448, 126 L.Ed.2d 381 (1993).

The district court thought that the Wideman case clearly

established that Duncan's actions in this case violated Hamilton's

constitutional rights. The district court drew from Wideman the

general proposition that a constitutional duty can arise when a

state or municipality exercises a significant degree of custody or

control over an individual and places that individual in a worse

5

situation than if the government had not acted at all. The

Wideman Court said that such a situation could arise if the

government affirmatively placed an individual in a position of

danger or cut off potential sources of private aid; but the

Wideman opinion itself characterized those statements as only

"general guidelines." 826 F.2d at 1035. Moreover, the general

propositions discussed in Wideman had little to do with the facts

of that case, which in turn are not sufficiently similar to the

5

This Court and others have extended the state custody

exception beyond actual incarceration or involuntary

institutionalization only when there is some kind of physical

restraint by the state that triggers an affirmative

constitutional duty of care and protection. We explained in

Lovins v. Lee that "special relationship decisions stand only for

the proposition that when the State takes a person into its

custody and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being. The duty

in such cases arises from the limitations which the government

has imposed on the freedom of the individual to act on his own

behalf." 53 F.3d 1208, 1210 (11th Cir.1995) (citation and

quotation marks omitted). If a person's attendance in an area is

voluntary, and she was not physically placed there by the state,

she cannot be considered to be in custody and subject to the

exception discussed in Wideman. See Rogers v. City of Port

Huron, 833 F.Supp. 1212, 1218 (E.D.Mich.1993).

facts of this case. See Rodgers v. Horsley, 39 F.3d 308, 311 (11th

Cir.1994) ("the question in this case, as in all qualified immunity

cases, is fact specific"); Adams v. St. Lucie County Sheriff's

Dep't., 962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson, J.,

dissenting) ("The facts need not be the same as the facts of the

immediate case. But they do need to be materially similar."),

approved en banc, 998 F.2d 923 (11th Cir.1993). In short, the

district court relied upon dicta from Wideman as having clearly

established the law, something that dicta cannot do.

Finally, the plaintiffs rely upon our holding in Cornelius v.

Town of Highland Lake, 880 F.2d 348 (11th Cir.1989), cert. denied,

494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990). In that

decision we held that a town could have violated the constitutional

rights of a town employee when it placed work release inmates in

close proximity to the employee who had no choice, if she wanted to

keep her job, but to continue working around the inmates. Id. at

356. Cornelius did not involve any rescue-type situation. Its

facts are far removed from the present case.6 We held in Lassiter

that, "[f]or the law to be clearly established to the point that

qualified immunity does not apply, the law must have earlier been

developed in such a concrete and factually defined context to make

it obvious to all reasonable government actors, in the defendant's

6

Further, Cornelius' viability is questionable in light of

the Supreme Court's subsequent decision in Collins v. City of

Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261

(1992), which held, in effect, that no special relationship for

substantive due process purposes arises from an employment

relationship with the government. Id. at 127-28, 112 S.Ct. at

1070. We noted in Lovins, 53 F.3d at 1211, that two panels of

this Court have expressed doubt about the continuing validity of

Cornelius in the wake of Collins.

place, that "what he is doing' violates federal law." 28 F.3d at

1149. Cornelius did not develop the law in the context of a law

enforcement officer failing to provide competent rescue services or

interrupting a bystander's rescue efforts. Consequently, it cannot

have clearly established the law applicable to the present case.

In summary, the three cases that the plaintiffs rely upon did

not develop the law plaintiffs assert in a sufficiently concrete

and factually defined context to serve as the basis for the denial

of qualified immunity in this case. The concrete and factually

defined contexts of those three cases make them distinguishable

from this one.7 We said in Lassiter that the most common error we

encounter in qualified immunity cases involves the point that

"courts must not permit plaintiffs to discharge their burden by

referring to general rules and to the violation of abstract

"rights.' " Id. at 1150. We emphasized that "[g]eneral

propositions have little to do with the concept of qualified

7

The case that most strongly lends support to plaintiffs'

