Porubiansky v. Emory University

Decision Date03 February 1981
Docket NumberNo. 59966,59966
Citation156 Ga.App. 602,275 S.E.2d 163
PartiesPORUBIANSKY v. EMORY UNIVERSITY et al.
CourtGeorgia Court of Appeals

J. Corbett Peek, Jr., William D. Barwick, Atlanta, for appellant.

Daniel S. Reinhardt, Kevin Greene, Atlanta, for appellees.

SOGNIER, Judge.

Appellant, plaintiff in the lower court, applied and was accepted as a patient of Emory University's School of Dentistry Clinic. Appellant was advised that all treatment at the clinic would be by dental students and employees under the direction of a licensed dentist or by a licensed dentist. Appellee Emory University is a private institution and its School of Dentistry is involved primarily in dental research and the education of dental students.

The clinic charges less for treatment than is generally charged by dentists practicing in the Atlanta area. However, there is no indication that appellant sought her dental treatment at Emory because of economic necessity. Prior to accepting a patient for treatment, Emory requires each patient to execute an information consent form in consideration of dental services to be rendered to the patient. This form was signed by appellant on October 26, 1976. The pertinent parts of the form are set forth:

"EMORY UNIVERSITY SCHOOL OF DENTISTRY INFORMATION CONSENT FORM

"Dear Prospective Patient.

"Please read the following information carefully to avoid any misunderstanding.

"Emory University School of Dentistry conducts its Dental Clinic to teach and prepare dental students for the practice of Dentistry.

...

"In consideration of Emory University School of Dentistry performing dental treatment, I do hereby expressly waive and relinquish any and all claims of every nature I or my minor child or ward may have against Emory University, its officers, agents, employees, or students, their successors, assignees, administrators, or executors; and further agree to hold them harmless as the result of any claims by said minor child or ward, arising out of any dental treatment rendered, regardless of its nature or extent."

Appellant began treatment on November 30, 1976, received numerous treatments and paid her charge separately for each treatment. On April 19, 1977 Dr. Haddad, an employee of Emory dental clinic, removed appellant's impacted tooth. During this procedure Dr. Haddad, also a defendant and appellee, noticed that appellant's jaw was broken.

Appellant sued Emory University and Dr. Haddad alleging that her jaw was broken negligently during removal of the impacted tooth; appellees denied this allegation, and pleaded the exculpatory clause contained in the information consent form as a defense and moved for summary judgment on this basis. The facts are not in dispute except as to the injury and causation, with which we are not now concerned.

The trial court held that the exculpatory clause in the consent form executed by appellant prior to treatment was valid and granted summary judgment to appellees. Porubiansky contests that judgment.

Appellant's sole enumeration of error is that the trial court erred in granting appellees' motion for summary judgment as the exculpatory clause relied upon by appellee violates the public policy of the State of Georgia, and is void as a matter of law. This is a case of first impression in our courts.

" 'It is well settled that contracts will not be avoided by the courts as against public policy, except "where the case is free from doubt and where an injury to the public interest clearly appears. " ' " Cash v. Street & Trail, 136 Ga.App. 462, 465, 221 S.E.2d 640 (1975). Unless prohibited by statute or public policy, the parties are free to contract on any terms and about any subject matter in which they have an interest, and any impairment of that right must be specifically expressed or necessarily implied by the legislature in a statutory prohibition and not left to speculation. Brown v. Five Points Parking Ctr., 121 Ga.App. 819, 821, 175 S.E.2d 901 (1970). A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law. Camp v. Aetna Ins. Co., 170 Ga. 46, 50, 152 S.E. 41 (1929); Brown v. Five Points Parking Ctr., supra, at p. 821, 175 S.E.2d 901.

Except in cases prohibited by statute and cases where a public duty is owed, the general rule in Georgia is that a party may exempt himself by contract from liability to the other party for injuries caused by negligence, and the agreement is not void for contravening public policy. Hawes v. Central of Ga. R. C., 117 Ga.App. 771, 772, 162 S.E.2d 14 (1968). Code Ann. § 102-106 provides: "Laws made for the preservation of public order or good morals cannot be done away with or abrogated by any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest."

Code Ann. § 20-504 provides for a statutory prohibition against contracts made in violation of public policy and enumerates some examples where such contracts will not be enforced, i. e., "contracts tending to corrupt legislation or the judiciary, contracts in general restraint of trade, contracts to evade or oppose the revenue laws of another country, wagering contracts, contracts of maintenance or champerty." In addition, under this code section an agreement made in connection with a building construction contract which purports to indemnify the contractor against liability for negligence is against public policy and void.

