Print This Article

There are many types of “Plaintiff’s cases.” This article focuses on injury cases. Injury cases can be as simple as a car wreck or as complex as a medical malpractice case. Regardless, they generally require four essential elements: duty, breach of duty, causation, and damages. See Calhoun First Nat’l Bank v. Dickens, 264 Ga. 285 (1994) (“There are four elements to any tort action: duty, breach, causation, and damages.”). Here we discuss what each of these elements means and what makes a good (or not-so-good) case.

At its core, a great injury case requires great trajedy. There’s no such thing as a great injury or malpractice case where everyone lived happily ever after. If you have a great tort case, someone didn’t live happily ever after or didn’t live at all.

The Perfect Case

As stated above, the perfect Plaintiff’s case requires tragedy. For example, the following is as close to a perfect case as they get: A truck driver employed by and driving for a Fortune 500 Company is driving while texting on his cell phone. His truck has one of those grill ornaments with threatening-looking teeth showing. He runs over a church van carrying several high school cheerleaders who were making straight A’s in school, most of whom had been accepted to Ivy League colleges on full scholarships. The van is returning from a charity event such as feeding the homeless. It wouldn’t hurt if the children on the van were fluent in multiple languages or had other rare talents. The children on the van are either killed or tragically injured (e.g., quadriplegia). There’s lots of insurance, but even if the insurance is inadequate, the truck driver’s employer has vast resources. The parents are elders or deacons in their church and are icons in the community, and are working as doctors, lawyers, accountants, or other highly paid professional jobs, making it likely the children would follow in their footsteps.

Another almost perfect case is one I was involved in a number of years ago. A nursing home resident was a former teacher. She still had her mind about her, but was physically frail. She wasn’t in any danger of dying soon from her infirmities but needed enough assistance to require nursing home placement. She enjoyed life and enjoyed socializing. Her son, grandchild, and great-grandchild visited regularly. They planned for her care while she was at home, took care of her as long as they could, and then took classes so they would understand how to effectively serve as her health advocate. The nursing home she was admitted to was part of a national chain. It had no fire suppression sprinklers. One night, while most of the staff were alleged to be out of position (e.g., smoking on the back porch), a fire broke out in the room across the hall from this resident. While there were opposing arguments concerning who caused the fire, there was no argument that the teacher caused the fire. Since there were no sprinklers and no staff to either stop the fire or rescue residents, the teacher died of fire-related injuries. The fire went on to destroy the entire floor, killing numerous other residents.

Both of these examples include an action or inaction by someone that seems to directly cause a tragedy. In the first example, a truck driver is violating a traffic law by texting while driving. His actions caused him to lose track of his vehicle in relation to the van and he runs over the van. There was nothing the van driver could have done to prevent the collision and people were tragically hurt or died. So we have a duty to drive safely, a breach of that duty because the truck driver was texting, his actions directly caused the collision and there are damages. Further, because the truck driver was employed by a large corporation and was driving for them, there are ample resources to pay any judgment. Additional facts such as the bared teeth on the truck grill could anger the jury and the student’s young age, combined with academic success, gives an economist a basis for projecting substantial future lost wages. A life care planner could project the future cost of care for those students tragically injured who survived. The fact that the parents are “good people” means the jury won’t have second thoughts about giving them sufficient damages to hold the truck driver and his employer accountable for the damages they caused. The nursing home case is a similar story of a good person injured because of the inaction of a nursing home (failing to install a fire suppression system and keep adequate staff on duty) that directly caused a tragic loss. The main difference is that most nursing home residents are out of the workforce so they have no economic damages.

Duty

The law can impose a duty of care by statute, regulation, industry or professional standards, a private duty, and ordinary care (aka common sense). With regard to statutes, O.C.G.A. § 51-1-6 provides “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” In Avis Rent A Car System, LLC v. Johnson, 352 Ga. App. 858 (2019), the Court of Appeals stated: “Whether a duty exists upon which liability can be based is a question of law.” City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861) (1993). The duty of care “can arise either from a valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the case law.” Diamond v. Dept. of Transp., 326 Ga. App. 189, 194 (2) (756 SE2d 277) (2014) (citation and punctuation omitted). … We assume that Georgia law imposes a general duty not to cause physical injury to another. See OCGA § 51-1-13 (“A physical injury done to another shall give a right of action to the injured party, whatever may be the intention of the person causing the injury, unless he is justified under some rule of law. However, intention shall be considered in the assessment of damages.”).” See also O.C.G.A. § 51-1-8.

