Tort Law
Personal injury and malpractice claims, such as claims arising from automobile collisions, nursing home negligence or medical malpractice, are known as “torts.” Torts also include civil rights claims and other negligent or intentional injuries not covered by contract law. In Georgia, O.C.G.A. § 51-1-1 defines a tort as “the unlawful violation of a private legal right other than a mere breach of contract, express or implied. A tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual.”
When the law requires a party to act or refrain from acting for the benefit of someone else, the injured party may recover for the breach of such legal duty if he suffers damage thereby. O.C.G.A. § 51-1-6. The right of action may arise from the breach of a statutory duty (e.g., failing to follow the traffic code) or a private (contract) duty. O.C.G.A. §51-1-8.
In general terms, a negligence claim has four elements: (i) a duty to do or refrain from doing some action (sometimes called a standard of care or duty of care); (ii) a breach of that duty, (iii) causation and (iv) damages. See Wells Fargo Bank, N.A. v. Jenkins, 293 Ga. 162 (2013). “Underlying an actionable claim of negligence is the existence of a legal duty. Such a duty can arise either by statute or be imposed by a common law principle recognized in the caselaw.” Id.
By way of example, the operator of a motor vehicle owes his or her passengers the same duty of ordinary care owed to others. O.C.G.A. § 51-1-36. By statute, some duties may be the cause of an injury while others are not. For example, by statute a person selling intoxicating beverages did not cause of the actions of an intoxicated individual unless the intoxicant was were knowingly sold to a minor or sold to a person noticeably intoxicated knowing said person would soon be driving a vehicle. O.C.G.A. § 51-1-40.
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). Amounts recovered are divided equally, share and share alike, among the surviving spouse and the children per capita, and the descendants of children shall take per stirpes; provided, the surviving spouse shall receive not less than one-third of the amount recovered. O.C.G.A. § 51-4-2(d). If there is wife or child capable or brining a wrongful death action, the administrator or executor of the decedent’s estate may bring the action. O.C.G.A. § 51-4-5. A wrongful death action is designed to compensate the family for its loss due to a loved ones death. Damages may include:
- Medical expenses;
- Expenses related to the death itself, such as funeral and burial costs, and expenses of estate administration;
- The value of the deceased’s person’s financial contributions to the family;
- Noneconomic damages such as the monetary value of support of society, comfort and services; and
- Compensation to children for loss of support and services the deceased parent would have provided.
Survival Actions
A survival action is the claim brought by the decedent’s estate. Damages may include pain and suffering, loss of gross earning power from the date of injury through death, and loss of lifetime earning power.
Violation of a Duty of Care
Most malpractice actions allege that a professional breached a duty to act within a standard of care applicable to the profession. O.C.G.A. § 9-11-9.1 requires that an affidavit accompany a complaint for malpractice. The affidavit must be signed by an expert competent to testify, and must set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.
Land Owner Liability
Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. O.C.G.A. § 51-3-1.
Libel and Slander
A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule. Publication of the libelous matter is essential to recovery. O.C.G.A. § 51-5-1. A libel is published as soon as it is communicated to any person other than the party libeled. O.C.G.A. § 5-5-3.
Slander or oral defamation consists in: (1) Imputing to another a crime punishable by law; (2) Charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; (3) Making charges against another in reference to his trade, office, or profession, calculated to injure him therein; or (4) Uttering any disparaging words productive of special damage which flows naturally therefrom. In the situation described in paragraph (4) of subsection (a) of this Code section, special damage is essential to support an action; in the situations described in paragraphs (1) through (3) of subsection (a) of this Code section, damage is inferred. O.C.G.A. § 51-5-4. The truth of the charge made may always be proved in justification of an alleged libel or slander. O.C.G.A. § 51-5-6
Fraud
Fraud, accompanied by damage to the party defrauded, always gives a right of action to the injured party. O.C.G.A. § 51-6-1. Willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action. Mere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action. O.C.G.A. § 51-6-2(a). A fraud may be committed by acts as well as words. O.C.G.A. § 51-6-4(a).
