THIRD DIVISION
DILLARD, P. J.,
GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 28, 2026
In the Court of Appeals of Georgia
A26A1345. MORTON et al v. EAGLE RANCH FOUNDATION,
INC. et al.
DILLARD, Presiding Judge.
Eagle Ranch provides services and support to children with behavioral and
emotional issues. Toward that end, the children live on a campus in homes with staff
members and their families. Sarah and Jeffrey Morton were employed by Eagle Ranch
as staff members and lived on campus with their two young sons. After their five-yearold son T. M. II was sexually assaulted by the nine-year-old son of another staff couple,
the Mortons filed suit against Eagle Ranch, asserting several claims of negligence and
a claim for breach of contract. In doing so, they sought compensatory damages,
punitive damages, and attorney fees. Eagle Ranch moved for summary judgment as to
all of the Mortons’ claims, which the trial court granted.
On appeal, the Mortons contend the trial court erred, arguing that genuine
issues of material fact precluded summary judgment as to their negligence claims, their
breach-of-contract claim, and their demand for punitive damages and attorney fees.
They also claim the court abused its discretion in limiting the scope of discovery as to
prior instances of sexual abuse at Eagle Ranch and prohibiting discovery of a mentalhealth evaluation of the child who assaulted T. M. II. For the following reasons, we
reverse the grant of summary judgment as to most of the Mortons’ negligence claims
and as to their demand for punitive damages and attorney fees; affirm the grant of
summary judgment as to their breach-of-contract claim; reverse the order restricting
discovery of prior instances of abuse; and vacate the order prohibiting discovery of the
child’s mental-health evaluation.1
Viewed in the light most favorable to the Mortons (i.e., the nonmoving parties),2
the record shows that Eagle Ranch is a nonprofit child-care institution licensed under
Georgia law and located in Flowery Branch, Hall County. As noted above, Eagle Ranch
1
Oral argument was held on June 9, 2026, and is archived on the Court’s website. See Court of Appeals of the State of Georgia, Oral Argument, Case No. A26A1345 (June 9, 2026), available at https://vimeo.com/1200809264.
2
See, e.g., Swanson v. Tackling, 335 Ga. App. 810, 810 (783 SE2d 167) (2016).
2
provides services and support to children experiencing relational crises, behavioral
difficulties, and emotional issues. In addition to children with “mild to moderate”
behavioral issues, Eagle Ranch also provides services for children with severe
behavioral issues, including those exposed to trauma and even abuse. All participating
children—“Ranch Kids”—reside on a campus with employee-parents—“House
Parents”—while participating in counseling, education, and religious programs.
The House Parent model is a defining feature of Eagle Ranch’s program and
entails married couples living full-time on campus in residential homes with Ranch
Kids assigned to their care. As part of that model, House Parents are encouraged to
have their own children—“Staff Kids”—live on campus as well, with the goal of
demonstrating healthy family relationships to the Ranch Kids. As a result, Staff Kids
and Ranch Kids live in close proximity, and they regularly interact within the homes
where they reside, on playgrounds, in the recreational facilities, during religious
activities, and in other shared spaces. Indeed, according to Eagle Ranch, this
integration of Staff Kids and Ranch Kids is essential to the program’s identity.
Sarah and Jeffrey Morton began working as House Parents at Eagle Ranch in
April 2020, residing in one of the homes on campus with their two sons, seven-year-old
T. M. and five-year-old T. M. II, as well as several Ranch Kids. L. R. and S. R. were
3
also employed as House Parents, and they resided in another home on campus with
their three children, which included nine-year-old J. R. As Staff Kids, J. R. and T. M.
II often interacted; but J. R. had a reputation for allegedly bullying younger children,
including T. M. II. In fact, Eagle Ranch leadership were aware that J. R. had
intimidated T. M. II in the past. And in one instance, J. R. punched T. M. II in the nose
hard enough to cause a nosebleed. Even so, Eagle Ranch took no formal measures to
address these issues.
As part of the House Parents’ responsibilities, Eagle Ranch required attendance
at regular training sessions on campus. And while House Parents could bring their
children to those sessions, Eagle Ranch provided free childcare for the attending
parents. On October 18, 2021, the Mortons and other House Parents were scheduled
to attend such a session, so Eagle Ranch arranged for their two sons to join a
babysitting group—which also included J. R. and a three-year-old girl, T. H. Two
babysitters from Eagle Ranch’s approved list were hired, 17-year-old Ellie and 16-yearold Zahara; and, in fact, the Mortons had hired Ellie to babysit their two boys.
That morning, the Mortons dropped off their boys with the babysitters at the
Girls’ Wellness Center. After about an hour of playing in the gym, the babysitters took
the children outside. J. R., T. M. II, and his older brother went to the playground,
4
while Ellie—who was wearing a walking boot because of an injury—and Zahara stayed
with T. H. near the basketball court. At some point, J. R., T. M. II, and T. M. started
playing in a hammock near the playground where they were obscured from the
babysitters’ view. While there, J. R. started a “game” in which he offered T. M. II
treats if he exposed himself. Not wanting to participate, T. M. went back to the
basketball court. And after his departure, J. R. touched T. M. II’s penis and buttocks,
made T. M. II do the same to him, and told him not to tell anyone what happened. A
few minutes later, both boys returned to the playground. Ellie could tell something was
wrong with T. M. II because he seemed quiet and frustrated, so she asked if he was
okay, and he responded “yeah.”
Just a bit later, Sarah Morton picked up her two sons; and as they were driving
away from the playground, T. M. II told her what took place with J. R. and asked to
wash his hands because he felt dirty. Sarah immediately called her husband to tell him
what happened, and he in turn told Eagle Ranch’s Home Life Manager, who then
relayed the incident to Eagle Ranch’s Senior Director of Programs. Jeffrey Morton also
contacted J. R.’s father to tell him about the incident; and when confronted by his
father, J. R. admitted to the actions T. M. II disclosed. But despite being aware of the
incident, no one within Eagle Ranch’s senior-staff structure reported J. R.’s conduct
5
to Hall County law enforcement or the Georgia Division of Family and Children
Services purportedly because they did not believe J. R.’s actions constituted sexual
abuse.
