O.C.G.A. § 51-1-8 (2019)
Parris v. State Farm Mut. Auto
Ins. Co., 229 Ga. App. 522, 494 S.E.2d 244 (1997). Failure to prove any out-of-pocket economic damages. - In a dispute between a franchisor of daycare businesses and its franchisee, the trial court erred by denying the franchisor’s motion for directed verdict on the franchisee’s claims for negligent misrepresentation and negligence under O.C.G.A. § 51-1-6 because the franchisee failed to prove that the franchisee suffered any out-of-pocket economic damages as a result of the alleged misrepresentations, which was an essential element to such claims. Legacy Academy, Inc. v. Doles-Smith Enters., 337 Ga. App. 575, 789 S.E.2d 194 (2016). Pleading and Practice Sufficiency of complaint. - Petition alleging that the defendant company and named agents and servants thereof, falsely and fraudulently impersonated the plaintiff, invaded the plaintiff ’s right of privacy, the plaintiff ’s right to the exclusive use of the plaintiff ’s own name, represented the plaintiff as betraying confidence and giving secret and confidential prices to a competitor of those who gave the prices, caused the plaintiff ’s time and that of the plaintiff ’s employees to be consumed, subjected the plaintiff to embarrassment and chagrin, and caused the plaintiff to be held in contempt and ridicule by the plaintiff ’s business associates, all for the express purpose of advancing the interest of the company set out a cause of action. Goodyear Tire & Rubber Co. v. Vandergriff, 52 Ga. App. 662, 184 S.E. 452 (1936). When the injuries alleged appear to have resulted entirely from fright or shock, unaccompanied by physical contact, in order to set forth a cause of action it is necessary to show either that the injuries were the natural and proximate result of the fright or shock, that this result was or should have been foreseen with reasonable certainty by the defendant, and that the act was one of such gross carelessness, coupled with a knowledge of the probably physical results as
Pleading and Practice (Cont’d) amount to willful disregard of the consequences; or that the fright was brought about by the deliberate and malicious intention on the part of the defendant to injure the plaintiff. Towler v. Jackson, 111 Ga. App. 8, 140 S.E.2d 295 (1965). In a suit challenging a court’s electronic filing fee system, the trial court did not err when the court granted the motion to dismiss the plaintiff ’s claims because none of the statutes or rules cited by the plaintiff provided a private cause of action for damages arising from any violation of the respective statute or rule. Best Jewelry Mfg. Co. v. Reed Elsevier Inc., 334 Ga. App. 826, 780 S.E.2d 689 (2015), cert. denied, 2016 Ga. LEXIS 286 (Ga. 2016). Amendment of complaint. - Original petition, when measured by the provisions of the principles of law announced in former Code 1933, §§ 105-101, 105-103, and 105-106 (see now O.C.G.A. §§ 51-1-1, 51-1-6, and 51-1-11), set out a plaintiff and a defendant and a specific cause of complaint sufficiently to be amendable, since if the petition was defective in any wise, it was only in that it omitted to allege sufficiently facts essential to raise the duty or obligation in the cause of action, and the trial court erred in holding that there was not enough in the original petition to amend by. Cannon v. Hood Constr. Co., 91 Ga. App. 20, 84 S.E.2d 604 (1954). Construction with federal law. - Because an express cause of action already existed as part of a remedial scheme set out by the U.S. Congress under the Vocational Rehabilitation Act (VRA), 29 U.S.C. § 794 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the plaintiff may not recover O.C.G.A. § 51-1-6 for any alleged violations of subject legal duties. Cruet v. Emory Univ., 85 F. Supp. 2d 1353 (N.D. Ga. 2000). Because the breach of legal duty complained of by a title processor against the state vehicle title processing agency employees was under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the ADA provided a remedial scheme and thus the processor’s claim under O.C.G.A. § 51-1-6 was duplicative;