False Imprisonment, Malicious Prosecution
False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty. O.C.G.A. § 51-7-20. A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action. O.C.G.A. § 51-7-40. Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. O.C.G.A. § 51-7-43.
Agents
For the negligence of one person to be properly imputable to another, the one to whom it is imputed must stand in such a relation or privity to the negligent person as to create the relation of principal and agent. O.C.G.A. § 51-2-1. An example of privity is when hospital is liable for the malpractice of it’s employees or agents. Persons, including business entities, are liable for torts committed by those acting under direction or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily. O.C.G.A. § 51-2-2. However, the employee’s actions (or omissions) would not trigger liability if the employee is operating his or her separate business that is not under the employer’s direction or control. O.C.G.A. § 51-2-4.
Contractors and Independent Contractors
An employer is liable for the negligence of a contractor: (1) When the work is wrongful in itself or, if done in the ordinary manner, would result in a nuisance; (2) If, according to the employer’s previous knowledge and experience, the work to be done is in its nature dangerous to others however carefully performed; (3) If the wrongful act is the violation of a duty imposed by express contract upon the employer; (4) If the wrongful act is the violation of a duty imposed by statute; (5) If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference; or (6) If the employer ratifies the unauthorized wrong of the independent contractor. O.C.G.A. § 51-2-5.
In determining whether an employer-employee or independent contractor relationship existed, ‘the test to be applied . . . lies in whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract. If one is employed generally to perform certain services it may be inferable that the employer retained the right to control the manner, method and means for performance of the contract. However, where there is a specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the right of control was not retained and an independent contractor relation existed. Dennis v. Malt, 196 Ga. App. 263 (1990).
Hospitals may avoid liability for the negligence of non-employee independent contractors by conspicuously posting the following notice and having the patient sign a written acknowledgement of the notice: “Some or all of the health care professionals performing services in this hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions and the hospital shall not be liable for the acts or omissions of any such independent contractors.” O.C.G.A. § 51-2-5.1. The contract between the hospital and a health care professional is determined by the language in their contract, namely, whether the hospital reserved the right to control the time, manner, or method in which the health care professional performs services. O.C.G.A. § 51-2-5.1(f).
If the court finds that there is no contract or that the contract is unclear or ambiguous as to the relationship between the hospital and health care professional, the court shall apply the following:
(1) Factors that may be considered as evidence the hospital exercises a right of control over the time, manner, or method of the health care professional’s services include: the parties believed they were creating an actual agency or employment relationship; the health care professional receives substantially all the employee benefits received by actual employees of the hospital; the hospital directs the details of the health care professional’s work step-by-step; the health care professional’s services are terminable at the will of the hospital without cause and without notice; the hospital withholds, or is required to withhold, federal and state taxes from the remuneration paid to the health care professional for services to the patients of the hospital; and factors not specifically excluded in paragraph (2) of this subsection; and
(2) Factors that shall not be considered as evidence a hospital exercises a right of control over the time, manner, or method of the health care professional’s services include: a requirement by the hospital that such health care professional treat all patients or that any health care professional or group is obligated to staff a hospital department continuously or from time to time; the hospital’s payment to the health care professional on an hourly basis; the provision of facilities or equipment by the hospital; the fact a health care professional does not maintain a separate practice outside the hospital; the source of the payment for the professional liability insurance premium for that health care professional; the fact that the professional fees for services are billed by the hospital; or any requirement by the hospital that such health care professional engage in conduct required to satisfy any state or federal statute or regulation, any standard of care, any standard or guideline set by an association of hospitals or health care professionals, or any accreditation standard adopted by a national accreditation organization.
Fiduciaries
Negligence by a fiduciary gives right to a cause of action. O.C.G.A. § 51-1-19. “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.” O.C.G.A. § 5-1-27.
Cooling Off Period
No one with an adverse interest may negotiate and secure a release or settlement from an injured party who is confined to a hospital or healthcare institution during the initial 15-day period following the injury. O.C.G.A. § 51-1-35.
