General Consideration

A tort is the unlawful violation of a private legal right by reason of which some special damage accrues to the individual. Parsons v. Foshee, 80 Ga. App. 127 , 55 S.E.2d 386 (1949); First Fed. Sav. Bank v. Fretthold, 195 Ga. App. 482 , 394 S.E.2d 128 (1990).

A tort is an injury inflicted otherwise than by mere breach of contract; or, more accurately, a tort is one’s disturbance of another in rights which the law has created either in the absence of contract, or in consequence of a relation which a contract has established between the parties. Postal Telegraph-Cable Co. v. Kaler, 65 Ga. App. 641 , 16 S.E.2d 77 (1941).

A suit will be treated as a tort action when recovery is based on breach of duty, and not on contract. Bates v. Madison County, 32 Ga. App. 370 , 123 S.E. 158 (1924).

In order for tort action to lie, there must be injury to the plaintiff, i.e., some initiating event which is the result of the defendant’s negligence and brings that wrongful conduct to light. Cotton States Mut. Ins. Co. v. Crosby, 244 Ga. 456 , 260 S.E.2d 860 (1979).

Violation of duty required. —

There must be both a breach of duty and damage because of such breach before there can be a recovery upon the official bond of the clerk of the superior court. Georgia Properties Co. v. Nisbet, 42 Ga. App. 338 , 156 S.E. 298 (1930).

It is essential to maintain an action in tort that there must be a duty from the defendant to the plaintiff, and a violation of such duty. Knight v. Atlantic Coast Line R.R., 4 F. Supp. 713 (D. Ga. 1933), aff'd, 73 F.2d 76 (5th Cir. 1934).

Third-party does not owe a duty to an employer to refrain from injuring the employer’s employee. Traina Enters., Inc. v. Racetrac Petro., Inc., 241 Ga. App. 18 , 525 S.E.2d 712 (1999), cert. denied, No. S00C0500, 2000 Ga. LEXIS 295 (Ga. Mar. 24, 2000).

When an auctioneer sought damages from the auction company the auctioneer worked for and its principal because the auctioneer was arrested in another state for contracting and advertising for an auction without a license, the auction company and principal were entitled to summary judgment because the auctioneer did not show the auction company or principal violated any duty owed to the auctioneer which caused the auctioneer’s injury, as the auctioneer knew, when the auctioneer advertised and contracted for the auction in the other state; further, the auction company did not have a license to conduct an auction in that state, so the auctioneer did not establish the elements necessary to recover for the auction company’s or principal’s alleged tortious conduct under O.C.G.A. § 51-1-1 . Morris v. Gavin, Inc., 268 Ga. App. 771 , 603 S.E.2d 1 (2004), cert. denied, No. S04C2049, 2004 Ga. LEXIS 975 (Ga. Oct. 25, 2004).

Bank’s alleged actions in paying a check over a forged endorsement, depositing the funds in new accounts, and failing to observe reasonable commercial standards, were not violations of any legal right of, or duty owed to, the payee of the check who had never received delivery of the check, and the payee had suffered no damages from these actions. Thus, the actions did not give rise to a tort claim under O.C.G.A. §§ 51-1-1 , 51-1-6 , or 51-1-8 . Jenkins v. Wachovia Bank, Nat'l Ass'n, 309 Ga. App. 562 , 711 S.E.2d 80 (2011).

City’s distribution of federal HUD money. —

Since the city’s financing activity in distributing federal HUD money did not extend beyond that of a conventional construction financing authority, the court did not err in granting summary judgment to the city in an action for damages arising from an incomplete and defective renovation construction to the home under a home improvement grant. White v. City of Atlanta, 248 Ga. App. 75 , 545 S.E.2d 625 (2001).

Rightful and proper exercise of lawful power or authority cannot afford basis for action. Louisville & N.R.R. v. Jackson, 139 Ga. 543 , 77 S.E. 796 (1913).

Violation of mere moral obligation insufficient. —

Law does not yet attempt to guard the peace of mind, or the happiness of every one by giving recovery of damages for mental anguish for a violation produced by a mere moral wrong; thus, if mental pain and anguish results from mere violation of a mere moral obligation, there can be no recovery in tort. Anderson v. Fussell, 75 Ga. App. 866 , 44 S.E.2d 694 (1947).

Aiding and abetting breach of fiduciary duty. —

Georgia law does not recognize the tort of aiding and abetting a breach of fiduciary duty, and a Georgia court faced with the issue would not be likely to create such a cause of action since the imposition of aider and abettor liability for such breaches essentially extends fiduciary obligations beyond the scope of the confidential or special relationship upon which these duties are based. Munford, Inc. v. Munford, 188 Bankr. 860 (D. Ga. 1994), aff'd in part and rev'd in part, 98 F.3d 604 (11th Cir. 1996), aff'd, 97 F.3d 456 (11th Cir. 1996), aff'd, 97 F.3d 449 (11th Cir. 1996).

Georgia law does not recognize spoliation of evidence as a separate tort. Gardner v. Blackston, 185 Ga. App. 754 , 365 S.E.2d 545 (1988).

Elements of damage arising from tort. —

It is elementary that damage may consist of several items caused by the general wrong or tort. For example, pain and suffering, loss of earning capacity and medical expenses, resulting from and caused by the negligence of a defendant in causing an injury to the person of another. Gloss v. Jacobs, 86 Ga. App. 161 , 71 S.E.2d 253 (1952).

Torts Related to Contract

This section states that if a duty arises out of a contract, a plaintiff may not convert that action into one sounding in tort. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

Tort action may arise from misfeasance of duty. —

In cases alleging misfeasance or the negligent performance of the contract, a cause of action ex delicto may be had. Mauldin v. Sheffer, 113 Ga. App. 874 , 150 S.E.2d 150 (1966).

There are certain classes of contracts which create a relation from which the law implies duties, a breach of which will constitute a tort, and in such cases an injured party may sue either for breach of the contract or in tort for breach of the implied duty. This rule applies in certain contractual relations between principal and agent, bailor and bailee, attorney and client, physician and patient, carrier and passenger or shipper, master and servant, and similar well-recognized relations; but it is not every contractual relation which involves a public duty, the breach of which will support an action in tort. American Oil Co. v. Roper, 64 Ga. App. 743 , 14 S.E.2d 145 (1941).

There is no bar to bringing a tort action for the violation of a duty flowing from relations between the parties which were created by contract. City of Douglas v. Johnson, 157 Ga. App. 618 , 278 S.E.2d 160 (1981).

If the result of a contract is to create a relationship between the parties, and there are certain duties which the law attaches to that relationship, the breach of one of those duties may give rise to an action in tort. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

Duty must be imposed by law. —

In order to maintain an action ex delicto because of a breach of duty growing out of a contractual relation, the breach must be shown to have been a breach of a duty imposed by law and not merely the breach of a duty imposed by the contract itself. Mauldin v. Sheffer, 113 Ga. App. 874 , 150 S.E.2d 150 (1966); Sutker v. Pennsylvania Ins. Co., 115 Ga. App. 648 , 155 S.E.2d 694 .

Action in tort may be based on a duty imposed by law in consequence of a contractual relation between the parties. In such a case the action is in no sense based on the contract, especially if none of the expressed provisions are recited, and there is no allegation that any of its expressed provisions were violated, but when the allegation is that the defendant company failed to transmit and deliver the message with the impartiality, good faith, and due diligence required by law. Postal Telegraph-Cable Co. v. Kaler, 65 Ga. App. 641 , 16 S.E.2d 77 (1941).

“Duty imposed by law” as used in this context means either a duty imposed by a valid statutory enactment of the General Assembly or a duty imposed by a recognized common-law principle declared in the reported decisions of the appellate courts of the state or jurisdiction involved. Sutker v. Pennsylvania Ins. Co., 115 Ga. App. 648 , 155 S.E.2d 694 .

To maintain an action in tort because of a breach of duty growing out of a contractual relation, the breach must be shown to have been a breach of duty imposed by statute or a duty imposed by a recognized common-law principle. Deacon v. Deacon, 122 Ga. App. 513 , 177 S.E.2d 719 (1970).

Appellate court rejected an insurer’s assertion that its insured’s individual tort claims failed because a tort was the unlawful violation of a private legal right other than a mere breach of contract, express or implied, as the duties the insured alleged that the insurer violated did not arise merely from contract but were also imposed by O.C.G.A. § 33-31-9 . J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372 , 634 S.E.2d 123 (2006), cert. denied, No. S06C2008, 2006 Ga. LEXIS 916 (Ga. Oct. 30, 2006).

Contract applicable only to raise duty. —

Tort is dependent on the contract only to the extent necessary to raise the duty, and a suit will be treated as a tort action when the recovery is placed on a breach of duty and not on a contract. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935); Simmons v. May, 53 Ga. App. 454 , 186 S.E. 441 (1936).

Tort claim encompassed by breach of contract claim. —

Unpublished decision: In a case in which a car buyer appealed a district court’s entry of summary judgment in favor of the lender because the buyer’s theft claim was encompassed by the buyer’s breach-of-contract claim, it was unnecessary to address whether the buyer had a cause of action under tort law. O.C.G.A. § 51-1-1 provided that a tort was the unlawful violation of a private legal duty other than a mere breach of contract, express or implied. Goia v. Citifinancial Auto, 499 Fed. Appx. 930 (11th Cir. 2012).

Breach of contract is not tort. —

Breach of an executory contract, into which a railroad company was under no legal duty to enter, is not a tort. Louisville & N.R.R. v. Spinks, 104 Ga. 692 , 30 S.E. 968 (1898); Howard v. Central of Ga. Ry., 9 Ga. App. 617 , 71 S.E. 1017 (1911).

An action in tort may not be maintained when the neglect of duty complained of, as distinguished from the negligent performance of duty, is specifically provided for by the contract itself. Monroe v. Guess, 41 Ga. App. 697 , 154 S.E. 301 (1930).

If there is no liability except that arising out of a breach of the express terms of the contract, the action must be in contract, and an action in tort cannot be maintained. American Oil Co. v. Roper, 64 Ga. App. 743 , 14 S.E.2d 145 (1941); Rhine v. Sanders, 100 Ga. App. 68 , 110 S.E.2d 128 (1959); Mauldin v. Sheffer, 113 Ga. App. 874 , 150 S.E.2d 150 (1966).

While it is true that the violation of some private obligation by which damage accrues, which is not the result of a mere neglect of duty expressly or impliedly provided for by the contract itself, can be treated as a tort and affords a right or cause of action, the principle cannot be applied so as to authorize an interpretation that the former suit sounded in tort, for the reason that the wrong complained of was simply the failure of the defendants to comply with their clearly implied duty under the contract to surrender the alleged collateral upon a proper tender of the alleged indebtedness being made. Spence v. Erwin, 200 Ga. 672 , 38 S.E.2d 394 (1946).

It is not every breach of contract that gives a cause of action in tort; and so, when the breach complained of is simply the neglect of a duty such as is expressly provided for by the contract itself, the action will be construed and treated as one brought ex contractu. This principle is applicable also when the breach complained of is simply the neglect of a duty provided by the contract by implication, either of law or of fact. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

Mere nonfeasance of duty insufficient. —

Nonfeasance or the mere failure to perform a contract at all affords no basis for an action ex delicto, even though the failure to perform may have been characterized as negligent. Mauldin v. Sheffer, 113 Ga. App. 874 , 150 S.E.2d 150 (1966); Lane v. Corbitt Cypress Co., 215 Ga. App. 388 , 450 S.E.2d 855 (1994).

When there is no special relationship beyond the mere contractual one, a failure to perform in accordance with its terms will not constitute a tort as to the other contracting party. Waddey v. Davis, 149 Ga. App. 308 , 254 S.E.2d 465 (1979).

Trial court erred in granting the defendants’ joint motion for judgment on the pleadings as a chief executive officer (CEO) set forth a breach of fiduciary duty claim because, although a majority owner of an employer could terminate the CEO’s contract without cause, the founders of the employer were bound by an employment contract, which purported to establish a confidential relationship. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807 , 619 S.E.2d 481 (2005).

Absent special relationship, misfeasance/nonfeasance distinction controls in deciding if the harm done to the plaintiff will permit a cause of action in negligence as well as in contract; in the absence of bodily injury or damage to property, only a cause of action in contract is available. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

Contract status alone insufficient to create tort action. —

That a party occupies a status that sometimes gives rise to professional duties, does not transform all contract disagreements into torts based on a professional relationship. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

When claim lay for breach of contract for failure to pay commissions, no action for conversion of the money owed under that contract was maintainable. Faircloth v. A.L. Williams & Assocs., 206 Ga. App. 764 , 426 S.E.2d 601 (1992), cert. denied, No. S93C0553, 1993 Ga. LEXIS 349 (Ga. Apr. 8, 1993).

Claim was not for breach of contract, but for intention never to pay. —

Fraud claim survived summary judgment because there was sufficient evidence that the corporation promised the plaintiff a substantial sum if a certain manufacturer began to factory fill a line of vehicles with the corporation’s synthetic oil, that it was reasonable to rely on that promise, and that it could be inferred that the corporation never had any intention to “work out” the compensation plan. Morrison v. Exxonmobil Corp. Constr. Millwright, Inc., No. 1:03-CV-140, 2005 U.S. Dist. LEXIS 36117 (M.D. Ga. Sept. 28, 2005).

Claim was not for breach of contract, but for fraud and breach of fiduciary duty. —

In a breach of fiduciary duty and fraud action, whether the jury verdict winner, an investment company, was a party to the three contracts that kickbacks were paid under was not relevant to the contract’s claims for breach of fiduciary duty and fraud because those claims were in tort, not contract. Wright v. Apt. Inv. & Mgmt. Co., 315 Ga. App. 587 , 726 S.E.2d 779 (2012), cert. denied, No. S12C1410, 2012 Ga. LEXIS 915 (Ga. Oct. 29, 2012).

Employer’s duty to pay servant, contractual duty only. —

When a person is employed by a corporation for wages, and after the employee has earned wages under the contract of employment, and the employer refuses to pay the employee the wages earned without legal process and in wanton disregard of the employee’s rights and against the employee’s will, the only recourse available to the employee is an action for a breach of the contract of employment, as the only duty placed upon the employer arises solely by reason of the contract. Mitchell v. Southern Dairies, Inc., 77 Ga. App. 771 , 49 S.E.2d 912 (1948).

Contractor not liable when instructed to delay work. —

When the work being undertaken is at the instance of the employer—and particularly when the alleged tortfeasor is working under contract with the employer and must perform the work subject to the employer’s requirements as to time and place of performance—and when the employer unilaterally instructs the other party (the contractor) to delay completion of the work until some later time which is convenient for the employer, the contractor cannot be held liable for an injury to an employee which arguably may be a result of the failure to complete the work contracted for. Church v. SMS Enters., 186 Ga. App. 791 , 368 S.E.2d 554 (1988).

Tortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract. Jet Air, Inc. v. National Union Fire Ins. Co., 189 Ga. App. 399 , 375 S.E.2d 873 (1988).

Unjust enrichment claim not a tort. —

Trial court properly granted a judgment on the pleadings for a limited liability company, its founders, and a corporation as a president was attempting to treat an unjust enrichment claim like a tort; a claim for unjust enrichment was not a tort, but an alternative theory of recovery if a contract claim failed, and the parties had a contract and the unjust enrichment claim failed as a matter of law. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807 , 619 S.E.2d 481 (2005).

Trial court properly entered judgment on the pleadings for a majority owner of an employer on a chief executive officer’s tortious interference with an employment contract claim as the owner had a financial interest in the employer, which was a party to the contract. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807 , 619 S.E.2d 481 (2005).

Trial court properly entered judgment on the pleadings for a majority owner of an employer on a tortious interference with prospective employment claim brought by a chief executive officer (CEO) as there was no evidence that the CEO had an employment offer from a corporation; the claim was predicated on the CEO’s termination by the employer and the owner was not a stranger to the employment contract. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807 , 619 S.E.2d 481 (2005).

Pleading and Practice

Elements of complaint. —

All that a plaintiff in tort need allege to withstand the attack of a general demurrer (now motion to dismiss) is the factum of the duty, whether by contract or otherwise, a violation of that duty, and damages resulting from that violation. Parsons v. Foshee, 80 Ga. App. 127 , 55 S.E.2d 386 (1949); Atlanta Paper Co. v. Sigmon, 82 Ga. App. 730 , 62 S.E.2d 363 (1950).

Characterization of action based on contents of pleadings. —

Nature of an action is to be determined, not by the designation of the pleader, but by the intrinsic contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the kind of relief sought. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

Sufficiency of pleadings. —

Petition alleging that the lessor in a contract of rental had broken several of the contract’s terms with the willful and malicious purpose of destroying the business of the lessee, and had thus destroyed the business, did not set forth an actionable tort, the proper remedy of the lessee being an action for breach of contract. Georgia Kaolin Co. v. Walker, 54 Ga. App. 742 , 189 S.E. 88 (1936).

Petition sounding in tort which fails to allege an actionable negligence and which fails to allege any physical injury to the person or any pecuniary loss, does not set forth a cause of action, and is subject to dismissal. Anderson v. Fussell, 75 Ga. App. 866 , 44 S.E.2d 694 (1947).

When all the damages claimed resulted from the trespass committed, which was a continuing one and which the plaintiff was entitled to plead, the declaration was not subject to special demurrers (now motion to dismiss). Gloss v. Jacobs, 86 Ga. App. 161 , 71 S.E.2d 253 (1952).

When duty arose by reason of contract, but it was the violation of the duty, and not the violation of the contract, on which the plaintiff laid the plaintiff’s case, the petition set out a cause of action. Frank Graham Co. v. Graham, 90 Ga. App. 840 , 84 S.E.2d 579 (1954).

Original petition set out a specific cause of complaint sufficiently to be amendable, since, if the petition was defective in any wise, the petition was only in that the petition omitted to allege sufficiently facts essential to raise the duty or obligation in the cause of action, and the trial court erred in holding that there was not enough in the original petition to amend by. Cannon v. Hood Constr. Co., 91 Ga. App. 20 , 84 S.E.2d 604 (1954).

When the plaintiff’s petition is based on the defendant’s alleged nonfeasance of duty provided by contract and not on the defendant’s misfeasance, it does not set forth a cause of action ex delicto. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

Contractor’s complaint averring that its expectations arising under the contract between contractor and roofing subcontractor and made applicable to supplier by its agreement with roofing subcontractor were not met, the basis of which was the alleged failure of supplier to deliver roofing material which met the specifications in the contract (“negligent delivery”), not asserting that the roofing material supplied damaged other portions of the building, did not state a claim for damages actionable under a theory of negligence. A.J. Kellos Constr. Co. v. Balboa Ins. Co., 495 F. Supp. 408 (S.D. Ga. 1980).

Denial of summary judgment based on any type of tortious interference with a contract right to exercise an option to purchase was in error since both the original and the amended complaint revealed a lack of compliance with the notice requirement regarding any alleged tortious interference of contract. Bowling v. Gober, 206 Ga. App. 38 , 424 S.E.2d 335 (1992).

General Consideration

Negligence is defined generally as the absence of the exercise of ordinary diligence. Harden v. United States, 485 F. Supp. 380 (S.D. Ga. 1980), aff'd in part, vacated in part, 688 F.2d 1025 (5th Cir. 1982).

Actionable negligence involves: first, the existence of a duty; second, the omission to exercise ordinary and reasonable care in connection therewith; and, third, injury resulting in consequence thereof. Patillo v. Thompson, 106 Ga. App. 808 , 128 S.E.2d 656 .

Negligence is either an act or omission. —

Negligence consists either of the omission to do an act which ought to be done, or the omission to perform properly what one undertakes to do. Womack v. Central Ga. Gas Co., 85 Ga. App. 799 , 70 S.E.2d 398 (1952); Mull v. Aetna Cas. & Sur. Co., 226 Ga. 462 , 175 S.E.2d 552 (1970).

Negligence, to be actionable, must be part of the proximate cause of the plaintiff’s injury. If the injury would have occurred notwithstanding the acts of negligence of the defendant, there can be no recovery. Hollingsworth v. Harris, 112 Ga. App. 290 , 145 S.E.2d 52 (1965).

Synonymous terms. —

Carelessness and negligence are synonymous terms. Folds v. City Council, 40 Ga. App. 827 , 151 S.E. 685 (1930).

Proper care, reasonable care, ordinary care and diligence are synonymous and proper care is the equivalent of ordinary care. Georgia Power Co. v. Whitlock, 48 Ga. App. 809 , 174 S.E. 162 (1934).

Due care, ordinary care, and ordinary diligence are interchangeable terms. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948).

Gross negligence distinguishable. —

Negligence, including gross negligence, and willful and wanton misconduct are not construed as synonymous terms. Southern Ry. v. Kelley, 52 Ga. App. 137 , 182 S.E. 631 (1935).

Negligence relative to particular circumstances. —

Standard of ordinary and reasonable care is invariable, such care being that of every prudent man. But the case of a prudent man varies according to circumstances dependent upon the degree of danger. What is the precise legal intent of the term “ordinary care” must, in the nature of things, depend upon the circumstances of each individual case. It is a relative and not an absolute term. Western & A.R.R. v. Young, 81 Ga. 397 , 7 S.E. 912 (1888); Central R.R. & Banking Co. v. Ryles, 84 Ga. 420 , 11 S.E. 499 (1889).

Ordinary care is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. Southern Ry. v. Hill, 139 Ga. 549 , 77 S.E. 803 (1913); Goldsmith v. Hazelwood, 93 Ga. App. 466 , 92 S.E.2d 48 (1956).

What is ordinary diligence must depend upon the circumstances of each case; it is a relative and not an absolute term; and the care of a prudent man varies according to the circumstances dependent upon the degree of danger. Brown v. Mayor of Athens, 47 Ga. App. 820 , 171 S.E. 730 (1933).

Law imposes upon a person the duty to exercise ordinary care to protect oneself against the negligence of another; if there is little reason to apprehend danger, then little care is due to be exercised, and, under such circumstances, little care would be “ordinary care” or “due care,” or such care as an ordinarily prudent person would exercise under the same or similar circumstances. Hathcox v. Atlanta Coca-Cola Bottling Co., 50 Ga. App. 410 , 178 S.E. 404 (1935).

Ordinary care simply requires the exercise of due care under the circumstances, which involves a degree of caution commensurate with the danger involved. Lunsford v. Childs, 107 Ga. App. 210 , 129 S.E.2d 398 (1963).

Due diligence is relative, a question of degree, and to determine due diligence the circumstances of each case must be considered. R.L. Kimsey Cotton Co. v. Pacific Ins. Co., 224 Ga. 249 , 161 S.E.2d 315 (1968).

Same standard applies regarding both persons and property. —

While this section has more direct reference to care of property than care to avoid the consequences to the person arising from negligence, yet the underlying idea in both instances is what would every prudent man have done under the same or similar circumstances. Nashville, C. & St. L. Ry. v. Peavler, 134 Ga. 618 , 68 S.E. 432 (1910).

Ordinary care not absolute. —

One is not liable for injury to another when one’s duty is that of ordinary care merely because of a failure to exercise that degree of care which would have absolutely prevented injury. Lunsford v. Childs, 107 Ga. App. 210 , 129 S.E.2d 398 (1963).

Plaintiff must not be contributorily negligent. —

One who recklessly tests an observed and clearly obvious danger may under the particular facts be held to have failed to exercise “that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances” and is guilty of contributory negligence, which will be deemed the proximate cause of one’s resulting injury and in the absence of willful or wanton misconduct by the defendant will preclude one’s recovery. Laseter v. Clark, 54 Ga. App. 669 , 189 S.E. 265 (1936).

Plaintiff’s negligence no bar to recovery unless proximate cause of injury. —

Unless a petition construed most strongly against the pleader shows affirmatively that the pleader’s negligence was the sole proximate cause of the pleader’s injury or that the pleader was guilty of the failure to exercise ordinary care to avoid the defendant’s negligence after it was discovered by the pleader and that failure was the proximate cause of the pleader’s injury, the pleader will not be barred of a recovery merely because the petition shows that may have been guilty of some act of negligence per se. Purcell v. Hill, 107 Ga. App. 85 , 129 S.E.2d 341 (1962).

Affirmative defense of assumption of risk bars the plaintiff from recovering on a negligence claim if it is established that the plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not; a defendant asserting an assumption of the risk defense must establish that the plaintiff: (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed oneself to those risks. Sones v. Real Estate Dev. Group, Inc., 270 Ga. App. 507 , 606 S.E.2d 687 (2004), cert. denied, No. S05C0588, 2005 Ga. LEXIS 268 (Ga. Mar. 28, 2005).

Negligence per se. —

Negligence per se and negligence as a matter of fact differ only in the mode in which they are proved. In one case the law itself establishes negligence when a certain act or omission is proved and in the other the question of whether a proved fact constitutes negligence is left for a determination of the jury. Purcell v. Hill, 107 Ga. App. 85 , 129 S.E.2d 341 (1962).

Applicability to Specific Cases

1.Automobiles

Rate of speed. —

Evidence that defendant, driving at 25 m.p.h., turned around briefly when children in the back seat spilled a bottle of milk, causing the car to strike a telegraph pole, did not show that defendant was guilty of gross negligence. Tucker v. Andrews, 51 Ga. App. 841 , 181 S.E. 673 (1935).

Reasonable care towards pedestrians. —

Pedestrian and a person with an automobile have each the right to use the public highway; but the right of an operator of an automobile upon the highway is not superior to the right of the pedestrian, and it is the duty of each to exercise one’s right with due regard to the corresponding rights of the other; the driver of an automobile is bound to use reasonable care, and to anticipate the presence on the streets of other persons having equal rights with the driver to be there; and a pedestrian, when lawfully using the public highways, is not bound to be continually looking and listening to ascertain if cars are approaching, under the penalty that if the pedestrian fails to do so, and is injured, it must be conclusively presumed that the pedestrian was negligent. Eubanks v. Mullis, 51 Ga. App. 728 , 181 S.E. 604 (1935).

Owner of an automobile owes a duty to others lawfully riding in it, while it is being operated either by the owner or the owner’s authorized agent, to exercise due care and diligence in its maintenance and operation. Ragsdale v. Love, 50 Ga. App. 900 , 178 S.E. 755 (1935).

Worn tires. —

It is also a question of fact whether a person in operating an automobile is negligent in failing to know that it is equipped with a worn and abused tire, and whether such person who is experienced in the operation of automobiles and who knows the danger attendant upon suddenly applying the brakes to an automobile in an emergency, is, after a tire on the automobile has blown out while the automobile is traveling, guilty of negligence in suddenly applying the brakes and thereby causing the automobile to turn over and injure occupants. Ragsdale v. Love, 50 Ga. App. 900 , 178 S.E. 755 (1935).

Avoiding parked cars. —

Person traveling along a highway in an automobile who receives injuries from a collision between that person’s automobile and one parked on a bridge in the highway, fails to exercise ordinary care to avoid the injuries and is guilty of negligence which proximately causes the injuries, if the driver would have seen the parked automobile in time to bring the driver’s own automobile under control and avoid the collision. State Hwy. Dep't v. Stephens, 46 Ga. App. 359 , 167 S.E. 788 (1933).

Following too closely. —

Summary judgment for driver one was affirmed as even though driver one pled guilty to following too closely, causation was not established since after the self-contradictory portions of an affidavit by a passenger in a car driven by driver two were eliminated, the evidence only showed that there was a series of collisions and that driver one caused one of them because: (1) driver two testified that numerous collisions occurred behind driver two’s car before it was struck and driver two did not know who caused the collision; (2) after the contradictory portions of the passenger’s affidavit were eliminated, the passenger was also unable to testify about who caused the collision; (3) two other drivers did not testify that driver one’s actions caused any injury to the passenger, driver two, or a second passenger in driver two’s car; and (4) driver one’s testimony that driver one did not cause any car to collide with driver two’s car was not contradicted. Hudson v. Swain, 282 Ga. App. 718 , 639 S.E.2d 319 (2006), cert. denied, No. S07C0589, 2007 Ga. LEXIS 280 (Ga. Mar. 26, 2007).

Failure to display a proper tail light on a motor vehicle parked along a public highway on a dark night is negligence per se, and when it is the proximate cause of any injury, the owner of the vehicle is liable therefor. Adams v. Jackson, 45 Ga. App. 860 , 166 S.E. 258 (1932).

Competency of the driver is a proper matter for consideration on an issue of negligence; and when the driver has failed, by reason of the driver’s incompetency or inexperience, to manage the driver’s car in a reasonably prudent and careful manner the driver is liable for any resulting injury. Luxenburg v. Aycock, 41 Ga. App. 722 , 154 S.E. 460 (1930).

Driver must possess necessary degree of skill. —

Ordinary care in the operation of a motor vehicle requires that a driver or operator shall be physically capable of operating it and shall possess skill and experience sufficient to operate it with reasonable safety. Luxenburg v. Aycock, 41 Ga. App. 722 , 154 S.E. 460 (1930).

Mere inexperience not equal to negligence. —

In the absence of any evidence tending to prove negligence of the driver, the mere fact that the driver was inexperienced is not sufficient to charge the driver with liability for an accident in which the car was involved. Luxenburg v. Aycock, 41 Ga. App. 722 , 154 S.E. 460 (1930).

Evidence of prior negligence. —

Proof of the allegedly negligent operator’s prior driving record, or of the operator’s general character for carelessness or recklessness in driving, is impermissible. Thomason v. Harper, 162 Ga. App. 441 , 289 S.E.2d 773 (1982).

Negligent entrustment. —

Under the theory of negligent entrustment, liability is predicated on a negligent act of the owner in lending the owner’s automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of the driver’s incompetency and recklessness. Thomason v. Harper, 162 Ga. App. 441 , 289 S.E.2d 773 (1982).

Under the doctrine of negligent entrustment, the entrustor’s negligence must concur with the driver’s negligence to proximately cause damage to the plaintiff. Unless the plaintiff can prove the driver of the automobile was negligent, the entrustor’s failure to ascertain whether the driver had a valid license is of no consequence. Schofield v. Hertz Corp., 201 Ga. App. 830 , 412 S.E.2d 853 (1991), cert. denied, No. S92C0324, 1992 Ga. LEXIS 39 (Ga. Jan. 10, 1992).

Trial court properly entered summary judgment for a mother on an injured party’s negligent entrustment claim because: (1) the mother knew about the son’s prior collisions and about two arrests for underage drinking, but did not recall the son undergoing any alcohol or drug counseling; (2) the mother knew that the son drank in excess; and (3) there was evidence that the mother knew the son had been caught by the father after drinking and driving. Danforth v. Bulman, 276 Ga. App. 531 , 623 S.E.2d 732 (2005).

2.Contractors

Inherently dangerous condition. —

Contractor is liable when the work done and turned over by the contractor is so negligently defective as to be imminently dangerous to third persons. Derryberry v. Robinson, 154 Ga. App. 694 , 269 S.E.2d 525 (1980).

Nuisance per se. —

Contractor is liable when the work is a nuisance per se, or inherently or intrinsically dangerous. Derryberry v. Robinson, 154 Ga. App. 694 , 269 S.E.2d 525 (1980).

Contractors were not liable for the negligent design of a ramp as the Georgia Department of Transportation (DOT) had responsibility for the design of the ramp, despite the facts that the DOT gave the contractors no drawings, that the contractors made suggestions for changes to the ramp, and that the contractors implemented the DOT’s design; there was no evidence that the DOT relinquished control of the design to the contractors or that the contract specified that the design of the ramp was the contractors’ responsibility. Fraker v. C.W. Matthews Contr. Co., 272 Ga. App. 807 , 614 S.E.2d 94 (2005), cert. denied, No. S05C1342, 2005 Ga. LEXIS 596 (Ga. Sept. 19, 2005).

Contractors were not liable for the negligently controlling traffic as the Georgia Department of Transportation (DOT) was required to place and maintain, or cause to be placed and maintained, traffic control devices and the DOT was responsible for approving all traffic control plans before implementation by a contractor; the injured party failed to show that the contractor failed to implement the traffic control devices pursuant to the DOT’s directives, even though the injured party’s accident reconstruction expert and drivers involved in the accident found the traffic control measures inadequate or improper. Fraker v. C.W. Matthews Contr. Co., 272 Ga. App. 807 , 614 S.E.2d 94 (2005), cert. denied, No. S05C1342, 2005 Ga. LEXIS 596 (Ga. Sept. 19, 2005).

Work on a public road. —

Trial court did not err in sua sponte granting summary judgment to two contractors on an injured party’s allegations of negligent inspection of the roadway, negligent maintenance of the roadway, and negligent work performance by the worksite traffic control supervisor; the injured party had an opportunity to respond to the contractors’ claims that the contractors could not be held liable for the injuries as the contractors had performed the work in a non-negligent manner, pursuant to the Georgia Department of Transportation’s specifications. Fraker v. C.W. Matthews Contr. Co., 272 Ga. App. 807 , 614 S.E.2d 94 (2005), cert. denied, No. S05C1342, 2005 Ga. LEXIS 596 (Ga. Sept. 19, 2005).

Pest control company. —

Summary judgment for a pest control company was affirmed as although a guest allegedly bitten by a poisonous spider submitted an expert’s affidavit that a pest control company breached its standard of care, the guest failed to show actual causation as the expert’s affidavit was based on pure speculation that the guest was bitten by a spider that was in the room when the guest arrived, and the guest acknowledged that the guest and the guest’s companion could have been responsible for the spider’s entrance into the room. Dew v. Motel Props., Inc., 282 Ga. App. 368 , 638 S.E.2d 753 (2006), cert. denied, No. S07C0472, 2007 Ga. LEXIS 205 (Ga. Feb. 26, 2007).

3.Dangerous Instrumentalities

Degree of care proportionate to danger. —

One is under a legal duty to use a dangerous instrument with a degree of care in proportion to the danger of the instrument. Harden v. United States, 485 F. Supp. 380 (S.D. Ga. 1980), aff'd in part, vacated in part, 688 F.2d 1025 (5th Cir. 1982).

Extraordinary care not required. —

In the case of dangerous instrumentalities, the defendant’s duty is one of ordinary and not extraordinary care. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977).

When greater caution appropriate. —

Ordinary care as to a thing which is subtle, violent, and dangerous may require a greater degree of caution than does an agency which lacks these dangerous propensities. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977).

Person responsible for a dangerous place or instrumentality must guard, cover, or protect it for the safety of persons rightfully at or near it, and a person’s failure to do so is negligence, rendering the person liable to a person who, without fault on the person’s part, is injured as a result thereof. Coffer v. Bradshaw, 46 Ga. App. 143 , 167 S.E. 119 (1932).

4.Railroads

Railroad liable for lack of due care to person on tracks. —

If the presence of a trespasser on the track at the time and place of the injury is brought about by peculiar facts and circumstances which relieve the trespasser from the guilt of a lack of ordinary care in thus exposing oneself, the company might be liable for a mere lack of ordinary care on the company’s part in failing to anticipate the trespasser’s presence at a time when and a place where it was charged with such duty, and in thereafter failing to take such proper precautions for the trespasser’s safety as might seem reasonably necessary. Southern Ry. v. Kelley, 52 Ga. App. 137 , 182 S.E. 631 (1935).

Lack of ordinary care not necessarily willful and wanton. —

While the mere failure of the employees of a railway company to discover the presence of a trespasser at a place where and a time when it was their duty to anticipate the trespasser’s presence might amount to a lack of ordinary care on the part of the company, it would not ordinarily and in and of itself amount to willful and wanton misconduct, so as to render the company liable when the injured person personally was guilty of a lack of ordinary care. Central of Ga. Ry. v. Stamps, 48 Ga. App. 309 , 172 S.E. 806 (1934); Southern Ry. v. Kelley, 52 Ga. App. 137 , 182 S.E. 631 (1935).

Plaintiff’s presence on track not negligence per se. —

It is not per se negligent for one not aware of the approach of the train to attempt to cross the track without stopping, looking, or listening. Hadaway v. Southern Ry., 41 Ga. App. 669 , 154 S.E. 296 (1930).

Failure of a person who is unaware of the approach of a train to stop, look, or listen, does not, as a matter of law render such person guilty of a lack of ordinary care such as would prevent a recovery, except for willful and wanton misconduct on the part of the company. Porter v. Southern Ry., 73 Ga. App. 718 , 37 S.E.2d 831 (1946).

Plaintiff not negligent if reasonable care exercised. —

If the deceased made a reasonable effort to ascertain whether or not the deceased could safely cross the railroad track, a court cannot say, as a matter of law, that the deceased was not in the exercise of due care in undertaking to cross the track under the circumstances alleged. Porter v. Southern Ry., 73 Ga. App. 718 , 37 S.E.2d 831 (1946).

Plaintiff’s negligence bars recovery if defendant’s negligence not wanton. —

One who recklessly tests an observed and clearly obvious danger, such as attempting to beat a near and rapidly approaching railroad train or streetcar over a crossing, or to pass an intersecting highway in front of a near and speeding automobile having the right of way, notwithstanding one’s own honest but mistaken judgment that one has ample time to get across, may under the particular facts be held to have failed to exercise that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances and may be held to be guilty of contributory negligence, which will be deemed the proximate cause of one’s resulting injury, and which will, in the absence of willful or wanton misconduct by the defendant, preclude recovery. Porter v. Southern Ry., 73 Ga. App. 718 , 37 S.E.2d 831 (1946).

One who deliberately goes upon a railroad track in front of an approaching train, thinking that one can cross before the train reaches the person, and miscalculating the train’s speed because the person is in front of the train, cannot recover for injuries resulting from being run down by the train, although the company’s servants may also have been negligent in running at a high rate of speed at that point, and also in failing to check the speed of the train at a public road which crossed the track between the place where the train was when first seen by the plaintiff and the point at which the injury occurred. Porter v. Southern Ry., 73 Ga. App. 718 , 37 S.E.2d 831 (1946).

Decedent’s negligence bars action by widow. —

If a deceased person could not have recovered for injuries personally had the decedent survived the collision, because the decedent was lacking in ordinary care in undertaking to cross the railroad tracks, the decedent’s spouse cannot recover for the decedent’s death. Porter v. Southern Ry., 73 Ga. App. 718 , 37 S.E.2d 831 (1946).

5.Speech

Television broadcast. —

Even though the statements concerning sound effects could pose a foreseeable risk of injury to a child who attempted to mimic the segment of the television show, the statements did not pose a clear and present danger of injury as required by the first amendment. Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402 , 276 S.E.2d 580 (1981).

6.Utilities

Construction and maintenance of equipment. —

Power company is charged with the duty of exercising ordinary care in the construction and maintenance of the company’s wires, poles, transformers, and equipment. Collins v. Altamaha Elec. Membership Corp., 151 Ga. App. 491 , 260 S.E.2d 540 (1979).

Utility poles in middle of street. —

Where, in a city street about 80 feet wide, the city has authorized the erection and maintenance, longitudinally down the middle of the street, of a series of poles which support electrical wires, and on either side of the poles there remain driveways approximately 40 feet in width each, and the poles cause no substantial interference with the lawful use of the road or danger, the maintenance of the poles in the street does not constitute negligence, either as matter of law or in fact. South Ga. Power Co. v. Smith, 42 Ga. App. 100 , 155 S.E. 80 (1930).

