OFFICIAL CODE OF GEORGIA ANNOTATED 2013 Supplement IncludingActs ofthe 2013 Regular Session ofthe General Assembly Prepared by The Code Revision Commission The Office ofLegislative Counsel and The Editorial Staff ofLexisNexis® Published Under Authority ofthe State ofGeorgia Volume 39 2000 Edition Title 51. Torts Including Notes to the Georgia Reports and the GeorgiaAppeals Reports Place in Pocket of Corresponding Volume of Main Set LexisNexis® Charlottesville, Virginia Copyright © 2001—2013 BY The State of Georgia All rights reserved. ISBN 978-0-327-11074-3 (set) ISBN 978-0-327-14509-7 5015930 (Pub.41805) THIS SUPPLEMENT CONTAINS Statutes: All laws specifically codified by the General Assembly ofthe State of Georgia through the 2013 Regular Session ofthe General Assembly. Annotations of Judicial Decisions: Case annotations reflecting decisions posted to LexisNexis® through March 29, 2013. 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American Jurisprudence, Pleading and Practice. American Jurisprudence, ProofofFacts. American Jurisprudence, Trials. Corpus Juris Secundum. Uniform Laws Annotated. American Law Reports, First through Sixth Series. American Law Reports, Federal. Tables: In Volume 41, a Table Eleven-A comparing provisions of the 1976 Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table Eleven-B comparing provisions of the 1983 Constitution of Georgia to the 1976 Constitution of Georgia. An updated version of Table Fifteen which reflects legislation through the 2013 Regular Session ofthe General Assembly. iii Indices: A cumulative replacement index to laws codified in the 2013 supple- ment pamphlets and in the bound volumes ofthe Code. Contacting LexisNexis®: Visit our Website at http://www.lexisnexis.com for an online book- store, technical support, customer service, and other company informa- tion. Ifyou have questions or suggestions concerning the Official Code of Georgia Annotated, please write or call toll free 1-800-833-9844, fax at 1-518-487-3584, or email us at [email protected]. Di- rect written inquiries to: LexisNexis® Attn: Official Code ofGeorgia Annotated 701 East Water Street Charlottesville, Virginia 22902-5389 IV TITLE 51 TORTS Chap. 1. General Provisions, 51-1-1 through 51-1-53. 2. Imputable Negligence, 51-2-1 through 51-2-7. 3. Liability of Owners and Occupiers ofLand, 51-3-1 through 51-3-31. 4. Wrongful Death, 51-4-1 through 51-4-6. 7. False Arrest, False Imprisonment, Malicious Prosecution, and Abusive Litigation, 51-7-1 through 51-7-85. 11. Defenses to Tort Actions, 51-11-1 through 51-11-21. 12. Damages, 51-12-1 through 51-12-77. 13. Recovery in Medical Malpractice Actions, 51-13-1. 14. Asbestos and Silica Claims, 51-14-1 through 51-14-13. 15. Asbestos Claims, 51-15-1 through 51-15-8. — Cross references. Limited liability For note, "Out With the Old: Georgia forpick-your-ownfarmoperations,T. 2, C. Struggles With Its DatedApproach to the 14, A. 7. — Tort of Negligent Infliction of Emotional Law reviews. For annual survey Distress," see 34 Ga. L. Rev. 349 (1999). article on tort law, see 52 Mercer L. Rev. For note, "Another Brick in the Wall: An 421 (2000). For article, "Defense Against Empirical Look at GeorgiaTort Litigation Outrageandthe Perils ofParasiticTorts," in the 1990s," see 34 Ga. L. Rev. 1049 see 45 Ga. L. Rev. 107 (2010). (2000). CHAPTER 1 GENERAL PROVISIONS Sec. Sec. 51-1-11. When privity required to sup- safety technicians. port action; product liability 51-1-29.1. Liability of voluntary health action and time limitation care provider and sponsoring therefore; industry-wide liabil- organization. ity theories rejected. 51-1-29.2. Liability ofpersons or entities 51-1-20.2. Liability ofchild passenger acting to prevent, minimize, 2013 Supp. T.51, C.l TORTS 51-1-1 Sec. Sec. and repair injury and damage 51-1-37. Negligent or improper admin- resulting from catastrophic istration of polygraph exami- acts ofnature. nation; measure ofdamages. 51-1-29.3. Immunity for operators of ex- 51-1-50. Immunityofbroadcastersfrom ternal defibrillators. liability for Levi's Call: Geor- 51-1-29.4. Liability of voluntary health gia'sAmberAlert Program. care providers and sponsoring 51-1-51. Limitations on liability of liq- organizations; cumulative im- uefied petroleum gas provid- munity; application. 