THOMPSON, Chief Justice.
We granted a writ of certiorari in this case to decide whether the Court of Appeals erred in its determination that the public duty doctrine insulated the City of Doraville from liability arising from the response of a Doraville Police Department ("DPD") officer to a vehicle emergency on an interstate highway which culminated in a multi-vehicle accident injuring Kenyatta Stevenson. Stevenson v. City of Doraville, 315 Ga.App. 233, 726 S.E.2d 726 (2012). Stevenson sued the City and DPD Officer Sean Mahar asserting Mahar was negligent in failing to redirect traffic away from Stevenson's disabled car and in causing traffic to move in Stevenson's direction by engaging his vehicle's blue emergency lights while stopped near the outer lane of the highway behind and to the right of Stevenson. The trial court granted summary judgment to both defendants, finding official immunity shielded Mahar from liability and that the public duty doctrine precluded Stevenson's claims against the City.
Stevenson appealed the grant of summary judgment to the City arguing that the public duty doctrine did not apply to his case because he alleged affirmative acts of negligence and that, even if the doctrine did apply, he fell within the special relationship exception identified in City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861 (1993). The Court of Appeals affirmed, finding Stevenson's arguments lacked merit. Although it appears the Court of Appeals based its rejection of Stevenson's first argument on its finding that "there is nothing in the record ... showing any active negligence on the part of the officer," we write to clarify that the
"On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Shekhawat v. Jones, 293 Ga. 468, 469, 746 S.E.2d 89 (2013) (quoting Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 717-718(4), 545 S.E.2d 875 (2001)). So viewed, the relevant evidence shows the following.
Stevenson was driving at night during a rainstorm on Interstate 285 in the lane closest to the median when he began experiencing car trouble. Attempting to maneuver his car across six lanes of traffic to the far right shoulder of the interstate, Stevenson was only able to make it across two lanes before his car stalled completely. As his car coasted to a stop in the third traffic lane from the right, Stevenson noticed a police vehicle to his right near the outer shoulder of the highway with its emergency lights activated. This vehicle was driven by Mahar, who, upon seeing Stevenson's disabled car, engaged his vehicle's flashing blue lights. By the time Stevenson's car stopped moving, the police vehicle was at the four o'clock or five o'clock position behind and to the right of Stevenson's car.
Stevenson turned on his emergency flashers and remained in his stalled car, presuming Mahar would provide assistance. Mahar, meanwhile, called dispatch, announced his location, and reported he was attempting to reach the road hazard created by Stevenson's vehicle. Deciding he could not get to Stevenson's vehicle due to the traffic, Mahar, who was driving a police K-9 vehicle, called dispatch a second time seeking additional assistance.
After several minutes passed without his receiving help, Stevenson exited his car and walked to the front of his vehicle to try to get Mahar's attention. Within seconds, a car driven by James Zastrow moved into Stevenson's lane to avoid a merging tractor trailer truck and struck Stevenson's car, which in turn hit Stevenson and resulted in a multi-car accident. Zastrow stated in his affidavit that he never saw any flashing blue lights but claimed he would not have moved into Stevenson's lane and would have avoided the collision if the tractor trailer truck on his right had not moved from the first lane of travel into the second lane directly in front of him.
1. The public duty doctrine was adopted by this Court in City of Rome v. Jordan, supra, 263 Ga. at 27, 426 S.E.2d 861, to answer the question of whether a duty exists upon which a municipality can be held liable for the failure to provide police protection to an individual citizen. Observing that "[t]he threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care," the Court concluded,
Id. at 28-29, 426 S.E.2d 861 (emphasis added).
In order to establish the existence of a special relationship, the Court identified three requirements:
Id. at 29, 426 S.E.2d 861.
Specifically noting that "this case involves the municipality's failure to act, as opposed to any affirmative act of negligence," the Court in City of Rome signaled its intent to limit application of the newly created doctrine to claims of nonfeasance. Id. at 27, fn. 2, 426 S.E.2d 861. In subsequent decisions, a majority of this Court has declined to extend the doctrine to include affirmative acts of negligence and, under our established precedent, the public duty doctrine's limitation on liability is restricted to cases involving police nonfeasance.
2. Having determined the public duty doctrine does not insulate the City from liability with respect to Stevenson's claims alleging actual misfeasance, we consider whether the Court of Appeals erred in finding there existed no factual support for these claims. Stevenson contends Mahar was actively negligent in three ways: 1) by activating his police vehicle's blue emergency lights without rendering additional aid, thus hindering Stevenson's efforts to help himself; 2) by engaging his unit's emergency lights while stopped in the four o'clock or five o'clock position behind Stevenson's disabled vehicle thus causing traffic to divert in Stevenson's direction; and 3) by stopping his police vehicle in the first lane of travel in a position behind and to the right of Stevenson's vehicle prior to the accident thus creating a hazard forcing traffic to divert into Stevenson's lane. The City disputes these claims, arguing there is no admissible evidence in the record showing Mahar actively hindered anyone from helping Stevenson or otherwise negligently increased the risk of harm to Stevenson.
