(Orig. Code 1863, § 3003; Code 1868, § 3016; Code 1873, § 3071; Code 1882, § 3071; Civil Code 1895, § 3911; Civil Code 1910, § 4508; Code 1933, § 105-2007.)
Law reviews.- For article, "Jury Instructions and Proximate Cause: An Uncertain Trumpet in Georgia," see 27 Ga. St. B. J. 60 (1990).
JUDICIAL DECISIONS
Former Code 1933, §§ 105-2007, 105-2008, and 105-2009 (see now O.C.G.A. § 51-12-3,51-12-8, and51-12-9) must be construed together. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).
Words "proximate," "immediate," and "direct" are frequently used as synonymous. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).
In tort actions, consequential damages which are necessary and connected effect of tortious act, and which are its legal and natural result, may be recovered, though contingent to some extent. Kroger Co. v. Perpall, 105 Ga. App. 682, 125 S.E.2d 511 (1962).
After a homeowner sued the realtor for alleged fraud and malpractice in the sale of the homeowner's condominium after the homeowner had sued the buyers on their note to the homeowner, the absence of a finding of bad faith on the part of the buyers in not paying their note did not preclude a finding that the plaintiff was entitled to attorneys fees and expenses of litigation when such costs were actual damages proximately caused by the realtors' malpractice and fraud. Marcoux v. Fields, 195 Ga. App. 573, 394 S.E.2d 361 (1990).
Particular consequences of act need not be foreseeable.
- In order that a party be made liable for negligence, it is not necessary that the party should have contemplated or even been able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff, but it is sufficient, if, by exercise of reasonable care, the defendant might have foreseen that some injury would result from the defendant's act or omission, or that consequences of a generally injurious nature might have been expected. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).
It is not necessary that an original wrongdoer anticipate or foresee the details of a possible injury that may result from the wrongdoer's negligence, but it is sufficient if the wrongdoer should anticipate from the nature and character of the negligent act committed by the wrongdoer that injury might result as a natural and reasonable consequence of the wrongdoer's negligence. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).
In tort actions, recovery may be had for loss of profits, provided their loss is proximate result of defendant's wrong and they can be shown with reasonable certainty. The profits recoverable in such cases are limited to probable, as distinguished from possible benefits, and they must be such as would be expected to follow naturally the wrongful act and be certain both in their nature and the cause from which they proceed. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369, 53 S.E.2d 718 (1949).
General rule is that expected profits of commercial business are too uncertain, speculative, and remote to permit a recovery for their loss. Georgia Grain Growers Ass'n v. Craven, 95 Ga. App. 741, 98 S.E.2d 633 (1957).
Failure to prove out-of-pocket economic damages.
- Because franchisees failed to prove out-of-pocket economic damages as a result of alleged misrepresentations in offering materials regarding the franchise's projected cash flow, the franchisor's motions for directed verdict and j.n.o.v. on claims for negligent misrepresentation and negligence under O.C.G.A. § 51-1-6 should have been granted. Legacy Academy, Inc. v. Doles-Smith Enters., 337 Ga. App. 575, 789 S.E.2d 194 (2016).
In a dispute between a franchisor of daycare businesses and the franchisee, the trial court erred by denying the franchisor's motion for directed verdict on the franchisee's claims for negligent misrepresentation and negligence under O.C.G.A. § 51-1-6 because the franchisee failed to prove that the franchisee suffered any out-of-pocket economic damages as a result of the alleged misrepresentations, which was an essential element to such claims. Legacy Academy, Inc. v. Doles-Smith Enters., 337 Ga. App. 575, 789 S.E.2d 194 (2016).
Speculative lost profits not recoverable.
- The profits of a commercial business are dependent on so many hazards and chances that unless the anticipated profits are capable of ascertainment, and the loss of them traceable directly to the defendant's wrongful act, they are too speculative to afford a basis for the computation of damages. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369, 53 S.E.2d 718 (1949); Georgia Grain Growers Ass'n v. Craven, 95 Ga. App. 741, 98 S.E.2d 633 (1957).
When the plaintiff seeks, as damages, the loss of expected profits and additional expenses incurred during the time that the plaintiff was away from the plaintiff's candy manufacturing business, while recuperating from the effects of the plaintiff's alleged injuries, and when it appears that the plant would probably have remained open and that production would have continued if the plaintiff's foreman had not also been absent on account of drunkenness, the alleged damages are remote, speculative, contingent, and uncertain. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369, 53 S.E.2d 718 (1949).
Tortfeasor liable for consequential damages caused by foreseeable intervening act.
- The rule that an intervening act may break the causal connection between an original act of negligence and injury to another is not applicable if the nature of such intervening act was such that it could have reasonably been anticipated or foreseen by the original wrongdoer. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).
While the general rule is that if, subsequent to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still 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 wrongdoer, the causal connection is not broken, and the original wrongdoer is responsible for all of the consequences resulting from the intervening act. Blakely v. Johnson, 220 Ga. 572, 140 S.E.2d 857 (1965).
There may be more than one proximate cause of injury, and the proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).
Proof of physical injury lacking.
- In a negligence action stemming from an auto accident between a driver and a farmer's cow, the trial court properly granted summary judgment on the driver's claim for consequential damages, which was sought for a "ruined vacation," as the driver failed to show any evidence of a physical injury which was a necessary element on a claim premised on ordinary negligence. Hoeflick v. Bradley, 282 Ga. App. 123, 637 S.E.2d 832 (2006).
Damages for joint acts of negligence.
- When two concurrent acts of negligence operate in bringing about an injury, the person injured may recover from either or both of the persons responsible. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).
Concurrent acts of negligence.
- The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if all acts of negligence contributed directly and concurrently in bringing about the injury, the acts together constitute the proximate cause. Adams v. Jackson, 45 Ga. App. 860, 166 S.E. 258 (1932); Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).
Damages resulting from necessary and required medical treatment of physical injury are element of damage recoverable as proximately resulting from the negligence of the tort-feasor whose negligence caused the injury. Gillis v. Atlantic Coast Line R.R., 52 Ga. App. 806, 184 S.E. 791 (1936).
Diminution in capacity to earn money is separate element of damages.
- While a diminution in one's capacity to labor may be recoverable as an element of pain and suffering, a diminution in one's capacity to earn money is a separate and distinct element of damages involving numerous considerations, among these considerations are earnings before the injury, earnings after the injury, probability of increased or decreased earnings in the future (considering the capacity of the party), the effect of sickness and old age, and others. Porter v. Bland, 105 Ga. App. 703, 125 S.E.2d 713 (1962).
When damage claimed is solely to building or structure, and not to land, measure of damages is cost of restoration. Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980).
Evidence sufficient to permit jury to find amount of damages.
- On the trial of a suit to recover damages alleged to have been sustained by the plaintiff's automobile as a result of a collision with the defendant's automobile, since there was evidence of the value of the automobile at the time of the collision and evidence that the automobile before the collision was in good running condition and that after the collision the automobile had not been "any good," and there was evidence in detail as to the damage done to the automobile and its condition after the collision and the nature and the cost of the repairs necessitated by the damage and which was made upon the automobile, the evidence was sufficient to authorize an inference as to the amount of depreciation in the value of the automobile as a result of the damages sustained. Atlanta Furn. Co. v. Walker, 51 Ga. App. 781, 181 S.E. 498 (1935).
When there appears from the evidence the length of time which the plaintiff was deprived of the use of the automobile by reason of the time required in making the repairs which were necessitated by the damage to the automobile, the evidence is sufficient to authorize the jury to find the reasonable value of the automobile for use during the period of the plaintiff's deprivation of its use as a result of the damage. Atlanta Furn. Co. v. Walker, 51 Ga. App. 781, 181 S.E. 498 (1935).
Consequential damages for outstanding vehicle loan amount.
- Trial court properly granted summary judgment to a driver on the owner's claim to recover the loan deficiency on the owner's wrecked vehicle as consequential damages because the owner had already been compensated for the fair market value of the wrecked vehicle and, pursuant to O.C.G.A. §§ 51-12-3(b),51-12-8, and51-12-9, the owner's outstanding vehicle loan amount was not the legal and natural consequence of the collision. McIntire v. Perkins, 317 Ga. App. 181, 729 S.E.2d 529 (2012), cert. denied, No. S12C1976, 2013 Ga. LEXIS 37 (Ga. 2013).