51-1-29.5. Definitions; limitation on ers. health care liability claim to 51-1-52. Federal law payor guidelines gross negligence in emergency and criteria not a legal basis medical care; factors for jury for negligence or standard of consideration. care formedical malpractice or 51-1-30.4. Immunity from liability for of- product liability. ficers providing security at nu- 51-1-53. Recreational joint-use agree- clear facilities. ments. RESEARCH REFERENCES — Am. Jur. Proof of Facts. Liability Governmental Liability for Failure to forAbusive Language, 16 POF2d 493. Maintain Trees Near Public Way, 41 PublicAuthority's Failure to Remove or POF3d 109. Guard Against Ice or Snow on Surface of Governmental Liability for Injury to Highway or Street, 21 POF2d 251. Landowner's Property from Road Con- Insurer's Liability for Emotional Dis- structionActivities on Neighboring Land, tress, 32 POF2d 99. 65 POF3d 311. treIsnst,e4nt3ioPnOaFl2Idnfl1i.ction ofEmotional Dis- Media Outrage, 68 POF3d 179. Intentional Infliction ofEmotional Dis- Proof of Roadside Hazard Case, 71 POF3d tress by Employer, 45 POF2d 249. 1. — Intentional Infliction ofEmotional Dis- Am. Jur. Trials. LightAircraftAcci- tress by Landlord,—46 POF2d 429. dent Litigation, 13 Am. Jur. Trials 557. Debt Collection Intentional Infliction Helicopter Accident Litigation, 22 Am. ofEmotional Distress, 47 POF2d 357. Jur. Trials 517. Emotional Distress by Schoolteacher or Midair Breakup ofV-Tail Bonanza Air- Administrator, 18 POF3d 103. craft, 33Am. Jur. Trials 561. Emotional Distress Caused by Fear of Malfunction and Loss ofSpacecraft, 43 Future Disease, 24 POF3d 273. Am. Jur. Trials 293. Establishing Liability ofa State or Lo- cal Highway Administration, Where In- Civil Consequences of Criminal Con- duct, 51 Am. Jur. Trials 337. jury Results from the Failure to Place or Maintain Adequate Highway Signs, 31 Deep Vein Thrombosis and Air Travel, POF3d 351. 95 Am. Jur. Trials 1. 51-1-1. Tort defined. — Law reviews. For annual survey of tortlaw, see 57 MercerL. Rev. 363 (2005). 2013 Supp. 51-1-1 GENERAL PROVISIONS 51-1-1 JUDICIAL DECISIONS Analysis General Consideration Torts Related to Contract General Consideration Cited in Ga. Farm Bureau Mut. Ins. VWihoelnatiaonn oaufcdtuiotnyeerreqsuoiurgehdt. damages C8o4.0v.(2C0r0o3l)e;y,B2r6o3okGva.ieAwppH.ol6d5i9,ng5s8,8LSL.EC.2vd. from the auction company the auctioneer Suarez, 285 Ga. App. 90, 645 S.E.2d 559 worked for and its principal because the (2007). auctioneer was arrested in another state Torts Related to Contract forcontractingandadvertisingforanauc- tion without a license, the auction com- Duty must be imposed by law. pany and principal were entitled to sum- Appellate court rejected an insurer's mary judgment because the auctioneer assertionthatits insured's individual tort didnotshowthe auctioncompanyorprin- claims failed because a tort was the un- cipal violated any duty they owed the lawful violation of a private legal right auctioneer which caused the auctioneer's other than a mere breach of contract, injury, as the auctioneer knew, when the express or implied, as the duties the in- auctioneer advertised and contracted for suredallegedthattheinsurerviolateddid the auctioninthe other state; further, the not arise merely from contract but were auction company did not have a license to also imposed by O.C.G.A. § 33-31-9. conduct an auction in that state, so the J.M.I.C. LifeIns. Co.v.Toole,280Ga.App. auctioneer did not establish the elements 372, 634 S.E.2d 123 (2006). necessary to recover for the auction com- Tort claim encompassed by breach pany's or principal's alleged tortious con- — ofcontract claim. In a case in which duct under O.C.G.A. § 51-1-1. Morris v. a car buyer appealed a district court's Gavin, Inc., 268 Ga. App. 771, 603 S.E.2d entryofsummaryjudgmentinfavorofthe 1 (2004). lender because the buyer's theft claim Bank's allegedactionsinpayingacheck was encompassed by the buyer's overaforged endorsement, depositingthe funds in new accounts, and failing to ob- breach-of-contract claim, it was unneces- serve reasonable commercial standards, sary to address