NORMAN v. BUCCINA et al.
A24A1493
In the Court of Appeals of Georgia
March 11, 2025
DOYLE, Presiding Judge.
THIRD DIVISION, DOYLE, P. J., HODGES and WATKINS, JJ.
DOYLE, Presiding Judge.
Joseph and Kimberly Buccina (collectively, “the Plaintiffs“), individually and on behalf of their daughter, Alexis Buccina (“Buccina“) (deceased), filed this negligence and wrongful death action against Douglas Gregory Nuelle.1 Following the denial of Nuelle‘s motion for summary judgment, Nuelle appeals, contending that the trial court erred by finding that genuine issues of material fact existed as to the Plaintiffs’ claims. For the reasons that follow, we reverse.
When Nuelle arrived at Dunn‘s apartment around 2 p.m., Buccina was “passed out on the couch.” Nuelle deposed that he thought she was sleeping, although he could not tell whether she was asleep or unconscious. Buccina was in a partially reclined sitting position, and her chest was rising and falling, indicating to Nuelle that she was breathing. Dunn told Nuelle that she and Buccina had been up all night smoking marijuana and drinking alcohol. Nuelle deposed that he believed Buccina
Nuelle and Dunn had plans to leave town for several days, so Nuelle did not want to leave Buccina in the apartment. Nuelle attempted to wake Buccina by talking to her and shaking her shoulder. Buccina moaned and shrugged her shoulders but did not wake up. Nuelle deposed that, based on Dunn‘s statement that the group had been partying all night, he thought Buccina was under the influence of something preventing her from being roused. Nevertheless, Nuelle believed that Buccina would eventually wake up.
Nuelle checked Buccina‘s pupils and noted that they were small. He also checked Buccina‘s pulse, which he felt was normal. There was no indication that Buccina had vomited or was otherwise in distress. Nuelle deposed that while he thought Buccina had taken a drug, he did not know what or how much of it she may have taken.
Nuelle, Dunn, and Citizen then lifted Buccina, carried her to her apartment,
Citizen stayed with Buccina for a couple of hours but eventually left. That afternoon and evening, Buccina‘s parents repeatedly attempted to contact her but received no response. Buccina‘s father went to her apartment around 11:30 p.m. to check on her. When he got there, the door to her apartment was unlocked, and he found Buccina lying in bed on her side with her eyes rolled back and vomit on her pillow. He attempted CPR and told Buccina‘s mother over the phone to call 911. Emergency personnel arrived shortly thereafter and transported Buccina to the hospital. Buccina never regained consciousness and died two days later due to complications from an overdose of heroin, methamphetamine, MDMA, and alprazolam.
Subsequently, the Plaintiffs4 brought suit against Nuelle for negligence and wrongful death, alleging that Nuelle was negligent in moving Buccina to her apartment and not calling 911, causing a delay in medical care that led to her death. Discovery proceeded, and Nuelle moved for summary judgment. Specifically, Nuelle argued that he was entitled to summary judgment because he owed no duty of care to Buccina. The Plaintiffs asserted that Nuelle had voluntarily assumed a duty of care as to Buccina by moving her to her apartment and claimed that whether Nuelle‘s actions gave rise to a duty of care was a jury question.
Following a hearing, the trial court denied Nuelle‘s motion for summary judgment by way of a two-sentence written order prepared by counsel for the Plaintiffs, which stated the following: “The above styled case is before the Court on Defendant‘s Motion For Summary Judgment. After considering the entire record in the case and after oral argument at the November 8, 2023 hearing, the Court finds that genuine issues of material fact remain and denies Defendant‘s Motion For Summary Judgment.”
Nuelle requested a certificate of immediate review, which the trial court granted. We granted Nuelle‘s application for interlocutory appeal, and this appeal
Nuelle contends that the trial court erred by denying his motion for summary judgment because the undisputed facts showed that he owed no duty of care to Buccina. We agree.
In order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, . . . [including] the existence of a duty on the part of the defendant[.] . . . In order to proceed on a tort claim based upon failure to render aid, the plaintiff, as a threshold matter, must demonstrate that the defendant had a legal duty to render aid; even the actor‘s realization that some action on his or her part is necessary for another‘s aid or protection does not, in and of itself, impose upon the actor the duty to undertake such action. The existence of a legal duty is a question of law for the court.5
Generally, “a person is under no duty to rescue another from a situation of peril which the former has not caused.”6 Here, the undisputed record reflects, and the parties agree, that Nuelle did nothing to cause Buccina‘s perilous situation and that
Under this principle, one who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon. When one undertakes an act that he has no duty to perform and another person reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care.8
The undisputed record here reflects that Buccina became unconscious before the relevant time frame during which Nuelle interacted with her. Thus, Buccina could not have reasonably relied upon Nuelle‘s actions so as to trigger the application of the voluntary undertaking doctrine; however, detrimental reliance is not the only
In Herrington v. Gaulden, 294 Ga. 285 (2013),10 our Supreme Court explained that this aspect of the voluntary undertaking doctrine
applies only to the extent that the alleged negligence of the defendant exposes the injured person to a greater risk of harm than had existed previously. Accordingly, [this principle] applies when a nonhazardous condition is made hazardous through the negligence of a person who changed its condition or caused it to be changed. Liability does not attach for failing to decrease the risk of harm. Put another way, the mere failure to abate a hazardous condition - without making it worse - does not trigger the application of [the voluntary undertaking doctrine].11
Based on this, the Plaintiffs contend that Nuelle‘s actions subjected Buccina to an increased risk of harm to the extent that he left her in a worse position than when he had found her. The undisputed record here belies this contention. There is no evidence that Nuelle‘s observations of Buccina‘s eyes, breathing, and pulse or his
We similarly reject the Plaintiffs’ argument that Nuelle‘s failure to call 911 and his deposition testimony that, had he done so, there is “a possibility” that Buccina could have received medical attention earlier and been saved create any genuine issues of material fact sufficient to defeat summary judgment here. Such an argument “is cast in terms of the failure to act, i.e., an act of nonfeasance, and [Nuelle] was under no statutory or common law obligation to perform the act of calling 911[.] . . . [A]s a
Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. A defendant may demonstrate that he is entitled to summary judgment by either presenting evidence negating an essential element of the plaintiff‘s claims or establishing from the record an absence of evidence to support such claims.14
Because Nuelle established that there is an absence of the essential negligence element of duty here, the trial court erred by denying Nuelle‘s motion for summary judgment as to the Plaintiffs’ claims.
Judgment reversed. Hodges and Watkins, JJ., concur.