At first, the Mortons were unsure of how best to handle the matter. But after
speaking with the pastor at the church they attended, the Mortons reported the
incident to the Hall County Sheriff’s Office. A few days later, an investigator with that
office contacted them and recommended that T. M. II undergo a forensic interview.
The Mortons agreed, and during that interview, T. M. II recounted J. R.’s actions.
Based on T. M. II’s description of the incident, both the investigator and forensic
interviewer believed J. R.’s conduct could be characterized as predatory and abusive.
Even so, county authorities ultimately decided against prosecuting J. R. or his parents
(largely because of J. R.’s age).
In the months that followed, the Mortons’ frustrations with Eagle Ranch
increased, as they believed J. R. had not faced sufficient repercussions for his conduct
and Eagle Ranch was doing little to ensure T. M. II’s safety. By December, the
relationship between the Mortons and Eagle Ranch was untenable; and so, Eagle
Ranch presented the Mortons with the choice to either remain employed under
heightened supervision or resign in exchange for a severance package. The Mortons
6
decided to resign (as did J. R.’s parents), and they ultimately left Eagle Ranch in early
January 2022. But for the reasons discussed below, the proposed severance package
was never executed.
On June 14, 2022, the Mortons—individually and jointly on behalf of T. M.
II—sued Eagle Ranch, asserting that its failure to (1) properly screen and supervise the
children under its care, (2) properly train its employees, and (3) keep its premises safe
constituted negligence that resulted in J. R. sexually assaulting T. M. II. The Mortons
also claimed that Eagle Ranch’s failure to comply with state statutes and regulations
regarding childcare constituted negligence per se. Additionally, the Mortons
contended that the emails they exchanged with Eagle Ranch regarding the severance
package amounted to a contract that it breached. In light of these allegations, the
Mortons’ complaint sought compensatory damages, punitive damages, and attorney
fees. Eagle Ranch filed an answer, and a lengthy and contentious discovery period then
ensued. Specifically, in various discovery requests, the Mortons sought information on
prior instances of sexual abuse between children at Eagle Ranch. The Mortons also
requested information on a psychosexual evaluation of J. R. conducted at Eagle
Ranch’s direction after the incident with T. M. II. Eagle Ranch objected to these
requests and moved for a protective order. Following a hearing, the trial court issued
7
a series of orders limiting discovery of prior instances of sexual abuse to only instances
in the five-year period preceding the incident involving J. R. and T. M. II; between
children under the age of 14; and in which at least one Staff Kid was involved. The
court also denied the Mortons access to the psychosexual evaluation of J. R. on the
ground that it was protected by the psychotherapist-patient privilege.
After discovery closed, Eagle Ranch filed six motions for summary judgment,
addressing all of the Mortons’ claims. The Mortons filed responsive motions, and the
trial court held a hearing in which the parties provided argument on all outstanding
issues. At the end of the hearing, the court stated that it was granting Eagle Ranch’s
motion for summary judgment as to the Mortons’ negligence per se claim but would
take the remaining issues under advisement. But over the course of the next month, the
court issued three orders granting summary judgment for Eagle Ranch as to the
Mortons’ remaining claims. This appeal follows.
Summary judgment is proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
8
to a judgment as a matter of law.”3 Importantly, if the movant meets this burden, the
nonmovant “cannot rest on its pleadings, but rather must point to specific evidence
giving rise to a triable issue.”4 And speculation which “raises merely a conjecture or
possibility is not sufficient to create even an inference of fact for consideration on
summary judgment.”5 Moreover, if summary judgment is granted, it enjoys no
presumption of correctness on appeal, and an appellate court must satisfy itself that the
requirements of OCGA § 9-11-56(c) have been met.6 Significantly, in conducting this
de novo review, we are charged with “viewing the evidence, and all reasonable
conclusions and inferences drawn from the evidence, in the light most favorable to the
3
OCGA § 9-11-56(c). See Swanson, 335 Ga. App. at 811 (explaining that summary judgment is appropriate when “the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law” (punctuation omitted)).
4
Handberry v. Manning Forestry Servs., LLC, 353 Ga. App. 150, 151–52 (836 SE2d 545) (2019) (punctuation omitted).
5
Id. at 152 (punctuation omitted).
6
See Cowart v. Widener, 287 Ga. 622, 624(1)(a) (697 SE2d 779) (2010) (“Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56(c) have been met.”).
9
nonmovant.”7 With these guiding principles in mind, we turn now to the Mortons’
claims of error.
1. The Mortons first contend, generally, that the trial court erred in granting
summary judgment as to their claims of negligence, as well as their claims for punitive
damages and attorney fees. Within that enumeration of error, the Mortons separately
address the court’s rulings as to each claim. Our analysis of these issues will follow that
format.
(a) Foreseeability. The Mortons argue the trial court erred in finding that the
abuse of T. M. II was not foreseeable as a matter of law. We agree.
To recover for injuries caused by another’s negligence, a plaintiff “must show
four elements: a duty, a breach of that duty, causation[,] and damages.”8 And these
same elements are required to recover on a negligence claim, including premises
7
Benefield v. Tominich, 308 Ga. App. 605, 607(1) (708 SE2d 563) (2011) (punctuation omitted). Accord Swanson, 335 Ga. App. at 810.
8
Goldstein, Garber & Salama, LLC v. J. B., 300 Ga. 840, 841(1) (797 SE2d 87) (2017) (quotation marks omitted). Accord Johnson v. Am. Nat’l Red Cross, 276 Ga. 270, 272(1) (578 SE2d 106) (2003). See Stanley v. Garrett, 356 Ga. App. 706, 709(1) (848 SE2d 890) (2020) (explaining that to have a viable negligence action, a plaintiff “must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty” (quotation marks omitted).
