O.C.G.A. § 51-1-9 (2019)

Annotations

Law reviews. - For note advocating recognition of interspousal tort actions for personal injuries during coverture, see 14 Mercer L. Rev. 434 (1963). For note, ‘‘Torts - Parental Immunity in a Modern Perspective,’’ see 4 Ga. St. B. J. 142 (1967). For note tracing the development in the United States and Australia of recovery for negligently inflicted mental distress arising from peril or injury to another, see 26 Emory L.J. 647 (1977). For comment criticizing McDade v. West, 80 Ga. App. 481, 56 S.E.2d 299 (1949), and the former common-law rule denying the wife an action for loss of consortium, see 1 Mercer L. Rev. 316 (1950). For comment suggesting grant of right of action to wife for loss of consortium with husband, in light of McDade v. West, 80 Ga. App. 481, 56 S.E.2d 299 (1949), see 12 Ga. B. J. 330 (1950). For

comment on Brown v. Georgia Tenn. Coaches, Inc., 88 Ga. App. 519, 77 S.E.2d 24 (1953), allowing wife’s recovery for loss of consortium of husband which resulted from personal injuries to him caused by defendant’s negligence, see 16 Ga. B. J. 335 (1954). For comment on Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956), recognizing child’s right of action for prenatal injuries suffered prior to viability, see 8 Mercer L. Rev. 377 (1957). For comment discussing trend toward allowance of a wrongful death action for death of an unborn child, see 1 Ga. St. B. J. 508 (1968). For comment suggesting reconsideration of Georgia’s parental immunity doctrine in light of Gibson v. Gibson, 3 Cal. 3d 909, 92 Cal. Rptr. 288, 479 P.2d 648 (1971), see 22 Mercer L. Rev. 803 (1971).

TORTS JUDICIAL DECISIONS ANALYSIS

GENERAL CONSIDERATION TORTS TO WIFE TORTS TO CHILD TORTS TO SERVANT General Consideration O.C.G.A. § 51-1-9 is a declaration of the common law. Collins v. Martin, 157 Ga. App. 45, 276 S.E.2d 102 (1981); Ireland Elec. Corp. v. Georgia Hwy. Express, Inc., 166 Ga. App. 150, 303 S.E.2d 497 (1983); McBride v. GMC, 737 F. Supp. 1563 (M.D. Ga. 1990). Intentional infliction of emotional distress. - To sustain a cause of action for intentional infliction of emotional distress through the use of abusive or obscene language, the defendant’s conduct must have been so abrasive or obscene as to naturally humiliate, embarrass, frighten, or outrage the plaintiff, and the alleged emotional distress must be so severe that no reasonable person could be expected to endure it. Williams v. Voljavec, 202 Ga. App. 580, 415 S.E.2d 31 (1992). There is no right of action in one spouse against another for personal tort not involving any property right, and this is true regardless of the fact that the tort is wantonly and maliciously inflicted. Wright v. Wright, 85 Ga. App. 721, 70 S.E.2d 152 (1952). Applicable statute of limitation. - Section 9-3-31, providing a four-year limitation for actions based on injury to personalty, applies to actions for loss of services under this section. Silvertooth v. Shallenberger, 49 Ga. App. 133, 174 S.E. 365 (1934), overruled on other grounds, Parker v. Vaughan, 124 Ga. App. 300, 183 S.E.2d 605 (1971). Fetal victim of a tort must be born alive in order to seek recovery from the alleged tortfeasor. Peters v. Hospital Auth., 265 Ga. 487, 458 S.E.2d 628 (1995). Cited in McDowell v. Georgia R.R., 60 Ga. 320 (1878); City of Atlanta v. Dorsey, 73 Ga. 479 (1884); King v. Southern Ry., 126 Ga. 794, 55 S.E. 965 (1906); Pinkerton Nat’l Detective Agency, Inc. v. Stevens, 108 Ga. App. 159, 132 S.E.2d 119 (1963);

