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High court orders further review of case

Man’s dogs euthanized while he was in hospital

POSTED: November 20, 2013 12:32 a.m.
 

The Georgia Supreme Court released an opinion Monday that strengthens the case of a Forsyth County Sheriff’s deputy facing a lawsuit from a resident whose dogs were euthanized while he was hospitalized.

The decision states that the Georgia Court of Appeals “went astray” in its July 2012 ruling and sends the case back with directions for further review.

The issue dates to January 2007, when county resident Mitchell Greenway was hospitalized for a medical emergency.

While in the hospital, Greenway contends he was “pressured” by Deputy Terry Roper to sign a form releasing his two dogs, according to the Supreme Court opinion. At the time, Greenway has said he could not read the form because he didn’t have his glasses, and he had been on medication.

He thought his dogs would be going to the humane society, the court’s summary states, but the golden Labrador Retrievers were euthanized three days later.

Greenway filed suit seeking damages after the incident against then-Sheriff Ted Paxton, Roper, Northside Hospital and NALAA, which runs the county animal shelter.

The case was heard in Forsyth County Superior Court and summary judgment was granted to all defendants, which stopped the case before a trial.

The appeals court reversed that decision in July for Roper, Northside and the shelter, finding that a case against those defendants should continue to trial.

Only Roper appealed that decision to the Supreme Court, which determined the lower court erred in determining he was carrying out a ministerial duty.

A ministerial act, according to the appeals court decision, is one that is "requiring merely the execution of a specific duty." A discretionary act, however, "calls for the exercise of personal deliberation and judgment,” and is typically protected under the doctrine of official immunity.

The high court’s decision states that no evidence of a policy existed for the specific duty, and so Roper had to use discretion in handing Greenway the form to sign.

The Supreme Court order continues: “However, the distinction between discretionary and ministerial acts does not completely foreclose Roper’s potential liability; he may be held liable if his discretionary act was malicious.”

Greenway’s attorney, Bob McFarland, said the appeals court will have the opportunity to determine if malice may have been present.

If so, Roper could still be included as one of three defendants at a future trial, along with the hospital and the shelter.

“This decision from the Georgia Court of Appeals will determine whether he’s there or not,” McFarland said. “Obviously we would like for him to be there because we feel like the defendants will point the finger at the empty chair and say he’s the one that caused the problems.”

County Attorney Ken Jarrard, who represents Roper, said Forsyth is “very pleased with the result” from the Supreme Court.

“We understand it will be going back to the court of appeals,” Jarrard said, “and we’ll await any direction by the court.”

 

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