10
liability arising from third-party criminal conduct.9 Importantly, the foreseeability of
the criminal act informs whether the defendant’s “duty of ordinary care owed ...
encompasses the duty to keep invitees safe from third-party criminal conduct.”10
Indeed, under longstanding precedent, if the proprietor has “reason to anticipate a
criminal act, he or she then has a duty to exercise ordinary care to guard against injury
from dangerous characters.”11 But without foreseeability that a criminal act will occur,
“no duty on the part of the proprietor to exercise ordinary care to prevent that act
arises.”12 That said, the difficulty arises in determining “which criminal acts are
foreseeable.”13
9
See Ga. CVS Pharm., LLC v. Carmichael, 316 Ga. 718, 721(II)(A) (890 SE2d 209) (2023) (explaining that, “[a]s a general rule, in order to recover on a premises liability claim arising from third-party criminal conduct, a plaintiff must present evidence of a duty, a breach of that duty, causation, and damages”).
10
Carmichael, 316 Ga. at 722(II)(A).
11
Id. (quotation marks omitted). See Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786-87 (482 SE2d 339) (1997) (holding that a defendant has a duty to exercise ordinary care to guard against injury from foreseeable criminal acts).
12
Carmichael, 316 Ga. at 722(II)(A) (quotation marks omitted). See Martin v. Six Flags Over Georgia (II), L.P., 301 Ga. 323, 328(II) (801 SE2d 24) (2017) (explaining that a defendant’s duty extends only to foreseeable criminal acts).
13
Walker, 267 Ga. at 786 (quotation marks omitted). Accord D. L. v. St. Francis Health, LLC, 369 Ga. App. 314, 316 (893 SE2d 444) (2023).
11
In Ga. CVS Pharmacy v. Carmichael,14 the Supreme Court of Georgia sought to
clarify this aspect of tort law, explaining that the “relevant question” is
whether the totality of the circumstances establish reasonable
foreseeability such that the proprietor has a duty to guard against that
criminal activity. While evidence of substantially similar prior
crimes—crimes with a likeness, proximity, or other relationship to the
criminal act at issue that give a proprietor reason to anticipate such an act
occurring on the premises—may often be one of the most probative
considerations in answering that question, it is not a required
consideration, and other circumstances may be relevant, too. And unless
the court determines that no rational juror could disagree on the answer,
that question is one for the jury.15
Put more simply, the question of reasonable foreseeability in this context is “generally
a question for the jury to decide.”16
14
316 Ga. 718.
15
Carmichael, 316 Ga. at 732(II)(C). Accord St. Francis Health, 369 Ga. App. at 316–17.
16
Carmichael, 316 Ga. at 725 (II)(B). See Walker, 267 Ga. at 786 (“[T]he question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.” (citation and punctuation omitted)); St. Francis Health, 369 Ga. App. at 317 (explaining that foreseeability is generally a matter for the factfinder to resolve through case-specific consideration of the totality of the circumstances).
12
The Carmichael Court also cautioned that there is no “bright-line rule that only
certain, specific kinds of evidence must be shown to establish foreseeability.”17 In fact,
evidence of prior crimes is not necessary to establish foreseeability. That said, if such
evidence is presented, it may be more probative of foreseeability if the prior crimes
“(1) happened closer in proximity to the subject premises, (2) happened closer in time
to the criminal conduct at issue, (3) happened more frequently, and (4) were more
similar to the act that is the subject of the litigation[.]”18
Here, the Mortons presented testimony from Dr. Stephanie Dallam, a nationally
recognized expert on child sexual abuse and the proper industry standards and
safeguards within childcare facilities for the prevention of such abuse. She reviewed
Eagle Ranch’s training policies and found them wanting. More precisely, Dallam
explained that residential childcare environments housing children with behavioral
challenges are at a high-risk for peer-on-peer sexual abuse, especially when children of
different ages interact. Even so, she noted that Eagle Ranch failed to implement
17
Carmichael, 316 Ga. at 728(II)(C). Accord St. Francis Health, 369 Ga. App. at 317.
18
Carmichael, 316 Ga. at 728(II)(C) (punctuation omitted). Accord St. Francis Health, 369 Ga. App. at 317.
13
adequate safeguards, particularly with its training of House Parents and the babysitters
it hired. Given these circumstances, Dallum opined that sexual abuse of a younger
child by an older child was foreseeable.19
Additionally, and despite the limitations placed on the scope of their discovery
requests, the Mortons presented evidence that—in the three-year period before the
incident involving T. M. II and J. R.—other instances of child-on-child sexual abuse
involving Ranch Kids occurred at Eagle Ranch. Indeed, one such incident allegedly
occurred in the home where J. R. resided; but despite its awareness of these incidents,
Eagle Ranch did not change its policies regarding training or supervision. Moreover,
the Mortons presented evidence that J. R. bullied other children, including previous
incidents involving T. M. II, and that Eagle Ranch was aware of this behavior and took
no formal action in response to it.
Yet, in finding that the incident between J. R. and T. M. II was not foreseeable
as a matter of law, the trial court discounted evidence that Eagle Ranch failed to
implement adequate safeguards for a childcare facility, as well as evidence of other
19
See Brookview Holdings v. Suarez, 285 Ga. App. 90, 96(2) (645 SE2d 559) (2007) (noting that even though summary judgment may not be granted to a plaintiff based solely upon opinion evidence, opinion evidence presented by the respondent to a motion is sufficient to create a jury issue).