whether the buyer had a werenotviolations ofanylegalrightof, or cause of action under tort law. O.C.G.A. duty owed to, the payee ofthe check who § 51-1-1 provided that a tort was the had never received delivery ofthe check, unlawful violation ofa private legal duty and the payee had suffered no damages other than a mere breach of contract, from these actions. Thus, the actions did express or implied. Goia v. Citifinancial not give rise to a tort claim under Auto, No. 12-12639, 2012 U.S. App. O.C.G.A. §§ 51-1-1, 51-1-6,or51-1-8.Jen- LEXIS 24825 (11th Cir. Dec. 3, 2012) kins v. Wachovia Bank, Nat'l Ass'n, 309 (Unpublished). Ga. App. 562, 711 S.E.2d 80 (2011). Mere nonfeasance of duty insuffi- HUD City's distribution of federal cient. — money. Sincethecity's financingactiv- Trial court erred in granting the defen- ityindistributingfederal HUDmoneydid dants' joint motion for judgment on the not extend beyond that ofa conventional pleadings as a chief executive officer constructionfinancingauthority,thecourt (CEO) set forth a breach offiduciary duty did not err in granting summary judg- claim because, although a majority owner ment to the city in an action for damages ofan employer could terminate the CEO's arising from an incomplete and defective contract without cause, the founders of renovationconstructiontohishomeunder the employer were bound by an employ- a home improvement grant. White v. City ment contract, which purported to estab- ofAtlanta, 248 Ga. App. 75, 545 S.E.2d lish a confidential relationship. Tidikis v. 625 (2001). Networkfor Med. Communs. & Research, 2013 Supp. 51-1-1 TORTS 51-1-2 LLC, 274 Ga. App. 807, 619 S.E.2d 481 ity company, its founders, and a corpora- (2005). tion as a president was attempting to Claim was not for breach of con- treat an unjust enrichment claim like a —tract, but for intention never to pay. tort; a claim for unjust enrichment was Fraud claim survived summary judg- not a tort, but an alternative theory of ment because there was sufficient evi- recoveryifacontractclaimfailed, andthe dence that the corporation promised the parties had a contract and the unjust plaintiff a substantial sum if a certain enrichment claim failed as a matter of manufacturerbegantofactoryfill alineof law. Tidikis v. Network for Med. vehicles with the corporation's synthetic Communs. &Research,LLC, 274Ga.App. oil, that it was reasonable to rely on that 807, 619 S.E.2d 481 (2005). promise, andthatitcouldbeinferredthat Trial court properly entered judgment thecorporationneverhadanyintentionto on the pleadings for a majority owner of "work out"the compensation plan. Morri- an employer on a chiefexecutive officer's son v. Exxonmobil Corp. Constr. Mill- tortious interference with an employment wright, Inc., No. 1:03-CV-140(WLS), 2005 contract claim as the owner had a finan- U.S. Dist. LEXIS 36117 (M.D. Ga. Sept. cial interest in the employer, whichwas a 28, 2005). party to the contract. Tidikis v. Network Claim was not for breach of con- forMed. Communs. & Research, LLC, 274 tract, but for f—raud and breach of Ga. App. 807, 619 S.E.2d 481 (2005). fiduciary duty. In a breach of fidu- Trial court properly entered judgment ciary duty and fraud action, whether the on the pleadings for a majority owner of jury verdict winner, an investment com- an employer on a tortious interference pany, was a party to the three contracts with prospective employment claim that kickbacks were paid under was not brought by a chiefexecutive officer (CEO) relevanttothecontract'sclaimsforbreach as there was no evidence that the CEO offiduciary duty and fraud because those had an employment offer from a corpora- claimswereintort, notcontract. Wrightv. tion; the claim was predicated on the Apt. Inv. & Mgmt. Co., 315 Ga. App. 587, CEO's termination by the employer and 726 S.E.2d 779 (2012). the owner was not a stranger to the em- —Unjust enrichmentclaimnotatort. ployment contract. Tidikis v. Network for Trial court properly granted a judg- Med. Communs. & Research, LLC, 274 ment on the pleadings for a limited liabil- Ga. App. 807, 619 S.E.2d 481 (2005). RESEARCH REFERENCES — ALR. Negligent spoliation of evi- dence, interfering with prospective civil action, as actionable, 101 ALR5th 61. 