2020 Georgia Code
Title 51 - Torts
Chapter 12 - Damages
Article 1 - General Provisions
§ 51-12-9. How Remoteness Ascertained

Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.

(Orig. Code 1863, § 3005; Code 1868, § 3018; Code 1873, § 3073; Code 1882, § 3073; Civil Code 1895, § 3913; Civil Code 1910, § 4510; Code 1933, § 105-2009.)

- For article discussing plaintiff conduct and the emerging doctrine of comparative causation of torts, see 29 Mercer L. Rev. 403 (1978). For article, "Jury Instructions and Proximate Cause: An Uncertain Trumpet in Georgia," see 27 Ga. St. B. J. 60 (1990). For note discussing tavern keeper liability in Georgia for injury caused by a person to whom an intoxicant was sold, see 9 Ga. L. Rev. 239 (1974). For comment on Robinson v. Pollard, 131 Ga. App. 105, 205 S.E.2d 86 (1974), holding owner of motor vehicle has no duty to third person injured by intermeddler, see 26 Mercer L. Rev. 373 (1974).

ANALYSIS

• General Consideration
• Proximate Cause
• Applicability to Specific Cases
• Jury Instructions and 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).

- First sentence of this section is an application to the law of damages of the rule that a man intends the natural and probable consequences of one's act. The liability for all injury follows from the prime, leading cause. Rucker v. Athens Mfg. Co., 54 Ga. 84 (1875); Gaskins v. City of Atlanta, 73 Ga. 746 (1884); Reeves v. Maynard, 32 Ga. App. 380, 123 S.E. 181, cert. denied, 32 Ga. App. 807 (1924).

The second sentence of this section is the converse proposition of the first, namely, an intervening independent cause may cause the damage, and absolve the defendant from liability. Brimberry v. Savannah, Fla. & W. Ry., 78 Ga. 641, 3 S.E. 274 (1887).

An exception to former Code 1933, § 105-2009 (see now O.C.G.A. § 51-12-9) was created by former Code 1933, § 105-2010 (see now O.C.G.A. § 51-12-10), permitting the jury to consider remote damages when the breach of the contract, or the tort, is intentional and for the purpose of depriving the party injured of remote benefits. Spires v. Goldberg, 26 Ga. App. 530, 106 S.E. 585 (1921).

Georgia law requires that injury be natural and probable consequence of negligence. Maddox Coffee Co. v. Collins, 46 Ga. App. 220, 167 S.E. 306 (1932); Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933); Douglas v. Smith, 578 F.2d 1169 (5th Cir. 1978).

In tort actions consequential damages which are the necessary and connected effect of the tortious act, and which are the legal and natural result of the act, may be recovered, though contingent to some extent. Kroger Co. v. Perpall, 105 Ga. App. 682, 125 S.E.2d 511 (1962).

Damages growing out of breach of contract, in order to form basis of recovery, must be such as could be traced solely to breach, be capable of exact computation, must have arisen according to the usual course of things, and be such as the parties contemplated as a probable result of such breach. Lankford v. Trust Co. Bank, 141 Ga. App. 639, 234 S.E.2d 179 (1977).

- If damages are traceable to an act of negligence, but are not its legal or material consequence, or if other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote and contingent to be the basis of a recovery. Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 99 S.E.2d 209 (1957).

- If the defendant should have foreseen that some injury would likely result from a defect of which the defendant had knowledge, or of which the defendant should have known, it is not essential to liability that the defendant should have anticipated the particular injury which did in fact result. Mathis v. Mathis, 42 Ga. App. 1, 155 S.E. 88 (1930).

It is not necessary to a defendant's liability, after the defendant's negligence has been established, to show, in addition thereto, that the consequences of the defendant's negligence could have been foreseen by the defendant; it is sufficient that the injuries are the natural, though not the necessary and inevitable result of the negligence fault - such injuries as are likely, in ordinary circumstances, to ensue from the act or omission in question. Watkins v. Jacobs Pharmacy Co., 48 Ga. App. 38, 171 S.E. 830 (1933).

A person charged with negligence is liable only for those injuries which a prudent man in the exercise of care could have reasonably foreseen or expected as the natural and probable consequence of the person's act or the person's omission of duty. Watkins v. Jacobs Pharmacy Co., 48 Ga. App. 38, 171 S.E. 830 (1933).

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 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 the exercise of reasonable care, the defendant might have foreseen that some injury would result from the defendant's act or omission, or that the 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); Corey v. Jones, 650 F.2d 803 (5th Cir. 1981).

To hold the defendant liable, it must be shown either that the act complained of was the sole occasion of injury, or that it put in operation other causal forces, such as were direct, natural, and probable consequences of the original act or that intervening agency could have reasonably been anticipated or foreseen by the defendant as the original wrongdoer. Kells v. Northside Realty Assocs., 156 Ga. App. 164, 274 S.E.2d 66 (1980).

Result intended by wrongdoer cannot be remote. Bankers Health & Life Ins. Co. v. Fryhofer, 114 Ga. App. 107, 150 S.E.2d 365 (1966).