O.C.G.A. § 51-1-6 allowed an individual to assert a tort claim for the violation of a legal duty when a cause of action did not otherwise exist. Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004). Removal to federal court appropriate. - Removal to a federal court of an action brought under O.C.G.A. § 51-1-6 was appropriate when the plaintiff ’s claim ultimately hinged on the interpretation of federal law under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Jairath v. Dyer, 961 F. Supp. 277 (N.D. Ga. 1996). Pleading violation of statute as negligence per se. - Plaintiff may rely upon an act or omission as constituting negligence as a matter of fact under the circumstances, or upon the violation of a statute as amounting to negligence per se or as a matter of law; furthermore, the facts may be so pled as to show negligence of both classes in the same action. Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948). O.C.G.A. § 33-24-44 governed the cancellation of insurance policies but did not govern the termination of insurance agents which may have had the ancillary effect of terminating an insurance policy, and the court could not reasonably conclude that the retroactive termination of the financial planner was the harm § 33-24-44 was intended to guard against. Therefore, the financial planner did not allege a viable negligence per se claim and the negligence claims against the insurance company were required to be dismissed. Rosen v. Protective Life Ins. Co., No. 1:09-cv-03620-WSD, 2010 U.S. Dist. LEXIS 50392 (N.D. Ga. May 20, 2010). Notice requirement. - Denial of summary judgment based on any type of tortious interference with a contractual right to exercise an option to purchase was in error since both the original and the amended complaint revealed a lack of compliance with the notice requirement regarding any alleged tortious interference of contract. Bowling v. Gober, 206 Ga. App. 38, 424 S.E.2d 335 (1992). Failure to prove out-of-pocket economic damages. - Because franchisees failed to prove out-of-pocket economic
damages as a result of alleged misrepresentations in offering materials regarding the franchise’s projected cash flow, the franchisor’s motions for directed verdict and j.n.o.v. on claims for negligent misrepresentation and negligence under O.C.G.A. § 51-1-6 should have been granted. Legacy Academy, Inc. v. Doles-Smith Enters., 337 Ga. App. 575, 789 S.E.2d 194 (2016). Summary judgment erroneously denied. - In a personal injury action alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., a trial court erred by denying summary judgment to a county director of public works because the consumer who tripped and fell was not disabled and, therefore, was not within the class of persons protected by the ADA. Newman v. Johnson, 319 Ga. App. 307, 733 S.E.2d 520 (2012). Summary judgment properly granted to hospital. - Trial court properly granted summary judgment in favor of the hospital on an anesthesiologist’s claim for breach of the hospital’s bylaws because the anesthesiologist unilaterally
made the decision not to return to work and, therefore, a summary suspension was never imposed and within a day or two of making that decision, the anesthesiologist cancelled malpractice coverage, which disqualified the anesthesiologist from having hospital privileges under the bylaws. Rowell v. Phoebe Putney Mem. Hosp., Inc., 338 Ga. App. 603, 791 S.E.2d 183 (2016). Failure to exhaust administrative remedies. - Medical group’s claim that a health maintenance organization was liable to the group in tort under O.C.G.A. § 51-1-6 based upon the group’s breach of a legal duty to comply with Georgia’s Any Willing Provider Statute, O.C.G.A. § 33-20-16, was procedurally barred by the failure to exhaust administrative remedies by first submitting the group’s dispute to the Georgia Insurance Commissioner pursuant to O.C.G.A. § 33-20-30. Northeast Ga. Cancer Care, LLC v. Blue Cross & Blue Shield of Ga., Inc., 297 Ga. App. 28, 676 S.E.2d 428 (2009), cert. denied, No. S09C1241, 2009 Ga. LEXIS 805 (Ga. 2009).