Smith v. Tri-State Culvert Mfg. Co., 126 Ga. App. 508, 191 S.E.2d 92 (1972); Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 245 S.E.2d 862 (1978); Coley v. M & M Mars, Inc., 461 F. Supp. 1073 (M.D. Ga. 1978); Chance v. Hanson, 160 Ga. App. 329, 287 S.E.2d 57 (1981). Torts to Wife Wife may sue for any injury to her person or reputation. Martin v. Gurley, 201 Ga. 493, 39 S.E.2d 878 (1946). Husband’s suit for injury to wife. - Husband being presumed to be the head of the house and responsible for his wife’s necessary expenses, and being also entitled to the services, society, and consortium of his wife, these are the only proper elements of damage for which the plaintiff may sue in his capacity as husband. Community Gas Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 119 (1952). Wife only has claim for certain direct damages. - Wife’s physical injuries and attendant pain, suffering, and nervous impairment are no part of her husband’s cause of action, nor is her resultant nervousness and impatience, except insofar as it causes a loss of her services to him. Community Gas Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 119 (1952). Wife’s only recourse for recovery of medical expenses is through her husband, and the state of her health and her life expectancy must necessarily therefore be considered in determining the award of damages for her benefit. Old Dominion Freight Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 (1980). Joinder of wife in action by husband is permissible. East Tenn., V. & G.R.R. v. Cox, 57 Ga. 252 (1876). Measure of wife’s medical expense damages. - So long as the law vests only in the husband the right to sue for his wife’s necessary medical expenses, the

correct measure of such damages must allow for the recovery of what the evidence shows to be the anticipated expenditures for necessary and required care of the wife for the expectancy of her life. Old Dominion Freight Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 (1980). Life expectancy tables permitted to calculate damages over time. - Trial courts may instruct the jury to consider mortality tables as to the wife’s life expectancy so as to ascertain what future medical expenses are reasonably certain to accrue as the natural and proximate result of her injuries. Old Dominion Freight Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 (1980). Value of wife’s services is a jury question to be estimated in the light of the evidence and their own observation and experience. Community Gas Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 119 (1952). At common law, wife had no cause of action for loss of consortium. McDade v. West, 80 Ga. App. 481, 56 S.E.2d 299 (1949). Courts now recognize wife’s action for consortium. - Wife has an independent cause of action for loss of consortium due to a negligent injury to her husband. Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga. App. 519, 77 S.E.2d 24 (1953); Lemon v. Bank Lines, 411 F. Supp. 677 (S.D. Ga. 1976), aff ’d, 562 F.2d 1259 (5th Cir. 1977). Consortium action derivative in nature. - Right of the wife to recover for loss of consortium on account of alleged injuries inflicted upon her husband cannot arise unless her right to the consortium has been adversely affected under circumstances giving rise to liability and from which liability attaches. One spouse’s right of action for the loss of the other’s society or consortium is a derivative one, stemming from the right of the other. Armstrong Furn. Co. v. Nickle, 110 Ga. App. 686, 140 S.E.2d 72 (1964). Torts to Child Infant may maintain action for damages on account of any tort committed resulting in damages to the infant, whether the tortious act affects

the parent or not. Kite v. Brooks, 51 Ga. App. 531, 181 S.E. 107 (1935). Child may recover for prenatal injury. - If a child born after an injury sustained at any period of the child’s prenatal life can prove the effect on the child of a tort, the child has a right to recover. Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956). Child generally may not sue parent in tort unless emancipated. - While an unemancipated minor cannot sue a father for a tort to himself, such an action is maintainable if the child was emancipated at the time of the tort and the action. Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338, 183 S.E. 210 (1935). Except that unemancipated child may sue parent for intentional physical harm. - While an unemancipated minor child has no cause of action against a parent for simple negligence, such child may maintain an action for personal injury against a parent for a willful or malicious act, provided it is such an act of cruelty as to authorize forfeiture of parental authority. Wright v. Wright, 85 Ga. App. 721, 70 S.E.2d 152 (1952). Unemancipated infant may recover against employer of the infant’s parent for injuries the infant sustained due to negligence of the parent while acting in the service of the employer, although the child could not maintain an action against the parent for the tortious act. Stapleton v. Stapleton, 85 Ga. App. 728, 70 S.E.2d 156 (1952). Adult child may sue parent for negligence, and it follows that a parent may also sue an adult child. Davis v. Cox, 131 Ga. App. 611, 206 S.E.2d 655 (1974). Statutory right of the parent to sue is merely declaratory of the common law, when such right to recover is, by legal fiction, predicated upon the relation of master and servant, and is limited to the recovery of damages for loss of the child’s services. Bell v. Central R.R., 73 Ga. 520 (1884); Frazier v. Georgia R.R. & Banking Co., 101 Ga. 70, 28 S.E. 684 (1897); Kite v. Brooks, 51 Ga. App. 531, 181 S.E. 107 (1935). Former Code 1933, § 105-108 (see now O.C.G.A. § 51-2-2) was a mere codification of common-law rules, and at common law

