2020 Georgia Code
Title 51 - Torts
Chapter 1 - General Provisions
§ 51-1-1. Tort Defined

A tort is 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.

(Orig. Code 1863, § 2894; Code 1868, § 2900; Code 1873, § 2951; Code 1882, § 2951; Civil Code 1895, § 3807; Civil Code 1910, § 4403; Code 1933, § 105-101.)

- For article advocating the exhaustion of every possible recovery before closing a tort claim, see 18 Ga. B. J. 301 (1956). For article, "Products Liability Law in Georgia: Is Change Coming?," see 10 Ga. St. B. J. 353 (1974). For article analyzing the trend in this country toward no-fault liability, see 25 Emory L. J. 163 (1976). For article discussing plaintiff conduct and the emerging doctrine of comparative causation of torts, see 29 Mercer L. Rev. 403 (1978). For article discussing the defenses to strict liability in tort, see 29 Mercer L. Rev. 447 (1978). For article examining the significance of distinguishing between tort and contract in Georgia, see 30 Mercer L. Rev. 303 (1978). For article, "Products Liability Law in Georgia Including Recent Developments," see 43 Mercer L. Rev. 27 (1991). For article, "Selected Federal Tort Reform and Restatement Proposals Through the Lenses of Corrective Justice and Efficiency," see 32 Ga. L. Rev. 1017 (1998). For annual survey of tort law, see 57 Mercer L. Rev. 363 (2005). For article, "Causation Actually," see 51 Ga. L. Rev. 1 (2016). For note discussing increased risk of cancer as an actionable injury, see 18 Ga. L. Rev. 563 (1984). For comment, "Medical Expert Systems and Publisher Liability: A Cross-Contextual Analysis," see 43 Emory L.J. 731 (1994).

ANALYSIS

• General Consideration
• Torts Related to Contract
• Pleading and Practice

A tort is the unlawful violation of a private legal right by reason of which some special damage accrues to the individual. Parsons v. Foshee, 80 Ga. App. 127, 55 S.E.2d 386 (1949); First Fed. Sav. Bank v. Fretthold, 195 Ga. App. 482, 394 S.E.2d 128 (1990).

A tort is an injury inflicted otherwise than by mere breach of contract; or, more accurately, a tort is one's disturbance of another in rights which the law has created either in the absence of contract, or in consequence of a relation which a contract has established between the parties. Postal Telegraph-Cable Co. v. Kaler, 65 Ga. App. 641, 16 S.E.2d 77 (1941).

A suit will be treated as a tort action when recovery is based on breach of duty, and not on contract. Bates v. Madison County, 32 Ga. App. 370, 123 S.E. 158 (1924).

In order for tort action to lie, there must be injury to the plaintiff, i.e., some initiating event which is the result of the defendant's negligence and brings that wrongful conduct to light. Cotton States Mut. Ins. Co. v. Crosby, 244 Ga. 456, 260 S.E.2d 860 (1979).

- There must be both a breach of duty and damage because of such breach before there can be a recovery upon the official bond of the clerk of the superior court. Georgia Properties Co. v. Nisbet, 42 Ga. App. 338, 156 S.E. 298 (1930).

It is essential to maintain an action in tort that there must be a duty from the defendant to the plaintiff, and a violation of such duty. Knight v. Atlantic Coast Line R.R., 4 F. Supp. 713 (S.D. Ga. 1933), aff'd, 73 F.2d 76 (5th Cir. 1934).

Third-party does not owe a duty to an employer to refrain from injuring the employer's employee. Traina Enters., Inc. v. Racetrac Petro., Inc., 241 Ga. App. 18, 525 S.E.2d 712 (1999).

When an auctioneer sought damages from the auction company the auctioneer worked for and its principal because the auctioneer was arrested in another state for contracting and advertising for an auction without a license, the auction company and principal were entitled to summary judgment because the auctioneer did not show the auction company or principal violated any duty owed to the auctioneer which caused the auctioneer's injury, as the auctioneer knew, when the auctioneer advertised and contracted for the auction in the other state; further, the auction company did not have a license to conduct an auction in that state, so the auctioneer did not establish the elements necessary to recover for the auction company's or principal's alleged tortious conduct under O.C.G.A. § 51-1-1. Morris v. Gavin, Inc., 268 Ga. App. 771, 603 S.E.2d 1 (2004).

