Torts - Deron R. Hicks

• Publication year: 1997

Tortsby Deron R. Hicks^*

I. Intentional Torts

A. Battery

In Roberts v. Jones,¹ the Georgia Court of Appeals addressed whether a physician commits battery by performing surgery on a patient to alleviate pain despite the existence of a durable power of attorney forbidding the surgery. In Jones prior to entering the hospital, plaintiffs father executed a durable power of attorney that provided: "I do not want to be operated on or any other treatment that will cause pain and suffering."² The durable power of attorney also named plaintiff and plaintiffs sister as the father's agents under a health care agency power. During the course of plaintiffs father's hospitalization, defendant physician performed emergency surgery on plaintiffs father after the father had not urinated for fourteen hours. The father subsequently died due to reasons unrelated to the emergency surgery. Although it was undisputed that the durable power of attorney was contained in the father's medical records, it was also undisputed that the physician had not been notified of the existence of the durable power of attorney.³ Plaintiff subsequently brought suit against the physician for battery. The trial court granted defendant's motion for summary judgment,⁴ and the court of appeals affirmed.⁵

The court of appeals affirmed the trial court's grant of summary judgment on two grounds. First, citing Official Code of Georgia Annotated ("O.C.G.A.") section 31-36-7U),⁶ the court held that it was the responsibility of the agent (the son or the daughter) to notify the physician of the existence of the health care agency.⁷ Because it was undisputed that the physician did not have actual notice of the durable power of attorney, the physician could not be held liable for battery or for violating the terms of that document.⁸

Second, O.C.G.A. section 31-36-7(2)⁹ provides that a medical care provider must comply with the decision of an agent in accordance with the terms of the health care agency "subject to the provider's right to administer treatment for the patient's comfort or alleviation of pain."¹⁰ Because plaintiffs father had not urinated for fourteen hours, the court had little doubt that the father was in substantial pain.¹¹ Accordingly, even assuming that the physician knew or should have known of the existence of the durable power of attorney, he was authorized pursuant to O.C.G.A. section 31-36-7(2) to perform the emergency surgery.¹²

B. False Imprisonment

O.C.G.A. section 51-7-60 provides a limited statutory privilege to shopkeepers regarding the detention of suspected shoplifters.¹³ The decision in Brown v. Super Discount Markets, Inc.,¹⁴ however, underscores the difficulty in utilizing the statutory privilege as a shield against a civil jury trial. As the court of appeals noted in Brown, a defendant shopkeeper cannot "prevail on motion for summary judgment unless the reasonableness of the initial decision to detain . . . and [the] reasonableness of the manner and length of [the] subsequent detention . . . [are] established as a matter of law."¹⁵

In Brown a security employee intercepted plaintiffs while they were attempting to check out at defendant supermarket. The security employee had observed plaintiffs concealing various items in their purses. The security employee escorted plaintiffs to the store office, where, according to defendants, they were briefly interrogated and released. However, according to plaintiffs, the security employee threatened them, used excessive force, and detained plaintiffs for approximately an hour to an hour and a half.¹⁶

The court of appeals first held that the security employee had reasonable cause to believe that shoplifting was in progress because he had observed plaintiffs concealing various items in their purses.¹⁷ Therefore, the employee was authorized to intercept plaintiffs and to investigate the situation further.¹⁸

The court, however, noted that "the circumstances surrounding the detention are more problematic."¹⁹ The court said, "[W]hether the manner and length of detention were reasonable may be determined as a matter of law only in rare cases where the evidence is uncontrovert-ed."²⁰ The court held that based upon the conflict in the evidence, a jury would have to determine whether the manner and length of plaintiffs' detention were reasonable.²¹