Annotations
RESEARCH REFERENCES Am. Jur. 2d. - 74 Am. Jur. 2d, Torts, § 10 et seq. Am. Jur. Proof of Facts. - Intentional Spoliation of Evidence, 18 POF3d 515. Am. Jur. Trials. - Defense of Claim Brought Under the Americans with Disabilities Act, 49 Am. Jur. Trials 171. C.J.S. - 86 C.J.S., Torts, § 8 et seq. ALR. - Liability of street railway company to passenger struck by a vehicle not subject to its control, 1 ALR 953; 12 ALR 1371; 31 ALR 572; 44 ALR 162. Liability for injury to child playing on or in proximity to automobile, 1 ALR 1385; 44 ALR 434. Liability of one contracting to make repairs for damages from improper performance of the work, 1 ALR 1654; 44 ALR 824. Liability for damage to other premises from fire in building where inflammable materials are stored, 5 ALR 1378. Liability of railroad company for inter-
ference with fire department while attempting to extinguish fire, 5 ALR 1651. Violation of statute or ordinance regulating movement of vehicles as affecting violator’s right to recover for negligence, 12 ALR 458. Violation of statute or ordinance in relation to explosives as ground of action in favor of one injured in person or proper by explosion, 12 ALR 1309. Liability for death of, or injury to, one seeking to rescue another, 19 ALR 4; 158 ALR 189; 166 ALR 752. Question of proximate cause as affecting liability for damages for failure to obtain telephone connection, 19 ALR 1419. Sense of shame, or other disagreeable emotion on part of female, as essential to an aggravated or indecent assault, 27 ALR 859. Purpose in starting business to injure another as ground of action by latter, 27 ALR 1417.
Liability in damages for inducing the discharge of employee, 29 ALR 532. Liability of one who makes a certificate or report, to third person who acts in reliance thereon, 34 ALR 67; 68 ALR 375. Applicability to civil case of provision of penal statute creating a presumption of prima facie case, 43 ALR 959. Civil rights and liabilities as affected by failure to comply with regulations as to registration of automobile or motorcycle, or licensing of operator, 43 ALR 1153; 54 ALR 374; 58 ALR 532; 61 ALR 1190; 78 ALR 1028; 87 ALR 1469; 111 ALR 1258; 163 ALR 1375. Liability for damage or injury by contact with structure above the surface of the street or highway, 46 ALR 943; 49 ALR 993. Duty of public utility to notify patron in advance of temporary suspension of service, 52 ALR 1078. Liability of one creating dangerous condition in street or highway as affected by removal of the safeguard by a third person, 62 ALR 500. Liability of carrier for injury to own passenger on its line through negligence of another carrier permitted to use its tracks, 74 ALR 1178. Marital or parental relation between plaintiff and member of partnership as affecting right to maintain action in tort against partnership or partners, 81 ALR 1106; 101 ALR 1231. Liability for leaving contract forms accessible to stranger who, by forgery, gives such forms apparent authenticity as completed contracts, 85 ALR 83. Civil liability of bank officer or director permitting deposit after insolvency of bank, 87 ALR 1402. Increase in insurance rates or loss of opportunity to obtain insurance in consequence of another’s tort as ground of liability, 92 ALR 1205. Liability of municipality for injury or damage by automobile colliding with temporary obstruction in connection with alteration or repair of street, 100 ALR 1386. Loss or theft of passenger’s ticket or other token of right to transportation as affecting rights and duties of carrier and passenger, 127 ALR 222. Liability for injury to child by automo-