Easement rights not defense to negligence. —

One may not, in the process of committing a negligent act, simultaneously create “property rights” which will insulate one from liability for the negligent act. A defendant’s broadly worded easement may allow it to run power lines in any way or in any place it chooses in relation to the grantee’s property, but the easement does not relieve the defendant from the duty to use ordinary care for human safety when it does run the lines. Savannah Elec. & Power Co. v. Holton, 127 Ga. App. 447 , 193 S.E.2d 866 (1972).

7.Emergency Situations

“Emergency” defined. —

An emergency is a “sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributed not to lack of care but to lack of time to assess the situation.” Lingo v. Brasington, 202 Ga. App. 813 , 415 S.E.2d 534 (1992).

Duty measured in light of emergency. —

One confronted with a sudden emergency, without sufficient time to determine accurately and with certainty the best thing to be done, is not held to the same standards of judgment as would be required if more time for deliberation existed, and the requirement of the law upon such a person remains as ordinary diligence under all the facts and circumstances of the situation. Central of Ga. Ry. v. Barnes, 46 Ga. App. 158 , 167 S.E. 217 (1932); Harden v. United States, 485 F. Supp. 380 (S.D. Ga. 1980), aff'd in part, vacated in part, 688 F.2d 1025 (5th Cir. 1982).

Culpable negligence will not be attributed to a person who, in dire emergency, endeavors to save the life of another person. Corrie v. Hollaran, 51 Ga. App. 910 , 181 S.E. 709 (1935).

8.Miscellaneous

Master’s liability to servant. —

While a servant is bound to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care, he has the right to assume that his master has performed the duty of furnishing him with a safe place to work and is under no obligation to inspect the same in order to discover latent defects not open to ordinary observation; a danger arising from an unsafe place is not included among the risks assumed by the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140 , 172 S.E. 87 (1933).

Timber lease. —

It cannot be presumed that either of the parties to a timber lease intended waste, and therefore it must have been intended by both of them that the lease would include, with respect to size, only such timber as an ordinarily prudent owner would use or lease. Dorsey v. Clements, 202 Ga. 820 , 44 S.E.2d 783 (1947).

If as applied to a timber lease, there was a custom of business or trade that became by implication a part of the contract, then in case of controversy, such custom would control. But if no such custom existed, it would be permissible to show by other evidence what class of trees as respects dimensions could in ordinary prudence be used, considering present yield and injury, if any, as against future growth and value, along with other factors. Dorsey v. Clements, 202 Ga. 820 , 44 S.E.2d 783 (1947).

Forklift. —

Summary judgment was properly entered for an individual on an injured party’s negligent entrustment claim because: (1) both the individual and the driver believed that the driver was entitled to use the forklift; (2) the individual did not have the right to permit or prohibit the use of the forklift by the driver; (3) there was no evidence that the individual had actual knowledge that the driver was incompetent or had a known habit of recklessness; (4) the individual’s use of the forklift was not evidence of the individual’s actual knowledge that the driver intended to use the forklift in an unsafe manner; and (5) the injured party could not argue that the individual should have known that the driver would use the forklift in an unsafe way since it was not sufficient for a plaintiff to show constructive knowledge. Webb v. Day, 273 Ga. App. 491 , 615 S.E.2d 570 (2005).

Publication of editorial. —

When a magazine editorial reads like a recitation of fact, not a pure opinion, the jury was entitled to find that the editor’s failure to verify the assertions contained in it amounted to a failure to exercise that degree of care exercised under the same or similar circumstances by ordinarily prudent persons, and that this negligence was imputable to the publisher of the magazine. Straw v. Chase Revel, Inc., 813 F.2d 356 (11th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164 , 98 L. Ed. 2 d 118 (1987).

Duty to fellow pedestrians. —

When a victim was injured after colliding with a hotel guest when exiting an elevator, the trial court erred in granting summary judgment to the guest, as the guest had a duty to walk in a reasonably prudent manner so as to avoid colliding with and injuring fellow pedestrians in the hotel. Beard v. Audio Visual Servs., 260 Ga. App. 476 , 580 S.E.2d 272 (2003).

Employer not liable for injuries at party. —

Employer was not liable for the injuries sustained by a former employee in a fight with a co-worker as the employer quickly took steps to diffuse any tension at a party by having an attendee leave the party almost immediately after the employer learned of the exchange of words with the employee and as the two fights occurred well after the conclusion of the party. Snellgrove v. Hyatt Corp., 277 Ga. App. 119 , 625 S.E.2d 517 (2006).

Foreseeability

Injury must be reasonably foreseeable. —

Negligence which is the proximate cause of an injury is such an act that a person of ordinary caution and prudence would have foreseen that some injury might likely result therefrom. Teppenpaw v. Blaylock, 126 Ga. App. 576 , 191 S.E.2d 466 (1972).

Test of reasonableness. —

In determining the existence of negligence, a governing consideration is what should have been reasonably foreseen. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977).

No need to foresee specific consequences. —

In order for a party to be liable as for negligence, it is not necessary that the party should have been able to anticipate the particular consequences which ensued; it is sufficient if in ordinary prudence the party might have foreseen that some injury would result from the party’s act or omission, or that consequences of a generally injurious nature might result. Emory Univ. v. Lee, 97 Ga. App. 680 , 104 S.E.2d 234 (1958); Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977); Mixon v. Dobbs Houses, Inc., 149 Ga. App. 481 , 254 S.E.2d 864 (1979).

Remote possibilities not reasonably foreseeable. —

One is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977); Bettis v. United States, 635 F.2d 1144 (5th Cir. 1981).

Though act by another not necessarily too remote. —

Negligence of a joint tort-feasor is not, as a matter of law, too remote if it was reasonably anticipatable that negligence in creating a dangerous condition would, in conjunction with the negligent act of another, cause injury to the plaintiff. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977).

When the injured parties were rightfully on the property engaging in ordinary farm operations and the negligence of the defendant in failing to properly construct, inspect, and maintain its electrical wires and utility poles was one “cause in fact” of the injuries, the causal connection between an original act of negligence and injury to another is not broken by the “intervening” act if it could reasonably have been anticipated or foreseen by the original wrongdoer. Collins v. Altamaha Elec. Membership Corp., 151 Ga. App. 491 , 260 S.E.2d 540 (1979).

Especially acts performed by children. —

There are many situations in which the hypothetical reasonable man would be expected to anticipate and guard against the conduct of others. And when children are in the vicinity, much is necessarily to be expected of them which would not be looked for on the part of an adult. Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402 , 276 S.E.2d 580 (1981).

Foreseeability is jury question. —

Foreseeability of an intervening agency in the causal relationship between the tort-feasor’s negligence and the resulting injury is for the jury when reasonable minds might differ. Collins v. Altamaha Elec. Membership Corp., 151 Ga. App. 491 , 260 S.E.2d 540 (1979).

Joint Tort-feasors

When there was no concert of action, and the acts result in a single and indivisible injury, the tort is joint. Parks v. Palmer, 151 Ga. App. 468 , 260 S.E.2d 493 (1979).

Suit against jointly negligent tort-feasors. —

If the alleged negligent acts of two or more tort-feasors result in a single and indivisible injury, such as death, the alleged tort-feasors may be sued jointly. Parks v. Palmer, 151 Ga. App. 468 , 260 S.E.2d 493 (1979).

Subsequently negligent tort-feasor. —

Original tort-feasor and a subsequently negligent physician can be joint tort-feasors. Parks v. Palmer, 151 Ga. App. 468 , 260 S.E.2d 493 (1979).

Special Characteristics of Tort-feasor

Standard of due care generally objective. —

Standard of conduct which the community demands must be an external and objective one, rather than the individual judgment, good or bad, of the particular actor, and it must be, so far as possible, the same for all persons, since the law can have no favorites. McNeeley v. M. & M. Supermarkets, Inc., 154 Ga. App. 675 , 269 S.E.2d 483 (1980).

Ordinary care is not what any particular person does under given circumstances, but what the ordinarily prudent person does. Southeastern Air Servs., Inc. v. Edwards, 74 Ga. App. 582 , 40 S.E.2d 572 (1946).

Professionals held to professional standard of care. —

Law imposed upon persons of professional standing performing medical, architectural, engineering, and those performing other and like skilled services, pursuant to their contracts made with their clients, an obligation to exercise a reasonable degree of care, skill and ability, such as is ordinarily exercised under similar conditions and like circumstances by persons employed in the same or similar professions. This is a duty apart from any express contractual obligation. Mauldin v. Sheffer, 113 Ga. App. 874 , 150 S.E.2d 150 (1966).

Young children judged by special standard. —

Child of tender years may not be under the duty of exercising ordinary care as defined in this section, but the child is charged with the duty of exercising such care as the child’s capacity, mental and physical, fits the child for exercising; this capacity is to be judged by the jury from the circumstances surrounding the transaction under investigation, and the child’s conduct in reference thereto. Huckabee v. Grace, 48 Ga. App. 621 , 173 S.E. 744 (1934).

Jury determines applicable standard. —

Question for the jury is whether danger should have been recognized by common experience, or by the special experience of the alleged wrongdoer, or by a person of ordinary prudence and foresight. Mixon v. Dobbs Houses, Inc., 149 Ga. App. 481 , 254 S.E.2d 864 (1979).

Statutory Violation as Negligence Per Se

Omission of specific acts of diligence prescribed by statute, or by a valid municipal ordinance, is negligence per se. Sims v. Hoff, 106 Ga. App. 626 , 127 S.E.2d 679 (1962).

When train is run at crossing at rate of speed in excess of that limited by ordinance, it is negligence per se, and the railroad company is liable if such speed is the proximate cause of the injury. Central of Ga. Ry. v. Barnes, 46 Ga. App. 158 , 167 S.E. 217 (1932).

Violation of valid municipal ordinance regulating traffic along public street is negligence per se. Griffin v. Browning, 51 Ga. App. 743 , 181 S.E. 801 (1935).

Violation of statute must be proximate cause. —

When the violation of a penal statute by the defendant is the proximate cause of the injury complained of, the defendant is guilty of negligence per se authorizing recovery. Shermer v. Crowe, 53 Ga. App. 418 , 186 S.E. 224 (1936).

Plaintiff must be in class protected by statute. —

In order for the violation of some statutory duty to be negligence per se, the person claiming it to be such must be within the class for whose benefit the statute was passed. National Upholstery Co. v. Padgett, 108 Ga. App. 857 , 134 S.E.2d 856 (1964).

Violation of statute must also amount to violation of duty owed plaintiff. —

Act prohibited by a penal statute, and which might be negligence as a matter of law, is not negligence unless its commission is in violation of some duty owing under the circumstances by the person committing the act to another person and is capable of having a causal connection with the injury inflicted. Sims v. Hoff, 106 Ga. App. 626 , 127 S.E.2d 679 (1962).

Pleading and Practice

Particular facts should be pled. —

General allegation of negligence is a mere conclusion. The conclusion may be wrong; and, therefore, the particular facts relied upon to support the conclusion should be pled. It is permissible, however, to set forth the facts, and then conclude that these facts amount to negligence. Western & A.R.R. v. Crawford, 47 Ga. App. 591 , 170 S.E. 824 (1933).

Pleading alternate forms of negligence. —

Plaintiff may rely upon an act or omission as constituting negligence as a matter of fact under the circumstances, or upon the violation of a statute as amounting to negligence per se or as a matter of law; furthermore, the facts may be so pled as to show negligence of both classes in the same action. Reeves v. McHan, 78 Ga. App. 305 , 50 S.E.2d 787 (1948).

Proof of ordinary negligence includes the proof of slight negligence, but does not include proof of gross negligence which is the higher degree thereof. Minkovitz v. Fine, 67 Ga. App. 176 , 19 S.E.2d 561 (1942).

Fiduciary and tort duty standards are the same. —

There is no meaningful difference between the two standards set forth in O.C.G.A. §§ 14-2-842(a)(2) and 51-1-2 . Rosenfeld v. Rosenfeld, 286 Ga. App. 61 , 648 S.E.2d 399 (2007), cert. denied, No. S07C1635, 2007 Ga. LEXIS 613 (Ga. Sept. 10, 2007).

Gross negligence may encompass ordinary negligence. —

When the plaintiff sets forth facts and alleges acts of omission and commission on the part of the defendant which amount to gross negligence; and thereafter sets forth additional facts which would give rise to a duty on the part of the defendant to exercise ordinary care, and alleges that the same acts of omission and commission amount to ordinary neglect, such allegations would not be inconsistent, since any acts of omission or commission which amounted to the want of that care which is characterized as gross negligence would necessarily show an absence of that care which amounts to ordinary neglect. Blanchard v. Ogletree, 41 Ga. App. 4 , 152 S.E. 116 (1929).

Effect of res ipsa loquitur. —

Res ipsa loquitur is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another when it is shown that the defendant owned, operated and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage, and the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence. Hall v. Chastain, 246 Ga. 782 , 273 S.E.2d 12 (1980).

Rule of res ipsa loquitur applies only when the plaintiff does not know what caused the accident and negligence may be presumed from the fact that an accident occurred. Minkovitz v. Fine, 67 Ga. App. 176 , 19 S.E.2d 561 (1942).

Gross negligence not presumed on basis of res ipsa loquitur. —

While the rule of evidence expressed in the maxim res ipsa loquitur may make out a prima facie case of ordinary negligence, it is insufficient in itself to make out a prima facie case of gross negligence. Minkovitz v. Fine, 67 Ga. App. 176 , 19 S.E.2d 561 (1942).

Defendant’s burden when negligence presumed. —

If, considering all the surroundings and accompanying circumstances, an event is such as in the ordinary course of things would not have occurred if the defendant had used ordinary care, negligence may be presumed, and this places upon the defendant the burden of explaining the cause of the occurrence. McCann v. Lindsey, 109 Ga. App. 104 , 135 S.E.2d 519 (1964).

Jury Instructions

Omission of words “every prudent man” from an instruction applying this section was fatal. Brown Store Co. v. Chattahoochee Lumber Co., 1 Ga. App. 609 , 57 S.E. 1043 (1907).

Words “ordinary care” are self-explanatory, and furnish the jury with degree of care required of defendant in case, in the absence of a timely request for a further definition, and the same can also be said to be true of the words “due care.” Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948).

No jury instruction need be given absent a request. —

In the absence of a written request for the court to define to the jury the meaning of “ordinary and reasonable care and diligence,” there was no error in the omission to do so. It is doubtful if any specific definition would enlighten the jury, or make any clearer the plain meaning of these simple words. Georgia Power Co. v. Whitlock, 48 Ga. App. 809 , 174 S.E. 162 (1934); City of Camilla v. May, 70 Ga. App. 136 , 27 S.E.2d 777 (1943).

Instruction based on former Code language not error when new Code language was substantially similar. —

There being no substantial difference between the definitions of ordinary care given in the Civil Code of 1910 and in the Code of 1933, in a damage suit based on the negligence of the defendant, it was not prejudicial error requiring the grant of a new trial for the court to give in a charge to the jury the definition as contained in the former Civil Code of 1910, rather than that contained in the Code of 1933. Pollard v. Duffee, 56 Ga. App. 523 , 193 S.E. 258 (1937); Pollard v. Boatwright, 57 Ga. App. 565 , 196 S.E. 215 (1938).

Standard of ordinary diligence not variable. —

Court erred in charging that the standard of ordinary diligence is variable; the standard of ordinary diligence is invariable. Wilson v. Garrett, 92 Ga. App. 820 , 90 S.E.2d 74 (1955); Tudor v. Bodeker, 94 Ga. App. 191 , 94 S.E.2d 63 (1956).

Trial court erred in charging that the precise legal term “ordinary care” must in the nature of the case depend upon the circumstances of each individual case. Tudor v. Bodeker, 94 Ga. App. 191 , 94 S.E.2d 63 (1956).

Care in manufacturing bottled drinks. —

Court did not err in the instructions to the jury as to the care and diligence required of one manufacturing bottled drinks for sale, or in charging that “if the defendant was not negligent and did exercise ordinary care, and any foreign substance got into the bottle notwithstanding ordinary care, that would be what the law designates as an unavoidable accident, for the occurrence of which the defendant would not be liable.” Hathcox v. Atlanta Coca-Cola Bottling Co., 50 Ga. App. 410 , 178 S.E. 404 (1935).

Care in operating automobile. —

While it is error to charge the jury that the degree of care exercised must be such as would or could prevent injury to others, it is not error to charge that a defendant in the operation of the defendant’s car is required to use ordinary care to prevent injury to others as in such case the requirement that the defendant be in the exercise of ordinary care is, in fact, for the purpose of preventing injury to others. Georgia Power Co. v. Burger, 63 Ga. App. 784 , 11 S.E.2d 834 (1940).

Deficient charge on negligence. —

Charge which implied that negligence is the breach of an absolute duty to avoid injuring others rather than a failure to exercise “that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances” was deficient, and the court’s failure to give a correct charge on this fundamental principle was reversible error. T.J. Morris Co. v. Dykes, 197 Ga. App. 392 , 398 S.E.2d 403 (1990).

No charge required when request was withdrawn. —

There was no error in a trial court’s failure to give jury instructions regarding ordinary negligence claims under O.C.G.A. § 51-1-2 as a patient’s widow’s counsel had withdrawn the jury instruction on ordinary negligence in order to allow the matter to proceed to consideration by the jury on just the issues of professional negligence in the widow’s action, alleging, inter alia, medical malpractice. Sagon v. Peachtree Cardiovascular & Thoracic Surgs., P.A., 297 Ga. App. 379 , 677 S.E.2d 351 (2009).

Negligence as Jury Question

Negligence is jury question except in indisputable cases. —

Questions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff’s injuries are, except in plain, palpable, and indisputable cases, solely for the jury, and the courts will decline to decide such questions unless reasonable minds cannot differ as to the conclusions to be reached. Bohler v. Ownes, 60 Ga. 185 (1878); Atlanta, B. & C.R.R. v. Smith, 43 Ga. App. 457 , 159 S.E. 298 (1931); Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393 , 167 S.E. 773 (1932); Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933); Mason v. Frankel, 49 Ga. App. 145 , 174 S.E. 546 (1934); Tybee Amusement Co. v. Odum, 51 Ga. App. 1 , 179 S.E. 415 (1935); Eubanks v. Mullis, 51 Ga. App. 728 , 181 S.E. 604 (1935); Knowles v. La Rue, 102 Ga. App. 350 , 116 S.E.2d 248 (1960); Pannell v. Fuqua, 111 Ga. App. 18 , 140 S.E.2d 280 (1965); Krystal Co. v. Butler, 149 Ga. App. 696 , 256 S.E.2d 96 (1979); Manheim Servs. Corp. v. Connell, 153 Ga. App. 533 , 265 S.E.2d 862 (1980); Brooks v. Douglas, 154 Ga. App. 54 , 267 S.E.2d 495 (1980); McKeighan v. Long, 154 Ga. App. 171 , 268 S.E.2d 674 (1980); Garner v. Driver, 155 Ga. App. 322 , 270 S.E.2d 863 (1980); Sugrue v. Flint Elec. Membership Corp., 155 Ga. App. 481 , 270 S.E.2d 921 (1980); Shannon v. Walt Disney Prods., Inc., 156 Ga. App. 545 , 275 S.E.2d 121 (1980), rev'd, 247 Ga. 402 , 276 S.E.2d 580 (1981); Herren v. Abba Cab Co., 155 Ga. App. 443 , 271 S.E.2d 11 (1980); Lozynsky v. Hutchinson, 159 Ga. App. 715 , 285 S.E.2d 70 (1981).

In Georgia, the question of negligence is almost always a question for the jury. Fraley ex rel. Fraley v. Lake Winnepesaukah, Inc., 631 F. Supp. 160 (N.D. Ga. 1986).

Contributory negligence also jury question. —

One who recklessly tests an observed and clearly obvious peril is guilty of lack of ordinary care. In plain and palpable cases, it will be so held as a matter of law; otherwise, questions as to such negligence as well as other questions of negligence by the parties, and as to the proximate cause of the injury, present issues for the jury. Central of Ga. Ry. v. Jones, 43 Ga. App. 507 , 159 S.E. 613 (1931); Laseter v. Clark, 54 Ga. App. 669 , 189 S.E. 265 (1936); Brooks v. Douglas, 154 Ga. App. 54 , 267 S.E.2d 495 (1980).

In an action against a railroad company for injuries received by a person lawfully upon a railroad crossing, the question of what such person must or must not do, in order to free oneself of guilt of lack of ordinary care constituting the proximate cause of one’s injury, is a question for the jury. Porter v. Southern Ry., 73 Ga. App. 718 , 37 S.E.2d 831 (1946).

Questions of willful and wanton negligence. —

Exact point when ordinary negligence or the lack of ordinary care passes into and becomes willful and wanton negligence is a question for the jury, under definite instruction from the trial judge that the facts must show that the failure to exercise ordinary care was not only negligence but that it amounted to willful and wanton negligence. Humphries v. Southern Ry., 51 Ga. App. 585 , 181 S.E. 135 (1935).

Questions of gross and slight negligence. —

Questions of negligence and diligence, even of gross negligence and slight diligence, are matters which should usually be determined by a jury. Pitcher v. Curtis, 43 Ga. App. 622 , 159 S.E. 783 (1931).

Except when a particular act is declared to be negligence, either by statute or by valid municipal ordinance, the question as to what acts do or do not constitute negligence is for determination by the jury. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393 , 167 S.E. 773 (1932).

Condition of utility pole as contributing cause. —

When genuine issues of material fact remain in a tort case as to whether the condition of a utility pole was a contributing cause to the injuries sustained, any grant of summary judgment is contrary to law and expressly disavowed. Collins v. Altamaha Elec. Membership Corp., 151 Ga. App. 491 , 260 S.E.2d 540 (1979).

Negligence of child guest. —

In automobile collision cases, whether a child guest of tender years exercised the measure of due care required by the Code under the actual circumstances of the occasion and situation, is a question peculiarly for a jury, and not a question of law to be decided by the court, except in clear and palpable cases. Eddleman v. Askew, 50 Ga. App. 540 , 179 S.E. 247 (1935), overruled, Chadwick v. Miller, 169 Ga. App. 338 , 312 S.E.2d 835 (1983).

Negligence of pedestrian. —

When a pedestrian, after passing between two parked automobiles, looked to the pedestrian’s left for traffic, but instantly, and before the pedestrian had time to look to the pedestrian’s right, was struck and injured by an automobile being driven on the left side of the street, that is “astraddle” and to the left of the center of that street, and since the pedestrian could have seen the automobile had the pedestrian had time to look to the pedestrian’s right, and the driver of the automobile could have seen the pedestrian had the driver been looking, and when the street to the right of the driver of the automobile at this point was clear and could have been used by said automobile at the time of the accident, it was a question for a jury to determine whose negligence was responsible for the injury. Eubanks v. Mullis, 51 Ga. App. 728 , 181 S.E. 604 (1935).

Expert opinion not supported by records. —

Medical records that provided no information about the patient’s second visit to the emergency room, the timing of the discovery of a ruptured appendix, or the exploratory surgery that resulted in an appendectomy were too general to support an expert’s conclusion that the doctors’ conduct proximately caused the patient’s injuries. Jones v. Orris, 274 Ga. App. 52 , 616 S.E.2d 820 (2005), cert. denied, No. S05C1791, 2005 Ga. LEXIS 740 (Ga. Oct. 24, 2005).

General Consideration

Basic definitions. —

Applied to the preservation of property, slight diligence means that care which every person of common sense, howsoever inattentive the person may be, takes of one’s own property. The absence of such care is termed gross negligence. Frye v. Pyron, 51 Ga. App. 613 , 181 S.E. 142 (1935); Kimberly v. Reed, 79 Ga. App. 137 , 53 S.E.2d 208 (1949).

“Gross negligence,” as applicable to particular facts and circumstances is defined as “the want of slight care and diligence,” “such care as careless and inattentive persons would usually exercise under the circumstances,” “want of that diligence which even careless men are accustomed to exercise,” “carelessness manifestly materially greater than want of common prudence.” Rider v. Taylor, 166 Ga. App. 474 , 304 S.E.2d 557 (1983).

Absence of ordinary diligence is not “gross negligence.” Insurance Co. of N. Am. v. Leader, 121 Ga. 260 , 48 S.E. 972 (1904); Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809 , 49 S.E. 839 (1905).

Applicability to personal injury. —

While defined in terms of property, the rule enunciated in this section applies with equal force to diligence to prevent injury to the person. Capers v. Martin, 54 Ga. App. 555 , 188 S.E. 465 (1936); Moore v. Shirley, 68 Ga. App. 38 , 21 S.E.2d 925 (1942); Carpenter v. Lyons, 78 Ga. App. 214 , 50 S.E.2d 850 (1948).

Willful misconduct generally distinguished. —

Gross negligence should not be confused with willful and wanton misconduct. Central of Ga. Ry. v. Moore, 5 Ga. App. 562 , 63 S.E. 642 (1909); Lanier v. Bugg, 32 Ga. App. 294 , 123 S.E. 145 (1924).

Negligence, including gross negligence, and willful and wanton misconduct are not construed as synonymous terms. Southern Ry. v. Kelley, 52 Ga. App. 137 , 182 S.E. 631 (1935).

Gross negligence does not amount to willful and wanton disregard for the rights of others, and one may be guilty of gross negligence and still be in the exercise of some degree of care. Hennon v. Hardin, 78 Ga. App. 81 , 50 S.E.2d 236 (1948).

Willful or wanton conduct is a different standard than that of gross negligence. Southern Bell Tel. & Tel. Co. v. Coastal Transmission Serv., Inc., 167 Ga. App. 611 , 307 S.E.2d 83 (1983).

Equivalency in gross and wanton negligence in certain cases. —

Gross negligence is not regarded as the equivalent of willful and wanton negligence in this state, unless the evidence indicates that entire absence of care which would raise the presumption of conscious indifference, or that, with reckless indifference, the person acted with actual or imputed knowledge that the inevitable or probable consequence of one’s conduct would be to inflict injury. Blanchard v. Ogletree, 41 Ga. App. 4 , 152 S.E. 116 (1929); Frye v. Pyron, 51 Ga. App. 613 , 181 S.E. 142 (1935); Dixon v. Merry Bros. Brick & Tile Co., 56 Ga. App. 626 , 193 S.E. 599 (1937).

Gross negligence by plaintiff a complete bar to recovery. —

If a person knowingly goes into a place of danger, when there is no urgent necessity for the person to do so, the person is guilty of such gross negligence that as a matter of law the person cannot recover any damages for injury the person might sustain under such circumstances. Yarbrough v. Georgia R.R. & Banking Co., 176 Ga. 780 , 168 S.E. 873 (1933), transferred, 48 Ga. App. 314 , 172 S.E. 808 (1934).

No gross negligence by emergency room physician. —

Patient sued an emergency room physician for malpractice for failing to diagnose a leg fracture. As the physician sought no orthopedic consult because a radiologist opined that the x-rays showed no serious fracture, the patient could not prove by clear and convincing evidence that the physician acted with gross negligence, as required under O.C.G.A. § 51-1-29.5(c) ; thus, the physician was entitled to summary judgment. Pottinger v. Smith, 293 Ga. App. 626 , 667 S.E.2d 659 (2008).

No evidence of gross negligence by lessor in selection of vendor to repair roofs. —

In an action for claims arising from a commercial property lease agreement, the trial court erred in denying the lessor’s motion for partial summary judgment on the lessee’s claim of gross negligence in the lessor’s selection of a vendor to repair the roofs because the lessee did not identify any evidence that the lessor was indifferent to whether the roofing vendor it selected would do a good job or that it otherwise acted without even slight care when choosing the roofing contractor; and the lessee did not identify any evidence that the lessor acted without even slight care with regard to the quality of work of its chosen contractor. West Asset Mgmt. v. NW Parkway, LLC, 336 Ga. App. 775 , 784 S.E.2d 147 (2016), cert. denied, No. S16C1465, 2016 Ga. LEXIS 741 (Ga. Nov. 7, 2016).

No evidence from which jury could conclude landowner was grossly negligent in controlled burn. —

Landowner was entitled to the protections from liability provided by the Georgia Prescribed Burning Act, O.C.G.A. § 12-6-148 , because even assuming there was evidence sufficient to create a jury issue as to whether the landowner was negligent in some way while starting, controlling, or completing a prescribed burn, there was no evidence from which a jury could reasonably conclude that the landowner failed to exercise slight diligence and was, therefore, grossly negligent; according to the chief ranger with the local office of the forestry service, there was nothing actually physically that a landowner could do to stop a prescribed burn from smoldering or to prevent the resulting smoke, and an expert witness’s argument that the landowner should have ignored the ranger’s recommendations and should not have conducted the burn in order to ensure that the public would be protected from any possibility that smoke would emanate from the landowner’s property clearly undermined the express purposes behind the Act, O.C.G.A. § 12-6-145 et seq. Morgan v. Horton, 308 Ga. App. 192 , 707 S.E.2d 144 (2011), cert. denied, No. S11C1028, 2011 Ga. LEXIS 533 (Ga. June 27, 2011).

After the plaintiff was injured when the truck the plaintiff was riding in struck a fallen power cable in the roadway, summary judgment was granted in favor of the defendant as the Prescribed Burning Act, O.C.G.A. § 12-6-145 et seq., shielded the defendant from liability because the defendant’s employees did not fail to ensure that the fire was adequately confined before leaving the area; and, even if the controlled burn was the source of the fire that burned the power pole, that did not establish that the defendant’s employees were grossly negligent as the employees exercised at least slight diligence in handling the controlled burn because the employees cut firebreaks; patrolled the area; doused hot spots; and returned later that evening and extinguished a nearby fire. Patton v. Cumberland Corp., 347 Ga. App. 501 , 819 S.E.2d 898 (2018), cert. denied, No. S19C0341, 2019 Ga. LEXIS 428 (Ga. June 3, 2019).

Gross negligence not found. —

Pursuant to O.C.G.A. § 51-1-4 , no reasonable juror could find that gross negligence occurred regarding reporting or preventing a fire because, although the security guard and the defendant homeowners’ association may have been “inattentive” in the overseeing and monitoring of the surveillance cameras, their actions did not rise to the level of gross negligence. The primary purpose of monitoring the cameras was to maintain the security of access points and to prevent crime, not to prevent residential fires. Great Northern Ins. Co. v. Ruiz, 688 F. Supp. 2d 1362 (S.D. Ga. 2010).

Applicability to Specific Cases

1.Automobiles

Improper operation of vehicle. —

Jury would be authorized to find that a person who failed without cause to observe a dangerous but clearly visible “isle of safety” in a street would be guilty of gross negligence. Smith v. Hodges, 44 Ga. App. 318 , 161 S.E. 284 (1931).

Evidence that the defendant, driving at 25 m.p.h., turned around briefly when children in the back seat spilled a bottle of milk, causing the car to strike a telegraph pole, did not show that the defendant was guilty of gross negligence. Tucker v. Andrews, 51 Ga. App. 841 , 181 S.E. 673 (1935).

When several witnesses in a suit by a passenger for injuries received in an accident testified that a part of the defendant’s car entered the wrong side of the road at a distance of from 100 yards to 15 yards from the point of collision and continued along such path, and when the other driver in the collision testified that “I dimmed my headlights, pulled over farther to the right, and when the approaching car was very near to mine it cut across the road to the left suddenly, striking the left front of my car,” the jury was authorized to find that the act of the defendant amounted to gross negligence. Atlantic Ice & Coal Corp. v. Newlin, 56 Ga. App. 428 , 192 S.E. 915 (1937).

While there were no allegations and no evidence that the speed at which the defendant was operating an automobile was in violation of the law or of any ordinance, or that the failure to stop before entering the intersection was a violation of any ordinance, nevertheless, the jury was authorized to find that such acts on the part of the defendant, occurring as they did in a thickly populated section on a heavily traveled thoroughfare, together with the defendant’s further act of looking to the rear for a period of three to five seconds, long enough to travel 200 to 225 feet, was gross negligence on the defendant’s part and was authorized to award the plaintiffs damages on this theory. Chastain v. Lawton, 87 Ga. App. 35 , 73 S.E.2d 38 (1952).

Finding is authorized that the defendant is guilty of gross negligence in taking a chance of meeting and passing another automobile on a familiar, narrow, country dirt road when there is barely room to pass, when about 3 feet of the defendant’s side of the road are obstructed by limbs of trees, and in turning briefly to the defendant’s left to avoid the obstructions with only a guess as to whether the defendant has time to get back on the defendant’s side, especially since he knows that another automobile is approaching. Sutherland v. Woodring, 103 Ga. App. 205 , 118 S.E.2d 846 (1961).

When evidence disclosed that the driver failed to heed the traffic signal, failed to keep a lookout for traffic, and failed to adhere to the speed limit, such a combination of circumstances would authorize a jury to find gross negligence. McDaniel v. Gysel, 155 Ga. App. 111 , 270 S.E.2d 469 (1980).

In order for guest passenger to recover against host driver, the jury must find the host driver grossly negligent. Blanchard v. Ogletree, 41 Ga. App. 4 , 152 S.E. 116 (1929); Meddin v. Karsman, 41 Ga. App. 282 , 152 S.E. 601 (1930); Atlantic Ice & Coal Corp. v. Newlin, 56 Ga. App. 428 , 192 S.E. 915 (1937); Sammons v. Webb, 86 Ga. App. 382 , 71 S.E.2d 832 (1952); McGowan v. Camp, 87 Ga. App. 671 , 75 S.E.2d 350 (1953); McDaniel v. Gysel, 155 Ga. App. 111 , 270 S.E.2d 469 (1980).

Grossly negligent conduct by passenger. —

When a person who is in an automobile which is being operated by another takes the steering wheel and undertakes to steer the automobile, and while so doing fails to look ahead and observe the course of the automobile, but gives the passenger’s attention to what the operator is doing, and when the automobile while thus being steered collides with a telegraph pole, and as a result of the collision a person on the back seat is thrown forward and sustains a fracture of the collar bone and the shoulder blade and other injuries from the effects of which the person is confined in a hospital for several months, the inference is authorized that the person in taking the steering wheel and steering the automobile, under the circumstances, was guilty of gross negligence. McCord v. Benford, 48 Ga. App. 738 , 173 S.E. 208 (1934).

“Guest passenger” rule changed. —

It has long been the rule in this state that one riding by invitation and gratuitously in another’s automobile cannot recover for injury caused by the other’s negligence in driving, unless it amounted to gross negligence. However, effective July 1, 1982, the “guest passenger” rule cited above was changed by O.C.G.A. § 51-1-36 , stating: “The operator of a motor vehicle owes to passengers therein the same duty of ordinary care owed by others.” Rider v. Taylor, 166 Ga. App. 474 , 304 S.E.2d 557 (1983).

No retroactive application of change in “guest passenger” rule. —

Trial court did not err in refusing to apply O.C.G.A. § 51-1-36 , changing the “guest passenger” rule as to the duty owed by an automobile operator to passengers to ordinary care, to a case involving a January 1981 accident, since, although a statute is “remedial” which affects only the procedure and practice of the courts and thus may be retroactive in application, the “guest passenger” rule established the duty owed by an automobile owner or operator to a nonpaying guest passenger, and there is nothing in the enactment of § 51-1-36 which discloses a legislative intent to apply the terms thereof retroactively. Rider v. Taylor, 166 Ga. App. 474 , 304 S.E.2d 557 (1983).

Speed alone not gross negligence. —

Although speed coupled with other circumstances may amount to gross negligence, when the record is devoid of any other circumstances which could be coupled with the plaintiffs’ allegation that the defendant was driving too fast for conditions, the plaintiffs have failed to make the requisite showing of gross negligence. Rider v. Taylor, 166 Ga. App. 474 , 304 S.E.2d 557 (1983).

Pleading and Practice

Gross negligence, such as will authorize recovery by guest in automobile against a host, must be expressly pled, unless the facts alleged in the petition are such as to demand the inference of its existence. Capers v. Martin, 54 Ga. App. 555 , 188 S.E. 465 (1936).

Sufficiency of complaint. —

Allegations that the defendant was guilty of gross negligence in willfully and deliberately driving the automobile into a ditch at the side of the road, without warning the petitioner of the petitioner’s intention to do so, are not subject to a motion to dismiss on the ground that they are a mere conclusion of the pleader without any facts alleged on which to base such charge of gross negligence. Frank v. Horovitz, 52 Ga. App. 651 , 183 S.E. 835 (1936).

Conclusory language regarding willful misconduct disregarded. —

When the gravamen of the action alleged is gross negligence, the characterization in the petition of the act of negligence as willful and wanton is a mere conclusion of the pleader and may be treated as surplusage if it be regarded as attempting to allege willful and wanton misconduct, and does not affect the sufficiency of a cause of action for gross negligence. Frye v. Pyron, 51 Ga. App. 613 , 181 S.E. 142 (1935).

Complaint against joint tort-feasors. —

When a petition, in a suit against two defendants, alleges that the plaintiff, while riding in the automobile which was owned by the defendant husband and at the time was being operated by the defendant wife, was injured by the automobile’s overturning on the road as a result of the blow-out of a tire and the sudden application of the brakes by the driver while the plaintiff was riding in the car either as a guest or in attendance on business for either the husband or the wife, and that the plaintiff’s injuries were proximately caused by the alleged negligence of both defendants, the allegations are sufficient as charging gross negligence against both defendants in the maintenance and operation of the automobile under the circumstances indicated and that such negligence was the proximate cause of the plaintiff’s injuries. Ragsdale v. Love, 50 Ga. App. 900 , 178 S.E. 755 (1935).

Allegation of gross negligence may encompass ordinary negligence. —

When the plaintiff sets forth facts and alleges acts of omission and commission on the part of the defendant which amount to gross negligence, and thereafter sets forth additional facts which would give rise to a duty on the part of the defendant to exercise ordinary care, and alleges that the same acts of omission and commission amount to ordinary neglect, such allegations would not be inconsistent, since any acts of omission or commission which amounted to the want of that care which is characterized as gross negligence would necessarily show an absence of that care which amounts to ordinary neglect. Blanchard v. Ogletree, 41 Ga. App. 4 , 152 S.E. 116 (1929).

Res ipsa loquitur doctrine not applicable to gross negligence. —

While the rule of evidence expressed in the maxim res ipsa loquitur may make out a prima facie case of ordinary negligence, it is insufficient in itself to make out a prima facie case of gross negligence. Minkovitz v. Fine, 67 Ga. App. 176 , 19 S.E.2d 561 (1942).

Jury Instructions

Court in undertaking to give definition of this section should not omit the words, “how inattentive soever he may be.” Southern Mut. Ins. Co. v. Hudson, 113 Ga. 434 , 38 S.E. 964 (1901); Seaboard & R.R. v. Cauthen, 115 Ga. 422 , 41 S.E. 653 (1902).

