                              THIRD DIVISION
                             MCFADDEN, C. J.,
                         DOYLE, P. J., and RICKMAN, 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.
                    Please refer to the Supreme Court of Georgia Judicial
                    Emergency Order of March 14, 2020 for further
                    information at (https://www.gaappeals.us/rules).


                                                                       June 1, 2020




In the Court of Appeals of Georgia
 A20A0429. GHALI et al. v. MILES et al.                                       DO-014

      DOYLE, Presiding Judge.

      Adriel Miles, Sr., Adriel Miles, Jr., and Shelby Smith (“the plaintiffs”) sued

Jalal K. Ghali and Jinan Ghali (“the Ghalis”) for negligent infliction of emotional

distress after their son, Basil Ghali (hereinafter, “Basil”), fired a gun from the balcony

of the Ghalis’ home toward the plaintiffs, who were in a boat on a lake. The Ghalis

moved for summary judgment, and the trial court denied the motion. This Court

granted the Ghalis’s application for interlocutory appeal, and they argue that they had

no duty to the plaintiffs and that the plaintiffs suffered no physical impact or

pecuniary losses. For the reasons that follow, we reverse.

             On summary judgment, the movant[s have] the burden to show
      there is no genuine issue as to any material fact and that [they are]
      entitled to a judgment as a matter of law. In ruling on a motion for
           summary judgment, the opposing part[ies] should be given the benefit
           of all reasonable doubt, and the court should construe the evidence and
           all inferences and conclusions arising therefrom most favorably toward
           the part[ies] opposing the motion.1


           So viewed, the record shows that Basil suffered brain damage following

  malformations in his brain, which required two surgeries. Prior to the incident giving

  rise to this appeal, Basil was under treatment for anxiety and depression, including

  receiving multiple prescriptions for medication, including an antipsychotic. Basil had

  previously been arrested three times: for illegally transporting an AK-47 rifle in the

  trunk of his car; for making terroristic threats by telling people at a gym that he was

  going to retrieve a gun from his car and kill people; and for driving under the

  influence and reckless driving. The Ghalis were aware of all three arrests before the

  shooting giving rise to this appeal.

           On March 21, 2015, the Ghalis, both medical doctors, lived on Lake

  Tobesofkee in Macon with their family, including 25-year-old Basil and several of

  his eight siblings. Basil consumed a bottle of alcohol outside of his home. He then

  returned home where his mother and several siblings were; he did not speak with


      1
          (Punctuation omitted.) Huddle v. Heindel, 347 Ga. App. 819, 821 (821 SE2d 61)
(2018).

                                             2
  anyone, and his father was not home. Basil went upstairs to a balcony, which

  overlooks the lake, where the plaintiffs were fishing in their boat. Basil retrieved his

  handgun and fired it into the lake, hitting the water and causing it to splash the

  plaintiffs; neither the plaintiffs nor the boat were struck by bullets.2

          Following the shooting, Miles, Sr., suffered from nightmares, sleeplessness,

  worry, anxiety, headaches, and fear, and he saw his doctor and underwent counseling

  for post-traumatic stress disorder. Miles, Jr., had headaches, nightmares,

  sleeplessness, and night sweats as a result of the incident, but he did not seek medical

  treatment for such. Smith sought counseling for anxiety, sleeplessness, and

  hypervigilance, and his counselor diagnosed him with post-traumatic stress disorder.

          The plaintiffs thereafter filed suit against the Ghalis and Basil, alleging that

  Basil had assaulted them and intentionally inflicted emotional distress upon them and

  that the Ghalis had negligently inflicted emotional distress, resulting in injuries and

  pecuniary losses.3 As to the Ghalis, the plaintiffs alleged that they knew that Basil



      2
        Basil ultimately pleaded guilty to three counts of aggravated assault as a result of
the incident, and he was sentenced as a first offender to twenty years, to serve the first six
in custody.
      3
         The plaintiffs also seek punitive damages. The plaintiffs claims against Basil are
not at issue in this appeal.

                                              3
  “presented a danger to individuals such as [the plaintiffs] while he was on their

  property but failed to . . . protect others from that danger.” The Ghalis moved for

  summary judgment, arguing that they had no duty to supervise Basil and that the

  plaintiffs had suffered no physical impact or pecuniary losses. The trial court denied

  their motion, and this Court granted the plaintiffs’ application for interlocutory

  appeal.

