Certiorari to the Court of Appeals of Georgia --
Certiorari to the Court of Appeals of Georgia --
Lee R. Grogan, William C. Rumer, G. Michael Agnew, Milton D. Jones, for appellees.S. E. Kelley, J. Ronald Mullins, Sidney F. Wheeler, Michael T. Bennett, D. Keith Calhoun, for appellant.
In a matter of first impression the Court of Appeals held that appellant, a private mental health hospital, may be held civilly liable for the murder of appellee's mother by appellees' father, a patient in appellant's facility. Bradley Center v. Wessner,
Appellant argues that appellees' case must fail because Georgia law strictly requires privity between the plaintiff and physician in a medical malpractice action, citing Buttersworth v. Swint,
The medical malpractice cases cited by appellant stand for the proposition that before a plaintiff may recover on the theory that he received negligent treatment from a defendant physician, the plaintiff must show that a doctor-patient relationship existed between them. In such cases, called "classic medical malpractice actions" by the Court of Appeals, doctor-patient privity is essential because it is this "relation which exists between physician and patient which is a result of a consensual transaction" that establishes the legal duty to conform to a standard of conduct. Norton v. Hamilton,
The legal duty in this case did not arise out of this "consensual transaction" between doctor and patient, however, so there is no basis for a requirement of privity. The legal duty in this case arises out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm. This has been expressed as follows: ". . . negligence is conduct which falls below the standard established by, law for the protection of others against unreasonable risk of harm." Restatement, Torts, 2d, 282.
We believe the Court of Appeals properly identified the legal duty in this case in that: "where the course of treatment of a mental patient involves an exercise of 'control' over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient." Bradley Center v. Wessner,
By finding appellant liable we have not created a "new tort," rather we have applied our traditional tort principles of negligence to the facts of this case. We also note that the duty to conform to a standard of conduct in this case is a well-recognized and well-established principle of law in other jurisdictions. See Lipari v. Sears, Roebuck & Co., 497 FSupp. 185 (D. Neb. 1980) (applying Nebraska law); Bellavance v. State, 390 S2d 422 (Fla. App. 1980); Rum River Lumber Co. v. State, 282 NW2d 882 (Sup. Ct. of Minn. 1979); McIntosh v. Milano, 403 A2d 500 (Sup. Ct. N. J. 1979); Homere and Stillman v. State, 370 NYS2d 246 (1975); Tarasoff v. Regents of Univ. of California, 529 P2d 553 (Cal. 1974); Semler v. Psychiatric Inst., 538 F2d 121 (4th Cir. 1976) (applying Virginia law); Hicks v. United States, 511 F2d 407 (D. C. Cir. 1975); Underwood v. United States, 356 F2d 92 (5th Cir. 1966); Fair v. United States, 234 F2d 288 (5th Cir. 1956); Greenberg v. Barbour, 322 FSupp. 745 (E. D. Pa. 1971) (applying Pennsylvania law); Jones v. State, 119 A 577 (Me. 1923).
Appellant argues that this decision abandons our traditional rule that intervening criminal acts of third parties are unforeseeable and cannot give rise to liability, citing McClendon v. C. & S. Nat. Bank,
UPON WITHDRAWAL OF APPELLANT'S MOTION FOR REHEARING, AND
UPON CONSIDERATION OF THE COURT'S OWN MOTION.
(NOVEMBER 23, 1982)
I concur in the judgment affirming the trial court and the jury verdict. However, I disagree with the adoption of a simple negligence standard in cases involving intervening criminal acts, for reason that few are wise enough to foretell the conduct of another, and the imposition of such a standard places upon a prudent man the requirement that he know in advance what another will do.
I would adopt and apply to this case the rule expressed in Truelove v. Wilson,
Because in this case there was no enumeration of error relating to the trial court's charge on simple negligence, the failure of the trial court to charge the rule of Truelove, supra, was not presented for review on appeal, and, as the evidence in this case plainly would support a recovery under the theory of wilful and wanton conduct, the judgment should be affirmed.
I am authorized to state that Justice Clarke and Justice Bell concur herein.
1. Of particular interest here is the second illustration accompanying this Restatement section: "2. A operates a private sanitarium for the insane. Through the negligence of the guards employed by A, B, a homicidal maniac, is permitted to escape. B attacks and causes harm to C. A is subject to liability to C." Restatement, Torts, 2d, 319, Illustration 2.
This document cites
- Supreme Court of Georgia - BODIN et al. v. GILL et al., 216 Ga. 467, 117 S.E.2.d 325 (1960)
- Supreme Court of Georgia - ATLANTIC COAST LINE RAILROAD COMPANY et al. v. GODARD, executrix., 211 Ga. 373, 86 S.E.2.d 311 (1955)
- Georgia Court Of Appeals - Mcclendon v. Citizens &Amp; Southern National Bank., 155 Ga. App. 755, 272 S.E.2d 592 (1980)
- Georgia Court Of Appeals - Warner v. Arnold Et Al., 133 Ga. App. 174, 210 S.E.2d 350 (1974)
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