economic loss rule in Georgia

2006Co. v. Lowe’s Home Centers, 279 Ga. 77 ( 608 SE2d 636 ) (2005), where our Supreme Court recently reiterated that [u]nder the economic loss rule, a plaintiff can recover in tort only those economic losses resulting from injury to his person or damage to his property; a plaintiff cannot recover economic losses associated with injury to the person or damage to the property of another. 6 Id. at 78 , citing Byrd v. English, 117 Ga. 191 ( 43 SE 419 ) (1903); Vulcan Materials Co. v. Driltech, Inc., 251 Ga. 383, 387-388 (306 SE2d *428 253) (1983).

2005J. 491, 491-494 (discussing the economic loss rule generally and its role at the intersection of tort and contract law). 4 Byrd v. English, 117 Ga. 191 ( 43 SE 419 ) (1903); Vulcan Materials Co. v. Driltech, 251 Ga. 383, 387-388 ( 306 SE2d 253 ) (1983) (damages for economic loss associated with defective product recoverable in tort only if there is personal injury or damage to property other than the defective product itself); see also Restatement (Second) of Torts § 929 (1) (b) (damages for past invasion of land causing harm, but not total destruction, include compensation for loss of use of

2019See Rowe v. Akin & Flanders, Inc. , 240 Ga. App. 766 , 769, 525 S.E.2d 123 (1999) (holding that the economic loss rule did not apply to a negligent construction claim seeking recovery for a collapsed parking lot).

2019See Rowe v. Akin & Flanders, Inc. , 240 Ga. App. 766 , 769, 525 S.E.2d 123 (1999) (holding that the economic loss rule did not apply to a negligent construction claim seeking recovery for a collapsed parking lot).

2015Appx. 848, 854 (III) (A) (2) (11th Cir. 2011) (under Florida apportionment statute, “[plaintiff’s] inability to recover in tort from a nonparty due to the economic loss rule does not preclude apportioning fault to that nonparty”); Sedgwick Ins. v. CDS, Inc., 47 FSupp3d 536, 549 (B) (2) (E.D.

2015Appx. 848, 854 (III) (A) (2) (11th Cir. 2011) (under Florida apportionment statute, “[plaintiff’s] inability to recover in tort from a nonparty due to the economic loss rule does not preclude apportioning fault to that nonparty”); Sedgwick Ins. v. CDS, Inc., 47 FSupp3d 536, 549 (B) (2) (E.D.

2015Mich. 2014) (fault of nonparty-employer could be considered under Michigan apportionment statute, notwithstanding that employer would have defense as against plaintiff-employee under exclusive remedy provision of workers’ compensation statute); Ovando v. County of Los Angeles, 71 Cal. Rptr. 3d 415, 439 (Ct. App. 2008) (“fault” could be allocated to nonparties under California Proposition 51 notwithstanding their governmental immunity); Fitzpatrick v. Allen, 955 P2d 141, 148 (Kan.

2015Mich. 2014) (fault of nonpartyemployer could be considered under Michigan apportionment statute, notwithstanding that employer would have defense as against plaintiff-employee under exclusive remedy provision of workers’ compensation statute); Ovando v. County of Los Angeles, 71 Cal. Rptr. 3d 415, 439 (Ct. App. 2008) (“fault” could be allocated to nonparties under California Proposition 51 notwithstanding their governmental immunity); Fitzpatrick v. Allen, 955 P2d 141, 148 (Kan.

2015Mich. 2014) (fault of nonparty-employer could be considered under Michigan apportionment statute, notwithstanding that employer would have defense as against plaintiff-employee under exclusive remedy provision of workers’ compensation statute); Ovando v. County of Los Angeles, 71 Cal. Rptr. 3d 415, 439 (Ct. App. 2008) (“fault” could be allocated to nonparties under California Proposition 51 notwithstanding their governmental immunity); Fitzpatrick v. Allen, 955 P2d 141, 148 (Kan.

2015Mich. 2014) (fault of nonpartyemployer could be considered under Michigan apportionment statute, notwithstanding that employer would have defense as against plaintiff-employee under exclusive remedy provision of workers’ compensation statute); Ovando v. County of Los Angeles, 71 Cal. Rptr. 3d 415, 439 (Ct. App. 2008) (“fault” could be allocated to nonparties under California Proposition 51 notwithstanding their governmental immunity); Fitzpatrick v. Allen, 955 P2d 141, 148 (Kan.