Bank's alleged actions in paying a check over a forged endorsement, depositing the funds in new accounts, and failing to observe reasonable commercial standards, were not violations of any legal right of, or duty owed to, the payee of the check who had never received delivery of the check, and the payee had suffered no damages from these actions. Thus, the actions did not give rise to a tort claim under O.C.G.A. §§ 51-1-1,51-1-6, or51-1-8. Jenkins v. Wachovia Bank, Nat'l Ass'n, 309 Ga. App. 562, 711 S.E.2d 80 (2011).

- Since the city's financing activity in distributing federal HUD money did not extend beyond that of a conventional construction financing authority, the court did not err in granting summary judgment to the city in an action for damages arising from an incomplete and defective renovation construction to the home under a home improvement grant. White v. City of Atlanta, 248 Ga. App. 75, 545 S.E.2d 625 (2001).

Rightful and proper exercise of lawful power or authority cannot afford basis for action. Louisville & N.R.R. v. Jackson, 139 Ga. 543, 77 S.E. 796 (1913).

- Law does not yet attempt to guard the peace of mind, or the happiness of every one by giving recovery of damages for mental anguish for a violation produced by a mere moral wrong; thus, if mental pain and anguish results from mere violation of a mere moral obligation, there can be no recovery in tort. Anderson v. Fussell, 75 Ga. App. 866, 44 S.E.2d 694 (1947).

- Georgia law does not recognize the tort of aiding and abetting a breach of fiduciary duty, and a Georgia court faced with the issue would not be likely to create such a cause of action since the imposition of aider and abettor liability for such breaches essentially extends fiduciary obligations beyond the scope of the confidential or special relationship upon which these duties are based. Munford, Inc. v. Munford, 188 Bankr. 860 (N.D. Ga. 1994), aff'd, 97 F.3d 449 (11th Cir. 1996), 97 F.3d 456 (11th Cir. 1996), aff'd on other grounds, 98 F.3d 604 (11th Cir. 1996).

Georgia law does not recognize spoliation of evidence as a separate tort. Gardner v. Blackston, 185 Ga. App. 754, 365 S.E.2d 545 (1988).

- It is elementary that damage may consist of several items caused by the general wrong or tort. For example, pain and suffering, loss of earning capacity and medical expenses, resulting from and caused by the negligence of a defendant in causing an injury to the person of another. Gloss v. Jacobs, 86 Ga. App. 161, 71 S.E.2d 253 (1952).

