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Exculpatory Clause enforced in GA significant for alarm license holders / Party Invitation
November 8, 2022

Party Time
Kirschenbaum & Kirschenbaum’s 2022 Holiday Party is scheduled for December 8, 2022.  We look forward to seeing old and new clients and friends.  Party is in Old Westbury from 6PM to 10PM.  Casual attire; cocktail party.  Space is limited so RSVP is required if you’re coming.  Please email Amy Laveglia at or call 1 516 747 6700 x 313 no later than Dec 1.  Thanks and hope to see you.
Exculpatory Clause enforced in GA significant for alarm license holders 
          When you read legal decisions by courts you have to be flexible, or maybe inventive, enough to consider how one factual scenario might impact another scenario.  With that in mind, how does the enforcement of an exculpatory clause in a massage business contract have any connection to an exculpatory clause in an alarm contract?
          The facts of the case are straight forward:
          The Plaintiff,  “… Gary Curmode, a deputy fire chief and self-proclaimed exercise enthusiast, visited a wellness spa owned, managed, and operated by appellees Village Health Georgia, PC and Village Health Marietta, LLC (collectively, "Village Health"). There, he received a deep-tissue massage by appellee Hilary A. Alsbrooks, a licensed massage therapist employed or contracted by Village Health. Curmode alleges that Alsbrooks committed negligent acts and/or omissions during the massage that caused him physical injury and resulted in him incurring substantial medical bills.
          Curmode filed a personal injury action alleging claims of negligence and willful misconduct against Alsbrooks and seeking to hold Village Health vicariously liable for her actions.” 
            Before getting his massage the Plaintiff signed an agreement that provided, inter alia, as follows:
          “I understand that there are risks associated with massage therapy services, and I agree that as a condition of receiving these services on an ongoing basis, I will assume all risks and relieve Village Health Wellness Spa, including employees, agents, representatives, shareholders, and officers from all liability arising wholly or partly from negligence, and release and discharge them from any and all claims, demands or actions involving such injuries or complications that may arise from these services or from use of the facilities.”
          The massage contract also contained this “disclaimer” in the contract:
          “Massage Therapy is for the purpose of stress reduction and relief from muscular tension or spasm. Massage Therapists do not diagnose illness, disease or any other physical or mental disorder. Massage Therapy is not a substitute for medical care, medical examination, or diagnosis.”
          A motion was made by the massage company to dismiss based on the exculpatory clause, which the lower court granted; the Plaintiff appealed to the Georgia intermediate appellate court.  It’s the appellate court decision that should be interesting to you.  Why?
          The Plaintiff argued that Georgia prohibited licensed professionals from avoiding liability for their negligence, relying on Georgia case law that prohibited a Georgia dentist from enforcing an exculpatory clause in his intake agreement to insulate against malpractice claims.  In the dentist’s case the court,
“In rejecting the contractual provision, the Porubiansky Court recognized that through the adoption of OCGA § 51-1-27, the Georgia General Assembly established  a minimum standard of care and a private cause of action in medical malpractice actions:  A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.”
          “The Court reasoned that this affirmative statutory duty of care "is a duty apart from any express contractual obligation," and concluded that, "the attempt to relieve the clinic, its employees and students from the statutory duty of care for licensed professional medical services conflicts with and frustrates the policies of the [S]tate as expressed through our General Assembly." (Citation and punctuation omitted.)” 
          The massage Plaintiff argued “that the exculpatory clause in this case is rendered unenforceable by the holding of Porubiansky. In so doing, he extends its reasoning to preclude exculpatory clauses in the contracts of all "licensed healthcare providers, …"
          How far a leap is it to argue that a license from the state of Georgia is required to engage in the alarm business; that alarm company license holders are professionals regulated by the state, and that public policy should be extended to prohibit an licensed alarm professional from enforcing an exculpatory clause to avoid consequences of negligence?  The Georgia court rejected the argument when applied to the massage company, relying on the special relationship between physician [including a dentist] and patient who is relegated to a malpractice action against the physician.  The court reasoned:
          “OCGA § 51-1-27 governs medical malpractice actions. Porubiansky, 248 Ga. at 394 ("The status of doctor and patient controls the duty to exercise reasonable care."). See generally Bruscato v. O'Brien, 307 Ga.App. 452, 455 (1) (705 S.E.2d 275) (2010). Medical malpractice actions have three essential elements: "(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained." (Citation and punctuation omitted.) Zwiren v. Thompson, 276 Ga. 498, 499 (578 S.E.2d 862) (2003). Because the statutory duty of care set forth in OCGA § 51-1-27 arises from the physician-patient relationship,  there can be no liability for malpractice in the absence of that relationship. See Rindsberg v. Neacsu, 317 Ga.App. 269, 272 (730 S.E.2d 525) (2012) ("Georgia law is clear that physician-patient privity is an absolute requirement for the maintenance of a professional malpractice action."); Bruscato, 307 Ga.App. at 457 (1) ("[M]edical malpractice cases . . . require a physician-patient relationship between the defendant and the plaintiff.") (emphasis in original). "Doctor-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct." (Citation and punctuation omitted.) Anderson v. Houser, 240 Ga.App. 613, 615 (1) (523 S.E.2d 342) (1999). "The relationship is considered consensual where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient." (Citation and punctuation omitted.) Id
          Here, not only was Alsbrooks not a physician, but the contract executed by Curmode prior to his massage dispensed with any such notion …” 
          How was the “notion” dispensed with?  Because the massage contract contained the provision I quoted above:  ““Massage Therapy is for the purpose of stress reduction and relief from muscular tension or spasm. Massage Therapists do not diagnose illness, disease or any other physical or mental disorder. Massage Therapy is not a substitute for medical care, medical examination, or diagnosis.”  Case is CURMODE v. ALSBROOKS,
Court of Appeals of Georgia, Second Division.
          Your alarm contract [and by now you know I mean any alarm, burg, fire, environmental, any security, cameras, access control, medical alert, personal emergency response, panic, et al] must contain many provisions which individually and collective dispel any “notion” that you are an insurer, that you guarantee no loss, that you will be responsible for damages if the alarm doesn’t work or doesn’t accomplish whatever the subscriber thought it would, or any damage at all other than fixing the alarm equipment if under warranty or Service Plan, and even then only pursuant to the terms of the alarm contract.  Once that is clear to the subscriber it’s not a hard sell to include the exculpatory clause and other “protective” provisions. 
          Proper alarm contracts are essential for your protection and they are also essential not only for peace of mind while operating but when you’re ready to sell, because buyers aren’t keen on stepping into your “mess waiting to happen”.  If you’re still not using the Standard Form Agreements, or you haven’t updated them within 2 years, now is the time to order new contracts.  You get them at
          Waiting to update your contracts is like playing roulette, in reverse.  Sooner or later your number will come up and you’ll lose the bet, putting your company in jeopardy and maybe bankruptcy.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301