X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Officer Michael Wethington responded to a call from Montgomery County Sheriff’s Dispatch regarding a dog attack on a child at the residence of Billy and Ginger Mann. Wethington testified in an affidavit that he arrived at the scene and determined it was necessary to locate the dog in order to secure the scene. When he stepped into the backyard, the dog charged him, “growling and snarling, with its head lowered.” Wethington testified that he feared the dog was going to attack and determined he could not outrun the dog, so he shot it. The Manns filed a suit against Wethington for the death of their dog. Wethington filed a motion for summary judgment on the grounds of official immunity. An affidavit in support of Wethington’s motion was presented from David Miller, a corporal in the Sheriff’s Department, who was called to the scene shortly after Wethington shot the dog. Miller said Wethington was both prudent and reasonable to search for the dog to determine whether it still posed a risk. According to Miller, it was reasonable for Wethington to conclude that the dog, having just attacked a child, would attack him and possibly others. Harold Warren, a retired peace officer, stated in an affidavit that in his opinion Wethington did not act in good faith in that no reasonably prudent official, under the circumstances present in this case, could have believed his conduct was justified. Warren asserted that no reasonably prudent officer would place himself in such a situation unless necessary and it was not necessary, or even prudent, for the officer to enter the back yard “because he could have confirmed the dog’s location from the relative safety of the backdoor or the fenced driveway.” According to Warren, because Wethington suspected the dog was in the back yard, the only reasonable course of action was to confirm the dog’s location from another location and then let animal control deal with the situation. The trial court denied the motion for summary judgment based on official immunity and Wethington appealed. HOLDING:The trial court’s order denying Wethington’s claim of official immunity is reversed and judgment rendered that Billy and Ginger Mann take nothing. The elements of the defense of official immunity are 1. the performance of a discretionary function; 2. in good faith; 3. within the scope of the employee’s authority. The court notes that Wethington was investigating a report of a dog attack on a child. His actions at the scene were based on the facts gathered. These actions required deliberation, decision and exercise of judgment. The court therefore finds that the summary judgment evidence shows Wethington was carrying out a discretionary function. The court also notes that Wethington’s and Miller’s affidavits provide summary judgment proof of good faith. As to Warren’s affidavit, the court finds that the record does not establish that no reasonable officer could have believed a search for the dog was justified. Accordingly, the court holds that the summary judgment evidence established Wethington entered the backyard in good faith. Regarding the scope of authority, Wethington’s affidavit avers his duties include responding to such calls and that he was acting as a police officer when called to the scene. There is no controverting evidence. Rather, the Manns focus on the fact that their residence is outside Wethington’s geographical jurisdiction. The court holds that such a geographical argument is misguided and finds that Wethington was acting within the scope of his authority as an officer of the law, responding to an emergency call. Therefore, the summary judgment evidence established Wethington’s actions were within the scope of his authority. OPINION:Kreger, J., Wright, J., and McCall, J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.