essential elements claim in Georgia

2023In order to present a meritorious defense, a defendant must “set forth facts that show the existence of the essential elements of such defense even though there is no requirement that the affidavit or other sworn statement contain in great detail the factual basis of the proposed defense.”5 Put another way, a defendant meets this 4 OCGA § 9-11-55 (b). 5 Water Visions Int’l, Inc. v. Tippett Clepper Assocs., Inc., 293 Ga. App. 285, 287 (2) ( 666 SE2d 628 ) (2008) (punctuation omitted); see Exxon Corp. v. Thomason, 269 Ga. 761, 761 (1) ( 504 SE2d 676 ) (1998) (“One of the requirements for the ope

2023In order to present a meritorious defense, a defendant must “set forth facts that show the existence of the essential elements of such defense even though there is no requirement that the affidavit or other sworn statement contain in great detail the factual basis of the proposed defense.”5 Put another way, a defendant meets this 4 OCGA § 9-11-55 (b). 5 Water Visions Int’l, Inc. v. Tippett Clepper Assocs., Inc., 293 Ga. App. 285, 287 (2) ( 666 SE2d 628 ) (2008) (punctuation omitted); see Exxon Corp. v. Thomason, 269 Ga. 761, 761 (1) ( 504 SE2d 676 ) (1998) (“One of the requirements for the ope

2020Corp., 314 Ga. App. 360, 367 (3) ( 724 SE2d 53 ) (2012).

2020Corp., 314 Ga. App. 360, 367 (3) ( 724 SE2d 53 ) (2012).

2004In order to make a “showing” that a meritorious defense exists, the defendant must set forth facts that show the existence of the essential elements of such defense even though “there is no requirement that the affidavit (or verified answer) contain in great detail the factual basis of the proposed defense.” (Citations and punctuation omitted.) Pinehurst Baptist Church v. Murray, 215 Ga. App. 259, 261 ( 450 SE2d 307 ) (1994).

2004In order to make a “showing” that a meritorious defense exists, the defendant must set forth facts that show the existence of the essential elements of such defense even though “there is no requirement that the affidavit (or verified answer) contain in great detail the factual basis of the proposed defense.” (Citations and punctuation omitted.) Pinehurst Baptist Church v. Murray, 215 Ga. App. 259, 261 ( 450 SE2d 307 ) (1994).

1997Therefore, he failed to carry his burden on one of the essential elements of his claim (Moore v. Food Assoc., 210 Ga. App. 780, 782 ( 437 SE2d 832 )) and his claim must tumble like a “house of cards.” Lau’s Corp v. Haskins, supra. Accordingly, as Kroger was not shown to have superior knowledge of the cherries on the floor, the trial court erred by not granting summary judgment to Kroger.

1997Therefore, he failed to carry his burden on one of the essential elements of his claim (Moore v. Food Assoc., 210 Ga. App. 780, 782 ( 437 SE2d 832 )) and his claim must tumble like a “house of cards.” Lau’s Corp v. Haskins, supra. Accordingly, as Kroger was not shown to have superior knowledge of the cherries on the floor, the trial court erred by not granting summary judgment to Kroger.

1983The essential elements of a claim for malicious prosecution are “(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was *10 instituted without probable cause; and (6) that it damaged the plaintiff. [Cits.]” Ellis v. Knowles, 90 Ga. App. 40, 42 (1) ( 81 SE2d 884 ) (1954).

1983The essential elements of a claim for malicious prosecution are “(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was *10 instituted without probable cause; and (6) that it damaged the plaintiff. [Cits.]” Ellis v. Knowles, 90 Ga. App. 40, 42 (1) ( 81 SE2d 884 ) (1954).

2023In order to present a meritorious defense, a defendant must “set forth facts that show the existence of the essential elements of such defense even though there is no requirement that the affidavit or other sworn statement contain in great detail the factual basis of the proposed defense.”5 Put another way, a defendant meets this 4 OCGA § 9-11-55 (b). 5 Water Visions Int’l, Inc. v. Tippett Clepper Assocs., Inc., 293 Ga. App. 285, 287 (2) ( 666 SE2d 628 ) (2008) (punctuation omitted); see Exxon Corp. v. Thomason, 269 Ga. 761, 761 (1) ( 504 SE2d 676 ) (1998) (“One of the requirements for the ope

2023In order to present a meritorious defense, a defendant must “set forth facts that show the existence of the essential elements of such defense even though there is no requirement that the affidavit or other sworn statement contain in great detail the factual basis of the proposed defense.”5 Put another way, a defendant meets this 4 OCGA § 9-11-55 (b). 5 Water Visions Int’l, Inc. v. Tippett Clepper Assocs., Inc., 293 Ga. App. 285, 287 (2) ( 666 SE2d 628 ) (2008) (punctuation omitted); see Exxon Corp. v. Thomason, 269 Ga. 761, 761 (1) ( 504 SE2d 676 ) (1998) (“One of the requirements for the ope

2014Hollifield v. Monte Vista Biblical Gardens, 251 Ga. App. 124, 128-129 (2) (a) ( 553 SE2d 662 ) (2001).

