Tort Law - Leighton Moore

• Publication year: 2003

Tort Lawby Leighton Moore^*

During the period covered by this Article, developments in Georgia tort law were mainly attributable to the appellate courts. Full-scale legislative tort reform was not accomplished in the 2003 session, although it is likely to occur next year. The general assembly passed reforms to civil practice that had some impact on tort law, but these did not go into effect until July 2003, and thus fall outside the scope of this Article.¹ In contrast, both the supreme court and the court of appeals rendered important, even controversial, decisions in tort law. By its nature, a survey article cannot probe at length the factual intricacies, historical pedigree, or analytical subtleties of every legal authority that takes effect within the relevant period. This Article presents synopses of selected decisions, with some analysis, grouped by subject for ease of reference.

I. Grounds of Liability

A. Construction—Liability of Builder

The Georgia Supreme Court has defined the accrual date, for the limitations period of O.C.G.A. section 9-30-3(a), for actions against a builder for negligent construction.² in Colormatch Exteriors, Inc. v. Hickey,³ the court held that a plaintiff who has purchased new construction from a builder may bring a negligent construction or strict liability action against the builder within four years of the date of original purchase, despite the ordinary rule that a negligent construction action accrues on the date when construction is substantially complete.⁴ If the ordinary rule were applied in a case in which the builder still owned the property on the date of substantial completion, the cause of action would accrue before there was any possible plaintiff.⁵ The court also held that the limitations period for plaintiffs' products liability action against the manufacturer of allegedly defective building material began to run when construction was substantially complete because the builder-owner would have had a cause of action against the manufacturer at that time.⁶ This decision affirms the general principle that a cause of action accrues for statute of limitations purposes when, and only when, someone would be able to sue and recover for the particular injury.⁷ Colormatch merely concerns a sensible application of that principle to facts relating to a builder-owner.

B. Conversion and Trover

The Georgia Supreme Court clarified the requirements of a trover action when the property, which was allegedly converted by the defendant, is funds on deposit with a bank.⁸ In Decatur Auto Center v. Wachovia Bank, N.A. ,⁹ plaintiff (Decatur Auto) had a commercial checking account with the defendant, Wachovia. Plaintiff issued a check to a third party on the understanding that it would not be immediately deposited. Nevertheless, the third party immediately deposited the check at its bank and the depositary bank presented the check to Wachovia for payment. After initially returning the check for insufficient funds, Wachovia paid it upon a second presentment and debited plaintiff's account. By then, however, plaintiff had paid the amount of the check directly to the third party, told the depositary bank's representative that the underlying debt had been paid and that plaintiff was entitled to the return of its check, and ordered Wachovia to stop payment. When Wachovia declined to recredit plaintiff's account, plaintiff sued Wachovia in trover and obtained summary judgment in the trial court.¹⁰

The court of appeals reversed.¹¹ In that court's view, plaintiff could not bring trover against a bank for wrongfully paying out his deposited funds.¹² Trover is an action to recover specifically identifiable personal property that a defendant has converted.¹³ Funds on deposit with a bank are not specifically identifiable because the bank deposit process is merely the creation of a creditor-debtor relationship.¹⁴ The depositor is not entitled to the return of the same, specific funds he deposited with the bank.¹⁵ Rather he is entitled to have the bank pay to him, or to his order, the amount he deposited according to the terms of his account.¹⁶ Thus the court of appeals held that the specific property could not be identified for purposes of trover.¹⁷ In reaching this conclusion, the court of appeals relied in part on a 104-year-old decision of the supreme court.¹⁸

The Georgia Supreme Court (Justice Benham alone dissenting) reversed the decision of the court of appeals.¹⁹ The supreme court held that a checking customer may recover in trover for conversion of a check without identifying specific currency in the bank's possession.²⁰ Among other authorities, the supreme court cited numerous earlier opinions of the court of appeals in which actions were allowed for conversion of checks or amounts deposited.²¹ It is important to note that the action here was for conversion of the check itself, not the deposited funds. The case, therefore, does not mean that a plaintiff can sue for conversion of deposited funds whenever a bank pays a check over a stop-payment order. Rather, it stands for the narrow proposition that when the check itself is sufficiently identified, the plaintiff's failure to identify specific currency in the account does not preclude recovery for conversion of the check.²²

Another noteworthy decision relating to conversion is Page v. Braddy.²³ A landowner sued a neighbor for trespass and conversion, alleging that defendant erroneously directed a timber purchaser to cut some trees that stood on plaintiffs' side of the property line. The trial court found that defendant was liable, but that no damages could be awarded because there was insufficient evidence to determine how many trees had been cut at defendant's direction, as opposed to those the purchaser cut on his own initiative.²⁴ The court of appeals affirmed, noting that there was no claim for nominal damages for trespass, nor for equitable relief.²⁵ Rather, plaintiffs sought to recover the whole value of the timber taken from their property but provided no principle on which to apportion the damages between defendant and the purchas-er.²⁶

C. Dram-Shop Liability

The Georgia Supreme Court held in Northside Equities, Inc. v. Hulsey²⁷ that scientific evidence of a drunk driver's blood-alcohol content may create a material issue of fact sufficient to defeat summary judgment on the issue of whether the drunk driver was noticeably intoxicated within the meaning of the Dram Shop Act.²⁸ Plaintiff in Northside Equities was the mother of a girl killed in an auto accident by defendant's employee, Greene. Greene had consumed five or six drinks at work. At the time of the accident, two hours after Greene left work, she had a blood-alcohol content of .18 grams percent. Defendant moved for summary judgment, supporting its motion with several affidavits of employees stating that Greene was not noticeably intoxicated at work. Plaintiff countered by introducing the affidavit of an expert on blood-alcohol concentration. Plaintiff's expert opined that a person with the blood-alcohol level that Greene probably had when she left work (about .21 grams percent) would manifest signs of intoxication.²⁹ The court emphasized that the issue was not whether liability should be imposed, but whether plaintiff should have a chance to argue the issue to a jury.³⁰

Chief Justice Fletcher, writing for the three dissenting justices, argued that the court was essentially replacing the "noticeably intoxicated" standard with an "actually intoxicated" standard because it did not require the expert's affidavit to conclude how Greene probably appeared the last time Northside served her alcohol.³¹ The expert's affidavit stated generally that the average woman might exhibit various signs of intoxication at the blood-alcohol level Greene had, but failed to describe these signs with more particularity and gave no reason to believe that Greene resembled the average woman.³² In the dissenters' view, the jury would not be authorized to infer from what the average woman would do to what Greene must have done, at least when that conclusion contradicts the testimony of all the witnesses who actually observed Greene at the relevant time.³³ The dissenting justices argued that the rule adopted by the majority expands the dram shop owner's liability beyond the legislature's intent.³⁴

D. Identity Theft

In Blakey v. Victory Equipment Sales, Inc.,³⁵ the court of appeals reviewed the sufficiency of various claims made by a victim of identity theft.³⁶ The court affirmed a grant of summary judgment to the two companies whose unwitting dealings with the impostor resulted in damage to the victim.³⁷ Blakey's neighbor bought a truck from Victory Equipment Sales, using Blakey's name and credit information. The purchase was financed by Navistar Financial Corporation. Blakey filed a broad complaint against Victory and Navistar, asserting the following claims: conversion, invasion of privacy through false light, invasion of privacy through appropriation, tortious interference with business relations, fraud, violation of Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act,³⁸ ratification, mental pain and suffering, and punitive damages.³⁹ The court of appeals affirmed the trial court's grant of summary judgment on all these claims.⁴⁰ This case is useful precisely because plaintiff attempted so many theories—quite a natural strategy to use in a relatively undeveloped area of the law. This strategy gave the court of appeals an opportunity to consider and reject various ways a plaintiff might attempt to recover the costs of identity theft from persons other than the perpetrator.

E. Medical Malpractice

In Breyne v. Potter,⁴¹ the court of appeals addressed whether a patient's intervening choice breaks the chain of proximate causation between a doctor's negligent medical advice and medical procedures chosen by the patient in reliance on that advice.⁴² Defendant, an obstetrician, admittedly...