Cited in Strachan Shipping Co. v. Hazlip-Hood Cotton Co., 35 Ga. App. 94, 132 S.E. 454 (1926); Wall v. Wall, 176 Ga. 757, 168 S.E. 893 (1933); Sikes v. Foster, 74 Ga. App. 350, 39 S.E.2d 585 (1946); Brigman v. Brenner, 206 Ga. 222, 56 S.E.2d 471 (1949); Dale Elec. Co. v. Thurston, 82 Ga. App. 516, 61 S.E.2d 584 (1950); Hardy v. Leonard, 82 Ga. App. 764, 62 S.E.2d 437 (1950); Freeman v. Busch Jewelry Co., 98 F. Supp. 963 (N.D. Ga. 1951); Aderhold v. Zimmer, 86 Ga. App. 204, 71 S.E.2d 270 (1952); Rhine v. Sanders, 100 Ga. App. 68, 110 S.E.2d 128 (1959); Patillo v. Thompson, 106 Ga. App. 808, 128 S.E.2d 656 (1962); Georgia Elec. Co. v. Smith, 108 Ga. App. 851, 134 S.E.2d 840 (1964); Wittke v. Horne's Enters., Inc., 118 Ga. App. 211, 162 S.E.2d 898 (1968); Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628 (1973); Parzini v. Center Chem. Co., 134 Ga. App. 414, 214 S.E.2d 700 (1975); Davis v. Ben O'Callaghan Co., 139 Ga. App. 22, 227 S.E.2d 837 (1976); Aretz v. United States, 604 F.2d 417 (5th Cir. 1979); Young v. Carrollton Fed. Sav. & Loan Ass'n, 159 Ga. App. 836, 285 S.E.2d 264 (1981); Lavine v. General Mills, Inc., 519 F. Supp. 332 (N.D. Ga. 1981); Habersham Mem. Park v. Moore, 164 Ga. App. 676, 297 S.E.2d 315 (1982); Stone Mt. Game Ranch, Inc. v. Hunt, 746 F.2d 761 (11th Cir. 1984); Hodges v. Tomberlin, 170 Ga. App. 842, 319 S.E.2d 11 (1984); Peterson v. First Clayton Bank & Trust Co., 214 Ga. App. 94, 447 S.E.2d 63 (1994); Workman v. McNeal Agency, Inc., 217 Ga. App. 686, 458 S.E.2d 707 (1995); Rayle Tech, Inc. v. DEKALB Swine Breeders, Inc., 133 F.3d 1405 (11th Cir. 1998); Ga. Farm Bureau Mut. Ins. Co. v. Croley, 263 Ga. App. 659, 588 S.E.2d 840 (2003); Brookview Holdings, LLC v. Suarez, 285 Ga. App. 90, 645 S.E.2d 559 (2007); Bd. of Regents of the Univ. Sys. of Ga. v. One Sixty Over Ninety, LLC, 351 Ga. App. 133, 830 S.E.2d 503 (2019), cert. denied, No. S19C1521, 2020 Ga. LEXIS 118 (Ga. 2020).

This section states that if a duty arises out of a contract, a plaintiff may not convert that action into one sounding in tort. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

- In cases alleging misfeasance or the negligent performance of the contract, a cause of action ex delicto may be had. Mauldin v. Sheffer, 113 Ga. App. 874, 150 S.E.2d 150 (1966).

There are certain classes of contracts which create a relation from which the law implies duties, a breach of which will constitute a tort, and in such cases an injured party may sue either for breach of the contract or in tort for breach of the implied duty. This rule applies in certain contractual relations between principal and agent, bailor and bailee, attorney and client, physician and patient, carrier and passenger or shipper, master and servant, and similar well-recognized relations; but it is not every contractual relation which involves a public duty, the breach of which will support an action in tort. American Oil Co. v. Roper, 64 Ga. App. 743, 14 S.E.2d 145 (1941).

There is no bar to bringing a tort action for the violation of a duty flowing from relations between the parties which were created by contract. City of Douglas v. Johnson, 157 Ga. App. 618, 278 S.E.2d 160 (1981).

If the result of a contract is to create a relationship between the parties, and there are certain duties which the law attaches to that relationship, the breach of one of those duties may give rise to an action in tort. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

- In order to maintain an action ex delicto because of a breach of duty growing out of a contractual relation, the breach must be shown to have been a breach of a duty imposed by law and not merely the breach of a duty imposed by the contract itself. Mauldin v. Sheffer, 113 Ga. App. 874, 150 S.E.2d 150 (1966); Sutker v. Pennsylvania Ins. Co., 115 Ga. App. 648, 155 S.E.2d 694 (1967).

Action in tort may be based on a duty imposed by law in consequence of a contractual relation between the parties. In such a case the action is in no sense based on the contract, especially if none of the expressed provisions are recited, and there is no allegation that any of its expressed provisions were violated, but when the allegation is that the defendant company failed to transmit and deliver the message with the impartiality, good faith, and due diligence required by law. Postal Telegraph-Cable Co. v. Kaler, 65 Ga. App. 641, 16 S.E.2d 77 (1941).