It is error for trial court to use the words “entire absence of care” in defining gross negligence when the use of such expression can be interpreted as meaning that in order to prove gross negligence an entire absence of care must be proved. Caskey v. Underwood, 89 Ga. App. 418 , 79 S.E.2d 558 (1953).

Charge improperly enlarges plaintiff’s burden of proof. —

When a case was based on gross negligence by the pleadings and the evidence, and not on willful and wanton negligence or misconduct, it was error for the court to charge the jury that if it found from the evidence that the driver of the car showed that entire absence of care which would raise the presumption of conscious indifference, or that the driver acted with reckless indifference, or with actual or imputed knowledge that the inevitable or probable consequences of the driver’s conduct would be to inflict injury, the jury would be authorized to find that the driver’s conduct amounted to gross negligence, as this charge placed too great a burden on the plaintiff. Dixon v. Merry Bros. Brick & Tile Co., 56 Ga. App. 626 , 193 S.E. 599 (1937).

Entire absence of care would generally, if not always, result in wanton misconduct; also, charging the entire absence of care as a part of the definition of gross negligence would very likely confuse the jury and cause the jury to assume that before one could be guilty of gross negligence there must be an entire absence of care. Caskey v. Underwood, 89 Ga. App. 418 , 79 S.E.2d 558 (1953).

When judge gave elaborate definition of gross negligence and later in charge gave exact definition appearing in this section, the two definitions are in no wise conflicting. Hatcher v. Bray, 88 Ga. App. 344 , 77 S.E.2d 64 .

Gross Negligence as Jury Question

When jury question is presented. —

Jury question is presented only when reasonable men could disagree as to whether the facts alleged constitute gross negligence. Harris v. National Evaluation Sys., 719 F. Supp. 1081 (N.D. Ga. 1989), aff'd, 900 F.2d 266 (11th Cir. 1990).

When a community service participant was assigned to work for the county sanitation department and was killed after falling from the back of a garbage truck while doing this work, no liability could be assigned for assigning the participant to work for the department, as it was properly authorized to participate in the community service program, but the facts that the participant was not issued safety shoes issued to department employees and was told to ride on the back of the truck, even though it was going over 10 miles per hour on a busy highway, contrary to department policy, created a fact issue as to the county’s gross negligence, under O.C.G.A. § 51-1-4 , and willful misconduct; therefore, the county was not entitled to summary judgment, under O.C.G.A. § 42-8-71(d). Currid v. DeKalb State Court Prob. Dep't, 274 Ga. App. 704 , 618 S.E.2d 621 (2005), cert. denied, No. S05C2028, 2005 Ga. LEXIS 894 (Ga. Dec. 1, 2005).

Services provided by an emergency room physician to a patient who presented with a high pressure puncture wound to one hand were “bona fide emergency services” under O.C.G.A. § 51-1-29.5(a)(5), and the physician was therefore only liable if grossly negligent; evidence that the physician failed to contact a hand surgeon for 7 hours after determining that emergency surgery was necessary was sufficient to go to the jury. Abdel-Samed v. Dailey, 294 Ga. 758 , 755 S.E.2d 805 (2014).

Questions of negligence and diligence, even of gross negligence and slight diligence, are as a rule to be determined by the jury, and should not be settled by the court as a matter of law, except in plain and indisputable cases. Frye v. Pyron, 51 Ga. App. 613 , 181 S.E. 142 (1935); Frank v. Horovitz, 52 Ga. App. 651 , 183 S.E. 835 (1936); Atlantic Ice & Coal Corp. v. Newlin, 56 Ga. App. 428 , 192 S.E. 915 (1937); Moore v. Shirley, 68 Ga. App. 38 , 21 S.E.2d 925 (1942); Hennon v. Hardin, 78 Ga. App. 81 , 50 S.E.2d 236 (1948); Carpenter v. Lyons, 78 Ga. App. 214 , 50 S.E.2d 850 (1948); Lawrence v. Hayes, 92 Ga. App. 778 , 90 S.E.2d 102 (1955); Pannell v. Fuqua, 111 Ga. App. 18 , 140 S.E.2d 280 (1965); McDaniel v. Gysel, 155 Ga. App. 111 , 270 S.E.2d 469 (1980).

When one driving an automobile is so inattentive as to look to the side and not keep a constant lookout ahead, when there is an object in the driver’s path which is clearly visible that the driver might run into, the question is ordinarily one for the jury as to whether, under all of the proven relevant facts and circumstances of the case, the driver’s failure to exercise the precaution of looking along the street ahead of the vehicle is gross negligence. Capers v. Martin, 54 Ga. App. 555 , 188 S.E. 465 (1936).

In an action by a gratuitous invited guest against the owner of the automobile in which the guest was riding when injured, the allegations of the petition presented a jury question as to whether the driver was guilty of gross negligence. Hennon v. Hardin, 78 Ga. App. 81 , 50 S.E.2d 236 (1948).

While violation of the speed laws alone would not in and of itself constitute gross negligence, and the violation of a state law by the driver of an automobile does not necessarily amount to gross negligence, it cannot be said as a matter of law that one driving an automobile 70 miles per hour around a 45 degree curve, and attempting to pass another automobile on such curve, is not guilty of gross negligence; this would be a question for the jury. Hennon v. Hardin, 78 Ga. App. 81 , 50 S.E.2d 236 (1948).

Exact point when ordinary negligence or lack of ordinary care passes into and becomes willful and wanton negligence is jury question, under definite instruction from the trial judge that the facts must show that the failure to exercise ordinary care was not only negligence but that it amounted to willful and wanton negligence. Humphries v. Southern Ry., 51 Ga. App. 585 , 181 S.E. 135 (1935).

Failure to refer emergency patient to hand surgeon presented jury question as to gross negligence. —

Because a doctor provided care to a patient who had received a high pressure puncture wound to the patient’s hand that required emergency surgery, it was clear that the heightened burden of proving gross negligence for emergency services in O.C.G.A. § 51-1-29.5(c) was applicable. The facts were sufficient to go to the jury on the issue of gross negligence. Abdel-Samed v. Dailey, 294 Ga. 758 , 755 S.E.2d 805 (2014).

Summary judgment was properly granted in favor of a fitness facility because a decedent who drowned in the facility’s pool had signed a valid exculpatory agreement that waived the facility’s liability for negligence and the facility’s lifeguards had not acted grossly negligently pursuant to O.C.G.A. § 51-1-4 in turning their attention to a maintenance duty because: (1) there were few swimmers in the pool; (2) the decedent was an experienced swimmer who was in training to be a military rescue swimmer; and (3) upon discovering that the decedent was unconscious for three to five minutes, the lifeguards began immediate rescue and resuscitation efforts; further, the facility’s failure to follow Red Cross safety standards did not constitute gross negligence because there was no evidence that the facility was required to follow such standards. Flood v. Young Woman's Christian Ass'n of Brunswick, Ga., Inc., 398 F.3d 1261 (11th Cir. 2005).

General Consideration

Conduct of child of tender years is not to be judged by same rule that governs actions of adult. Huckabee v. Grace, 48 Ga. App. 621 , 173 S.E. 744 (1934).

No invariable rule. —

Care and diligence required of an infant of tender years is not fixed by any invariable rule with reference to the age of the infant or otherwise. It depends upon the capacity of the particular infant, taking into consideration the infant’s age as well as other matters. McLarty v. Southern Ry., 127 Ga. 161 , 56 S.E. 297 (1906); MacDougald Constr. Co. v. Mewborn, 34 Ga. App. 333 , 129 S.E. 917 (1925).

Due care in child of tender years is such care as the child’s capacity, mental and physical, fits the child for exercising in actual circumstances of the occasion and situation under investigation. Rogers v. McKinley, 48 Ga. App. 262 , 172 S.E. 662 (1934); Huckabee v. Grace, 48 Ga. App. 621 , 173 S.E. 744 (1934).

Child of tender years may not be under the duty of exercising ordinary care as defined in § 51-1-2 , but the child is charged with the duty of exercising such care as the child’s capacity, mental and physical, fits the child for exercising, this capacity to be judged by the jury from the circumstances surrounding the transaction under investigation, and the child’s conduct in reference thereto. Huckabee v. Grace, 48 Ga. App. 621 , 173 S.E. 744 (1934).

Neither average child of child’s own age, nor prudent man, is standard by which to measure child’s diligence with legal exactness. Clary Maytag Co. v. Rhyne, 41 Ga. App. 72 , 151 S.E. 686 (1930); Jackson v. Young, 125 Ga. App. 342 , 187 S.E.2d 564 (1972).

Section speaks in terms of particular youthful plaintiff in particularized circumstances. The child, unlike an adult counterpart, does not undergo the metamorphosis into the fictionalized character of the ordinary prudent youth. Williams v. United States, 379 F.2d 719 (5th Cir. 1967).

This section means such care as the capacity of the particular child enables the child to use naturally and reasonably, and not the care ordinarily exercised and which should reasonably be expected from a child of the child’s years and experience, under the circumstances in which the child is placed. Ragan v. Goddard, 43 Ga. App. 599 , 159 S.E. 743 (1931).

Merely because a petition alleged in effect that a child was intelligent and unusually well developed, the degree of care which the child was required to exercise was still to be measured by the child’s own particular capacity, in the light of the actual circumstances of the occasion and situation under investigation. Ragan v. Goddard, 43 Ga. App. 599 , 159 S.E. 743 (1931).

For child to be negligent, child must be shown to have appreciation of risk involved, and a general showing that the child was aware of the factual situation is not sufficient. It must be shown that the child was aware of and appreciated the danger of the situation. Williams v. United States, 379 F.2d 719 (5th Cir. 1967).

Due care under age 14. —

Infants under 14 years of age are chargeable with contributory negligence resulting from a want of such care as their mental and physical capacity fits them for exercising, and assume the risk of those patent, obvious, and known dangers which they are able to appreciate and avoid. Evans v. Mills, 119 Ga. 448 , 46 S.E. 674 (1904); MacDougald Constr. Co. v. Mewborn, 34 Ga. App. 333 , 129 S.E. 917 (1925).

Child of tender years, under 14 years of age, is not bound to exercise due care as an adult (exacted of every prudent man) but according to the child’s age and capacity. Sturdivant v. Polk, 140 Ga. App. 152 , 230 S.E.2d 115 (1976).

Child guest 13 years of age, not being so young as to be as a matter of law incapable of negligence, and not being bound to exercise the same measure of ordinary care which is exacted of every prudent adult, is nevertheless required under the Code to exercise the “due care” of a child of “tender years.” Eddleman v. Askew, 50 Ga. App. 540 , 179 S.E. 247 (1935), overruled, Chadwick v. Miller, 169 Ga. App. 338 , 312 S.E.2d 835 (1983).

There is no presumption of law that child between ages of seven and 14 did or did not exercise due care, or does or does not have sufficient capacity to recognize danger or to observe due care. Jackson v. Young, 125 Ga. App. 342 , 187 S.E.2d 564 (1972).

Child under four years old. —

Child of four years or younger is conclusively presumed to be incapable of contributory negligence. Crawford v. Southern Ry., 106 Ga. 870 , 33 S.E. 826 (1899); City of Atlanta v. Whitley, 24 Ga. App. 411 , 101 S.E. 2 (1919); Williams v. Jones, 26 Ga. App. 558 , 106 S.E. 616 (1921).

Due care over age 14. —

If 16 year old plaintiff had desired to avoid the legal presumption that the law treated the plaintiff as an adult, the burden was on the plaintiff to offer proof to rebut the presumption. Sheetz v. Welch, 89 Ga. App. 749 , 81 S.E.2d 319 (1954).

Child, 15 years of age, in the absence of any evidence of the want of ordinary capacity in the particular child, should not be treated as a child of “tender years,” but as a young person chargeable with such diligence as might fairly be expected of the class and condition to which the child belongs. Laseter v. Clark, 54 Ga. App. 669 , 189 S.E. 265 (1936).

Child over 14 years is presumptively chargeable with some degree of diligence as an adult under the same circumstances. Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558 , 94 S.E. 821 (1918); Texas Co. v. Hearn, 23 Ga. App. 408 , 98 S.E. 419 (1919); Paulk & Fossil v. Lee, 31 Ga. App. 629 , 121 S.E. 845 (1924).

Young person of the age of 14 or more is presumed to be capable of realizing danger, and of exercising the necessary forethought and caution to avoid it, and is presumptively chargeable with diligence for the person’s own safety, when the peril is palpable and manifest. Laseter v. Clark, 54 Ga. App. 669 , 189 S.E. 265 (1936).

Regardless of age, if there is no breach of legal duty on part of defendant toward that person, there can be no legal liability. YMCA v. Bailey, 112 Ga. App. 684 , 146 S.E.2d 324 (1965), cert. denied, 385 U.S. 868, 87 S. Ct. 131 , 17 L. Ed. 2 d 95 (1966).

Contributory Negligence

General rules on contributory negligence not necessarily applicable to children. —

Although it is the general rule with regard to an adult that to entitle the adult to recover damages for an injury resulting from the negligence of another the adult must be personally in the exercise of ordinary care, this is not the rule with regard to an infant of tender years. Huckabee v. Grace, 48 Ga. App. 621 , 173 S.E. 744 (1934).

Assumption of risk not applicable to child’s conduct. —

If, because of the child’s age, a child did not understand the risk involved in the child’s conduct, the child’s failure to exercise ordinary care to discover the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence. Hawkins ex rel. Pearson v. Small World Day Care Ctr., Inc., 234 Ga. App. 843 , 508 S.E.2d 200 (1998).

Children may be negligent if violating standards applicable to them. —

There is no liability if the injured person, by the exercise of that degree of care which the law required of the person, could have avoided the consequences of any negligence of which the defendant may have been guilty. YMCA v. Bailey, 112 Ga. App. 684 , 146 S.E.2d 324 (1965), cert. denied, 385 U.S. 868, 87 S. Ct. 131 , 17 L. Ed. 2 d 95 (1966).

Whether or not a child 15 years of age, who was riding on a truck driven by one whose negligence was not imputable to the child, should be held presumptively liable to the same standard of care as would control an ordinary adult or an ordinarily experienced adult driver, one could not even in that event be held liable as a matter of law for any contributory negligence on the child’s part, unless the child’s peril was palpable and manifest and the child failed to exercise that care which would have been exercised under similar circumstances by an ordinarily prudent adult. Laseter v. Clark, 54 Ga. App. 669 , 189 S.E. 265 (1936).

Question of capacity or lack of capacity to be contributorily negligent in case of children, even very young children, is subjective one which necessarily depends in each situation upon the particular child’s mental and physical capacity. Brewer v. Gittings, 102 Ga. App. 367 , 116 S.E.2d 500 (1960); Jackson v. Young, 125 Ga. App. 342 , 187 S.E.2d 564 (1972); Ashbaugh v. Trotter, 237 Ga. 46 , 226 S.E.2d 736 (1976).

Proof of child’s negligence admissible to prove vicarious liability. —

Negligence may be alleged to show the injurious conduct of a child in support of an action against another who bears responsibility on account of the conduct of the child, even if the child cannot be charged with contributory negligence to defeat or diminish recovery in an action in one’s behalf, or with negligence to support an action directed against the child. Miles v. Harrison, 115 Ga. App. 143 , 154 S.E.2d 377 , rev'd, 223 Ga. 352 , 155 S.E.2d 6 (1967).

Duty of Care Owed to Children

Children of tender years are entitled to degree of care proportioned to their ability to foresee and avoid perils which may be encountered. Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752 , 92 S.E.2d 720 (1956).

Child’s ability to appreciate danger generally not presumed. As to a child seven years old, no presumption arises that the child will appreciate danger and will act with the discretion of an adult in going upon a railroad track and in getting out of the way of an approaching train, and persons in charge of such a train are not authorized to act on such a presumption. Simmons v. Atlanta & W.P.R.R., 46 Ga. App. 93 , 166 S.E. 666 (1932).

Nor does a child servant necessarily assume risk. —

If there are latent defects in machinery or dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, the master must give the servant warning in respect thereto, and this is especially true when the servant is a child of tender years, since, while it is the general rule that a servant assumes the ordinary risks of the servant’s employment and is bound to exercise the servant’s own skill and diligence to protect oneself, a child of tender years, under the age of 14, assumes only such ordinary risks of the servant’s employment as the servant is capable of appreciating and understanding, and a master who, by personally or through an authorized agent, directs such a child to do an act which, if performed according to the means and method provided by the master, would be attended with danger, owes the duty of warning the servant of the dangers incident to its performance, and in doing so must take into consideration the child’s incapacity to appreciate and understand danger, and in such a case the duty incumbent upon the child is to exercise due care according to the child’s age and the child’s own actual capacity, rather than the ordinary care exacted by the general rule of every prudent man. Moore v. Ross, 41 Ga. App. 509 , 153 S.E. 575 (1930).

Duty of schoolbus driver. —

It is the duty of a schoolbus driver to deposit a passenger in a place of safety and, in the case of an infant, whether or not a place of deposit is a place of safety cannot be determined solely by whether or not one would be safe if the passenger remained on that spot. Davidson v. Horne, 86 Ga. App. 220 , 71 S.E.2d 464 (1952).

There was no duty on the part of a schoolbus driver to assist a nine year old child in crossing the highway safely. Davidson v. Horne, 86 Ga. App. 220 , 71 S.E.2d 464 (1952).

Jury Instructions

Consistency of instructions. —

Immediately after defining negligence in a proper manner and stating that the plaintiff and the defendant were both required to exercise ordinary diligence, the court immediately went on to use the language of this section, construing this portion of the charge as a whole, it was not erroneous and could not have misled the jury. Brewer v. Gittings, 102 Ga. App. 367 , 116 S.E.2d 500 (1960).

Explanation of due care unnecessary when plaintiff not negligent as matter of law. —

When the court charged the jury that the plaintiff as a matter of law could not be charged with any negligence, it was not error, in the absence of a special request, for the court to fail to charge more elaborately, as laid down in this section, the rule as to care attributable to a child of tender years, or in failing to charge that the plaintiff, a child of four years, was a child of tender years, and was incapable of being guilty of contributory negligence. Tharpe v. Cudahy Packing Co., 60 Ga. App. 449 , 4 S.E.2d 49 (1939).

Instruction on standard of care sufficient as instruction on negligence. —

Having instructed the jury as to the standard of care expected of a child, it is unnecessary for the court to repeat such instructions in each instance when referring to the negligence of the child. Shirey v. Woods, 118 Ga. App. 851 , 165 S.E.2d 891 (1968).

Tender years instruction improper in accidental shooting case. —

In case in which 15-year-old defendant shot plaintiff’s 14-year-old son while attempting to unload the defendant’s gun during a hunting trip, trial court committed reversible error in giving a child of tender years instruction absent evidence either child lacked the capacity of a person the child’s age. Townsend v. Moore, 165 Ga. App. 606 , 302 S.E.2d 398 (1983).

Child’s Negligence as Jury Question

Question of infant’s alleged negligence is one for jury under appropriate instructions from trial court. Canton Cotton Mills v. Edwards, 120 Ga. 447 , 47 S.E. 937 (1904); Beck v. Standard Cotton Mills, 1 Ga. App. 278 , 57 S.E. 998 (1907); Savannah Lighting Co. v. Harrison, 20 Ga. App. 8 , 92 S.E. 772 (1917); Western & A.R.R. v. Reed, 35 Ga. App. 538 , 134 S.E. 134 (1926); Smith v. Kleinberg, 49 Ga. App. 194 , 174 S.E. 731 (1934); Etheridge v. Hooper, 104 Ga. App. 227 , 121 S.E.2d 323 (1961); Ashbaugh v. Trotter, 237 Ga. 46 , 226 S.E.2d 736 (1976); Davis v. Webb, 149 Ga. App. 144 , 253 S.E.2d 820 (1979).

Question of contributory negligence of child of tender years is one especially for jury. Davis v. General Gas Corp., 106 Ga. App. 317 , 126 S.E.2d 820 (1962).

Child under six years of age. —

Trial court did not err in failing to charge the jury upon request that a child under six years old is presumed incapable of contributory negligence. Clanton v. Gwinnett County Sch. Dist., 219 Ga. App. 343 , 464 S.E.2d 918 (1995), cert. denied, No. S96C0535, 1996 Ga. LEXIS 453 (Ga. Mar. 1, 1996).

Running into the street. —

In determining issues of proximate causation, it was for the jury to decide the issue of due care owed as to a nine-year-old child who ran into the street and was hit by a truck. Atlanta Affordable Hous. Fund L.P. v. Brown, 253 Ga. App. 286 , 558 S.E.2d 827 (2002), cert. denied, No. S02C0754, 2002 Ga. LEXIS 476 (Ga. May 28, 2002).

Question of an 11-year-old child’s contributory negligence is for the jury. Fraley ex rel. Fraley v. Lake Winnepesaukah, Inc., 631 F. Supp. 160 (N.D. Ga. 1986).

Whether child under 14 is capable of negligence, except in plain and unmistakable cases, is question for determination by jury. Williams v. United States, 352 F.2d 477 (5th Cir. 1965).

Capacity of child, age seven or above, to appreciate danger and exercise some degree of care, is matter of fact for jury determination. Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752 , 92 S.E.2d 720 (1956); Brewer v. Gittings, 102 Ga. App. 367 , 116 S.E.2d 500 (1960); Miles v. Harrison, 115 Ga. App. 143 , 154 S.E.2d 377 , rev'd, 223 Ga. 352 , 155 S.E.2d 6 (1967); Shirey v. Woods, 118 Ga. App. 851 , 165 S.E.2d 891 (1968).

Jury must find child had requisite capacity. —

Since the question of capacity is an individual one in each of the cases involving children between seven and 14 years of age, the jury must first find that the particular child had the capacity required and then must decide whether or not the child exercised it. Brewer v. Gittings, 102 Ga. App. 367 , 116 S.E.2d 500 (1960); Jackson v. Young, 125 Ga. App. 342 , 187 S.E.2d 564 (1972).

Whether care exercised according to capacity. —

Jury is to determine what were the circumstances and facts of the matter under investigation and then determine the child’s age and mental and physical capacity at the time of the injury and from this then determine what care the child was capable of exercising and whether or not the child exercised that particular care which would be the due care expected of the child by law. Clary Maytag Co. v. Rhyne, 41 Ga. App. 72 , 151 S.E. 686 (1930); Davis v. Webb, 149 Ga. App. 144 , 253 S.E.2d 820 (1979).

Negligence of child guest. —

In automobile collision cases, whether a child guest of tender years exercised the measure of due care required by the Code under the actual circumstances of the occasion and situation is a question peculiarly for a jury, and not a question of law to be decided by the court, except in clear and palpable cases. Eddleman v. Askew, 50 Ga. App. 540 , 179 S.E. 247 (1935), overruled, Chadwick v. Miller, 169 Ga. App. 338 , 312 S.E.2d 835 (1983).

Jury may apply child’s standard to older minors when appropriate. —

While the standard of ordinary care of a child of 14 or 15 is presumptively that of an adult, the youth and inexperience of a child of this age are to be considered and the matter ordinarily left as a question of fact for the jury rather than as a matter of law for the court. Lassiter v. Poss, 85 Ga. App. 785 , 70 S.E.2d 411 (1952).

General Consideration

Section does not create a cause of action; it simply authorizes the recovery of damages for breach of a legal duty and did not apply in an action brought under O.C.G.A. § 36-33-4 . City of Buford v. Ward, 212 Ga. App. 752 , 443 S.E.2d 279 (1994), cert. denied, No. S94C1167, 1994 Ga. LEXIS 851 (Ga. July 7, 1994).

Construction with federal law. —

Trial court erred in granting judgment on the pleadings to a bank as to a customer’s negligence claim because the allegations of the complaint, taken as true, established the elements of negligence; the Gramm-Leach-Biley Act (GLBA), 15 U.S.C. § 6801(a) , imposed a legal duty upon the bank to protect the customer’s confidential personal information, and a duty imposed by a federal statute such as the GLBA was a duty imposed by law under O.C.G.A. § 51-1-6 . Jenkins v. Wachovia Bank, N.A., 314 Ga. App. 257 , 724 S.E.2d 1 (2012), vacated in part, 325 Ga. App. 376 , 752 S.E.2d 633 (2013), rev'd, 293 Ga. 162 , 744 S.E.2d 686 (2013).

Georgia Court of Appeals erred in holding that a violation of an alleged duty imposed by the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., gave rise to a cause of action for negligence under O.C.G.A. § 51-1-6 because no duty was imposed against a bank under § 6801(a) to protect a customer’s confidential information. Wells Fargo Bank, N.A. v. Jenkins, 293 Ga. 162 , 744 S.E.2d 686 (2013).

Statute does not create remedy against grandparents for violation of abandonment statute. —

Legislature allowed for contempt, garnishment, and income withholding to enforce child support obligations and did not intend to create additional implied remedies under O.C.G.A. § 51-1-6 for violation of O.C.G.A. § 19-10-1 , the child abandonment statute. Therefore, a wife was not entitled to recover damages from her ex-husband’s parents for her husband’s violation of O.C.G.A. § 19-10-1 . Bridges v. Wooten, 305 Ga. App. 682 , 700 S.E.2d 678 (2010).

O.C.G.A. § 51-1-6 is designed to provide a cause of action for the breach of a legal duty when one does not otherwise exist as indicated by the plain language of the statute that it operates when “no cause of action is given in express terms.” Cruet v. Emory Univ., 85 F. Supp. 2d 1353 (N.D. Ga. 2000).

Failure to specify the law or regulation. —

Cable company employee who was injured when a guy wire owned by the cable company came loose and struck the employee while the employee was working on a utility pole owned by a power company failed to establish negligence per se under O.C.G.A. § 51-1-6 because the employee did not specify any statute, ordinance, or regulation that the power company violated. Schaff v. Snapping Shoals Elec. Mbrshp. Corp., 330 Ga. App. 161 , 767 S.E.2d 807 (2014), cert. denied, No. S15C0637, 2015 Ga. LEXIS 172 (Ga. Mar. 2, 2015).

No civil remedy provided for theft by conversion. —

Although O.C.G.A. § 51-10-6 expressly provided for a civil recovery for thefts, under Georgia case law, the statute could not be used to establish a civil remedy for the specific crime of theft by conversion. Nor had O.C.G.A. § 51-1-6 been used to create a civil remedy for violations of the theft by conversion statute. Thomas Concrete of Ga., Inc. v. Osbourne (In re Osbourne), No. 10-82440-WLH, No. 10-06621, 2017 Bankr. LEXIS 2414 (Bankr. N.D. Ga. Aug. 24, 2017).

Right to recover even nominal damages. —

When there is fraud or breach of a legal or private duty accompanied by any damage, the law gives a right to recover damages, even only nominal damages, as compensation. Holmes v. Drucker, 201 Ga. App. 687 , 411 S.E.2d 728 (1991).

Calculation of amount of damage suffered. —

Creditor would not necessarily be entitled to a claim in the full amount of the creditor’s materialman’s liens under O.C.G.A. § 44-14-361 but, rather, would only be entitled to recover the damages the creditor suffered pursuant to O.C.G.A. § 51-1-6 due to the debtor’s crime of false swearing, which would be the value of liens lost, which in turn depended on the value of the properties to which the liens attached and the existence of any superior liens on those properties. In the absence of an established underlying claim, summary judgment in the creditor’s favor on the creditor’s nondischargeability claims was not warranted. Thomas Concrete of Ga., Inc. v. Osbourne (In re Osbourne), No. 10-82440-WLH, No. 10-06621, 2017 Bankr. LEXIS 2414 (Bankr. N.D. Ga. Aug. 24, 2017).

Commission or omission of act by the defendant, and damage to the plaintiff in consequence thereof, must unite to give one good cause of action. No one of these facts by itself is a cause of action against the defendant. Pinholster v. McGinnis, 155 Ga. App. 589 , 271 S.E.2d 722 (1980).

Liability in every tort case rests upon breach of duty and resultant injury or damage to one to whom duty is owed. Cooper v. Anderson, 96 Ga. App. 800 , 101 S.E.2d 770 (1957), aff'd, 214 Ga. 164 , 104 S.E.2d 90 (1958).

Regardless of age or capacity of injured person, if there is no breach of legal duty on the part of the defendant toward such person, there can be no legal liability. Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752 , 92 S.E.2d 720 (1956).

Duty imposed by law means either duty imposed by a valid statutory enactment of the legislature or duty imposed by recognized common-law principle declared in the reported decisions of the appellate courts of the state or jurisdiction involved. Mauldin v. Sheffer, 113 Ga. App. 874 , 150 S.E.2d 150 (1966).

Occupational Safety and Health Act regulations by definition constitute a duty under the law and breach of those regulations is a violation of law. The regulations should be admissible not merely as “standards” of performance, but as evidence of legal duty, violation of which may give a cause of action under O.C.G.A. § 51-1-6 , though, in this case, the trial court ruled judiciously in excluding evidence of OSHA regulations that was cumulative to the ordinary care evidence that was allowed. Cardin v. Telfair Acres of Lowndes County, Inc., 195 Ga. App. 449 , 393 S.E.2d 731 (1990).

OSHA regulations. —

Occupational Safety and Health Administration (OSHA) regulations are admissible not merely as “standards” of performance, but as evidence of legal duty, violation of which may give a cause of action under O.C.G.A. § 51-1-6 ; however, applicability in a particular case and relevancy, depend on the relationship of the parties. Dupree v. Keller Indus., Inc., 199 Ga. App. 138 , 404 S.E.2d 291 (1991), cert. denied, No. S91C0922, 1991 Ga. LEXIS 698 (Ga. May 15, 1991).

Occupational Safety and Health Administration (OSHA) regulates obligations between an employer and its employees; thus, evidence of a violation of an OSHA regulation by a contractor hired by the city water and sewer department was not pertinent in a negligence action against the contractor by a city employee. Brantley v. Custom Sprinkler Sys., 218 Ga. App. 431 , 461 S.E.2d 592 (1995).

OSHA standards as evidence of duty. —

OSHA standards for the construction of stairs provided in 29 C.F.R. § 1910.24(f) applied to an office building in which an employee fell. The trial court erred in refusing to charge the jury on these standards because the evidence presented issues for the jury to resolve regarding whether the employer violated the stair safety standards, which were admissible not merely as standards of performance but as evidence of legal duty. Smith v. CSX Transp., Inc., 306 Ga. App. 897 , 703 S.E.2d 671 (2010), aff'd, 289 Ga. 903 , 717 S.E.2d 209 (2011).

No breach of duty found following fire at chicken processing plant. —

In a product’s liability and negligence action brought following a fire at a chicken processing plant, the trial court erred by denying summary judgment motions by a manufacturer and an insulation services company with regard to the owners’ negligence per se claims because the owners failed to establish that a breach of any duty in the Georgia Life Safety Code was the proximate cause of the injury. R & R Insulation Servs. v. Royal Indem. Co., 307 Ga. App. 419 , 705 S.E.2d 223 (2010).

Violated statute should have been intended to benefit plaintiff. —

This Code section provides a cause of action for violations of statutes that are intended to benefit the party bringing the suit. Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991).

Plaintiff, staff member at defendant’s school, was not within class of protected persons contemplated by the child abuse reporting statute (§ 19-7-5 ), and his claim for damages under this Code section could not survive summary judgment. Odem v. Pace Academy, 235 Ga. App. 648 , 510 S.E.2d 326 (1998), cert. denied, No. S99C0485, 1999 Ga. LEXIS 293 (Ga. Mar. 5, 1999).

Same duty may arise from different basic obligations imposed by law upon several defendants. Cooper v. Anderson, 96 Ga. App. 800 , 101 S.E.2d 770 (1957), aff'd, 214 Ga. 164 , 104 S.E.2d 90 (1958).

In determining whether a rule illustrates duty of defendant, its scope will not, by implication, be extended beyond its clear and obvious meaning. McGinnis v. Shaw, 46 Ga. App. 248 , 167 S.E. 533 (1933).

It is never to be presumed that a person will commit a wrongful act or will act negligently or improperly. Porter v. Patterson, 107 Ga. App. 64 , 129 S.E.2d 70 (1962).

Performance of duty presumed unless contrary shown. —

Negligence or breach of duty is not to be anticipated, but until the contrary is shown it is to be presumed that every man obeys the mandates of the law and performs all of the person’s social and official duties. Porter v. Patterson, 107 Ga. App. 64 , 129 S.E.2d 70 (1962).

Present action based on future promise good when false representations made at time of promise. —

When the petition discloses a promise of something to occur in the future the element of futurity is not fatal to a cause of action when in connection with a promise a false representation has been made. Bishop v. Greene, 62 Ga. App. 126 , 8 S.E.2d 448 (1940).

Action may arise from harmful effects though act itself is lawful. —

Though an act may be in itself lawful, yet, if in its effects or consequences, it is productive of any injury to another, it subjects the party to this action. Carpenter v. Williams, 41 Ga. App. 685 , 154 S.E. 298 (1930).

Liability does not depend upon anticipating particular injury or that a particular person would be injured. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977).

No duty to warn when knowledge among parties nearly equal. —

When knowledge among the parties is nearly, if not precisely, equal, and a warning from the defendants would have been met with the response “I know,” there arises no duty to warn of a potential danger. McNish v. Gilbert, 184 Ga. App. 234 , 361 S.E.2d 231 (1987).

Before negligence can be actionable it must be proximate cause of or part of proximate cause of injury received. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977).

Proximate cause is not last act or cause or nearest act to the injury; it is negligent act that actively aids in producing the injury as direct and existing cause. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977).

Acts of third party may break causal link. —

General rule is that when there has intervened between the defendant’s negligence and the injury an independent, illegal act of a third person producing the injury, and without which the injury would not have occurred, such independent criminal act should be treated as the proximate cause, insulating and excluding the negligence of the defendant. The rule is inapplicable if the original wrongdoer had reasonable grounds for apprehending that such criminal act would be committed. Decker v. Gibson Prods. Co., 505 F. Supp. 34 (M.D. Ga. 1980), rev'd, 679 F.2d 212 (11th Cir. 1982).

Causal connection between original negligence and injury not broken by intervening act of third person when same reasonably foreseen by original wrongdoer. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977).

Proof that the plaintiff’s impaired condition was not the proximate result of the defendant’s negligence demands a verdict in favor of the defendant. Pinholster v. McGinnis, 155 Ga. App. 589 , 271 S.E.2d 722 (1980).

Action based upon negligence is not cognizable under Georgia law when the alleged damages are economic. A.J. Kellos Constr. Co. v. Balboa Ins. Co., 495 F. Supp. 408 (S.D. Ga. 1980).

Violation of O.C.G.A. § 9-2-5(a) , prohibiting prosecution of two simultaneous actions for the same cause against the same party, would not give rise to a cause of action for damages, since the statute does not impose upon the plaintiffs a substantive legal duty but rather is simply a procedural matter. Hose v. Jason Property Mgt. Co., 178 Ga. App. 661 , 344 S.E.2d 483 (1986).

No damages for breach of oral contract for sale of realty. —

Damages for the failure of a party to carry out the purported terms of an oral contract for the sale of realty were not authorized. Zappa v. Basden, 188 Ga. App. 472 , 373 S.E.2d 246 (1988).

Duty to follow bylaws. —

Hospital has a legal duty to follow the hospital’s existing bylaws and any alleged breach of that duty can be asserted as a cause of action under O.C.G.A. § 51-1-6 . Rowell v. Phoebe Putney Mem. Hosp., Inc., 338 Ga. App. 603 , 791 S.E.2d 183 (2016).

Making of false statements. —

No private cause of action lies for false statements made in judicial proceedings. Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991).

Code Section 16-10-20, which prohibits the making of false statements in any matter within the jurisdiction of any department or agency of state government or the government of any political subdivision of the state, was enacted for the protection of the state itself — not private parties, and it does not create a civil cause of action. Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991).

Judgment in favor of a bank customer whose identity was stolen by a bank employee was reversed because the Georgia Court of Appeals erred in holding that a violation of an alleged duty imposed by the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., gave rise to a cause of action for negligence under O.C.G.A. § 51-1-6 because no duty was imposed against a bank under § 6801(a) to protect a customer’s confidential information. Wells Fargo Bank, N.A. v. Jenkins, 293 Ga. 162 , 744 S.E.2d 686 (2013).

Counties without legislative authority to collect 911 tax. —

Charge imposed under the Georgia Emergency Telephone 911 Service Act, O.C.G.A. § 46-5-120 et seq., was a tax as a matter of law, and counties did not have the required legislative authority under Ga. Const. 1983, Art. VII, Sec. I, Par. III(a), to sue telephone companies to recover charges not collected from subscribers; neither the Act nor the tort statutes, O.C.G.A. §§ 51-1-6 and 51-1-8 , provided such authority. Bellsouth Telecoms., LLC v. Cobb County, 305 Ga. 144 , 824 S.E.2d 233 (2019).

Summary judgment properly denied as to proximate cause. —

Summary judgment for town and railway was properly denied as to proximate cause as neither eyewitness of a train-truck accident had a continuous, direct view of the area in which the decedent allegedly did not stop the truck. Town of Register v. Fortner, 274 Ga. App. 586 , 618 S.E.2d 26 (2005), cert. denied, No. S05C2038, 2005 Ga. LEXIS 804 (Ga. Nov. 7, 2005).

Applicability to Specific Cases

1.Duty of Care Imposed

Common carrier’s duty to inspect. —

While a carrier of passengers is not bound to keep up a continuous inspection, or to know at every moment the condition of every part of its cars, yet inspection of the cars should be adequate and sufficient, and should be made with such frequency as the liability to impairment reasonably requires and as is practically possible consistent with the conduct of its business. Leslie v. Georgia Power Co., 47 Ga. App. 723 , 171 S.E. 395 (1933).

Common carrier’s duty to transport passengers. —

It is the legal duty of a common carrier to receive and transport a person who has purchased a ticket over its lines, to the destination called for by the ticket, and should a carrier, in violation of the duty so imposed upon it, illegally expel a passenger from its bus and wrongfully refuse to carry the passenger to the passenger’s destination, the carrier would be liable to the passenger for damages proximately resulting therefrom. Daigrepont v. Teche Greyhound Lines, 189 Ga. 601 , 7 S.E.2d 174 (1940).

Corporation’s duty to public. —

Corporation is the creature of the law, and the rights and privileges conferred upon it by the state, in theory at least, were granted not only for its own private benefit, but also for the benefit and good of the public; and in accepting them it impliedly, at least, agreed to carry out the purposes or objects of its creation, and assumed a duty or obligation towards the public which it will, under the law, be required to discharge. Lawrence v. Atlanta Gas Light Co., 49 Ga. App. 444 , 176 S.E. 75 (1934).

Defendant’s duty to assist person whom defendant’s negligence endangers. —

When the petitioner was placed in an extremely dangerous situation, from which the petitioner could not extricate oneself, by reason of the negligence of the defendant, the defendant owed the petitioner the duty of exercising ordinary care in extricating the petitioner from the wreckage of the petitioner’s automobile. Western & A.R.R. v. Groover, 42 Ga. App. 200 , 155 S.E. 500 (1930).