14
instances of child-on-child sexual abuse. In doing so, the court found that such
evidence only applied to Eagle Ranch’s duty to Ranch Kids and was too dissimilar to
apply to Staff Kids. The court also discounted evidence of J. R.’s past bullying, finding
it distinguishable from the incident involving T. M. II. But in Carmichael—controlling
precedent not mentioned in the order below—our Supreme Court strongly cautioned
courts against being “too rigid” and “too quick to exclude, as [a] matter of law, past
crimes as relevant to the foreseeability analysis based on certain differences from the
criminal act at issue ... without considering whether crimes that were not identical
might still put the proprietor on notice of a hazardous condition.”20
This admonition is especially relevant here. Indeed, we find Eagle Ranch and the
trial court’s distinction between Ranch Kids and Staff Kids unpersuasive. As discussed
above, Eagle Ranch encourages House Parents to have their children reside with them
on campus; and far from being segregated, the Staff Kids and Ranch Kids live together,
worship together, and play together. So, to say that peer-on-peer sexual abuse solely
between Ranch Kids should have no bearing on the foreseeability of such abuse
involving any of the children living on campus strains credulity. We are also similarly
20
Carmichael, 316 Ga. at 735(II)(D)(2) (quotation marks omitted). Accord St. Francis Health, 369 Ga. App. at 318.
15
unpersuaded by the court’s distinction between J.R.’s bullying and the incident at
issue, as both arguably involved intimidation and coercive behavior. Given the totality
of these circumstances, a jury could conclude that the incident involving J. R. and T.
M. II was foreseeable, and the court erred in ruling otherwise.21
(b) Negligent screening. The Mortons next argue the trial court erred in granting
summary judgment on their claim that Eagle Ranch’s negligence in failing to screen
Staff Kids and implement policies to safeguard against sexual abuse resulted in the
incident between J. R. and T. M. II. In granting summary judgment as to this claim, the
court ruled that no genuine issue of material fact remained because none of the
evidence of prior instances of abuse involved Staff Kids. In essence, the court, again,
determined that the harm to T. M. II was not foreseeable as a matter law. But given our
21
See Carmichael, 316 Ga. at 732–33(II)(D)(1) (holding that facts that two armed robberies were committed in store (rather than in the parking lot), were committed against employees (rather than customers), and did not involve the discharge of a weapon did not show, as a matter of law, that they were so dissimilar as to make them improper for consideration when determining whether third-party criminal conduct was reasonably foreseeable by store in action brought by patron who was shot in store’s parking lot); St. Francis Health, 369 Ga. App. at 317–18 (reversing grant of summary judgment on ground that evidence of five other complaints made to defendant of sexual misconduct that occurred inside the hospital within a few years of plaintiff’s alleged rape were similar enough to create jury issue on foreseeability).
16
holding in Division 1(a), that the court erred in this regard, it similarly erred in granting
summary judgment on this claim.22
(c) Negligent training. The Mortons also argue the trial court erred in granting
summary judgment as to their claim that inadequate training of staff and the babysitters
resulted in T. M. II being subjected to sexual abuse. We agree that genuine issues of
material fact remain in this regard.
Under Georgia law, to establish a negligent-training claim, a plaintiff must
demonstrate that “inadequate training caused a reasonably foreseeable injury.”23 And
here, as discussed above, the Mortons’ expert (Dr. Dallam) raised a genuine issue of
material fact as to this claim with her testimony that Eagle Ranch’s training policies
for its House Parents and approved babysitters were inadequate to safeguard against
potential peer-on-peer sexual abuse. The trial court’s order grounds its grant of
summary judgment on this claim based on its previous determination that J. R.’s abuse
of T. M. II was not foreseeable and that any training—even if inadequate—was only
22
See supra note 21 & accompanying text.
23
Advanced Disposal Svcs. Atlanta, LLC v. Marczak, 359 Ga. App. 316, 319(2) (857 SE2d 494) (2021). Accord Friendship Enter., Inc. v. Hasty, 368 Ga. App. 7, 11(5) (889 SE2d 137) (2023).
17
relevant as to Ranch Kids. But again, we rejected this reasoning in Division 1(a), and
we do so again here.24
(d) Negligent supervision. The Mortons also contend the trial court erred in
granting summary judgment on their claim that Eagle Ranch failed to exercise ordinary
care in the supervision of T. M. II. Again, we agree.
Generally, a person who undertakes the control and supervision of a child—even
without compensation—has “the duty to use reasonable care to protect the child from
injury.”25 But such a person is “not an insurer of the safety of the child.”26 Instead, he
or she is required only to “use reasonable care commensurate with the reasonably
foreseeable risk of harm.”27
Here, the trial court granted summary judgment to Eagle Ranch on this claim
based on its determination that the babysitters watching T. M. II and J. R. on the day
24
See supra note 21 & accompanying text.
25
Herron v. Hollis, 248 Ga. App. 194, 195(1) (546 SE2d 17) (2001) (quotation marks omitted). Accord Wallace v. Boys Club of Albany, 211 Ga. App. 534, 535(1) (439 SE2d 746) (1993).
26
Herron, 248 Ga. App. at 195(1) (quotation marks omitted). Accord Wallace, 211 Ga. App. at 535(1).
27
Herron, 248 Ga. App. at 195–96(1) (quotation marks omitted). Accord Wallace, 211 Ga. App. at 535(1).
18
of the incident exercised reasonable care as a matter of law. But the Mortons’ expert
(Dr. Dallam) testified that Eagle Ranch did not adequately train the babysitters and
also opined that they should not have allowed the boys to venture into an area that was
not only out of their line of sight but also—as importantly—was far enough away that
they would be unable to hear voices for sounds of fear, anger, or distress. Given these
circumstances, there was at least enough evidence to create a genuine issue of material
fact as to whether T. M. II was negligently supervised.28
Alternatively, the trial court ruled that Eagle Ranch could not be held liable for
any negligence by the babysitters because they were independent contractors rather
than employees of Eagle Ranch as a matter of law. We disagree.