"Duty imposed by law" as used in this context means either a duty imposed by a valid statutory enactment of the General Assembly or a duty imposed by a recognized common-law principle declared in the reported decisions of the appellate courts of the state or jurisdiction involved. Sutker v. Pennsylvania Ins. Co., 115 Ga. App. 648, 155 S.E.2d 694 (1967).

To maintain an action in tort because of a breach of duty growing out of a contractual relation, the breach must be shown to have been a breach of duty imposed by statute or a duty imposed by a recognized common-law principle. Deacon v. Deacon, 122 Ga. App. 513, 177 S.E.2d 719 (1970).

Appellate court rejected an insurer's assertion that its insured's individual tort claims failed because a tort was the unlawful violation of a private legal right other than a mere breach of contract, express or implied, as the duties the insured alleged that the insurer violated did not arise merely from contract but were also imposed by O.C.G.A. § 33-31-9. J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372, 634 S.E.2d 123 (2006).

- Tort is dependent on the contract only to the extent necessary to raise the duty, and a suit will be treated as a tort action when the recovery is placed on a breach of duty and not on a contract. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58, 182 S.E. 205 (1935); Simmons v. May, 53 Ga. App. 454, 186 S.E. 441 (1936).

- In a case in which a car buyer appealed a district court's entry of summary judgment in favor of the lender because the buyer's theft claim was encompassed by the buyer's breach-of-contract claim, it was unnecessary to address whether the buyer had a cause of action under tort law. O.C.G.A. § 51-1-1 provided that a tort was the unlawful violation of a private legal duty other than a mere breach of contract, express or implied. Goia v. Citifinancial Auto, 499 Fed. Appx. 930 (11th Cir. Dec. 3, 2012)(Unpublished).

- Breach of an executory contract, into which a railroad company was under no legal duty to enter, is not a tort. Louisville & N.R.R. v. Spinks, 104 Ga. 692, 30 S.E. 968 (1898); Howard v. Central of Ga. Ry., 9 Ga. App. 617, 71 S.E. 1017 (1911).

An action in tort may not be maintained when the neglect of duty complained of, as distinguished from the negligent performance of duty, is specifically provided for by the contract itself. Monroe v. Guess, 41 Ga. App. 697, 154 S.E. 301 (1930).

If there is no liability except that arising out of a breach of the express terms of the contract, the action must be in contract, and an action in tort cannot be maintained. American Oil Co. v. Roper, 64 Ga. App. 743, 14 S.E.2d 145 (1941); Rhine v. Sanders, 100 Ga. App. 68, 110 S.E.2d 128 (1959); Mauldin v. Sheffer, 113 Ga. App. 874, 150 S.E.2d 150 (1966).

While it is true that the violation of some private obligation by which damage accrues, which is not the result of a mere neglect of duty expressly or impliedly provided for by the contract itself, can be treated as a tort and affords a right or cause of action, the principle cannot be applied so as to authorize an interpretation that the former suit sounded in tort, for the reason that the wrong complained of was simply the failure of the defendants to comply with their clearly implied duty under the contract to surrender the alleged collateral upon a proper tender of the alleged indebtedness being made. Spence v. Erwin, 200 Ga. 672, 38 S.E.2d 394 (1946).

It is not every breach of contract that gives a cause of action in tort; and so, when the breach complained of is simply the neglect of a duty such as is expressly provided for by the contract itself, the action will be construed and treated as one brought ex contractu. This principle is applicable also when the breach complained of is simply the neglect of a duty provided by the contract by implication, either of law or of fact. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255 (1966).

- Nonfeasance or the mere failure to perform a contract at all affords no basis for an action ex delicto, even though the failure to perform may have been characterized as negligent. Mauldin v. Sheffer, 113 Ga. App. 874, 150 S.E.2d 150 (1966); Lane v. Corbitt Cypress Co., 215 Ga. App. 388, 450 S.E.2d 855 (1994).

When there is no special relationship beyond the mere contractual one, a failure to perform in accordance with its terms will not constitute a tort as to the other contracting party. Waddey v. Davis, 149 Ga. App. 308, 254 S.E.2d 465 (1979).