Torts to Child (Cont’d) the liability of a father for the torts of his child was the same as the liability of a master for the torts of his servant. Upon that ground was based the right of action given to a father for a tort committed to his child or ward, set forth in former Code 1933, § 105-107 (see now O.C.G.A. § 51-1-9). Stanford v. Smith, 173 Ga. 165, 159 S.E. 666, answer conformed to, 43 Ga. App. 747, 160 S.E. 93 (1931). Right to recover damages for loss of services and medical expenses from tortious injury to minor is in the father. Kite v. Brooks, 51 Ga. App. 531, 181 S.E. 107 (1935); City of Dalton v. Webb, 131 Ga. App. 599, 206 S.E.2d 639 (1974). Action by father. - Father may sue by virtue of this section for injuries to his minor son, as for injuries to a servant, if the son is old enough to render services. Shields v. Yonge, 15 Ga. 349 (1854); Allen v. Atlanta S.R.R., 54 Ga. 503 (1875). Father must suffer such pecuniary damages to recover. - Father cannot maintain a suit for a wrong done to his minor child, unless he has incurred a direct pecuniary injury therefrom, by reason of loss of service or expenses necessarily consequent thereon. Sorrels v. Matthews, 129 Ga. 319, 58 S.E. 819 (1907); Kite v. Brooks, 51 Ga. App. 531, 181 S.E. 107 (1935). Mother of fatherless child may recover for loss of services. City of Albany v. Lindsey, 11 Ga. App. 573, 75 S.E. 911 (1912). There is presumption that infant less than two years old is incapable of performing valuable services. Crenshaw v. Louisville & N.R.R., 15 Ga. App. 182, 82 S.E. 767 (1914). Recovery not permitted for parent’s emotional distress. - Recovery for emotional distress and mental suffering which results from the parent’s learning of injuries to his child or seeing the injured child is not allowed. Cotton States Mut. Ins. Co. v. Crosby, 149 Ga. App. 450, 254 S.E.2d 485 (1979), rev’d on other grounds, 244 Ga. 456, 260 S.E.2d 860 (1979). Parent’s right of action generally derivative. - There is no independent

right of action available to a parent who is not present at an incident in which his child is injured by the negligence of another. Cotton States Mut. Ins. Co. v. Crosby, 149 Ga. App. 450, 254 S.E.2d 485 (1979), overruled on other grounds, 244 Ga. 456, 260 S.E.2d 860 (1979); Posey v. Medical Center-West, Inc., 184 Ga. App. 404, 361 S.E.2d 505, cert. denied, 184 Ga. App. 910, 361 S.E.2d 505 (1987). Emancipated child may recover certain damages in own name. - While ordinarily the cause of action for lost earnings and medical expenses expended is in the father of a minor child, a father may emancipate his minor child, and thereby vest in the child the right through his guardian or by next friend to sue for such damages. Brown v. Seaboard Air Line R.R., 91 Ga. App. 35, 84 S.E.2d 707 (1954). Father loses own right of recovery once vested in child. - While a father may revoke his emancipation of his minor child, once he divests himself of a cause of action for loss of earnings and medical expenses and vests such cause of action in the child by emancipating the child, and the child sues on the cause of action and pursues it to judgment, the father cannot revest the cause of action in himself by revoking his emancipation of the child. Brown v. Seaboard Air Line R.R., 91 Ga. App. 35, 84 S.E.2d 707 (1954). Death of child will not bar action. Chick v. Southwestern R.R., 57 Ga. 357 (1876). Pleadings. - Petition which sets forth a good cause of action for loss of services should not be dismissed because of unnecessary allegations. McCarthy v. Gulf Ref. Co., 26 Ga. App. 665, 107 S.E. 92 (1921). Torts to Servant Application of common-law action per quod servitium amisit. - Common-law action per quod servitium amisit, which supports the master’s recovery against the employer of a tort-feasor for the loss of services of his servant, is applicable to those instances in which the inflicted tort was intentional, with the determination of any liability on behalf of the employer of the tort-feasor who committed the intentional tort being governed