Ordinary Care

In Millan v. Residence Inn by Marriott, 226 Ga. App. 826 (1997), hotel employees had actual notice of a guest’s sexual misconduct. When that guest committed sexual battery on another guest (a minor with a mental disability), the parents sued the hotel owner. The Court stated: “Although an innkeeper is not an insurer of the safety of the guests, it is bound to exercise ordinary care to protect its guests from unreasonable risks of which the innkeeper has superior knowledge, and if an innkeeper has reason to anticipate criminal acts, it has the duty to exercise ordinary care to guard against injury caused by dangerous characters. [Cit.]” Matt v. Days Inns of America, 212 Ga. App. 792, 794 (443 S.E.2d 290) (1994), aff’d Days Inns of America v. Matt, 265 Ga. 235 (454 S.E.2d 507) (1995). “The test is whether the prior criminal activity was sufficiently [and] substantially similar to demonstrate the landowner’s knowledge that conditions on his property subjected his invitees to an unreasonable risk of criminal attack so that the landowner had reasonable grounds to apprehend that the present criminal act was foreseeable.” Matt, supra at 795. See also the expanded reiteration of the applicable principles in Taylor v. Atlanta Center, 208 Ga. App. 463, 465-466 (430 S.E.2d 841) (1993) (non-precedential).”

Industry Standards

In Edwards v. Campbell, 338 Ga. App. 876 (2016), at footnote 28, the Court stated “in the context of product manufacturers, that the law imposes a duty on such manufacturers “to produce safe items, regardless of whether the ultimate impact of the hazard is on people, other property, or the product itself” (punctuation and emphasis omitted)); City of Atlanta v. Benator, 310 Ga. App. 597, 605 (5) (714 SE2d 109) (2011) (acknowledging, in a negligent-construction case, that there is a duty implied by law to perform work in accordance with industry standards); Underwood v. Select Tire, Inc., 296 Ga. App. 805, 812-13 (3) (676 SE2d 262) (2009) (holding that companies that sold and installed tires assumed a “duty of discovery and warning” when they made representations regarding a tire’s quality and fitness for use); Boyce v. Gregory Poole Equip. Co., 269 Ga. App. 891, 896 (1) (c) (2) (605 SE2d 384) (2004) (“[W]hen [the seller of a product] made investigations into the product’s expected use, the seller should have recognized danger in such use and known that the purchaser and third parties would rely upon such determination; such seller is under an additional duty over the general duty regarding warning because it has assumed a duty to exercise ordinary care in making its investigation and recommendation … .”).” See also Vulcan Materials Co. v. Driltech, Inc., 251 Ga. 383, 387 (3) (306 SE2d 253) (1983).

Negligence Per Se

In some cases, breach of a legal duty is negligence per se, leaving damages as the only issue for jury determination. This was the case in W. v. Mache of Cochran, 187 Ga. App. 365 (1988) where a gun dealer failed to complete a firearms transaction record and sold a gun to a patient at a mental institution. The Court of Appeals stated “Where a statute provides a general rule of conduct, although only amounting to a requirement to exercise ordinary care, the violation thereof is negligence as a matter of law, or negligence per se, whereas in the absence of such specific statute, the jury is left to determine whether such conduct constitutes negligence. [Cit.]” Teague v. Keith, 214 Ga. 853, 854 (1) (108 S.E.2d 489) (1959). Plaintiff was thus entitled to a directed verdict on the question of liability, for there was no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, demanded a verdict in his favor. O.C.G.A. § 9-11-50 (a)”

Gross Negligence

Gross negligence is the absence of even slight care. O.C.G.A. § 51-1-4 states: In general, slight diligence is that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. As applied to the preservation of property, the term “slight diligence” means that care which every man of common sense, however inattentive he may be, takes of his own property. The absence of such care is termed gross negligence.