Summary judgments enjoy no presumption of correctness on appeal and will be upheld only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56(c); Cowart v. Widener, 287 Ga. 622, 624, 697 S.E.2d 779 (2010). A movant for summary judgment has not met his burden where a material issue can be eliminated only by making credibility judgments. Id. at 633, 697 S.E.2d 779. See Holmes v. Achor Center, 249 Ga.App. 184, 192, 547 S.E.2d 332 (2001). This does not mean, however, that a witness's uncontradicted testimony can simply be disbelieved in order to eliminate the evidence it provides. Cowart, 287 Ga. at 633, 697 S.E.2d 779. Instead, this requirement applies only where what one witness says on a material point is genuinely contradicted by some other evidence — what another witness says, a prior statement by the witness, or a document or other piece of physical evidence. Id. Once the pleadings are pierced with actual evidence, the plaintiff must point to admissible evidence showing a genuine issue of fact as summary judgment cannot be avoided based on mere speculation or conjecture. Id. at 633-634, 697 S.E.2d 779. See Butler v. Huckabee, 209 Ga.App. 761, 762-763, 434 S.E.2d 576 (1993) (summary judgment was
With regard to Stevenson's first claim, in which he alleges Mahar interfered with his efforts to help himself by activating the police vehicle's emergency lights without rendering additional aid, we find it is in fact a claim of nonfeasance to which the public duty doctrine applies. In support of this claim, Stevenson relies on the expert testimony of Donald Pullease, a 26 year veteran of the Ft. Lauderdale Police Department. Pullease opined that Mahar's decision to activate his blue lights was negligent "because he hindered Mr. Stevenson's own efforts to take action to avoid injury by giving the impression that he was there to assist." Although Stevenson testified that at the time he noticed the blue lights, he was not sure why they were on or why the police vehicle was stopped and that he ultimately exited his vehicle in an attempt to get Mahar's attention, he asserts that had the police cruiser not been present with its blue lights activated he would not have waited, but would have exited his car immediately. He further contends that by waiting in his vehicle in response to seeing the lights, he missed opportunities to get across two lanes of the interstate highway on foot.
In essence, Stevenson argues that Mahar was negligent based on either Mahar's mere presence at the scene which caused Stevenson to delay taking action, or Mahar's failure to do anything other than turn on his emergency lights. Under either scenario, we find Stevenson does not allege a claim of misfeasance, but one more properly viewed as a claim of nonfeasance. Contrary to Stevenson's assertion, there is no evidence in the record showing anyone attempted to help him, or that Mahar actively hindered anyone, including Stevenson himself, from so doing,
Although Stevenson's remaining claims, based on the contention that Mahar contributed to the collision by creating hazards that diverted traffic towards Stevenson's stalled vehicle, allege acts of actual misfeasance, we find no admissible evidence in the record upon which a reasonable inference could be drawn in support of either claim. Stevenson's expert witness opined that Mahar negligently increased the risk of harm to Stevenson by placing his police vehicle in the four o'clock or five o'clock position behind Stevenson while engaging his unit's emergency lights, thus increasing the likelihood that motorists would move towards the center lanes of travel where Stevenson was stranded. He found this especially likely in light of the requirements of Georgia's "move-over" law, OCGA § 40-6-16.
There is no record evidence, however, which shows Mahar's lights caused any vehicle to change lanes. To the contrary, Zastrow, the driver whose car hit Stevenson, stated he never saw Mahar's vehicle or any
Nor do we find any admissible evidence upon which to base an inference that, prior to the accident, Mahar stopped his police vehicle in the first lane of traffic and not the side of the road as he claimed, thus creating an actual hazard forcing traffic to divert towards Stevenson's disabled vehicle. Although the accident report prepared by DeKalb County Police Officer Travis Bui, the investigating officer on the scene, contains a diagram showing Mahar's vehicle located in the first lane of travel and at a five o'clock position with respect to Stevenson's vehicle after the accident, it provides no evidence of the location of Mahar's vehicle before or at the time of the accident. In his affidavit, Officer Bui states,
Neither Bui's testimony, nor the accident report itself, provides evidence with respect to the location of Mahar's vehicle at the time of the accident and there is nothing in the record to contradict Mahar's testimony that he moved his vehicle onto the roadway after the accident occurred.
Accordingly, we find no error in the Court of Appeals' determination that there was no factual support in the record for Stevenson's claims that Mahar was actively negligent.
3. There being no evidence in the record of active negligence, Stevenson can avoid application of the public duty doctrine only upon the showing of a special duty owed him, individually, by the City. Stevenson asserts he meets the requirements set forth by this Court in City of Rome for establishing the existence of a special relationship between himself and the City giving rise to such a duty. Alternatively, he argues that this Court should find a special duty exists under the facts of this case even in the absence of a special relationship.
Applying the test for a special relationship to the facts presented, we find no evidence that Mahar gave Stevenson an explicit assurance he would act on Stevenson's behalf and upon which Stevenson could have justifiably relied. As previously determined in Division 2, by turning on his police lights, Mahar was issuing a warning to all travelers on Interstate 285 of the danger created by Stevenson's stalled vehicle, not providing Stevenson with an explicit assurance of assistance. Moreover, Stevenson himself admitted he was uncertain whether Mahar had activated his patrol lights in response to Stevenson's car breaking down or for some other reason. Although Stevenson argues he remained in his vehicle longer than he would have, and to his detriment, because he thought Mahar was going to help him, his decision was
Nonetheless, Stevenson asserts this Court should find the City owes him a special duty because he was an identifiable person in danger and there was an officer on the scene who negligently failed to render aid. He argues this Court left open just such a possibility in City of Rome when it noted that
263 Ga. at 29, fn. 4, 426 S.E.2d 861. Despite this language, this Court has never utilized such a broad exception to the public duty doctrine even when urged to do so,
Accordingly, we find the public duty doctrine insulates the City from liability for Stevenson's claims in this case and the decision of the Court of Appeals affirming the trial court's grant of summary judgment to the City is affirmed.
Judgment affirmed.
All the Justices concur.