Do Plaintiffs Need Expert Affidavits in Premises Liability Cases?
Georgia has an expert affidavit statute that requires an affidavit from an appropriately qualified expert be attached to a complaint in certain professional negligence cases. See O.C.G.A. § 9-11-9.1. The affidavit requirement is most commonly encountered in medical malpractice cases. But what about premises liability cases?
Defense attorneys in Georgia have been trying to argue that this statute requires that an affidavit be attached to the complaint in premises liability cases involving certain dangerous conditions. I first encountered this argument in 2020 when I filed a lawsuit against Piedmont Hospital for the death of a pedestrian who was hit outside the hospital. Our argument was that the area our client was standing in should have been protected by bollards to prevent vehicle intrusions.
In response to our Complaint, Piedmont filed a Motion to Dismiss, arguing that an architect had designed the area. Because architects are one of the professions listed in O.C.G.A. § 9-11-9.1, the defense argued an expert affidavit was required. Ultimately, the case resolved before the trial judge ruled on the Motion, but we adamantly disagreed with Piedmont’s position.
Since then, I have heard of defendants making this argument more frequently.
To make this argument, defense attorneys rely on the Court of Appeals decision in Bartenfeld v. Chick-fil-A, Inc., 346 Ga. App. 759 (2018). Bartenfeld was a summary judgment ruling involving an alleged defective condition in a parking lot. The Court of Appeals addressed what evidence was necessary to overcome the defendant’s motion for summary judgment. Summary judgment was granted because there was no evidence of negligence, including an absence of any expert testimony to establish that the parking lot was dangerously designed or had a dangerous condition.
The Court of Appeals did not address whether an affidavit was required at the pleading stage. Nevertheless, defendants use Bartenfeld to argue that, if an architect, engineer, or other professional was involved in the original design or construction of the condition, then an affidavit is required.
The Professional Malpractice Affidavit Statute Generally Does Not Apply to Premises Liability Cases
The starting point for any analysis of the affidavit requirement should begin with the statute itself.
The statute states that it only applies to an “action for damages alleging professional malpractice against” three categories of defendants. Those three categories are as follows:
(1) A professional licensed by the State of Georgia and listed in subsection (g) of this Code Section;
(2) A domestic or foreign partnership, corporation, professional corporation, business trust, general partnership, limited partnership, limited liability company, limited liability partnership, association, or any other legal entity alleged to be liable based upon the action or inaction of a professional licensed by the State of Georgia and listed in subsection (g) of this Code section; or
(3) Any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (g) of this Code section.
O.C.G.A. § 9-11-9.1(a)(1)-(3) (emphasis added). The statute’s plain terms only require an affidavit (1) in an action alleging professional malpractice, and (2) when suing the professional directly or when suing an entity based on the vicarious liability of a professional.
When you have a premises liability case, there are two arguments that the affidavit requirement does not apply. First, you are not suing a professional directly or an entity based on the vicarious liability of a professional. And second, you are not suing for professional malpractice.
History of the Affidavit Statute
To understand the statute and the cases interpreting it, it is important to review the legislative history and various amendments to the statute that have taken place since it was first enacted in 1987.
From the statute’s passage in 1987 until 1997, this statute did not list the specific professions to which it applied, nor did it limit the statute to any category of defendant. The statute simply read: “In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each claim.” Minnix v. DOT, 272 Ga. 566, 568 (2000).
As a result of this broad language, courts applied the statute to suits against a wide range of professionals, as well as to suits against hospitals, counties, the DOT, and other employers where the suit was based on the professional negligence of a “professional.” Id. at 569.
Significantly, even under this exceedingly broad version of the statute, there is not a single Georgia case that ever held that the statute imposed an affidavit requirement in premises liability cases against a property owner or occupier.
To the contrary, in a 1989 Georgia Supreme Court case, the Court implicitly recognized that an affidavit was not required to support claims against a defendant property owner who was sued under a premises liability theory for the faulty design and construction of a heating system. The Supreme Court held only that an affidavit was required when the defendant-owner sued the architect in a third-party complaint for contribution and indemnity. Hous. Auth. of Savannah v. Greene, 259 Ga. 435 (1989).
