                              FIRST DIVISION
                               BARNES, P. J.,
                          MCMILLIAN and REESE, JJ.

                   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


                                                                    March 11, 2019




In the Court of Appeals of Georgia
 A18A1510. SHEAFFER et al. v. MARRIOTT INTERNATIONAL,
     INC.

      MCMILLIAN, Judge.

      Dean E. Sheaffer and his wife Lorrie L. Sheaffer (the “Sheaffers”) appeal from

the trial court’s grant of summary judgment to Marriott International, Inc.

(“Marriott”) after Marriott allegedly failed to provide staff to aid Mr. Sheaffer when

he suffered a stroke alone in his hotel room. We affirm for the reasons set forth

below.

      “Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law.” OCGA § 9-11-56 (c). “To

obtain summary judgment, a defendant need not produce any evidence, but must only

point to an absence of evidence supporting at least one essential element of the
plaintiff’s claim.” (Citation omitted.) Thorpe v. Sterling Equip. Co., 315 Ga. App.

909, 910 (729 SE2d 52) (2012). “We review a grant or denial of summary judgment

de novo and construe the evidence in the light most favorable to the nonmovant.”

(Citation omitted.) Elder v. Hayes, 337 Ga. App. 826, 827 (788 SE2d 915) (2016).

      So viewed, the complaint alleged1 that Mr. Sheaffer was a guest at the

Renaissance Concourse Hotel (the “Hotel”) in Atlanta, Georgia, when in the early

morning of February 13, 2014, he woke up and noticed that his left hand and left side

of his face were “numb and tingly.” Mr. Sheaffer went back to sleep, but woke up

again and collapsed when he tried to get out of bed. Mr. Sheaffer thought that he was

having a stroke, so he dialed “0” on the Hotel telephone next to his bed. After no

employee answered, he then dialed “66,” which he determined was the Hotel’s

emergency number. Again, no one answered his call. Mr. Sheaffer then dialed “911,”

and an operator directed an ambulance to the Hotel, but no one was at the front desk

when the EMTs arrived, which, the Sheaffers allege, delayed their access to Mr.

      1
       The parties introduced very little evidence on Marriott’s motion for summary
judgment, and the trial court’s order granting the motion stated that, like Marriott, it
assumed the truth of the allegations in the Sheaffers’ complaint for the purposes of
the motion. Despite Marriott’s brief on appeal including a “Corrected Factual and
Procedural Background,” the events preceding the lawsuit do not appear to be in
dispute for the purposes of motion, and we have relied on the facts asserted in the
complaint in considering the motion as well.

                                           2
Sheaffer’s room. Eventually, Mr. Sheaffer let the EMTs into his room where they

examined him before transporting him to Atlanta Medical Center. He was later

transferred to Emory University Hospital, where it was determined that Mr. Sheaffer

suffered an ischemic stroke in his left vertebral artery.

      The Sheaffers filed a lawsuit against Marriott, whom they contended owned,

maintained, operated or controlled the Hotel,2 asserting a negligence claim by Mr.

Sheaffer and a loss of consortium claim by Mrs. Sheaffer, alleging, generally, that the

Hotel’s failure to have someone answer Mr. Sheaffer’s calls and to staff the front desk

worsened the effects of his stroke. Marriott filed a “Motion to Dismiss and

Alternative Motion for Summary Judgment,” arguing that innkeepers3 such as the

Hotel do not have a duty to rescue their guests or to monitor them if they are in need

of medical assistance. After holding a conference call, the trial court directed the

parties to brief the issue of whether the Hotel owed Mr. Sheaffer a duty to staff the



      2
        Although not relevant to this appeal, Marriott also asserted that it did not own
or manage the Hotel at the time of allegations giving rise to the lawsuit and, therefore,
argued that the Sheaffers’ claims were barred by the statute of limitations due to
insufficient service of process and because Marriott was an improper party and the
proper party could not be joined.
      3
        The parties do not dispute that the Hotel is an innkeeper and OCGA § 43-21-1
et seq. defines its general duties and obligations.

                                           3
front desk or emergency number. After briefing, the trial court instructed the parties

that it would treat Marriott’s motion as a motion for summary judgment and directed

them to file “additional evidence which is pertinent to the motion[.]” The Sheaffers

submitted an unauthenticated copy of Marriott’s Business Conduct Guide, and

Marriott submitted evidence that the trial court determined was “not pertinent to the

issue of the Hotel’s duty to Mr. Sheaffer.”4

      The trial court granted summary judgment to Marriott, finding that the Hotel

did not have a duty to rescue Mr. Sheaffer from a situation of peril that it did not

cause. The trial court also rejected the Sheaffers’ arguments “that the Hotel

voluntarily undertook the duty to protect Mr. Sheaffer from harm by providing an

emergency number, and that the Hotel’s negligent performance of that undertaking

provides a basis for liability[,]” finding that the Hotel made no representation to Mr.

Sheaffer that it would provide an effective emergency number, staff the front desk,

or otherwise arrange for medical assistance for him and that “[]the broad and general

safety language in [Marriott’s] Business Conduct Guide does not come close to an

      4
       Marriott submitted an affidavit of Carol Frensilli, the Assistant Secretary for
Marriott, who swore that at the time of the allegations set forth in the complaint,
Marriott did not own or manage the Hotel as well as an affidavit concerning service
of process from a director of Marriott’s registered agent, Corporate Creations
Network, Inc.

                                          4
agreement to undertake the duties the [Sheaffers] seek to impose on the Hotel.” This

appeal followed.

      1. In two related enumerations of error, the Sheaffers assert that the trial court

erred by granting summary judgment to Marriott when it found that the Hotel neither

undertook a voluntary duty to monitor its emergency line nor had a duty to staff its

front desk to assist emergency responders. We disagree.