bile left unattended in street or highway, 140 ALR 538. Civil and criminal liability of soldiers, sailors, and militiamen, 143 ALR 1530. Unauthorized prosecution of suit in name of another as ground of action in tort, 146 ALR 1125. Rights and remedies as between originator of uncopyrighted advertising plan or slogan, or his assignee, and another who uses or infringes the same, 157 ALR 1436. Liability for injury as affected by interference by outside agency with object, other than automobile, abandoned or temporarily left in public street or park, 158 ALR 880. Liability of irrigation district for damages, 160 ALR 1165. Customary or statutory signal from train as measure of railroad’s duty as to warning at highway crossing, 5 ALR2d 112. Breach of assumed duty to inspect property as ground of liability for damage or injury to third person, 6 ALR2d 284. Liability of publisher for mistake in advertisement, 10 ALR2d 686. Duty and liability of carrier to intoxicated passenger while en route, 17 ALR2d 1085. Liability of parent or person in loco parentis for personal tort against minor child, 19 ALR2d 423; 41 ALR3d 904. Liability for injury to property occasioned by oil, water, or the like flowing from well, 19 ALR2d 1025. Liability of seller of firearm, explosive, or highly inflammable substance to child, 20 ALR2d 119; 75 ALR3d 825; 95 ALR3d 390; 4 ALR4th 331. Liability of gas company for injury or damage due to defects in service lines on consumer’s premises, 26 ALR2d 136. Seller’s or manufacturer’s liability for injuries as affected by buyer’s or user’s allergy or unusual susceptibility to injury from article, 26 ALR2d 963. Shipper’s liability to consignee or his employee injured while unloading car because of improper loading, 35 ALR2d 609. Liability of filling station operator, garageman, or the like, in connection with servicing vehicle with lubricants or fuel, 38 ALR2d 1453. Duty of landowner to erect fence or
other device to deter trespassing children from entering third person’s property on which dangerous condition exists, 39 ALR2d 1452. Liability of architect or engineer for improper issuance of certificate, 43 ALR2d 1227. Liability for injury or damage resulting from fire started by use of blowtorch, 49 ALR2d 368. Liability of public accountant, 54 ALR2d 324; 46 ALR3d 979. Right to damages for exclusion from membership in social or fraternal organization, 59 ALR2d 1290. Duty and liability of vehicle drivers within parking lot, 62 ALR2d 288. Liability and suability, in negligence action, of state highway, toll road, or turnpike authority, 62 ALR2d 1222. Liability of owner or operator to adult trespasser in or on motor vehicle or equipment, 65 ALR2d 798. Liability of one drawing an invalid will, 65 ALR2d 1363. Liability to patron of scenic railway, roller coaster, or miniature railway, 66 ALR2d 689. Liability of person permitting child to have gun, or leaving gun accessible to child, for injury inflicted by the latter, 68 ALR2d 782. Amusements: liability for injury from slide or chute, 69 ALR2d 1067. Liability for injury or damage from escaping refrigerant, 74 ALR2d 894. Air carrier’s liability for injury to passenger from changes in air pressure, 75 ALR2d 848. Liability of taxicab carrier to passenger injured while boarding vehicle, 75 ALR2d 988. Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, as affecting negligence actions, 75 ALR2d 1062. Liability of manufacturer or seller for injury caused by domestic or industrial soaps, detergents, cleansers, polishes, and the like, 79 ALR2d 482. Liability for property damage caused by vibrations, or the like, without blasting or explosion, 79 ALR2d 966. Railroad’s liability for crossing collision as affected by fact that train or engine was backing or engine was pushing train, 85 ALR2d 267.