position is the Seventh Circuit decision in Ross v. United

States, 910 F.2d 1422 (7th Cir.1990). In Ross, the Seventh

Circuit, under factual circumstances more egregious than those in

this case, held that recklessness can establish a due process

violation when the defendant state actor's interference with

rescue attempts by other officials disregards a "known and

significant risk of death." Id. at 1433. However, even if Ross

were indistinguishable, Seventh Circuit decisions can not clearly

establish the law for purposes of qualified immunity in this

circuit. E.g., D'Aguanno v. Gallagher, 50 F.3d 877, 881 n. 6

(11th Cir.1995) ("The remaining cases on which plaintiffs rely do

not come from the U.S. Supreme Court, the Eleventh Circuit Court

of Appeals, or the Florida Supreme Court and, therefore, cannot

show that plaintiffs' right to due process was clearly

established."); Courson v. McMillian, 939 F.2d 1479, 1497-98 &

n. 32 (11th Cir.1991) (law can be "clearly established" for

qualified immunity purposes by decisions of U.S. Supreme Court,

Eleventh Circuit Court of Appeals, or highest court of state

where case arose).

immunity" and that the facts of a case relied upon to clearly

establish the law must "be materially similar," because "[p]ublic

officials are not obligated to be creative or imaginative in

drawing analogies from previously decided cases." Id. (citation

and quotation marks omitted). It would take much creativity and

imagination to glean from the factually distinguishable cases upon

which the plaintiffs rely a clearly established rule of law that an

unsuccessful, negligent, or reckless rescue attempt, or

interference with a bystander's rescue attempt, amounts to a

constitutional violation. We decline to exercise such creativity

and imagination, because qualified immunity doctrine prohibits it.

The district court should have granted Duncan's motion for

summary judgment in his individual capacity on qualified immunity

grounds.

C. Tookes

We now turn to the district court's order denying Tookes'

motion for summary judgment, in his individual capacity, on

qualified immunity grounds. All Tookes did was remove Hamilton

from the pool and place her on the ground beside it. The

plaintiffs do not contend that Tookes interfered with Simpson's

rescue attempt, or that he affirmatively did anything at all

improper. They simply contend that he should have done more.

Everything we said as to Duncan applies equally, or with even

more force, to Tookes. There are no decisions clearly establishing

that Tookes' alleged nonfeasance rises to the level of a

constitutional violation. At oral argument, the plaintiffs

conceded that if Tookes had left Hamilton in the pool to drown,

that inaction would not have violated Hamilton's constitutional

rights. However, plaintiffs argue that because Tookes rescued

Hamilton from the pool he incurred a constitutional duty to

continue rescue efforts even if he was not properly trained to do

so. We doubt that the Constitution requires such a rule of law,

under which some rescue effort is worse than none from the

rescuer's perspective. Although we do not have occasion to pass on

the merits of the plaintiffs' constitutional claim against Tookes,

we note that it does border on the frivolous.

The district court should have granted summary judgment to

Tookes in his individual capacity on qualified immunity grounds.

We turn now to the plaintiff's state law negligence claims.

III. The State Law Negligence Claims, Appeal No. 94-9158

The plaintiffs brought various state law negligence claims

against the city defendants and the county defendants. The

district court granted summary judgment to all of the defendants on

these negligence claims, relying on Georgia's "public duty"

doctrine as established by City of Rome v. Jordan, 263 Ga. 26, 426

S.E.2d 861 (1993). Originating in 1993, the public duty doctrine

represents a relatively recent development in Georgia law. In

Jordan, a sexual assault victim brought a negligence suit against

the City of Rome for failing to dispatch a police car to her home

after the victim's sister had made several calls requesting police

assistance. The Georgia Supreme Court held that, "where failure to

provide police protection is alleged, there can be no liability

based on a municipality's duty to protect the general public."

Jordan, 426 S.E.2d at 863. However, the court further held that

"the municipality may be subject to liability for the nonfeasance

of its police department" in circumstances where there exists a

"special relationship" between the municipality and the individual.

Id. The court then set up a three-pronged test to determine

whether such a special relationship exists. Satisfaction of the

test requires:

(1) an explicit assurance by the municipality, through

promises or actions, that it would act on behalf of the

injured party;

(2) knowledge on the part of the municipality that inaction

could lead to harm; and,

(3) justifiable and detrimental reliance by the injured party

on the municipality's affirmative undertaking.

Id. The court adapted this test from the rule in a New York case,

Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505

N.E.2d 937 (1987).

Applying the test to the facts of Jordan, the Georgia Supreme

Court held that no special relationship existed between the victim

and the municipality because the "detrimental reliance" element of

the test could not have been met where the victim did not speak to

the police and could not have known whether they had made any

promise of assistance. Jordan, 426 S.E.2d at 864.