The statutory test as to whether someone is an independent contractor for
liability purposes is delineated in OCGA § 51-2-5(5), which provides that an employer
28
See Bull St. Church of Christ v. Jensen, 233 Ga. App. 96, 99–100(1) (504 SE2d 1) (1998) (holding that trial court properly denied defendant church’s motion for judgment notwithstanding the verdict, when evidence that church had duty to supervise four-year-old child attending class on premises but allowed child to roam free in church, resulting in child being sexually assaulted by another child); Wallace, 211 Ga. App. at 536–37(2) (reversing grant of summary judgment to defendant on plaintiff’s negligent supervision claim when evidence showed defendant allowed young child to wander off premises resulting in child being sexually assaulted and that such harm was reasonably foreseeable).
19
is liable for the negligence of a contractor “[i]f the employer retains the right to direct
or control the time and manner of executing the work or interferes and assumes control
so as to create the relation of master and servant ... .” In this respect, the Supreme
Court of Georgia has explained that
[t]he test to be applied in determining whether the relationship of the
parties under a contract for the performance of labor is that of employer
and servant, or employer and independent contractor, lies in whether the
contract gives, or the employer assumes, the right to control the time,
manner and method of executing the work, as distinguished from the
right merely to require certain definite results in conformity to the
contract.29
Significantly, whether the relationship is “one of employer/employee or
employer/independent contractor is generally a question of fact to be decided by a
jury.”30
29
Golosh v. Cherokee Cab Co., 226 Ga. 636, 637 (176 SE2d 925) (1970)
(quotation marks omitted). Accord Atkins v. MRP Park Lake, L.P., 301 Ga. App. 275, 279(1)(b) (687 SE2d 215) (2009). See RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440) (1990) (“The right to control the time of doing the job means the right to control the hours of work.”).
30
Ga. Insurers Insolvency Pool v. LogistiCare Solutions, LLC, 374 Ga. App. 208, 213(1) (912 SE2d 91) (2025) (quotation marks omitted). Accord Webster v. Campbell, 375 Ga. App. 715(1) (917 SE2d 381) (2025).
20
Here, the Mortons presented evidence that on the day of the incident, Eagle
Ranch selected and scheduled the two babysitters to watch the Mortons’ children and
two other children, including J. R., during the mandatory staff meeting and designated
the general area where they would work. The babysitters did not set their own schedule
or contract directly with the parents that day, but relied on Eagle Ranch to assign them
their work. They also had no written independent contractor agreement or other
indicator that they were operating an independent business. In addition, they were paid
directly by Eagle Ranch at an hourly rate and submitted time sheets requiring them to
sign in a space labeled “Employee Signature.” Eagle Ranch also retained the right to
discharge the babysitters’ employment at will. Given these circumstances, there is—at
the very least—a jury question as to whether the babysitters were employees of Eagle
Ranch, and the trial court erred in concluding otherwise.31
31
See Ga. Insurers Insolvency Pool, 374 Ga. App. at 213–15(1) (reversing trial court’s grant of summary judgment to transportation broker on question of whether transportation provider was an independent contract despite contract designating provider as such in light of evidence broker had the right to control the time, manner, and method of the performance of provider’s work); Atkins, 301 Ga. App. at 279–81(1)(b) (reversing summary judgment based on evidence that when one is employed generally to perform certain services for another, and there is no specific contract to do work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and the employee is not an independent contractor);
21
(e) Premises liability. The Mortons also contend the trial court erred in granting
summary judgment on their premises-liability claim. Yet again, we agree.
In its order, the trial court determined that the premises liability claim failed as
a matter of law given its earlier determination that the incident between T. M. II and
J. R. was not reasonably foreseeable. But again, given our holding in Division 1(a), the
court erred in this regard.32
(f) Negligence per se. In their enumeration of error concerning the grant of
summary judgment as to all of their negligence claims, the Mortons include the trial
court’s ruling on their negligence per se claim. But while their brief mentions statutory
mandatory reporting requirements pertaining to child sexual abuse within the context
Davis v. Beasley Timber Co., Inc., 241 Ga. App. 706, 708(1) (527 SE2d 221) (1999) (explaining that although there was evidence to support the conclusion that driver was an independent contractor, i.e., method of payment and ability to make personal stops, there was also evidence to support the conclusion that employer maintained sufficient control over the driver such that he was an employee, i.e., instructions regarding company policies and direction regarding timing and destination of hauls, and thus, summary judgment was improper).
32
See supra note 21 & accompanying text. In its appellate brief, Eagle Ranch argues that T. M. II was a licensee, and so it owed him a lower standard of care than it would to an invitee. See OCGA § 51-3-2(b) (“The owner of the premises is liable to a licensee only for willful or wanton injury.”). But the trial court reserved ruling on this issue, and therefore, we will not address it.
22
of training Eagle Ranch staff and babysitters, they do not directly address the court’s
order as to the negligence-per-se claim. More precisely, they fail to address the court’s
conclusion that the reporting requirements do not create a private right of action
against those who fail to abide by them.33 As a result, the Mortons have abandoned this
claim of error.34
(g) Punitive damages and attorney fees. The Mortons also maintain the trial court
erred in granting summary judgment as to their claims for punitive damages and
attorney fees. The court dismissed these claims solely because of its grant of summary
33
See Reece v. Turner, 284 Ga. App. 282, 286–87(2)(a) (643 SE2d 814) (2007) (explaining that OCGA § 19-7-5 does not create a private civil cause of action against those professionals who violate the reporting requirement; rather, those who violate the requirement are subject only to criminal liability).
34
See Jones v. Ga. Ports Auth., Case No. A26A1190, 2026 WL 2873295, at *2 (Ga. Ct. App. Sept. 24, 2026) (holding that “an appellant must support enumerations of error with argument and citation of authority, and mere conclusory statements are not the type of meaningful argument contemplated by our rules” and result in the abandonment of those claims of error because “they are unsupported by relevant authority and meaningful argument,” and “this matters because an appellant who abandons his claims of error cannot satisfy his burden of showing that the trial court erred.”) (citation modified); Morton v. Macatee, 345 Ga. App. 753, 757(1)(a) (815 SE2d 117) (2018) (deeming a claim of error abandoned when the appellant failed to provide sufficient citation to legal authority). We add that even if this argument had not been abandoned, we are skeptical that the trial court erred in granting summary judgment as to this claim. See supra note 33 & accompanying text.