Modern status of rule requiring actual knowledge of latent defect in leased premises as prerequisite to landlord’s liability to tenant injured thereby, 88 ALR2d 586. Liability of owner or operator of theater or other place of amusement to patron injured by condition of or defect in lavatory, restroom, or toilet facilities, 88 ALR2d 1090. Failure of signaling device at crossing to operate, as affecting railroad company’s liability, 90 ALR2d 350. Liability for failure to rescue seaman who has gone overboard, 91 ALR2d 1032. Duty of proprietor toward visitor upon premises on private business with or errand or work for employee, 94 ALR2d 6. Tests of causation under Federal Employers’ Liability Act or Jones Act, 98 ALR2d 653. Liability of owner or operator of automobile for injury to one assisting in extricating or starting his stalled or ditched car, 3 ALR3d 780. Receiver’s personal liability for negligence in failing to care for or maintain property in receivership, 20 ALR3d 967. Liability for injury or death of child social guest, 20 ALR3d 1127. Invasion of privacy by use of plaintiff ’s name or likeness in advertising, 23 ALR3d 865. Employer’s misrepresentation as to prospect, or duration, of employment as actionable fraud, 24 ALR3d 1412. Premises liability: Proceeding in the dark on inside steps or stairs as contributory negligence, 25 ALR3d 446. Liability in tort for interference with attorney-client or physician-patient relationship, 26 ALR3d 679. Bailee’s duty to insure bailed property, 28 ALR3d 513. Liability of corporate directors or officers for negligence in permitting conversion of property of third persons by corporation, 29 ALR3d 660. Right to recover damages in negligence for fear of injury to another, or shock or mental anguish at witnessing such injury, 29 ALR3d 1337. Application of rule of strict liability in tort to person rendering services, 29 ALR3d 1425; 100 ALR3d 1205. Liability in connection with fire or ex-
plosion incident to bulk storage, transportation, delivery, loading, or unloading of petroleum products, 32 ALR3d 1169. Public disclosure of person’s indebtedness as invasion of privacy, 33 ALR3d 154. Duty of one other than carrier or employer to render assistance to one for whose initial injury he is not liable, 33 ALR3d 301. Landlord’s liability for damage to tenant’s property caused by water, 35 ALR3d 143. Modern status of the rule absolving a possessor of land of liability to those coming thereon for harm caused by dangerous physical conditions of which the injured party knew and realized the risk, 35 ALR3d 230. Surveyor’s liability for mistake in, or misrepresentation as to accuracy of, survey of real property, 35 ALR3d 504. Aviation: helicopter accidents, 35 ALR3d 707. Tort liability of public schools and institutions of higher learning for accident occurring during school athletic events, 35 ALR3d 725. Tort liability of public schools and institutions of higher learning for accidents associated with chemistry experiments, shopwork, and manual or vocational training, 35 ALR3d 758. Liability in connection with fire or explosion of explosives while being stored or transported, 35 ALR3d 1177. Tort liability of public schools and institutions of higher learning for accidents occurring during use of premises and equipment for other than school purposes, 37 ALR3d 712. Liability for injury consequent upon spraying or dusting of crop, 37 ALR3d 833. Liability of product endorser or certifier for product-cause injury, 39 ALR3d 181. Landowner’s right to relief against pollution of his water supply by industrial or commercial waste, 39 ALR3d 910. Liability for alleged negligence of independent servicer or repairer of aircraft, 41 ALR3d 1320. Landlord’s liability for failure to protect tenant from criminal activities of third persons, 43 ALR5th 207. Liability of public accountant to third parties, 46 ALR3d 979.
Liability in damages for withholding corpse from relatives, 48 ALR3d 240. Civil liability of undertaker in connection with embalming or preparation of body for burial, 48 ALR3d 261. Employer’s knowledge of employee’s past criminal record as affecting liability for employee’s tortious conduct, 48 ALR3d 359. Liability of hospital for injury caused through assault by a patient, 48 ALR3d 1288. Liability of oil and gas lessee or operator for injuries to or death of livestock, 51 ALR3d 304. Liability for damage to highway or bridge caused by size or weight of motor vehicle or load, 53 ALR3d 1035; 31 ALR5th 171. Unsolicited mailing, distribution, house call, or telephone call as invasion of privacy, 56 ALR3d 457. Liability of hospital, other than mental institution, for suicide of patient, 60 ALR3d 880. Tort or statutory liability for failure or refusal of witness to give testimony, 61 ALR3d 1297. May action for malicious prosecution be predicated on defense or counterclaim in civil suit, 65 ALR3d 901. Liability for injury or death of minor or other incompetent inflicted upon himself by gun made available by defendant, 75 ALR3d 825. Liability of hospital or similar institution for giving erroneous notification of patient’s death, 77 ALR3d 501. Violation of OSHA regulation as affecting tort liability, 79 ALR3d 962. Liability of estate for tort of executor, administrator, or trustee, 82 ALR3d 892. Tort liability for wrongfully causing one to be born, 83 ALR3d 15; 74 ALR4th 798. Liability of one treating mentally afflicted patient for failure to warn or protect third persons threatened by patient, 83 ALR3d 1201. Publication of address as well as name of person as invasion of privacy, 84 ALR3d 1159. Accountant’s malpractice liability to client, 92 ALR3d 396. Products liability: toys and games, 95 ALR3d 390.