The district court in this case applied the same reasoning in

granting summary judgment to the defendants on the state law

negligence claims. Turning directly to the third prong of the

test, the court reasoned that, because Hamilton was unconscious at

the time, she could not have relied on any undertaking of the

defendants. Hamilton, 864 F.Supp. at 1338. More specifically, the

court noted that "she was incapable of taking any affirmative act

that might signify reliance." Id. The district court explained:

"As Georgia law now stands it appears that municipalities can be

held liable for their negligence only if the injured party is

conscious and communicating, but once the victim becomes incapable

of expressing assent municipal liability ceases." Id.

The plaintiffs argue that the "special relationship" test of

Jordan does not control this case. Although they state the

argument in several ways, the plaintiffs' basic position boils down

to this syllogism:

(1) Jordan applies to cases of failure to provide police

protection;

(2) This case has nothing to do with failure to provide police

protection;

(3) Therefore, Jordan is irrelevant to the determination of

this case.

With respect to the city defendants, the plaintiffs argue that

Jordan is plainly inapplicable because the state law negligence

claims against the city defendants have nothing whatsoever to do

with police conduct and, additionally, that Jordan only applies to

nonfeasance, not affirmative acts of negligence.

With respect to the county defendants, the plaintiffs'

argument is a slightly different variation on the same theme.

First, the plaintiffs argue that although police conduct is

involved in the case against the county defendants, the claims

against those defendants are based on negligent interference with

a private rescue effort rather than failure to provide police

protection. Making the point in a slightly different way, the

plaintiffs argue that, quite separate from any "special

relationship" duty owed to Hamilton by Duncan under the Jordan

analysis, Duncan owed Hamilton an independent duty to exercise

ordinary care once he had taken control of the situation and had

ordered Simpson to stop administering CPR. Additionally, the

plaintiffs argue that, even if Jordan applies to the claims against

the county defendants, the district court erred in its application

of the reliance prong of the test by requiring "an affirmative act

that might signify reliance." Id. They argue that Jordan did not

expressly set up an affirmative act requirement and that, under the

circumstances, reliance should be implied or imputed to Hamilton by

others at the scene.

In general, the defendants' arguments are the converse of the

plaintiffs' arguments; the defendants argue for a broad

interpretation of Jordan to insulate them from liability. Both the

city defendants and the county defendants contend Jordan applies

outside the realm of police conduct and applies both to affirmative

acts of negligence as well as nonfeasance. The city defendants

also point out that the plaintiffs have not alleged that the city

defendants committed any affirmative negligent acts with respect to

Hamilton and thus even if Jordan only shields defendants in cases

of nonfeasance, it still shields them.

The plaintiffs' position that Jordan is limited to failure to

provide police protection, or to municipal nonfeasance, would seem

to be a plausible interpretation of the decision. The opinion

contains no less than five references that lend support to this

view. See Jordan, 426 S.E.2d at 862 ("when considering ... failure

to provide police protection") (emphasis added); 862 n. 2 ("We

wish to point out that this case involves the municipality's

failure to act, as opposed to any affirmative act of negligence.");

863 ("where failure to provide police protection is alleged")

("nonfeasance of [municipality's] police department") (emphasis

added); 863 n. 4 ("where a police officer is present at the scene

... yet does not act ") (emphasis added). Nonetheless, Jordan does

not expressly say that its applicability is to be limited to

situations of police nonfeasance, and there is some indication to

the contrary.

For example, in City of Lawrenceville v. Macko, 211 Ga.App.

312, 439 S.E.2d 95 (1993), some homeowners sued the City of

Lawrenceville alleging that the city was negligent in failing to

properly inspect property prior to the issuance of a building

permit. The Georgia Court of Appeals held that the city's

sovereign immunity defeated the plaintiffs' claims. Id. 439 S.E.2d

at 98-99. In the alternative, the court held that even in the

absence of sovereign immunity, the public duty doctrine of Jordan

would have operated to prevent recovery because the plaintiffs had

not shown that the city owed them a duty of care greater than it

owed the general public. Id. at 99.

The only other reported Georgia case we have found that

involves Jordan is Georgia Department of Transportation v. Brown,

218 Ga.App. 178, 460 S.E.2d 812 (1995). In Brown, the survivors of

a motorist who was killed at an intersection sued the Georgia DOT

because the DOT opened the road with two-way stop signs prior to

completion, rather than the four-way traffic lights that the plans

required. The court held that the public duty doctrine of Jordan

did not apply where the legislature had provided for a remedy under

the Georgia Tort Claims Act. Id. at 817. However, the court was

not required to determine whether Jordan would have barred recovery

in the absence of a statutory right of action.

