Georgia Clarifies When an Exculpatory Clause will Apply to Preclude Liability


By Adam P. Reichel and Marc J. Shrake

Contract language and the extent it can be used to limit liability in the professional context is a never-ending chess match between individuals seeking to impose liability and professionals attempting to evade it. The court acts as the referee, stepping in and clarifying the rules as necessary when one party goes too far. The Georgia Court of Appeals stepped in in a late 2022 case and clarified that exculpatory clauses waiving liability for negligence-based claims are not completely void under Georgia public policy; such clauses may still apply to limit liability where no physician-patient relationship exists. Curmode v. Alsbrooks, 365 Ga. App. 824, 827, 880 S.E.2d 320, 321 (2022). 

Gary Curmode brought suit against licensed massage therapist Hilary Alsbrooks, seeking to recover for Alsbrook’s alleged negligent acts during a massage that caused Curmode physical injury and resulted in “substantial medical bills.” Id. at 824. Curmode attempted to circumvent the exculpatory clause releasing Alsbrooks and Village Health Wellness Spa from “all liability arising wholly or partly from negligence,” by arguing the clause is void under Georgia public policy. Id. at 825. Curmode’s argument was based on the Georgia Supreme Court decision Emory University v. Porubiansky.  

In Porubiansky the court held O.C.G.A § 51-1-27 creates an affirmative statutory duty of care that cannot be waived because such a waiver “conflicts with and frustrates the policies of the State.” Emory University v. Porubiansky, 248 Ga. 391, 392-93, 282 S.E. 2d 903 (1981). Curmode sought to extend the Porubiansky court’s decision to render all exculpatory clauses in contracts involving “license healthcare providers” void as a matter of public policy but the Court of Appeals would not go that far. Curmode at 826. 

The court explained that the statutory duty in § 51-1-27 “arises from the physician-patient relationship” and that “there can be no liability for [medical] malpractice in the absence of that relationship.” Id. at 827. The contract at issue expressly stated “Massage Therapy is not a substitute for medical care, medical examination, or diagnosis” leading the court to conclude that there was no physician-patient relationship between Alsbrooks and Curmode. Id. Finding that there was no physician-patient relationship, the court would not declare that public policy rendered the exculpatory clause void and affirmed the trial court’s dismissal of Curmode’s negligence claim. 

With the court’s clarification that public policy renders exculpatory clauses void in situations where a physician-patient relationship exists, it is likely that the court will soon be called upon to define the scope of the relationship. Alsbrooks, a licensed massage therapist did not qualify as a physician, but the court relied heavily on the contract language stating massage therapy is not medical care. See id. 827. Will medical providers’ next move be to include contract language denying the existence of a physician-patient relationship and how narrowly can the relationship be construed? The next time the courts have to step in and clarify the rules it very well may be to define what constitutes a physician-patient relationship after a medical provider takes the court’s decision in Curmode and includes contract language stating that no such relationship exists.  

For more information, please contact Adam P. Reichel at, Marc J. Shrake at, or your local FMG attorney.