Present lessee owes no duty to prospective lessee. —

Lessee in possession who willfully violates the lessee’s duty to deliver the premises to the landlord at the end of the lessee’s term is not liable in tort to a lessee whose possession was to commence at that time. Kokomo Rubber Co. v. Anderson, 33 Ga. App. 241 , 125 S.E. 783 (1924), rev'd, 161 Ga. 842 , 132 S.E. 76 (1926), vacated, 35 Ga. App. 259 , 132 S.E. 784 (1926).

Manufacturer who bottles beverage for public consumption is under legal duty not to negligently allow foreign substance which is injurious to the human stomach, such as bits of broken glass, to be present in a bottle of the beverage when the bottle is placed on sale. Watson v. Augusta Brewing Co., 124 Ga. 121 , 52 S.E. 152 (1905); Beckham v. Jacobs' Pharmacy Co., 25 Ga. App. 592 , 103 S.E. 857 (1920).

Seller’s duty to buyer upon sale of potentially harmful goods. —

In connection with a sale of goods having a potentiality of doing harm by normal, intended, and nonnegligent use, when there is no fiduciary relationship between the seller and the purchaser, and no fraud, it is the duty of the seller to warn the purchaser at the time of sale and delivery, and a breach occurs at this time if there is a failure to warn. Everhart v. Rich's, Inc., 229 Ga. 798 , 194 S.E.2d 425 (1972).

Servant’s duty to third parties. —

Defendant, merely because the defendant was working as a section foreman on the railroad, owed no individual duty to the public in the matter of keeping the right of way free from ignitable growth. The defendant did owe a duty to the defendant’s master to properly perform the defendant’s duties, and if there was embraced in such duties the obligation to keep the right of way free from ignitable growth there would be a liability on the defendant’s part to the defendant’s master for failure to perform the defendant’s agreement. Knight v. Atlantic Coast Line R.R., 4 F. Supp. 713 (D. Ga. 1933), aff'd, 73 F.2d 76 (5th Cir. 1934).

Hospital’s duty to follow bylaws. —

Both public and private hospitals have a legal duty not to abridge or refuse to follow existing bylaws concerning staff privileges; radiologist could assert a cause of action against a hospital for failure to follow existing bylaws with regard to termination of the radiologist staff privileges. St. Mary's Hosp. v. Radiology Professional Corp., 205 Ga. App. 121 , 421 S.E.2d 731 (1992), cert. denied, No. S92C1432, 1993 Ga. LEXIS 36 (Ga. Jan. 7, 1993).

Summary judgment was granted in favor of a hospital in a doctor’s O.C.G.A. § 51-1-6 suit alleging that the hospital breached a legal duty to the doctor because the hospital followed its by-laws in the investigation of the doctor’s application for reappointment and the doctor’s surgical complications rate. Lee v. Hosp. Auth. of Colquitt County, 353 F. Supp. 2d 1255 (M.D. Ga. 2004), aff'd, 397 F.3d 1327 (11th Cir. 2005).

Doctor was not entitled to recover damages under O.C.G.A. § 51-1-6 because the doctor signed a contract that clearly stated that, at its expiration, the doctor agreed to the removal of the hospital privileges and waived the rights to contest the removal under the hospital’s bylaws; the exclusivity contract was not void as against public policy or an illegal restraint of trade because the law allowed the hospital to enforce contracts in order to properly administer the hospital. Whitaker v. Houston County Hosp. Auth., 272 Ga. App. 870 , 613 S.E.2d 664 (2005), cert. denied, No. S05C1348, 2005 Ga. LEXIS 595 (Ga. Sept. 19, 2005).

Private cause of action recognized for false swearing. —

Georgia recognizes a private cause of action under O.C.G.A. § 51-1-6 for a claim of injury due to false swearing. Wilson v. State, 317 Ga. App. 171 , 730 S.E.2d 500 (2012), cert. denied, No. S12C2008, 2013 Ga. LEXIS 45 (Ga. Jan. 7, 2013).

Although no statute contained an express provision for a civil remedy for the crime of false swearing, case law held that O.C.G.A. § 51-1-6 provided a civil remedy. However, summary judgment was not warranted in favor of either the creditor or the debtor on the creditor’s nondischargeability claims because there was an issue of fact as to whether the debtor knowingly and willfully signed a false affidavit. Thomas Concrete of Ga., Inc. v. Osbourne (In re Osbourne), No. 10-82440-WLH, No. 10-06621, 2017 Bankr. LEXIS 2414 (Bankr. N.D. Ga. Aug. 24, 2017).

No duty of care created from Veterans Health Administration handbooks. —

Government’s motion to dismiss was properly granted in a case brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., in which: (1) a podiatrist served a residency program at a Veterans Administration (VA) hospital that lasted two years; (2) then passed a certifying examination, but was denied certification because the second year of residency at the VA hospital had not been accredited by the Council on Podiatric Medical Education; (3) the podiatrist relied on Georgia’s negligence per se statute, O.C.G.A. § 51-1-6 , to establish the duty element of the podiatrist’s negligence; and (4) the podiatrist contended that a Veterans Health Administration Handbook 1122.1 established a legal duty requiring the podiatric residency program director to obtain certification of the VA hospital’s podiatric residency program and that the director negligently failed to do so; therefore, they were not the product of procedures which Congress prescribed as necessary prerequisites to giving regulations the binding effect of law. Morris v. United States, No. 1:06-CV-2535-GGB, 2007 U.S. Dist. LEXIS 26708 (N.D. Ga. Apr. 11, 2007).

Duty of officer to assist person injured by drunk driver. —

Law enforcement officer owes a tort duty to a member of the general public injured by a drunk driver when the officer allows the noticeably intoxicated driver to continue operating the motor vehicle. Landis v. Rockdale County, 206 Ga. App. 876 , 427 S.E.2d 286 (1992).

Injection requested by patient. —

Patient did not present any evidence that the dentist had violated any statute, regulation, or ordinance regarding an injection that the dentist provided to the patient, at the patient’s request, to numb pain; thus, the trial court did not err in granting partial summary judgment to the dentist, at least regarding the patient’s negligence per se claim. Pope v. Davis, 261 Ga. App. 308 , 582 S.E.2d 460 (2003), cert. denied, No. S03C1348, 2003 Ga. LEXIS 886 (Ga. Oct. 6, 2003).

Builder and architect’s duty. —

Motion to dismiss a disabled university student’s claim against a builder and architect for breach of a legal duty was granted since the only involvement that both the builder and architect had was in the design or construction of the apartment in which the student resided. Barker v. Emory Univ., No. 1:02-CV-2450-CC, 2003 U.S. Dist. LEXIS 10976 (N.D. Ga. June 24, 2003).

Code violations capable of having causal connection to injuries. —

Trial court erred in granting an adult entertainment club’s motion for summary judgment in a dancer’s action to recover damages for injuries she sustained when a customer of the club assaulted her in a private room because the dancer fell within the class of persons the DeKalb County, Ga., Code, Art. XII, § 15-402 was intended to protect from exploitation and harm, and the club’s code violations were capable of having a causal connection to the dancer’s injuries and damage; that was sufficient to constitute negligence per se. Womack v. Oasis Goodtime Emporium I, Inc., 307 Ga. App. 323 , 705 S.E.2d 199 (2010).

No private right of action to enforce portions of EMC Act. —

Suits by classes of former and current members of distribution electric membership corporations (EMCs) seeking to recover millions of dollars in patronage capital from two wholesale EMCs were dismissed because the members lacked privity with the wholesale EMCs, and there was no legal duty under O.C.G.A. § 46-3-340(c) or the EMCs’ bylaws requiring distribution of the patronage capital to the members. Walker v. Oglethorpe Power Corp., 341 Ga. App. 647 , 802 S.E.2d 643 (2017), overruled in part, Hanham v. Access Mgmt. Group L.P., 305 Ga. 414 , 825 S.E.2d 217 (2019).

Bank did not owe duty to payee of check who never had possession of check. —

Bank’s alleged actions in paying a check over a forged endorsement, depositing the funds in new accounts, and failing to observe reasonable commercial standards, were not violations of any legal right of, or duty owed to, the payee of the check who had never received delivery of the check, and the payee suffered no damages from these actions. Thus, the actions did not give rise to a tort claim under O.C.G.A. § 51-1-1 , O.C.G.A. § 51-1-6 , or O.C.G.A. § 51-1-8 . Jenkins v. Wachovia Bank, Nat'l Ass'n, 309 Ga. App. 562 , 711 S.E.2d 80 (2011).

2.Breach of Legal Duty

Failure to insure property. —

Recovery has been allowed in this state for failure to keep property insured when the defendant is shown to be plaintiff’s agent. Sutker v. Pennsylvania Ins. Co., 115 Ga. App. 648 , 155 S.E.2d 694 .

Absent actionable fraud and deceit, it appears settled that there is no liability in tort for failure of the defendant insurance agent or broker to procure or have renewed a policy of insurance when the defendant is the insurance company’s agent and not the plaintiff’s agent. Sutker v. Pennsylvania Ins. Co., 115 Ga. App. 648 , 155 S.E.2d 694 .

Failure to comply with railroad traffic signal zoning ordinance. —

An auction company’s failure to comply with an ordinance requiring the company to pay for traffic signals at a railroad crossing on the road leading to the company’s property gave rise to a claim of negligence per se under O.C.G.A. § 51-1-6 ; the traffic-related zoning conditions were meant to protect those who were required to negotiate the railroad crossing, and the accident at issue, when a car passing through the crossing was struck by a train, was precisely the type of danger the conditions were intended to guard against. Combs v. Atlanta Auto Auction, Inc., 287 Ga. App. 9 , 650 S.E.2d 709 (2007), cert. denied, No. S07C1876, 2008 Ga. LEXIS 156 (Ga. Feb. 11, 2008).

Hotel owner’s failure to inspect and maintain. —

When evidence shows that a large number of occupants of a hotel building were injured as a result of a fire therein, and that the hotel was maintained in a condition which was violative of an applicable city ordinance which required various safety precautions against the hazard of fire, the owner, who acquired the hotel while it was under a written lease to others for a number of years, which lease gave to the lessees the exclusive possession except to authorize and require the owner to enter and make repairs required by law, would be guilty of negligence per se and liable for the injuries resulting from such negligence. Irwin v. Willis, 202 Ga. 463 , 43 S.E.2d 691 (1947).

Failure to obtain certificate of occupancy was negligence per se as to employee. —

Failure of employer to obtain a certificate of occupancy (COO) before opening a facility in which an employee worked was negligence per se as to the employee but not as to the employee’s children, as the law requiring a COO was designed to protect those working or otherwise conducting business in the building; furthermore, there was no causal connection between the failure to obtain a COO and an accident when the car in which the children were riding was struck by a train as the car traveled down the road leading to the facility. Combs v. Atlanta Auto Auction, Inc., 287 Ga. App. 9 , 650 S.E.2d 709 (2007), cert. denied, No. S07C1876, 2008 Ga. LEXIS 156 (Ga. Feb. 11, 2008).

Insurer’s negligent inspection of property. —

Reliance by either the employee or the employer on insurance companies’ inspections is sufficient to give rise to a cause of action in tort for negligent inspection by the insurance companies. Huggins v. Aetna Cas. & Sur. Co., 245 Ga. 248 , 264 S.E.2d 191 (1980).

Service animal. —

Innkeepers breached the legal duties imposed by O.C.G.A. §§ 30-4-2 and 43-21-3 when the innkeepers prohibited a vision impaired individual and the individual’s service dog from staying at their hotel. Accordingly, the individual’s proposed amended complaint alleged all the elements necessary for recovery under the theory of negligence per se and O.C.G.A. § 51-1-6 . Amick v. BM & KM, Inc., 275 F. Supp. 2d 1378 (N.D. Ga. 2003).

Invasion of privacy. —

Violation of the right of privacy is a direct invasion of a legal right of the individual. It is a tort, and it is not necessary that special damages should have accrued from its violation in order to entitle the aggrieved party to recover. McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga. App. 92 , 2 S.E.2d 810 (1939).

When there was no agent or servant of the defendant actually present in the hospital room during the time that it is alleged that the plaintiff was holding intimate, personal, and private conversations, but it is admitted by the defendant that it caused a receiving set to be installed in the plaintiff’s room, and what was said and done by the plaintiff was listened to and recorded by the defendant’s agent, at its direction, by means of the receiving set and earphones, this conduct was as effectively an intrusion upon or an invasion of the privacy of the plaintiff as if the agent had actually been in the room. McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga. App. 92 , 2 S.E.2d 810 (1939).

In the offense of the invasion of the privacy of another, the gravamen or essence of the action is not publication or commercialization of the information obtained. There is nothing in the decided cases of this state, which indicates any such limitation or qualification of the right, and a person’s privacy is invaded even though the information obtained be restricted to the immediate transgressor. Publication or commercialization may aggravate, but the individual’s right to privacy is invaded and violated nevertheless in the original act of intrusion. McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga. App. 92 , 2 S.E.2d 810 (1939).

Malicious injury to business of another will give right of action to the injured party. Southern Ry. v. Chambers, 126 Ga. 404 , 55 S.E. 37 (1906).

This state recognizes a cause of action when one maliciously and wrongfully, and with intent to injure, harms the business of another. The essential thing is the intent to cause the result. If the actor does not have this intent, the actor’s conduct does not subject the actor to liability under this rule even if it has the unintended effect of deterring the third person from dealing with the other. Bodge v. Salesworld, Inc., 154 Ga. App. 65 , 267 S.E.2d 505 (1980).

Manufacturer’s liability. —

Manufacturer or someone not in privity with the consumer or user of the manufacturer’s product would incur liability if damage is proximately caused by the manufacturer’s willful or wrongful acts or omissions. Koppers Co. v. Parks, 120 Ga. App. 551 , 171 S.E.2d 639 (1969).

Consumer or user of a product may recover if through a failure to exercise ordinary care on the part of a manufacturer or someone not in privity with the user the product is imperfect, defective, or not as represented when placed on the market, and damage to the consumer or user is proximately caused thereby. Koppers Co. v. Parks, 120 Ga. App. 551 , 171 S.E.2d 639 (1969).

Municipal liability for injuries from defect in highway. —

Defective structure in a highway which causes injury to a person renders the municipality liable for the damages incurred. City of Greensboro v. McGibbony, 93 Ga. 672 , 20 S.E. 37 (1894).

Insurance counselor’s duty to be licensed. —

Summary judgment was properly entered for a consultant and a consulting firm on a bidding insurer’s claim under O.C.G.A. § 51-1-6 after all of the bids for a county contract were rejected because the consultant lacked a license under O.C.G.A. §§ 33-23-1.1 and 33-23-4 as the statutes requiring insurance counselors to be licensed and mandating that licensed individuals meet certain qualifications were designed to protect the insurance counselor’s clients and not to protect or benefit providers of insurance; the generic statement that O.C.G.A. § 33-23-5(a) was “for the protection of the people of (Georgia)” did not expand the intent of the statute requiring licensure for counselors to benefit businesses that provided insurance. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825 , 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. Feb. 26, 2007).

No duty imposed by traffic control device regulation. —

Injured motorist failed to prove that highway contractors who built a highway on-ramp were entitled to partial summary judgment as to liability on the motorist’s negligence claim because the motorist failed to prove that regulations governing traffic control devices were mandatory and had the force of law, that the motorist was in a protected class, that the harm the motorist suffered was the type of harm the regulations were intended to guard against, and that the alleged negligence per se proximately caused the motorist’s injuries. Hubbard v. DOT, 256 Ga. App. 342 , 568 S.E.2d 559 (2002), cert. denied, No. S02C1696, 2002 Ga. LEXIS 788 (Ga. Sept. 6, 2002).

No civil duty imposed by criminal statute. —

Injured party was not able to recover under O.C.G.A. § 51-1-6 for the declarant’s alleged violation of the criminal statutes, O.C.G.A. § 16-10-26 , prohibiting giving a false report of a crime, and O.C.G.A. § 16-10-24 , prohibiting obstructing or hindering the police, as these statutes did not provide for a civil cause of action; furthermore, the legislature had provided statutory civil remedies in the form of false arrest under O.C.G.A. § 51-7-1 and malicious prosecution under O.C.G.A. § 51-7-40 . Jastram v. Williams, 276 Ga. App. 475 , 623 S.E.2d 686 (2005).

Refusal to furnish public service. —

When a gas company operates a franchise, and exercises rights and privileges under the laws of the state, the company is bound to furnish gas to all who apply therefor within the company’s territory and agree to the company’s reasonable rules and regulations, and that a refusal to do so is a tort. Lawrence v. Atlanta Gas Light Co., 49 Ga. App. 444 , 176 S.E. 75 (1934).

Servant, as wrongdoer, is liable individually for tort committed within scope of the master’s business. Giles v. Smith, 80 Ga. App. 540 , 56 S.E.2d 860 (1949).

Telegraph company’s failure to deliver. —

Loss of contract of employment resulting from failure of telegraph company to send message of acceptance gives rise to an action. Baldwin v. Western Union Tel. Co., 93 Ga. 692 , 21 S.E. 212 (1894).

Third party beneficiaries. —

One who undertakes, gratuitously or for consideration, to render services to another which one should recognize as necessary for the protection of a third person or one’s things, is subject to liability to the third person for physical harm resulting from one’s failure to exercise reasonable care to protect one’s undertaking if (a) one’s failure to exercise reasonable care increases the risk of such harm, or (b) one has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Huggins v. Aetna Cas. & Sur. Co., 245 Ga. 248 , 264 S.E.2d 191 (1980).

Willful violation of law. —

Person may not willfully and purposely engage in a violation of the law and then recover damages for injury which might ensue in an attempt by lawful authorities to prevent the person from continuing such a course, when it is not claimed that the person could have been made to desist except by the exercise of force, and it is not alleged that the force used was greater than was necessary to accomplish its object. Kent v. Southern Ry., 52 Ga. App. 731 , 184 S.E. 638 (1936).

Wrongful discharge of servant. —

Action by a servant for a wrongful discharge from the servant’s employment is in contract, and an action in tort will not lie unless the discharge was accompanied by wrongful acts amounting to a trespass. American Oil Co. v. Roper, 64 Ga. App. 743 , 14 S.E.2d 145 (1941); Rhine v. Sanders, 100 Ga. App. 68 , 110 S.E.2d 128 (1959).

O.C.G.A. § 51-1-6 did not give an employee a cause of action on the basis that the employer dismissed the employee because of the employee’s “first offender” conviction in violation of O.C.G.A. § 42-8-63 . Mattox v. Yellow Freight Sys., Inc., 243 Ga. App. 894 , 534 S.E.2d 561 (2000).

Age discrimination. —

At-will employee may not sue in tort under O.C.G.A. § 51-1-6 or O.C.G.A. § 51-1-8 for wrongful discharge based upon age discrimination. Reilly v. Alcan Aluminum Corp., 272 Ga. 279 , 528 S.E.2d 238 (2000).

Provisions of O.C.G.A. §§ 51-1-6 and 51-1-8 do not create a civil action for age discrimination for an employee-at-will based upon a violation of either O.C.G.A. § 34-1-2 or the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Reilly v. Alcan Aluminum Corp., 221 F.3d 1170 (11th Cir. 2000).

Alcohol consumer cannot recover from provider for injuries to third person. —

Consumer of alcohol cannot recover damages from the provider of the alcohol for injuries caused by the consumer to a third person. Sutter v. Hutchings, 254 Ga. 194 , 327 S.E.2d 716 (1985).

Person injured by intoxicated consumer can recover. —

Person who encourages a noticeably intoxicated person under the legal drinking age to become further intoxicated and who furnishes to such intoxicated person more alcohol, knowing that such person will soon be driving a vehicle, is liable in tort to a person injured by the negligence of such intoxicated driver. Sutter v. Hutchings, 254 Ga. 194 , 327 S.E.2d 716 (1985).

In a negligence action, the trial court did not err in charging the jury that one who provides alcoholic beverages to a noticeably intoxicated person, knowing that the person will soon be driving a vehicle, may be liable for a third person’s injuries caused by the negligence of the intoxicated driver, if the alcohol was a proximate cause of the injuries. Studebaker's of Savannah, Inc. v. Tibbs, 195 Ga. App. 142 , 392 S.E.2d 908 (1990), cert. denied, No. S90C0987, 1990 Ga. LEXIS 758 (Ga. May 16, 1990).

Wrongful death action of drunk consumer’s widow barred. —

Widow’s wrongful death action against a bar that served alcohol to her husband for 8 hours, and who then died in a one-vehicle crash, was barred by the Dram Shop Act, O.C.G.A. § 51-1-40 , which barred claims by consumers of alcohol; O.C.G.A. § 51-1-6 did not provide a basis for such a wrongful death action. Dion v. Y.S.G. Enters., 296 Ga. 185 , 766 S.E.2d 48 (2014).

Underaged drinking. —

Evidence was insufficient to show that any breach of duty by a bowling alley relating to alcohol was the proximate cause of the death of a passenger in a car driven by a minor who had been served beer at the bowling alley, since there was no evidence that any employee had knowledge that the minor was intoxicated or would be driving an automobile. Kalpa v. Perczak, 658 F. Supp. 235 (N.D. Ga. 1987).

O.C.G.A. § 51-1-6 does not establish a cause of action based on the violation of O.C.G.A. § 3-3-23 , the underage drinking statute. Lumpkin v. Mellow Mushroom, 256 Ga. App. 83 , 567 S.E.2d 728 (2002).

Injury to trade name. —

If the right to protection of a trade name exists, the injured party may seek both injunctive relief and damages. Diedrich v. Miller & Meier & Assocs., 254 Ga. 734 , 334 S.E.2d 308 (1985).

False swearing in execution of affidavit. —

Plaintiff contractor’s allegation that the defendant developer knowingly swore falsely in executing affidavits stating that no improvements or repairs had been made to a newly-constructed home, thereby injuring the plaintiff, set forth a cause of action for breach of the legal duty to swear truthfully. Peters v. Imperial Cabinet Co., 189 Ga. App. 337 , 375 S.E.2d 635 (1988).

No private civil cause of action for notary’s breach. —

Bank did not have a viable civil cause of action under the notary statute against an attorney who allegedly falsely attested that guarantee agreements were signed in the attorney’s presence as even when combined with the general statutory principles of tort law, notaries had a duty to the public that did not support an actionable claim. Branch Banking & Trust Co. v. Morrisroe, 323 Ga. App. 248 , 746 S.E.2d 859 (2013), cert. denied, No. S13C1728, 2013 Ga. LEXIS 944 (Ga. Nov. 4, 2013).

Insurer’s failure to provide coverage information. —

Insurer’s breach of O.C.G.A. § 33-3-28 , requiring insurers to provide coverage information, did not create a cause of action and the right to seek damages under O.C.G.A. §§ 51-1-6 and 51-1-8 . Parris v. State Farm Mut. Auto. Ins. Co., 229 Ga. App. 522 , 494 S.E.2d 244 (1997).

Failure to prove any out-of-pocket economic damages. —

In a dispute between a franchisor of daycare businesses and its franchisee, the trial court erred by denying the franchisor’s motion for directed verdict on the franchisee’s claims for negligent misrepresentation and negligence under O.C.G.A. § 51-1-6 because the franchisee failed to prove that the franchisee suffered any out-of-pocket economic damages as a result of the alleged misrepresentations, which was an essential element to such claims. Legacy Academy, Inc. v. Doles-Smith Enters., 337 Ga. App. 575 , 789 S.E.2d 194 (2016).

Action could not be brought against individual doctors. —

Because the Federal Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395 dd, imposed no legal duty on individual doctors, the administratrix could not maintain a cause of action against the individual doctors under O.C.G.A. § 51-1-6 , and the trial court properly granted the doctors’ motions to dismiss the violation of a legal duty claim. Pham v. Black, 347 Ga. App. 585 , 820 S.E.2d 209 (2018).

Pleading and Practice

Sufficiency of complaint. —

Petition alleging that the defendant company and named agents and servants thereof, falsely and fraudulently impersonated the plaintiff, invaded the plaintiff’s right of privacy, the plaintiff’s right to the exclusive use of the plaintiff’s own name, represented the plaintiff as betraying confidence and giving secret and confidential prices to a competitor of those who gave the prices, caused the plaintiff’s time and that of the plaintiff’s employees to be consumed, subjected the plaintiff to embarrassment and chagrin, and caused the plaintiff to be held in contempt and ridicule by the plaintiff’s business associates, all for the express purpose of advancing the interest of the company set out a cause of action. Goodyear Tire & Rubber Co. v. Vandergriff, 52 Ga. App. 662 , 184 S.E. 452 (1936).

When the injuries alleged appear to have resulted entirely from fright or shock, unaccompanied by physical contact, in order to set forth a cause of action it is necessary to show either that the injuries were the natural and proximate result of the fright or shock, that this result was or should have been foreseen with reasonable certainty by the defendant, and that the act was one of such gross carelessness, coupled with a knowledge of the probably physical results as amount to willful disregard of the consequences; or that the fright was brought about by the deliberate and malicious intention on the part of the defendant to injure the plaintiff. Towler v. Jackson, 111 Ga. App. 8 , 140 S.E.2d 295 (1965).

In a suit challenging a court’s electronic filing fee system, the trial court did not err when the court granted the motion to dismiss the plaintiff’s claims because none of the statutes or rules cited by the plaintiff provided a private cause of action for damages arising from any violation of the respective statute or rule. Best Jewelry Mfg. Co. v. Reed Elsevier Inc., 334 Ga. App. 826 , 780 S.E.2d 689 (2015), cert. denied, No. S16C0502, 2016 Ga. LEXIS 286 (Ga. Apr. 4, 2016).

Amendment of complaint. —

Original petition, when measured by the provisions of the principles of law announced in former Code 1933, §§ 105-101, 105-103, and 105-106 (see now O.C.G.A. §§ 51-1-1 , 51-1-6 , and 51-1-11 ), set out a plaintiff and a defendant and a specific cause of complaint sufficiently to be amendable, since if the petition was defective in any wise, it was only in that it omitted to allege sufficiently facts essential to raise the duty or obligation in the cause of action, and the trial court erred in holding that there was not enough in the original petition to amend by. Cannon v. Hood Constr. Co., 91 Ga. App. 20 , 84 S.E.2d 604 (1954).

Construction with federal law. —

Because an express cause of action already existed as part of a remedial scheme set out by the U.S. Congress under the Vocational Rehabilitation Act (VRA), 29 U.S.C. § 794 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the plaintiff may not recover O.C.G.A. § 51-1-6 for any alleged violations of subject legal duties. Cruet v. Emory Univ., 85 F. Supp. 2d 1353 (N.D. Ga. 2000).

Because the breach of legal duty complained of by a title processor against the state vehicle title processing agency employees was under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the ADA provided a remedial scheme and thus the processor’s claim under O.C.G.A. § 51-1-6 was duplicative; O.C.G.A. § 51-1-6 allowed an individual to assert a tort claim for the violation of a legal duty when a cause of action did not otherwise exist. Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004).

Removal to federal court appropriate. —

Removal to a federal court of an action brought under O.C.G.A. § 51-1-6 was appropriate when the plaintiff’s claim ultimately hinged on the interpretation of federal law under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Jairath v. Dyer, 961 F. Supp. 277 (N.D. Ga. 1996), vacated, 154 F.3d 1280 (11th Cir. 1998).

Pleading violation of statute as negligence per se. —

Plaintiff may rely upon an act or omission as constituting negligence as a matter of fact under the circumstances, or upon the violation of a statute as amounting to negligence per se or as a matter of law; furthermore, the facts may be so pled as to show negligence of both classes in the same action. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948).

O.C.G.A. § 33-24-44 governed the cancellation of insurance policies but did not govern the termination of insurance agents which may have had the ancillary effect of terminating an insurance policy, and the court could not reasonably conclude that the retroactive termination of the financial planner was the harm § 33-24-44 was intended to guard against. Therefore, the financial planner did not allege a viable negligence per se claim and the negligence claims against the insurance company were required to be dismissed. Rosen v. Protective Life Ins. Co., No. 1:09-cv-03620-WSD, 2010 U.S. Dist. LEXIS 50392 (N.D. Ga. May 20, 2010).

Notice requirement. —

Denial of summary judgment based on any type of tortious interference with a contractual right to exercise an option to purchase was in error since both the original and the amended complaint revealed a lack of compliance with the notice requirement regarding any alleged tortious interference of contract. Bowling v. Gober, 206 Ga. App. 38 , 424 S.E.2d 335 (1992).

Failure to prove out-of-pocket economic damages. —

Because franchisees failed to prove out-of-pocket economic damages as a result of alleged misrepresentations in offering materials regarding the franchise’s projected cash flow, the franchisor’s motions for directed verdict and j.n.o.v. on claims for negligent misrepresentation and negligence under O.C.G.A. § 51-1-6 should have been granted. Legacy Academy, Inc. v. Doles-Smith Enters., 337 Ga. App. 575 , 789 S.E.2d 194 (2016).

Summary judgment erroneously denied. —

In a personal injury action alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., a trial court erred by denying summary judgment to a county director of public works because the consumer who tripped and fell was not disabled and, therefore, was not within the class of persons protected by the ADA. Newman v. Johnson, 319 Ga. App. 307 , 733 S.E.2d 520 (2012), cert. denied, No. S13C0629, 2013 Ga. LEXIS 462 (Ga. May 20, 2013).

Summary judgment properly granted to hospital. —

Trial court properly granted summary judgment in favor of the hospital on an anesthesiologist’s claim for breach of the hospital’s bylaws because the anesthesiologist unilaterally made the decision not to return to work and, therefore, a summary suspension was never imposed and within a day or two of making that decision, the anesthesiologist cancelled malpractice coverage, which disqualified the anesthesiologist from having hospital privileges under the bylaws. Rowell v. Phoebe Putney Mem. Hosp., Inc., 338 Ga. App. 603 , 791 S.E.2d 183 (2016).

Failure to exhaust administrative remedies. —

Medical group’s claim that a health maintenance organization was liable to the group in tort under O.C.G.A. § 51-1-6 based upon the group’s breach of a legal duty to comply with Georgia’s Any Willing Provider Statute, O.C.G.A. § 33-20-16 , was procedurally barred by the failure to exhaust administrative remedies by first submitting the group’s dispute to the Georgia Insurance Commissioner pursuant to O.C.G.A. § 33-20-30 . Northeast Ga. Cancer Care, LLC v. Blue Cross & Blue Shield of Ga., Inc., 297 Ga. App. 28 , 676 S.E.2d 428 (2009), cert. denied, No. S09C1241, 2009 Ga. LEXIS 805 (Ga. Sept. 28, 2009).

General Consideration

Elements of an action. —

Before a plaintiff can recover, the plaintiff must show that the plaintiff’s injury and damage resulted from some negligent act or omission to act in some duty owed to the plaintiff. Knight v. Atlantic Coast Line R.R., 4 F. Supp. 713 (D. Ga. 1933), aff'd, 73 F.2d 76 (5th Cir. 1934); Davis v. Johnson, 92 Ga. App. 858 , 90 S.E.2d 426 (1955); Carroll v. Griffin, 96 Ga. App. 826 , 101 S.E.2d 764 (1958); Black v. New Holland Baptist Church, 122 Ga. App. 606 , 178 S.E.2d 571 (1970).

Injury required for action. —

Before an action for a tort will lie, there must be an injury accompanying such tort. Clements v. Hendi, 182 Ga. App. 118 , 354 S.E.2d 700 (1987).

Right to recover even nominal damages. —

When there is fraud or breach of a legal or private duty accompanied by any damage, the law gives a right to recover damages, even only nominal damages, as compensation. Holmes v. Drucker, 201 Ga. App. 687 , 411 S.E.2d 728 (1991).

Damages not generally recoverable for nonphysical injury. —

Damages for injury to reputation, emotional distress, humiliation, mental and physical strain and the like are generally not recoverable in a legal malpractice case premised on mere negligence when no physical injury is suffered by the plaintiff. Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411 , 306 S.E.2d 340 (1983), aff'd, 252 Ga. 149 , 311 S.E.2d 818 (1984).

No legislative authority to collect 911 tax. —

Charge imposed under the Georgia Emergency Telephone 911 Service Act, O.C.G.A. § 46-5-120 et seq., was a tax as a matter of law, and counties did not have the required legislative authority under Ga. Const. 1983, Art. VII, Sec. I, Par. III(a), to sue telephone companies to recover charges not collected from subscribers; neither the Act nor the tort statutes, O.C.G.A. §§ 51-1-6 , 51-1-8 , provided such authority. Bellsouth Telecoms., LLC v. Cobb County, 305 Ga. 144 , 824 S.E.2d 233 (2019).

“Private duty” evidently means private duty arising either from law or from relation created by contract, express or implied. Ellis v. Taylor, 172 Ga. 830 , 159 S.E. 266 (1931).

Nominal damages sufficient. —

It is not the special damage or injury resulting from the wrongful act which gives rise to a cause of action, but the fact that nominal damages may be recovered is sufficient to create a cause of action and therefore result in the statute of limitations beginning to run. Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804 , 273 S.E.2d 16 (1980).

Instruction in exact language of section not required. —

When the trial court fully charged the jury regarding the common-law and statutory duties on which plaintiff based the plaintiff’s claims, it was not error for the court to refuse a request to charge the exact language of O.C.G.A. § 51-1-8 . Wadkins v. Smallwood, 243 Ga. App. 134 , 530 S.E.2d 498 (2000), cert. denied, No. S00C1315, 2000 Ga. LEXIS 710 (Ga. Sept. 29, 2000).

No liability for no breach of private duty. —

In a wrongful death action filed by a decedent-lessee’s administrator in which the decedent was killed when crossing a public highway that the lessor did not control, the lessor was properly granted summary judgment, as the administrator failed to show that the lessor was negligent per se or that the lessor breached either a common law or private duty owed to the lessee. Walton v. UCC X, Inc., 282 Ga. App. 847 , 640 S.E.2d 325 (2006), cert. denied, No. S07C0591, 2007 Ga. LEXIS 279 (Ga. Mar. 26, 2007).

No liability when underlying claims fail. —

Unpublished decision: Because O.C.G.A. § 51-1-8 did not confer a separate cause of action in tort and the plaintiff dry cleaners’ claims against the defendant natural gas supplier thereunder were contingent on the other claims that failed, the claims under § 51-1-8 failed. Byung Ho Cheoun v. Infinite Energy, Inc., 363 Fed. Appx. 691 (11th Cir. 2010).

Private Duty Related to Contract

Violation of specific duty. —

Action of tort may be maintained for violation of specific duty flowing from relations between the parties, created by contract. Ellis v. Taylor, 172 Ga. 830 , 159 S.E. 266 (1931); Frank Graham Co. v. Graham, 90 Ga. App. 840 , 84 S.E.2d 579 (1954); Tapley v. Youmans, 95 Ga. App. 161 , 97 S.E.2d 365 (1957); City of Douglas v. Johnson, 157 Ga. App. 618 , 278 S.E.2d 160 (1981).

Tort consists of breach of duty. —

If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded upon a contract; in such a case the liability arises out of a breach of duty incident to and created by the contract, but is only dependent upon the contract to the extent necessary to raise the duty. The tort consists in the breach of duty. Wolff ex rel. Salomon Bros. & Co. v. Southern Ry., 130 Ga. 251 , 60 S.E. 569 (1908); Ellis v. Taylor, 172 Ga. 830 , 159 S.E. 266 (1931); Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935); Simmons v. May, 53 Ga. App. 454 , 186 S.E. 441 (1936); Frank Graham Co. v. Graham, 90 Ga. App. 840 , 84 S.E.2d 579 (1954).

Such duty not always present. —

In some contracts duties arise between the parties the violation of which would constitute a tort; however, such duties do not arise in every contract. Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 , 76 S.E.2d 536 (1953).

Contract unclear and unenforceable. —

In a Chapter 11 bankruptcy proceeding, the debtor had a valid objection to an allowance of a claim arising from pending state court litigation; an alleged contract was not sufficiently clear to be enforceable, and there was no independent duty arising from the contract such as would give rise to a negligence claim under O.C.G.A. § 51-1-8 . In re LJL Truck Ctr., Inc., 299 Bankr. 663 (Bankr. M.D. Ga. 2003).

Contract status alone insufficient to create tort action. —

That a party occupies a status that sometimes gives rise to professional duties, does not transform all contract disagreements into torts based on a professional relationship. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

Mere nonfeasance of contract insufficient. —

Mere breach of an ordinary contract does not constitute a tort; and if there is no liability except that arising out of a breach of a purely contractual duty, the action must be in contract, and an action in tort cannot be maintained. Hanson v. Aetna Life & Cas., 625 F.2d 573 (5th Cir. 1980).

When the breach complained of is simply the neglect of a duty such as is expressly provided for by the contract itself, the action will be construed and treated as one brought ex contractu. Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 , 76 S.E.2d 536 (1953).

While the plaintiff’s relationship with the defendant was defined by contract, the mere breach of that contract did not give rise to tort liability. Odem v. Pace Academy, 235 Ga. App. 648 , 510 S.E.2d 326 (1998), cert. denied, No. S99C0485, 1999 Ga. LEXIS 293 (Ga. Mar. 5, 1999).

Breach of contractual duty to pay money is not tort. Howard v. Central of Ga. Ry., 9 Ga. App. 617 , 71 S.E. 1017 (1911).

Breach of security contract established. —

Summary judgment was properly denied to a trailer park owner in a premises liability action based upon the murder of a tenant in the park since the owner had a duty to provide security to the park as a result of a contract the owner entered with all residents and failed to inform the residents that security was discontinued. Brookview Holdings, LLC v. Suarez, 285 Ga. App. 90 , 645 S.E.2d 559 (2007), cert. denied, No. S07C1259, 2007 Ga. LEXIS 550 (Ga. July 13, 2007).

No damages for breach of oral contract for sale of realty. —

Damages for the failure of a party to carry out the purported terms of an oral contract for the sale of realty were not authorized. Zappa v. Basden, 188 Ga. App. 472 , 373 S.E.2d 246 (1988).

No legal duty to consumer under Franchise Practices Act. —

Trial court erred by denying a franchisor’s motion for summary judgment with regard to a consumer’s negligence claim predicated on the Franchise Practices Act, O.C.G.A. § 10-1-620 et seq., as the Act did not impose a legal duty upon the franchisor to prevent a franchisee from presenting an unreasonable risk of harm to members of the public like the consumer. DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38 , 668 S.E.2d 737 (2008).

Applicability to Specific Cases

1.Private Duty Imposed

Common carrier’s duty to transport passengers. —

It is the legal duty of a common carrier to receive and transport a person who has purchased a ticket over its lines, to the destination called for by the ticket, and should a carrier, in violation of the duty so imposed upon the carrier, illegally expel a passenger from thr carrier’s bus and wrongfully refuse to carry the passenger to the passenger’s destination, it would be liable to the passenger for damages proximately resulting therefrom. Daigrepont v. Teche Greyhound Lines, 189 Ga. 601 , 7 S.E.2d 174 (1940).