If the plaintiff had attached an affidavit, then it would have been attached to the property owner’s third-party complaint because a third-party complaint has to attach the original complaint to it as an exhibit. See O.C.G.A. § 9-11-14(c). Yet nowhere in Greene did the Court make any mention of the plaintiff’s failure to attach an affidavit to the complaint against the property owner. Greene implicitly recognizes that, even under the broad language of the statute as it existed from 1987 to 1997, an affidavit was not required when suing the property owner or occupier under a premises liability theory.
In 1997, the legislature overhauled O.C.G.A. § 9-11-9.1. After the 1997 amendment, the statute provided:
In any action for damages alleging professional malpractice against a professional licensed by the State of Georgia and listed in subsection (f) of this Code section or against any licensed health care facility alleged to be liable based upon the action or inaction of a healthcare professional licensed by the State of Georgia and listed in subsection (f) of this Code section, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each claim.
Minnix v. DOT, 272 Ga. 566, 570 (2000) (emphasis added).
Based on the clear text of this amendment, the affidavit requirement applied only to “two categories of defendants: (1) those professionals licensed by the State of Georgia and listed in O.C.G.A. § 9-11-9.1(f), and (2) ‘any licensed health care facility alleged to be liable based on the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (f).’” Minnix, 272 Ga. at 570-72; Mug a Bug Pest Control v. Vester, 270 Ga. 407, 926 (1999); 1997 Ga. Laws 916.
In construing that version of the statute, the Georgia Supreme Court held that “based upon the action or inaction of a healthcare professional” a portion of the statute referred to when a plaintiff sued an “employer…when that employer’s liability is predicated on the professional negligence of its agents or employees who are themselves among the licensed health care professionals listed in O.C.G.A.§ 9-11-9.1(f).” Id. at 570-72. Thus, in a suit against the Georgia Department of Transportation, the affidavit requirement did not apply, even when the plaintiff was alleging professional negligence, because the case was not against a licensed healthcare facility based on the professional negligence of a licensed health care professional. Id.
In 2007, the statute was amended again. This time, the legislature added a third category of defendants to whom the statute applies:
“A domestic or foreign partnership, corporation, professional corporation, business trust, general partnership, limited partnership, limited liability company, limited liability partnership, association, or any other legal entity alleged to be liable based upon the action or inaction of a professional licensed by the State of Georgia and listed in subsection (g) of this Code section.”
Ga. L. 2007, p. 216.
The “based upon the action or inaction of a professional” language in this amendment (and in the current version of the statute) is the same language the Court in Minnix interpreted to mean the vicarious liability of an employer for the negligence of its agents or employees. Minnix, 272 Ga. at 570-72; see also Health Mgmt. Assocs. v. Bazemore, 286 Ga. App. 285 (2007) (stating that the affidavit requirement applies when suing for the vicarious liability of a professional).
Premises Liability Cases Are Not Against a Professional And Are Not Based on the Vicarious Liability of a Professional
Premises liability cases involve lawsuits against the owner or occupier of the property. They do not involve claims against a professional, nor do they involve claims for the vicarious liability of a professional.
Property owners and occupiers are liable for the existence of a dangerous condition on their property and failing to take steps to protect others from the reasonably foreseeable hazards associated with the conditions. The law requires that owners and occupiers exercise ordinary care to keep and maintain the premises and approaches in a safe condition. See O.C.G.A. 51-3-1; Am. Multi-Cinema. Inc. v. Brown, 285 Ga. 442, 442 (2009).
Their obligation to maintain their property in a safe condition is a continuing one and requires that they protect invitees from reasonably foreseeable hazards. See, e.g., Brown, 285 Ga. at 442; Church’s Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 155 (1979).
The Georgia Court of Appeals case of DOT v. Delor is a good example of how a professional malpractice affidavit is not required when the complaint does not allege that the defendant is vicariously liable for the professional negligence of one of the professionals listed in the statute. See DOT v. Delor, 351 Ga. App. 414 (2019).
Delor was a road defect case the plaintiff filed against GDOT and several other defendants after the plaintiff’s decedent lost control and crashed while traversing a railroad crossing. The plaintiff sued GDOT based on the allegation it “created and permitted ‘a dangerous and hazardous condition’” that caused the accident and in failing to provide adequate warnings about the road hazard. Id. at 416. The evidence showed that GDOT’s own engineer was involved in inspecting the railroad crossing and authorizing it to be reopened. Id. at 415-16.