Determining the applicability of Jordan to this case is

problematic. The Jordan decision itself represents the only time

the Georgia Supreme Court has spoken to the issue, but the language

of the opinion may not delineate the limits of the doctrine it

announces. One Georgia appellate court case, Macko, seems to

signal an expansive application while the more recent decision in

Brown declined to extend the doctrine. Although both the

plaintiffs and defendants cite to extra-territorial case law to

buttress their Jordan arguments, those cases are not particularly

helpful because they do not determine the correct rule in Georgia

and because they are in conflict.

Application of the Jordan public duty doctrine outside the

police nonfeasance context has significant public policy

ramifications, and we are in doubt about the matter. When such

doubt exists as to the application of state law, a federal court

should certify the question to the state supreme court to avoid

making unnecessary state law guesses and to offer the state court

the opportunity to interpret or change existing law. Mosher v.

Speedstar Div. of AMCA Int'l, Inc., 52 F.3d 913, 916-17 (11th

Cir.1995). "Only through certification can federal courts get

definitive answers to unsettled state law questions. Only a state

supreme court can provide what we can be assured are "correct'

answers to state law questions, because a state's highest court is

the one true and final arbiter of state law." Sultenfuss v. Snow,

35 F.3d 1494, 1504 (11th Cir.1994) (en banc) (Carnes, J.,

dissenting), cert. denied, --- U.S. ----, 115 S.Ct. 1254, 131

L.Ed.2d 134 (1995).

While we could make an Erie8 guess as to the applicability of

the Jordan public duty doctrine to this case, we have determined

that the more prudent course is to submit the issue to the Georgia

Supreme Court. Accordingly, we respectfully certify the following

questions of law to the Supreme Court of Georgia:9

(1) Does the "public duty doctrine" established in City of

Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861 (1993), apply outside

the police protection context and in the circumstances of this

case?

(2) Does the Jordan public duty doctrine apply to affirmative

acts of negligence, such as those alleged in this case, in addition

to failures to act?

(3) Does the "reliance prong" of the Jordan special

relationship test require an objective manifestation of assent by

the plaintiff, or may assent be inferred from the reliance of

others or from the circumstances of this case?

8

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82

L.Ed. 1188 (1938).

9

Additionally, the defendants argue that even if the Jordan

public duty doctrine is inapplicable to these facts, we should

affirm the summary judgment in their favor on the basis of lack

of causation, or the Georgia "good Samaritan" statute. The

district court relied solely on the Jordan public duty doctrine

in granting summary judgment to the defendants on the state law

negligence claims. The district court declined to reach the

merits of these additional defenses, and so do we. If it is

necessary to consider these defenses after the Georgia Supreme

Court answers our certified questions regarding the applicability

of the Jordan doctrine, we will do so at that time.

(4) Does the Jordan special relationship test apply when a law

enforcement officer acts with gross negligence in performing duties

at the scene of an emergency, as is alleged in this case, such that

the officer would not otherwise be shielded from liability by

Ga.Code Ann. § 35-1-7 (1993)?

Our statement of the questions is not meant to limit the scope

of inquiry by the Supreme Court of Georgia. On the contrary:

[T]he particular phrasing used in the certified question[s]

[are] not to restrict the Supreme Court's consideration of the

problems involved and the issues as the Supreme Court

perceives them to be in its analysis of the record certified

in this case. This latitude extends to the Supreme Court's

restatement of the issue or issues and the manner in which the

answers are to be given....

Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th Cir.1968). The

entire record in this case, together with copies of the briefs of

the parties, is transmitted herewith.

QUESTIONS CERTIFIED.

IV. Conclusion

We REVERSE the district court's denial of summary judgment to

Tookes and Duncan in their individual capacities insofar as the

federal constitutional claims are concerned. We CERTIFY the state

law issues to the Georgia Supreme Court, and we WITHHOLD any

decision about the district court's grant of summary judgment on

the state law claims until we receive the answers to that

certification.10

10

The time for any rehearing petitions and suggestions will

not begin to run in either of these two appeals, which we have

consolidated, until we have disposed of the state law claim

issues following the Georgia Supreme Court's decision of the

certified questions.