Trial court erred in granting the defendants' joint motion for judgment on the pleadings as a chief executive officer (CEO) set forth a breach of fiduciary duty claim because, although a majority owner of an employer could terminate the CEO's contract without cause, the founders of the employer were bound by an employment contract, which purported to establish a confidential relationship. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).

Absent special relationship, misfeasance/nonfeasance distinction controls in deciding if the harm done to the plaintiff will permit a cause of action in negligence as well as in contract; in the absence of bodily injury or damage to property, only a cause of action in contract is available. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

- That a party occupies a status that sometimes gives rise to professional duties, does not transform all contract disagreements into torts based on a professional relationship. Kaiser Aluminum & Chem. Corp. v. Ingersoll-Rand Co., 519 F. Supp. 60 (S.D. Ga. 1981).

When claim lay for breach of contract for failure to pay commissions, no action for conversion of the money owed under that contract was maintainable. Faircloth v. A.L. Williams & Assocs., 206 Ga. App. 764, 426 S.E.2d 601 (1992).

- Fraud claim survived summary judgment because there was sufficient evidence that the corporation promised the plaintiff a substantial sum if a certain manufacturer began to factory fill a line of vehicles with the corporation's synthetic oil, that it was reasonable to rely on that promise, and that it could be inferred that the corporation never had any intention to "work out" the compensation plan. Morrison v. Exxonmobil Corp. Constr. Millwright, Inc., F. Supp. 2d (M.D. Ga. Sept. 28, 2005).

- In a breach of fiduciary duty and fraud action, whether the jury verdict winner, an investment company, was a party to the three contracts that kickbacks were paid under was not relevant to the contract's claims for breach of fiduciary duty and fraud because those claims were in tort, not contract. Wright v. Apt. Inv. & Mgmt. Co., 315 Ga. App. 587, 726 S.E.2d 779 (2012).

- When a person is employed by a corporation for wages, and after the employee has earned wages under the contract of employment, and the employer refuses to pay the employee the wages earned without legal process and in wanton disregard of the employee's rights and against the employee's will, the only recourse available to the employee is an action for a breach of the contract of employment, as the only duty placed upon the employer arises solely by reason of the contract. Mitchell v. Southern Dairies, Inc., 77 Ga. App. 771, 49 S.E.2d 912 (1948).

- When the work being undertaken is at the instance of the employer - and particularly when the alleged tortfeasor is working under contract with the employer and must perform the work subject to the employer's requirements as to time and place of performance - and when the employer unilaterally instructs the other party (the contractor) to delay completion of the work until some later time which is convenient for the employer, the contractor cannot be held liable for an injury to an employee which arguably may be a result of the failure to complete the work contracted for. Church v. SMS Enters., 186 Ga. App. 791, 368 S.E.2d 554 (1988).

Tortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract. Jet Air, Inc. v. National Union Fire Ins. Co., 189 Ga. App. 399, 375 S.E.2d 873 (1988).

- Trial court properly granted a judgment on the pleadings for a limited liability company, its founders, and a corporation as a president was attempting to treat an unjust enrichment claim like a tort; a claim for unjust enrichment was not a tort, but an alternative theory of recovery if a contract claim failed, and the parties had a contract and the unjust enrichment claim failed as a matter of law. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).

Trial court properly entered judgment on the pleadings for a majority owner of an employer on a chief executive officer's tortious interference with an employment contract claim as the owner had a financial interest in the employer, which was a party to the contract. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).

Trial court properly entered judgment on the pleadings for a majority owner of an employer on a tortious interference with prospective employment claim brought by a chief executive officer (CEO) as there was no evidence that the CEO had an employment offer from a corporation; the claim was predicated on the CEO's termination by the employer and the owner was not a stranger to the employment contract. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).

Pleading and Practice

Elements of complaint.

