59543 Final Copy

59543 Ryan v. Care Less, Inc. Privileged and Confidential

Privileged and Confidential Attorney Work Product Memorandum TO: Professor Pinder FROM: 59543/Associate Attorney DATE: March 3, 2014 RE: Cash and Sewell Ryan v. Care Less, Inc. Question Presented

An invitee of our client, Care Less, Inc. slipped and fell on a puddle while in the

lunchroom at our clients Montezuma, Georgia facility. Mrs. Ryan had permission from the

lunchroom supervisor to get coffee, however, the maintenance supervisor had repeatedly

warned her to only go into the lunchroom during the time that residents were present.

Despite the warnings, Mrs. Ryan continued to enter the lunchroom, allegedly ignoring the

wet floor signs and employee warnings. In addition to the claim for damages related to the

slip and fall, Mrs. Ryan’s husband has joined the lawsuit with a derivative claim for loss of

consortium. However, Mr. Ryan offered no testimony about the loss of value that his wife

provided to their household and was advised by his attorney, despite our objections to not

answer question about his sexual relationship with his wife.

1) On October 31, 2013 was Mrs. Ryan an invitee or a licensee while on the

premises of Care Less, Inc. and what is the duty of care that is owed to an invitee or

licensee?

2) What is the potential liability (if any) for Care Less Inc. as a result of the slip and

fall that took place in the lunchroom owned and operated by our client?

3) Can Mr. Ryan successfully convince a judge and jury that he has suffered a loss

as derivative to the claim by Mrs. Ryan, despite the lack of testimony about the couple’s sex

life?

Brief Answer

Privileged and Confidential Attorney Work Product 1


1) Mrs. Ryan was an invitee on the premises of Care Less, Inc. In order to be

considered an invitee, there must be a mutual benefit between the parties. Our client is

providing a service by caring for Mrs. Ryan’s mother and Mrs. Ryan is paying our client

monthly for the service. As an invitee Mrs. Ryan is responsible for exercising ordinary care

for her own personal health and safety.

2) The test for liability of slip and fall in Georgia is (1) that the defendant had actual

or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the

hazard despite the exercise of ordinary care due to actions or conditions within the control

of the owner/occupier. It is not likely that our client had actual knowledge of the hazard.

Constructive knowledge that a hazard may exist may have been present, however, as an

invitee Mrs. Ryan also had an obligation to be aware of her surroundings. Because Mrs.

Ryan admitted that she was focused on the coffee urn rather than the surrounding areas,

the court will most likely find that Mrs. Ryan cannot hold Care Less, Inc. liable for her

injuries.

3) Claims for loss of consortium are derivative therefore Mr. Ryan will only be able to

prevail on his claim if Mrs. Ryan prevails on her claim. During deposition Mr. Ryan was

advised by his attorneys to not testify about the previous and current sex life of the couple.

Facts



Our client Care Less, Inc. has retained us to represent them in a negligence liability

case where an invitee to their property was injured after slipping and falling in an area she

should not have been in. The plaintiff, Mrs. Ryan, was visiting a family member residing at

our client’s Montezuma, Georgia facility. While entering the lunchroom area during in

inappropriate time, the plaintiff slipped and fell. She was subsequently admitted to the

hospital and is seeking recovery for the cost of hospitalization, pain and suffering, and her

husband; Mr. Ryan has brought a loss of consortium claim against our client.

At some point in 2011, Care Less, Inc. changed its policy of allowing visitors to eat

meals with their residents. The breakfast supervisor continued to allow Mrs. Ryan to obtain

coffee from the lunchroom, which Mrs. Ryan admitted that she did every day. Mrs. Ryan

states that other family members also obtained coffee, but she does not know if they had

permission to do so or not. On October 31, 2013 between 9:00 AM and 9:30 AM, Mrs. Ryan

entered the lunchroom and was unsure if the maintenance supervisor, Mr. Lonnie, a

nineteen-year veteran employee of our client, had already mopped the floors.