Breach

A breach is failing to do something the law requires, or doing something the law prohibits. In other words, the Duty element described above establishes a ruler against which conduct is measured. Breach is failing to measure up. In Purvis v. Steve, 284 Ga. App. 116 (2007), a Deputy driving a patrol car hit a deer. The deer’s severed head then went through the plaintiff’s windshield causing injury. The Court found there was no evidence that the deputy, who was driving within the speed limit, breached any duty owed to the plaintiff. Further, breach of duty could not be inferred.

Defendants have a duty to observe that degree of care which people of ordinary prudence and sagacity would use under the same or similar circumstances. Proving breach, therefore, requires the plaintiff to produce evidence that (1) establishes what precautions ordinary care required in the circumstances presented by his case and (2) demonstrates that the defendant did not take such reasonable precautions. See Norfolk S. Ry. v. Zeagler, 293 Ga. 582 (2013).

Causation

In Calhoun First Nat’l Bank v. Dickens, 264 Ga. 285 (1994), the Georgia Supreme Court said: “With respect to causation, “[t]o recover damages in a tort action, a plaintiff must prove that the defendant’s [action] was both the “cause in fact” and the “proximate cause” of her injury. Atlanta Obstetrics v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990).” Cause in fact is a determination that a defendant’s actions caused an injury, while proximate cause is in the nature of a policy decision that addresses whether the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance a recovery. See Callaway Gardens Resort, Inc. v. Grant, 365 Ga. App. 222 (2022).

In Yearty v. Scott Holder Enters., 349 Ga. App. 718 (2019), there was no causal link between the negligent installation of a smoke detector and plaintiff’s burn injury because the Plaintiff fell asleep while leaving chicken frying in hot oil. The plaintiff produced no evidence that a working smoke detector would have made any difference. “[T]he defendant’s conduct is not a cause of the event, if the event would have occurred without it.” (Citation and punctuation omitted.) Id. at 44 (2) (b), 714 S.E.2d 723. Here, the fire started as a result of Yearty’s leaving chicken frying in hot oil on her stove while she fell asleep. Even assuming for purposes of summary judgment that the smoke detector was defectively installed, Yearty has pointed to no evidence, beyond her own bare assertion at her deposition, that a working smoke detector would have alerted her any sooner to the fire, much less that it would have alerted her at a sufficiently early interval to have allowed her to use her bare hand to turn off the stove without danger. Without any supporting factual evidence, Yearty’s testimony in this regard is merely conjecture or speculation, thus giving the jury no basis on which to render a verdict in her favor.”

The Yeartley court went on to discuss intervening causes. “Inextricably entwined with concepts of negligence and proximate cause is a notion of foreseeability. To that end, the well-established doctrine of intervening causes states that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent act or omission of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.” In Yeartley, the plaintiff’s own conduct increased her risk. Once she became aware of the fire, instead of avoiding injury, she went toward the fire and exposed her bare skin to the possibility of injury from spilled boiling oil. Her actions constituted an intervening act.

Damages

Damages are compensation for injury, generally where the injury is capable of being estimated in money. O.C.G.A. § 51-12-4. In Johnson v. American Nat’l Red Cross, 275 Ga. 270 (2003), a plaintiff sued the Red Cross after receiving two pints of blood at a hospital. The Red Cross later informed the hospital that the blood did not meet its standards because it came from a donor who had lived 13 months in a region of Africa where a rare strain of HIV was found. The donor did not test positive and there was no reason to believe the donor was exposed. However, the doctor informed the patient that the blood she received should not have been accepted by the Red Cross. The patient was upset, claiming she lived in fear from that point but did not seek medical treatment for emotional distress or any physical injury. She sued her doctor, the hospital, and the Red Cross. The trial court granted summary judgment to the Red Cross because the patient failed to prove any recoverable damages. The Court of Appeals affirmed and the Georgia Supreme Court affirmed as well. In affirming, the Georgia Supreme Court stated:

“It is well established that to recover for injuries caused by another’s negligence, a plaintiff must show four elements: ‘a duty, a breach of that duty, causation and damages.’ [Cit.]” Royal v. Ferrellgas, 254 Ga.App. 696, 698(1)(a), 563 S.E.2d 451 (2002). The Estate argues that the Red Cross’s duty is clear, the breach of that duty certain, and that Mantooth suffered damages, physical as well as emotional, directly caused by the breach of duty. It cites damages Mantooth experienced after learning of the problem with the blood, including Mantooth’s undergoing HIV tests, the medical charges incurred for those tests, and her pain and treatment expenses and extended hospitalization because of and following the blood transfusion.