2006However, Brunswick involved a business which was located about 25 yards from the crossing which was allegedly intentionally torn up and obstructed, and which may have been the only crossing available for certain customers of the business. 6 Although the economic loss rule is more often applied in the context of products liability cases or “to distinguish between those actions cognizable in tort and those that may be brought only in contract [cit.]” City of Cairo v. Hightower Consulting Engineers, 278 Ga. App. 721, 728 (4) ( 629 SE2d 518 ) (2006), the reasoning behind the rule, as set forth in

2006However, Brunswick involved a business which was located about 25 yards from the crossing which was allegedly intentionally torn up and obstructed, and which may have been the only crossing available for certain customers of the business. 6 Although the economic loss rule is more often applied in the context of products liability cases or “to distinguish between those actions cognizable in tort and those that may be brought only in contract [cit.]” City of Cairo v. Hightower Consulting Engineers, 278 Ga. App. 721, 728 (4) ( 629 SE2d 518 ) (2006), the reasoning behind the rule, as set forth in

1993Bates & Assoc. v. Romei, 207 Ga. App. 81, 83 (4) ( 426 SE2d 919 ) (1993). 2 The Restatement of Torts 2d, 552 (1977) provides in pertinent part: “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” Robert & Co., 250 Ga.

1993See generally Robert & Co. Assoc. v. Rhodes-Haverty &c., 250 Ga. 680 ( 300 SE2d 503 ).

2006Co. v. Lowe’s Home Centers, 279 Ga. 77 ( 608 SE2d 636 ) (2005), where our Supreme Court recently reiterated that [u]nder the economic loss rule, a plaintiff can recover in tort only those economic losses resulting from injury to his person or damage to his property; a plaintiff cannot recover economic losses associated with injury to the person or damage to the property of another. 6 Id. at 78 , citing Byrd v. English, 117 Ga. 191 ( 43 SE 419 ) (1903); Vulcan Materials Co. v. Driltech, Inc., 251 Ga. 383, 387-388 (306 SE2d *428 253) (1983).

2006Co. v. Lowe’s Home Centers, 279 Ga. 77 ( 608 SE2d 636 ) (2005), where our Supreme Court recently reiterated that [u]nder the economic loss rule, a plaintiff can recover in tort only those economic losses resulting from injury to his person or damage to his property; a plaintiff cannot recover economic losses associated with injury to the person or damage to the property of another. 6 Id. at 78 , citing Byrd v. English, 117 Ga. 191 ( 43 SE 419 ) (1903); Vulcan Materials Co. v. Driltech, Inc., 251 Ga. 383, 387-388 (306 SE2d *428 253) (1983).

2003Where the seller or other third party knows of the defect but does not reveal it, this is passive fraud. “[T]he misrepresentation exception to the economic loss rule, as set forth in the Restatement [(Second)] of Torts, [§ 552 (1977),] ‘is no more than an affirmation of the principles of passive concealment or plain fraud, constructive or actual.’ (Citation and punctuation omitted.) [Swiedler v. Ferguson, 195 Ga. App. 364, 366 ( 393 SE2d 456 ) (1990).]” Id. at 148 (4).

2003Where the seller or other third party knows of the defect but does not reveal it, this is passive fraud. “[T]he misrepresentation exception to the economic loss rule, as set forth in the Restatement [(Second)] of Torts, [§ 552 (1977),] ‘is no more than an affirmation of the principles of passive concealment or plain fraud, constructive or actual.’ (Citation and punctuation omitted.) [Swiedler v. Ferguson, 195 Ga. App. 364, 366 ( 393 SE2d 456 ) (1990).]” Id. at 148 (4).

2020See Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 829 (2) ( 573 SE2d 389 ) (2002); Crippen v. Outback Steakhouse Intl., L.P., 321 Ga. App. 167, 170 (1) ( 741 SE2d 280 ) (2013) (“Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper 3 The economic loss doctrine “generally provides that a contracting party who suffers purely economic losses must seek his remedy in contract and not in tort.” (Citations omitted.) D.J.

2020See Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 829 (2) ( 573 SE2d 389 ) (2002); Crippen v. Outback Steakhouse Intl., L.P., 321 Ga. App. 167, 170 (1) ( 741 SE2d 280 ) (2013) (“Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper 3 The economic loss doctrine “generally provides that a contracting party who suffers purely economic losses must seek his remedy in contract and not in tort.” (Citations omitted.) D.J.

2020See Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 829 (2) ( 573 SE2d 389 ) (2002); Crippen v. Outback Steakhouse Intl., L.P., 321 Ga. App. 167, 170 (1) ( 741 SE2d 280 ) (2013) (“Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper 3 The economic loss doctrine “generally provides that a contracting party who suffers purely economic losses must seek his remedy in contract and not in tort.” (Citations omitted.) D.J.

2020See Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 829 (2) ( 573 SE2d 389 ) (2002); Crippen v. Outback Steakhouse Intl., L.P., 321 Ga. App. 167, 170 (1) ( 741 SE2d 280 ) (2013) (“Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper 3 The economic loss doctrine “generally provides that a contracting party who suffers purely economic losses must seek his remedy in contract and not in tort.” (Citations omitted.) D.J.

2020Powers Co., Inc. v. Peachtree Playthings, Inc., 348 Ga. App. 248, 254 (1) ( 820 SE2d 217 ) (2018). 7 exception is taken.

2020Powers Co., Inc. v. Peachtree Playthings, Inc., 348 Ga. App. 248, 254 (1) ( 820 SE2d 217 ) (2018). 7 exception is taken.