51-1-2. Ordinary diligence and ordinary negligence defined. JUDICIAL DECISIONS Analysis General Consideration Applicability to Specific Cases 1. Automobiles 2. Contractors 8. Miscellaneous Pleadingand Practice Jury Instructions Negligence as Jury Question 2013 Supp. 51-1-2 GENERAL PROVISIONS 51-1-2 General Consideration collisions andabouttwoarrestsforunder- age drinking, but did not recall the son Affirmative defense of assumption undergoing any alcohol or drug counsel- ofrisk bars the plaintifffrom recover- ing; (2) the mother knew that the son ing on a negligence claim if it is estab- drank in excess; and (3) there was evi- lished that the plaintiff, without coercion dence that the mother knew the son had ofcircumstances, chooses a course of ac- been caught by the father after drinking tionwith full knowledge ofits danger and while exercising a free choice as to and driving. Danforth v. Bulman, 276 Ga. whether to engage in the act or not; a App. 531, 623 S.E.2d 732 (2005). defendant asserting an assumption ofthe 2. Contractors riskdefensemustestablishthattheplain- tiff: (1) had actual knowledge ofthe dan- Nuisance per se. ger; (2) understood and appreciated the Contractors were not liable for the neg- risks associatedwith such danger; and (3) ligent design of a ramp as the Georgia voluntarilyexposed oneselfto those risks. Department ofTransportation (DOT) had Sonesv. Real Estate Dev. Group, Inc., 270 responsibility for the design ofthe ramp, Ga. App. 507, 606 S.E.2d 687 (2004). despite the facts that the DOT gave the Cited in Rosenfeld v. Rosenfeld, 286 contractors nodrawings, thatthe contrac- Ga. App. 61, 648 S.E.2d 399 (2007). tors made suggestions for changes to the ramp, and that the contractors imple- Applicability to Specific Cases mented the DOT's design; there was no 1.Automobiles evidence that the DOT relinquished con- — trolofthedesigntothecontractorsorthat Following too closely. Summary the contract specified that the design of judgment for driver one was affirmed as the rampwas the contractors'responsibil- even though driver one pled guilty to ity. Fraker v. C.W. Matthews Contr. Co., following too closely, causation was not 272 Ga. App. 807, 614 S.E.2d 94 (2005), established since after the aflf'd, 2007 U.S. App. LEXIS 28793 (11th self-contradictory portions of an affidavit Cir. 2007). by a passenger in a car driven by driver Contractors were not liable for the neg- two were eliminated, the evidence only ligently controlling traffic as the Georgia showed that there was a series of colli- Department ofTransportation (DOT) was sions and that driver one caused one of required to place and maintain, or cause thembecause: (1) drivertwotestifiedthat to be placed and maintained, traffic con- numerous collisions occurred behind trol devices and the DOT was responsible driver two's car before it was struck and for approving all traffic control plans be- driver two did not know who caused the fore implementation by a contractor; the collision; (2) after the contradictory por- injured party failed to show that the con- tions of the passenger's affidavit were tractorfailedtoimplementthetrafficcon- eliminated,thepassengerwasalsounable trol devices pursuant to the DOT's direc- to testify about who caused the collision; tives, even though the injured party's (3) two other drivers did not testify that accidentreconstructionexpertanddrivers driver one's actions caused any injury to involved in the accident found the traffic the passenger, driver two, or a second control measures inadequate orimproper. passenger in driver two's car; and (4) Fraker v. C.W. Matthews Contr. Co., 272 driver one's testimony that driver one did Ga. App. 807, 614 S.E.2d 94 (2005), aff'd, not cause any car to collide with driver 2007 U.S. App. LEXIS 28793 (11th Cir. two's car was not contradicted. Hudson v. 2007). — Swain, 282 Ga. App. 718, 639 S.E.2d 319 Work on a public road. Trial court (2006). did not err in sua sponte granting sum- Negligent entrustment. mary judgment to two contractors on an Trial court properly entered summary injured party's allegations of negligent judgment for a mother on an injured par- inspectionoftheroadway,negligentmain- ty's