Historically, our courts have viewed any interference with freedom to contract with considerable caution. In this regard, our Supreme Court has stated: "The power of the courts to declare a contract void for being in contravention of a sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt.... The authority of the lawmaking power to interfere with the private right of contract has its limits, and the courts should be extremely cautious in exercising the power to supervise private contracts which the lawmaking power has not declared unlawful." Equitable Loan & Security Co. v. Waring, 117 Ga. 599(1)(2), 44 S.E. 320 (1903). With regard to Code Ann. § 20-504, this court has held: "The provisions of the Civil Code (1910), § 4253 et seq., (now § 20-504) should not be enlarged without convincing and conclusive reasons ... 'It is well settled that contracts will not be avoided by the courts as against public policy, except where the case is free from doubt, and where an injury to the public interest clearly appears.' " Mut. Life Ins. Co. v. Durden, 9 Ga.App. 797, 800(3), 72 S.E. 295 (1911). "The only authentic and admissible evidence of public policy of a State is its constitution, laws, and judicial decisions." Mut. Life Ins. Co. v. Durden, supra at p. 800(3), 72 S.E. 295.

We are not now concerned with a contract such as those specifically enumerated in § 20-504. There have been cases, however, where this court has found that a contract which does not come within the parameters of § 20-504 has been violative of public interest and policy.

In Country Club Apts. v. Scott, 154 Ga.App. 217, 220, 267 S.E.2d 811 (1980); affirmed, 246 Ga. 443, 271 S.E.2d 841 (1980) this court held an exculpatory clause in a landlord-tenant agreement to be void and stated: "A landlord's implied warranty concerning latent defects existing at the inception of the lease is sufficiently analogous to a contract for maintenance or repair that an exculpatory provision purporting to nullify the effect of the implied warranty is void and unenforceable under Code § 20-504." The court found that the landlord's warranty existed by operation of law in the interest of public safety, and was provided for by statute. Code Ann. § 61-111.

In another case not falling within the explicit parameters of § 20-504, this court has ruled that "a special contract between an innkeeper and his guest purporting to limit the innkeeper's liability to an amount less than that authorized by Code § 52-111, is unenforceable as contrary to public interest and policy." Ellerman v. Atlanta American Motor Hotel Corp., 126 Ga.App. 194, 195, 191 S.E.2d 295 (1972). The court viewed an innkeeper as a "professional" bailee as opposed to an "ordinary" bailee and stated that "... the 'professional' bailee is often precluded from limiting by contract liability for his own negligence as violative of public policy. The reasoning utilized is that the public, in dealing with innkeepers, lacks a practical equality of bargaining power and may be coerced to accede to the contractual conditions sought by the innkeeper or else be denied the needed services. We think that both the principle precluding the limitation of liability and the reasoning underlying it are sound. The General Assembly by Code § 52-111 authorizing a limitation of liability has pre-empted the field on that subject. We are therefore constrained to hold that the legislative pre-emption cannot be avoided by a special contract and that any such contract purporting to further exculpate the innkeeper is contrary to the public interest and policy and cannot be enforced."

In Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga.App. 154, 85 S.E.2d 169 (1954) the court dealt with an exculpatory clause in favor of a gas company for any resulting damage caused by the negligence of the gas company in installing equipment and servicing the premises with butane gas. Again, this situation is not enumerated in § 20-504. Safety regulations regarding the installation of such gas were provided for by statute and regulations....

To continue reading

Request your trial
35 cases
  • Barton v. Peterson, Civ. A. No. 1:87-CV-1871-JOF.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 21 Marzo 1990
    ...void as against public policy. Emory University v. Porubiansky, 248 Ga. 391, 282 S.E.2d 903 (1981), aff'g, Porubiansky v. Emory University, 156 Ga.App. 602, 275 S.E.2d 163 (1980). Persons are entitled to full freedom to contract unless the contract violates public policy. Id. A contract wil......
  • City of Santa Barbara v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • 16 Julio 2007
    ...Inc. (1983) 4 Haw.App. 190, 664 P.2d 738, 744; Jones v. Dressel (Colo. 1981) 623 P.2d 370, 376-378; Porubiansky v. Emory University (1980) 156 Ga.App. 602, 275 S.E.2d 163, 167-169; Olson v. Molzen (Tenn.1977) 558 S.W.2d 429, 7. We observed: "[0]bviously no public policy opposes private, vol......
  • Duncan v. Integon General Ins. Corp.
    • United States
    • Supreme Court of Georgia
    • 17 Marzo 1997
    ...50, 152 S.E. 41 (1930); Brown v. Five Points Parking Ctr., [121 Ga.App. 819, 821, 175 S.E.2d 901 (1970)]." Porubiansky v. Emory University, 156 Ga.App. [at] 603, 275 S.E.2d 163 (1980), aff'd. sub nom Emory University v. Porubiansky, 248 Ga. 391, 282 S.E.2d 903 (1981). Accord Williams v. Cox......
  • Department of Transp. v. Brooks, s. 42126
    • United States
    • Supreme Court of Georgia
    • 23 Abril 1985
    ...152 S.E. 41 (1930); Brown v. Five Points Parking Ctr., [121 Ga.App. 819, 821, 175 S.E.2d 901 (1970) ]." Porubiansky v. Emory University, 156 Ga.App. 602, 603, 275 S.E.2d 163 (1980), aff'd sub nom Emory University v. Porubiansky, 248 Ga. 391, 282 S.E.2d 903 (1981). Accord, Williams v. Cox En......
  • Request a trial to view additional results
5 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT