Torts
| Publication year | 2012 |
Torts
Phillip Comer Griffeth
Cash V. Morris
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This Article surveys recent developments in Georgia tort law between June 1, 2011 and May 31, 2012.1 Unlike previous years, this Article will not review apportionment of fault under section 51-12-33 of the Official Code of Georgia Annotated (O.C.G.A.) as this issue has garnered such significance so as to require a dedicated article in this edition of the Mercer Law Review?
All lawyers know that "[i]n order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation
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of the alleged injury, and damages resulting from the alleged breach of the duty."3 In establishing duties, counsel should be creative and look to statutes,4 the common law,5 and industry standards and practices6 to provide a basis for a client's recovery.7
But, "[n]o matter how negligent a party may be, if his act stands in no causal relation to the injury, it is not actionable."8 As demonstrated by Wolfe v. Carter,9 in all but the clearest cases, plaintiffs have the burden of proof and must use the compulsory discovery period to obtain and
introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.10
In Wolfe, the Georgia Court of Appeals affirmed the grant of summary judgment to the defendant on plaintiff's claims that smoke, reducing visibility on a highway that contributed to a three-car accident, was the result of a prescribed forest burn by the defendant the day before, one-half mile away.11 Although the plaintiffs search located the only person with a sanctioned burn and showed smoke came from the side of the highway where the burn had occurred, the court rejected this circumstantial evidence as speculative because the plaintiff did not show the location of the burn with respect to the highway; whether the fire was
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extinguished, burning, or capable of producing the complained-of smoke; weather conditions; or exclusion of all other sources.12
Jones v. Fayette Family Dental Care, Inc.13 is a continued reminder that intentional infliction of emotional distress claims, no matter how egregious the underlying conduct, require severe emotional distress to be extreme in order to be actionable. In Jones, the plaintiff, a former dental assistant (Jones) of the defendant dentist (Verdin), brought suit after she allegedly saw Verdin openly masturbating in a public hallway during work hours.14 Affirming the trial court's grant of summary judgment, the Georgia Court of Appeals held that the emotional distress, though unpleasant, was not extreme without report of physical ailments or medical treatment.15
Emotional distress includes all highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that liability arises. The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it.16
With the increasing ubiquity of information technology, it is no surprise that our appellate courts are providing guidance in the application of age-old torts to new questions of privacy, trespass, and speech.17 In Sitton v. Print Direction, Inc.,18 the court of appeals
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heard a plaintiffs (Sitton) appeal from a bench trial awarding damages on Sitton's previous employer's (PDI) counterclaims for breach of duty of loyalty for Sitton's work with a competing commercial printing business while an employee at PDI.19 After the president of PDI (Stanton) learned Sitton was engaged in "outside" work, he entered Sitton's office and moved the mouse on Sitton's personal computer, attached to PDI's network and used for PDI work; in so doing, he discovered e-mails associated with a non-PDI e-mail address that contained evidence Sitton was working for a competitor. After his discharge, Sitton filed suit for invasions of privacy, computer theft, and trespass in violation of O.C.G.A. § 16-9-9320 and common law invasion of privacy.21
Focusing on O.C.G.A. § 16-9-93, the court held that Stanton's actions did not implicate the statute because Stanton did not "take, obtain, or convert Sitton's property (computer theft); delete any computer program or data, obstruct or interfere with a computer program or data, or alter or damage a computer, computer network, or computer program (computer trespass); or examine Sitton's personal data (computer invasion of privacy)."22 Although Stanton viewed Sitton's personal data, the court provided no explanation why this did not trigger the statute. Regardless, the court concluded that each subsection of the statute required the proscribed activities be taken "with knowledge" and "without authority."23 This was not the case here because PDI's employee manual computer usage policy allowed Stanton to inspect non-PDI equipment on which PDI e-mail was stored to respond to a legal inquiry or to investigate "indications of unacceptable behavior."24
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Turning to Sitton's claim for common law invasion of privacy based upon an "intrusion upon [his] seclusion or solitude, or into his private affairs,"25 the court stated that the rule required an "'unreasonable intrusion'. . . involv[ing] a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person's private concerns"26 requiring "a physical intrusion which is analogous to a trespass[.]"27 Clearly, the physicality requirement was not met here, but could be found in a case where "the defendant conducted surveillance on the plaintiff or otherwise monitored [plaintiffs] activities."28 Returning to the employee manual, the court ruled Stanton's investigation, even if considered surveillance, was "reasonable" under the circumstances and in light of the business interests at stake.29
A. Trip & Fall Cases
Knowledge—actual versus constructive—on the part of the tortfeasor continues to be fact-specific. In Landrum v. Enmark Stations, Inc.,30 the Georgia Court of Appeals reversed summary judgment for the defendants because material issues of fact remained—whether the owner had constructive knowledge of an uneven crack in the paved surface of its service station parking lot.31 For an owner to prevail on summary judgment based on the lack of constructive knowledge, the owner must "demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident."32 Because the owner failed to sufficiently establish procedures in place to inspect the parking lot, it was not entitled to summary
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judgment.33 Likewise, in Sanderson Farms, Inc. v. Atkins,34 the appellate court affirmed the trial court's denial of summary judgment for the owner, holding first that a federal food inspector who slipped and fell on a piece of viscera at the owner's chicken processing plant was an invitee,35 and, second, that the owner failed to "introduce any evidence to show adherence to [its] inspection and cleaning procedure on the day of [the] fall."36 Thus, there was sufficient evidence to survive summary judgment on the issue of constructive knowledge.37
In Williams v. GK Mahavir, Inc.,38 the court reversed summary judgment for the defendant-hotel on the issue of whether the owner lacked a reasonable inspection procedure.39 Because employees cleaned the lobby area only if needed, there was no time frame in which an employee was required to walk through-thus no schedule within which the lobby area was inspected-and no particular time that an employee inspected or cleaned the lobby area on the day in question; therefore, the evidence presented a jury question.40 Similarly, in Bradley v. Winn-Dixie Stores, Inc.,41 the appellate court reversed the trial court's grant of summary judgment to the owner, holding that the trial court erroneously applied the rule of Prophecy Corp. v. Charles Rossignol,
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Inc.,42 and when "no contradiction appear[ed] in the deposition testimony offered by [the plaintiff]," her testimony was sufficient proof of constructive knowledge to overcome a summary judgment.43
However, plaintiffs must still carry their burden of proof to show negligence. In Willingham Loan & Realty Co. v. Washington,44 the trial court's denial of summary judgment to the apartment complex owners was reversed when the plaintiff deposed that she "[did not] know what caused [her] to fall" and "adduced no other evidence from which a jury could infer that the owners' alleged negligence in failing to maintain the stairs caused her to fall."45 A "mere possibility" that a defect in the stairs caused the fall was insufficient.46 Similarly, in Paggett v. Kroger Co.47 summary judgment for a gas station was affirmed when the plaintiff showed no evidence of a dangerous condition.48 Further, the plaintiff was not entitled to a spoliation presumption based on the defendant's inability to produce a surveillance video of the station on the day of the fall (merely completing an incident report not necessarily enough).49 "[P]roof of a fall, without more, does not give rise to liability . . . ."50
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The plaintiff's own knowledge can also bar recovery as a matter of law. In Bartlett v. McDonough Bedding Co.,51 the appellate court affirmed summary judgment for the owner of a bedding and antiques shop when the plaintiff failed to exercise ordinary care for his own safety, citing...
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