2014Hollifield v. Monte Vista Biblical Gardens, 251 Ga. App. 124, 128-129 (2) (a) ( 553 SE2d 662 ) (2001).

2012Parris Props. v. Nichols, 305 Ga. App. 734, 735 ( 700 SE2d 848 ) (2010).

2012Parris Props. v. Nichols, 305 Ga. App. 734, 735 ( 700 SE2d 848 ) (2010).

1996“Among the essential elements of a claim for malicious prosecution are: (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff.” (Citations and punctuation omitted.) Williams v. Taylor, 202 Ga. App. 720, 721 ( 415 SE2d 498 ) (1992).

1996“Among the essential elements of a claim for malicious prosecution are: (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff.” (Citations and punctuation omitted.) Williams v. Taylor, 202 Ga. App. 720, 721 ( 415 SE2d 498 ) (1992).

1985“The essential elements of a claim for malicious prosecution are *291 ‘(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was instituted without probable cause; and (6) that it damaged the plaintiff. [Cits.]’ [Cit.]” Wilson v. Bonner, 166 Ga. App. 9 ( 303 SE2d 134 ) (1983).

1985“The essential elements of a claim for malicious prosecution are *291 ‘(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was instituted without probable cause; and (6) that it damaged the plaintiff. [Cits.]’ [Cit.]” Wilson v. Bonner, 166 Ga. App. 9 ( 303 SE2d 134 ) (1983).

2023In order to present a meritorious defense, a defendant must “set forth facts that show the existence of the essential elements of such defense even though there is no requirement that the affidavit or other sworn statement contain in great detail the factual basis of the proposed defense.”5 Put another way, a defendant meets this 4 OCGA § 9-11-55 (b). 5 Water Visions Int’l, Inc. v. Tippett Clepper Assocs., Inc., 293 Ga. App. 285, 287 (2) ( 666 SE2d 628 ) (2008) (punctuation omitted); see Exxon Corp. v. Thomason, 269 Ga. 761, 761 (1) ( 504 SE2d 676 ) (1998) (“One of the requirements for the ope

2023In order to present a meritorious defense, a defendant must “set forth facts that show the existence of the essential elements of such defense even though there is no requirement that the affidavit or other sworn statement contain in great detail the factual basis of the proposed defense.”5 Put another way, a defendant meets this 4 OCGA § 9-11-55 (b). 5 Water Visions Int’l, Inc. v. Tippett Clepper Assocs., Inc., 293 Ga. App. 285, 287 (2) ( 666 SE2d 628 ) (2008) (punctuation omitted); see Exxon Corp. v. Thomason, 269 Ga. 761, 761 (1) ( 504 SE2d 676 ) (1998) (“One of the requirements for the ope

2017Even assuming that the voluntary undertaking theory, which provides that a person may be held liable for the negligent performance of a voluntary undertaking, is applicable here, "[o]ne of the essential elements of this claim is reasonable reliance by the injured person upon the voluntary undertaking." Abundant Animal Care, LLC v. Gray , 316 Ga. App. 193 , 196 (2), 728 S.E.2d 822 (2012).

2017Even assuming that the voluntary undertaking theory, which provides that a person may be held liable for the negligent performance of a voluntary undertaking, is applicable here, "[o]ne of the essential elements of this claim is reasonable reliance by the injured person upon the voluntary undertaking." Abundant Animal Care, LLC v. Gray , 316 Ga. App. 193 , 196 (2), 728 S.E.2d 822 (2012).

2024The essential elements of a claim for false arrest are: “An arrest under the process of law, without probable cause, when made maliciously[.]”39 “In such an action, it is also essential to show that the prosecution 36 See Zeeman v. Black, 156 Ga. App. 82, 86 ( 273 SE2d 910 ) (1980) (“[W]e have no doubt that a single instance of an unfair or deceptive act or practice is a sufficient predicate upon which to base a claim for damages under [the FBPA] if the public consumer interest would be served thereby”). 37 See OCGA § 10-1-850 (2). 38 An FBPA violation against an elder person is a violation of

2024The essential elements of a claim for false arrest are: “An arrest under the process of law, without probable cause, when made maliciously[.]”39 “In such an action, it is also essential to show that the prosecution 36 See Zeeman v. Black, 156 Ga. App. 82, 86 ( 273 SE2d 910 ) (1980) (“[W]e have no doubt that a single instance of an unfair or deceptive act or practice is a sufficient predicate upon which to base a claim for damages under [the FBPA] if the public consumer interest would be served thereby”). 37 See OCGA § 10-1-850 (2). 38 An FBPA violation against an elder person is a violation of

2022We can consider those exhibits, and to the extent that they conflict with the allegations in the complaint, the exhibits control.18 The elements of an intentional infliction of emotional distress claim are: “‘(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.’”19 Here, opinion in Williams v. DeKalb County, __ Ga. App. __ (Case No. A22A0508) addresses affidavits attached to an answer and would not control here

2022We can consider those exhibits, and to the extent that they conflict with the allegations in the complaint, the exhibits control.4 The elements of an intentional infliction of emotional distress claim are: “‘(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.’”5 Here, although the argument was not raised below,6 the trial court dismissed Mayorga’s 3 See, e.g., Walker v. Walker, 293 Ga. App. 872, 874-875 (2) (b

2022Hardaway, 267 Ga. at 426 (1) (citation omitted).