Cited in Georgia R.R. v. Hayden, 71 Ga. 518, 51 Am. R. 274 (1883); Willingham v. Hooven, Owens, Rentschler & Co., 74 Ga. 233, 58 Am. R. 435 (1884); Stewart v. Lanier House Co., 75 Ga. 582 (1885); Western Union Tel. Co. v. Manson, 21 Ga. App. 737, 94 S.E. 1033 (1918); Hughes v. Bivins, 31 Ga. App. 198, 121 S.E. 590 (1923); Haas & Haas v. Marks, 158 Ga. 267, 123 S.E. 109 (1924); Rome Ry. & Light Co. v. King, 33 Ga. App. 383, 126 S.E. 294 (1925); Cochran v. Wadley S. Ry., 44 Ga. App. 208, 160 S.E. 706 (1931); Millirons v. Blue, 48 Ga. App. 483, 173 S.E. 443 (1934); Lawrence v. Atlanta Gas Light Co., 49 Ga. App. 444, 176 S.E. 75 (1934); Weathers Bros. Transf. Co. v. Jarrell, 72 Ga. App. 317, 33 S.E.2d 805 (1945); East Ala. Coach Lines v. Boyd, 80 Ga. App. 93, 55 S.E.2d 634 (1949); Freeman v. Busch Jewelry Co., 98 F. Supp. 963 (N.D. Ga. 1951); 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); Hodge v. Dixon, 119 Ga. App. 397, 167 S.E.2d 377 (1969); Millard v. AAA Electrical Contractors & Eng'rs, 119 Ga. App. 548, 167 S.E.2d 679 (1969); Carr v. Jacuzzi Bros., 133 Ga. App. 70, 210 S.E.2d 16 (1974); Church's Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979); Sam Finley, Inc. v. Barnes, 156 Ga. App. 802, 275 S.E.2d 380 (1980); Club Mediterranee v. Stedry, 159 Ga. App. 53, 283 S.E.2d 30 (1981); Davis v. Cincinnati Ins. Co., 160 Ga. App. 813, 288 S.E.2d 233 (1982); Hill Aircraft & Leasing Corp. v. Tyler, 161 Ga. App. 267, 291 S.E.2d 6 (1982); Wanless v. Winner's Corp., 177 Ga. App. 783, 341 S.E.2d 250 (1986); All-Georgia Dev., Inc. v. Kadis, 178 Ga. App. 37, 341 S.E.2d 885 (1986); Newman v. Collins, 186 Ga. App. 595, 367 S.E.2d 866 (1988); Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 397 S.E.2d 576 (1990); Barber v. Collins, 201 Ga. App. 104, 410 S.E.2d 444 (1991); Construction Lender, Inc. v. Sutter, 228 Ga. App. 405, 491 S.E.2d 853 (1997); Tucker Fed. Savs. & Loan Ass'n v. Balogh, 228 Ga. App. 482, 491 S.E.2d 915 (1997).

Proximate cause is defined in this section. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 222 S.E.2d 105 (1975).

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).

Phrase "proximate cause" refers to efficient cause, and in this sense is sometimes referred to as the "immediate and direct" cause, as opposed to "remote." Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).

Efficient, proximate, or intervening cause is force or operating factor without which accident could not have happened and must be active, operative, and containing within itself the possibility of potentiality for harm. Cain v. Georgia Power Co., 53 Ga. App. 483, 186 S.E. 229 (1936).

In determining what constitutes proximate cause, each case must depend for solution upon its own particular facts. McGinnis v. Shaw, 46 Ga. App. 248, 167 S.E. 533 (1933).

- To warrant a recovery in damages, the causal connection, between the negligence or wrong done and the physical injury suffered, must be proved by facts based upon direct testimony, or the opinion of experts, and must not depend upon conjecture or guesswork. Western Union Tel. Co. v. Ford, 10 Ga. App. 606, 74 S.E. 70 (1912).

In order to establish proximate cause, it is necessary that there be a causal connection between negligent act and injury. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933).

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).

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. McGinnis v. Shaw, 46 Ga. App. 248, 167 S.E. 533 (1933); Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).

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 both acts of negligence contributed directly and concurrently in bringing about the injury, the acts together will constitute the proximate cause. McGinnis v. Shaw, 46 Ga. App. 248, 167 S.E. 533 (1933); Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949); Herren v. Abba Cab Co., 155 Ga. App. 443, 271 S.E.2d 11 (1980); Corey v. Jones, 650 F.2d 803 (5th Cir. 1981).

Now, if it appears that the injury resulted from a condition into which there entered both negligent and nonnegligent activities, and that according to the laws of human probability the injury would not have resulted but for the negligent activities, and that, when the negligent and nonnegligent activities united, the injury naturally followed, the law disregards the nonnegligent activities as causes, considers them as but a part of the normal environment, and considers the negligent actor as disturbing that normality, and therefore as being the juridic cause of the injury. Newill v. Atlanta Gas Light Co., 48 Ga. App. 226, 172 S.E. 232 (1933).