In moving to dismiss the complaint, GDOT argued that the plaintiff was required to attach an affidavit under O.C.G.A. § 9-11-9.1. In rejecting this argument, the Court of Appeals held that the trial court properly concluded an affidavit was not required. The Court of Appeals reasoned that, even though a licensed professional (an engineer) was involved in the inspection and reopening of the crossing, the “plaintiffs do not allege that GDOT is liable for the actions or inactions of one of the categories listed or described in O.C.G.A. § 9-11-9.1(g). Instead, they allege that GDOT negligently made the decision to reopen the crossing when it remained in a dangerous condition following repairs.” Id. at 420.
Delor’s reasoning is instructive. If a complaint alleging GDOT was negligent for allowing a dangerous condition to exist on a road does not require an affidavit even if a licensed professional (i.e. an engineer) was involved, then a complaint alleging that a property owner or occupier is liable for allowing a dangerous condition to exist on its property does not require an affidavit either (regardless of whether an architect or other professional was involved in the original creation of the condition).
Likewise, in SK Hand Tool Corp. v. Lowman, 223 Ga. App. 712, 713 (1996), the Court of Appeals held that an engineer’s involvement in the design of a product did not convert a product liability action into a professional negligence case. Id. at 713-14. SK Hand Tool was a product liability case decided under an earlier version of O.C.G.A. § 9-11-9.1 that was even broader than the current version. In rejecting the manufacturer’s argument, the Court of Appeals concluded that the defendants’ argument was “inconsistent with fundamental differences between claims alleging professional negligence and those alleging strict liability.” Id. at 713.
The Court of Appeals in SK Hand Tool reasoned that a professional negligence claim “depends upon the existence or absence of allegations that the defendant-professional has rendered negligent professional services.” Id. To show this, the plaintiff has to prove that the defendant failed to “‘exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed [by other professionals] under similar conditions and like surrounding circumstances.’” Id. at 713-14 (quoting Allen v. Lefkoff, 265 Ga. 374, 375 (1995)) (alternation in original).
The Court of Appeals distinguished that from the analysis involved in a product liability claim. Id. at 714. Unlike a professional negligence claim, a product liability claim is not proven by reference to a professional’s exercise of skill and care as measured against a community of other professionals, and it is not based on the negligent rendering of professional services. Instead, the question is whether the product was unreasonably dangerous at the time it was sold. Id.
Similarly, there are “fundamental differences between claims alleging professional negligence and those alleging” premises liability. Id. at 713. A premises liability claim does not involve an inquiry into whether any agents or employees complied with a professional standard of care when the premises were originally designed or constructed. Instead, the focus is whether, at the time of the injury, the premises had a hazardous condition of which the defendants had actual or constructive knowledge. See Wade v. Mitchell, 206 Ga. App. 265 (1992) (holding that there is a “legal distinction, regarding tort claims arising on-premises, between causes of action where the alleged negligence arises from static or passive conditions (such as, pre-existing defects unattended on the premises) and causes of action thereon averring active negligence by act or omission”); Brownlee v. Winn-Dixie Atlanta, 240 Ga. App. 368 (1999) (distinguishing premises liability claim from vicarious liability claim and holding that proprietor’s liability for pre-existing condition on the property involves analysis of whether it had actual or constructive knowledge of a dangerous condition, not whether it committed any active acts of negligence). “Simply stated, the duty concerning a condition of the premises is distinct from a breach of duty that constitutes active negligence.” Byrom v. Douglas Hosp., Inc., 338 Ga. App. 768 (2016).
Not only is the argument that an affidavit is required in premises liability cases contrary to the actual text of the statute, but it also makes zero sense from a practical standpoint. Requiring an expert affidavit in premises liability cases would create an impossible burden for plaintiffs in such cases. Prior to filing a premises liability lawsuit, a plaintiff almost never has information about whether a professional in general, or which type of professional in particular, may have been involved in creating a dangerous condition on a property.