2022Hardaway, 267 Ga. at 426 (1) (citation omitted).

2022We can consider those exhibits, and to the extent that they conflict with the allegations in the complaint, the exhibits control.18 The elements of an intentional infliction of emotional distress claim are: “‘(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.’”19 Here, opinion in Williams v. DeKalb County, __ Ga. App. __ (Case No. A22A0508) addresses affidavits attached to an answer and would not control here

2022We can consider those exhibits, and to the extent that they conflict with the allegations in the complaint, the exhibits control.18 The elements of an intentional infliction of emotional distress claim are: “‘(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.’”19 Here, opinion in Williams v. DeKalb County, __ Ga. App. __ (Case No. A22A0508) addresses affidavits attached to an answer and would not control here

2018“The essential elements of a claim of negligent misrepresentation are (1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown; (2) such persons’ reasonable reliance upon that false 12 TMC points to Kight v. MCG Health, 296 Ga. 687 ( 769 SE2d 923 ) (2015), to support its argument that it was permitted to place on lien on the entire amount.

2018“The essential elements of a claim of negligent misrepresentation are (1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown; (2) such persons’ reasonable reliance upon that false 12 TMC points to Kight v. MCG Health, 296 Ga. 687 ( 769 SE2d 923 ) (2015), to support its argument that it was permitted to place on lien on the entire amount.

2012Co., 197 Ga. 1, 2-3 ( 28 SE2d 280 ) (1943); Travelers Ins.

2012Co., 197 Ga. 1, 2-3 ( 28 SE2d 280 ) (1943); Travelers Ins.

2012The Workers’ Compensation Act was enacted “as a humanitarian measure providing relief to the injured employee and protecting employers from excessive damage awards.”5 Specifically, the act was created to provide financial assistance to injured employees who suffer “injury by accident arising out of and in the course of [their] employment.”6 In such cases, the burden of proof is on the claimant to establish the essential elements of his claim, including the fact that the accident arose out of and in the course of his employment.7 The claimant is aided in his burden by the well-established presu

2012The Workers’ Compensation Act was enacted “as a humanitarian measure providing relief to the injured employee and protecting employers from excessive damage awards.”5 Specifically, the act was created to provide financial assistance to injured employees who suffer “injury by accident arising out of and in the course of [their] employment.”6 In such cases, the burden of proof is on the claimant to establish the essential elements of his claim, including the fact that the accident arose out of and in the course of his employment.7 The claimant is aided in his burden by the well-established presu

2012"The essential elements of a claim of negligent misrepresentation are...: (1) the defendant's negligent supply of false information to foreseeable persons, known or unknown; (2) such persons' reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance." (Punctuation and footnote omitted.) Futch v. Lowndes County, 297 Ga.App. 308, 312 (4), 676 S.E.2d 892 (2009).

2012"The essential elements of a claim of negligent misrepresentation are...: (1) the defendant's negligent supply of false information to foreseeable persons, known or unknown; (2) such persons' reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance." (Punctuation and footnote omitted.) Futch v. Lowndes County, 297 Ga.App. 308, 312 (4), 676 S.E.2d 892 (2009).

2009Arbee v. Collins, 219 Ga. App. 63, 66 ( 463 SE2d 922 ) (1995).

2009Arbee v. Collins, 219 Ga. App. 63, 66 ( 463 SE2d 922 ) (1995).

1998Vanacore v. Citizens Bank, 228 Ga. App. 87, 89 ( 491 SE2d 181 ) (1997); OCGA § 51-9-11.

1998Vanacore v. Citizens Bank, 228 Ga. App. 87, 89 ( 491 SE2d 181 ) (1997); OCGA § 51-9-11.

1996The omission of the express requirement for the State to plead essential “facts” “invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned.” (Citations and punctuation omitted.) Dept. of Human Resources v.

1996The omission of the express requirement for the State to plead essential “facts” “invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned.” (Citations and punctuation omitted.) Dept. of Human Resources v.

1994Foodmax v. Terry, supra. Further, the “distraction doctrine” provides no assistance to Williams’ claims because, at best, this distraction was self-induced {Red-ding v. Sinclair Refining Co., 105 Ga. App. 375, 378-379 ( 124 SE2d 688 )), and she claims to have been distracted by the very activity that brought her to the restaurant.

1994Foodmax v. Terry, supra. Further, the “distraction doctrine” provides no assistance to Williams’ claims because, at best, this distraction was self-induced {Red-ding v. Sinclair Refining Co., 105 Ga. App. 375, 378-379 ( 124 SE2d 688 )), and she claims to have been distracted by the very activity that brought her to the restaurant.