Since having retired ten years ago, Mrs. Ryan has admitted to seeing at least

nineteen doctors. Mrs. Ryan suffers of a bad back, diabetes, hypertension, and obesity. On

the day of the accident, Mrs. Ryan was visiting her mother at our client’s facility, which had

allegedly been her customary practice every day. According to Mrs. Ryan she usually

visited in shifts from 9:00 AM-11:00 AM and 2:00 PM-7:00 PM, but allegedly is now only

able to go in the mornings. According to Mrs. Ryan, the care that her mother received was

“really good” and that is why Mr. and Mrs. Ryan continued paying Care Less, Inc. every

month.



Mrs. Ryan says that on the day of the accident, when she entered the lunchroom she

was only looking at the coffee urn. Mrs. Ryan fell at some point approximately a little more

than half way to the coffee urn. Mrs. Ryan claims she does not recall having seen wet floor

signs in the area. Mr. Lonnie, the maintenance supervisor disputes the testimony of Mrs.

Ryan and claims that the puddle in the floor near the coffee urn was only five inches in

diameter, whereas Mrs. Ryan claims the puddle was eleven inches in diameter. Mr. Lonnie

also alleges that he had warned Mrs. Ryan on multiple occasions to only go into the

lunchroom while the residents were eating, and despite his warnings, Mrs. Ryan continued

to ignore them and went into the lunchroom anyways. Mr. Lonnie further contends that due

to the nature of the elderly care facility, wet floor signs were always placed throughout.

After Mrs. Ryan fell, Care Less, Inc. determined that she needed to go to the

emergency room where it was discovered that the bones in her ankle were crushed

resulting in her remaining in the hospital for three weeks. Mrs. Ryan acknowledged that she

is getting older and that some of her problems could be attributable to her age and her other

known physical problems. Additionally, Mrs. Ryan claims to not be on any medications, but

later admitted to taking Darvocet, Aspirin, and Ativan.

After filing suit against Care Less, Inc. Mrs. Ryan’s husband joined the suit with a

claim for loss of consortium. Mr. Ryan claims that his wife’s condition has not improved

since having surgery and that prior to the accident they were a vivacious couple, retired and

enjoying themselves, but since the accident she is having to hire out cleaning duties and

does nothing more than go from bed to the couch and then to the doctor’s office.



There is no current testimony regarding the value that Mrs. Ryan provided to the

marital relationship. Mr. Ryan, during the deposition at the advice of his attorney, and

against our objections, did not answer any questions about the couple’s sex life before or

after the accident.

Discussion

The validity of Mrs. Ryan’s claims will depend on (1) if Mrs. Ryan was an invitee or

licensee while she was on the property owned by our client, (2) what obligation if any and

the duty that both our client and Mrs. Ryan each had respective to their status, and

(3) lastly with respect to the claims made by Mr. Ryan, if he can successfully prevail on his

derivative claim for loss of consortium.

Status of Plaintiff

Mrs. Ryan was an invitee when the accident took place and therefore Mrs. Ryan had

a duty to exercise ordinary care for her own personal safety. The law in Georgia says that,

“where an owner or occupier of land, is by express or implied invitation, induces or leads

others to come upon his premises for any lawful purpose, he is liable in damages to such

person for injuries caused by his failure to exercise ordinary care in keeping the premises

and approaches safe.” Ga. Code Ann. §51-3-1 (West 2013).

There are generally three primary statuses that an individual can have when they are

on another person’s property; this includes (1) trespasser, (2) invitee, and (3) licensee. For

the purposes of this case Mrs. Ryan was not a trespasser as she had a reason to be on our

client’s property.

Invitee



The court is most likely to consider that Mrs. Ryan was an invitee while on our

client’s property. In order to be considered an invitee there must be a mutual benefit,

customer, or contractual relationship between the two sides. Georgia Department of

Corrections v. Couch, 312 Ga.App. 544, (2011). “The generally accepted test to determine

whether one is an invitee or a licensee, for the purpose of determining the duty owed by a

property owner, is whether the6 party coming onto the premises had present relations with

the owner or occupier which would render his presence of mutual benefit to both, or was for

business with one other than the owner or occupier.” Id. at 546.

Ga. Dep’t of Corr, involved a plaintiff who a prisoner of the State of Georgia that was

injured after being sent to the wardens house to perform work for the warden. The court

found that the prisoner was not receiving a mutual benefit, and therefore his status at the

time of the accident, was that of a licensee. Id. at 545.