Contract of landlord and cropper, when performance has been entered upon, creates status from which reciprocal rights and duties spring; and a tort, as well as a breach of contract, may arise from the violation of one of these duties. Payne v. Watters, 9 Ga. App. 265 , 70 S.E. 1114 (1911); Tapley v. Youmans, 95 Ga. App. 161 , 97 S.E.2d 365 (1957).

Duty of electric company to insulate wires. —

It is the duty of an electric company to keep the wires over the city streets so insulated as to protect persons from injury. Trammell v. Columbus R.R., 9 Ga. App. 98 , 70 S.E. 892 (1911).

Duty to carefully perform gratuitous promise once undertaken. —

One who, by a gratuitous promise or other conduct which one should realize will cause another reasonably to rely upon the performance of definite acts of service by one as the other’s agent, causes the other to refrain from having such acts done by other available means is subject to a duty to use care to perform such service or, while other means are available, to give notice that one will not perform. Mixon v. Dobbs Houses, Inc., 149 Ga. App. 481 , 254 S.E.2d 864 (1979).

Duty to deliver message. —

Even though the promises made by the defendant to deliver the plaintiff’s message to the defendant’s spouse may have been gratuitous, once they were undertaken the duty arose to perform under the requisite standard of care. Mixon v. Dobbs Houses, Inc., 149 Ga. App. 481 , 254 S.E.2d 864 (1979).

Duty to furnish gas arising from contract. —

When the duty of the defendant to furnish the plaintiff with gas arose solely through their contract, the remedy of the plaintiff for a breach of that duty, even though the breach was occasioned by the defendant’s negligence, was in contract and not in tort. Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 , 76 S.E.2d 536 (1953).

Duty to repair carefully. —

One who undertakes by virtue of a contract to repair a chattel for another owes to such other the duty to use ordinary care in making such repairs so as not to endanger the lives and limbs of others by a negligent performance, the consequences of which may be foreseen by that one. Frank Graham Co. v. Graham, 90 Ga. App. 840 , 84 S.E.2d 579 (1954).

Hospital’s duty to patients. —

Private hospital in which patients are placed for treatment by their physicians, and which undertakes to care for the patients and supervise and look after the patients, is under the duty to exercise such reasonable care in looking after and protecting a patient as the patient’s condition, which is known to the hospital through the hospital’s agents and servants charged with the duty of looking after and supervising the patient, may require. Emory Univ. v. Shadburn, 47 Ga. App. 643 , 171 S.E. 192 (1933), aff'd, 180 Ga. 595 , 180 S.E. 137 (1935).

Seller’s duty to buyer upon sale of potentially harmful goods. —

In connection with a sale of goods having a potentiality of doing harm by normal, intended, and nonnegligent use, when there is no fiduciary relationship between the seller and the purchaser, and no fraud, it is the duty of the seller to warn the purchaser at the time of sale and delivery, and a breach occurs at this time if there is a failure to warn. Everhart v. Rich's, Inc., 229 Ga. 798 , 194 S.E.2d 425 (1972).

Funeral homes. —

Because the named plaintiffs in a purported class action produced evidence that two named plaintiffs were parties to contracts with the funeral homes, the two named plaintiffs had standing to assert claims of negligence on behalf of the class based on the existence of a contract. In re Tri-State Crematory Litig., 215 F.R.D. 660 (N.D. Ga. 2003).

Bank did not owe duty to payee of check who never had possession of check. —

Bank’s alleged actions in paying a check over a forged endorsement, depositing the funds in new accounts, and failing to observe reasonable commercial standards, were not violations of any legal right of, or duty owed to, the payee of the check who had never received delivery of the check, and the payee had suffered no damages from these actions. Thus, the payee did not have a tort claim under O.C.G.A. § 51-1-1 , O.C.G.A. § 51-1-6 , or O.C.G.A. § 51-1-8 . Jenkins v. Wachovia Bank, Nat'l Ass'n, 309 Ga. App. 562 , 711 S.E.2d 80 (2011).

2.Breach of Private Duty

Attorney’s action for fee. —

Petition by an attorney states a cause of action when the petition alleges that the attorney’s cocounsel and the attorney’s clients conspired with the intent to deprive petitioner of the petitioner’s compensation and the petitioner’s right to exercise the petitioner’s holding lien. Davidson v. Collier, 104 Ga. App. 546 , 122 S.E.2d 465 (1961).

In legal malpractice cases a right of action arises immediately upon the wrongful act having been committed, even though there are no special damages. Ekern v. Westmoreland, 181 Ga. App. 741 , 353 S.E.2d 571 (1987).

Bailor’s recovery against bailee in tort. —

Even when a bailment has been created by special contract, the bailor may recover against the bailee for the bailee’s negligence in an action of tort. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

Driving horse on sidewalk in violation of statute. —

When there was proof going to show that the plaintiff, at the time the plaintiff was injured by reason of the horse running over the plaintiff, was standing upon a sidewalk in a city, and one of the acts of negligence charged by the petition was the alleged driving of the horse upon the sidewalk, in violation of a city ordinance, and such ordinance was admitted in evidence without objection, it was not error for the court to charge upon the validity and legal effect of the ordinance, even though the evidence indicated that the driving of the horse on the sidewalk was unintentional on the part of the driver, when the court expressly instructed the jury that, if such act was unintentional, it would constitute no violation of the ordinance. Clackum v. Bagwell, 40 Ga. App. 831 , 151 S.E. 689 (1930).

Injury to financial standing of a maker of a note, when the payee sends the note to a bank for collection after the note has been paid, is a tort. State Mut. Life & Annuity Ass'n v. Baldwin, 116 Ga. 855 , 43 S.E. 262 (1903).

Negligent repair of automobile. —

Negligence of the defendant in failing to repair the brakes to the plaintiff’s automobile in such manner that the brakes could be depended upon to function properly, although the defendant represented to the plaintiff that the brakes had been fixed and were in good working condition, constituted a breach of the duty owing to the plaintiff to provide the plaintiff with serviceable and dependable brakes, and this is true although the duty which the defendant owed the plaintiff in this respect was created by the contract, and although the defendant at the time it sold the automobile expressly warranted that the brakes were in good working order. Frank Graham Co. v. Graham, 90 Ga. App. 840 , 84 S.E.2d 579 (1954).

Violation of lease as tort against partners. —

Landlord who leases in writing a building for the conduct of a particular business, and verbally consents for the lessee to associate with a partner in the business, is liable to the partnership for damages caused to their business by a violation of the terms of the lease. DeFoor v. Stephens & Lastinger, 133 Ga. 617 , 66 S.E. 786 (1909).

Insurer’s failure to provide coverage information. —

Insurer’s breach of § 33-3-28 , requiring insurers to provide coverage information, did not create a cause of action and the right to seek damages under O.C.G.A. §§ 51-1-6 and 51-1-8 . Parris v. State Farm Mut. Auto. Ins. Co., 229 Ga. App. 522 , 494 S.E.2d 244 (1997).

Age discrimination. —

At-will employee may not sue in tort under O.C.G.A. § 51-1-6 or O.C.G.A. § 51-1-8 for wrongful discharge based upon age discrimination. Reilly v. Alcan Aluminum Corp., 272 Ga. 279 , 528 S.E.2d 238 (2000).

Provisions of O.C.G.A. §§ 51-1-6 and 51-1-8 do not create a civil action for age discrimination for an employee-at-will based upon a violation of either O.C.G.A. § 34-1-2 or the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Reilly v. Alcan Aluminum Corp., 221 F.3d 1170 (11th Cir. 2000).

General Consideration

O.C.G.A. § 51-1-9 is a declaration of the common law. Collins v. Martin, 157 Ga. App. 45 , 276 S.E.2d 102 (1981); Ireland Elec. Corp. v. Georgia Hwy. Express, Inc., 166 Ga. App. 150 , 303 S.E.2d 497 (1983); McBride v. GMC, 737 F. Supp. 1563 (M.D. Ga. 1990).

Intentional infliction of emotional distress. —

To sustain a cause of action for intentional infliction of emotional distress through the use of abusive or obscene language, the defendant’s conduct must have been so abrasive or obscene as to naturally humiliate, embarrass, frighten, or outrage the plaintiff, and the alleged emotional distress must be so severe that no reasonable person could be expected to endure it. Williams v. Voljavec, 202 Ga. App. 580 , 415 S.E.2d 31 (1992), cert. denied, No. S92C0592, 1992 Ga. LEXIS 330 (Ga. Apr. 17, 1992).

There is no right of action in one spouse against another for personal tort not involving any property right, and this is true regardless of the fact that the tort is wantonly and maliciously inflicted. Wright v. Wright, 85 Ga. App. 721 , 70 S.E.2d 152 (1952).

Applicable statute of limitation. —

Section 9-3-31 , providing a four-year limitation for actions based on injury to personalty, applies to actions for loss of services under this section. Silvertooth v. Shallenberger, 49 Ga. App. 133 , 174 S.E. 365 (1934), overruled, Parker v. Vaughan, 124 Ga. App. 300 , 183 S.E.2d 605 (1971).

Fetal victim of a tort must be born alive in order to seek recovery from the alleged tortfeasor. Peters v. Hospital Auth., 265 Ga. 487 , 458 S.E.2d 628 (1995).

Torts to Wife

Wife may sue for any injury to her person or reputation. Martin v. Gurley, 201 Ga. 493 , 39 S.E.2d 878 (1946).

Husband’s suit for injury to wife. —

Husband being presumed to be the head of the house and responsible for his wife’s necessary expenses, and being also entitled to the services, society, and consortium of his wife, these are the only proper elements of damage for which the plaintiff may sue in his capacity as husband. Community Gas Co. v. Williams, 87 Ga. App. 68 , 73 S.E.2d 119 (1952).

Wife only has claim for certain direct damages. —

Wife’s physical injuries and attendant pain, suffering, and nervous impairment are no part of her husband’s cause of action, nor is her resultant nervousness and impatience, except insofar as it causes a loss of her services to him. Community Gas Co. v. Williams, 87 Ga. App. 68 , 73 S.E.2d 119 (1952).

Wife’s only recourse for recovery of medical expenses is through her husband, and the state of her health and her life expectancy must necessarily therefore be considered in determining the award of damages for her benefit. Old Dominion Freight Line v. Martin, 153 Ga. App. 135 , 264 S.E.2d 585 (1980), overruled, Brent v. Hin, 254 Ga. App. 77 , 561 S.E.2d 212 (2002).

Joinder of wife in action by husband is permissible. East Tenn., V. & G.R.R. v. Cox, 57 Ga. 252 , 57 Ga. 253 (1876).

Measure of wife’s medical expense damages. —

So long as the law vests only in the husband the right to sue for his wife’s necessary medical expenses, the correct measure of such damages must allow for the recovery of what the evidence shows to be the anticipated expenditures for necessary and required care of the wife for the expectancy of her life. Old Dominion Freight Line v. Martin, 153 Ga. App. 135 , 264 S.E.2d 585 (1980), overruled, Brent v. Hin, 254 Ga. App. 77 , 561 S.E.2d 212 (2002).

Life expectancy tables permitted to calculate damages over time. —

Trial courts may instruct the jury to consider mortality tables as to the wife’s life expectancy so as to ascertain what future medical expenses are reasonably certain to accrue as the natural and proximate result of her injuries. Old Dominion Freight Line v. Martin, 153 Ga. App. 135 , 264 S.E.2d 585 (1980), overruled, Brent v. Hin, 254 Ga. App. 77 , 561 S.E.2d 212 (2002).

Value of wife’s services is a jury question to be estimated in the light of the evidence and their own observation and experience. Community Gas Co. v. Williams, 87 Ga. App. 68 , 73 S.E.2d 119 (1952).

At common law, wife had no cause of action for loss of consortium. McDade v. West, 80 Ga. App. 481 , 56 S.E.2d 299 (1949).

Courts now recognize wife’s action for consortium. —

Wife has an independent cause of action for loss of consortium due to a negligent injury to her husband. Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga. App. 519 , 77 S.E.2d 24 (1953); Lemon v. Bank Lines, 411 F. Supp. 677 (S.D. Ga. 1976).

Consortium action derivative in nature. —

Right of the wife to recover for loss of consortium on account of alleged injuries inflicted upon her husband cannot arise unless her right to the consortium has been adversely affected under circumstances giving rise to liability and from which liability attaches. One spouse’s right of action for the loss of the other’s society or consortium is a derivative one, stemming from the right of the other. Armstrong Furn. Co. v. Nickle, 110 Ga. App. 686 , 140 S.E.2d 72 (1964).

Torts to Child

Infant may maintain action for damages on account of any tort committed resulting in damages to the infant, whether the tortious act affects the parent or not. Kite v. Brooks, 51 Ga. App. 531 , 181 S.E. 107 (1935).

Child may recover for prenatal injury. —

If a child born after an injury sustained at any period of the child’s prenatal life can prove the effect on the child of a tort, the child has a right to recover. Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504 , 93 S.E.2d 727 (1956).

Child generally may not sue parent in tort unless emancipated. —

While an unemancipated minor cannot sue a father for a tort to himself, such an action is maintainable if the child was emancipated at the time of the tort and the action. Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338 , 183 S.E. 210 (1935).

Except that unemancipated child may sue parent for intentional physical harm. —

While an unemancipated minor child has no cause of action against a parent for simple negligence, such child may maintain an action for personal injury against a parent for a willful or malicious act, provided it is such an act of cruelty as to authorize forfeiture of parental authority. Wright v. Wright, 85 Ga. App. 721 , 70 S.E.2d 152 (1952).

Unemancipated infant may recover against employer of the infant’s parent for injuries the infant sustained due to negligence of the parent while acting in the service of the employer, although the child could not maintain an action against the parent for the tortious act. Stapleton v. Stapleton, 85 Ga. App. 728 , 70 S.E.2d 156 (1952).

Adult child may sue parent for negligence, and it follows that a parent may also sue an adult child. Davis v. Cox, 131 Ga. App. 611 , 206 S.E.2d 655 (1974).

Statutory right of the parent to sue is merely declaratory of the common law, when such right to recover is, by legal fiction, predicated upon the relation of master and servant, and is limited to the recovery of damages for loss of the child’s services. Bell v. Central R.R., 73 Ga. 520 (1884); Frazier v. Georgia R.R. & Banking Co., 101 Ga. 70 , 28 S.E. 684 (1897); Kite v. Brooks, 51 Ga. App. 531 , 181 S.E. 107 (1935).

Former Code 1933, § 105-108 (see now O.C.G.A. § 51-2-2 ) was a mere codification of common-law rules, and at common law the liability of a father for the torts of his child was the same as the liability of a master for the torts of his servant. Upon that ground was based the right of action given to a father for a tort committed to his child or ward, set forth in former Code 1933, § 105-107 (see now O.C.G.A. § 51-1-9 ). Stanford v. Smith, 173 Ga. 165 , 159 S.E. 666 (1931).

Right to recover damages for loss of services and medical expenses from tortious injury to minor is in the father. Kite v. Brooks, 51 Ga. App. 531 , 181 S.E. 107 (1935); City of Dalton v. Webb, 131 Ga. App. 599 , 206 S.E.2d 639 (1974).

Action by father. —

Father may sue by virtue of this section for injuries to his minor son, as for injuries to a servant, if the son is old enough to render services. Shields v. Yonge, 15 Ga. 349 (1854); Allen v. Atlanta S.R.R., 54 Ga. 503 (1875).

Father must suffer such pecuniary damages to recover. —

Father cannot maintain a suit for a wrong done to his minor child, unless he has incurred a direct pecuniary injury therefrom, by reason of loss of service or expenses necessarily consequent thereon. Sorrels v. Matthews, 129 Ga. 319 , 58 S.E. 819 (1907); Kite v. Brooks, 51 Ga. App. 531 , 181 S.E. 107 (1935).

Mother of fatherless child may recover for loss of services. City of Albany v. Lindsey, 11 Ga. App. 573 , 75 S.E. 911 (1912).

There is presumption that infant less than two years old is incapable of performing valuable services. Crenshaw v. Louisville & N.R.R., 15 Ga. App. 182 , 82 S.E. 767 (1914).

Recovery not permitted for parent’s emotional distress. —

Recovery for emotional distress and mental suffering which results from the parent’s learning of injuries to his child or seeing the injured child is not allowed. Cotton States Mut. Ins. Co. v. Crosby, 149 Ga. App. 450 , 254 S.E.2d 485 , vacated, 152 Ga. App. 362 , 262 S.E.2d 899 (1979), rev'd in part, 244 Ga. 456 , 260 S.E.2d 860 (1979).

Parent’s right of action generally derivative. —

There is no independent right of action available to a parent who is not present at an incident in which his child is injured by the negligence of another. Cotton States Mut. Ins. Co. v. Crosby, 149 Ga. App. 450 , 254 S.E.2d 485 , vacated, 152 Ga. App. 362 , 262 S.E.2d 899 (1979), rev'd in part, 244 Ga. 456 , 260 S.E.2d 860 (1979); Posey v. Medical Center-West, Inc., 184 Ga. App. 404 , 361 S.E.2d 505 (1987).

Emancipated child may recover certain damages in own name. —

While ordinarily the cause of action for lost earnings and medical expenses expended is in the father of a minor child, a father may emancipate his minor child, and thereby vest in the child the right through his guardian or by next friend to sue for such damages. Brown v. Seaboard Air Line R.R., 91 Ga. App. 35 , 84 S.E.2d 707 (1954).

Father loses own right of recovery once vested in child. —

While a father may revoke his emancipation of his minor child, once he divests himself of a cause of action for loss of earnings and medical expenses and vests such cause of action in the child by emancipating the child, and the child sues on the cause of action and pursues it to judgment, the father cannot revest the cause of action in himself by revoking his emancipation of the child. Brown v. Seaboard Air Line R.R., 91 Ga. App. 35 , 84 S.E.2d 707 (1954).

Death of child will not bar action. Chick v. Southwestern R.R., 57 Ga. 357 (1876).

Pleadings. —

Petition which sets forth a good cause of action for loss of services should not be dismissed because of unnecessary allegations. McCarthy v. Gulf Ref. Co., 26 Ga. App. 663 , 26 Ga. App. 665 , 107 S.E. 92 (1921).

Torts to Servant

Application of common-law action per quod servitium amisit. —

Common-law action per quod servitium amisit, which supports the master’s recovery against the employer of a tort-feasor for the loss of services of his servant, is applicable to those instances in which the inflicted tort was intentional, with the determination of any liability on behalf of the employer of the tort-feasor who committed the intentional tort being governed by the applicable rules of the law of agency. Ireland Elec. Corp. v. Georgia Hwy. Express, Inc., 166 Ga. App. 150 , 303 S.E.2d 497 (1983).

Employer does not have a cause of action against the employer of an alleged tort-feasor for the loss of his employee’s services due to injuries sustained by that employee as a result of the tort-feasor’s negligence. Ireland Elec. Corp. v. Georgia Hwy. Express, Inc., 166 Ga. App. 150 , 303 S.E.2d 497 (1983); Risdon Enters., Inc. v. Colemill Enters., Inc., 172 Ga. App. 902 , 324 S.E.2d 738 (1984).

General Consideration

Constitutionality. —

Ten-year statute of repose barring strict product liability actions and applying to negligent product liability actions is not an unconstitutional denial of equal protection or access to the courts, nor does O.C.G.A. § 51-1-11 violate the one-subject matter limitation of the state constitution. Love v. Whirlpool Corp., 264 Ga. 701 , 449 S.E.2d 602 (1994).

Application of Florida law appropriate. —

Unpublished decision: Florida law was properly applied for a fraud claim brought by a lessee against a lessor’s principal because both Georgia under O.C.G.A. § 51-1-11(a) and Florida recognized an exception to the economic loss rule for injuries occurring independently of a contract and, thus, the application of Florida law did not contravene Georgia public policy. Luigino's Int'l, Inc. v. Miller, 311 Fed. Appx. 289 (11th Cir. 2009).

Former O.C.G.A. § 24-9-67 inapplicable. —

Trial court was not required to consider a driver’s expert affidavits under former O.C.G.A. § 24-9-67 (see now O.C.G.A. § 24-7-707 ) in a products liability action because by the statute’s terms former O.C.G.A. § 24-9-67 (see now O.C.G.A. § 24-7-707 ) applied to criminal cases, not civil cases. Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248 , 721 S.E.2d 190 (2011), cert. dismissed, No. S12C1769, 2012 Ga. LEXIS 869 (Ga. Nov. 5, 2012).

Calculating date. —

Date to be used for calculating the beginning of the statute of repose under O.C.G.A. § 51-1-11(b)(2), and the conditions precedent for the imposition of strict liability under O.C.G.A. § 51-1-11(b)(1) are not defined in the same terms because O.C.G.A. § 51-1-11(b)(2) refers to the sale of the finished product to the consumer who is intended to receive the product as new. Campbell v. Altec Indus., 288 Ga. 535 , 707 S.E.2d 48 (2011).

Privity as Element of Action

1.In General

Subsection (a) is a codification of the common law. Moody v. Martin Motor Co., 76 Ga. App. 456 , 46 S.E.2d 197 (1948).

Subsection (a) allows an action in tort without the necessity of privity. Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010 (5th Cir. 1969); Lashley v. Ford Motor Co., 359 F. Supp. 363 (M.D. Ga. 1972), aff'd, 480 F.2d 158 (5th Cir. 1973).

Subsection (a) of former Code 1933, § 105-106 (see now O.C.G.A. § 51-1-11 ) purportedly limited the right of tort action based on the violation of a duty, itself the consequence of a contract, to a party or privy, except in cases when the party would have had a right of action for the injury done, independently of the contract or in cases covered by former Code 1933, § 109A-2—318 (see now O.C.G.A. § 11-2-318 ) of the Uniform Commercial Code extending the benefit of express or implied warranties to certain natural persons without regard to privity. Koppers Co. v. Parks, 120 Ga. App. 551 , 171 S.E.2d 639 (1969); Shell v. Watts, 125 Ga. App. 542 , 188 S.E.2d 269 , rev'd, 229 Ga. 474 , 192 S.E.2d 265 (1972).

O.C.G.A. § 51-1-11 states that no privity is necessary to support a tort action; but, if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases when the party would have a right of action for the injury done independently of the contract. Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268 , 740 S.E.2d 672 (2013), cert. denied, No. S13C1255, 2013 Ga. LEXIS 774 (Ga. Sept. 23, 2013).

Rule of privity in contract actions is made a statutory requirement by subsection (a). —

In actions based upon the breach of express or implied warranties, this requirement was subject only to the exception contained in former Code 1933, § 109A-2-318 (see now O.C.G.A. § 11-2-318 ). Ellis v. Rich's, Inc., 233 Ga. 573 , 212 S.E.2d 373 (1975).

Duty of care may be called for by contract and by tort law at same time, and when this is true the plaintiff requires no privity to maintain a tort action. Sims v. American Cas. Co., 131 Ga. App. 461 , 206 S.E.2d 121 , aff'd, 232 Ga. 787 , 209 S.E.2d 61 (1974).

Parties to contract not necessarily confined to contractual remedies. —

When the petition was one in tort for a negligent injury committed upon the property of the joint plaintiffs, the right of action was not confined to the parties to the contract, the negligent performance of which resulted in the injury to the plaintiffs’ property, since the right of action for the injury done inhered in the owners of the property independently of any obligation imposed by the contract. Monroe v. Guess, 41 Ga. App. 697 , 154 S.E. 301 (1930).

Mere fact that the right or privilege of one which has been violated was acquired by virtue of a contract does not confine actions for the violation of the right to parties and privies to the contract. University Apts., Inc. v. Uhler, 84 Ga. App. 720 , 67 S.E.2d 201 (1951).

Party to contract may maintain suit in tort with nonparty. —

Fact that one of the plaintiffs may have been a party to the contract, the negligent performance of which caused the injury, would not prevent a joint action by both of the owners of the damaged property for the tortious injury to their property independent of the contract, since independently of any duty under the contract, the law imposed upon the defendant the duty not to negligently and wrongfully injure and damage the property of another. Monroe v. Guess, 41 Ga. App. 697 , 154 S.E. 301 (1930).

Action in tort cannot be maintained by third person not privy to the contract for breach of warranty which constitutes a mere contractual obligation between the defendant and the other contracting parties. Hand v. Harrison, 99 Ga. App. 429 , 108 S.E.2d 814 (1959).

Since the provisions in an ordinance granting a power company the right to erect its lines along the public streets are contractual between the city and the power company, a breach of them would give rise to a cause of action between them only, unless it appears that the plaintiff injured would have a right of action for the plaintiff’s injury independently of the contract. Crosby v. Savannah Elec. & Power Co., 114 Ga. App. 193 , 150 S.E.2d 563 (1966).

No rights arise by indirect contract relation. —

One person cannot maintain an action against another for an injury to a third person on the ground that the wrong has also indirectly injured the plaintiff by reason of the plaintiff’s contractual relations with the third person. Kokomo Rubber Co. v. Anderson, 33 Ga. App. 241 , 125 S.E. 783 (1924), rev'd, 161 Ga. 842 , 132 S.E. 76 (1926), vacated, 35 Ga. App. 259 , 132 S.E. 784 (1926); East Tenn., V. & Ga. Ry. v. Herrman & Bros., 92 Ga. 384 , 17 S.E. 344 (1893); Strachan Shipping Co. v. Hazlip-Hood Cotton Co., 35 Ga. App. 94 , 132 S.E. 454 (1926); King Hdwe. Co. v. Ennis, 39 Ga. App. 355 , 147 S.E. 119 (1929); Dale Elec. Co. v. Thurston, 82 Ga. App. 516 , 61 S.E.2d 584 (1950); Stuart v. Berry, 107 Ga. App. 531 , 130 S.E.2d 838 (1963); Hayes v. Century 21 Shows, Inc., 116 Ga. App. 490 , 157 S.E.2d 779 (1967); Shellenberger v. Tanner, 138 Ga. App. 399 , 227 S.E.2d 266 (1976); Sawyer v. Allison, 151 Ga. App. 334 , 259 S.E.2d 721 (1979); Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747 , 266 S.E.2d 531 (1980).

Corporations not affected by abolition of privity requirement. —

Although the requirement of privity has been abolished for tort actions and actions against manufacturers of defective products brought by “any natural person . . . ”, no such change has been effected as to corporations damaged by defective products. Chem Tech Finishers, Inc. v. Paul Mueller Co., 189 Ga. App. 433 , 375 S.E.2d 881 (1988).

Buyer corporation may be liable for torts of seller corporation. —

When a corporation that has manufactured a product is purchased by another corporation, the purchaser may be held liable for the torts of the seller under certain circumstances. Corbin v. Farmex, Inc., 227 Ga. App. 620 , 490 S.E.2d 395 (1997), rev'd, 269 Ga. 548 , 501 S.E.2d 802 (1998), vacated, 234 Ga. App. 180 , 506 S.E.2d 406 (1998).

Policy considerations may override privity requirements. —

Exception to the rigid privity requirement will be implied when policy considerations weigh in favor of liability. Gulf Contracting v. Bibb County, 795 F.2d 980 (11th Cir. 1986).

Third party not in privity cannot rely on professional duty which might give rise to a negligence action had the injured party been in privity. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

Party not in privity subject to action for procuring breach of contract. —

Person not party to contract may procure, without justification, its breach, and be liable therefor in tort; the mere failure of a party to a contract to carry out its terms will not give rise to a cause of action ex delicto in favor of a third person who has contracted with the opposite party to such contract, although in breaching the contract the party so failing may be charged with notice that the opposite party will not be able to perform its contract with such third person. First Mtg. Corp. v. Felker, 158 Ga. App. 14 , 279 S.E.2d 451 (1981).

Liability for negligent misrepresentations by persons rendering professional services is limited to a foreseeable person or limited class of persons for whom the information was intended and who can show reasonable reliance on the false information, specifically that the information was given for the purpose of inducing their reliance. Gulf Contracting v. Bibb County, 795 F.2d 980 (11th Cir. 1986).

Exception to the privity requirement has been recognized in cases of negligent misrepresentation by a professional, reasonably relied upon by a foreseeable person or class of person. However, no similar exception has been carved out for a professional’s alleged negligent failure to supervise a project. Wood Bros. Constr. Co. v. Simons-Eastern Co., 193 Ga. App. 874 , 389 S.E.2d 382 (1989).

2.Applicability to Specific Cases

No recovery for economic loss. —

If there exists no accident, and no physical damage to other property, and the only loss is a pecuniary one, through loss of the value or use of the thing sold, or the cost of repairing or modifying the property, the court adheres to the rule that purely economic interests are not entitled to protection against mere negligence, and accordingly deny recovery. Bates & Assocs. v. Romei, 207 Ga. App. 81 , 426 S.E.2d 919 (1993).

Only parties to contract of shipment may sue upon negligent performance. —

When the complaint is grounded upon negligence in performance of the duties imposed by a contract of shipment and, therefore, while not based upon the contract, but in tort, is necessarily founded and grounded upon the obligations assumed under the specific contract by the contracting parties thereto, the maker of the contract is the one to complain of negligence in its performance rather than some other person not a party to the agreement. Black v. Southern Ry., 48 Ga. App. 445 , 173 S.E. 199 (1934).

Consignee of goods under bill of lading cannot maintain tort action without an interest in goods consigned. —

Consignee who actually is without any special or general property in goods consigned to him, and who therefore incurs no risk from their transportation, cannot maintain against the carrier an action ex delicto for loss or damage to the goods in transit. Black v. Southern Ry., 48 Ga. App. 445 , 173 S.E. 199 (1934).

Consignee’s ownership interest rebuttably presumed. —

Consignee of property delivered by another to a common carrier for shipment is presumed to be the owner, and presumptively a right of action exists in the consignee’s favor for any injury or damage to the property in transit. This presumption, however, may be rebutted, and, when successfully done, the consignee cannot maintain an action ex delicto for the loss of or for any damage to the property. Black v. Southern Ry., 48 Ga. App. 445 , 173 S.E. 199 (1934).

Consignee with special interest may sue even though not general owner. —

Though the consignee may not be the real owner, if the consignee has a special interest in the property shipped, the consignee may maintain action for the loss, or for any damage to such property in transit, and in such action may have a recovery of the full value of the property when lost, or full amount of damages to the property when the property is injured. The ownership may not be extensive, and an agent, factor, broker, bailee, or other person having rights in the property to be protected may maintain an action, and recover both for oneself and the general owner. Black v. Southern Ry., 48 Ga. App. 445 , 173 S.E. 199 (1934).

Employees of purchaser do not have privity with manufacturer. Watkins v. Barber-Colman Co., 625 F.2d 714 (5th Cir. 1980).

Independent contractor owes an original duty not to endanger lives and limbs of others by negligent performance of contract, when the consequences of such conduct may be foreseen; the trial court erred in granting a motion to dismiss when the defendant garageman failed to repair brakes on the plaintiff’s employer’s truck, leading to the plaintiff’s injury. Moody v. Martin Motor Co., 76 Ga. App. 456 , 46 S.E.2d 197 (1948).

General contractor not in privity with contract between school district and agent. —

General contractor’s negligence and breach of duty claims against an agent for a school district were barred by the economic loss rule, O.C.G.A. § 51-1-11(a) ; the contractor was essentially alleging negligent supervision of a school project, and the contractor was not in privity with the contract between the agent and the school district and did not assert any legal duty owed independently of the contract. J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552 , 644 S.E.2d 440 (2007).

Independent contractor may be liable to third person after contractor has completed work when completed work product is inherently or intrinsically dangerous or so defective as to be imminently dangerous to third persons. This exception applies as between a designing engineer of a roof and a tenant who was damaged when the roof collapsed. Welding Prods. v. S.D. Mullins Co., 127 Ga. App. 474 , 193 S.E.2d 881 (1972).

Landlord’s duty not to willfully disturb possession rights not merely contractual duty. —

Duty on the part of the landlord not to willfully interfere with the plaintiff’s right to occupy the apartment which she had a right to do in the right of her husband and not to interfere with her access to her clothing were not duties arising out of the contract of rental; they were duties owed by all persons to all persons, and the cause of action would have existed if there had been no contract of rental between the parties. University Apts., Inc. v. Uhler, 84 Ga. App. 720 , 67 S.E.2d 201 (1951).

Telegraph company liable though privity absent. —

Privity of contract is not required when one sues a telegraph company for failure to transmit and deliver a message. Conyers v. Postal Tel. Cable Co., 92 Ga. 619 , 19 S.E. 253 (1893).

Architects and engineers liable for defects in plans relied on by those bidding for contract. —

When the defendants negligently failed to disclose the remaining subsurface debris in specifications, plans, drawings, plats, and surveys describing a construction job that the defendants prepared as architects and engineers, those specifications were obviously prepared for a limited class of persons, namely firms bidding for contracts to build all or a portion of the job and reliance on the specifications and other materials by such persons was also reasonable because the information therein was vital to the bidding process, the defendants could be liable to third parties such as the low bidder on the job for the defendants’ failure to adequately describe construction requirements through the defendants’ specifications and materials. Gulf Contracting v. Bibb County, 795 F.2d 980 (11th Cir. 1986).

Relationship between architectural firm and supplier and installer of materials. —

Architectural firm which entered a contract with a store to design a renovation owed no duty of care, as a professional, to the company hired to install the tile, or to the company which supplied the tile, which turned out to be defective, when there was no professional relationship existing between them nor any relationship approaching that of privity. R.H. Macy & Co. v. Williams Tile & Terrazzo Co., 585 F. Supp. 175 (N.D. Ga. 1984).

Surety’s recovery from a party not in privity. —

As a surety, attempting to recover from a CPM based on a construction company’s default, was not in privity with the CPM; did not allege willfulness, physical harm, or property damage; and failed to present exceptions to O.C.G.A. § 51-1-11 ’s strict privity rule other than negligent misrepresentation, personal professional negligence claims failed. Carolina Cas. Ins. Co. v. R.L. Brown & Assocs., No. 1:04-cv-3537-GET, 2006 U.S. Dist. LEXIS 71056 (N.D. Ga. Sept. 29, 2006).

Fall victim not third-party beneficiary of contract between shopping center and independent contractor. —

In a couple’s slip and fall case, the trial court did not err by granting summary judgment in favor of an independent contractor that had applied a de-icing mixture to the area on the night before the fall when there was no evidence that the injured plaintiffs were third-party beneficiaries of the contract between the shopping center and the independent contractor and when there was no evidence that the independent contractor had been negligent. Davidson v. Meticulously Clean Sweepers, LLC, 329 Ga. App. 640 , 765 S.E.2d 783 (2014).

City contractor not in privity with city water customers. —

Because the only specific damages alleged by a city’s water customers were overpayments to the city for which the customers sought a refund, and because the customers did not seek damages due to injury to the customers’ persons or to the customers’ real or personal property, the city’s contractors did not owe the customers a duty independent of the customers’ contracts with the city. City of Atlanta v. Benator, 310 Ga. App. 597 , 714 S.E.2d 109 (2011), overruled in part, FDIC v. Loudermilk, 305 Ga. 558 , 826 S.E.2d 116 (2019).

Members of distribution EMCs lacked privity to sue wholesale EMCs. —

Suits by classes of former and current members of distribution electric membership corporations (EMCs) seeking to recover millions of dollars in patronage capital from two wholesale EMCs were dismissed because the members lacked privity with the wholesale EMCs, and there was no legal duty under O.C.G.A. § 46-3-340(c) or the EMCs’ bylaws requiring distribution of the patronage capital to the members. Walker v. Oglethorpe Power Corp., 341 Ga. App. 647 , 802 S.E.2d 643 (2017), overruled in part, Hanham v. Access Mgmt. Group L.P., 305 Ga. 414 , 825 S.E.2d 217 (2019).

Products Liability

1.In General

“Third-party tort-feasor” construed. —

Products liability claim pursuant to O.C.G.A. § 51-1-11 , against a general contractor in the contractor’s capacity as designer and manufacturer of a new paper-making process, as opposed to the contractor’s capacity as statutory employer, is not an action against a “third-party tort-feasor” which avoids the immunity provided under O.C.G.A. § 34-9-11 . Porter v. Beloit Corp., 194 Ga. App. 591 , 391 S.E.2d 430 (1990), cert. denied, No. S90C0774, 1990 Ga. LEXIS 775 (Ga. Apr. 5, 1990).

Implied warranty of merchantability distinguished. —

Establishment of the implied warranty of merchantability as applied to a seller under O.C.G.A. § 11-2-314 is not the same as the strict liability imposed on a manufacturer under O.C.G.A. § 51-1-11 . Buford v. Toys R' Us, Inc., 217 Ga. App. 565 , 458 S.E.2d 373 (1995), cert. denied, No. S95C1555, 1995 Ga. LEXIS 1039 (Ga. Sept. 25, 1995), overruled in part, Wal-Mart Stores, Inc. v. Wheeler, 262 Ga. App. 607 , 586 S.E.2d 83 (2003).

Removal to federal court. —

In an action against cigarette manufacturers and retail sellers, there was no possibility the plaintiff could recover against the retail defendants who were added to defeat diversity jurisdiction and, thus, the plaintiff’s motion to remand after the manufacturers moved the action to federal court should be denied. Crooke v. R.J. Reynolds Tobacco Co., 978 F. Supp. 1482 (N.D. Ga. 1997).

Requirement for an expert affidavit did not apply to a strict products liability action against a manufacturer. SK Hand Tool Corp. v. Lowman, 223 Ga. App. 712 , 479 S.E.2d 103 (1996), cert. denied, No. S97C0514, 1997 Ga. LEXIS 341 (Ga. Mar. 7, 1997).

Expert affidavit inadequate. —

Trial court did not err in determining that the affidavits of a driver’s experts were inadequate under former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. § 24-7-702 ) to defeat summary judgment in favor of a manufacturer in the driver’s products liability action because the affidavits did not describe the facts or data upon which the experts’ opinions were based, did not explain the principles or methods the experts used to reach the experts’ conclusions about the tire, and did not provide support for a conclusion that the experts had applied those principles and methods reliably in the experts’ inspections of the tire. Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248 , 721 S.E.2d 190 (2011), cert. dismissed, No. S12C1769, 2012 Ga. LEXIS 869 (Ga. Nov. 5, 2012).

Subsection (b) imposes strict liability for defective products. —

Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975); Mike Bajalia, Inc. v. Amos Constr. Co., 142 Ga. App. 225 , 235 S.E.2d 664 (1977); Wansor v. George Hantscho Co., 570 F.2d 1202 (5th Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 350 , 58 L. Ed. 2 d 344 (1978).

Subsection (b) does not attach condition that defective product must be “unreasonably dangerous.” Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975).

Subsection (b) does not make manufacturer strictly liable for dangerous product absent a defect. Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975).

Strict liability applied only to manufacturers. —

These legislative enactments preclude any extension of strict liability by this court to parties other than the manufacturer. Ellis v. Rich's, Inc., 233 Ga. 573 , 212 S.E.2d 373 (1975).

Strict liability claim lies only against the manufacturer and not against the mere owner of a product. Williams v. City Ice Co., 190 Ga. App. 744 , 380 S.E.2d 341 (1989).