2020Schinazi, 338 Ga. App. at 798 (3) (a). (b) Wimpy next contends that the breach of fiduciary duty claim is precluded as a matter of law by the economic loss doctrine.3 However, Wimpy never raised this argument before the trial court, and it is thus waived.

2012See Busbee v. Chrysler Corp., 240 Ga.App. 664, 666 (1), 524 S.E.2d 539 (1999); Holloman v. D.R.

2012See Busbee v. Chrysler Corp., 240 Ga.App. 664, 666 (1), 524 S.E.2d 539 (1999); Holloman v. D.R.

2012Holloman, 241 Ga.App. at 147-148 (4), 524 S.E.2d 790 .

2012Holloman, 241 Ga.App. at 147-148 (4), 524 S.E.2d 790 .

2012Home Depot's claim for promissory estoppel was not a tort claim and thus was not barred by the economic loss rule. [4] Home Depot also alleged that Wabash represented that a Wabash-manufactured trailer would "never rust in its lifetime" and should have "no problem" remaining operable for "10 to 14 or 15 years." But "[i]t is axiomatic that a false representation made by a defendant, to be actionable, must relate to an existing fact or a past event." Fuller v. Perry, 223 Ga.App. 129, 131 (1), 476 S.E.2d 793 (1996).

2012Home Depot's claim for promissory estoppel was not a tort claim and thus was not barred by the economic loss rule. [4] Home Depot also alleged that Wabash represented that a Wabash-manufactured trailer would "never rust in its lifetime" and should have "no problem" remaining operable for "10 to 14 or 15 years." But "[i]t is axiomatic that a false representation made by a defendant, to be actionable, must relate to an existing fact or a past event." Fuller v. Perry, 223 Ga.App. 129, 131 (1), 476 S.E.2d 793 (1996).

2006Hence, “[t]he proper focus . . . under the economic loss rule is on the source of the duties alleged to have been breached.” Grynberg, 10 P3d at 1269 (II).

2006See BRW, Inc. v. Dufficy & Sons, Inc., 99 P3d 66, 74 (II) (A) (3) (Colo. 2004) (“If we conclude that the duty of care owed [the parties] was memorialized in the contracts, it follows that the plaintiff has not shown any duty independent of the interrelated contracts and the economic loss rule bars the tort claim and holds the parties to the contracts’ terms.”); Grynberg, 10 P3d at 1270 (II) (ruling that economic loss rule barred plaintiffs tort claims when “all of the actions undertaken . . . were called for in, and governed by, the contracts between the parties”).

2006See BRW, Inc. v. Dufficy & Sons, Inc., 99 P3d 66, 74 (II) (A) (3) (Colo. 2004) (“If we conclude that the duty of care owed [the parties] was memorialized in the contracts, it follows that the plaintiff has not shown any duty independent of the interrelated contracts and the economic loss rule bars the tort claim and holds the parties to the contracts’ terms.”); Grynberg, 10 P3d at 1270 (II) (ruling that economic loss rule barred plaintiffs tort claims when “all of the actions undertaken . . . were called for in, and governed by, the contracts between the parties”).

2006Andrews, P. J., and Mikell, J., concur. 1 The parties agree that they entered into a series of agreements tolling the statute of limitation in this case from March 22,2001 until August 2002, when the suit was actually filed. 2 OCGA § 9-10-9 (affidavits of jurors may be taken to sustain, but not to impeach, their verdict). 3 Subsection (b) deems contrary to public policy an agreement in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances, including moving, demolition, and

2006Andrews, P. J., and Mikell, J., concur. 1 The parties agree that they entered into a series of agreements tolling the statute of limitation in this case from March 22,2001 until August 2002, when the suit was actually filed. 2 OCGA § 9-10-9 (affidavits of jurors may be taken to sustain, but not to impeach, their verdict). 3 Subsection (b) deems contrary to public policy an agreement in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances, including moving, demolition, and

2006(Citations omitted.) Hermansen v. Tasulis, 48 P3d 235, 239 (II) (Utah 2002).

2006Conversely, “[w]hen an independent duty exists, the economic loss rule does not bar a tort claim because the claim is based on a recognized independent duty of care and thus does not fall within the scope of the rule.” (Citation and punctuation omitted.) Hermansen, 48 P3d at 240 .

2005Corp. v. Sunset Amoco West, 669 So2d 300 (Fla. 1996) (economic loss rule prohibits recovery in tort for costs of cleaning underground water contamination where contract dealt with the same). 5 117 Ga. at 193-194 . 6 Id. 7 275 U. S. 303, 309 (48 SC 134, 72 LE 290) (1927) (stating that “a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other....

1993Bates & Assoc. v. Romei, 207 Ga. App. 81, 83 (4) ( 426 SE2d 919 ) (1993). 2 The Restatement of Torts 2d, 552 (1977) provides in pertinent part: “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” Robert & Co., 250 Ga.

1993Bates & Assoc. v. Romei, 207 Ga. App. 81, 83 (4) ( 426 SE2d 919 ) (1993). 2 The Restatement of Torts 2d, 552 (1977) provides in pertinent part: “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” Robert & Co., 250 Ga.