23
judgment on the Mortons’ substantive claims of negligence, as they are derivative of
those claims. But given that we reversed the court’s ruling as to the majority of those
claims, we also reverse the grant of summary judgment as to the Mortons’ claims for
punitive damages and attorney fees.35
2. The Mortons also argue that the trial court erred in granting summary
judgment for Eagle Ranch as to their breach-of-contract claim. More precisely, they
contend that genuine issues of material fact remain as to whether Eagle Ranch’s email
outlining the terms of the severance proposal amounted to an offer that they accepted.
We disagree.
A party asserting the existence of a contract, of course, has “the burden of
proving its existence and its terms.”36 And to constitute a valid agreement, there must
be “parties able to contract, a consideration moving to the contract, the assent of the
35
See Cleveland v. Team RTR2, LLC, 359 Ga. App. 104, 110(3) (854 SE2d 756) (2021) (holding that derivative claims for punitive damages and attorney fees also survive summary judgment given the reversal of summary judgment as to underlying tort claims); Stephen A. Wheat Trust v. Sparks, 325 Ga. App. 673, 682(7) (754 SE2d 640) (2014) (same).
36
Toll Bros., Inc. v. Larkabit P’ship, L. P., 375 Ga. App. 567, 571(1) (916 SE2d 785) (2025) (quotation marks omitted). Accord Barnes v. Martin-Price, 353 Ga. App. 621, 624(1) (838 SE2d 916) (2020).
24
parties to the terms of the contract, and a subject matter upon which the contract can
operate.”37 Relevant here, Georgia contract law requires “a meeting of the minds of
the parties, and mutuality, and in order for the contract to be valid[,] the agreement
must ordinarily be expressed plainly and explicitly enough to show what the parties
agreed upon.”38 So, in determining whether the parties mutually assented to all
essential terms, the “circumstances surrounding the making of the contract, such as
correspondence and discussions, are relevant in deciding if there was a mutual assent
to an agreement.”39 And in deciding whether there was mutual assent, Georgia courts
37
Hunter v. Lowndes County Health Servs., LLC, 355 Ga. App. 367, 369(1) (844 SE2d 261) (2020) (quotation marks omitted). Accord Hunt v. Thomas, 296 Ga. App. 505, 509(2) (675 SE2d 256) (2009).
38
Bedsole v. Action Outdoor Advert. JV, LLC, 325 Ga. App. 194, 198(1) (750 SE2d 445) (2013) (quotation marks omitted). See Sidhom v. Boutros, 358 Ga. App. 432, 434–35 (855 SE2d 426) (2021) (“A valid contract requires mutual assent, and if such assent is lacking, the contract is not enforceable.”).
39
Bedsole, 325 Ga. App. at 198(1) (quotation marks omitted). Accord Frickey v. Jones, 280 Ga. 573, 575 (630 SE2d 374) (2006). See Sidhom, 358 Ga. App. at 435 (explaining that “[i]n determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable [person] in the position of the other contracting party would ascribe to the first party’s manifestations of assent” (quotation marks omitted)).
25
are “free to consider such extrinsic evidence.”40 Also, when extrinsic evidence exists
and is disputed, the question of “whether a party has assented to the contract is
generally a matter for the jury.”41 Even so, we have held that, in general, contract
disputes are “particularly well suited for adjudication by summary judgment because
construction of contracts is ordinarily a matter of law for the court.”42
For purposes of our analysis here, the emailed proposal from Eagle Ranch
outlining the terms under which the Mortons would resign from their employment is
analogous to a settlement agreement. And settlement agreements must “meet the
same requirements of formation and enforceability as other contracts.”43 Importantly,
there is no enforceable settlement between the parties “absent mutual agreement
40
Sidhom, 358 Ga. App. at 435 (quotation marks omitted). Accord Frickey, 280 Ga. at 575.
41
Bedsole, 325 Ga. App. at 198(1) (quotation marks omitted). Accord Moreno v. Smith, 299 Ga. 443, 445(1) (788 SE2d 349) (2016).
42
Toll Bros., 375 Ga. App. at 571(1) (quotation marks omitted). Accord Stankovich v. Axis Ins. Co., 365 Ga. App. 877, 877 (880 SE2d 366) (2022).
43
Grange Mut. Cas Co. v. Woodard, 300 Ga. 848, 852(2)(a) (797 SE2d 814) (2017) (quotation marks omitted). Accord Simmons v. Bates, 366 Ga. App. 410, 415(1) (883 SE2d 151) (2023).
26
between them.”44 And crucially, an answer to an offer will not amount to an
acceptance, resulting in a contract, unless it is “unconditional and identical with the
terms of the offer.”45 So, to constitute an agreement, the offer “must be accepted
unequivocally and without variance of any sort.”46
As discussed above, after Eagle Ranch’s failed attempts at reconciliation
between the Mortons and J. R.’s family, on December 16, 2021, Eagle Ranch informed
the Mortons that they could continue their employment under a period of close
supervision or resign and accept a severance package that would be provided in writing
later that day. And later that day, Eagle Ranch’s human-resources officer, Bob Baker,
emailed the Mortons the financial terms of the proposed severance package, which
44
Woodard, 300 Ga. at 852(2)(a) (quotation marks omitted). See Pritchard v. Mendoza, 357 Ga. App. 283, 287 (850 SE2d 472) (2020) (noting that “apart from ... mutual agreement, no enforceable contract exists between the parties” (punctuation omitted)).
45
Woodard, 300 Ga. at 852(1)(a) (quotation marks omitted). Accord Frickey, 280 Ga. at 574.