Strict liability through implied warranty of fitness is not applicable to providers of service. —

Any imposition of strict liability through an implied warranty of fitness is applicable by statute to the manufacturers of new products, but is not applicable to the providers of services. Seaboard Coast Line R.R. v. Mobil Chem. Co., 172 Ga. App. 543 , 323 S.E.2d 849 (1984).

Subsection (b) imposes tort liability under a breach of contract standard. Higginbotham v. Ford Motor Co., 540 F.2d 762 (5th Cir. 1976).

In contradistinction to law of negligence, law of warranty assigns liability on basis of product’s lack of fitness; when machinery “malfunctions,” it obviously lacks fitness regardless of the cause of the malfunction. Lashley v. Ford Motor Co., 359 F. Supp. 363 (M.D. Ga. 1972), aff'd, 480 F.2d 158 (5th Cir. 1973).

Subsection (b) is directed to the manufacturer of any personal property sold as new property and not to the distributor. See Ellis v. Rich's, Inc., 132 Ga. App. 430 , 208 S.E.2d 331 (1974), aff'd, 233 Ga. 573 , 212 S.E.2d 373 (1975); Wansor v. George Hantscho Co., 243 Ga. 91 , 252 S.E.2d 623 (1979); Holman Motor Co. v. Evans, 169 Ga. App. 610 , 314 S.E.2d 453 (1984); Hatcher v. Allied Prods. Corp., 256 Ga. 100 , 344 S.E.2d 418 (1986); English v. Crenshaw Supply Co., 193 Ga. App. 354 , 387 S.E.2d 628 (1989); Wheat v. Sofamor, S.N.C., 46 F. Supp. 2d 1351 (N.D. Ga. 1999).

Subsection (b) creates liability only in cases of personal property sold after 1968. Watkins v. Barber-Colman Co., 625 F.2d 714 (5th Cir. 1980).

Subsection (b), by its specified terms, runs to the benefit of natural persons only. American San. Servs. v. EDM of Tex., Inc., 139 Ga. App. 662 , 229 S.E.2d 136 (1976); Mike Bajalia, Inc. v. Amos Constr. Co., 142 Ga. App. 225 , 235 S.E.2d 664 (1977); A.J. Kellos Constr. Co. v. Balboa Ins. Co., 495 F. Supp. 408 (S.D. Ga. 1980).

Strict liability claims under O.C.G.A. § 51-1-11(b)(1) by plaintiff insured, as subrogee of a contractor, against the defendants, the seller of a school fire protection system and the designer and manufacturer of the system’s controller, failed because the insurer and its insured, as corporations, were not “natural persons” within § 51-1-11(b)(1). ACE Fire Underwriters Ins. Co. v. ALC Controls, Inc., No. 1:07-CV-606-TWT, 2008 U.S. Dist. LEXIS 41672 (N.D. Ga. May 27, 2008).

Subsection (b) not retroactively applied. —

Provisions of subsection (b) created a new cause of action which was in derogation of the common law, and it follows that under former Code 1933, § 102-104 (see now O.C.G.A. § 1-3-5 ), which forbids the retroactive application of laws, former Code 1933, § 105-106 (see now O.C.G.A. § 51-1-11 ) may not be given retroactive effect. Wansor v. George Hantscho Co., 243 Ga. 91 , 252 S.E.2d 623 (1979).

Subsection (b) should be strictly construed because it is in derogation of common law. Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559 , 272 S.E.2d 251 (1980); Stiltjes v. Ridco Exterminating Co., 178 Ga. App. 438 , 343 S.E.2d 715 , aff'd, 256 Ga. 255 , 347 S.E.2d 568 (1986).

Subsection (b) is in derogation of common law and must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms. Daniel v. American Optical Corp., 251 Ga. 166 , 304 S.E.2d 383 (1983).

Georgia’s strict liability doctrine is legislatively enacted, and it will be strictly construed. Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744 , 353 S.E.2d 340 (1987).

Exception to 10 year liability limit. —

As a general rule, tort claims against a manufacturer are barred by O.C.G.A. § 51-1-11(b)(2) after 10 years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury; under O.C.G.A. § 51-1-11(c) , however, the legislature crafted an exception to the 10-year limit providing that nothing contained in that subsection shall relieve a manufacturer from the duty to warn of a danger arising from use of a product once that danger becomes known to the manufacturer. Hunter v. Werner Co., 258 Ga. App. 379 , 574 S.E.2d 426 (2002), cert. denied, No. S03C0467, 2003 Ga. LEXIS 136 (Ga. Feb. 10, 2003).

When a product is sold to a particular group or profession, a manufacturer has no duty to warn against the risks generally known to that group or profession. Argo v. Perfection Prods. Co., 730 F. Supp. 1109 (N.D. Ga. 1989), aff'd, 935 F.2d 1295 (11th Cir. 1991).

Failure to warn may constitute defect. —

Manufacturer’s failure to warn of the dangers in using a product may constitute a defect in the product for purposes of strict liability. Pepper v. Selig Chem. Indus., 161 Ga. App. 548 , 288 S.E.2d 693 (1982).

Absence of safety device. —

Product is not rendered defective by the patent absence of a specific safety device which would serve to guard against a common danger connected with the limited use of a product, which danger the ultimate user can personally recognize and otherwise guard against. Fortner v. W.C. Cayne & Co., 184 Ga. App. 187 , 360 S.E.2d 920 (1987).

Absence of passive restraints or airbags in an automobile could not be considered a defective condition so as to establish a breach of duty on the part of the manufacturer. Honda Motor Co. v. Kimbrel, 189 Ga. App. 414 , 376 S.E.2d 379 (1988), overruled, Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574 , 481 S.E.2d 518 (1997).

Safety belts rather than airbags in automobiles would not be a defect within the meaning of O.C.G.A. § 51-1-11 . Honda Motor Co. v. Kimbrel, 189 Ga. App. 414 , 376 S.E.2d 379 (1988), overruled, Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574 , 481 S.E.2d 518 (1997).

Doctrine of attractive nuisance by its terms applies only against a possessor of land; and, thus, it would appear to be inherently inapplicable to product liability cases. Greenway v. Peabody Int'l Corp., 163 Ga. App. 698 , 294 S.E.2d 541 (1982).

Product defectively designed. —

In determining whether a product was defectively designed, the trier of fact may consider evidence establishing that at the time the product was manufactured, an alternative design would have made the product safer than the original design and was a marketable reality and technologically feasible. Banks v. ICI Americas, Inc., 264 Ga. 732 , 450 S.E.2d 671 (1994).

In a products liability action arising from the death of a nine-year-old child who died after eating rat poison thinking it was candy, a risk-utility analysis should have been applied in determining whether the design of the rodenticide was defective. Banks v. ICI Americas, Inc., 264 Ga. 732 , 450 S.E.2d 671 (1994).

Plaintiff failed to prove defective product design. —

In an action arising from the crash of a helicopter, because the plaintiff failed to show that the crash was proximately caused by a defect in the helicopter and to rebut the manufacturer’s argument that the cause was the failure to have an inlet screen in place, the plaintiff’s claim failed as a matter of law. Carmical v. Bell Helicopter Textron, Inc., 117 F.3d 490 (11th Cir. 1997).

In an action arising from the electrocution of the plaintiffs’ decedent while the decedent was installing a washer/dryer unit in an apartment complex, summary judgment for the seller and manufacturer was proper because there was no evidence that the failure to place a rejection feature in the terminal block to prevent mis-wiring constituted a defective design. Moore v. ECI Mgmt., 246 Ga. App. 601 , 542 S.E.2d 115 (2000), cert. denied, No. S01C0335, 2001 Ga. LEXIS 363 (Ga. Apr. 30, 2001).

2.Legislative Intent

Public policy on product liability. —

Former Code 1933, § 105-106 (see now O.C.G.A. § 51-1-11 ) as well as former Code 1933, § 109A-2—318 (see now O.C.G.A. § 11-2-318 ) were recent expressions of the legislature establishing but also limiting the public policy of this state in the area of product liability. Ellis v. Rich's, Inc., 233 Ga. 573 , 212 S.E.2d 373 (1975).

Intent to exclude builders of real property from product liability law. —

It was the intention of the legislature in using the phrase “personal property” to eliminate from the operation of the statute the sale of buildings by those who might with respect to them be regarded as manufacturers, and thereby to retain with respect to the sale of real property the rules requiring fraud to overcome the normal rule of caveat emptor. Garrett v. Panacon Corp., 130 Ga. App. 641 , 204 S.E.2d 354 (1974).

3.Definitions

Loss of bargain not “injury” within subsection (b). —

“Injury,” within the strict liability context of subsection (b) does not include damages stemming from loss of the benefit of one’s bargain. The history of the doctrine of strict liability in tort indicates that it was designed to govern the distinct problem of physical injuries. Chrysler Corp. v. Taylor, 141 Ga. App. 671 , 234 S.E.2d 123 (1977).

Electricity is a “product” within the meaning of subsection (b). Monroe v. Savannah Elec. & Power Co., 267 Ga. 26 , 471 S.E.2d 854 (1996).

“Manufacturer” defined. —

Entity which assembles component parts and sells them as a single product under its trade name is a “manufacturer”. Pierce v. Liberty Furn. Co., 141 Ga. App. 175 , 233 S.E.2d 33 (1977).

Corporation which engaged another corporation to construct a prototype of a particular machine, which inspected the machine and offered suggestions for improvements, but which did not actually design or build the machine, did not assemble any component parts into a single product, nor sell or represent the machine as its own product, was not the “manufacturer” of the machine, such as to make it liable when it allowed an employer to use the machine and an employee was injured. Morgan v. Mar-Bel, Inc., 614 F. Supp. 438 (N.D. Ga. 1985).

When an installer did not sell either a vehicle or an auger under its own trade name, the trial court correctly determined as a matter of law that the installer was not a “manufacturer” of the equipment within the meaning of subsection (b)(1) of O.C.G.A. § 51-1-11 and thus could not be held strictly liable for its performance. Yaeger v. Stith Equip. Co., 185 Ga. App. 315 , 364 S.E.2d 48 (1987).

Retailer which affixed the retailer’s label to a nightgown manufactured by another firm was the ostensible “manufacturer” of the product, and therefore subject to liability under O.C.G.A. § 51-1-11 . Morgan v. Sears, Roebuck & Co., 693 F. Supp. 1154 (N.D. Ga. 1988), amended, 700 F. Supp. 1574 (N.D. Ga. 1988), aff'd, 893 F.2d 348 (11th Cir. 1989); Morgan v. Sears, Roebuck & Co., 700 F. Supp. 1574 (N.D. Ga. 1988).

Soft drink franchisor, who manufactured and sold syrup to licensed bottling companies who then mixed it with other ingredients, was not liable as a “manufacturer” of the finished beverage product, which was sold by the bottlers for their accounts. Tyler v. Pepsico, Inc., 198 Ga. App. 223 , 400 S.E.2d 673 (1990).

“Not merchantable” defined. —

Term “not merchantable and reasonably suited for the use intended,” under subsection (b) means that the manufacturer’s product when sold by the manufacturer was defective. A defective condition obtains only when the product is, at the time the product leaves the seller’s hands, in a condition not contemplated by the ultimate consumer. Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975); Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 , 248 S.E.2d 15 (1978).

Term “not merchantable and reasonably suited to the use intended” as used in O.C.G.A. § 51-1-11 means “defective.” Giordano v. Ford Motor Co., 165 Ga. App. 644 , 299 S.E.2d 897 (1983).

“Personal property” defined. —

Designation “personal property” as used in subsection (b) includes all items manufactured as personal property regardless of whether such item has been affixed to or incorporated into real property after manufacture. Garrett v. Panacon Corp., 130 Ga. App. 641 , 204 S.E.2d 354 (1974).

There is no reason for distinguishing between product itself and container in which it is supplied. Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975).

Stream of commerce. —

Sale is not an absolute prerequisite to a finding that a product has been placed in the stream of commerce for purposes of subsection (b) of O.C.G.A. § 51-1-11 . Monroe v. Savannah Elec. & Power Co., 267 Ga. 26 , 471 S.E.2d 854 (1996).

In determining whether electricity had been placed in the stream of commerce for purposes of strict liability, the relinquishment of control over the electricity and/or the marketable condition of that electricity were essential factors. Monroe v. Savannah Elec. & Power Co., 267 Ga. 26 , 471 S.E.2d 854 (1996).

Supply of blood by hospital not sale of property within subsection (b). —

Hospitals supplying blood to patients do so as part of the rendering of medical “services,” rather than as a “sale” of blood, and thus only negligence and not strict products liability is available to the injured patient. McAllister v. American Nat'l Red Cross, 240 Ga. 246 , 240 S.E.2d 247 (1977).

Product. —

Engineering company that designed an allegedly defective reinforcing safety net that was installed in the soil above a combined sanitary and storm sewer, and which failed to prevent a hole from developing, could have been found liable under O.C.G.A. § 51-1-11 as the reinforcing safety net could have been considered a product under a theory of products liability. Tensar Earth Techs., Inc. v. City of Atlanta, 267 Ga. App. 45 , 598 S.E.2d 815 (2004), cert. denied, No. S04C1476, 2004 Ga. LEXIS 779 (Ga. Sept. 7, 2004), cert. dismissed, No. S04C1484, 2004 Ga. LEXIS 782 (Ga. Sept. 8, 2004).

4.Applicability of Subsection (b)

Manufacturer of defective article, which is inherently dangerous, is liable in tort for damages to any person injured by the manufacturer’s negligence, though there is no privity of contract. Blood Balm Co. v. Cooper, 83 Ga. 457 , 10 S.E. 118 (1889); Woodward v. Miller, 119 Ga. 618 , 46 S.E. 847 (1904).

Manufacturer is liable if product, when sold, was not merchantable and reasonably suited to use intended and the product’s condition when sold is the proximate cause of the injury sustained. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

O.C.G.A. § 51-1-11 does not apply to distributors. Hatcher v. Allied Prods. Corp., 796 F.2d 1427 (11th Cir. 1986).

Electricity is a product or “personal property sold as new property” when it is in the hands of and under the control of the consumer, intended to be available to the customer at a usable voltage. Monroe v. Savannah Elec. & Power Co., 219 Ga. App. 460 , 465 S.E.2d 508 (1995), aff'd, 267 Ga. 26 , 471 S.E.2d 854 (1996).

After the decedent was killed by electricity that was not transformed or intended to be transformed for use at the customer’s facility, there was no basis for a claim against the electric company under paragraph (b)(1) O.C.G.A. § 51-1-11 . Monroe v. Savannah Elec. & Power Co., 219 Ga. App. 460 , 465 S.E.2d 508 (1995), aff'd, 267 Ga. 26 , 471 S.E.2d 854 (1996).

Product seller not a manufacturer. —

In an action by an employee for injuries suffered using a paper cutter, when the complaint did not allege any facts showing that the defendant company was a manufacturer under O.C.G.A. § 51-1-11 , or that the defendant sold the product as “new property,” the defendant could not be strictly liable. Mullins v. M.G.D. Graphics Sys. Group, 867 F. Supp. 1578 (N.D. Ga. 1994).

Corporation which purchased the assets of a manufacturer and sold, but did not manufacture, a product of the design manufactured by its predecessor, was a “product seller” under O.C.G.A. § 51-1-11 .1, not a “manufacturer” subject to strict liability under paragraph (b)(1) O.C.G.A. § 51-1-11 . Farmex Inc. v. Wainwright, 269 Ga. 548 , 501 S.E.2d 802 (1998).

When an alleged injured party asserted product liability claims against several retailers for injuries incurred when a plastic gas container being used near a fire exploded, strict liability claims could not survive; market-share liability had been rejected in Georgia, the retailers were not “manufacturers,” and there was no issue regarding the duty to warn. Williamson v. Walmart Stores, Inc., No. 3:14-CV-97, 2015 U.S. Dist. LEXIS 45657 (M.D. Ga. Apr. 8, 2015).

“First sale” not applicable to person injured. —

When a spinal plate was first sold for use or consumption in 1972, O.C.G.A. § 51-1-11 barred a patient’s medical product liability claim based on use of the plate in 1988. Pafford v. Biomet, 210 Ga. App. 486 , 436 S.E.2d 504 (1993), aff'd in part and rev'd in part, 264 Ga. 540 , 448 S.E.2d 347 (1994).

Vehicle not manufactured by defendant. —

Defendant used-car dealer could not be held liable under a complaint alleging that the plaintiffs’ decedent was killed while driving a used car purchased from the defendant which was defective when manufactured and that the car was covered by an express warranty of merchantability, issued by the defendant at the time of purchase, when the vehicle in question was not manufactured by the defendant. Ryals v. Billy Poppell, Inc., 192 Ga. App. 787 , 386 S.E.2d 513 (1989).

Proof of defect at time of sale or lease. —

Failure of the brakes was not evidence that the brakes were defective at the time plaintiff leased the truck because there were several plausible explanations for the brake failure, including negligent brake repair or excessive trailer weight. Jenkins v. GMC, 240 Ga. App. 636 , 524 S.E.2d 324 (1999).

Offering for sale or lease, marketing, or placing in stream of commerce, invokes section. —

When a manufactured item designed to be sold as new merchandise is initially offered for sale or lease, or otherwise marketed or placed in the stream of commerce, the coverage of O.C.G.A. § 51-1-11 is invoked. Thorpe v. Robert F. Bullock, Inc., 179 Ga. App. 867 , 348 S.E.2d 55 (1986), aff'd, 256 Ga. 744 , 353 S.E.2d 340 (1987).

Evidence of wilful, reckless, or wanton conduct. —

In a negligence action based on the sale of an automobile with an allegedly defectively-designed seat belt retractor mechanism, evidence pertaining to an earlier design was insufficient as a matter of law to establish wilful, reckless, or wanton misconduct since the design had subsequently been modified and there was no evidence to suggest that the modifications were ineffective or failed to correct the earlier problems. Chrysler Corp. v. Batten, 264 Ga. 723 , 450 S.E.2d 208 (1994).

In the absence of evidence showing that any defendant acted with a willful, reckless, or wanton disregard for life or property, the willful misconduct exception to the statute of repose was inapplicable in an action based on the claim that the defendants were liable for failing to install an alarm on a truck which would have warned bystanders when the truck was moving backwards. Vickery v. Waste Mgmt. of Ga., Inc., 249 Ga. App. 659 , 549 S.E.2d 482 (2001), cert. dismissed, No. S01C1380, 2001 Ga. LEXIS 855 (Ga. Oct. 22, 2001).

Failure to warn. —

Claims based on negligent failure to warn of the danger arising from a defectively-designed seat belt were not barred by the statute of repose. Chrysler Corp. v. Batten, 264 Ga. 723 , 450 S.E.2d 208 (1994).

Statute of repose does not apply to “failure to warn” claims. Daniels v. Bucyrus-Erie Corp., 237 Ga. App. 828 , 516 S.E.2d 848 (1999).

Repairer of machine was not a manufacturer under O.C.G.A. § 51-1-11 because, although the repairer may have assembled component parts, the repairer did not do so for the purpose of having the machine sold as new property under the repairer’s own trade name. Barry v. Stevens Equip. Co., 176 Ga. App. 27 , 335 S.E.2d 129 (1985).

Product must be defective when sold. —

In order to impose strict liability on the manufacturer of a product, the plaintiff must show that the manufacturer’s product when sold by the manufacturer was defective. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

Test in products liability is whether the product was merchantable and reasonably suited to the use intended as determined at the time the product is sold and when a product is alleged to be “defective” for lack of safety devices, the manufacturer is entitled to have the “defectiveness” of the manufacturer’s product considered in the context of the overall original design of the item; this is especially true when the alleged defect in a product is the absence of safety features on a component of the product which would prevent injury in the event another component fails. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

Product is not in defective condition when the product is safe for normal handling and consumption. Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975).

Product is not in a defective condition when the product is safe for normal handling. If injury results from abnormal handling, the manufacturer is not liable. Argo v. Perfection Prods. Co., 730 F. Supp. 1109 (N.D. Ga. 1989), aff'd, 935 F.2d 1295 (11th Cir. 1991).

Manufacturer’s duty to make product safe. —

If a manufacturer does everything necessary to make the machine function properly for the purpose for which the machine is designed, if the machine is without any latent defect, and if the machine’s functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 , 248 S.E.2d 15 (1978); Wansor v. George Hantscho Co., 595 F.2d 218 (5th Cir. 1979).

Product must reach consumer without substantial change. —

One of the conditions for imposition of strict liability against a manufacturer of “defective” products is that the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

Determination of whether a component manufacturer is insulated from liability depends upon the extent to which the product is altered by the assembler before the product reaches the ultimate user. Giordano v. Ford Motor Co., 165 Ga. App. 644 , 299 S.E.2d 897 (1983).

Product offered on trial basis. —

When a manufacturer in the business of marketing the manufacturer’s product to an intended consumer offers the use of the product on a trial basis in order to make a sale, O.C.G.A. § 51-1-11 can be applied in a suit for an alleged injury occurring during the trial use. Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744 , 353 S.E.2d 340 (1987).

Paragraph (b)(2) operates retroactively. —

Paragraph (b)(2) O.C.G.A. § 51-1-11 will operate retroactively to bar claim of a plaintiff injured several months after the limitation period went into effect. Weeks v. Remington Arms Co., 733 F.2d 1485 (11th Cir. 1984).

Effects of alteration in product. —

When a manufacturer is sued under O.C.G.A. § 51-1-11 for injuries proximately resulting from a defect in the design of the manufacturer’s product existing at the time of sale, obviously if the design of that product has been independently altered, eliminated, and replaced by a third party after the sale and injuries then result, those injuries cannot be traced to or be the proximate result of the manufacturer’s original design which did not exist at the time of injury; at the time of the tragic accident, the thing being used was not the thing sold. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

Manufacturer may show alteration. —

When the alleged defect in a product is the absence of safety features, a manufacturer is entitled to demonstrate that this alleged defect is ultimately based upon the failure of an integral part of the overall product, the original design of which component has been independently eliminated and replaced by another and that there is thus no causal connection between any defect in the product existing at the time of sale and the injury. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

As to product-design duty of manufacturer, standard which courts have established is traditional one of reasonable care. A manufacturer or a seller does not have the status of an insurer as respects products design. Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 , 248 S.E.2d 15 (1978).

In designing a product, a manufacturer’s duty is one of reasonable care, under the circumstances. Coast Catamaran Corp. v. Mann, 171 Ga. App. 844 , 321 S.E.2d 353 (1984), aff'd, 254 Ga. 201 , 326 S.E.2d 436 (1985).

Manufacturer is under no duty to guard against injury from patent peril or from source manifestly dangerous, nor is there a duty on the manufacturer or seller to warn of obvious common dangers connected with the use of a product. Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 , 248 S.E.2d 15 (1978); Wansor v. George Hantscho Co., 595 F.2d 218 (5th Cir. 1979).

Manufacturer is not an insurer. Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975).

Neither a manufacturer nor a seller is an insurer that their product is, from a design viewpoint, incapable of producing injury. Coast Catamaran Corp. v. Mann, 171 Ga. App. 844 , 321 S.E.2d 353 (1984), aff'd, 254 Ga. 201 , 326 S.E.2d 436 (1985).

Vendor has no general duty to test articles for defects prior to sale. —

It is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by the vendor or dealer for the purpose of discovering latent, or concealed defects, and that when the vendor or dealer purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call the vendor’s or dealer’s attention thereto, the vendor or dealer is not negligent in failing to exercise care to determine whether it is dangerous or not. The vendor or dealer may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury. Ellis v. Rich's, Inc., 132 Ga. App. 430 , 208 S.E.2d 331 (1974), aff'd, 233 Ga. 573 , 212 S.E.2d 373 (1975).

If seller has reason to anticipate that danger may result from particular use seller may be required to give adequate warning of the danger, and a product sold without such warning is in a defective condition. Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975); Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

Duty to warn extends only as to foreseeable uses of product. —

Duty to warn of danger in the use of a product extends only to the use of the product in the manner reasonably contemplated and anticipated by the manufacturer; when the use to which a product was being put at the time of injury is not that originally intended by the manufacturer, the determination of whether strict liability may be asserted as a viable theory of recovery or whether the manufacturer is insulated from liability because the use of the product was “abnormal” and intervening depends, initially, upon the foreseeability that the product would be put to that use. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

Duty to warn of danger in use of product extends only to use of product in manner reasonably contemplated and anticipated by manufacturer, and dumpster manufacturer could not be held to reasonably foresee that a small child would be permitted to play in a dumpster. Greenway v. Peabody Int'l Corp., 163 Ga. App. 698 , 294 S.E.2d 541 (1982).

No duty to warn as to effects of improper uses of product. —

There is no duty to warn that a redesign and replacement of the integral and ultimately injurious component of a product will destroy the original design and may result in an essentially different product with new “dangerous propensities”; the consumer’s conscious decision not to use the product as the product was originally manufactured and designed creates a danger readily apparent even without a warning. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

There is no duty to warn of the obvious danger of using a manufacturer’s product as the mere foundation from which a redesigned instrumentality will be produced. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

Adequacy of warning. —

Strict liability is not imposed under subsection (b) of O.C.G.A. § 51-1-11 merely because a product may be dangerous. If products are properly prepared, manufactured, packaged, and accompanied with adequate warnings and instructions, the products cannot be said to be defective. Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284 (11th Cir. 1994).

Since the defendant marketed the defendant’s lacquer thinner solely to professionals, and the product carried a warning of the hazards connected with the product’s use, which was reasonably calculated to reach the average user and contained clear and simple language, the defendant did not breach the defendant’s duty to warn of nonobvious foreseeable dangers from the normal use of the defendant’s product. Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284 (11th Cir. 1994).

Latent design defect must be shown. —

Since the appellant was using a bulldozer manufactured by the appellees for the purpose of clearing felled trees from a construction site, when a tree jumped over the bulldozer blade and struck the appellant in the chest, the appellant’s injuries arose not from a latent design defect, but from an obvious one, the lack of a protective metal cage surrounding the driver’s seat, and such alleged defect was not actionable. Stodghill v. Fiat-Allis Constr. Mach., Inc., 163 Ga. App. 811 , 295 S.E.2d 183 (1982).

Absence of lawn mower safety device not a defect. —

Absence of a “deadman device” that would automatically turn a lawn mower motor off once the operator left the driver’s seat did not, in and of itself, render a lawn mower “defective” and, therefore, as a matter of law, the manufacturer could not be held strictly liable for the injury suffered by the plaintiff when the plaintiff fell off the mower, which continued to operate, eventually injuring the plaintiff’s leg. Pressley v. Sears-Roebuck & Co., 738 F.2d 1222 (11th Cir. 1984).

Failure to install deadman control on rototiller. —

Finding that the alleged defect of failing to install a deadman control on the rototiller’s forward gear was open and obvious, liability is barred under each of the plaintiff’s theories of recovery: strict liability, negligence, and inadequate warning. Smith v. Garden Way, Inc., 821 F. Supp. 1486 (N.D. Ga.), aff'd, 12 F.3d 220 (11th Cir. 1993).

Black bicycle helmet was not defective since the helmets lack of conspicuity was observable from a simple visual inspection. Berkner v. Bell Helmets, Inc., 822 F. Supp. 721 (N.D. Ga.), aff'd, 9 F.3d 121 (11th Cir. 1993).

Firearm is not inherently defective merely because its firing resulted in the death of an innocent bystander. Rhodes v. R.G. Indus., Inc., 173 Ga. App. 51 , 325 S.E.2d 465 (1984).

Manufacturer of spermicide. —

In a products liability action against a corporation which manufactured and marketed a spermicide, to recover damages arising from multiple birth defects suffered by an infant, the corporation knew or should have known of the potential danger that its product might cause birth defects because various studies suggesting this risk were available well before the infant’s mother first obtained the product. This potential danger required a warning, and the absence of such a warning constituted a defect in the product. Wells ex rel. Maihafer v. Ortho Pharmaceutical Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff’d in part sub nom. Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950, 107 S. Ct. 437 , 93 L. Ed. 2 d 386 (1986).

Manufacturer of automobile. —

Vehicle owner’s negligent design claim did not fall within the statute of repose exception under O.C.G.A. § 51-1-11(c) because no reasonable trier of fact could have found that the manufacturer’s conduct was willful and wanton; the vehicle performed well on tests that were designed to evaluate rollover propensity. Ivy v. Ford Motor Co., 646 F.3d 769 (11th Cir. 2011).

Manufacturer of vaccine. —

Drug manufacturer was not liable for injuries to a child born after the mother had been injected with a measles-mumps-rubella vaccine for which the manufacturer had taken all precautions necessary to warn of any potential injury to an unborn fetus, and the injection was received from a licensed practical nurse who was aware of the risks and had read and understood a circular accompanying the vaccine. Walker v. Merck & Co., 648 F. Supp. 931 (M.D. Ga. 1986), aff'd, 831 F.2d 1069 (11th Cir. 1987).

Motor vehicle striking fallen electric wire. —

Strict liability provided for in subsection (b) of O.C.G.A. § 51-1-11 is not applicable to make a power company liable for injuries sustained when a motor vehicle struck a fallen electric wire since the accident did not involve any “personal property sold as new property.” Georgia Power Co. v. Collum, 176 Ga. App. 61 , 334 S.E.2d 922 (1985).

Doughnut fryer functioned properly for the fryer’s intended use and was not defective as a matter of law, since the danger attendant to its use was patent and a doughnut shop employee’s injuries did not result from any malfunction due to product design but instead occurred when another person dislodged the fryer from the fryer’s position on a table. Orkin Exterminating Co. v. Dawn Food Prods., 186 Ga. App. 201 , 366 S.E.2d 792 (1988).

Propane heater and valve incorporated into the heater as a component part were not defective products when manufactured, and the manufacturers could not have reasonably foreseen that the automatic safety shut-off switch on the valve would be taped down by an industrial user so as to defeat the valve’s safety function. Argo v. Perfection Prods. Co., 730 F. Supp. 1109 (N.D. Ga. 1989), aff'd, 935 F.2d 1295 (11th Cir. 1991).

Manufacturer of chemical known as methyl ethyl ketone provided adequate warnings of the product’s potential danger, since the label affixed to the outside of its container clearly and graphically advised that the chemical was both flammable and explosive and that it should not be exposed to sparks. Copeland v. Ashland Oil, Inc., 188 Ga. App. 537 , 373 S.E.2d 629 (1988).

Fireman’s Rule. —

Fireman’s Rule prevents a fireman injured in the course of his duties from bringing an action for negligence against the manufacturer of a product whose explosion during the fire causes the fireman’s injury. White v. Edmond, 971 F.2d 681 (11th Cir. 1992).

Access and egress system on a “skidsteer loader” used to knock down and transport molten glass waste did not constitute a design defect, since the machine included a system which provided for emergency exit in all but the most extraordinary circumstances. Foskey v. Clark Equip. Co., 715 F. Supp. 1088 (M.D. Ga. 1989), aff'd, 914 F.2d 269 (11th Cir. 1990).

O.C.G.A. § 51-1-28 bars a claim for defective blood O.C.G.A. § 51-1-11 . Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981).

Joint tort-feasors. —

Theoretical basis of strict liability is in tort, and when a manufacturer is guilty in strict liability and another party is found to be negligent, they are deemed joint tort-feasors. Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559 , 272 S.E.2d 251 (1980).

Recovery in strict liability in tort cannot be had solely for property damage to the allegedly defective property itself. Long Mfg., N.C., Inc. v. Grady Tractor Co., 140 Ga. App. 320 , 231 S.E.2d 105 (1976); Henderson v. GMC, 152 Ga. App. 63 , 262 S.E.2d 238 (1979).

Cause of action in negligence for property damage to defective personal property itself is cognizable. Long Mfg., N.C., Inc. v. Grady Tractor Co., 140 Ga. App. 320 , 231 S.E.2d 105 (1976).

Corporations lack standing to bring action. —

Georgia courts and the federal district courts have continually disallowed actions in strict liability brought by corporations because under O.C.G.A. § 51-1-11 a corporation has no standing to bring such an action. Baltimore Football Club, Inc. v. Lockheed Corp., 525 F. Supp. 1206 (N.D. Ga. 1981).

Consortium action in connection with products liability. —

Wife may maintain an action for loss of consortium in connection with a products liability action for injury to the husband. Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981).

Wrongful death action based on product liability. —

Spouse has the right to recover for the wrongful death of their spouse, in a product liability action. Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981).

Determining timing of product liability for defective truck lift cylinder. —

In order to determine whether product liability claims involving an allegedly defective truck lift cylinder were timely under O.C.G.A. § 51-1-11(b)(2), it was necessary to certify a question to the Georgia Supreme Court as to whether the statute began to run when the lift cylinder was assembled or tested, when the truck was assembled, or when the truck was delivered to the truck’s initial purchaser. Campbell v. Altec Indus., 605 F.3d 839 (11th Cir. 2010).

5.Design Defect Cases

Risk-utility analysis. —

In product liability design defect cases, a risk-utility analysis—a balancing test whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product—is the appropriate test for reaching the legal conclusion that a product’s design specifications were partly or totally defective. Banks v. ICI Americas, Inc., 264 Ga. 732 , 450 S.E.2d 671 (1994).

Risk-utility analysis incorporates the concept of “reasonableness,” i.e., whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk. Banks v. ICI Americas, Inc., 264 Ga. 732 , 450 S.E.2d 671 (1994).

General factors considered in a risk-utility analysis include: the usefulness of the product; the gravity and severity of the danger posed by the design; the likelihood of that danger; the avoidability of the danger, i.e., the user’s knowledge of the product, publicity surrounding the danger, or the efficacy of warnings, as well as common knowledge and the expectation of danger; the user’s ability to avoid danger; the state of the art at the time the product is manufactured; the ability to eliminate danger without impairing the usefulness of the product or making it too expensive; and the feasibility of spreading the loss in the setting of the product’s price or by purchasing insurance. Banks v. ICI Americas, Inc., 264 Ga. 732 , 450 S.E.2d 671 (1994).

Manufacturer’s proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively the manufacturer’s liability for the manufacturer’s design of allegedly defective products. Banks v. ICI Americas, Inc., 264 Ga. 732 , 450 S.E.2d 671 (1994).

Alternative safe design factors include: the feasibility of an alternative design; the availability of an effective substitute for the product which meets the same need but is safer; the financial costs of the improved design; and the adverse effects from the alternative. Banks v. ICI Americas, Inc., 264 Ga. 732 , 450 S.E.2d 671 (1994).

In regard to the benefits aspect of the balancing test, factors that could be considered include the appearance and aesthetic attractiveness of the product; its utility for multiple uses; the convenience and extent of its use, especially in light of the period of time it could be used without harm resulting from the product; and the collateral safety of a feature other than the one that harmed the plaintiff. Banks v. ICI Americas, Inc., 264 Ga. 732 , 450 S.E.2d 671 (1994).

Parents’ wrongful death claim under O.C.G.A. § 19-7-1 pertaining to an unclipped rear seat failed on summary judgment because the unclipped seat did not contribute to their child’s fatal skull fracture, and there was thus no evidence showing proximate causation under O.C.G.A. § 51-1-11(b)(1) between the unclipped seat and the child’s death; the parents also did not assert a survival action in order to permit recovery for pain and suffering in that such damages were not permitted under O.C.G.A. §§ 19-7-1 and 51-4-1 . Davenport v. Ford Motor Co., No. 1:05-cv-3047-WSD, 2007 U.S. Dist. LEXIS 91245 (N.D. Ga. Dec. 11, 2007).

Impossible to determine presence of design defect. —

In an action arising from a head on collision at high speed, the design of the fuel and seat systems of one of the vehicles could not be found to be defective in light of the extreme impact, speed, and resulting forces. Timmons v. Ford Motor Co., 982 F. Supp. 1475 (S.D. Ga. 1997), aff'd, 161 F.3d 22 (11th Cir. 1998).

No defect in design of truck cap shown. —

In a product liability action, the manufacturer of a truck cap installed over the bed of a pickup truck was properly granted summary judgment because the product was not defective for purposes of the design defect or failure to warn claims because the sole cause of the harm suffered was the unforeseeable misuse of the product that occurred when the fire department installed a truck bed extender product and damaged a gas strut that supported the truck cap door that subsequently hit the injured party. Woods v. A.R.E. Accessories, 345 Ga. App. 887 , 815 S.E.2d 205 (2018).

Failure to warn based on need to change brake fluid. —

In a product liability action, the defendants’ motion for directed verdict was properly denied on the negligent failure to warn claim as there was evidence to support a finding that the defendants should have known of a defective design in the brake cylinder that might interfere with the functioning of the front brake, and that corrosion might not have been prevented by diligently changing the brake fluid according to the maintenance schedule. Suzuki Motor of America, Inc. v. Johns, 351 Ga. App. 186 , 830 S.E.2d 549 (2019), aff'd, 310 Ga. 159 , 850 S.E.2d 59 (2020), cert. denied, No. S19C1530, 2020 Ga. LEXIS 27 (Ga. Jan. 13, 2020).

Impossible to determine product liability case. —

In this products liability case, summary judgment to the defendants was appropriate since: (1) the opinions of the plaintiff’s experts as to the cause of the plaintiff’s injuries and the death of the plaintiff’s daughter were based on speculation, the opinions would not provide an adequate basis to survive summary judgment even if the opinions were admitted into evidence; and (2) other than the expert testimony proffered by the plaintiff, there was no evidence in the record that the container on the front porch of the mobile home actually exploded or likely exploded on the day of the accident or, if the container did, that the explosion of the container caused the plaintiff’s injuries or the death of the plaintiff’s daughter. Walker v. Blitz United States, Inc., 663 F. Supp. 2d 1344 (N.D. Ga. 2009).

No intervening cause in product liability action. —

In a product liability action, the defendants’ motion for directed verdict was properly denied on the design defect claim as the jury could reject the defendants’ position that there was an intervening cause because the defendants knew that the defect in the brake cylinder produced corrosion debris; and the defendants were unable to conclusively determine that the corrosion would not occur even if customer maintenance was properly preformed. Suzuki Motor of America, Inc. v. Johns, 351 Ga. App. 186 , 830 S.E.2d 549 (2019), aff'd, 310 Ga. 159 , 850 S.E.2d 59 (2020), cert. denied, No. S19C1530, 2020 Ga. LEXIS 27 (Ga. Jan. 13, 2020).

No defect in design of heating pad shown. —

In a product liability action, the grant of summary judgment to the manufacturer was affirmed because the record evidence allowed for only an inference that the heating pad caused the fire, which inference did not extend to the cause being the result of a design defect. Sheffield v. Conair Corporation, 348 Ga. App. 6 , 821 S.E.2d 93 (2018), cert. denied, No. S19C0437, 2019 Ga. LEXIS 467 (Ga. July 1, 2019).

Dealer’s liability for a failure to warn. —

While O.C.G.A. § 51-1-11(b) limited strict liability in tort for product design defects to manufacturers, a dealer could be liable for a failure to warn of a car’s stability issue or that the car did not have a stability system that the dealer knew had been developed by the car manufacturer to remedy a design defect. Thayer v. GMC, No. 1:05-cv-1889-WSD, 2005 U.S. Dist. LEXIS 36193 (N.D. Ga. Dec. 14, 2005).