The statute requires an affidavit to be attached at filing. No pre-suit discovery is permitted to determine what expert was involved and, when an affidavit is required, a complaint cannot be amended to add the affidavit if one was not included with the original complaint. See St. Joseph Hosp. v. Black, 225 Ga. App. 139 (1997) (holding that pre-suit discovery to obtain information necessary to obtain malpractice affidavit not authorized), overruled in part on other grounds by Threatt v. Forsyth County, 250 Ga. App. 838 (2001); Roberson v. Northrup, 302 Ga. App. 405 (2010) (failure to file an affidavit where required cannot be cured by amendment). The application of the statute to premises liability cases is clearly not the result the legislature intended. The purpose of the statute was to reduce frivolous malpractice claims, not to prevent plaintiffs from filing premises liability cases. See Cochran v. Bowers, 274 Ga. App. 449 (2005) (holding that § 9-11-9.1 “should be construed in a manner consistent with the liberality of the Civil Practice Act where such construction does not detract from the purpose of § 9-11-9.1 to reduce the number of frivolous malpractice suits being filed”).
Premises Liability Cases Do Not Involve Professional Malpractice Claims
Another reason why an affidavit is not required is that premises liability claims generally do not involve an allegation of professional negligence. Instead, they involve claims for ordinary negligence.
The distinction between professional negligence and ordinary negligence involves whether the “alleged negligence requires the exercise of professional skill and judgment to comply with a standard of conduct within the professional’s area of expertise.” Bazemore, 286 Ga. App. at 287.
In analyzing this distinction, courts find that a claim involves ordinary negligence when a non-professional can perform the act at issue. See, e.g., Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107 (1987) (holding that the case involved ordinary negligence because no evidence that “only an employee of the appellant with professional medical training would have been authorized to undertake the act of moving [the patient] into the wheelchair”); Byrom, 338 Ga. App. at 772 (holding that the case involved ordinary negligence because no evidence that “only a person with medical training could transport [plaintiff] in the wheelchair….”). When assessing whether a complaint alleges ordinary negligence or professional negligence, courts must “liberally construe the allegations of the complaint and only conclude that ordinary negligence has not been alleged if it is foreclosed by the complaint itself.” Chandler, 229 Ga. App. at 146.
In a premises liability case, an owner or occupier is not a professional. In fact, the law requires that owners and occupiers exercise ordinary care to keep and maintain their premises in a safe condition. The law does not say that only professionals licensed by the state of Georgia can, or are required to, maintain their property in a reasonably safe condition. This demonstrates that the claims involve ordinary negligence, not professional malpractice.
Nevertheless, the defendants will typically argue that the affidavit is required because a particular condition was designed or constructed by one of the “professionals” listed in the statute. But again, the involvement of the professional does not convert the premises liability claims into a professional malpractice action. Owners and occupiers have their own obligations, that are codified by statute. See O.C.G.A. § 51-3-1. The owners and occupiers are sued for their own ordinary negligence, not professional negligence.
Plaintiff’s Lawyers Should Vigorously Oppose Motions Arguing an Affidavit is Required in Premises Liability Cases
No appellate decision involving a premises liability case against a property owner or occupier has ever required that a plaintiff attach an expert affidavit to a complaint in the affidavit statute’s 33 years of existence. Defense lawyers are misconstruing a summary judgment ruling (Bartenfeld) to advance a frivolous argument in an attempt to create additional roadblocks for plaintiffs pursuing traditional premises liability cases.
Some lawyers may think, “Why not just attach an affidavit to be safe?” The problem is that then you are couching your claims as professional negligence claims and allowing the defendant to dictate how you plead and prove your claims. Additionally, in the vast majority of cases you probably will not know which “professional,” if any, was involved in creating a dangerous condition.
An expert affidavit is required “only if the allegations of the complaint disclose with certainty” that the plaintiff is pursuing a claim requiring a professional negligence affidavit. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 146 (2009). The best way to address these arguments is to clearly plead a premises liability case for ordinary negligence, clearly plead you are suing the defendant owner or occupier for their own negligence (not the negligence of a professional), and rebut any arguments from the defense by relying on the plain text of the statute and case law.
If you are a Georgia lawyer and encounter a defendant arguing that an affidavit is required in a premises liability case, contact The Champion Firm today to discuss your case. We frequently co-counsel cases with other lawyers and share fees in accordance with the Rules of Professional Conduct.