Mrs. Ryan’s mother is a resident of our client and Mrs. Ryan is paying the bill. A

court will likely look to the official definition of consumer or customer and find that Mrs. Ryan

was at the very least by definition a customer, due to the nature of the mutual benefits that

are being exchanged between the two sides.

In determining if an individual is an invitee, courts generally look at the reason for

being on the defendant’s property. If the individual has a customer/consumer relationship,

contractual relation, or if there is a mutual benefit then the individual is generally considered

to be an invitee. Ga. Dep’t of Corr at 546.



Just because of an unfortunate accident takes place does not imply any liability on

the part of the defendant. Head v. Sears Roebuck & Company, 233 Ga.App. 344 (1998). In

Head the plaintiff was shopping for a dress when a rack suddenly moved causing the

plaintiff to fall. Id. at 344. The court found that the plaintiff was an invitee because she was

in the process of shopping for a dress and therefore she should have taken more

responsibility for being aware of her surroundings at the time of the accident. Id. at 345.

Much like Head, the plaintiff was a customer of the defendant rendering her an invitee. Id. at

345.

Mrs. Ryan admitted in deposition that she was happy with the service our client was

providing and therefore she continued to pay our client every month, it is arguable that there

is a mutual benefit between our client and Mrs. Ryan, and therefore it is arguable that the

court will find that Mrs. Ryan was an invitee.

Licensee

The least likely option that a court would consider is that Mrs. Ryan was a licensee.

In order for Mrs. Ryan to be considered a licensee there cannot be any mutual benefit,

customer, or contractual relationship between the two parties.

A licensee is a person who is (1) neither a customer, a servant, nor a trespasser; (2)

Does not stand in any contractual relation with the owner of the premises; and (3) Is

permitted, expressly or impliedly, to go on the premises merely for his own interests,

convenience, or gratification. Ga. Code Ann. §51-3-2 (West 2013). Additionally, “the owner

of the premises is liable to a licensee only for willful or wanton injury.” Ga. Code Ann. §51-3-

2 (b) (West 2013).



In Jones v. Murphy, 306 Ga.App. 539 (2010), the plaintiff was injured when he

walked through a sliding glass door at the defendant’s new home. Id. The court determined

that Jones was a licensee during his visit to Murphy’s new home and therefore under

O.C.G.A. §51-3-2(b) “the owner of the premises is liable to a licensee only for willful or

wanton injury.” Id. at 540.

The Jones court stated that “This statutory liability for willful or wanton injury to

licensees means that the landowner ... owes a duty to a licensee only to avoid knowingly

letting him run upon a hidden peril or willfully causing him harm.” Id. at 540. Mrs. Ryan does

not meet the minimum standards to be a licensee due to the customer and contractual

relationship between the two parties, and even if she was not in a mutually benefitting

relationship, our client did not intentionally injure Mrs. Ryan. “A licensee on the other hand,

is a person who is neither a customer, a servant, nor a trespasser, who does not stand in

any contractual relation with the landowner.” Martin v Dempsey Funeral Services of

Georgia, Inc. 319 Ga.App. 343 (2012). Mrs. Ryan arguably was a customer on the basis

that she paid for the services rendered by our client for the care of her mother.

Because of the ongoing relationship and the nature of Mrs. Ryan’s visit at our clients

property on the day of the accident a court is more likely than not to find that Mrs. Ryan was

an invitee, and thus O.C.G.A. §51-3-2 (West 2013) is irrelevant to Mrs. Ryan.

Because of the mutual benefit between the plaintiff and our client, it is reasonable to

believe that a court would find that Mrs. Ryan is a customer of Care Less, Inc. and therefore

her status while at the time of the accident is that of an invitee and not of a licensee.

Injury Sustained Due to Slip and Fall



It is highly unlikely that Mrs. Ryan will be able to prove that our client is liable for the

injury she sustained from slipping and falling. The basic test for liability in slip and fall

accidents in Georgia requires an invitee to prove “(1) that the defendant had actual or

constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the

hazard despite the exercise of ordinary care due to actions or conditions within the control

of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735 (1997).

