O.C.G.A. § 51-1-6 (2019)

Annotations

Cross references. - Liability for acts of intoxicated persons, § 51-1-40. Law reviews. - For article, ‘‘Labor and Employment Law,’’ see 53 Mercer L. Rev. 349 (2001). For annual survey on torts, see 64 Mercer L. Rev. 287 (2012). For comment on Buttrum v. Buttrum, 98 Ga. App. 226, 105 S.E.2d 510 (1958), holding that an unemancipated minor child may maintain an action in tort against a parent for personal injuries provided that it is a willful and malicious act so cruel as to constitute forfeiture of pa-

rental authority, see 21 Ga. B. J. 559 (1959). For comment on Cox v. DeJarnette, 104 Ga. App. 664, 123 S.E.2d 16 (1961), allowing recovery in tort from the liability insurance policy of a charity, see 14 Mercer L. Rev. 463 (1963). For comment on Williams v. Hospital Auth., 119 Ga. App. 626, 168 S.E.2d 336 (1969), see 6 Ga. St. B. J. 209 (1969). For comment on Parker v. Vaughan, 124 Ga. App. 300, 183 S.E.2d 605 (1971), see 8 Ga. St. B. J. 244 (1971).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION APPLICABILITY TO SPECIFIC CASES 1. DUTY OF CARE IMPOSED 2. BREACH OF LEGAL DUTY PLEADING AND PRACTICE 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). 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

General Consideration (Cont’d) under O.C.G.A. § 51-1-6. Jenkins v. Wachovia Bank, N.A., 314 Ga. App. 257, 724 S.E.2d 1 (2012). 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). 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). 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, cert. denied, 199 Ga. App. 905, 404 S.E.2d 291 (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.), cert. denied, 502 U.S. 855, 112 S. Ct. 167, 116 L. Ed. 2d 130 (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). 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), aff ’d, 660 F.2d 531 (5th Cir. 1981). No duty to warn when knowledge among parties nearly equal. - When

General Consideration (Cont’d) 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), aff ’d, 660 F.2d 531 (5th Cir. 1981). 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), aff ’d, 660 F.2d 531 (5th Cir. 1981). 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 on other grounds, 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), aff ’d, 660 F.2d 531 (5th Cir. 1981). 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, cert. denied, 188 Ga. App. 913, 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.), cert. denied, 502 U.S. 855, 112 S. Ct. 167, 116 L. Ed. 2d 130 (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.), cert. denied, 502 U.S. 855, 112 S. Ct. 167, 116 L. Ed. 2d 130 (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). 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). Cited in Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 193 S.E. 347 (1937); Donaldson v. Great Atl. & Pac. Tea Co., 186 Ga. 870, 199 S.E. 213 (1938); Sikes v. Foster, 74 Ga. App. 350, 39 S.E.2d 585 (1946); Hamby v. Edmunds Motor Co., 80 Ga. App. 209, 55 S.E.2d 743 (1949); Dale Elec. Co. v. Thurston, 82 Ga. App. 516, 61 S.E.2d 584 (1950); Studdard v. Evans, 108 Ga. App. 819, 135 S.E.2d 60 (1964); Giacalone v. Tuggle, 141 Ga. App. 123, 232 S.E.2d 589 (1977); Oden & Sims Used Cars, Inc. v. Thurman, 250 Ga. App. 709, 301 S.E.2d 673 (1983); Hodges v. Tomberlin, 170 Ga. App. 842, 319 S.E.2d 11 (1984); Sofet v. Roberts, 185 Ga. App. 451, 364 S.E.2d 595 (1987); Marcoux v. Fields, 195 Ga. App. 573, 394 S.E.2d 361 (1990); Jairath v. Dyer, 154 F.3d 1280 (11th Cir. 1998); Sakas v. Settle Down Enters., Inc., 90 F. Supp. 2d 1267 (N.D. Ga. 2000); Project Control Servs., Inc. v. Reynolds, 247 Ga. App. 889, 545 S.E.2d 593 (2001); Draper v. Reynolds, 278 Ga. App. 401, 629 S.E.2d 476 (2006); Ellison v. Southstar Energy Servs., LLC, 298 Ga. App. 170, 679 S.E.2d 750 (2009); Baker v. Harcon, Inc., 303 Ga. App. 749, 694 S.E.2d 673 (2010); Pulte Home Corp. v. Simerly, 322 Ga. App. 699, 746 S.E.2d 173 (2013); Gobran Auto Sales, Inc. v. Bell, 335 Ga. App. 873, 783 S.E.2d 389 (2016). 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 com-

Applicability to Specific Cases (Cont’d) 1. Duty of Care Imposed (Cont’d) mence at that time. Kokomo Rubber Co. v. Anderson, 33 Ga. App. 241, 125 S.E. 783 (1924). 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, 110 Am. St. R. 157, 1 L.R.A. (n.s.) 1178 (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), answer conformed to, 128 Ga. App. 319, 196 S.E.2d 475 (1973). 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 (S.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, cert. denied, 205 Ga. App. 901, 421 S.E.2d 731 (1992). 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). 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). 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). 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 Veter-

ans 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 (1993). 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). 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., 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). 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 (1967). 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 (1967). 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

Applicability to Specific Cases (Cont’d) 2. Breach of Legal Duty (Cont’d) against. Combs v. Atlanta Auto Auction, Inc., 287 Ga. App. 9, 650 S.E.2d 709 (2007), cert. denied, 2008 Ga. LEXIS 156 (Ga. 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, 2008 Ga. LEXIS 156 (Ga. 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, 7 L.R.A. (n.s.) 926 (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. 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). 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.

Applicability to Specific Cases (Cont’d) 2. Breach of Legal Duty (Cont’d) 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). 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). 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 cre-

ate a cause of action and the right to seek damages under O.C.G.A. §§ 51-1-6 and