46
Woodard, 300 Ga. at 852(1)(a) (quotation marks omitted). Accord Frickey, 280 Ga. at 574. As our Supreme Court has rightly noted, “[t]hese basic contract law principles find their origin in the common law.” Woodard, 300 Ga. at 853(1)(a). See also 2 William Blackstone, Commentaries of the Laws on England 899 n.19 (William Draper Lewis ed., 1902) (noting that “an implied contract only differs from an express contract in the mode of proof; both equally proceed upon the mutual agreement of the parties, and cannot exist without it”).
27
provided $21,250 for 6 months of normal salary continuation; $15,350 for 6 months of
housing support; $11,650 for 6 months of reimbursable COBRA health cost; and
$3,750 for 1 year of counseling support for T. M. II for a total of $52,000. Three days
later, the Mortons responded via email, stating: “Per our conversation this morning,
of the two options that were presented to us on 12/16/21, we have decided to resign
from our position from Eagle Ranch as of 12/19/21.”
But on December 20, 2021, Jeffrey Morton sent a another email, stating as
follows:
I know that the salary portion of [the package] is taxable, but the housing,
insurance, and counseling portion should be tax free.
It was tax free as an employee. We are trying to secure housing, so we
would like to get the tax free portion of the check cut now so we can
prove that we have the funds for housing since we cannot provide proof
of employment.
If the salary check is cut before 1/1/22 we will have to pay taxes on it this
year. I would like that portion of the check to be cut after 12/31/21.
Also, I want to ensure that we will be paid for the 19 days that we worked
in December, the cell phone allowance for the past 6 months, and the
retirement check from 2021.
28
Later, in a phone call, Baker informed the Mortons that their insurance and cell phone
allowance would be paid through the end of that year, and that they would receive a
retirement contribution on the same terms as other employees. Baker also explained
that only the counseling funds would be paid in a lump-sum, the salary continuation
and housing support would be paid over six months, and none of the compensation
could be paid tax free. The Mortons then responded with a request that they receive
$11,750 in cash “grossed up” instead of COBRA, and Baker replied that he would
discuss this request with the executive director.
On December 21, 2021, Baker sent the Mortons an email stating that the
separation agreement was attached and needed to be signed no later than December
28, 2021. The attached separation agreement included none of the additional financial
terms the Mortons requested, and it included a release of any claims. The Mortons did
not sign the agreement, but nonetheless, resigned their employment and left the
following month.
In granting summary judgment for Eagle Ranch, the trial court concluded there
was never a meeting of the minds between the two parties as to the essential terms of
the proposed severance package. More precisely, the court found that the Mortons’
response to Eagle Ranch’s initial offer altered the terms by seeking tax-free payments
29
and lump-sum payments. Even so, the Mortons argue their response only sought
clarification of the terms. This argument is a nonstarter.
The Mortons’ response varied significantly from Eagle Ranch’s initial offer and
added several conditions. And a purported acceptance of an offer that “varies even one
term of the original offer is a counteroffer.”47 As a result, the Mortons’ response
amounted to a counteroffer, which Eagle Ranch never accepted; and so, no valid
contract was formed between the parties.48 The trial court did not err, then, in granting
summary judgment as to this claim.
3. Lastly, the Mortons argue the trial court erred in limiting the scope of
discovery regarding prior instances of sexual abuse at Eagle Ranch and prohibiting
discovery of a mental-health evaluation of J. R. We agree the court erred in narrowing
the scope of the Mortons’ discovery requests, but as to its ruling on J. R.’s evaluation,
47
Pritchard, 357 Ga. App. at 288 (quotation marks omitted).
48
See Patrick v. Kingston, 370 Ga. App. 570, 577–78(1) (898 SE2d 560) (2024) (holding that payment to administrator of motorist’s estate by driver’s insurer of liability limits under driver’s policy and release varied from term of administrator’s offer of settlement, and thus did not constitute acceptance of settlement offer); Bennett v. Novas, 364 Ga. App. 364, 368–70(a) (874 SE2d 871) (2022) (explaining that insurer’s letter responding to plaintiff’s settlement offer did not unequivocally accept essential term of offer that only driver and insurer be released, and thus, letter was a counteroffer, even though insurer included the word “clarify” in letter).
30
we cannot discern whether the court analyzed that issue under the relevant case
authority, so we remand for reconsideration of that ruling in a manner consistent with
this opinion.
The scope of discovery under the Civil Practice Act is “broad.”49 Toward that
end, OCGA § 9-11-26(b)(1) provides: “Parties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the pending
action, whether it relates to the claim or defense of the party seeking discovery or to
the claim or defense of any other party ... .” Significantly, trial courts “should and
ordinarily do interpret ‘relevant’ very broadly so as to remove the potential for secrecy
and to reduce the element of surprise at trial.”50 And it is not a ground for objection
that “the information sought will be inadmissible at the trial if the information sought
appears reasonably calculated to lead to the discovery of admissible evidence.”51
49
Gen. Motors, LLC v. Buchanan, 313 Ga. 811, 814(2)(a) (874 SE2d 52) (2022). See Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 210(2) (538 SE2d 441) (2000) (“[T]he discovery procedure is to be construed liberally in favor of supplying a party with the facts.”).
50
Buchanan, 313 Ga. at 814(2)(a) (quotation marks omitted). Accord Bowden v. The Medical Center, Inc., 297 Ga. 285, 291–92(2)(a) (773 SE2d 692) (2015).
51
Buchanan, 313 Ga. at 814–15(2)(a) (quotation marks omitted). Accord Bowden, 297 Ga. at 290(2)(a).
31
Still, trial courts “may limit discovery in multiple ways, including for ‘good
cause shown’ under OCGA § 9-11-26 (c).”52 Specifically, OCGA § 9-11-26(c)
provides:
Upon motion by a party or by the person from whom discovery is sought
and for good cause shown, the court in which the action is pending or,
alternatively, on matters relating to a deposition, the court in a county
where the deposition is to be taken may make any order which justice
requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense[.]