Whether damages proximately resulted from defendant's negligence is jury question.
- Whether injuries sued for by a plaintiff, and the damage resulting therefrom were proximately caused by the negligence of the defendant, either solely or concurrently with the negligence of other parties, is a question for the jury under the general rules of law applicable to the case. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).
Jury generally determines amount of damages to personal property.
- While the difference between the market value of personal property before and its market value after, it has been damaged as a result of the tortious act of another person is recoverable as an element of damage, this difference, which is represented in the depreciation in the value of the property as a result of the damage, when the damage is not in excess of the value with interest of the property before it was damaged, may be determined by a jury when there is evidence as to the nature of the property and its condition prior to the damage and also its value, and the nature, character, and the amount of the damage. Atlanta Furn. Co. v. Walker, 51 Ga. App. 781, 181 S.E. 498 (1935).
Charge on preexisting conditions proper since defendant liable only for proximate consequences.
- Court did not err in charging on the issue of a preexisting disability since the plaintiff had been in the hospital previously and had a heart problem; the tort-feasor is liable only for the proximate consequences of the tortfeasor's wrongful act. Garner v. Driver, 155 Ga. App. 322, 270 S.E.2d 863 (1980).
Cited in Lawrence v. Atlanta Gas Light Co., 49 Ga. App. 444, 176 S.E. 75 (1934); Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935); Crandall v. Sammons, 62 Ga. App. 1, 7 S.E.2d 575 (1940); Georgia Power Co. v. Pittman, 92 Ga. App. 673, 89 S.E.2d 577 (1955); Dukes v. Pure Oil Co., 112 Ga. App. 111, 143 S.E.2d 769 (1965); Douglas v. Smith, 578 F.2d 1169 (5th Cir. 1978); Sam Finley, Inc. v. Barnes, 156 Ga. App. 802, 275 S.E.2d 380 (1980); Hill Aircraft & Leasing Corp. v. Tyler, 161 Ga. App. 267, 291 S.E.2d 6 (1982).
RESEARCH REFERENCES
Am. Jur. 2d.
- 22 Am. Jur. 2d, Damages, § 22 et seq.
C.J.S.- 25 C.J.S., Damages, § 2.
ALR.
- Shortening of plaintiff's life expectancy as result of injury as element of damages recoverable by person injured, 97 A.L.R. 823; 131 A.L.R. 1351; 1 A.L.R.3d 801.
Action by one person for consequential damages on account of injury to another as one for bodily or personal injury within statute of limitations, 108 A.L.R. 525.
Right of parent to recover for consequential damages to himself on account of injury to child as affected by his appearance as next friend, guardian, or guardian ad litem in an action to recover for injury to child, or by verdict or judgment in such action, 116 A.L.R. 1087.
Measure of damages for wrongful removal of earth, sand, or gravel from land, 1 A.L.R.3d 801.
Absolute liability for blasting operations as extending to injury or damage not directly caused by debris or concussion from explosion, 56 A.L.R.3d 1017.
Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, sexual organs and processes, 13 A.L.R.4th 183.
Excessiveness or adequacy of damages awarded for injuries to legs and feet, 13 A.L.R.4th 212.
Excessiveness or adequacy of damages awarded for injuries to head or brain, or for mental or nervous disorders, 14 A.L.R.4th 328.
Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, circulatory, digestive, and glandular systems, 14 A.L.R.4th 539.
Excessiveness or adequacy of damages awarded for injuries to back, neck, or spine, 15 A.L.R.4th 294.
Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, respiratory system, 15 A.L.R.4th 519.
Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering, 55 A.L.R.4th 186.
Recovery of anticipated lost profits of new business: post-1965 cases, 55 A.L.R.4th 507.
Excessiveness or adequacy of damages awarded for injuries to head or brain, 50 A.L.R.5th 1.
Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system, 51 A.L.R.5th 467.