- All that a plaintiff in tort need allege to withstand the attack of a general demurrer (now motion to dismiss) is the factum of the duty, whether by contract or otherwise, a violation of that duty, and damages resulting from that violation. Parsons v. Foshee, 80 Ga. App. 127, 55 S.E.2d 386 (1949); Atlanta Paper Co. v. Sigmon, 82 Ga. App. 730, 62 S.E.2d 363 (1950).

- Nature of an action is to be determined, not by the designation of the pleader, but by the intrinsic contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the kind of relief sought. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255 (1966).

- Petition alleging that the lessor in a contract of rental had broken several of the contract's terms with the willful and malicious purpose of destroying the business of the lessee, and had thus destroyed the business, did not set forth an actionable tort, the proper remedy of the lessee being an action for breach of contract. Georgia Kaolin Co. v. Walker, 54 Ga. App. 742, 189 S.E. 88 (1936).

Petition sounding in tort which fails to allege an actionable negligence and which fails to allege any physical injury to the person or any pecuniary loss, does not set forth a cause of action, and is subject to dismissal. Anderson v. Fussell, 75 Ga. App. 866, 44 S.E.2d 694 (1947).

When all the damages claimed resulted from the trespass committed, which was a continuing one and which the plaintiff was entitled to plead, the declaration was not subject to special demurrers (now motion to dismiss). Gloss v. Jacobs, 86 Ga. App. 161, 71 S.E.2d 253 (1952).

When duty arose by reason of contract, but it was the violation of the duty, and not the violation of the contract, on which the plaintiff laid the plaintiff's case, the petition set out a cause of action. Frank Graham Co. v. Graham, 90 Ga. App. 840, 84 S.E.2d 579 (1954).

Original petition set out a specific cause of complaint sufficiently to be amendable, since, if the petition was defective in any wise, the petition was only in that the petition omitted to allege sufficiently facts essential to raise the duty or obligation in the cause of action, and the trial court erred in holding that there was not enough in the original petition to amend by. Cannon v. Hood Constr. Co., 91 Ga. App. 20, 84 S.E.2d 604 (1954).

When the plaintiff's petition is based on the defendant's alleged nonfeasance of duty provided by contract and not on the defendant's misfeasance, it does not set forth a cause of action ex delicto. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255 (1966).

Contractor's complaint averring that its expectations arising under the contract between contractor and roofing subcontractor and made applicable to supplier by its agreement with roofing subcontractor were not met, the basis of which was the alleged failure of supplier to deliver roofing material which met the specifications in the contract ("negligent delivery"), not asserting that the roofing material supplied damaged other portions of the building, did not state a claim for damages actionable under a theory of negligence. A.J. Kellos Constr. Co. v. Balboa Ins. Co., 495 F. Supp. 408 (S.D. Ga. 1980).

Denial of summary judgment based on any type of tortious interference with a contract right to exercise an option to purchase was in error since both the original and the amended complaint revealed a lack of compliance with the notice requirement regarding any alleged tortious interference of contract. Bowling v. Gober, 206 Ga. App. 38, 424 S.E.2d 335 (1992).

RESEARCH REFERENCES

Am. Jur. 2d.

- 74 Am. Jur. 2d, Torts, § 1 et seq.

- 86 C.J.S., Torts, § 1 et seq.

- Effect of statute permitting state to be sued upon the question of its liability for negligence or tort, 13 A.L.R. 1276; 169 A.L.R. 105.

Contractual relationship as affecting right of action for death, 115 A.L.R. 1026.

Prima facie tort, 16 A.L.R.3d 1191.

Liability in tort for interference with physician's contract or relationship with hospital, 7 A.L.R.4th 572.

Propriety of allowing person injured in motor vehicle accident to proceed against vehicle owner under theory of negligent entrustment where owner admits liability under another theory of recovery, 30 A.L.R.4th 838.

Liability for injury or damage caused by snowplowing or snow removal operations and equipment, 83 A.L.R.4th 5.

Liability for tortious interference with prospective contractual relations involving sale of business, stock, or real estate, 71 A.L.R.5th 491.

Negligent spoliation of evidence, interfering with prospective civil action, as actionable, 101 A.L.R.5th 61.