Torts - Deron R. Hicks and Jacob E. Daly

• Publication year: 2000

Torts by Deron R. Hicks^* and Jacob E. Daly^**

I. Dog Bite

During the 1998-1999 survey period, the Georgia Court of Appeals issued its decision in Supan v. Griffin,¹ which effectively ended the "first bite" rule as it had previously been applied in Georgia in actions for damages arising from a dog bite.² Prior to the decision in Supan, Georgia courts had traditionally held that, until a domesticated animal actually bites a human being, the owner of that animal could not be charged with knowledge of the animal's dangerous propensity. In Supan, however, the court of appeals rejected that narrow rule in favor of a much broader analysis of the animal owner's knowledge of the animal's temperament and disposition.³ In Clark v. Joiner,⁴ the court of appeals reaffirmed the broader analysis adopted in Supan and reversed the trial court's failure to grant summary judgment for defendants.⁵

In Clark plaintiff went to defendants' home to sell defendants an insurance policy. As plaintiff was approaching defendants' home, defendants' dog ran toward plaintiff. Apparently, plaintiff did not view the action of the dog as hostile but as a sign of playfulness. When plaintiff put his hand out to keep the dog from jumping on him, the dog bit plaintiff's hand. The record established that defendants had no knowledge that the dog had previously bitten anyone. Nonetheless, testimony was presented that the dog had previously acted in an aggressive manner toward an animal control officer who had tried to remove a stray dog in heat from under defendants' porch. The record, however, also revealed that defendants were not at home at the time of the incident with the animal control officer and were apparently unaware of the dog's aggressive behavior on that occasion.⁶

According to the court of appeals, "[i]n order to support an action for damages under [section 51-2-7 of the Official Code of Georgia Annotated ("O.C.G.A.")] it must be shown that the dog was vicious or dangerous and that the owner knew it."⁷ Further, "[t]he dog's nature and the owner's knowledge are two separate issues, and proof of both is necessary for recovery."⁸ The court of appeals then noted that Georgia has traditionally adhered to the "first bite" rule in evaluating "whether a dog owner has knowledge that his dog has the propensity to bite someone."⁹ The court acknowledged, however, that recent cases, including Supan, have dealt with "whether the owner had 'prior knowledge of his dog['s] tendency to attack humans' and 'superior knowledge of his dog's temperament.'"¹⁰ Notwithstanding this broader analysis, the court of appeals rejected plaintiff's claim on the basis that plaintiff had failed to introduce any "evidence that this dog had ever bitten anyone before and also . . . introduced no evidence that the dog had a tendency to attack humans or that [defendants] had any knowledge about the dog's temperament that would have put them on notice that the dog would bite someone."¹¹ Accordingly, the court of appeals reversed the decision of the trial court.¹²

The decision in Clark, however, should be contrasted with the decision reached by the Georgia Court of Appeals in Thurmond v. Saffo.¹³ In Thurmond defendants kept their German Shepard-Chow mixed-breed dog on a chain in their garage. Plaintiff, who had known the dog since it was a puppy and had never had any prior problems with the dog, was entering defendants' home through the garage when she was bitten by the dog. As in Clark, there was no evidence that the dog had ever bitten anyone prior to the incident at issue. There was, however, evidence of a prior occurrence in which the dog had walked slowly toward another individual and barked, but the individual involved managed to avoid the dog without incident. Moreover, the individual testified that on the prior occasion the dog did not growl, snap, attack, or bite. In contrast to the facts in Clark, however, the evidence established that defendants had knowledge of the prior incident. The trial court subsequently granted a directed verdict in favor of defendants.¹⁴ The court of appeals reversed.¹⁵

Citing to the decision in Supan, the court of appeals noted that "the true test of liability is the owner's 'superior knowledge of his dog's temperament.'"¹⁶ Based on evidence of the prior incident, the court of appeals held that insofar as defendants were aware that the dog tried to "attack" another person, the jury should have been allowed to determine whether defendants "should have anticipated the subsequent successful attack on [plaintiff]."¹⁷

As in Supan, it is apparent in Thurmond that the court of appeals draws attention to the particular breed of dog at issue. While the decision in Thurmond does not rest in any manner upon a finding that the dog was of a breed known to have dangerous propensities, the court's identification of the breed in its decision—a fact that would otherwise appear to be irrelevant—could be interpreted as a factor that the court may consider in future cases when assessing the owner's knowledge of a dog's propensity to bite.