Liability for interference with lease, 96 ALR3d 862. Liability for interference with invalid or unenforceable contracts, 96 ALR3d 1294. Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 ALR3d 528; 62 ALR4th 16. Liability for negligently causing arrest or prosecution of another, 99 ALR3d 1113. When statute of limitations begins to run as to cause of action for development of latent industrial or occupational disease, 1 ALR4th 117. Liability of one who sells gun to child for injury to third party, 4 ALR4th 331. Liability of parent for injury to unemancipated child caused by parent’s negligence--modern cases, 6 ALR4th 1066. Insurer’s tort liability for wrongful or negligent issuance of life policy, 37 ALR4th 972. Liability to adult social guest injured otherwise than by condition of premises, 38 ALR4th 200. Modern status of intentional infliction of mental distress as independent tort; ‘‘outrage’’, 38 ALR4th 998. State’s liability to one injured by improperly licensed driver, 41 ALR4th 111. Personal injury or property damage caused by lightning as basis of tort liability, 46 ALR4th 1170. Social host’s liability for injuries incurred by third parties as a result of intoxicated guest’s negligence, 62 ALR4th 16. Liability for personal injury or property damage caused by unauthorized use of automobile which had been parked with keys removed from ignition, 70 ALR4th 276. Intentional spoliation of evidence, interfering with prospective civil action, as actionable, 70 ALR4th 984. Tort liability for nonmedical radiological harm, 73 ALR4th 582. Rescue doctrine: liability of one who negligently causes motor vehicle accident for injuries to person subsequently attempting to rescue persons or property, 73 ALR4th 737. Liability of proprietor of private gymnasium, reducing salon, or similar health club for injury to patron, 79 ALR4th 127.
Violation of governmental regulations as to conditions and facilities of swimming pools as affecting liability in negligence, 79 ALR4th 461. Liability for interference with physician-patient relationship, ALR4th 845. Liability in tort for interference with attorney-client relationship, 90 ALR4th 621. Franchisor’s tort liability for injuries allegedly caused by assault or other criminal activity on or near franchise premises, 2 ALR5th 369. Liability of travel publication, travel agent, or similar party for personal injury or death of traveler, 2 ALR5th 396. Application of statute of limitations to actions for breach of duty in performing services of public accountant, 7 ALR5th 852. Breach of assumed duty to inspect property as ground for liability to third party, 13 ALR5th 289. Motorist’s liability for signaling other vehicle or pedestrian to proceed, or to pass signaling vehicle, 14 ALR5th 193. Financing agency’s liability to purchaser of new home or structure for consequences of construction defects, 20 ALR5th 499. Liability for injury to customer from object projecting into aisle or passageway in store, 40 ALR5th 135. Liability of independent accountant to investors or shareholders, 48 ALR5th 389. Social host’s liability for death or injuries incurred by person to whom alcohol was served, 54 ALR5th 313. Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 ALR5th 535. Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress - ethnic, racial, or religious harassment or discrimination, 19 ALR6th 1. Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress - sexual harassment, sexual discrimination, or accusations concerning sexual conduct or orientation, 20 ALR6th 1. Invasion of privacy by use of plaintiff ’s name or likeness in advertising - Consent and waiver, 13 A.L.R.7th 4.
What constitutes ‘‘service animal’’ and accommodation thereof, under Americans
with Disabilities Act (ADA), 75 A.L.R. Fed. 2d 49.