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Goldstein Garber & Salama, LLC v. J.B.

Supreme Court of Georgia

February 27, 2017

GOLDSTEIN GARBER & SALAMA, LLC
v.
J.B.

          HINES, Chief Justice.

         This Court granted certiorari to the Court of Appeals in Goldstein, Garber & Salama, LLC v. J.B., 335 Ga.App. 416 (779 S.E.2d 484) (2015), to determine whether the Court of Appeals erred in concluding that a reasonable jury could find that a third party's sexual molestation of J.B. was an act foreseeable by Goldstein, Garber & Salama, LLC ("GGS"), whether that Court erred in affirming the trial court's denial of GGS's motion for a directed verdict on the issue of negligence per se, and whether GGS waived any objection to the jury verdict's apportionment of fault. Finding that the opinion of the Court of Appeals was erroneous, we reverse its judgment.

         Plaintiff/appellee J.B. was injured when certified registered nurse anesthetist ("CRNA") Paul Serdula sexually assaulted her in a surgical suite in the dental practice of defendant/appellant GGS. Serdula was hired by GGS as an independent contractor through anesthesia staffing agency Certified Anesthesia Providers; in accordance with its standard practice, that agency conducted an independent credentialing process on Serdula prior to placing him in any medical or dental facilities.

         On September 16, 2009, J.B. came to GGS's offices for an outpatient dental procedure. Serdula administered anesthesia to J.B. and kept her in a heavily sedated state for approximately two hours, which included a 35-minute break between two phases of her procedure. At some point, J.B. was left alone with Serdula, and Serdula made three brief video recordings of himself sexually molesting her. These videos of J.B., as well as videos of Serdula sexually molesting other anesthetized patients, were later discovered when Serdula's hidden cell phone was found recording employees in GGS's office restroom. Prior to the crimes committed by Serdula against J.B., GGS had no knowledge of anything in Serdula's record that indicated he might sexually molest or otherwise harm a patient.

         J.B. filed suit against GGS and Serdula, but withdrew her claims against Serdula after he pled guilty to numerous criminal charges related to his sexual assaults on patients and was sentenced to life in prison; she continued her suit against GGS, including claims for negligence per se and professional negligence. At trial, a jury found in favor of J.B., and the trial court entered judgment on that verdict. On appeal, the Court of Appeals affirmed the trial court, [1] and this Court granted GGS's petition for a writ of certiorari. Further facts can be found in the opinion of the Court of Appeals. Goldstein, supra.

         1. The Court of Appeals found that there was evidence from which the jury could find that GGS breached its duties to follow professional standards regarding the extent to which J.B. was anesthetized, and to which Serdula was supervised. "It is well established that to recover for injuries caused by another's negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and damages." Johnson v. American Nat. Red Cross, 276 Ga. 270, 272 (1) (578 S.E.2d 106) (2003) (Citations and punctuation omitted.) Thus, in order to recover for any injuries resulting from the breach of a duty, there must be evidence that the injuries were proximately caused by the breach of the duty. Id. As this Court has stated, when a defendant claims that its negligence is not the proximate cause of the plaintiff's injuries, but that an act of a third party intervened to cause those injuries, the rule is

that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendant.

Ontario Sewing Mach. Co., Ltd. v. Smith, 275 Ga. 683, 686 (2) (572 S.E.2d 533) (2002) (Citation and punctuation omitted.) But, this rule does not insulate the defendant "if the defendant had reasonable grounds for apprehending that such wrongful act would be committed." Id. Stated differently,

if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.

Id. (Citation and punctuation omitted.) "The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant's conduct and the plaintiff's injury are too remote for the law to countenance recovery." Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569 (398 S.E.2d 16) (1990) (Citation and punctuation omitted.) And, a general rule of proximate cause is that "[a] wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience." Johnson, supra at 273 (1).

         It is unquestioned that Serdula's criminal acts intervened between any breach of duty by GGS and the injuries to J.B., and that those injuries would not have occurred without his criminal acts. Thus, the question is whether Serdula's intervening criminal acts were foreseeable to GGS.

         The Court of Appeals noted that "there was no evidence that GGS knew of Serdula's previous assaults on patients, " Goldstein, supra at 420 (2) (a), and cited no evidence indicating that GGS should have known of them.[2] Rather, the Court of Appeals noted that the level of anesthesia she was given "rendered her a more vulnerable target" to sexual assault, id., and stated that, given that the dental community is aware that sexual assaults of anesthetized patients do occur, and that the profession considers them to be events which should never happen, the Court was "not persuaded . . . that the relatively uncommon nature of Serdula's intervening acts compels a determination that GGS could not reasonably have foreseen them." Id. However, the fact that the dental profession is aware that sexual assaults of sedated patients can occur, and recognizes that such events should never happen, does not alone convert GGS's alleged breach of its duty to properly supervise Serdula into liability on GGS's part, nor does GGS's failure to ensure that a recovering patient be attended by a second appropriately trained person.[3] Rather, for any such breach to be considered the proximate cause of J.B.'s injuries, Serdula's criminal acts must be the "probable or natural consequences" of that breach, Ontario Sewing Mach., supra, and it must be the case that those criminal acts could "reasonably have been anticipated, apprehended, or foreseen" by GGS. Id. The evidence here simply does not show that Serdula's acts can be so considered.[4] Although questions of the foreseeability of intervening criminal acts are usually for the factfinder, when, as here, the evidence on the matter is plain and undisputable, it is properly for the court's adjudication. Munroe v. Universal Health Servs., Inc., 277 Ga. 861, 866 (2) (596 S.E.2d 604) (2004).

         Accordingly, the trial court should have granted GGS's motion for directed verdict, it was error for the Court of Appeals to hold otherwise, and its judgment must be reversed.

         2. As the Court of Appeals recognized in its opinion, proximate cause is an element that must be proved in cases involving both professional negligence and negligence per se. Goldstein, supra at 418 (2) (a). See Chritser v. McFadden, 277 Ga. 653, 655 (593 S.E.2d 330) (2004); Johnson, supra; Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (1) (333 S.E.2d 829) (1985).[5]

          Even if a reasonable jury could find that a breach of duty by GGS could be considered the proximate cause of J.B.'s injuries, but see Division 1, supra, the Court of Appeals erred in its analysis regarding negligence per se. As that Court noted, J.B.'s claim of negligence per se rested upon GGS's violation of permitting requirements of OCGA § 43-11-21.1, [6] which governs when dentists may administer general anesthesia, or have it administered by a CRNA under a dentist's supervision. Although it was admitted that the dentists who were employees or agents of GGS did not have the permits required by OCGA § 43-11-21.1 (a), that alone does not establish negligence per se. Rather, "negligence per se arises when a statute is violated, the person injured by the violation is within the class of persons the statute was intended to protect, and the harm complained of was the harm the statute was intended to guard against." Murphy v. Bajjani, 282 Ga. 197, 200 (2) (647 S.E.2d 54) (2007) (Citation omitted.)

         Although J.B. falls within the class of persons intended to be protected by OCGA § 43-11-21.1, the question is whether sexual assault is the type of harm the statute is intended to guard against. Although nothing in OCGA § 43-11-21.1 suggests that such harm is contemplated thereby, the Court of Appeals looked elsewhere in the same chapter of the Code in which OCGA § 43-11-21.1 is found, and identified purported authority for its finding that sexual assault is a harm that OCGA § 43-11-21.1 "was intended to guard against." Murphy, supra. In that regard, the Court of Appeals noted that OCGA § 43-11-2 (e)[7] states that "such unlicensed activities as are mentioned in this chapter are a menace and ...


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