           1. The Ghalis argue that the trial court erred by concluding that they owed a

  duty to the plaintiffs. We agree.

           The threshold issue in any negligence case is whether the defendant owes a

  duty to the plaintiff.4 “The existence of a legal duty is a question of law for the

  court.”5 In its order denying summary judgment, the trial court cited to the

  Restatement (Second) of Torts, § 318 and concluded that “issues of material fact

  remain regarding whether the [Ghalis] were unable to control their son [and] . . .

  whether [the Ghalis] knew [that] . . . Basil . . . was in the possession of a handgun []

  and knew of his prior criminal record and history of firearm offenses.”



      4
       See Ceasar v. Wells Fargo Bank, N.A., 322 Ga. App. 529, 533 (2) (b) (744 SE2d
369) (2013).
      5
          See Rasnick v. Krishna Hospitality, Inc., 289 Ga. 565, 567 (713 SE2d 835) (2011).

                                              4
           The Restatement (Second) of Torts, § 318 provides:

           If the actor permits a third person to use land or chattels in his
           possession otherwise than as a servant, he is, if present, under a duty to
           exercise reasonable care so to control the conduct of the third person as
           to prevent him from intentionally harming others or from so conducting
           himself as to create an unreasonable risk of bodily harm to them, if the
           actor (a) knows or has reason to know that he has the ability to control
           the third person, and (b) knows or should know of the necessity and
           opportunity for exercising such control.


           The trial court stated in its order that “[i]n Georgia, this provision has been

  interpreted to require an ‘assumption of a special relationship of control’ to establish

  liability for an adult child living in the home,” citing Spivey v. Hembree.6

  Although no Georgia case explicitly adopts or interprets Section 318,7 Spivey held

  that “absent a custodian’s assumption of a special relationship of control over an adult

  child living at home . . . there is no liability for the conduct of such child.”8 A special



      6
          268 Ga. App. 485 (602 SE2d 246) (2004).
      7
        Compare Herrington v. Gaulden, 294 Ga. 285, 287 (751 SE2d 813) (2013)
(adopting Section 324A of the Restatement (Second) of Torts).
      8
       (Citation omitted.) Spivey, 268 Ga. App. at 488 (1) (a), citing Coleman v. Coleman,
240 Ga. 417, 422-423 (5) (240 SE2d 870) (1977) & Trammel v. Bradberry, 256 Ga. App.
412, 418 (2) (568 SE2d 715) (2002).

                                               5
relationship may arise between a parent and an adult child (similar to that which may

arise between a doctor and a patient), but only if a two-part test is satisfied: (1) the

parent must have control over the adult child, and (2) the parent must know or

reasonably should have known that the adult child was likely to cause bodily harm

to others.9 “Thus, absent being appointed the legal guardian of the person, there must

be evidence of actual assumption of physical control as well as knowledge of the

danger the person poses to others if the control is not reasonably maintained.”10

Notably, providing a person with a place to live does not create a right or exercise of

physical control.11

         Here, even assuming the Ghalis knew or reasonably should have known that

Basil was likely to cause bodily harm to others, they were not Basil’s legal guardians,

and there is no evidence that they had assumed actual physical control over him. The

plaintiffs asserts that the Ghalis had control over Basil because they prohibited their

adult children from drinking alcohol in the house and because Basil would do

whatever his mother asked him to do around the house. But the imposition of these


    9
        See Trammel, 256 Ga. App. at 417 (2).
    10
         (Emphasis supplied.) Id.
    11
         See id. at 418 (2).

                                           6
  “house rules” is insufficient, under Georgia law, to impose upon the Ghalis a special

  relationship of control over Basil: “this is not the control envisioned under the law;

  otherwise, every parent, owner of realty, or landlord would find themselves in a

  special relationship of control with an adult living under their roof.”12 Accordingly,

  the trial court erred by denying the Ghalis’ motion for summary judgment.

           2. Our holding in Division 1 renders moot the Ghalis’ argument that the trial

  court erred by finding that the plaintiffs may be entitled to recover under the

  pecuniary loss rule.

           Judgment reversed. McFadden, C. J., and Rickman, J., concur.




      12
         Id. (reversing the denial of summary judgment to father who provided his son with
a place to live and truck and could have conditioned staying at house on surrender of guns
because the father did not have son in his physical custody, did not take charge of him,
could not force him to take his medication, and had obtained an involuntary commitment
order over him).

                                             7