II. Intentional Infliction of Emotional Distress

Can a claim of intentional infliction of emotional distress rest upon a harsh performance evaluation by an employer when the employer has knowledge of the employee's delicate mental condition at the time of the evaluation? According to the decision of the Georgia Court of Appeals in Jarrard v. United Parcel Service, Inc.,¹⁸ the answer is no.¹⁹

After six weeks of medical leave for psychiatric care, Michael Jarrard returned to his job at United Parcel Service ("UPS").²⁰ On his first day back to work, Jarrard was required to sit through a twenty-minute "stinging evaluation of his job performance at UPS for the three months preceding the leave."²¹ Viewed in a light most favorable to Jarrard, the record established that the supervisor who conducted the performance evaluation knew of Jarrard's prior psychiatric care and smirked during the course of the evaluation, even though Jarrard "repeatedly begged in tears that the evaluation be postponed because of his mental weakness."²² The supervisor also threatened to terminate Jarrard if he left the evaluation and, during the course of the evaluation, questioned Jarrard's loyalty and integrity.²³ Subsequent to the evaluation, Jarrard "experienced a complete mental breakdown from which he has not recovered."²⁴

Jarrard subsequently brought suit against UPS for intentional infliction of emotional distress. The trial court granted UPS's motion for summary judgment, and Jarrard appealed.²⁵ On appeal, the Georgia Court of Appeals affirmed the trial court's grant of summary judgment.²⁶

In affirming the decision of the trial court, the court of appeals first noted that the four essential elements of an action for intentional infliction of emotional distress are as follows: "'(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.'"²⁷ The sole issue on appeal, however, was whether the facts as viewed in a light most favorable to Jarrard satisfied the second element of the test—whether the conduct of Jarrard's employer was sufficiently outrageous.²⁸

According to the court of appeals, as a general rule, derogatory comments in the employment context do not fall within the category of extreme and outrageous conduct.²⁹ In particular, the court of appeals recognized that performance evaluations are an accepted employment practice.³⁰ As a basis for comparison, the court of appeals noted that the termination of an employee, although unquestionably stressful, generally falls outside the definition of extreme and outrageous conduct for purposes of a claim for intentional infliction of emotional distress.³¹ For this reason, the court held the "lesser act" of providing a poor job evaluation would likewise fail to meet this standard.³²

The court of appeals recognized that the employer's knowledge of the employee's particular mental condition may, under appropriate circumstances, be a factor to be considered by the finder of fact in determining whether the conduct was extreme and outrageous.³³ However, the court held that because the underlying conduct—the performance evaluation—is an accepted business practice, the mere fact that the employer knew of the employee's delicate mental condition is not sufficient to sustain a cause of action for intentional infliction of emotional distress.³⁴ As the court of appeals noted,

[T]here is nothing inherently outrageous with subjecting an employee to a straightforward if harsh evaluation of his job performance, regardless of its timing. Forthright evaluations are to be expected, indeed encouraged. Perhaps it is Christmas, and a firing or poor job evaluation would devastate the employee who may be known to be experiencing holiday depression. Such may be poorly timed; it may be tactless and insensitive; it may be rude, inconsiderate, and unkind. But a negative performance review is not innately wrong or outrageous and is certainly less negative than an outright termination, which is not outrageous conduct under Georgia law. Georgia recognizes negative evaluations as one of the common vicissitudes of ordinary life.³⁵

In reaching its decision, the court of appeals noted that much of the argument set forth by plaintiff focused on "evidence of malicious motives of UPS to retaliate for former conflicts between Jarrard and UPS management about demotions, transfers, and following through on company promises."³⁶ The court held, however, that evidence as to malicious intent is relevant "to the first element of the tort (acting intentionally or recklessly) and does not address the second element of whether the conduct was itself extreme and outrageous."³⁷

III. Premises Liability

A. Slip and Fall

Since the Georgia Supreme Court's 1997...