ATLANTA - A Forsyth County sheriff s deputy is appealing a Georgia Court of Appeals ruling that turns over to a jury the decision of whether he should be held liable for having two dogs euthanized while their owner was in the hospital.
Terry Roper argues he is shielded by official immunity. The state Supreme Court is to hear the case Monday.
DETAILS OF THE CASE, ACCORDING A POSTING FROM THE GEORGIA SUPREME COURT:
ROPER V. GREENWAY(S12G2030)
FACTS: In January 2007, Mitchell Greenway, who was totally disabled, was taken by ambulance to Northside Hospital in Atlanta. According to testimony, he was periodically confused and out of it in the emergency room and it was not clear whether he would survive. Greenway had two golden Labrador retrievers, Misty and Dakota, which he left in his back yard with food and water. His neighbor testified that he told police at Greenway s home he would look after the dogs. According to the neighbor, he and Greenway had an understanding that he would pitch in and help with the dogs whenever he needed me. At some point, a patient advocate met with Greenway and asked whether someone was at his home in Cumming. Greenway responded, no, except my two dogs. Not long after, Forsyth County Sheriff s Deputies with the Animal Control Unit, including Terry Roper, came to his room and asked him to sign a form. Greenway testified that he is nearly blind without his glasses but no one could find them. When he asked if someone could read the form to him, they said they could not, by law. Greenway then refused to sign. According to Greenway, the nurses and a doctor told him in the presence of the deputies and patient advocate that if he did die, then [his] dogs would go to the Humane Society and he could get them back within seven to 10 days. Greenway had difficulty remembering details but said the one thing he did recall was Roper saying to him: Just sign the damn form. Greenway eventually signed the form based on his belief that his dogs would be taken to the Humane Society and that if he survived, he could get them back within seven to 10 days. When they found his glasses and he later read the form, he said bells, whistles and everything went off in his mind, as he realized he d signed a form authorizing the animals to be put to sleep. Before he could do anything, he was sedated. When he woke up in a regular hospital room, he asked the nurse about getting his dogs back. After she made inquiries, she returned with tears in her eyes and informed Greenway that his dogs had already been euthanized. Meanwhile, according to an affidavit, his neighbor who was going out of town on business, had called the county pound and offered $100 to house the dogs while he was away. He told the woman over and over again that those dogs were not to be euthanized under any circumstances. He said the woman assured him they would take good care of the dogs.
Greenway sued Roper, the sheriff, Northside Hospital, and the private corporation that operates the Forsyth County Animal Control facility, contending that at the time he signed the form, he was not fully aware of what was happening, the nature of the form was misrepresented, he was not allowed to read the form, and he was told he had to sign it. The trial court ruled in favor of Roper and the other defendants, granting all of them summary judgment which a court does only when the judge determines there is no need for a jury trial because the facts are undisputed and the law falls clearly on the side of those requesting the judgment. Greenway then appealed, and the Court of Appeals reversed the ruling as it applied to Roper, the hospital and the company that operates animal control. Only Roper now appeals to the Georgia Supreme Court.
At issue in this case is whether Roper was performing a ministerial duty during his interactions with Greenway, or a discretionary act. A ministerial act is defined as one that is simple, absolute and definite, requiring merely the execution of a specific duty. A discretionary act, however, calls for personal deliberation and judgment and involves weighing the facts and acting on them in a way not specifically directed. Under the doctrine of official immunity, a public agent is considered immune from personal liability for discretionary acts taken within the scope of his official authority and done without malice or corruption. Those who must exercise a certain amount of discretion on the job, as opposed to those who simply perform ministerial duties, are offered limited immunity to preserve their independence of action without fear of lawsuits. A public officer may be personally liable only for ministerial acts that are negligently performed or performed with malice or an intent to injure. Roper argued he was immune, and the trial court agreed, because he was acting on his own and under his own discretion when he gave Greenway the form to sign. The Court of Appeals agreed that Roper s decision to ask Greenway to sign the release was discretionary. However, the act of physically handing the form to Greenway was ministerial and the allegations that Deputy Roper exercised poor judgment in carrying out that act do not make the act the type of discretionary act protected by official immunity; they merely support an inference of negligence. Greenway s assertions that Roper pressured him to sign the form when Greenway was out of it and under medication, create genuine issues of material fact as to whether he breached a ministerial duty, and the case must be determined by a jury, the Court of Appeals ruled.
ARGUMENTS: Roper s attorney argues the Court of Appeals erred. The Court of Appeals decision should be overturned because the law should not sanction an outcome where Deputy Roper s decision seeking Greenway s signature is discretionary while simultaneously holding that the single physical act of obtaining Greenway s signature is ministerial, the attorney argues in briefs. In Georgia, a public officer is immune from negligence in the performance of discretionary acts taken within the scope of his official authority so long as he does not act with actual malice or an intent to injure. However, such immunity does not apply if the official was performing a ministerial act, in which case mere negligence is sufficient for a finding of liability. If the Court of Appeals decision is allowed to stand, no public official will be able to overcome the Court of Appeals novel two-step analysis that focuses more on the ministerial physical mechanics of implementing a decision than in the deliberation and judgment that went into making the decision in the first place. The Court of Appeals decision should also be reversed because it improperly found a ministerial act based on the manner in which Deputy Roper sought Greenway s signature without identifying a specific duty dictating the manner in which Deputy Roper should have done this, his attorney argues. A law enforcement officer making a determination as to how a patient in a hospital is to be approached for the purpose of considering and potentially executing a legal document is not an activity for which there is a simple, absolute and definite means or manner of handling.
Greenway s attorney argues the Court of Appeals ruled correctly. Deputy Roper has not proven that the Court of Appeals was in error when it declared that the action taken by him was ministerial, rather than discretionary, he argues in briefs. There are numerous genuine issues of material facts which support the Court of Appeals reversal of the trial court s granting of Deputy Roper s motion for summary judgment. The decision by the Court of Appeals is consistent with case law or the law handed down in court decisions as opposed to statutes. Roper disguised the fact that he was with Animal Control, and lied to Greenway that he worked for the Humane Society, which are two different agencies with two different missions. If it is true that Officer Roper lied to Mr. Greenway and to the hospital staff, he certainly would not be able to hide behind the shield of sovereign immunity, Greenway s attorney argues. Under the sovereign immunity statute, an official performing a discretionary act is entitled to immunity, provided acts complained of are done within scope of officer s authority and without willfulness, fraud, malice or corruption. The absence of fraud is a requirement for sovereign immunity of sheriff s deputies, the attorney contends.
Attorney for Appellant (Roper): Ken Jarrard
Attorney for Appellee (Greenway): Robert McFarland, Sr.
Sunday
August 3rd, 2025
7:59AM
