7/16/2014 9:20:00 AM,
Jeff D. Gorman
(CN) - A Georgia community may be liable after its police officer went on a drunken rampage that turned violent for the woman trying to help him, an appeals court ruled.
Leresa Graham said she was driving in Gwinnett County when she saw an intoxicated man running in the street, putting on a police-issued bulletproof vest with a radio attached. She rolled up the windows and locked her doors.
The man, later identified as Duluth police officer Matthew Dailey, flashed his badge and told Graham was injured. Graham rolled her window down a bit. Dailey asked her to call 911.
When she picked up her phone, Dailey screamed at her that she would ruin his career. He slapped the phone out of her hand and pepper-sprayed her.
Dailey smashed Graham's window with the empty can of pepper spray and then hit her in the face with the can, saying he was going to kill her.
Another off-duty officer, Paul Phillips, was flagged down. He thought Dailey needed help when he approached Graham's car, but Dailey pulled his gun. Both officers fired at and wounded each other.
Dailey was convicted of multiple crimes stemming from the incident. Graham sued Dailey and the city of Duluth for negligent hiring and retention.
The trial court ruled in the city's favor, but the Georgia Court of Appeals revived the negligent hiring claim on July 3.
It noted that Duluth had performed a background check on Dailey in December 2002 but did not hire him until October 2003.
A few weeks before he was hired, Dailey was involuntarily committed to a hospital for one night after an armed, drunken confrontation with his neighbors. Officers subdued Dailey after he said he wanted to blow his brains out.
Graham failed, however, to persuade the Georgia Court of Appeals that the city should have canvassed Dailey's neighborhood and discovered the 2003 incident.
As to whether the city used ordinary care in conducting Dailey's background check,
Graham did present a triable issue of fact, the ruling states.
"It does not appear that Major (Don) Woodruff made any attempt to contact someone at the Fulton Sheriff's Office who might have known about Dailey's work performance, and it does not appear Major Woodruff made any attempt to contact Major Richard Davis, although Dailey specifically listed Major Davis as his supervisor on his application when he applied for employment with the city," Judge McMillian wrote for a three-judge panel.
This could support the conclusion that However, the court did rule that should never have hired Dailey.
"A jury could conclude that Dailey's propensity to get extremely intoxicated, brandish his service weapon before innocent bystanders and become belligerent and irrational when questioned or contradicted made him unsuitable to be placed in a position where he was issued weapons, including pepper spray, which was used in the attack on Graham," McMillian wrote.
A jury must decide whether Dailey was acting "under color of employment" when he attacked Graham, according to the ruling.