In general, a person owes a duty of reasonable care to all foreseeable plaintiffs and a Defendant’s failure to act reasonably may result in tort liability if his unreasonable conduct causes a Plaintiff injury. However, if a plaintiff is injured while on the land of another, a different standard of care may apply. Interestingly enough, landowners might be liable for injuries to trespassers on their land, even though the trespasser did not have permission to be on the land. The key is to determine what standard of care a landowner owes to the trespasser.

If the trespasser is unknown to the landowner, the landowner does not owe a duty to him. However, if the trespasser is known to the landowner, in other words, the landowner becomes aware that the trespasser is present, the landowner must exercise reasonable care to prevent the trespasser from being injured by activities conducted on the land. The landowner also must warn the known trespasser of hidden dangers of which the landowner is aware and the trespasser is unaware, but has no no duty to prevent injury that could be caused by a natural condition on the land.

If the landowner knows or should reasonably know that others often trespass on his land, the duty he owes is similar to that owed to known trespassers. Finally, if children are trespassing, the landowner will owe a duty to exercise reasonable care to prevent children from being injured by artificial conditions on the land. This heightened standard only applies if 1) The artificial condition creates a foreseeable risk of unreasonable danger, 2) it is foreseeable that children are likely to trespass, 3) the child is not aware of the danger, and 4)  the risk of danger outweighs the utility of the artificial condition.

In Georgia, the Workers’ Compensation Act is the exclusive remedy for an injury by accident arising out of and in the course of employment. The Workers’ Compensation Act requires that employers subject to the act either carry insurance to insure the payment of workers’ compensation benefits to injured workers or qualify as a self insurer.

Therefore, if an employee is injured at work, he can choose to file a Workers’ Compensation Claim or a Personal Injury Claim. The main difference between the two is that a personal injury claim requires fault, while a Workers’ Compensation claim does not. The employee must prove negligence. In other words, to have a successful Personal Injury Claim in Georgia, an employee must prove that the employer or fellow employee did something wrong that caused the employee’s injury. However, in a Workers’ Compensation Claim, no proof of fault is required.

This is an important distinction because not every injury is the result of negligence. Accidents do happen. Therefore, when they happen at work, the employer will pay for damages even if the accident was the employee’s own fault.

Another important difference is damages. In a Worker’s Compensation case, an employee will only get damages for lost wages, medical bills, impairment benefits, and rehabilitation costs. In a Personal Injury case, the employee can recover for his pain and suffering as well as any damages proximately caused by the accident. He can recover for lost earning capacity, pain and suffering, and future medical bills, among other things.

Again, in Georgia, the Workers’ Compensation Act is the exclusive remedy for an injury by accident arising out of and in the course of employment. However, if an employee has a valid Workers’ Compensation claim and the employer carries no insurance, the employee can sue the employer in tort and the employer cannot rely on the exclusive remedy in defending the suit.

What happens if someone is mistaken with regard to her property line and accidentally builds on her neighbors property? Would she have to pay damages or tear down whatever she had built? Assume for a moment that two neighbors built houses and garages on their adjacent lots. Assume as well that Neighbor A’s garage encroached onto neighbor B’s property by a few feet and A was unaware of the encroachment. The question becomes whether B can sue A for Trespass.

The tort of Trespass to Land requires intentional entry onto the land of another. The intent is shown here because A intentionally built a garage on the land. It didn’t just magically appear. Mistake is not a defense to trespass, so it does not matter that A did not know that he was building on land that didn’t belong to him.

In common sense terms, assume a farmer owns a large farm and a developer comes along and buys the property behind the farmer to build town homes. Now assume that the developer misreads the lot description and accidentally puts one of those town homes on the farmer’s property. Would it be fair for the builder to be able to simply say “Well. I made a mistake, so I shouldn’t have to pay for any damages or tear down the home.” This obviously would not be acceptable. The
fact of the matter is that the builder built a town home on the farmer’s property and the farmer should be compensated for any damage caused. The farmer may not end up making the builder tear down the town home, but now since the farmer’s farm is smaller, she will not be able to sell it for as much money, so she could sue the builder for the value of the land he encroached upon.

Swanson v. Tackling: A Georgia Dog Bite Case

In a recent Georgia case, a seven year old boy was bit on the head by one of Defendant’s Great Dane dogs while he was visiting their home. He suffered serious and disfiguring injuries as a result. His mom filed a personal injury suit against the dog’s owners.

When the boy and his parents arrived at the home, they were introduced to the dogs who were behind a gate in another room. One of the dogs put her head over the gate barked in the young boy’s face. This made the mother nervous and she requested that the dog be kept away from her son, although she did not share this information with the owners. The next day, the young boy asked if he could give one of the dogs a stuffed toy. In an attempt to get the toy, the dog bit the boy’s arm. The boy began to scream and cry and when he bent his head down, the dog bit him. the dog’s owner testified that “prior to this incident, the dog had never bit, chased, jumped on, or even growled at anyone.”

The trial court ruled in favor of the dog owners on the grounds that there was no issue of material fact for a jury to consider because the dog had never displayed any vicious behavior or evinced a propensity to bite anyone prior to biting the boy. The appellate court agreed and ruled in favor of the dog owners.

In a dog bite case, Georgia law allows a plaintiff to recover based on a dangerous animal liability theory or a premises liability theory. However, in order to succeed, the plaintiff must show evidence that the dog had a vicious propensity in order to prove that the owner had superior knowledge of the danger. In order to infer this knowledge, there “must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” Although the dog owner doesn’t have to be aware of the dog’s propensity to act in exactly the same way that causes the injury at issue, that previous incident must be the same type as the incident at issue. Finally, it is well settled under Georgia law that “a dog’s menacing behavior alone does not demonstrate its vicious propensity or place its owner on notice of such propensity.”

As mentioned, Georgia courts allow recovery under a dangerous animal liability theory or a premises liability theory. Also, if a person voluntarily undertakes to restrain a dog and fails to do so and an injury results, the owner can be held liable. In this case, there was no evidence that the mom asked the Defendants to restrain the dog or that they promised to do so. Therefore, while the Court was sympathetic with regard to the boy’s injuries, it had to rule in favor of the dog owners.

2016 WL 718465

If a victim is injured by someone who is mentally impaired in Georgia, can that victim recover damages for her personal injuries?

The general rule in Georgia is that a psychotic person cannot be held criminally responsible for his crimes because he is not acting as a free agent and is incapable of a guilty intent. However, in a civil case, if the mentally impaired person cases personal injury to another, proof of intent is generally not necessary. Therefore,  the mentally impaired person is liable for torts the same as anyone else,  except for torts that require proof of intent.

This rule allows a victim to sue the mentally impaired person for personal injuries caused by negligence. This rule is supported by the principal that where a loss must be borne by one of two innocent persons, it should be borne by the one who occasioned it.

Of course, there is the occasional odd circumstance where the “insanity is not a defense in tort cases except for intentional torts” rule seems to be a little too broad. For example, if a driver is suddenly overcome, without forewarning, by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances, the insanity defense may apply.  In one case, Breunig v American Family Ins. Co. (1970) 45 Wis 2d 536, 173 NW2d 619, 49 ALR3d 179, a victim that suffered personal injuries suffered in an automobile accident. The Defendant suffered a mental delusion while she was driving, as she saw a white light on the back of a car ahead and was under the impression that God was holding the steering wheel and directing her car when the accident occurred. The court held that it was a jury question with regard to whether the driver had knowledge of her schizophrenic, paranoid condition and of likelihood of hallucination while driving.