In this respect, our appellate courts have repeatedly explained that we will not reverse
a trial court’s ruling on discovery matters unless there is a clear abuse of discretion.53
And as to protective orders, a court will only abuse its discretion when “its ruling is
unsupported by any evidence of record or when that ruling misstates or misapplies the
52
Buchanan, 313 Ga. at 815(2)(a).
53
See id. ((explaining that Court has “repeatedly held that it will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion” (quotation marks omitted)).
32
relevant law.”54 With this in mind, we turn now to the relevant discovery matters
before us.
(a) Scope of sexual abuse discovery. As noted above, the trial court limited the
Mortons’ discovery requests regarding prior instances of sexual abuse at Eagle Ranch
to only instances in the five-year period immediately preceding the incident between
J. R. and T. M. II; involving children who were under the age of 14; and involving at
least one Staff Kid. The Mortons agreed to the “five-year look-back period” and that
any information should be subject to a protective order ensuring confidentiality. But
they maintain that the court’s order unduly restricted their ability to obtain relevant
evidence.
In support of this discovery limitation, the trial court determined, at least
implicitly, that broadening the scope (as the Mortons advocated) would be
burdensome and irrelevant. But the court’s relevancy concern in excluding incidents
of peer-on-peer sexual abuse involving Ranch Kids is misguided in the same way as its
54
Smith v. Northside Hosp., Inc., 347 Ga. App. 700, 703 (820 SE2d 758) (2018) (quotation marks omitted). See Alexander Props. Grp. Inc. v. Doe, 280 Ga. 306, 307(1) (626 SE2d 497) (2006) (“The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court, and the exercise of that discretion is reviewed on appeal for abuse.” (citation omitted)).
33
conclusion that such incidents had no bearing on foreseeability—again falling prey to
the rigidity trap of which Carmichael warns.55 Given our holding that incidents of sexual
abuse among Ranch Kids could not be excluded in considering foreseeability, we
conclude that such evidence would be highly relevant, and the court abused its
discretion in determining otherwise.56
(b) Mental health evaluation. Under OCGA § 24-5-501(a), certain admissions and
communications are excluded from evidence on the grounds of public
policy—including communications between a psychiatrist and patient, as well as
55
See Carmichael, 316 Ga. at 735(II)(D)(2) (warning lower courts against employing foreseeability analysis that is too rigid not consistent with a totality-of-the-circumstances approach). See also supra note 21 & accompanying text.
56
See Alexander Props. Grp., 280 Ga. at 308 (holding that, in granting protective order to prevent discovery of videotape of sexually explicit crime, trial court misapplied the law and thus must be reversed); McGinn v. McGinn, 273 Ga. 292, 293 (540 SE2d 604) (2001) (reversing trial court’s grant of broad protective order because discovery of evidence of estate’s value was relevant and any confidentiality concerns could be addressed with suitable protective order). See also Bowden, 297 Ga. at 296(2)(b) (noting the availability of one form of proof does not make other forms of proof irrelevant under OCGA § 9-11-26(b)(1)); Mead Corp. v. Masterack, 243 Ga. 213, 214 (253 SE2d 164) (1979) (holding that when “the protective orders entered by the trial court have the effect of frustrating and preventing legitimate discovery, an abuse of discretion occurs”).
34
communications between a licensed psychologist and patient.57 And this mental-health
privilege remains “inviolate even though the patient’s care and treatment or the nature
or extent of the patient’s injuries are put in issue in a civil proceeding.”58 That said, all
psychiatric records are “not absolutely privileged.”59 More precisely, when no mentalhealth treatment is “given or contemplated—for instance, when a court appoints a
mental health provider to evaluate a person’s mental state as opposed to providing
treatment—the mental health privilege is inapplicable.”60
Here, the trial court ruled that it would not compel production of J. R.’s mentalhealth evaluation because the document was privileged and such privilege had not been
waived. In response, the Mortons argue Eagle Ranch requested that J. R. undergo the
57
See OCGA § 24-5-501(a)(5), (6). See also OCGA § 43-39-16 (“The
confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.”).
58
Cooksey v. Landry, 295 Ga. 430, 432–33(2) (761 SE2d 61) (2014) (citations omitted). Accord Brown v. Howard, 334 Ga. App. 182, 186(1) (778 SE2d 810) (2015).
59
Brown, 334 Ga. App. at 186(1) (quotation marks omitted).
60
Id. at 187(1) (quotation marks omitted). See State v. Herendeen, 279 Ga. 323, 326 (613 SE2d 647) (2005) (explaining that treatment or contemplation thereof is the prerequisite necessary to invoke mental health privilege).
35
evaluation not for treatment purposes, but to determine whether he had any behavioral
issues that could have led to the incident with T. M. II. As a result, they claim the
evaluation was not privileged.
Based on our review of the trial court’s order, we can only speculate on whether
the court reviewed the evaluation or other evidence to determine whether the
evaluation was conducted for purposes of treatment rather than assessment of any
behavioral issues. So, we vacate the protective order pertaining to J. R.’s evaluation
and remand for the court to conduct an in camera review in a manner consistent with
this opinion.61
In summary, we reverse the trial court’s grant of summary judgment as to all of
the Mortons’ negligence claims, excepting their claim of negligence per se. But we
affirm the court’s grant of summary judgment as to the Mortons’ claim for breach of
contract. Lastly, we reverse the court’s discovery orders to the extent that they
prohibited discovery of incidents of peer-on-peer sexual abuse exclusively among
Ranch Kids, and we vacate its order prohibiting discovery of J. R.’s mental-health
61
See Herendeen, 279 Ga. at 328 (remanding case for in camera review to determine what documents were protected by the mental health privilege); Brown, 334 Ga. App. at 188(1) (same).
36
evaluation and remand for further review of that issue in a manner consistent with this
opinion.
Judgment affirmed in part; reversed in part; vacated in part and case remanded.
Gobeil and Pipkin, JJ., concur.
37