      “The essential elements of a negligence claim are the existence of a legal duty;

breach of that duty; a causal connection between the defendant’s conduct and the

plaintiff’s injury; and damages.” Boller v. Robert W. Woodruff Arts Center, Inc., 311

Ga. App. 693, 695 (1) (716 SE2d 713) (2011). Thus, “[t]he threshold issue in a

negligence action is whether and to what extent the defendant owes a legal duty to the

plaintiff. This issue is a question of law.” Id. “A legal duty sufficient to support

liability in negligence is ‘either a duty imposed by a valid statutory enactment of the

legislature or a duty imposed by a recognized common law principle declared in the

reported decisions of our appellate courts.’” Id. at 696 (1) (a). “In the absence of a

legally cognizable duty, there can be no fault or negligence.” Ford Motor Co v.

Reese, 300 Ga. App. 82, 84 (1) (a) (684 SE2d 279) (2009) (Citation omitted).



                                          5
      Here, the Sheaffers argue that Marriott owed a duty to answer its internal

emergency number and to staff its front desk to ensure that the EMTs promptly

reached Mr. Sheaffer’s room. In Rasnick v. Krishna Hosp., Inc., 289 Ga. 565 (713

SE2d 835) (2011), our Supreme Court addressed the duty of inkeepers when a guest

experiences a medical emergency and held that “a person is under no duty to rescue

another from a situation of peril which the former has not caused.” Id. at 567 (1)

(Citation and punctuation omitted). In Rasnick, the wife of a hotel guest sued for

wrongful death after the hotel refused to check on the guest after repeated phone

requests by the wife. Id. at 565. Because the hotel did not create or cause the guest’s

medical emergency, the Supreme Court affirmed that the hotel owed no duty to

investigate or render aid. Id. at 567 (1); see also Boller, 311 Ga. App. at 698 (1) (a)

(affirming trial court’s grant of summary judgment on negligence claim in favor of

concert organizer in custody and control of concert venue because it had no duty to

provide emergency medical services). Similarly, because there is no evidence that

Marriott caused Mr. Sheaffer to have a stroke, Marriott owed no duty to have staff

available to render aid to him.




                                          6
      Nonetheless, the Sheaffers contend that the trial court’s reliance on Rasnick

was misplaced, arguing that the Hotel is liable for the negligent performance of a

voluntary undertaking.

      Under this principle, one who undertakes to do an act or perform a
      service for another has the duty to exercise care, and is liable for injury
      resulting from his failure to do so, even though his undertaking is purely
      voluntary or even though it was completely gratuitous, and he was not
      under any obligation to do such act or perform such service, or there was
      no consideration for the promise or undertaking sufficient to support an
      action ex contractu based thereon. When one undertakes an act that he
      has no duty to perform and another person reasonably relies upon that
      undertaking, the act must generally be performed with ordinary or
      reasonable care.


Rymer v. Polo and County Club Homeowners Assn., Inc., 335 Ga. App. 167, 175-76

(2) (b) (780 SE2d 95) (2015) (citing Osowski v. Smith, 262 Ga. App 538, 540 (1) (586

SE2d 71) (2003)).

      Here, the Sheaffers argue that the Hotel voluntarily “created for itself the

specific duty to have a staff member available to answer guest calls made to the

[H]otel’s internal emergency number.” However, as Marriott argued and the trial

court’s order correctly stated, the Sheaffers introduced no evidence that the Hotel

voluntarily undertook a duty to staff the emergency number of or operator number at

                                          7
all times. In fact, the only “evidence” is in the form of the Sheaffers’ pleading. See

Bashlor v. Walker, 303 Ga. App. 478, 478-79 (693 SE2d 858) (2010) (If the moving

party discharges its burden of proof by pointing out “by reference to the affidavits,

depositions and other documents in the record that there is an absence of evidence to

support the nonmoving party’s case, . . . the nonmoving party cannot rest on its

pleadings, but rather must point to specific evidence giving rise to a triable issue.”)

(Citation omitted).

      The Sheaffers also argue that the Hotel’s failure to monitor the phones and

front desk during Mr. Sheaffer’s medical emergency violated Marriott’s Business

Conduct Guide’s section on “Health, Safety and Security,” which provides:

      Marriott strives to protect the health, safety, and personal security of
      those who visit our properties and who work for us.


      Providing a healthy, safe, and secure environment supports out mission
      to provide an excellent experience for our guests and to protect our
      associates from harm.


      You are expected to comply with all health, safety, and security
      requirements and to be alert for health and safety hazards and breaches
      of security.




                                          8
But this internal policy does not create a duty for Marriott to staff its phone lines or

front desk at all times. See generally Doe v. HGI Realty, Inc., 254 Ga. App. 181, 182-

83 (561 SE2d 450) (2002) (affirming summary judgment and holding that security

manual did not create issue of material fact on whether guards assumed the

responsibility or undertook the duty of providing security within the stores at an

outlet mall). Because the Sheaffers have produced no evidence supporting that

Marriott voluntarily undertook the duty to provide staff to render aid in case of

emergencies, the trial court properly granted summary judgment on the Sheaffers’

negligence claim.

      2. Because we held in Division 1 that the trial court did not err in granting

summary judgment on Mr. Sheaffer’s negligence claim, we also find that the trial

court did not err in granting summary judgment on Mrs. Sheaffer’s claim for loss of

consortium. See Holloway v. Northside Hosp., 230 Ga. App. 371, 372 (496 SE2d

510) (1998) (“When the other spouse cannot recover from the alleged tortfeasor as

a matter of law, however, the alleged tortfeasor also is not liable for loss of

consortium arising from those injuries.”).

      Judgment affirmed. Barnes, P.J., and Reese, J., concur.



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