But as noted in the opinion of the Court of Appeals, Mantooth did not produce evidence of any physical injuries or financial losses proximately caused by the Red Cross’s failure to follow its standards. Johnson v. American Nat. Red Cross, supra at 592(2), 569 S.E.2d 242. There is no evidence that any adverse physical reactions suffered by Mantooth during or after the blood transfusion, or her subsequent hospitalization, had anything to do with the quality of blood she received, that is, there was no link to the Red Cross’s alleged breach of duty in accepting the transfused blood. Insofar as the Estate has alleged damages, physical and financial, as the result of Mantooth’s undergoing several tests for HIV, Mantooth’s deposition testimony was that she did not have any medical expenses as a direct result of the transfusion. Moreover, the undisputed evidence is that these tests would not have disclosed the presence of the “Group O” virus, which was the concern resulting from the Red Cross’s acceptance of the transfused blood at issue. There is no evidence that acceptance of the particular donor’s blood put Mantooth at increased risk of contracting other strains of HIV. “`”[N]egligence is not actionable unless it is the proximate cause of the injury. A wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence 109*109 which is probable, according to ordinary and usual experience.”‘” Dry Storage Corp. v. Piscopo, 249 Ga.App. 898, 900, 550 S.E.2d 419 (2001). … As there was no evidence of a physical injury or financial loss to Mantooth proximately caused by the purported breach of duty by the Red Cross, summary judgment was proper on the negligence claims. (Emphasis added).

The Johnson case shows that damages, some physical or emotional loss, are essential to the case. Even if there is duty, breach and alleged causation, if the plaintiff cannot show that damages were suffered, there is no case.

Wrongful Death

The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence. O.C.G.A. § 51-4-2(a). “Full value of the life of the decedent, as shown by the evidence” means the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived. O.C.G.A. § 51-4-1(1). An administrator or executor may bring the action when there is no person entitled to bring a wrongful death action. O.C.G.A. § 51-4-5.

Loss of Consortium

Loss of consortium are damages paid to the uninjured relative of an injured party where a relationship is damaged or terminated. This claim is separate from the injured party’s claim for injury or death. See, e.g., Flournoy v. Goble, 256 Ga. App. 722 (2002).

General and Special Damages

General damages are those which the law presumes to flow from any tortious act; they may be recovered without proof of any amount. Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered. O.C.G.A. § 51-12-2.

Direct and Consequential Damages

Direct damages are those which follow immediately upon the doing of a tortious act. Consequential damages are those which are the necessary and connected effect of a tortious act, even though they are to some extent dependent upon other circumstances. O.C.G.A. § 51-12-3. The future value of economic damages are reduced to the present value using a five percent discount rate unless the jury determines a different discount rate is more appropriate. O.C.G.A. § 51-12-13. Damages are also described as economic and non-economic. Economic damages include loss of earnings and medical expenses. Non-economic damages include physican impairment and pain and suffering. See Non-economic damages caps.

Emotional Distress

The Johnson case further discussed the claim for emotional distress. It cites Russaw for the proposition that factual evidence of a causal connection between a defendant’s breach and Plaintiff’s purported damages is required. In Johnson, the required causal connection was actual exposure, which she could not prove. “Without factual evidence of a causal connection between the alleged breach of duty and the purported damages, the damages must be considered whimsical, fanciful and above all too speculative to form the basis of recovery…. Id. at 686(1), 472 S.E.2d 508.” See O.C.G.A. § 51-12-6.

