Georgia Court Of Appeals Applies New Totality of the Circumstances Test for Determining Foreseeability of a Criminal Act
D.L., the Plaintiff in this case, was a patient in St. Francis Health, LLC’s ICU in January and February of 2020. While in the ICU, the Plaintiff was sedated and placed on a ventilator, which incapacitated her and left her unable to care for herself. During that time, D.L. was raped and threatened by three men who wore nursing uniforms and badges. As a result, D.L. contracted an incurable sexual disease. After her discharge, D.L. sued St. Francis asserting, among several other things, a premises liability claim. Specifically, D.L. asserted that St. Francis negligently failed to keep its premises safe and prevent foreseeable risks of harm to D.L. while she was sedated.
During the deposition of St. Francis’s ICU nursing coordinator, the nursing coordinator agreed that the hospital had a duty to prevent patients from being sexually assaulted. Further discovery also uncovered five prior incidents that involved sexual misconduct where St. Francis patients were victims. These other incidents involved inappropriate touching during exams, nonconsensual sex while the patient was incoherent from medication, patients being raped by other patients in the emergency room, and employees witnessing patients and medical providers engaging in sexual acts.
St. Francis moved for summary judgment on all of D.L.’s claims. The trial court granted summary judgment in favor of St. Francis in ruling that St. Francis was not liable for intervening criminal acts of D.L.’s alleged rapists because the rapes were not foreseeable as a matter of law. The trial court ruled that the other incidents were not substantially similar to D.L.’s rape, and therefore, it granted summary judgment to the hospital. D.L. appealed this ruling.
Issue & Holding
The issue on appeal was whether the sexual assaults committed against the Plaintiff were unforeseeable as a matter of law.
The Georgia Court of Appeals held that foreseeability was a question for the jury in this case.
In CVS v. Carmichael, decided on June 29, 2023, the Georgia Supreme Court clarified the standard for proving foreseeability in a criminal attack case. Prior court decisions had applied a rigid requirement of showing prior criminal acts that were substantially similar. Carmichael rejected that rigid approach, and instead, concluded that a totality of the circumstances test applied. While prior criminal acts can establish foreseeability, Carmichael requires that courts consider other circumstances that may establish it. Furthermore, Carmichael states that courts should not be too rigid in analyzing whether a prior crime is substantially similar.
The Georgia Court of Appeals applied the new totality of the circumstances test in holding that there was a jury question on the foreseeability element of the Plaintiff’s claim. The Court of Appeals focused on the evidence of the five prior complaints of sexual assaults that occurred in the hospital, or one of the hospital’s buildings, in the years leading up to the Plaintiff’s alleged rape. All five involved sexual against against patients under St. Francis’s care, four involved in appropriate contact by a medical provider, two occurred inside a patient’s room. One, in particular, was “highly comparable” in that it involved a nurse penetrating a patient who was incoherent from medication.
There was also testimony from a former ICU nursing coordinator who agreed that ICU and ventilator patients are highly vulnerable and in need of protection.
Based on the prior incidents and the “known vulnerability of ICU patients,” the Court of Appeals concluded that a jury could find that the Plaintiff’s rape was foreseeable. The Court of Appeals noted that it was only resolving the issue of whether a jury could find foreseeability, and it was not expressing any opinion about whether St. Francis breached any duty to protect Plaintiff from her rapists.
This case is an example of the Court of Appeals applying the new totality of the circumstances test from Carmichael. This case shows that trial courts should not be too quick to reject prior criminal acts when they have some distinguishing features from the crime committed against the plaintiff and that courts should consider other factors as well. In this case, the Court of Appeals focused on the fact that there were prior employee v. patient sexual assaults and that the Plaintiff was in a vulnerable condition where she could be victimized. Given that prior sexual acts had been committed, and the Plaintiff was vulnerable and had no way to defend herself, a jury could find that the Defendant knew, or should have known, she was susceptible to being the victim of a sexual assault. And therefore, she was in need of protection.
Citation: D.L. v. St. Francis Health, LLC., No. A23A1051 (Ga. Ct. App. October 2, 2023)
About the Author
Isiah Chavis is a dedicated personal injury lawyer at The Champion Firm. Prior to law school, Isiah served as a Lieutenant Governor for Circle K International, a collegiate branch of the Kiwanis Club. Learn more about Isiah's work here.