by the applicable rules of the law of agency. Ireland Elec. Corp. v. Georgia Hwy. Express, Inc., 166 Ga. App. 150, 303 S.E.2d 497 (1983). Employer does not have a cause of action against the employer of an alleged tort-feasor for the loss of his employee’s services due to injuries sus-

tained by that employee as a result of the tort-feasor’s negligence. Ireland Elec. Corp. v. Georgia Hwy. Express, Inc., 166 Ga. App. 150, 303 S.E.2d 497 (1983); Risdon Enters., Inc. v. Colemill Enters., Inc., 172 Ga. App. 902, 324 S.E.2d 738 (1984).

OPINIONS OF THE ATTORNEY GENERAL Question of whether child of two years is capable of rendering valuable services to parents is, in the case

of doubt, for the jury. 1948-49 Op. Att’y Gen. p. 617.

RESEARCH REFERENCES Am. Jur. 2d. - 27 Am. Jur. 2d, Employment Relationships, § 355. 59 Am. Jur. 2d, Parent and Child, § 112 et seq. C.J.S. - 41 C.J.S., Husband and Wife, § 239 et seq. 67A C.J.S., Parent and Child, § 350 et seq. ALR. - Liability for misrepresenting age of child to one who, having employed a child below employable age, has incurred liability for injury to him, 1 ALR 302. Necessity of obtaining the husband’s consent to operation on wife, 4 ALR 1531. Liability of electric light or power company for injuries to employee of patron, 9 ALR 174. Right of one spouse to enjoin torts of other, 9 ALR 1066. Avoidance of infant’s release of damages for personal tort, 13 ALR 402. Duty of carrier to guard young children against danger of falling from car, 28 ALR 1035. What items of damage on account of personal injury to infant belong to him and what to parent, 37 ALR 11; 32 ALR2d 1060. Liability of person acting under authority of one spouse for injury to other spouse, 57 ALR 755. Right to recover for death of, or injury to, servant due to his conscious exposure in attempt to save property, 61 ALR 579. Fiction of loss of services as a condition of action for abduction of child, 72 ALR 847. Act or omission which would not support an action for damages by person injured as ground of action by parent or

spouse for consequential damages, 94 ALR 1211. Action by one person for consequential damages on account of injury to another as one for bodily or personal injury within statute of limitations, 108 ALR 525. Authority of next friend or guardian ad litem, or of attorney employed by him, to receive payment or acknowledge satisfaction of judgment in favor of infant, 111 ALR 686. Husband’s right to damages for loss of consortium due to personal injury to wife, 133 ALR 1156. Damages on account of loss of earnings or impairment of earning capacity due to wife’s personal injury as recoverable by her or by her husband, 151 ALR 479. Liability of parent or person in loco parentis for personal tort against minor child, 19 ALR2d 423; 41 ALR3d 904. What items of damage on account of personal injury to infant belong to him, and what to parent, 32 ALR2d 1060. Spouse’s cause of action for negligent personal injury as separate or community property, 35 ALR2d 1199. Right of wife to recover in individual capacity for medical expenses of husband injured by third person’s negligence, 42 ALR2d 843. Employer’s right of action against third person tortiously killing or injuring employee, 57 ALR2d 802. Right of parent or representatives to maintain tort action against minor child, 60 ALR2d 1284; 62 ALR3d 1284. Truant or attendance officer’s liability

