Huizhu Yan v. Herlis Associates, LLC , 335 Ga. App. 479 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
ANDREWS, P. J., and RAY, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 13, 2016
In the Court of Appeals of Georgia
A16A0173. YAN v. HERLIS ASSOCIATES, LLC et al.
ANDREWS, Presiding Judge.
Huizhu Yan commenced this action against Jane T. St. Clair, M.D., P.C., d/b/a
Wellbeings Occupational Healthcare, along with the owner and management
company of the premises where Dr. St. Clair’s medical office was located, seeking
recovery for injuries she sustained as she helped her nephew leave the premises after
his appointment with Dr. St. Clair. This appeal follows the trial court’s final judgment
dismissing Count 2 of the complaint.
In her complaint, Yan alleged that on April 12, 2013, she accompanied her
nephew to Dr. St. Clair’s office for treatment of an injury that impaired his ability to
walk. As they left Dr. St. Clair’s office, the nephew lost his balance and fell into Yan,
causing her to fall on the concrete stairway. Count 2 of Yan’s complaint faulted Dr.
St. Clair for not assisting Yan’s nephew off the premises.
Dr. St. Clair moved to dismiss Yan’s complaint on the grounds the complaint
alleged medical malpractice but failed to attach an expert’s affidavit as required by
OCGA § 9-11-9.1. In response, Yan asserted her complaint alleged an ordinary
negligence claim, not medical malpractice, thus obviating the need for an expert
affidavit. The trial court dismissed Count 2 of the complaint for failure to state a
claim for which relief could be granted, quoting “the long-established general rule .
. . that a person is under no duty to rescue another from a situation of peril which the
former has not caused, even when the peril is foreseeable.” (Punctuation and footnote
omitted.) Boller v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 696 (1) (716
SE2d 713) (2011).
In determining, as a matter of law, whether the complaint alleged
claims based on ordinary negligence, professional negligence, or both,
we construe the complaint under the test applied to motions to dismiss
for failure to state a claim in OCGA § 9-11-12 (b) (6). We look solely
to the allegations of the complaint and liberally construe the allegations
to state a claim if, within the framework of the complaint, the plaintiff
may introduce evidence which will sustain a grant of relief based on the
claim.
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(Citations omitted.) Health Mgmt. Assoc. v. Bazemore, 286 Ga. App. 285, 287 (648
SE2d 749) (2007).
In the instant case, to the extent Yan’s Count 2 in her complaint may be
construed to state a claim for professional negligence in failing to provide her nephew
with assistance in walking, the trial court’s dismissal of that count must be upheld
because of Yan’s failure to submit an expert affidavit as required by OCGA § 9-11-
9.1. And to the extent Count 2 may be construed as merely stating a claim for
ordinary negligence, we find the trial court properly applied the “no duty to rescue”
rule expounded in Boller, supra.
Judgment affirmed. Doyle, C. J., and Ray, J., concur.
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