Motorcycle helmet. —

In the absence of expert testimony that a design defect cause a motorcycle operator’s helmet to fog up and that anti-fogging features used in snowmobile helmets could safely be used in street helmets, the operator had no evidence to show that the fogging, which was a common problem in all helmets, was due to a design defect that the helmet manufacturer could have remedied with a feasible alternative design, and, thus, the operator’s O.C.G.A. § 51-1-11 design defect claim failed; the operator’s injury was not a sufficient basis, in and of itself, for concluding that the helmet was defective. Mize v. HJC Corp., No. 1:03-CV-2397-JEC, 2006 U.S. Dist. LEXIS 65180 (N.D. Ga. Sept. 13, 2006).

Unpublished decision: Summary judgment was properly granted in an O.C.G.A. § 51-1-11(b) products liability case as, while identification of a specific defect was not required, it was not sufficiently shown that a boat’s gimbal housing deviated from a properly made housing; the existence of a manufacturing defect was not the only plausible explanation for how the housing broke. Graff v. Baja Marine Corp., 310 Fed. Appx. 298 (11th Cir. 2009).

Hip prosthesis. —

Unpublished decision: Because the district court excluded an expert’s testimony due to unreliability under Daubert and Fed. R. Evid. 702, the court properly granted summary judgment to the manufacturer of an allegedly defective hip prosthesis on all claims, including the plaintiffs’ strict liability claim. Sumner v. Biomet, Inc., 434 Fed. Appx. 834 (11th Cir. 2011).

Manufacturing defect in medical device. —

Because the plaintiff, a surgical patient, did not show that a medical device, a surgical wrap, that was implanted in the plaintiff’s stomach did not perform as intended, which required the plaintiff to show how the device was intended to function, the plaintiff did not produce evidence, expert or otherwise, from which a reasonable jury could have concluded that the device contained a manufacturing defect to meet the standard set forth in O.C.G.A. § 51-1-11(b)(1) and, thus, summary judgment was appropriately granted to the defendant, the manufacturer of the product. Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312 (11th Cir. 2011).

Design defect in drug case. —

Plaintiff alleged a prima facie case for design defect against a brand name drug manufacturer because the plaintiff pled that the drug in question at the time the drug was sold was unreasonably dangerous due to the drug’s inherent risks, and the decedent suffered from SJS/TEN as a result of the drug, which eventually resulted in the decedent’s death. Frazier v. MYLAN Inc., 911 F. Supp. 2d 1285 (N.D. Ga. 2012).

6.Strict Liability

Negligence not element of strict liability under subsection (b). —

Strict liability imposed under subsection (b) is not based on negligence. While negligence on the part of the manufacturer may happen to be involved as a matter of fact in a given situation, it is not necessarily so, and the statute imposes liability irrespective of negligence. Ford Motor Co. v. Carter, 239 Ga. 657 , 238 S.E.2d 361 (1977); Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559 , 272 S.E.2d 251 (1980); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

Lack of merchantability or suitability. —

If a court should construe an action as being a tort action under subsection (b) because of the failure of the product to be merchantable, or not suitable to the use intended, the action, though in tort, would be based not on negligence, but on the ground that the proximate causes of the plaintiff’s injuries were the lack of merchantability or the lack of suitability to the use intended of the product purchased, which are identical to the factors of an action on an implied warranty. Evershine Prods., Inc. v. Schmitt, 130 Ga. App. 34 , 202 S.E.2d 228 (1973).

Subsection (b) of O.C.G.A. § 51-1-11 does not apply to negligence claims as well as strict liability claims. Hatcher v. Allied Prods. Corp., 256 Ga. 100 , 344 S.E.2d 418 (1986) of O.C.G.A. § 51-1-11 .

Privity of contract not required for action under subsection (b). —

Action is in tort and privity of contract is not necessary nor can the manufacturer avail itself of the usual contract or warranty defenses. Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975); Wansor v. George Hantscho Co., 243 Ga. 91 , 252 S.E.2d 623 (1979); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

Manufacturer responsibility for infection following penile implant. —

In an action against the manufacturer of a penile implant which had to be surgically removed after an infection developed, the court erred in granting summary judgment to the manufacturer on the plaintiff’s claim of strict liability since there was some evidence that the device did not operate as intended and caused the infection which required removal of the implant since the plaintiff’s physician’s post-operative report noted that there was a disconnection of tubing between the reservoir and cylinder, causing the reservoir fluid to leak into the scrotal compartment, thereby causing infection. Williams v. American Med. Sys., 248 Ga. App. 682 , 548 S.E.2d 371 (2001), cert. denied, No. S01C1040, 2001 Ga. LEXIS 691 (Ga. Sept. 10, 2001).

“Enhanced injury” caused by seat belt or air bag failure. —

Injured party was not required to show the extent of the “enhanced injury” caused by the failure of a seat belt or air bag as the party claimed only that the manufacture of the seat belt and air bag were defective; the injured party did not claim that the design of the seat belt and air bag were defective. Owens v. GMC, 272 Ga. App. 842 , 613 S.E.2d 651 (2005).

Strict liability is imposed for injuries which are proximate result of product defects, not for the manufacture of defective products; unless the manufacturer’s defective product can be shown to be the proximate cause of the injuries, there can be no recovery. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

Basis of judgment in strict liability. —

Manufacturer has the absolute right to have the manufacturer’s strict liability for injuries adjudged on the basis of the design of the manufacturer’s own marketed product and not that of someone else. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

Failure to identify specific defect was not fatal to claim. —

Because the plaintiff patient’s expert testified that medical device’s wires were cut when it was removed in a third surgery, the resulting failure to identify a specific defect was not fatal to O.C.G.A. § 51-1-11(b)(1) strict liability claim, and the defendant manufacturer’s motion for summary judgment was denied. Trickett v. Advanced Neuromodulation Sys., 542 F. Supp. 2d 1338 (S.D. Ga. 2008).

Identity of manufacturer. —

Construction worker’s O.C.G.A. § 51-1-11(b)(1) strict liability claim against a boom manufacturer failed because there was no evidence that the manufacturer produced the boom that struck the worker, which the worker had been unable to identify, nor was there any evidence that the boom had a defect or that any such defect was the proximate cause of the worker’s injuries. McBride v. JLG Indus., No. 7:03-cv-118, 2005 U.S. Dist. LEXIS 21713 (M.D. Ga. Sept. 20, 2005), aff'd, 189 Fed. Appx. 876 (11th Cir. 2006).

Construction worker’s O.C.G.A. § 51-1-11(b)(1) strict liability claim against a boom manufacturer failed because there was no evidence that the manufacturer produced the boom that struck the worker, which the worker had been unable to identify, nor was there any evidence that the boom had a defect or that any such defect was the proximate cause of the worker’s injuries. Mosley v. JLG Indus., No. 7:03-cv-119, 2005 U.S. Dist. LEXIS 21782 (M.D. Ga. Sept. 20, 2005), aff'd, 189 Fed. Appx. 874 (11th Cir. 2006).

In a personal injury and products liability action when the seller of an engine had no active participation in the design of an alleged defective wood chipper, and the seller’s only input into the design was limited to saying in essence that the particular engine would perform adequately in such a chipper, the trial court properly granted summary judgment to the seller since the seller did not qualify in any manner as a manufacturer of the alleged defective chipper. Davenport v. Cummins Alabama, Inc., 284 Ga. App. 666 , 644 S.E.2d 503 (2007).

Strict liability did not attach as defendants did not manufacture chemicals. —

Plaintiffs sued the defendants, a chemical plant and a laboratory, alleging the plaintiffs were injured due to chemical fires at the laboratory’s facility. As the complaint did not allege that the defendants manufactured the chemicals that caused the harm, the complaint did not state a claim for strict liability under O.C.G.A. § 51-1-11(b)(1), and the defendants were properly granted summary judgment on that claim. Smith v. Chemtura Corp., 297 Ga. App. 287 , 676 S.E.2d 756 (2009).

No inadequate warning on mouthwash. —

When a consumer alleged that mouthwash caused temporary tooth discoloration and taste impairment, the inadequate warning component of the consumer’s strict liability claim failed because the consumer had the opportunity to read the label, but failed to do so. Silverstein v. P&G Mfg. Co., 700 F. Supp. 2d 1312 (S.D. Ga. 2009).

7.Pleading and Practice

Pleading defect in machinery. —

In tort actions based on the malfunctioning of machinery, it is sufficient if the petition alleges that the machine was in such a condition that the machine produced certain definite described results (the injury), which the machine would not have produced had the machine not been defective and had the machine functioned properly. Vickers v. Georgia Power Co., 79 Ga. App. 456 , 54 S.E.2d 152 (1949).

Virginia law inapplicable to Georgia action. —

When the plaintiff, injured while driving in Virginia, brought an action in Georgia against the car manufacturer under a strict liability theory, Virginia products liability law did not apply since it did not recognize recovery on the basis of strict liability and was contrary to the public policy of Georgia. Alexander v. GMC, 267 Ga. 339 , 478 S.E.2d 123 (1996).

Failure to communicate warning label change preempted. —

Trial court properly dismissed the plaintiff’s claims based on failure to communicate warning label change information to the healthcare community as those claims were preempted by federal law. PLIVA, Inc. v. Dement, 335 Ga. App. 398 , 780 S.E.2d 735 (2015), cert. denied, No. S16C0503, 2016 Ga. LEXIS 234 (Ga. Mar. 7, 2016).

Self-destruction as prima-facie evidence of defect. —

When a defect cannot be directly observed, that fact does not prevent a plaintiff from establishing a prima-facie case against a manufacturer if the product has a defect which causes its own destruction. Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840 , 244 S.E.2d 905 (1978).

Existence of manufacturing defect in products liability case may be inferred from circumstantial evidence. Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840 , 244 S.E.2d 905 (1978).

Statute of repose. —

“First sale for use or consumption” of a spinal plate did not occur when the manufacturer sold the plate to the hospital but took place when the plate was removed from the hospital’s inventory and sold to the patient for its actual intended purpose of placement in the patient’s back. Pafford v. Biomet, 264 Ga. 540 , 448 S.E.2d 347 (1994).

Liability is not imposed upon a manufacturer by the provisions of paragraph (b)(2) of O.C.G.A. § 51-1-11 , but by the provisions of paragraph (b)(1) of § 51-1-11 ; paragraph (b)(2) merely sets an ultimate limit on which injuries shall be actionable. Thus, if a spinal plate was not defective when the plate was sold to the hospital and subsequently became defective only as the result of remaining in the hospital’s inventory for more than ten years, the patient would have no viable claim against the manufacturer. Pafford v. Biomet, 264 Ga. 540 , 448 S.E.2d 347 (1994).

While the original complaint against the car distributor was filed after the expiration of the 10-year statute of repose, which presented an absolute defense to the plaintiffs’ claims of strict liability and negligent manufacture and design, the statute of repose did not provide an absolute bar to the plaintiffs’ claims for negligent failure to warn against the car manufacturer as O.C.G.A. § 51-1-11(c) removed the negligent failure to warn claims from the ambit of the statute of repose. Parks v. Hyundai Motor Am., Inc., 258 Ga. App. 876 , 575 S.E.2d 673 (2002), cert. denied, No. S03C0625, 2003 Ga. LEXIS 470 (Ga. Apr. 29, 2003).

Because the statute of repose in O.C.G.A. § 51-1-11(b)(2) had expired when the parents filed their products liability complaint against an automobile manufacturer, and because the parents failed to make the required foundational showing of substantial similarity, the trial court correctly granted summary judgment in favor of the manufacturer because the exception in § 51-1-11(c) did not apply. Parks v. Hyundai Motor Am., Inc., 294 Ga. App. 112 , 668 S.E.2d 554 (2008).

Trial court properly applied the Georgia statute of repose pursuant to O.C.G.A. § 51-1-11 rather than the longer statute in Texas in a product liability action as the statute of repose involved remedial rather than substantive rights and under the Georgia choice of law rules, Georgia’s procedural and remedial provisions governed the matter; the matter involved a vehicle accident that occurred in Texas, although the action was brought in Georgia. Bagnell v. Ford Motor Co., 297 Ga. App. 835 , 678 S.E.2d 489 (2009).

Because a power company was the intended consumer of an assembled bucket truck and the truck’s component parts, an employee’s suit had to be filed against any manufacturer under O.C.G.A. § 51-1-11(b) within ten years of the date of the sale of the finished product to the power company; the statute of repose found in O.C.G.A. § 51-1-11(b) (2) begins to run when a finished product is sold as new to the intended consumer who is to receive the product. Campbell v. Altec Indus., 288 Ga. 535 , 707 S.E.2d 48 (2011).

Statute of repose bars any lawsuit brought more than 10 years after the sale to the first consumer. Davis v. Brunswick Corp., 854 F. Supp. 1574 (N.D. Ga. 1993), dismissed in part, 854 F. Supp. 1574 (N.D. Ga. 1994).

Phrase “use or consumption” in paragraph (b)(2) of O.C.G.A. § 51-1-11 means that the statute of repose begins to run when the product first enters the stream of commerce. Davis v. Brunswick Corp., 854 F. Supp. 1574 (N.D. Ga. 1993), dismissed in part, 854 F. Supp. 1574 (N.D. Ga. 1994).

Error to dismiss claim. —

In a products liability action stemming from an automobile accident, because a question of fact existed regarding whether the manufacturer’s actions constituted a “willful, reckless, or wanton disregard for property or life,” it was error to dismiss the plaintiffs’ design defect claim. Watkins v. Ford Motor Co., 190 F.3d 1213 (11th Cir. 1999).

Statute of repose did not apply. —

In a products liability action stemming from an automobile accident, the plaintiffs’ failure to warn claim was not merely a restatement of the plaintiff’s design defect claim and therefore was not subject to the statute of repose. Watkins v. Ford Motor Co., 190 F.3d 1213 (11th Cir. 1999).

Date action filed, not date of injury, determines applicability of statute of limitations. —

Subsection (b)(2) of O.C.G.A. § 51-1-11 is a complete bar to strict liability actions filed more than 10 years after the “date of the first sale for use or consumption of ” the product regardless of whether the underlying injury occurred within the ten-year period. Hatcher v. Allied Prods. Corp., 256 Ga. 100 , 344 S.E.2d 418 (1986).

Since an injury occurred less than ten years after the first sale of the product, but suit was not filed more than ten years after the first sale of the product, O.C.G.A. § 51-1-11 barred a strict liability claims based on an alleged defect in the product causing the injury. Hatcher v. Allied Prods. Corp., 796 F.2d 1427 (11th Cir. 1986).

Applicability of limitation period. —

In a case involving a strict liability claim, since paragraph (b)(2) of O.C.G.A. § 51-1-11 was enacted both before the injury and before the complaint was filed, but after the first sale occurred, the ten-year limitation will be given appropriate application. LFE Corp. v. Edenfield, 187 Ga. App. 785 , 371 S.E.2d 435 (1988).

Subsection (c) of O.C.G.A. § 51-1-11 cannot be applied retroactively when both the injury and the filing of the original complaint preceded the effective date of its enactment. LFE Corp. v. Edenfield, 187 Ga. App. 785 , 371 S.E.2d 435 (1988).

Homeowners’ suit alleging that three corporations, which provided home security and monitoring services, were strictly liable under O.C.G.A. § 51-1-11 for damages to the homeowners’ residence that were caused by fire that was not detected by the homeowners’ security system was time-barred under a one-year limitations period in the parties’ contract; that period was enforceable because it was not unreasonable and had been agreed to by the homeowners when the homeowners entered the contract. Jacobs v. ADT Sec. Servs., No. 4:05-CV-139, 2006 U.S. Dist. LEXIS 69103 (M.D. Ga. Sept. 26, 2006).

Paragraph (b)(2) operates retroactively. —

Paragraph (b)(2) of O.C.G.A. § 51-1-11 will operate retroactively to bar a claim of a plaintiff injured several months after the limitation period went into effect. Weeks v. Remington Arms Co., 733 F.2d 1485 (11th Cir. 1984).

Time limitation not traditional statute of limitations. —

In the 1978 amendment to subsection (b) of O.C.G.A. § 51-1-11 , the General Assembly expressly placed time restrictions on the bringing of a cause of action under the subsection, but it was not a traditional statute of limitations, which typically declares that no suit shall be maintained on such causes of action unless brought within a specified period after the right accrued. Daniel v. American Optical Corp., 251 Ga. 166 , 304 S.E.2d 383 (1983).

Application of general statute of limitations. —

Since subsection (b) of O.C.G.A. § 51-1-11 must be strictly construed, the 1978 amendment thereof was not intended to preclude the application of a general statute of limitations, such as O.C.G.A. § 9-3-33 , which would otherwise apply, or to suggest that no general statute of limitations applied to strict products liability actions under subsection (b) prior to the 1978 amendment. Daniel v. American Optical Corp., 251 Ga. 166 , 304 S.E.2d 383 (1983).

Two-year statute of limitations provided by O.C.G.A. § 9-3-33 applies to products liability actions. Smith, Miller & Patch v. Lorentzson, 254 Ga. 111 , 327 S.E.2d 221 (1985).

Subsection (c) not applied retroactively. —

Subsection (c) of O.C.G.A. § 51-1-11 cannot be applied to bar products liability actions based on negligence when the cause of action accrued before the subsection’s effective date, July 1, 1987. Browning v. Maytag Corp., 261 Ga. 20 , 401 S.E.2d 725 (1991).

Doctrine of res ipsa loquitur does not apply when there is any intervention of an intermediary cause which produces or could produce the sustained injury. Molden v. Atlanta Coca-Cola Bottling Co., 175 Ga. App. 298 , 333 S.E.2d 175 (1985).

Plaintiff failed to state claim for strict liability. —

Plaintiff’s allegations against drug manufacturers failed to state a claim for strict liability under O.C.G.A. § 51-1-11(b) because the plaintiff failed to allege any specific design or manufacturing defect in the products and the court could not draw the reasonable inference that a design or manufacturing defect caused the decedent’s injuries. Moore v. Mylan Inc., 840 F. Supp. 2d 1337 (N.D. Ga. 2012).

Summary judgment denied. —

Operator of airport passenger conveyance was properly denied summary judgment after the operator failed to submit any evidence rebutting the passenger’s assertion that the conveyance’s lack of seats and its deceleration rate for emergency stops constituted defects in design. Westinghouse Elec. Corp. v. Williams, 173 Ga. App. 118 , 325 S.E.2d 460 (1984).

Summary judgment granted. —

Defendants were entitled to summary judgment on the plaintiffs’ product liability claims, since plaintiffs failed to show that the rollover accident was caused by a defect in the vehicle’s design, and failed to rebut the defendants showing that the accident was caused by the vehicle being driven off the roadway after the driver fell asleep. Jonas v. Isuzu Motors Ltd., 210 F. Supp. 2d 1373 (M.D. Ga. 2002), aff'd, 58 Fed. Appx. 837 (11th Cir. 2003).

Trial court did not err in granting summary judgment to a manufacturer in a driver’s products liability action because the manufacturer presented evidence disproving the existence of a defect through the opinion of the manufacturer’s expert witness, and the driver failed to point to any competent evidence giving rise to a genuine issue of material fact. Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248 , 721 S.E.2d 190 (2011), cert. dismissed, No. S12C1769, 2012 Ga. LEXIS 869 (Ga. Nov. 5, 2012).

Loss of product. —

Since the plaintiffs’ claim against the manufacturer of turnbuckles was based on the unfitness of thousands of turnbuckles for the purpose intended, as opposed to some idiosyncratic defect affecting only a lost turnbuckle, loss of the product did not impair either the plaintiffs’ ability to show the defect claimed or the defendant’s ability to present a defense to the claim. Chicago Hdwe. & Fixture Co. v. Letterman, 236 Ga. App. 21 , 510 S.E.2d 875 (1999).

No exception under subsection (c). —

Language of subsection (c) of O.C.G.A. § 51-1-11 provides an exception to the statute of repose for negligence actions claiming failure to warn and disease causation, but does not create an exception for these theories under strict liability claims. Allison v. McGhan Medical Corp., 184 F.3d 1300 (11th Cir. 1999).

Purely economic losses, such as the loss of the use of the property or the cost of repairing the property, are not compensable under O.C.G.A. § 51-1-11 when no personal injury or physical damage has occurred except to the allegedly defective product itself. Busbee v. Chrysler Corp., 240 Ga. App. 664 , 524 S.E.2d 539 (1999).

Dentist as expert witness. —

In a consumer’s suit alleging strict products liability, the consumer’s failure to identify a treating dentist as an expert witness under Fed. R. Civ. P. 26(a)(2) was harmless because the defendants had adequate notice that the dentist could be called as a witness and, in fact, already took the dentist’s deposition. Silverstein v. P&G Mfg. Co., 700 F. Supp. 2d 1312 (S.D. Ga. 2009).

Amended complaint properly denied. —

Individual’s motion for leave to file an amended complaint was denied since the individual’s additional allegations failed to demonstrate that a pharmaceutical manufacturer’s affiliate was the manufacturer of the drug that allegedly caused the individual’s injuries or that the drug included a design or manufacturing defect, and as a result the individual’s O.C.G.A. § 51-1-11(b) claim would have been subject to dismissal. Henderson v. Sun Pharms. Indus., 809 F. Supp. 2d 1373 (N.D. Ga. 2011).

Lex loci delicti did not apply. —

Public policy exception to lex loci delicti applied and Georgia law should have been applied in a design defect products liability case because Georgia recognized strict liability in such cases, pursuant to O.C.G.A. § 51-1-11 , whereas Indiana law required a showing that the manufacturer failed to exercise reasonable care under the circumstances. Bailey v. Cottrell, Inc., 313 Ga. App. 371 , 721 S.E.2d 571 (2011).

8.Defenses

Discovery of defect by product user. —

If the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, the user or consumer is barred from recovery. Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975); Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 , 248 S.E.2d 15 (1978).

In most product liability cases, the manufacturer’s defense will be that the plaintiff assumed the risk that the defect in the product would produce the injury sustained by using the product with actual knowledge of the defect. Deere & Co. v. Brooks, 250 Ga. 517 , 299 S.E.2d 704 (1983).

Injured party’s admission that the installation of an x-ray machine was itself the consequence of the contract rendered the nonperformance of a contract obligation, within the ambit of O.C.G.A. § 51-1-11(a) , and, consequently, the injured party’s negligence claims were barred. Kidd v. Dentsply Int'l, Inc., 278 Ga. App. 346 , 629 S.E.2d 58 (2006).

If injury results from abnormal handling, the seller is not liable. Center Chem. Co. v. Parzini, 234 Ga. 868 , 218 S.E.2d 580 (1975).

Manufacturer may demonstrate in defense that the product was in fact merchantable and fit for the purpose intended, or that if there was a deficiency in such regard there was no causal connection between the breach and the damages sued for, or that some other factor was the sole proximate cause of the damage. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

Application of bare metal defense. —

Summary judgment was warranted in favor of manufacturer of valves on grounds of insufficient evidence of product identification and causation pertaining to the valves because, in applying the bare metal defense, the record did not sufficiently show that the decedent’s asbestos exposure stemmed from a product manufactured by the defendant. Thurmon v. A.W. Chesterton, Inc., 61 F. Supp. 3d 1280 (N.D. Ga. 2014), aff'd, 650 Fed. Appx. 752 (11th Cir. 2016).

Defense of assumption of risk, although not the defense of contributory negligence, is applicable in a product liability case. Deere & Co. v. Brooks, 250 Ga. 517 , 299 S.E.2d 704 (1983).

Assumption of the risk is applicable to product liability cases if the user or consumer discovers the product’s defect and is aware of the danger emanating from that defect, but nevertheless proceeds unreasonably to make use of the product. Coast Catamaran Corp. v. Mann, 171 Ga. App. 844 , 321 S.E.2d 353 (1984), aff'd, 254 Ga. 201 , 326 S.E.2d 436 (1985).

Obvious danger is complete defense. —

Open and obvious danger rule is a complete defense to claims based upon negligence, strict liability, and failure to warn. The plaintiff, not the defendant, bears the burden of proof for demonstrating that the peril causing the injury is latent, or not patent. Morris v. Clark Equip. Co., 904 F. Supp. 1379 (M.D. Ga. 1995), aff'd, 129 F.3d 615 (11th Cir. 1997).

Open and obvious danger did not preclude action. —

Summary judgment was precluded in an action by a consumer alleging that the manufacturer’s lemon-scented bleach was unmerchantable and unsuitable for its intended use, since the Material Safety Data Sheet prepared for the lemon-scent additive warned that the scent was incompatible with strong oxidizing agents and since, while the manufacturer’s label identified the bleach as a “strong oxidizer,” under a risk utility analysis an open and obvious danger did not preclude an action, because this is but one factor to be considered in determining whether a product is defective. Zeigler v. Clowhite Co., 234 Ga. App. 627 , 507 S.E.2d 182 (1998), cert. denied, No. S99C0155, 1999 Ga. LEXIS 137 (Ga. Feb. 5, 1999).

Action not untimely. —

Plaintiff’s 1986 strict liability action for injuries sustained in 1970 when the plaintiff’s nightgown caught fire was not untimely, since the gown had been purchased sometime after July, 1968, and the plaintiff did not reach majority age until 1986. Morgan v. Sears, Roebuck & Co., 700 F. Supp. 1574 (N.D. Ga. 1988).

Expert testimony not required. —

Whether someone suffers greater injuries in a car wreck when a seat belt does not work to restrain the individual and an air bag does not inflate between the individual and the steering wheel, windshield, and mirror are not issues requiring the expert testimony of a trauma physician or engineer, but are matters not of science but of skill and experience. Owens v. GMC, 272 Ga. App. 842 , 613 S.E.2d 651 (2005).

Whether a seat belt engaged properly or an air bag deployed are not matters of science and issues requiring the expert testimony of an engineer or a metallurgist, but are matters of skill and experience. Owens v. GMC, 272 Ga. App. 842 , 613 S.E.2d 651 (2005).

9.Jury Questions

Whether product is defective is jury question. —

Question under the strict liability theory is whether the product was defective in that there was a failure to adequately warn of the product’s dangerous propensities. If so, the jury should look to the evidence to see whether the plaintiff knew these facts and nevertheless assumed the risk of the product’s use in the manner in which the product was used, so as to bar the plaintiff from recovery. Parzini v. Center Chem. Co., 136 Ga. App. 396 , 221 S.E.2d 475 (1975); Stokes v. Peyton's, Inc., 526 F.2d 372 (5th Cir. 1976).

In a strict liability case brought by a driver against a tire manufacturer, the questions for jury resolution were whether there was a defect in the tire and, if so, whether the driver’s injuries were the proximate result of that defect or of the driver’s own acts in causing the crash; the question was whether the driver’s acts were the sole proximate cause of the driver’s injuries, not whether the driver’s acts which proximately caused the driver’s injuries were acts of negligence. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

In some cases it may be a jury question as to whether the product’s original design has been merely slightly or somewhat modified; in such cases, the jury must determine whether the original manufacturer’s design was defective and, if so, whether the proximate cause of the injuries sustained was the original defective design or the subsequent modification. Talley v. City Tank Corp., 158 Ga. App. 130 , 279 S.E.2d 264 (1981).

Injured party presented a triable issue as to a claim that the truck’s safety systems were defective and that a manufacturer was strictly liable as a repair technician testified in detail about how the air bags were supposed to deploy, how it worked, and how the sensor failed when the weld attaching it to the frame broke; the technician also testified that the seat belt would not catch, and even demonstrated that fact at a deposition. Owens v. GMC, 272 Ga. App. 842 , 613 S.E.2d 651 (2005).

Defect held not found. —

Evidence that a patron of a self-service gasoline station slipped on a clearly distinguishable oil stain on the driveway and fell was insufficient to show a defect in the manufacture of the concrete used on the driveway. Griffin v. Crown Cent. Petroleum Co., 171 Ga. App. 534 , 320 S.E.2d 383 (1984).

Whether injuries compounded. —

Injured party presented a triable issue as to whether the party suffered greater injuries in an accident because the seat belt and air bag did not work properly as: (1) a repair technician testified that the rear-view mirror had been knocked off the windshield and had hair stuck to it and that the steering wheel was “folded over”; (2) the injured party’s spouse testified that the injured party broke glasses, had a black eye, a knot on the head, and a bruised sternum; (3) the injured party testified that the party hit the mirror, the windshield, and the steering wheel because the seat belt did not catch and the air bag did not deploy; and (4) the treating physician testified that the injured party suffered a nasal fracture that caused pain after the wreck, blocked the tear duct and caused swelling and infection until the break was corrected surgically. Owens v. GMC, 272 Ga. App. 842 , 613 S.E.2d 651 (2005).

Jury instruction on failure to recall error. —

Legislature showed in O.C.G.A. § 51-1-11 that the legislature knew how to impose a continuing duty to warn on product manufacturers. There was no corresponding continuing duty to recall an allegedly defective vehicle seatback, and a jury instruction allowing a jury to find negligence based on a failure to recall was reversible error. Ford Motor Co. v. Reese, 300 Ga. App. 82 , 684 S.E.2d 279 (2009), cert. denied, No. S10C0186, 2010 Ga. LEXIS 161 (Ga. Feb. 8, 2010).

General Consideration

There can be no ratification unless the act was done for the master, or at least, purported to be done for the master. Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117 , 185 S.E. 147 (1936); Parry v. Davison-Paxon Co., 87 Ga. App. 51 , 73 S.E.2d 59 (1952).

There is no such thing as a master assuming, by ratification, liability for an act of another in which the master had no part. Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117 , 185 S.E. 147 (1936); Parry v. Davison-Paxon Co., 87 Ga. App. 51 , 73 S.E.2d 59 (1952).

Ratification requires full knowledge of material facts. —

As a general rule, in order that a ratification of an unauthorized act or transaction may be valid and binding, it is essential that the principal have full knowledge, at the time of the ratification, of all material facts and circumstances relative to the unauthorized act or transaction, or that some one authorized to represent the principal, except the agent, have such knowledge, unless the principal is willfully ignorant or purposely refrains from seeking information. Liberty Mut. Ins. Co. v. Lipscomb, 56 Ga. App. 15 , 192 S.E. 56 (1937).

Ratification of tort is question of intention, which should be referred to a jury when there is in the petition a clear allegation of facts tending to support that allegation. Estridge v. Hanna, 55 Ga. App. 159 , 189 S.E. 364 (1936).

Intention to ratify may often be presumed by the law from the conduct of the principal, and that presumption may be conclusive, even against the actual intention of the principal, when the principal’s conduct has been such that it would be inequitable to others to permit the principal to assert that the principal has not ratified the unauthorized act of the principal’s agent. Liberty Mut. Ins. Co. v. Lipscomb, 56 Ga. App. 15 , 192 S.E. 56 (1937).

Retention of servant after commission of tort may be implied ratification. Gasway v. Atlanta & W.P.R.R., 58 Ga. 216 (1877).

Retention if servant acted exclusively for themselves. —

Since the employee was acting exclusively for the employee and was not acting at all for the master, and did not profess to be acting for the employer, the mere retaining of the servant after knowledge of the servant’s tort would not constitute ratification binding the master. Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117 , 185 S.E. 147 (1936); Parry v. Davison-Paxon Co., 87 Ga. App. 51 , 73 S.E.2d 59 (1952).

Applicability to Specific Cases

Conduct beyond scope of employment. —

When the conduct of the chauffeur took the chauffeur outside the scope of the chauffeur’s employment and when the chauffeur’s conduct was a complete departure, instead of a deviation or detour incidental to the chauffeur’s employment, the mere retention of the employee, after knowledge of all the facts, would not constitute ratification on the part of the employer. Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117 , 185 S.E. 147 (1936).

Because a co-employee who sexually harassed an employee was acting exclusively for self interest and was not acting at all for the employer, although the actions occurred in the course of the employment, the actions did not arise out of the employment, and the employer could not be held liable under a vicarious liability theory of either respondeat superior or ratification for the co-employee’s actions pursuant to common law and O.C.G.A. § 51-1-12 ; accordingly, the employer should have been granted summary judgment on the employee’s claim to that effect. Travis Pruitt & Assocs., P.C. v. Hooper, 277 Ga. App. 1 , 625 S.E.2d 445 (2005), cert. denied, No. S06C0806, 2006 Ga. LEXIS 545 (Ga. July 13, 2006).

Payment for services rendered. —

When the doctor to whom a heart was taken for the purpose of dissection was either specially or generally employed by the defendant insurance company to dissect the heart of the deceased spouse of the plaintiff, and that the doctor did dissect and mutilate the heart, all without the knowledge or consent of the plaintiff, and thereafter reported to the insurance company that the doctor had done so, and the insurance company paid the doctor for the doctor’s services in the matter, a cause of action against the defendant insurance company existed. Liberty Mut. Ins. Co. v. Lipscomb, 56 Ga. App. 15 , 192 S.E. 56 (1937).

Payment alone insufficient if made without knowledge of acts. —

When the designated examiner of the defendant insurance company directed defendant A to employ defendant B, a doctor, to remove the heart of the deceased spouse of the plaintiff and deliver the heart to another doctor for the purpose of dissection, without the knowledge or consent of the plaintiff, and that the second doctor did dissect the said heart, and that the insurance company ratified the acts of A and B by paying the two doctors for their services, but the insurance company did not have any knowledge of the act of A or B, or received or retained any benefit therefrom, and when defendant A is joined with defendant B and the insurance company as joint tort-feasors in an action for damages on account of the alleged unauthorized removal, and mutilation of the heart, a cause of action as to the acts of A and B, against the defendant insurance company under any theory of agency or of ratification of an unauthorized act did not exist. Liberty Mut. Ins. Co. v. Lipscomb, 56 Ga. App. 15 , 192 S.E. 56 (1937).

Separate business scheme by servants. —

Petition set forth no cause of action against the defendant employer on the grounds of condonation and ratification of the acts of its employees, since the two employees had departed from the prosecution of the master’s business and begun a separate scheme of their own, from which no benefit could possibly inure to the master. Parry v. Davison-Paxon Co., 87 Ga. App. 51 , 73 S.E.2d 59 (1952).

Statement that insurer would pay. —

Mere statement of the defendant that the defendant’s insurance company would pay for the damages to the automobile would not in itself authorize a finding that the defendant ratified the acts of the nephew of the cropper who worked the defendant’s farm and would not in itself authorize a finding that the defendant had admitted liability. Cox v. Estes, 96 Ga. App. 649 , 101 S.E.2d 107 (1957).

General Consideration

Cause of action for personal injury. —

Actions ex delicto both by the common law and the law of Georgia unquestionably include actions for injuries to the person. Goebel v. Hodges, 83 Ga. App. 574 , 64 S.E.2d 207 (1951).

Cause of action for prenatal injury. —

If a child born after an injury sustained at any period of the child’s prenatal life can prove the effect on the child of a tort, the child has a right to recover. Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504 , 93 S.E.2d 727 (1956).

Lack of consent for medical treatment. —

Cause of action for battery exists when objected-to treatment is performed without the consent of, or after withdrawal of consent by, the patient; there is no authority for holding that a medical consent form signed for one operation or treatment is valid for another operation later and elsewhere. Joiner v. Lee, 197 Ga. App. 754 , 399 S.E.2d 516 (1990).

Cause not barred merely because arising only due to special condition of plaintiff. —

When a married woman in a state of pregnancy suffers physical injuries which are caused by another’s negligence, but which may not have resulted except for her delicate condition, she is not to be debarred from recovering damages from the person guilty of the negligence for the injuries which are the legal and natural result of the act done. Saul Klenberg Co. v. Mrozinski, 78 Ga. App. 59 , 50 S.E.2d 247 (1948).

Trespasser’s action for injury good only if harm maliciously inflicted. —

When a plaintiff seeks to hold the wife liable in damages for a wrong inflicted by the husband, and alleges no more to establish his legal status at the time of the alleged injury than inferences that he was a trespasser upon lands of the defendants, the plaintiff must clearly show that the alleged injuries were maliciously inflicted at the command or counsel of the wife or that she aided and abetted in the injuries received, in order to state a cause of action against her. Brigman v. Brenner, 206 Ga. 222 , 56 S.E.2d 471 (1949).

Filing of suit for personal injury gives defendant right to reasonably investigate claim. —

When one elects to sue another for injuries one receives, it has been recognized for a limited purpose that the plaintiff may waive the plaintiff’s right to privacy and the defendant has the right to conduct a reasonable investigation of the plaintiff in order to ascertain the validity of the plaintiff’s claim. Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648 , 188 S.E.2d 911 (1972).

Plaintiff impliedly waives right of privacy against such investigation. —

Right of privacy may be implicitly waived and the right is waived by one who files an action for damages resulting from a tort to the extent of the defendant’s intervening right to investigate and ascertain for oneself the true state of injury. The reasonableness of the investigation under the circumstances is a question for the jury. Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648 , 188 S.E.2d 911 (1972).

Use of opprobrious words as justification. —

Opprobrious words or abusive language are to be left to the jury, in an action for assault and battery, to determine whether the battery was justifiable. Thompson v. Shelverton, 131 Ga. 714 , 63 S.E. 220 (1908).

Injury caused by mental patient. —

When the course of treatment of a mental patient involves an exercise of control by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient. Bradley Center, Inc. v. Wessner, 161 Ga. App. 576 , 287 S.E.2d 716 , aff'd, 250 Ga. 199 , 296 S.E.2d 693 (1982).

Intent of agressor not a factor. —

Four refugees showed that the former Bosnian-Serb soldier committed extensive physical injuries against all of them, without their consent, and in a harmful and offensive manner. Therefore, the soldier was liable to the refugees under Georgia law for assault and battery, regardless of the soldier’s intent. Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002).

Remedies for Fourth Amendment violation by police officers. —

See Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir. 1984).

Injury caused by a federal officer. —

Unpublished decision: Inmate’s battery claim against the United States, which was based on injuries the inmate sustained when a federal agent, who was attempting to arrest the inmate pursuant to a warrant, moved the agent’s vehicle to block the inmate’s escape, failed under the federal Tort Claims Act, 28 U.S.C. § 2680(h) , because under applicable state law regarding a battery claim, O.C.G.A. § 51-1-13 , the agent was justified in using force reasonably necessary to effectuate the arrest, and under the totality of the circumstances, the agent did not use more force than was reasonably necessary. Williams v. United States, 314 Fed. Appx. 253 (11th Cir. 2009).

Summary judgment inappropriate. —

When a merchant’s employee detained three suspected shoplifters, and the detainees brought claims of assault and battery, summary judgment in favor of the merchant was inappropriate after the plaintiffs testified that the employee detained the plaintiffs an unreasonable amount of time and was physically and verbally abusive. Brown v. Super Disc. Mkts., Inc., 223 Ga. App. 174 , 477 S.E.2d 839 (1996), cert. denied, No. S97C0240, 1997 Ga. LEXIS 233 (Ga. Feb. 14, 1997).

Grant of summary judgment in favor of the employee on the employee’s claim of battery was reversed since there were factual issues regarding whether the co-worker’s conduct constituted an offensive touching and whether it was intentional. Vasquez v. Smith, 259 Ga. App. 79 , 576 S.E.2d 59 (2003).