for assault and battery or false imprisonment, 62 ALR2d 1328. Liability of landlord to tenant or member of tenant’s family, for injury by animal or insect, 67 ALR2d 1005. Right of recovery over by means of subrogation or similar theory, against a third-person tort-feasor, of an employer who has paid salary, wages, sick leave pay, medical expenses, or the like, to or for an injured employee, 70 ALR2d 475. Family relationship other than that of parent and child or husband and wife between tort-feasor and person injured or killed as affecting right to maintain action, 81 ALR2d 1155. Injured child’s subsequent marriage to tort-feasor as barring parent’s action for medical expense, loss of service, and the like, 91 ALR2d 910. Fact that tort-feasor is member of class of beneficiaries as affecting right to maintain action for wrongful death, 95 ALR2d 585. Conflict of laws as to right of action between husband and wife or parent and child, 96 ALR2d 973. Judgment in spouses’ action for personal injuries as binding, as regards loss of consortium and similar resulting damage, upon other spouse not a party to the action, 12 ALR3d 933. Medical expenses due to injury to wife as recoverable by her or by husband, 21 ALR3d 1113. Spouse’s or parent’s right to recover punitive damages in connection with recovery of damages for medical expenses or loss of services or consortium arising from personal injury to other spouse or to child, 25 ALR3d 1416. Admissibility of evidence of family circumstances of parties in personal injury actions, 37 ALR3d 1082. Liability for prenatal injuries, 40 ALR3d 1222. Conflict of laws as to right of action for loss of consortium, 46 ALR3d 880. Death action by or in favor of parent against unemancipated child, 62 ALR3d 1299. Measure and elements of damages in wife’s action for loss of consortium, 74 ALR3d 805. Right of professional corporation to re-

cover damages based on injury or death of attorney or doctor associate, 74 ALR3d 1129. Carrier’s liability for injury or death of infant passenger as affected by fact that child was in custody of parent or other adult, 74 ALR3d 1171. Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent, 87 ALR3d 849. Liability for child’s personal injuries or death resulting from tort committed against child’s mother before child was conceived, 91 ALR3d 316. Modern status of interspousal tort immunity in personal injury and wrongful death actions, 92 ALR3d 901. Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa, 94 ALR3d 676. Employer’s right of action for loss of services or the like against third person tortiously killing or injuring employee, 4 ALR4th 504. Recovery for loss of consortium for injury occurring prior to marriage, 5 ALR4th 300. Liability of parent for injury to unemancipated child caused by parent’s negligence, 6 ALR4th 1066. Child’s right of action for loss of support, training, parental attention, or the like, against a third person negligently injuring parent, 11 ALR4th 549. Injured party’s release of tort-feasor as barring spouse’s action for loss of consortium, 29 ALR4th 1200. Action for loss of consortium based on nonmarital cohabitation, 40 ALR4th 553. Sexual child abuser’s civil liability to child’s parent, 54 ALR4th 93. Parent’s right to recover for loss of consortium in connection with injury to child, 54 ALR4th 112. When must loss-of-consortium claim be joined with underlying personal injury claim, 60 ALR4th 1174. Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of spouse, 61 ALR4th 309. Recoverability of compensatory damages for mental anguish or emotional distress for tortiously causing another’s birth, 74 ALR4th 798.

Right of child to action against mother for infliction of prenatal injuries, 78 ALR4th 1082. Infliction of emotional distress: toxic exposure, 6 ALR5th 162. Liability of insurer, or insurance agent or adjuster, for infliction of emotional distress, 6 ALR5th 297. Prosecution of mother for prenatal substance abuse based on endangerment of or delivery of controlled substance to child, 70 ALR5th 461. Action by or on behalf of minor child, or

presumed minor child, for loss of parental consortium - impact of other legal concepts and theories of recovery, 6 A.L.R.7th 4. Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - proof, evidentiary considerations, limits of recovery, parties, 5 A.L.R.7th 4. Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - general considerations, 4 A.L.R.7th 1.