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Medical Center Hospital Authority v. Cavender

Court of Appeals of Georgia

March 24, 2015

WRIGHT et al

Page 154

Negligence. Muscogee Superior Court. Before Judge Smith.

Rothschild & Rothschild, Jerome M. Rothschild, Andrew A. Rothschild, for appellant (case nos. A14A1788, A14A1790, A14A1793).

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellant (case nos. A14A1789, A14A1792, A14A1794).

Hall Booth Smith, W. Scott Henwood, Mark W. Wortham, Paul D. Ivey, Jr., Lauren K. Dimitri, for appellant (case no. A14A1791).

Charles A. Gower, Philips, Branch & Hodges, Ben B. Philips, for appellees.


Page 155

Andrews, Presiding Judge.

In these interrelated appeals arising from a 2008 triple homicide at Doctors Hospital in Muscogee County, Plaintiffs Alan Keith Cavender, Marion Baker, and Carla Wright (collectively, " Plaintiffs" ) brought three separate civil actions against Defendants Doctors Hospital, Inc. d/b/a Doctors Hospital, The Medical Center Hospital Authority, and Securitas Security Services, USA, Inc. (collectively, " Defendants" )[1] for personal injury

Page 156

(Cavender) and for wrongful death (Baker and Wright).[2] The Defendants each filed motions for summary judgment, and following extensive briefing and a hearing, the Superior Court of Muscogee County summarily denied the motions. The [331 Ga.App. 470] trial court granted the Defendants certificates for immediate review, we granted the Defendants' applications for interlocutory appeal, and we have consolidated the appeals for decision. For the reasons that follow, we conclude that the trial court erred in denying the Defendants' motions for summary judgment, and therefore reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. Further, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

La Quinta Inns v. Leech, 289 Ga.App. 812-813 (658 S.E.2d 637) (2008).

Viewed in a light most favorable to the Plaintiffs, the evidence revealed that, for several years, Securitas provided security services to Doctors Hospital pursuant to a security agreement. Securitas provided security guards on three different shifts, including one security guard during the day, to monitor Doctors Hospital. As a part of its service to Doctors Hospital, Securitas also provided annual security surveys to Doctors Hospital. The purpose of the surveys was to " assess the efficiency of the security" at Doctors Hospital. These surveys included areas where improved security may be warranted. In particular, Securitas noted that certain entryways should be secured to control ingress and egress, replacement of the closed-circuit TV monitoring system, and additional coverage of the premises by video cameras.

On February 29, 2008, the Hospital Authority purchased, and took ownership of, the Doctors Hospital campus. On the same date, the Hospital Authority entered into a management agreement with Doctors Hospital, Inc. to manage the day-to-day operations of the [331 Ga.App. 471] hospital. Well prior to the Hospital Authority's acquisition of the hospital, the hospital was required by the Joint Commission on the Accreditation of Healthcare Organizations to maintain policies and procedures for, among other things, security. To satisfy its Joint Commission obligation, the prior ownership of Doctors Hospital purchased a " Security Management Policy and Procedure Manual" from Medical Consultants Network, Inc. in the 1990s. Policy 110.015 of the manual included a section defining 18 crimes, both violent and nonviolent, that hospital security " are likely to be called upon to prevent" and " most likely to encounter." Crimes defined in the policy include assault, battery, manslaughter and murder.

On March 27, 2008, Charles Johnston visited Doctors Hospital carrying two concealed handguns beneath a light jacket. He proceeded to the fifth floor, which housed the hospital's intensive care unit. He then left

Page 157

the hospital for some time and returned on two occasions that day, going to the fifth floor on both occasions. On his third attempt in the early afternoon hours, a nurse asked Johnston if he needed any assistance; he calmly replied that he did not. Johnston then saw Peter Wright enter a room, and Johnston followed him. Johnston asked Wright, " Do you remember me[,] [d]o you remember my mother[,]" [3] and Johnston produced one of the concealed handguns and shot Wright at close range. Wright fell to the floor, and Johnston shot him a second time. Wright later died during surgery.

Alan Keith Cavender was on the fifth floor and saw the shooting. Les Harris, hearing the gunshots, ran up the stairwell from the fourth floor to the fifth floor to investigate. Harris asked Cavender to check the stairwell while he monitored the elevators. As the two ran down the hall, Johnston appeared; Johnston shot Harris in the chest, killing him instantly. Cavender attempted to provide CPR to Harris, and Johnston placed his handgun against the back of Cavender's head and cocked the handgun. Cavender told Johnston to " [g]o ahead and shoot me [because] [y]ou just killed my [life] partner." Instead, Johnston struck Cavender on the back of the head and fled down the stairwell.

Wayne Michaux, the lone Securitas security guard on duty at Doctors Hospital on the day of the shooting, was patrolling the parking lot when he received urgent " code blue," " code nine," and " shots fired" calls from Doctors Hospital on his radio. Michaux ran to [331 Ga.App. 472] the emergency room and ordered employees to shut down the ER to prevent anyone from entering or leaving. Someone shouted, " there he is," and Michaux spotted Johnston. Although Michaux then called 911 to report the shootings, the call center had already received multiple calls concerning Johnston's rampage. Johnston was unable to enter the ER, so he left the hospital and walked to the parking lot. Michaux, though unarmed, followed Johnston through the parking lot and warned visitors in the parking lot to take cover.

James David Baker was parked next to Johnston. As Johnston approached his vehicle, Baker began to exit his vehicle. Johnston shot Baker, and Baker fell back into his vehicle. Law enforcement authorities arrived in the parking lot, and Michaux directed them to Johnston. Johnston exchanged gunfire with the authorities and was himself shot during the incident before he was apprehended. Officers found three handguns on Johnston's person. A medical ...

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