Actual Knowledge

It will be very difficult for Mrs. Ryan to prove that our client had actual knowledge of

the hazard. In order to prove that our client had actual knowledge of the dangerous

condition, the plaintiff would have to prove that employees had inspected the area, knew the

dangerous condition existed, and failed to take the measures necessary to protect their

invitees. Recently, an invitee at a Wal-Mart store was injured by an alleged water spill on

the floor at the store. Massey v. Wal-Mart Stores East, LP, No. 5:12-CV-204 (MTT), 2014

WL 4175776, at *2-3 (M.D. Ga. Feb. 3, 2014). After the plaintiff fell, there were various

reports of employees of the defendant knowing that the water was on the floor. Id. During

court testimony, the plaintiff introduced evidence that employees of the defendant had

admitted that they were aware of the hazard, and thus the defendant had actual knowledge.

Id.

Unlike Massey, the area of the Wal-Mart store where the plaintiff was injured was

open to the public, and there were employees in the vicinity that knew the hazard was

present but failed to take action. Id. Mrs. Ryan however, was in an area not open to the

public and had been warned not to enter the room during this time.



Therefore the court is likely to find that Mrs. Ryan would have to be able to prove

that with at least a scintilla of proof that our client knew that the puddle of liquid existed in

order to establish actual knowledge of the dangerous condition.

Constructive Knowledge

The other type of knowledge that Mrs. Ryan could prevail on would be constructive

knowledge. In order to establish constructive notice, the plaintiff must (1) prove that

employees were in the immediate vicinity and (2) that through a routine inspection

procedure employees would have discovered the hazard on the floor. Blocker v. Wal-Mart

Stores, Inc., 287 Ga.App. 588 (2007). In Blocker the plaintiff slipped on a grape on the floor

of the defendant’s department store. Id. at 588. The court issued summary judgment in

favour of Wal-Mart, however the Georgia Court of Appeals reversed the decision saying that

Wal-Mart had failed to prove their routine inspection procedures were in place and being

followed, and therefore they still could not prove how long the grape had or had not been on

the floor. Id. at 588.

Constructive notice however, does not necessarily mean that just because our client

may know that a dangerous condition may exist that they are left completely open to

liability. The court in Houston v. Wal-Mart Stores East, L.P., 324 Ga.App. 105 (2013) found

that the plaintiff who slipped on a flattened cardboard box in the defendant’s department

store had as much notice as Wal-Mart, and therefore the plaintiff would not be able to prove

liability on the part of Wal-Mart, rendering a verdict for Wal-Mart. Id. at 105. Mrs. Ryan was

aware the area could potentially be hazardous, even admitting in deposition that she knew

better than to go into the lunchroom if she saw Mr. Lonnie mopping.



In Lee v. Food Lion, 243 Ga.App. 819 (2000) the plaintiff slipped and fell on a

carpeted mat inside the doors of the store, and brought suit to recover for damages. Id. at

819-20. The court reasoned that because the plaintiff in Food Lion could not state

specifically what happened or that Food Lion had caused her injury, she had not met the

burden of proof of establishing that Food Lion was aware of any potential issue or hazard.

Id. at 820. Subsequently, the court found in favour of the defendant after Food Lion was

able to prove that employees conducted regular inspections of the area where the accident

took place, with the most recent inspection having taken place by a member of

management within ten to fifteen minutes before the plaintiff’s accident. Id. at 820.

In Lee, the defendant, Food Lion was able to successfully obtain a verdict in their

favour by a showing of the routines that Food Lion had in place for the inspection of the

area in order to maintain safety for their employees and customers. Id. at 822. The

deposition of an established and long-term employee of Care Less, Inc. may be sufficient to

prove that our client did in fact have the appropriate safety measures and protocols in place,

just as Food Lion proved in Lee.



At the time that Mrs. Ryan fell, the lunchroom was in a period of transition between

breakfast and lunch. Even though Mrs. Ryan had permission to get coffee from the

lunchroom, she had been warned to not be in that room while our client was not serving

residents. Mrs. Ryan will have to prove that our client was aware of the puddle in the floor of

the lunchroom. In his deposition, Mr. Lonnie, stated that because of the nature of the elderly

care facility that wet floor signs were always placed near an area that had been mopped

recently, and that on October 31, 2013, the day of the accident, there was a wet floor sign at

the entrance to the lunchroom. Mr. Lonnie’s deposition gave details that conflicted with the

claims made by Mrs. Ryan that the puddle was eleven inches in diameter. According to Mr.

Lonnie, the puddle was only five inches in diameter.

