Torts - Cynthia Trimboli Adams and Charles R. Adams, Iii

Publication year1994

Tortsby Cynthia Trimboli Adams* and Charles R. Adams III**

Who can be wise, amazed, temperate and furious,

Loyal and neutral, in a moment? No man.1

Macbeth may have feigned this plight as he covered up his foul murder of Ring Duncan, but it precisely describes the survey writer's dilemma. Some of the legal theories advanced in survey period cases were as arcane as the contents of the witches' cauldron.2 Some of the holdings were as unsettling as Banquo's ghost at the feast.3 And, as always, the accumulation of cases was as inexorable as Birnam Wood's advance to Dunsinane.4 In our endeavor to carve out the decisions of significance, we have perforce wielded a hand as bloody as that of the evil Lady Macbeth herself.5 If the result is less than Shakespearean, perhaps the reader will yet find enough drama herein to refrain from according it Macbeth's own grim self-epitaph: "[I]t is a tale/Told by an idiot, full of sound and fury/Signifying nothing."6

I. Intentional Torts

A. Sexual Harassment

In Mathews v. Anderson,7 a federal district court stated without explanation or citation of authority that "[p]laintiff's assertion that Georgia recognizes the tort of sexual harassment is incorrect."8 Although no Georgia case has explicitly addressed the viability of such a cause of action,9 a number of decisions have implictly allowed it.10 For example, in Troutman v. B.C.B. Co.,11 the court of appeals denied a punitive damages claim against an employer of a man accused of sexual harassment, but did so in language that "assumfed] . . . that the [employer] should have known about [the employee's] reputation for sexual harassment . . . ."12 Also, in Collins v. DOT,13 the en banc court of appeals recognized that Georgia superior courts have nisi prius jurisdiction over sexual harassment claims brought pursuant to federal law ("Title VII").14 The court allowed plaintiff in that case to add the Title VII claim to her original action15 "seeking damages in tort for sexual harassment."16

From the existing authorities, therefore, ample warrant appears for maintaining a common-law tort claim for sexual harassment in Georgia. It would, however, be helpful if the appellate courts would clarify the exact parameters of this tort in an appropriate case.

B. Conversion

Once again, the court of appeals resisted the siren call to expand the tort of conversion,17 this time to include intangible property interests. In Southern Cellular Telecom, Inc. v. Banks,1 * plaintiff asked the court to extend the Georgia law of conversion to hold that her minority interest in a corporation was subject to a conversion claim.19 "We are not persuaded by [plaintiff's] argument," said the court.20 "Conversion is not available as a cause of action with respect to intangible property representing an interest in a business."21

How can Banks be reconciled with another recent decision, Faircloth v. A.L. Williams & Associates, Inc.?22 In that case, which is discussed in last year's survey,23 the court of appeals stated that

It would seem that the gist of the tort is an act of hostile dominion or appropriation, and is not merely a matter of whether the property appropriated was tangible or intangible. The line is very fuzzy in modern times. Today, many forms of property may be evidenced only by a notation in a computer, but it is property nevertheless.24

Concluding that the sales commissions at issue in the case were not subject to a conversion claim, the court in Williams adhered to "the present rule that conversion involves chattels, not failure to pay money owed under a contract. . . ."25 Perhaps the two cases can be reconciled if there is no such thing as an "intangible chattel." Is there?

II. Negligence

A. Premises Liability

In General. In Lipham v. Federated Department Stores, Inc.,2e the supreme court confirmed the distinction the court of appeals recognized earlier in Wade v. Mitchell27 between premises liability cases involving a static condition on the premises and cases involving the defendant's active negligence.28 In Lipham plaintiff went to the parking lot of the mall in which defendant's store was located to take her usual morning constitutional. She was not there as a customer. Plaintiff detoured from her walk to observe a defendant-sponsored competition game that was taking place in a roped-off area of the mall parking lot, and stood directly behind a male employee of defendant who was participating in the event. The employee, unaware of plaintiff's presence, turned around very quickly, and unintentionally knocked plaintiff to the ground.29 Reversing a divided court of appeals,30 the supreme court held that plaintiff's status on the property as a licensee or invitee "is irrelevant and does nothing to diminish [defendant's] general duty of care towards [plaintiff]."31

Premises liability in some instances is regulated by statute. For example, in the Recreational Property Act ("RPA"),32 the legislature limited the liability of the owners of recreational property who make the property available to the public for recreational purposes at no charge.33 Such a property is the somewhat tarnished (from overuse) crown jewel of Georgia's Golden Isles, Jekyll Island. The Jekyll Island State Park Authority maintains recreational facilities on Jekyll Island, and charges persons arriving by automobile on the island a "parking fee" upon entry. Plaintiff in Majeske v. Jekyll Island State Park Authority,34 a vacationer on Jekyll Island, was injured when she stepped off a footwalk bridge maintained by the Island Authority.35 She contended the one dollar "parking fee" was in reality an admission charge, and the RPA should not apply. The court of appeals disagreed and affirmed summary judgment for defendant.36 Because the fee was charged per vehicle, regardless of the number of occupants, and no fee was charged for anyone entering the island by other means, it was not imposed in return for the recreational use of the land, and the RPA's immunity applied.37

Sometimes plaintiff's seek to hold defendants liable seemingly on the strength of nothing more than their mere ownership of premises. Courts typically rebuff such attempts, holding that "[t]he duty imposed [on a landowner] is to exercise reasonable care to prevent foreseeable injury, not to protect against any injury."38 Thus, during the survey period, the courts turned away attempts to impose liability on landowners for an adult drowning39 or becoming paralyzed40 in a swimming pool, for injuries to a contractor's invitee during surrender of the premises to the contractor,41 and for injuries sustained by a falling gutter when the end that fell was attached to another building over which the landowner had no control.42

The question sometimes turns on what duties, if any, the landowner has assumed toward the premises in question. This arises frequently in analyzing the landowner's statutory duty to "keep the premises and approaches safe."43 If the owner has not exercised or assumed any rights in the "approach" greater than or different from those exercised by the public at large, he will typically not have any greater duty therein.44 What constitutes an "approach" occupied a divided supreme court in yet another Jekyll Island case, Motel Properties, Inc. v. Miller.45 Reversing the court of appeals decision discussed in last year's survey,46 the high court decided four to three that the rip-rap bordering the Jekyll beach did not constitute an "approach" to defendant's Comfort Inn, even though defendant had a sidewalk that extended 200 feet out from its hotel, across state property, and stopped only 27 feet short of the boulders.47 Plaintiff, a hotel guest who was unfamiliar with the beach at Jekyll Island, decided to go for a night-time stroll on the beach. He walked to the end of defendant's sidewalk, continued on across the sand, and was injured when he fell on the boulders. It was undisputed that defendant provided no illumination or warnings about the presence of the boulders.48

The court of appeals, relying on Todd v. F.W. Woolworth Co.,49 found the existence of a jury question based on defendant's right and obligation to illuminate the boulders or at least to post a warning sign.50 The supreme court stated that "[w]e were not called upon in Todd to address the issue present in this case, i.e., what physically constitutes an approach . . . ."51 The supreme court preceded to "construe 'approaches' to mean that property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier .... By 'contiguous, adjacent to, and touching,' we mean that property within the last few steps taken by invitees . . . as they enter or exit the premises."52 Of course, as the court recognized, the owner can enlarge the approaches "by some positive action on his part, such as constructing a sidewalk, ramp, or other direct approach,"53 but that was not the case here. Accordingly, said the court, this was "at best ... an approach to an approach,"54 and defendant, therefore, was not liable.

Presiding Justice Hunt's cogent dissent argued the definition of "approach" should not turn on a "measurement of physical distance," but, as in Todd, on "the nature of the owner's relationship to the approach and rights in that approach; implicit in these considerations is the relationship between the business, the approach and the invitee's reason for using the approach."55 Part of what defendant's invitees pay for is access to the beach, and defendant provided the walk solely for that purpose. Thus, distance is irrelevant, because "one who leaves the motel on this path can have only one destination . . . ."56 Appropriately, Judge Cloud Morgan's dissent "express [es] sympathy for the trial judges of this state who may be called upon at some future date to apply th[is] rule...."57

Several recent decisions found the existence of a jury issue on the question of the owner's liability...

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