O.C.G.A. § 51-1-2 (2019)

Annotations

Law reviews. - For article, ‘‘The Georgia Jury and Negligence: The View from the Bench,’’ see 26 Ga. L. Rev. 85 (1992). For case note, ‘‘Lynch v. Waters: Tolling Georgia’s Statute of Limitations for Medical Malpractice,’’ see 38 Mercer L. Rev. 1493 (1987).

For comment on Austin v. Smith, 96 Ga. App. 659, 101 S.E.2d 169 (1958), concerning gross negligence in relation to gratuitous automobile guest, see 20 Ga. B. J. 552 (1958). For comment on Planter’s Elec. Membership Corp. v. Burke, 98 Ga. App. 380, 105 S.E.2d 787 (1958), see 22 Ga. B. J. 249 (1959). For comment on Thomas v. Shaw, 217 Ga. 688, 124 S.E.2d 396 (1962), see 25 Ga. B. J. 221 (1962).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION APPLICABILITY TO SPECIFIC CASES 1. AUTOMOBILES 2. CONTRACTORS 3. DANGEROUS INSTRUMENTALITIES 4. RAILROADS 5. SPEECH 6. UTILITIES 7. EMERGENCY SITUATIONS 8. MISCELLANEOUS FORESEEABILITY JOINT TORT-FEASORS SPECIAL CHARACTERISTICS OF TORT-FEASOR STATUTORY VIOLATION AS NEGLIGENCE PER SE PLEADING AND PRACTICE

JURY INSTRUCTIONS NEGLIGENCE AS JURY QUESTION 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, 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 (1962). 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 (1880); Central R.R. & Banking Co. v. Ryles, 84 Ga. 420, 11 S.E. 499 (1890). 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). 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). Cited in Southern Ry. v. Rundle, 37 Ga. App. 272, 139 S.E. 830 (1927); Western & A.R.R. v. Roberson, 44 Ga. App. 736, 162 S.E. 842 (1932); Cain v. State, 55 Ga. App. 376, 190 S.E. 371 (1937); Edwards v. Atlanta, B. & C.R.R., 63 Ga. App. 212, 10 S.E.2d 449 (1940); Eidson v. Felder, 69 Ga. App. 225, 25 S.E.2d 41 (1943); Tinley v. F.W. Woolworth Co., 70 Ga. App. 390, 28 S.E.2d 322 (1943); Ergle v. Davidson, 70 Ga. App. 704, 29 S.E.2d 445 (1944); Bryant v. S.H. Kress & Co., 76 Ga. App. 530, 46 S.E.2d 600 (1948); Irwin v. Torbert, 204 Ga. 111, 49 S.E.2d 70 (1948); Pettit v. Stiles Hotel Co., 97 Ga. App. 137, 102 S.E.2d 693 (1958); Emory Univ. v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958); Hines v. Bell, 104 Ga. App. 76, 120 S.E.2d 892 (1961); Slaughter v. Slaughter, 122 Ga. App. 374, 177 S.E.2d 119 (1970); Blair v. Manderson, 126 Ga. App. 235, 190 S.E.2d 584 (1972); O’Pry v. Goodman, 132 Ga. App. 191, 207 S.E.2d 674 (1974); Fox v. First Nat’l Bank, 145 Ga. App. 1, 243 S.E.2d 291 (1978); Sneider v. Crider, 148 Ga. App. 385, 251 S.E.2d 315 (1978); Walton v. United States, 484 F. Supp. 568 (S.D. Ga. 1980); Johnson v. Landing, 157 Ga. App. 313, 277 S.E.2d 307 (1981); Holmes v. Worthey, 159 Ga. App. 262, 282 S.E.2d 919 (1981); Getz Servs., Inc. v. Perloe, 173 Ga. App. 532, 327 S.E.2d 761 (1985); Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 499 S.E.2d 722 (1998); Rosenfeld v. Rosenfeld, 286 Ga. App. 61,

General Consideration (Cont’d) 648 S.E.2d 399 (2007). 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). 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, 201 Ga. App. 904, 412 S.E.2d 853 (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), aff ’d, 2007 U.S. App. LEXIS 28793 (11th Cir. 2007). 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 direc-

Applicability to Specific Cases (Cont’d) 2. Contractors (Cont’d) tives, 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), aff ’d, 2007 U.S. App. LEXIS 28793 (11th Cir. 2007). 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), aff ’d, 2007 U.S. App. LEXIS 28793 (11th Cir. 2007). 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, 2007 Ga. LEXIS 205 (Ga. 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, 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), aff ’d, 660 F.2d 531 (5th Cir. 1981). 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), aff ’d, 660 F.2d 531 (5th Cir. 1981). 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

Applicability to Specific Cases (Cont’d) 6. Utilities (Cont’d) 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, 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. 2d 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), aff ’d, 660 F.2d 531 (5th Cir. 1981). 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), aff ’d, 660 F.2d 531 (5th Cir. 1981); 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), aff ’d, 660 F.2d 531 (5th Cir. 1981); 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), aff ’d, 660 F.2d 531 (5th Cir. 1981). 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

Foreseeability (Cont’d)

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).

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).

Special Characteristics of Tort-feasor

Statutory Violation as Negligence Per Se

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).

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.

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

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