It will be very difficult for Mrs. Ryan to prove that our client failed to exercise caution

for a dangerous condition in an area where it was likely that there could be a spill.

According to Robinson, the true basis of liability is the owner/occupier’s superior knowledge

of the existence of a defective or hazardous condition. Robinson, 268 Ga. 735 at 736.

Because Mrs. Ryan will most likely be unable to prove that our client had actual

notice, and by the procedures and policies that were in place for the protection of residents

and visitors in an area where our client had constructive notice of potential hazards, it will

be difficult for Mrs. Ryan to prove that Care Less, Inc. had not used the appropriate

diligence in making the premises safe.

Reasonable Care



Mrs. Ryan will have to prove that she used reasonable care in order to prevail on her

claim for slip and fall. According to Robinson, the plaintiff would have to prove that she

lacked knowledge of the hazard despite the exercise of ordinary care due to actions or

conditions within the control of the owner/occupier. Id. at 749. An invitee takes the risk for

their own safety and must “by the same degree of care avoid effect of owner’s negligence

after it becomes apparent to her or in exercise of ordinary care she should have learned of

it.” Colevins v. Federated Dept. Stores, Inc., 213 Ga.App. 49 (1994).

In order to prove that a defendant was negligent, the plaintiff must also take the

precaution that there could be potential dangers. In Colevins the plaintiff slipped and fell

while in a department store she was to be working at as an employee for a cosmetics

company. Id.at 49. While the plaintiff wanted to claim that the floor was wet and she slipped

on a leaf similar in colour to the floor, the court found that the plaintiff should have taken

some responsibility for her own safety, since she was aware of the potential hazard. Id. at

50. Colevins later came into contention with Robinson, but the Georgia Supreme Court

made it clear that the same concept applied, an “invitee should use all of their senses” to

keep them from any potential dangers or hazards. Robinson, 268 Ga. 735 (1997) at 744.



In Brownlow v. Six Flags Over Georgia, Inc. 172 Ga.App. 242 (1984) an invitee of

the amusement park slipped and fell after exiting a raft ride and brought suit for negligence

against the theme park. Id. at 242. The court held that “in order to recover for a slip and fall

“not only must the plaintiff show that the defendant had knowledge of the presence of the

foreign substance, but the plaintiff must also show that he was without knowledge of its

presence.” Id. at 243. Mrs. Ryan had been warned to not enter the area unless the

residents were also present. The lunchroom was in a process of transitioning from breakfast

to lunch service at the time of the accident. Therefore, Mrs. Ryan who knew of the routine of

the lunchroom being cleaned during this time would have known that there was a chance

that the floor had recently been mopped.

The Brownlow court also held that the customer must exercise ordinary care for his

own safety and must by the same degree of care avoid the effect of the merchant’s

negligence after it becomes apparent to him or in the exercise of ordinary care he should

have learned of it. Id. at 243. Mrs. Ryan admitted that she was only focusing on the coffee

urn rather than the entire lunchroom. Without paying attention to her surroundings, it is

arguable that she could have learned of the danger by using all of her senses such as a

normal person would have in a like situation. “He must use all of his senses in a reasonable

measure amounting to ordinary care in discovering and avoiding things that might cause

hurt to him.” Brownlow v. Six Flags Over Georgia, Inc. 172 Ga.App.242 (1984) (citing

Alterman Foods v. Ligon, 256 Ga. 620, 623 (1980)).



Another recent Georgia decision held that a defendant was not responsible for an

invitee’s injury after an invitee was injured after reaching up for a product on a shelf in the

defendant’s store. Aubain-Gray v. Hobby Lobby Stores, Inc., 323 Ga. App. 672 (2013).

Thinking she was reaching for a vase, the plaintiff was injured by a glass globe that fell from

a candleholder. Id. at 672. The court found that Hobby Lobby was not responsible for the

injury sustained by the plaintiff. Id. at 672. Unlike Aubain-Gray, the department store was

open, and the plaintiff had been shopping for ten to fifteen minutes before the accident. Id.