Medical Expenses of a Minor Child

Since O.C.G.A. § 19-7-2 imposes a duty on parents to provide for the maintenance, protection and education of a child, the action to recover medical expenses of a minor belongs to the parents. In Rose v. Hamilton Medical Center, 184 Ga. App. 182 (1987), the court held that an action to recover those expenses was not tolled by the minor’s infancy because it belongs to the parent. Thus, because the action was filed more than two years from the date those expenses were incurred, the statute of limitations barred recovery.

Damages for Physical Injuries Are Seperate from Property Claims

O.C.G.A. § 51-1-34 provides that settlement of property claims arising from a motor vehicle collision does not bar the prosecution of injury claims and vice versa.

Loss of Chance

In most nursing home malpractice cases, economic damages are limited. Loss of chance is a form of damages that should be considered. Loss of chance is a doctrine permitting recovery of damages for the destruction or reduction of prospects for achieving a more favorable outcome. See T. Weigand, Loss of Chance in Medical Malpractice: A Look at Recent Developments (2003).

Punitive Damages

Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. O.C.G.A. § 51-12-5.1(b).

Caps on Damages

A number of states have passed legislation limiting damages generally. Usually they focus on non-economic damages. Various summaries of actions taken to limit damage awards are available online. See Fact Sheet: Caps on Compensatory Damages: A State Law Summary; and see AMA, Caps on Damages. In Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), the Georgia Supreme Court held that a statute limiting the award of non-economic damages to a predetermined amount violated Georgia’s Constitution.

Other Factors

Those left behind

Although it shouldn’t make a difference, it matters who would receive any verdict a jury awards. In the Perfect Case examples above, there are loving parents in the collision case and a loving child (grandchild, etc.) in the nursing home case. Juries don’t like awarding significant damages to bad people. So if the parents were felons, drug users, domestic violence abusers, etc., a jury might not want the survivors to receive much. The law doesn’t allow juries to discount cases based on the likeability of the survivors, but the reality is they do it anyway.

Social Media

People don’t think about how the written word, without the context of non-verbal communication, can be misinterpreted. Or, it might be interpreted exactly as it was intended if someone lashes out in grief or anger. If you think you might have a case, STAY OFF social media. Do not talk about your case. Do not talk about your personal life. If your spouse was killed and you’re suing the person who caused your loss, words and images about who you spend time with can be used by the defense to diminish your loss. You should assume the defense is looking at everything you do for the purpose of proving you are not entitled to significant damages.

Criminal Behavior

The above examples given in the Perfect case include conduct that might offend a jury, but do not rise to the level of criminal behavior. This is important because an intervening criminal act can sever the causal connection between negligence and damages. In Goldstein, Garber & Salama, LLC v. J.B., 300 Ga. 840 (2017), the Court considered a case where a dental practice was sued for malpractice. The plaintiff’s injury occurred when a certified registered nurse anesthetist sexually molested the patient during an outpatient dental procedure. In finding the Defendant was entitled to a directed verdict, the Court stated:

“It is well established that to recover for injuries caused by another’s negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and damages.” Johnson v. American Nat. Red Cross, 276 Ga. 270, 272 (1), 578 S.E.2d 106 (2003) (Citations and punctuation omitted.) Thus, in order to recover for any injuries resulting from the breach of a duty, there must be evidence that the injuries were proximately caused by the breach of the duty. Id. As this Court has stated, when a defendant claims that its negligence is not the proximate cause of the plaintiff’s injuries, but that an act of a third party intervened to cause those injuries, the rule is

that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendant.

Ontario Sewing Mach. Co., Ltd. v. Smith, 275 Ga. 683, 686 (2), 572 S.E.2d 533 (2002) (Citation and punctuation omitted.) But, this rule does not insulate the defendant “if the defendant had reasonable grounds for apprehending that such wrongful act would be committed.” Id. Stated differently,

if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.

Id. (Citation and punctuation omitted.) “The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” Atlanta Obstetrics, etc. v. Coleman, 260 Ga. 569, 398 S.E.2d 16 (1990) (Citation and punctuation omitted.) And, a general rule of proximate cause is that “[a] wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience.” Johnson, supra at 273 (1), 578 S.E.2d 106.

It is unquestioned that Serdula’s criminal acts intervened between any breach of duty by GGS and the injuries to J.B., and that those injuries would not have occurred without his criminal acts. Thus, the question is whether Serdula’s intervening criminal acts were foreseeable to GGS.