Trial court properly denied summary judgment to a former supervisor in a former employee’s action arising from an improper touching that the supervisor allegedly committed to the employee while pretending to reach out to shake the employee’s hand, as there was a relatively low threshold required to prove the claimed battery, and the court was required to view all evidence in the light most favorable to the employee as the non-movant. MARTA v. Mosley, 280 Ga. App. 486 , 634 S.E.2d 466 (2006).

Viewing the evidence in the light most favorable to an arrestee who was shot in the face by an officer during a traffic stop, the officer’s use of force was not justified because the arrestee’s car was stopped and not moving at the time the officer shot the arrestee. Therefore, the officer was not entitled to qualified immunity and summary judgment on the arrestee’s claims. Porter v. Massarelli, 303 Ga. App. 91 , 692 S.E.2d 722 (2010).

Jury Instructions

Jury instruction on mitigating circumstances as possible justification appropriate. —

Court erred in failing to charge the jury upon written request, in an action for damages on account of an assault and battery, that the defendant could give in evidence any opprobrious words or abusive language used by the plaintiff to the plaintiff’s servant or agent, in order to justify the servant or agent’s conduct or mitigate the damages, and it was for the jury to determine whether such language amounted to a justification or only to a mitigation of damages recoverable. Exposition Cotton Mills v. Crawford, 67 Ga. App. 135 , 19 S.E.2d 835 (1942).

Jury instruction on relative strength of parties appropriate. —

In an action for damages for assault and battery the court erred in failing to charge the jury, upon written request, that, in considering the question as to whether or not the battery was proportioned to the provocation, it could take into consideration the relative strength of the plaintiff and defendant’s employee, where the plaintiff was an able-bodied man of 34 years, while the employee was 69 years old, and afflicted at the time with cancer. Exposition Cotton Mills v. Crawford, 67 Ga. App. 135 , 19 S.E.2d 835 (1942).

Jury instruction based on this section erroneous in simple negligence case. —

In a suit for personal injuries based on simple negligence in which compensatory damages only were sued for, it was error for the court to give in charge to the jury the provisions of this section. Georgia Ry. & Power Co. v. Bryans, 35 Ga. App. 713 , 134 S.E. 787 (1926); Hirsch v. Plowden, 35 Ga. App. 763 , 134 S.E. 833 (1926); Rozier v. Folsom, 53 Ga. App. 53 , 185 S.E. 140 (1936); Collins v. Porterfield, 102 Ga. App. 294 , 116 S.E.2d 105 (1960).

Vice of charging this section in a negligence case lies in the fact that it allows the jury to consider the defendant’s intentions in the assessment of damages, when no damages based on willfulness or malice are sought. Collins v. Porterfield, 102 Ga. App. 294 , 116 S.E.2d 105 (1960).

Jury instruction based on this section erroneous without intent. —

Charge based upon this section should not have been given when there was no allegation and no evidence that the injury was intentional. Rozier v. Folsom, 53 Ga. App. 53 , 185 S.E. 140 (1936).

General Consideration

This section is applicable to principals and not agents. Crosby v. Calaway, 65 Ga. App. 266 , 16 S.E.2d 155 (1941).

Liability of vendor is not that of insurer. Rowe v. Louisville & N.R.R., 29 Ga. App. 151 , 113 S.E. 823 (1922).

Emotional distress. —

Summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a restaurant was properly granted by a trial court in an action by a restaurant patron, alleging that the patron suffered emotional distress when the patron discovered two blood spots on the french fry container, as the patron feared contracting HIV or hepatitis, because the patron failed to provide evidence of more than the patron’s “fear” that the patron had been exposed to the diseases; accordingly, the patron’s claims for negligence, negligence per se, and breach of the implied warranty of merchantability, under O.C.G.A. §§ 11-2-314 and 51-1-23 , failed due to the patron’s failure to meet the damages requirement. Wilson v. J & L Melton, Inc., 270 Ga. App. 1 , 606 S.E.2d 47 (2004).

Knowledge of defect or negligence by supplier essential to action. —

With respect to the sale of specified articles intended for human consumption or use, either knowledge of the defect or negligence by the seller is an essential element. Lovett v. Emory Univ., Inc., 116 Ga. App. 277 , 156 S.E.2d 923 (1967).

Actual knowledge not necessary if defendant ought to have known food was bad. —

It is not necessary that it appear that the defendant had actual knowledge that food sold was unwholesome or spoiled and contaminated, but it is sufficient if it appears that the defendant ought to have known of the bad condition of the food. Dupee v. Great Atl. & Pac. Tea Co., 69 Ga. App. 144 , 24 S.E.2d 858 (1943).

Plaintiff must establish negligence either in law or fact. —

In a suit for damages against a seller of unwholesome food the plaintiff may establish negligence as a matter of fact, or the plaintiff may show negligence as a matter of law by establishing a breach of a statutory duty imposed by the provisions of the pure food and drug laws, or the plaintiff may rely on both classes of negligence. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369 , 53 S.E.2d 718 (1949).

Persons who engage in business of furnishing food for human consumption are bound to exercise due care and diligence respecting the food’s fitness and those persons may be held liable in damages, if, by reason of any negligence on their part, contaminated and spoiled or unwholesome food is sold and persons are made ill and suffer damages as the result of eating such food. Dupee v. Great Atl. & Pac. Tea Co., 69 Ga. App. 144 , 24 S.E.2d 858 (1943).

Ordinary care is proper degree of care. —

Degree of care required of the defendant baking company, in preparing a pie which allegedly made the plaintiffs ill, was ordinary care. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948).

Violation not negligence per se. —

Liability described by this section is simply the common law liability for injury to another through negligence, as a matter of fact, and a violation of this section, which refers to private rights and based on common law principles, is not negligence per se. Burns v. Colonial Stores, Inc., 90 Ga. App. 492 , 83 S.E.2d 259 (1954).

Violation of other regulatory statutes may constitute negligence per se. —

Evidence authorized the jury to find that the defendant, in selling fish to the plaintiff, violated the former version of the pure-food statute and therefore was guilty of negligence as a matter of law. Southern Grocery Stores, Inc. v. Donehoo, 59 Ga. App. 212 , 200 S.E. 335 (1938).

General allegations of negligence sufficient in pleadings. —

Petition charging the defendant with negligence in selling impure food resulting in injury need not set out specific acts of negligence on the part of the defendant, in order to withstand the test of a motion to dismiss; but such general allegations as that the defendant was negligent in selling such food when the defendant knew or by the exercise of ordinary care could have known that this would result in injury are to be deemed sufficient in law. Howard v. Phillips, 44 Ga. App. 233 , 161 S.E. 163 (1931).

Description of the substance contained in the pie, by the use of language “that defendant was negligent in permitting said putrid, tainted, impure, deleterious, unwholesome, and poisonous substance to become an ingredient of said product” and similar language, was sufficient to put the defendant on notice of the nature and what caused the illness of and damage to the plaintiffs. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948).

Not necessary to allege knowledge by defendant. —

It is not necessary to aver that the defendant knew of the injurious quality of the food. It is sufficient if it appears that the defendant ought to have known of it and was negligent in furnishing unwholesome food, by reason whereof the plaintiff was injured. McPherson v. Capuano & Co., 31 Ga. App. 82 , 121 S.E. 580 (1923).

Plaintiff should allege plantiff’s own lack of fault. —

When, in a suit against the seller of allegedly poison bootleg whisky, the petition was silent as to whether or not the defect was unknown to the purchaser and whether the purchaser was without negligence on the purchaser’s own part in exercising the degree of diligence required by law, this was a fatal defect in the petition. Rivers v. Weems, 208 Ga. 783 , 69 S.E.2d 756 (1952).

Res ipsa loquitur principle misapplied. —

In a consumer food product liability case, the trial court misapplied the doctrine of res ipsa loquitur because having found that the doctrine applied, the trial court was obligated to allow the jury to determine whether the defendant’s negligence, if any, was the proximate cause of the plaintiff’s injuries under a jury charge that included the principle of res ipsa loquitur instead of granting summary judgment to the defendant. Matthews v. Yoplait USA, Inc., 352 Ga. App. 591 , 835 S.E.2d 393 (2019).

Plaintiff’s prima facie case. —

When the plaintiff established the unwholesome quality of the food, with injury from the food’s consumption, these facts in themselves would sufficiently speak of the defendant’s negligence to make a prima facie case; and until the defendant is exonerated, the jury would be authorized to apply the maxim res ipsa loquitur, and to find such issue in favor of the plaintiff. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948).

Proof of merely becoming sick after eating food insufficient. —

Proof by one claiming to have been injured by eating food furnished to one at a public restaurant or delicatessen, merely that one ate the food and in consequence became sick, would not establish the averment that the food was unwholesome. McPherson v. Capuano & Co., 31 Ga. App. 82 , 121 S.E. 580 (1923).

To establish a claim under O.C.G.A. § 51-1-23 there must be evidence that the food was unwholesome. A mere showing that a person became sick subsequent to eating food is insufficient. Stevenson v. Winn-Dixie Atlanta, Inc., 211 Ga. App. 572 , 440 S.E.2d 465 (1993), cert. denied, No. S94C0533, 1994 Ga. LEXIS 528 (Ga. Feb. 18, 1994).

Jury instruction on defendant’s burden to rebut prima facie case. —

Charge of the court that when the plaintiffs might establish the unwholesome quality of food and establish injury from the food’s consumption, and establish that the food as consumed by them was in the same condition as when it left the custody, possession, and control of the defendant, these facts in themselves would sufficiently set forth the defendant’s negligence and make out a prima facie case, and the burden would be upon the defendant to show that the defendant used due care in the premises was not error against the defendant. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 , 50 S.E.2d 136 (1948).

Applicability to Specific Cases

Bagel distributor. —

Even though bagels were not packaged or wrapped when sold at retail, a distributor was not liable for injuries caused by a staple baked into a bagel, since the distributor could not be expected to open for inspection individual bagels baked by another. Thomasson v. Rich Prods. Corp., 232 Ga. App. 424 , 502 S.E.2d 289 (1998).

Beverage bottler. —

Manufacturer who makes and bottles for public consumption a beverage represented to be harmless and refreshing is under a legal duty not to negligently allow a foreign substance which is injurious to the human stomach, such as bits of broken glass, to be present in a bottle of the beverage when it is placed on sale; and one who, relying on this obligation and without negligence on one’s own part, swallows several pieces of glass while drinking the beverage from a bottle, may recover from the manufacturer for injuries sustained in consequence. Atlanta Coca-Cola Bottling Co. v. Shipp, 41 Ga. App. 705 , 154 S.E. 385 (1930).

It cannot be said as a matter of law that the plaintiff, in drinking from the bottle of Coca-Cola which had previously been unopened, without first making an examination of its contents, was, as a matter of law, guilty of such a failure to exercise ordinary care for the plaintiff’s own safety as would bar a recovery, or that the jury was not authorized, despite the evidence on behalf of the defendant as to the manner and method and degree of care exercised by it in conducting its business of bottling beverages, to apply the doctrine of res ipsa loquitur and find against the defendant upon the issue as to its negligence. Cordell v. Macon Coca-Cola Bottling Co., 56 Ga. App. 117 , 192 S.E. 228 (1937).

Whether the defendant bottlers and vendors exercised due care and diligence in performing the defendants’ admitted duty not to sell a bottle of Coca-Cola with flies in it, and whether the plaintiff, by the exercise of ordinary care, could have avoided the alleged injury to the plaintiff resulting from the alleged negligence of the defendants, were questions of fact for a jury. Cordell v. Macon Coca-Cola Bottling Co., 56 Ga. App. 117 , 192 S.E. 228 (1937).

Case brought against the bottling company by an individual who purchased and drank a portion of a soft drink containing a dead roach was one which under the evidence should have been submitted to a jury on the question of negligence, and it was error to grant a nonsuit. Whited v. Atlantic Coca-Cola Bottling Co., 88 Ga. App. 241 , 76 S.E.2d 408 (1953).

Ice cream retail dealer. —

Retail dealer who dispenses ice cream to the dealer’s customers by removing the ice cream in small quantities from the container in which the ice cream was furnished to the dealer by the manufacturer, and the servant of the dealer who actually serves and dispenses the ice cream by removing the ice cream from the container to be delivered to the customer, owe a duty to the customer to exercise ordinary care to see that the ice cream so furnished is free from harmful and deleterious foreign matter, notwithstanding the ice cream, when furnished by the dealer to the customer, contained therein glass as a result of the negligence of the manufacturer. Crowley v. Lane Drug Stores, Inc., 54 Ga. App. 859 , 189 S.E. 380 (1936).

In a suit by the customer against the manufacturer of ice cream, the dealer, and the servant of the dealer, to recover damages for injuries alleged to have been received by the plaintiff when consuming ice cream with glass in the ice cream which had been served to the plaintiff as a customer of the dealer, since the evidence indicated that the glass was in the ice cream when delivered from the manufacturer to the dealer, a verdict for the plaintiff against the defendants would have been authorized. Crowley v. Lane Drug Stores, Inc., 54 Ga. App. 859 , 189 S.E. 380 (1936).

Vehicle manufacturer. —

Because Georgia law prohibited recovery for wrongful death under a theory of breach of warranty pursuant to O.C.G.A. § 51-1-23 , a warranty claim brought by parents based on the death of their daughter in an auto accident failed on summary judgment. Davenport v. Ford Motor Co., No. 1:05-cv-3047-WSD, 2007 U.S. Dist. LEXIS 91245 (N.D. Ga. Dec. 11, 2007).

General Consideration

Basis for a malpractice action is provided in this section. Hayes v. Brown, 108 Ga. App. 360 , 133 S.E.2d 102 (1963).

Malpractice defined. —

Malpractice is a particular form of negligence which consists in not applying to the exercise of the practice of medicine that degree of care and skill which is ordinarily employed by the profession generally under similar conditions and like surrounding circumstances. Johnson v. Myers, 118 Ga. App. 773 , 165 S.E.2d 739 (1968).

Cause of action for malpractice brought either in tort or in contract. —

Under Georgia law, malpractice actions may be brought either in tort or in contract and when a physician undertakes to treat a patient, even when there is no express agreement, an implied contract arises and the doctor impliedly warrants that the doctor possesses the requisite skill to perform the treatment undertaken and that the doctor will exercise ordinary skill and care. Scott v. Simpson, 46 Ga. App. 479 , 167 S.E. 920 (1933); Wolfe v. Virusky, 306 F. Supp. 519 (S.D. Ga. 1969).

Elements of liability. —

There are three essential elements imposing liability upon which recovery is bottomed: (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained. Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. Goggin v. Goldman, 209 Ga. App. 251 , 433 S.E.2d 85 (1993), cert. denied, No. S93C1535, 1993 Ga. LEXIS 1106 (Ga. Nov. 19, 1993).

In a medical malpractice case, the trial court erred in denying the doctor’s motion for summary judgment because, even though the medical records listed the doctor as the child’s pediatrician and the coding summary indicated that the doctor provided certain treatments to the child, the director of medical records for the medical center stated in an affidavit that, because the parent had not selected a pediatrician, the pediatrician who was on call at the time of the baby’s birth was assigned automatically as the admitting and attending physician in the child’s chart; the doctor presented evidence that the doctor did not treat the mother or the child; and the mother failed to establish the existence of a doctor-patient relationship. Tomeh v. Bohannon, 329 Ga. App. 596 , 765 S.E.2d 743 (2014).

There are three essential elements imposing liability upon which recovery is bottomed: (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure is the proximate cause of the injury sustained. Hawkins v. Greenberg, 166 Ga. App. 574 , 304 S.E.2d 922 (1983).

Sexual relationship with a patient. —

Patient could not bring a medical malpractice claim under O.C.G.A. § 51-1-27 against a family doctor for interference with the patient’s marriage, loss of affection, or depression and anxiety that resulted from the doctor having an affair with the patient’s wife because O.C.G.A. § 51-1-17 abolished torts claims for adultery and alienation of affections. The patient failed to allege an error of professional skill or judgment with regard to the doctor’s care. Witcher v. McGauley, 316 Ga. App. 574 , 730 S.E.2d 56 (2012), cert. denied, No. S12C1782, 2012 Ga. LEXIS 871 (Ga. Nov. 5, 2012).

Physician’s implied contract. —

Whenever a physician undertakes to treat a patient, an implied contract arises that the physician possesses the necessary ordinary skill and experience possessed by those who practice the profession, and that the physician will use such ordinary care and skill in treating the patient, and likewise an implied promise or obligation arises that such patient will compensate the physician in a reasonable sum for such services. Scott v. Simpson, 46 Ga. App. 479 , 167 S.E. 920 (1933).

This section is applicable to physician who specializes in administering X-ray treatment. Kuttner v. Swanson, 59 Ga. App. 818 , 2 S.E.2d 230 (1939); Mason v. Hall, 72 Ga. App. 867 , 35 S.E.2d 478 (1945).

Provisions of this section apply also to a licensed dentist in the practice of the dentist’s profession. Byran v. Grace, 63 Ga. App. 373 , 11 S.E.2d 241 (1940); Specht v. Gaines, 65 Ga. App. 782 , 16 S.E.2d 507 (1941).

This section is applicable to chiropractor who performs acts usually done by surgeon, and the giving of this section in charge is not error even if the chiropractor had done no act of surgery or administering medicine. Mims v. Ragland, 59 Ga. App. 703 , 2 S.E.2d 174 (1939); Gaines v. Wolcott, 119 Ga. App. 313 , 167 S.E.2d 366 , aff'd, 225 Ga. 373 , 169 S.E.2d 165 (1969).

Impact rule does not apply to medical malpractice actions. —

Trial court should not have granted a psychiatrist summary judgment in a patient’s medical malpractice action because the court erred in applying the impact rule; the medical malpractice statute, O.C.G.A. § 51-1-27 , which provides that “any injury” resulting from the breach of a physician’s duty is a compensable injury, is not limited by the application of the “impact rule,” and there is no rational basis for applying the rule to causes of action sounding in medical malpractice. Bruscato v. O'Brien, 307 Ga. App. 452 , 705 S.E.2d 275 (2010), aff'd, 289 Ga. 739 , 715 S.E.2d 120 (2011).

Policy concerns traditionally given for having the impact rule and denying recovery for emotional distress unrelated to physical injuries are not present in medical malpractice cases because such cases require a physician-patient relationship between the defendant and the plaintiff; consequently, there is no question to be resolved regarding the emotional impact of the defendant’s alleged negligence on third parties or bystanders, nor is there concern about a “flood of litigation” arising from such negligence, and the concern about avoiding fraudulent or frivolous lawsuits is already addressed by the strict pleading requirements of O.C.G.A. § 9-11-9.1 , the purpose of which is to reduce the number of frivolous malpractice suits being filed. Bruscato v. O'Brien, 307 Ga. App. 452 , 705 S.E.2d 275 (2010), aff'd, 289 Ga. 739 , 715 S.E.2d 120 (2011).

Requisite standard of care and skill is that employed by profession generally. —

Standard of care and skill fixed by the statute, when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally. Radcliffe v. Maddox, 45 Ga. App. 676 , 165 S.E. 841 (1932); Kuttner v. Swanson, 59 Ga. App. 818 , 2 S.E.2d 230 (1939); Lord v. Claxton, 62 Ga. App. 526 , 8 S.E.2d 657 (1940); Byran v. Grace, 63 Ga. App. 373 , 11 S.E.2d 241 (1940); Specht v. Gaines, 65 Ga. App. 782 , 16 S.E.2d 507 (1941); Mason v. Hall, 72 Ga. App. 867 , 35 S.E.2d 478 (1945); Webb v. Sandoz Chem. Works, Inc., 85 Ga. App. 405 , 69 S.E.2d 689 (1952); Hayes v. Brown, 108 Ga. App. 360 , 133 S.E.2d 102 (1963); Rahn v. United States, 222 F. Supp. 775 (S.D. Ga. 1963); Mull v. Emory Univ., Inc., 114 Ga. App. 63 , 150 S.E.2d 276 (1966), overruled in part, Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999); Starr v. Fregosi, 370 F.2d 15 (5th Cir. 1966); Williams v. Ricks, 152 Ga. App. 555 , 263 S.E.2d 457 (1979); Fain v. Moore, 155 Ga. App. 209 , 270 S.E.2d 375 (1980); Robertson v. Emory Univ. Hosp., 611 F.2d 604 (5th Cir. 1980); Wagner v. Timms, 158 Ga. App. 538 , 281 S.E.2d 295 (1981); Blount v. Moore, 159 Ga. App. 80 , 282 S.E.2d 720 (1981); Hawkins v. Greenberg, 159 Ga. App. 302 , 283 S.E.2d 301 (1981); but see Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999).

Reasonable belief standard. —

Standard determining whether a procedure was “therapeutically necessary” is whether the doctor exercised that degree of care, skill, and diligence which any other surgeon in the community would be required to employ in reaching a decision under the same or similar circumstances, in other words, the reasonable belief standard. Davidson v. Shirley, 616 F.2d 224 (5th Cir. 1980).

Standard not limited to local practices. —

This section, which provides the “reasonable degree of care and skill” standard in the practice of medicine, does not further circumscribe the requirement by limiting it to locality. Murphy v. Little, 112 Ga. App. 517 , 145 S.E.2d 760 ; Williams v. Ricks, 152 Ga. App. 555 , 263 S.E.2d 457 (1979).

Georgia law requires evidence of compliance with the standards of the medical profession generally and not compliance with local standards. Summerour v. Saint Joseph's Infirmary, Inc., 160 Ga. App. 187 , 286 S.E.2d 508 (1981).

Jury may consider general practices in locality in determining care under the circumstances. —

Skill prescribed by this section is not such as is ordinarily employed by the profession in the particular locality or community; but the jury may, in determining what is reasonable care and skill under the circumstances, consider the degree of care and skill practiced by the profession generally in the locality or community. Kuttner v. Swanson, 59 Ga. App. 818 , 2 S.E.2d 230 (1939); Mason v. Hall, 72 Ga. App. 867 , 35 S.E.2d 478 (1945); Mull v. Emory Univ., Inc., 114 Ga. App. 63 , 150 S.E.2d 276 (1966), overruled in part, Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999); but see Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999).

Plaintiff need not allege failure to follow local practices. —

While the jury may consider the accepted medical practice in the local community in determining whether or not the failure to use or follow the alleged practices was an act of negligence, it is not necessary to so allege. Mull v. Emory Univ., Inc., 114 Ga. App. 63 , 150 S.E.2d 276 (1966), overruled in part, Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999); but see Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999).

Careful performance of authorized acts not defense to negligent performance of unauthorized acts. —

When a surgeon enters into an agreement with a person merely to perform a certain operation, and the surgeon, in violation of the contract, goes farther, without an emergency, and performs another operation which is unauthorized by the agreement, or by an emergency necessitating the additional operation, and injury results to the patient, the surgeon cannot relieve oneself from liability by showing skill and care in the other operation. Lord v. Claxton, 62 Ga. App. 526 , 8 S.E.2d 657 (1940).

Duty of care in making diagnosis. —

Relative to a diagnosis by a doctor for discovering the nature of an ailment, the general rule of law is that a patient is entitled to a thorough and careful examination such as the condition of the patient and the attending circumstances will permit, with such diligence and method of diagnosis for discovering the nature of the ailment as are usually approved and practiced under similar circumstances by members of the doctor’s profession in good standing. Pilgrim v. Landham, 63 Ga. App. 451 , 11 S.E.2d 420 (1940).

Same degree of care and skill is required in making diagnosis as is required in treatment. Mull v. Emory Univ., Inc., 114 Ga. App. 63 , 150 S.E.2d 276 (1966), overruled in part, Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999); but see Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999).

Failure to diagnose. —

Trial court erred in denying a radiologist’s motion for summary judgment on a patient’s claim that the radiologist should have ordered an MRI with intravenous contrast, allowing earlier diagnosis of an epidural abscess, because the radiologist was unaware that the patient was a diabetic and showed signs of an infection, and there was no evidence that, lacking this knowledge, the radiologist deviated from the standard of care. Meli v. Hicks, 300 Ga. App. 894 , 686 S.E.2d 489 (2009), cert. denied, No. S10C0504, 2010 Ga. LEXIS 254 (Ga. Mar. 15, 2010).

Trial court erred by granting the attending physician summary judgment because the expert testimony presented a genuine issue of material fact as to whether the patient’s death could have been avoided if the attending physician had prior diagnosed the patient’s condition in the emergency room in compliance with the applicable standard of care. The experts testified that the attending physician deviated from the standard of care when the physician failed to obtain a CT scan imaging of the patient’s aorta to make the diagnosis of an aortic dissection, and if the diagnosis had been made timely, it could have been successfully repaired. Knight v. Roberts, 316 Ga. App. 599 , 730 S.E.2d 78 (2012).

Improper diagnosis is not actionable per se, the issue being whether the physician has used reasonable care and diligence as a professional man. Hogan v. Almand, 131 Ga. App. 225 , 205 S.E.2d 440 (1974).

One physician may generally rely on diagnosis of another. —

When a family physician has diagnosed the case and given it as the physician’s opinion that the patient is suffering from a tumor and desires an operation or treatment by an expert, the expert has the right to rely on the diagnosis of the family physician, and, in the absence of anything warranting a contrary conclusion, to perform the operation or give the treatment. Pilgrim v. Landham, 63 Ga. App. 451 , 11 S.E.2d 420 (1940).

Duty to consult other physicians. —

Doctor with knowledge that a patient needs treatment the doctor is unable to provide has a duty to consult with a doctor more experienced in that particular field. Garbaccio v. Oglesby, 675 F. Supp. 1342 (M.D. Ga. 1987).

Standard for nurses. —

There is no law prohibiting nurses from giving intravenous injections; therefore, when such services are performed, the standard of care which should be imposed is the same as in regard to other authorized nursing activities. Deese v. Carroll City County Hosp., 203 Ga. App. 148 , 416 S.E.2d 127 (1992).

Informed consent doctrine is not a viable principle of law in this state; therefore, the trial court did not err in precluding the plaintiff from presenting evidence on the issue of whether the plaintiff’s consent to the surgical procedure was informed consent. Reece v. Selmonosky, 179 Ga. App. 718 , 347 S.E.2d 649 (1986).

Failure of physician to remove sponge. —

Physician is liable, when the physician negligently left a sponge in the body of a person after the operation was completed. Akridge v. Noble, 114 Ga. 949 , 41 S.E. 78 (1902).

Improper placement of hand board beneath patient. —

When placement of hand board which allegedly caused back injury to the plaintiff was that of the nurses and was completed before the surgeon entered the operating room, and the surgeon did not supervise its placement, these acts preceded the surgeon’s appearance and were not made under the surgeon’s immediate personal supervision so as to make any negligence of the nurses attributable to the surgeon. McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414 , 336 S.E.2d 268 (1985).

Transfer to another hospital. —

Plaintiff failed to present any evidence of proximate causation, i.e., evidence within a reasonable degree of medical certainty that the decedent would have survived but for the defendant’s alleged negligence, based on the physician’s decision to transfer the decedent to another hospital. Anthony v. Chambless, 231 Ga. App. 657 , 500 S.E.2d 402 (1998).

It is not mere possession of requisite professional skill, but its exercise, which is required. Chapman v. Radcliffe, 44 Ga. App. 49 , 162 S.E. 651 (1932); Kuttner v. Swanson, 59 Ga. App. 818 , 2 S.E.2d 230 (1939); Lord v. Claxton, 62 Ga. App. 526 , 8 S.E.2d 657 (1940); Byran v. Grace, 63 Ga. App. 373 , 11 S.E.2d 241 (1940); Mull v. Emory Univ., Inc., 114 Ga. App. 63 , 150 S.E.2d 276 (1966), overruled in part, Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999); but see Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 (1999).

Failure to exercise care and skill may be accomplished by failure to exercise care only, or by failure to exercise skill only, or by failure to do both. —

See Richards v. Harpe, 42 Ga. App. 123 , 155 S.E. 85 (1930).

Trial court erred by refusing to give requested jury instructions that because a physician must bring to the exercise of that profession the requisite degree of care and skill, the physician may be held liable for failure to exercise either the required care or the required skill. Brown v. Macheers, 249 Ga. App. 418 , 547 S.E.2d 759 (2001), cert. denied, No. S01C1272, 2001 Ga. LEXIS 859 (Ga. Oct. 22, 2001).

In action for malpractice, law presumes that medical or surgical services were performed in ordinarily skillful manner, and burden of proof is on the plaintiff to show a want of due care, skill, and diligence on the part of the defendant. Yeates v. Boyd, 50 Ga. App. 331 , 177 S.E. 921 (1935); Hayes v. Brown, 108 Ga. App. 360 , 133 S.E.2d 102 (1963); Washington v. City of Columbus, 136 Ga. App. 682 , 222 S.E.2d 583 (1975); Gunthorpe v. Daniels, 150 Ga. App. 113 , 257 S.E.2d 199 (1979); Evans v. DeKalb County Hosp. Auth., 154 Ga. App. 17 , 267 S.E.2d 319 (1980); Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 (1981); Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770 , 278 S.E.2d 653 (1981); Blount v. Moore, 159 Ga. App. 80 , 282 S.E.2d 720 (1981); Hawkins v. Greenberg, 166 Ga. App. 574 , 304 S.E.2d 922 (1983); Killingsworth v. Poon, 167 Ga. App. 653 , 307 S.E.2d 123 (1983).

Plaintiff’s expert affidavit. —

Once the defendant in a malpractice suit has carried the defendant’s burden on motion for summary judgment, the plaintiff must respond with an expert’s affidavit which must state the particulars in which the treatment was negligent, including an articulation of the minimum standard of acceptable professional conduct, and how and in what way the defendant deviated therefrom. Sanders v. Ramo, 203 Ga. App. 43 , 416 S.E.2d 333 (1992).

Expert opinion. —

It was error to reverse a jury verdict for a surgeon and the surgeon’s medical corporation in a medical malpractice case because the trial court’s charge that the patient’s expert’s opinion had to be based on reasonable medical certainty and based on more than speculation was sufficient under Georgia law. Zwiren v. Thompson, 276 Ga. 498 , 578 S.E.2d 862 (2003).

Doctor is not insurer and unintended result does not raise even an inference of negligence. A physician cannot always effect a cure. Hayes v. Brown, 108 Ga. App. 360 , 133 S.E.2d 102 (1963); Blount v. Moore, 159 Ga. App. 80 , 282 S.E.2d 720 (1981).

Physician not liable for unintended result if requisite care exercised. —

When a doctor or physician possesses the skill and learning ordinarily, under similar circumstances, possessed by the members of the doctor’s profession, and uses ordinary and reasonable care and diligence and the doctor’s best judgment in the application of the doctor’s skill to the case, the doctor is not liable because the doctor’s efforts to assist nature in effecting a cure did not bring about the desired result. Howell v. Jackson, 65 Ga. App. 422 , 16 S.E.2d 45 (1941).

Prescribing drugs. —

Physician does not have a legal duty upon each occasion of prescribing a potentially dangerous drug to inquire of any known allergies of the patient, but has the duty to determine the proper medication for each patient, weighing the medication’s benefits against the medication’s potential dangers. Hawkins v. Greenberg, 166 Ga. App. 574 , 304 S.E.2d 922 (1983).

Physician who has been retained by third party, such as the Department of Human Resources, to undertake a medical examination of an individual cannot be held liable to that individual for malpractice as a result of that examination, when the physician neither offered nor intended to treat, care for, or otherwise benefit the individual and did not injure the individual during the course of the examination, even though the physician failed to advise the individual of the results of the examination or to diagnose cancer based thereon. Peace v. Weisman, 186 Ga. App. 697 , 368 S.E.2d 319 (1988).

“Wrongful birth” actions shall not be recognized in Georgia absent a clear mandate of such recognition by the legislature. Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711 , 398 S.E.2d 557 (1990).

Holding in Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711 , 398 S.E.2d 557 (1990), which forecloses wrongful birth claims under Georgia law, was not infirm for depriving women of a remedy for the unconstitutional deprivation of their right to make a free and informed choice concerning termination of a pregnancy since there is no evidence that this remedy was ever contemplated by the Georgia legislature. Campbell v. United States, 795 F. Supp. 1127 (N.D. Ga. 1991), aff'd, 962 F.2d 1579 (11th Cir. 1992).

Georgia Supreme Court’s holding in Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711 , 398 S.E.2d 557 (1990) does not turn on questions of gender or other arbitrary classifications. Campbell v. United States, 795 F. Supp. 1127 (N.D. Ga. 1991), aff'd, 962 F.2d 1579 (11th Cir. 1992).

Aborted pregnancy based on physician’s misrepresentation. —

After a mother terminated her pregnancy based on a doctor’s misrepresentation of the results of pre-natal testing, the mother, but not the father, was entitled to damages for medical malpractice and breach of fiduciary duty. Breyne v. Potter, 258 Ga. App. 728 , 574 S.E.2d 916 (2002).

Suicide. —

Fact that the patient’s suicide was volitional did not make it a rational act, nor did that alone relieve the hospital and physician of their duty to the patient. Brandvain v. Ridgeview Inst., Inc., 188 Ga. App. 106 , 372 S.E.2d 265 (1988), aff'd, 259 Ga. 376 , 382 S.E.2d 597 (1989).

Doctrine of res ipsa loquitur does not apply in malpractice suit. An unintended result does not raise an inference of negligence. It is presumed that medical or surgical services were performed in an ordinarily skillful manner. Hayes v. Brown, 108 Ga. App. 360 , 133 S.E.2d 102 (1963); Washington v. City of Columbus, 136 Ga. App. 682 , 222 S.E.2d 583 (1975).

Plaintiff must show defendant’s negligence was proximate cause. —

To prevail, the plaintiff must show not only that the defendant was negligent but also that the plaintiff’s injury was proximately caused by the defendant’s lack of care or skill. Robertson v. Emory Univ. Hosp., 611 F.2d 604 (5th Cir. 1980).

Cannot recover without proximate cause. —

Plaintiff cannot recover for malpractice when there is not sufficient evidence that such physician’s alleged failure to use the requisite degree of skill and diligence in treatment either proximately caused or contributed to cause the plaintiff additional suffering. Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113 , 243 S.E.2d 269 (1978).

Causation is jury question. —

When measured by the method shown by medical witnesses to be negligence and the evidence, a bad result is shown, it is the province of the jury to say whether the result was caused by the negligence. Pilgrim v. Landham, 63 Ga. App. 451 , 11 S.E.2d 420 (1940).

Summary judgment was improperly granted to the doctor as the plaintiffs raised a genuine issue of material fact as to whether the doctor breached the applicable standard of care because the plaintiffs’ expert witness testified at a deposition that the doctor breached the standard of care by failing to implement a proper wound care plan, and failing to take part in the aggressive program to, inter alia, prevent pressure ulcers on the decedent’s body; and the plaintiffs raised a genuine issue of material fact as to causation that should be determined by a jury as the chief medical examiner opined that the sepsis resulting from ulcers that developed under the doctor’s care caused the decedent’s death. Fields v. Taylor, 2017 Ga. App. LEXIS 10.

Effect of plaintiff’s contributory negligence. —

When from the allegations of the plaintiff’s petition it is palpably clear that the injuries complained of were not caused from the failure of the physician to use reasonable care and skill but from the act of the plaintiff, the question of whether the physician has used such skill should be decided as a matter of law when a timely motion to dismiss has been filed. Robinson v. Campbell, 95 Ga. App. 240 , 97 S.E.2d 544 (1957).

Jury instruction on gross negligence correct. —

In a medical malpractice action against an emergency room doctor, in which a patient’s spinal canal hematoma was not diagnosed or treated, resulting in paraplegia, the gross-negligence standard of O.C.G.A. § 51-1-29.5 applied; the jury was not misled by opening statements into believing the jury could find liability under an ordinary-negligence standard. Southwestern Emergency Physicians, P.C. v. Quinney, 347 Ga. App. 410 , 819 S.E.2d 696 (2018).

Applicability to Special Cases

1.Dentists

Dentists under same duty of care as physicians. —

Duties and responsibilities of a dentist to the dentist’s patient are controlled by the same rules of law as control the duties and responsibilities of a physician and surgeon. Gunthorpe v. Daniels, 150 Ga. App. 113 , 257 S.E.2d 199 (1979); Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 (1981); Tumlin v. Daniels, 166 Ga. App. 635 , 305 S.E.2d 145 (1983).

Dentist’s duty of care defined. —

Dentist in practicing the dentist’s profession is under the duty, not only to use the requisite care and skill in a particular operation, but also to give such after treatment to the patient as the necessity of the case demands, in the absence of any special agreement to the contrary. Specht v. Gaines, 65 Ga. App. 782 , 16 S.E.2d 507 (1941).

Duty of one engaged in the practice of dentistry and medicine to “bring to the exercise of his profession a reasonable degree of care and skill” is an affirmative statutory duty imposed upon those who engage in professional practice. The obligation to practice under this standard must be viewed as a condition to the licensure of the state to engage in the practice of medicine and dentistry. Emory Univ. v. Porubiansky, 248 Ga. 391 , 282 S.E.2d 903 (1981).

Duty not relieved by contract. —

It is against the public policy of this state to allow one who procures a license to practice dentistry to relieve oneself by contract of the duty to exercise reasonable care. Emory Univ. v. Porubiansky, 248 Ga. 391 , 282 S.E.2d 903 (1981).

Dentist is not an insurer or warrantor that the exercise of the dentist’s professional judgment will effect a cure of the patient, nor is the dentist obliged to bring to the exercise of the dentist’s profession the utmost skill. Byran v. Grace, 63 Ga. App. 373 , 11 S.E.2d 241 (1940); Specht v. Gaines, 65 Ga. App. 782 , 16 S.E.2d 507 (1941); Kent v. Henson, 174 Ga. App. 400 , 330 S.E.2d 126 (1985).

Dentist not liable if requisite degree of care exercised. —

If a dentist measures up to the qualifications and applies the reasonable care and skill legally required of the dentist, then the dentist is not responsible for a mistake of judgment; if, however, an error of judgment is so gross as to be inconsistent with that degree of care and skill which a dentist should possess and exercise, liability may result when an injury is produced. Byran v. Grace, 63 Ga. App. 373 , 11 S.E.2d 241 (1940); Specht v. Gaines, 65 Ga. App. 782 , 16 S.E.2d 507 (1941).

Presumption of due care. —

Law presumes that a dentist performs the dentist’s services with the proper degree of skill and care, and, except in extreme circumstances, the plaintiff can overcome this presumption only through expert testimony. Tumlin v. Daniels, 166 Ga. App. 635 , 305 S.E.2d 145 (1983).

Conclusory allegations of dentist’s misjudgment insufficient as pleadings. —

Allegation that, in effect, it was an error of judgment on the part of the defendant in failing to extract the plaintiff’s teeth amounted only to a conclusion or opinion of the pleader, and without supporting facts which would have made a jury question as to whether or not such conduct was equivalent to a lack of the legally required professional care and skill was not good against a motion to dismiss. Byran v. Grace, 63 Ga. App. 373 , 11 S.E.2d 241 (1940).

2.Hospitals

Section applicable to hospitals. —