At 672. Mrs. Ryan however, had entered an area of the facility that she had been warned to

not be in at the time of the accident. As such, our client had placed a wet floor sign at the

entrance of the lunchroom, the maintenance supervisor had warned her to only enter when

residents were present, and Mrs. Ryan ignored everything and entered the lunchroom

anyways. “A proprietor is not, however, the ensurer of its customer’s safety; rather what the

law requires is diligence toward making the premises safe as the ordinarily prudent

businessman in such matters is accustomed to use.” Aubain-Gray v. Hobby Lobby Stores,

Inc., 323 Ga.App. 672, (2013)(citing Winn-Dixie Stores v. Hardy, 138 Ga.App. 342,344

(1976)).

The practice of having visitors eat with the residents had been discontinued in 2011,

roughly three years later; Mrs. Ryan continued to enter the lunchroom to get coffee. This

included entering the lunchroom during the time that none of the residents were present to

get coffee. Despite having received repeated warnings from Mr. Lonnie, the maintenance

supervisor, to only enter the lunchroom before the last resident had left, Mrs. Ryan allegedly

continued to defy his warnings.



Mrs. Ryan fell between 9:00 AM and 9:30 AM, during the period of time between the

service of breakfast and lunch. In deposition Mrs. Ryan acknowledged to knowing that the

area was usually mopped during this time, and that she was not focused on the floor at the

time of the fall. As the court in Aubain-Gray held that “diligence toward making the premises

safe as the ordinarily prudent businessman in such matters is accustomed to use.” Id. at

686. Mrs. Ryan admitted that she was not paying attention to the lunchroom and that her

attention was specifically on the coffee urn. If Mrs. Ryan had been using all of her senses

like a reasonably prudent person, she would have most likely been able to avoid any

accident or injury. Since her attention had been focused specifically on the coffee urn and

not the surrounding areas, it is likely that a court would find that she did not use the

reasonable care that was necessary to protect herself from dangers.

The fact pattern of this case is similar in nature to Colevins. In Colevins the court

found for the department store owner, because the plaintiff admitted that she was not

paying attention, “When asked why she did not see the foreign substance on the floor,

appellant by way of deposition testified: “I wasn’t looking down on the floor to see. I was

looking straight so I wouldn’t bump into anybody.” (Emphasis Supplied)” Id. at 51. Mrs.

Ryan admitted that she was not paying attention to anything but the coffee urn. Had Mrs.

Ryan been using reasonable care for her own safety and had been more observant of her

surroundings in the lunchroom, she could have possibly avoided the accident.



Robinson held “whether, taking into account all the circumstances existing at the

time and place of the fall, the invitee exercised the prudence the ordinarily careful person

would use in a like situation.” Id. at 748. A court is likely to reason that because Mrs. Ryan

knew that Mr. Lonnie typically mopped after breakfast and because Mr. Lonnie had warned

her numerous times before the day of the accident not to come into the lunchroom after the

last resident had left, it is arguable that Mrs. Ryan should not have been in the lunchroom at

all, and even then, Mrs. Ryan should have used more caution when decided to enter.

The court in Robinson also cited to the Restatement of Law 2d, Torts §466(a) which

says that “a “type” of contributory negligence: “an intentional and unreasonable exposure of

[the plaintiff] to danger created by the defendant’s negligence, of which danger the plaintiff

knows or has reason to know…” Id. at 738. The very nature of the lunchroom and the area

where Mrs. Ryan fell should have indicated that she should have been using more of her

senses in observing the room, and if in fact our client was in some way negligent, Mrs. Ryan

arguably contributed to the accident. Ga. Code Ann. §51-11-7 (West 2013).

Regardless of the size of the puddle, in Robinson the court cited that “The

owner/occupier is not required to warrant the safety of all persons from all things, but to

exercise the diligence toward making the premises safe that a good business person is

accustomed to use in such matters.” Id. at 740. Mrs. Ryan should not have been in the area

of the facility where the accident took place which puts it within reason that even if our client

had actual or constructive knowledge, Mrs. Ryan’s refusal to comply with requests that she

not be in the area during times the lunchroom was not in service that she should have been

taking the same precautions for her own safety.



The nature of the lunchroom by itself is an area where spills would not be

uncommon. Mrs. Ryan had been warned numerous times to not enter the lunchroom unless

residents were present, yet she failed to head the warnings and entered the lunchroom

during a transition period between breakfast and lunch services, it is most likely that our

client may have had constructive notice of the hazard, but it is very unlikely that our client

had actual notice. It is within reason to believe that because Mrs. Ryan was an invitee and

did not take the reasonable care to mitigate her own risk of injury that Mrs. Ryan will not

prevail on her claim for slip and fall.

