O.C.G.A. § 51-7-2 (2019)

Annotations

JUDICIAL DECISIONS Malice improperly defined. - A definition of malice is too broad which makes the offensive nature of the act to the person claimed to be injured, and not the state of mind of the actor, the test. McPherson v. Chandler, 137 Ga. 129, 72 S.E. 948 (1911). General malice actionable. - O.C.G.A. § 51-7-2 provides that malice may be general as well as personal, and when the record showed that the defendant bore a general ill will toward anyone who, like plaintiff, used a road crossing on the plaintiff ’s property without permis-

sion, rational jurors could properly infer malice. Branson v. Donaldson, 206 Ga. App. 723, 426 S.E.2d 218 (1992). Malice can be inferred when there is a total absence of probable cause and, thus, the element of malice in an action for false arrest could not be considered until the issue of probable cause was resolved by the jury. Simmons v. Kroger Co., 218 Ga. App. 721, 463 S.E.2d 159 (1995), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008). Malice required for malicious pros-

ecution action. - Judgment on claim of forgery was reversed because the defendant’s reliance on the bare allegations of the affidavit of the payee on the check without taking any steps to verify the information in it created a fact issue for the jury about whether the defendants’ acts were wanton or were done with a reckless disregard for or a conscious indifference to the rights of the plaintiff and, thus, whether the defendants acted with the malice necessary to support a malicious prosecution action. McClelland v. Courson’s 441 South Station, Inc., 248 Ga. App. 170, 546 S.E.2d 300 (2001). Summary judgment precluded by factual issues. - Summary judgment was properly denied on a parent’s false arrest claim under O.C.G.A. § 51-7-1 arising out of an accusation by store employees that the parent’s nine-year-old child stole from the store because whether an arrest took place when employees led the child back into the store to be questioned about the alleged theft, whether the employees had probable cause to do so under O.C.G.A. § 51-7-3, and whether the employees acted maliciously under O.C.G.A. § 51-7-2 were issues of fact to be resolved by a jury. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008). Trial court erred in denying a police officer summary judgment as to the arrestees’ malicious prosecution claim because that claim was barred by official immunity when the officer’s actions against the arrestees did not show malice

but were an effort to restrain the arrestees and control an uncertain situation; one of the arrestees approached the officer and began arguing with the officer while the officer was speaking to a suspect in custody, and when the arrestee reached into the truck to retrieve the arrestee’s purse, the officer was concerned for the officer’s safety. Valades v. Uslu, 301 Ga. App. 885, 689 S.E.2d 338 (2009), cert. denied, No. S10C0803, 2010 Ga. LEXIS 519 (Ga. 2010); overruled on other grounds by Harrison v. McAfee, 2016 Ga. App. LEXIS 417 (Ga. Ct. App. 2016). Cited in Stewart v. Mulligan, 11 Ga. App. 660, 75 S.E. 991 (1912); Pollard v. Phelps, 56 Ga. App. 408, 193 S.E. 102 (1937); Kitchens v. Jefferson County, 85 Ga. App. 902, 70 S.E.2d 527 (1952); Godfrey v. Home Stores, Inc., 101 Ga. App. 269, 114 S.E.2d 202 (1960); City of Hawkinsville v. Wilson & Wilson, Inc., 231 Ga. 110, 200 S.E.2d 262 (1973); Deavers v. Standridge, 144 Ga. App. 673, 242 S.E.2d 331 (1978); Hayes v. Irwin, 541 F. Supp. 397 (N.D. Ga. 1982); Barber v. H & H Muller Enters., Inc., 197 Ga. App. 126, 397 S.E.2d 563 (1990); Northern Telecom, Inc. v. Wilkerson, 219 Ga. App. 710, 466 S.E.2d 221 (1995); Willis v. Brassell, 220 Ga. App. 348, 469 S.E.2d 733 (1996); Franklin v. Consolidated Gov’t, 236 Ga. App. 468, 512 S.E.2d 352 (1999); Woodward v. Gray, 241 Ga. App. 847, 527 S.E.2d 595 (2000); Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 532 S.E.2d 463 (2000); Stanford v. City of Manchester, 246 Ga. App. 129, 539 S.E.2d 845 (2000); Fleming v. U-Haul Co., 246 Ga. App. 681, 541 S.E.2d 75 (2000).

RESEARCH REFERENCES Am. Jur. 2d. - 52 Am. Jur. 2d, Malicious Prosecution, § 45 et seq. C.J.S. - 54 C.J.S., Malicious Prosecution, § 53 et seq. ALR. - Pleading good faith or lack of malice in mitigation of damages in action

for false arrest or imprisonment, 49 ALR2d 1460. Defendant’s state of mind necessary or sufficient to warrant award of punitive damages in action for false arrest or imprisonment, 93 ALR3d 1109.