negligent entrustment claim because: tenance of the roadway, and negligent (1) the mother knew about the son's prior work performance by the worksite traffic 2013 Supp. 51-1-2 TORTS 51-1-2 control supervisor; the injured party had judgment to the guest, as the guest had a an opportunity to respond to the contrac- duty to walk in a reasonably prudent tors' claims that they could not be held manner so as to avoid colliding with and liable for the injuries as they had per- injuring fellow pedestrians in the hotel. formed the work, in a non-negligent man- Beardv.AudioVisual Servs., 260Ga.App. ner, pursuant to the Georgia Department 476, 580 S.E.2d 272 (2003). of Transportation's specifications. Fraker Empl—oyer not liable for injuries at v. C.W. Matthews Contr. Co., 272 Ga.App. party. Employer was not liable for the 807, 614 S.E.2d 94 (2005), aff'd, 2007U.S. injuries sustained by a former employee App. LEXIS 28793 (11th Cir.—2007). in a fight with a co-worker as the em- Pest control company. Summary ployer quickly took steps to diffuse any judgment for a pest control company was tension at a party by having an attendee affirmed as although a guest allegedly leave the party almost immediately after bitten by a poisonous spider submitted an the employer learned of the exchange of expert's affidavit that a pest control com- words with the employee and as the two pany breached its standard of care, the fightsoccurredwell aftertheconclusionof guest failed to show actual causation as the party. Snellgrove v. Hyatt Corp., 277 the expert's affidavit was based on pure Ga. App. 119, 625 S.E.2d 517 (2006). speculationthatthe guestwasbittenbya spider that was in the room when the Pleading and Practice guest arrived, and the guest acknowl- Fiduciary and tort duty standards edged that the guest and the guest's com- — panioncouldhavebeenresponsibleforthe are the same. There is no meaningful Mspoitdeelr'Psroepnst.r,anIncce.,i2n8to2 tGhae. Arpopo.m.36D8e,w63v8. fdoirftfhereinnceO.bCe.tGw.eAe.n §t§he1t4w-2o-8s4t2a(nad)a(r2)dsasnedt S.E.2d 753 (2006), cert, denied, 2007 Ga. 51-1-2. Rosenfeld v. Rosenfeld, 286 Ga. LEXIS 205 (Ga. 2007). App. 61, 648 S.E.2d 399 (2007), cert, de- nied, 2007 Ga. LEXIS 613 (Ga. 2007). 8. Miscellaneous Jury Instructions — Forklift. Summary judgment was No charge required where request properly entered for an individual on an — injured party's negligent entrustment was withdrawn. There was no error claimbecause: (1) boththeindividual and in a trial court's failure to give jury in- the driver believed that the driver was structions regarding ordinary negligence entitled to use the forklift; (2) the individ- claims under O.C.G.A. § 51-1-2 as a pa- ual did not have the right to permit or tient'swidow'scounselhadwithdrawnthe prohibit the use of the forklift by the juryinstruction on ordinary negligence in driver; (3) there was no evidence that the order to allow the matter to proceed to individual had actual knowledge that the consideration by the jury on just the is- driver was incompetent or had a known sues ofprofessional negligenceinthewid- habit ofrecklessness; (4) the individual's ow's action, alleging, inter alia, medical uinsdeivoifdtuahle'sforaklcitfutalwasknnoowtleedvigdeentcheatoftthhee vmaalspcrualcatric&e.ThSoargacoincvS.urPgesa.c,hPt.rAe.e, 2C9a7rdGiao.- driver intended to use the forklift in an App. 379, 677 S.E.2d 351 (2009). unsafe manner; and (5) the injured party Negligence as Jury Question couldnotarguethattheindividual should have known thatthe driverwould use the Expert—opinion not supported by forklift in an unsafe way since it was not records. Medicalrecordsthatprovided sufficient for a plaintiffto show construc- no information about the patient's second tiveknowledge. Webbv. Day, 273 Ga.App. visitto the emergencyroom, the timingof 491, 615 S.E.2d 570 (2005). — the discovery of a ruptured appendix, or Dutytofellowpedestrians. Where the exploratory surgery that resulted in avictimwas injured aftercollidingwith a an appendectomyweretoogeneralto sup- hotel guest when exiting an elevator, the port an expert's conclusion that the doc- trial court erred in granting summary tors' conduct proximately caused the pa- 2013 Supp.