Loss of Consortium

Mr. Ryan stands a good chance of prevailing on his claim for loss of consortium,

only if Mrs. Ryan prevails on her claim for slip and fall. In Georgia, consortium is a derivative

claim; a claim that is added on to the original claim and the plaintiff cannot prevail on the

claim unless the claim that the loss of consortium claim is based off of is successful.

Treglown v. K-Mart Corp., 245 Ga.App. 428, 537 S.E.2d 173 (2000). See e.g., Mears v.

Gulfstream Aerospace Corp., 225 Ga.App. 636, 484 S.E.2d 659 (1996); GA. Code. Ann.

§51-1-9 (West 2013).

Treglown holds that a jury cannot render inconsistent verdicts. The court in

Treglown allowed for the jury to deliberate damages by special verdict form that asked the

jury to find a reasonable amount for Mr. Treglown’s loss of consortium, to which the jury did

not give a verdict. Id. at 431. The jury did not believe that the evidence was consistent and

that there was evidence of his wife’s fatigue, lack of energy, lack of interest in sex, and an

obsessive compulsive disorder coupled with depression that had no connection to her fall,

and therefore Mr. Treglown had no damages for loss of consortium. Id. at 431.



In Lee v. Thomason, 277 Ga.App. 573 (2006) the plaintiff’s wife sue for loss of

consortium. Id. at 573. After being involved in a car accident with the defendant, Mr. Lee

was airlifted to a hospital where he remained for more than a month recovering from the

injuries he sustained. The court found that “Consortium means “the marital rights and duties

of the spouses inter se, the reciprocal rights and duties of society, companionship, love,

affection, aid, services, cooperation, sexual relations, and comfort, such being special rights

and duties growing out of the marriage covenants.”” Id. at 576

While it is reasonable to argue that the failure to admit facts regarding the sexual

relations the couple had before the accident, Mr. Ryan would be required to answer the

questions if put on stand at trial. Even though the typical definition of consortium includes

sexual relations, it also includes nonsexual aspects of a marital relationship. Id. at 577. In

Lee the defendant gave no authority that damages for loss of consortium are available only

when a spouse testifies about a loss of impairment of sexual relations, and the Georgia

Court of Appeals also failed to find any such authority. Id. at 577. After a special jury verdict,

the court upheld the verdict for the loss of consortium. Id. at 577.

Because damages for loss of consortium are not capable of exact pecuniary

measure, the question of if Mr. Ryan will be able to recover will be a question that is left up

to the jury for their determination. Even though there is a current lack of testimony, if Mrs.

Ryan prevails, Mr. Ryan will also most likely be able to prevail on his claim.

Conclusion



Mrs. Ryan was an invitee on the premises of Care Less, Inc. Because Care Less,

Inc. is providing a service by caring for Mrs. Ryan’s mother and by Mrs. Ryan’s own

admissions that she is paying our client for the care that they are providing, then Mrs. Ryan

will most likely be considered an invitee on their property. At the time of the accident it was

not evident if Care Less, Inc. had any constructive or active knowledge of the puddle on the

floor where the slip and fall took place.

Mrs. Ryan had been told to not enter the lunchroom when residents were not

present, she was aware that the room is cleaned during this time, and she failed to pay any

attention to her surroundings at the time of the accident. Because Mrs. Ryan by her own

admissions admitted that she was not paying attention and her knowledge that the room

could potentially be dangerous during this time, it is highly likely that a court will find that our

client is not liable for Mrs. Ryan’s injuries.

Finally, unless Mrs. Ryan prevails on her claim for slip and fall, Mr. Ryan will not

prevail on his claim for loss of consortium. Loss of consortium is a derivative claim that

involves the loss of or inability of another to provide basic household chores,

companionship, and is not specifically limited to the conjugal affection toward one another.

Due to the nature of the claim he has added to the lawsuit, Mr. Ryan stands a good chance

of prevailing on his claim, despite the objections to Mr. Ryan’s testimony of the couple’s sex

life.


59543 Final Copy

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Transcript of 59543 Final Copy