In Ridgeview Institute, Inc. v. Handley,²² the court of appeals addressed whether a claim of false imprisonment can be based upon a hospital's failure to provide the statutory notice required by O.C.G.A. section 37-3-44.²³ In Handley plaintiff was involuntarily committed to defendant psychiatric facility after his daughter convinced a psychiatrist that plaintiff was a danger both to himself and his wife. The psychiatrist completed a form 1013 authorizing a police officer to detain plaintiff and bring him to the facility. During the admission process, plaintiff claimed that the admitting nurse failed to notify plaintiff of his right to retain legal counsel and of his right to seek a protective order or habeas corpus relief under O.C.G.A. section 37-3-44. The following day, a psychiatrist evaluated plaintiff and authorized his release after it was determined that he did not need continued hospitalization. Plaintiff subsequently brought suit against the psychiatrist and Ridgeview Institute for false imprisonment. The trial court denied Ridgeview Institute's motion for summary judgment.²⁴ The court of appeals reversed.²⁵

The court of appeals first noted, "False imprisonment is an intentional tort and not a tort of negligence. Therefore, an essential element of a claim for false imprisonment is an unlawful arrest or detention."²⁶ Citing Williams v. Smith,²⁷ a 1986 court of appeals decision, the court held that "'[w]hen the detention is predicated upon procedurally valid process, false imprisonment is not an available remedy, regardless of the motives upon which the process was secured . . . .'"²⁸ Accordingly, because the form 1013 certificate was "facially valid," plaintiff's hospitalization did not constitute an unlawful detention.²⁹

Plaintiff, however, argued that although the initial detention may have been lawful, the detention subsequently became unlawful when Ridgeview Institute failed to provide plaintiff with the notice required by O.C.G.A. section 37-3-44.³⁰ The court of appeals, however, rejected plaintiff's argument.³¹ The court stated:

If we were to extend the definition of "process" in the manner advanced by Handley and the trial court, then every negligent act or violation of law accompanied by a detention—for example, the failure to read Miranda warnings after a valid arrest—could give rise to a claim for false imprisonment. This would, in effect, eliminate the element of intent from the tort of false imprisonment and create a cause of action for negligent false imprisonment, which is a tort our law does not recognize.³²

C. Intentional Infliction of Emotional Distress

In Sevcech v. Ingles Markets, Inc.,³³ Duane and Kathy Sevcech sued Ingles Markets, Inc. and three employees for "damages allegedly resulting from Ingles wrongfully accusing Mr. Sevcech of shoplifting."³⁴ While shopping at defendant grocery store, Mr. Sevcech was accused of shoplifting by three employees of the grocery store.³⁵ According to Mr. Sevcech, he was taken to a store office "where he was accused of shoplifting, assaulted and battered by an Ingles' [sic] employee."³⁶ Although no store merchandise was found on Mr. Sevcech, he was arrested and placed in the back of a police car.³⁷ Mr. and Mrs. Sevcech subsequently brought suit against Ingles Market and its three employees for intentional infliction of emotional distress. The trial court, however, granted defendants' motion for summary judgment on plaintiffs' claims of intentional infliction of emotional distress.³⁸ The court of appeals reversed the trial court's grant of summary judgment on Mr. Sevcech's claim of intentional infliction of emotional distress.³⁹

The court of appeals addressed the claims of intentional infliction of emotional distress of Mr. Sevcech and Mrs. Sevcech separately. With respect to Mr. Sevcech's claim, the court of appeals noted that the trial court granted defendants' motion for summary judgment on the basis that there was no evidence that Mr. Sevcech's emotional distress was "severe."⁴⁰

In reversing, the court noted the following:

Four elements must be present to support a claim of intentional infliction of emotional distress: (1) The conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe .... [T]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress .... It is for the court to determine whether on the evidence severe emotional distress can be found.⁴¹

In evaluating the reasonableness of the distress, the court first determined whether defendants' conduct was outrageous or egregious.⁴² Based upon Mr. Sevcech's description of the incident, the court of appeals concluded that there was sufficient evidence for a jury to find that defendants' conduct was outrageous.⁴³ Furthermore, the court concluded that a jury would be authorized to find that Mr. Sevcech's reaction to the incident was not exaggerated.⁴⁴ On this basis, the court of appeals concluded that a jury issue existed with respect to Mr. Sevcech's claim of intentional infliction of emotional distress.⁴⁵

The court of appeals, however, refused to reverse the trial court's grant of summary judgment to defendants on Mrs. Sevcech's claim of intentional infliction of emotional distress.⁴⁶ The court noted that "[i]mplicit...