[F]or any such breach to be considered the proximate cause of J.B.’s injuries, Serdula’s criminal acts must be the “probable or natural consequences” of that breach, Ontario Sewing Mach., supra, and it must be the case that those criminal acts could “reasonably have been anticipated, apprehended, or foreseen” by GGS. Id. The evidence here simply does not show that Serdula’s acts can be so considered.

This is why criminal conduct, while deplorable, can have a negative impact on a negligence case. See also St. Jude’s Recovery Center, Inc. v. Vaughn, 354 Ga. App. 593 (2020) (rape was intervening cause).

Duties to Third Parties

In Traina Enters. v. Racetrac Petroleum, 241 Ga. App. 18 (1999), Racetrac held an employee conference at a park and rented a pontoon boat. One of its employees was fatally injured while crossing a gangway that collapsed. The Court of appeals held that even though the defendant owed a duty to the injured employee, it owed no such duty to Racetrac to refrain from injuring its employees. Although there might be a claim for breach of contract, Racetrac had no tort claim against the company renting the boat. This case demonstrates that third parties might not have recoverable damages, not because there wasn’t an injury, but because the law limits a defendant’s tort liability to those who were owed a legal duty of care. Racetrac most likely did suffer damages because the employee’s family probably recovered a worker’s compensation settlement, but for policy reasons, Racetrac’s ability to shift that liability to the boat owner was limited. Specifically, the Court of Appeals stated:

A defendant’s mere negligent performance of a contractual duty does not create a tort cause of action; rather, a defendant’s breach of a contract may give rise to a tort cause of action only if the defendant has also breached an independent duty created by statute or common law. A third party, like Traina, owes no independent legal duty to an employer, such as RaceTrac, not to injure the employer’s employee. So even if Traina negligently breached its boat rental contract with RaceTrac, it owed no other independent duty to RaceTrac to avoid injuring Ringrose. Absent a legal duty outside the contract, there can be no action in tort based merely on Traina’s alleged contract breach.

Suicide

In City of Richmond Hill v. Maia, 301 Ga. 257 (2917), the Court held “it has long been the rule in Georgia that, generally speaking, suicide is deemed an unforeseeable intervening cause of death which absolves the tortfeasor of liability. Maia, 336 Ga.App. at 562, 784 S.E.2d 894 (quoting Dry Storage Corp. v. Piscopo, 249 Ga.App. 898, 900, 550 S.E.2d 419 (2001)).”

Fraud and Constructive Fraud

The tort of fraud has five elements: (1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff. See Atlanta Partners Realty LLC v. Wohlgemuth, 365 Ga. App. 386 (2022). With regard to a claim for constructive fraud, there is no requirement to show an intent to deceive. Lawyers Title Ins. Corp. v. New Freedom Mtg. Corp., 285 Ga. App. 22, 25 (1) (645 SE2d 536) (2007); see also OCGA § 23-2-51. Fraud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie. In addition, fraudulent inducement of a sale may be based on claims of fraudulent concealment where the seller, who knows of the defect, either (1) takes active steps to conceal it and prevent the buyer from discovering it or (2) passively conceals the defect by simply keeping quiet about it. See Atlanta Partners Realty, supra.

Factual Disputes

Where “reasonable minds can differ on the cause of the injury, the case is not plain, palpable, and indisputable and it should go to the jury.” Jones v. Holland, 333 Ga. App. 507, 508 (773 SE2d 797) (2015). See Callaway Gardens Resort, Inc. v. Grant, 365 Ga. App. 222 (2022).

Res Ipsa Loquitur

In some cases where there is no evidence of consequence showing the defendant’s negligence, the doctrine of res ipsa loquitur can be used to infer negligence.  See Holcomb Invs. Ltd. v. Keith Hardware, Inc., 354 Ga. App. 270 (2020). Generally these are cases where, for policy reasons, the law implies negligence when certain events occur.

Start Here

Enter your name and email address to keep up with what’s new at EZ Elder Law!

  • This field is for validation purposes and should be left unchanged.

[Return to Top]