- If two negligent acts are so related that the first would not probably have resulted in injury if the other had not occurred, and the latter amounts, to such a preponderating cause that it probably would have produced the injury even if the first negligence had not occurred, or if the author of the latter negligence, with the intermediate effects of the former negligence consciously before the author, is guilty of a new negligent act which preponderates in producing the injurious effect, we say that the first negligent cause is not the proximate cause, that the intervention of the latter negligence breaks the chain of causal connection so far as juridic purposes are concerned. Cain v. Georgia Power Co., 53 Ga. App. 483, 186 S.E. 229 (1936).

To relieve the defendant from liability when both the defendant and a third party were negligent, it must appear that the negligence of the third party intervened and superseded the defendant's negligence. Herren v. Abba Cab Co., 155 Ga. App. 443, 271 S.E.2d 11 (1980).

Applicability to Specific Cases

1. Lost Profits

Recovery may be had for loss of profits, provided their loss is proximate result of the defendant's wrong and the loss can be shown with reasonable certainty. The profits recoverable in such cases are limited to probable, as distinguished from possible benefits, and the losses 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 the losses proceed. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369, 53 S.E.2d 718 (1949).

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).

Claim for damages by reason of loss of anticipated profits is too remote, conjectural, and speculative to afford basis for cause of action. Tovell v. Legum, 207 Ga. 193, 60 S.E.2d 339 (1950).

- 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 the profits traceable directly to the defendant's wrongful act, the profits 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).

The general rule is that the expected profits of a 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); Roswell Apts., Inc. v. D.L. Stokes & Co., 105 Ga. App. 163, 123 S.E.2d 682 (1961).

Loss of prospective profits is ordinarily too remote for recovery. Slater v. Russell, 100 Ga. App. 563, 112 S.E.2d 178 (1959).

2. Intervening Acts

Intervening act may break causal chain.

- There can be no proximate cause when there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by the defendant, was not triggered by the defendant's act, and which was sufficient of itself to cause the injury. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 222 S.E.2d 105 (1975).

Principle of remoteness is applicable to situations when intervening agency, such as negligence of another, preponderates in causing plaintiff's injury. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

- 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, subsequently 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); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980); Herren v. Abba Cab Co., 155 Ga. App. 443, 271 S.E.2d 11 (1980).

Although ordinarily an intervening cause breaks the chain of causation, a defendant may still be liable if the probable consequences could have been reasonably anticipated. Douglas v. Smith, 578 F.2d 1169 (5th Cir. 1978).

The rule 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, would not apply if the defendant had reasonable grounds for apprehending that such wrongful act would be committed. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980); Decker v. Gibson Prods. Co., 679 F.2d 212 (11th Cir. 1982).

- The mere negligence of a third person in failing to guard against the defect or specific act or omission of the defendant which caused the injury will not constitute an intervening efficient act which will relieve the defendant from liability. But, when the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of the third person or the conjunctive acts or omissions of such person and the plaintiff, the defendant cannot be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury. The liability of the defendant is limited to those consequences which it should reasonably have anticipated as the natural and probable result of its own act or omission. Georgia Power Co. v. Kinard, 47 Ga. App. 483, 170 S.E. 688 (1933).

- In a suit for damages, when it appears upon the face of the plaintiff's petition that there intervened between the alleged negligence of the defendant and the damage sustained by the plaintiff the independent criminal act of a third person, which was the direct and proximate cause of the damage, the petition should be dismissed on general demurrer (now motion to dismiss). Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 99 S.E.2d 209 (1957); Blakely v. Johnson, 220 Ga. 572, 140 S.E.2d 857 (1965).

- A party is not guilty of an actionable nuisance when the injurious consequences were caused by the acts of others. Brimberry v. Savannah, Fla. & W. Ry, 78 Ga. 641, 3 S.E. 274 (1887).

- Wind, unless extraordinary, is not to be regarded as an intervening proximate cause, after a railway company negligently allows fire to escape from its locomotive and it is communicated to adjacent property. East Tenn., Va. & Ga. Ry. v. Hesters, 90 Ga. 11, 15 S.E. 828 (1892); Albany & N. Ry. v. Wheeler, 6 Ga. App. 270, 64 S.E. 1114 (1909).

3. Miscellaneous

Injury resulting from police officer's high speed pursuit.

- The rule formulated by the Court of Appeals in Mixon v. City of Warner Robins, 209 Ga. App. 414, 434 S.E.2d 71 (1993), is problematic in that there is no guidance as to how to establish what "threat to public safety" is "ordinarily incident to high speed police pursuits" so as to determine whether a plaintiff has shown a "higher threat" in a particular situation. Mixon v. City of Warner Robins, 264 Ga. 385, 444 S.E.2d 761 (1994), superseded by statute as stated in City of Winder v. McDougald, 276 Ga. 866, 583 S.E.2d 879 (2003). But see Pearson v. City of Atlanta, 231 Ga. App. 96, 499 S.E.2d 89 (1998), overruled on other grounds by Strength v. Lovett, 311 Ga. App. 35, 714 S.E.2d 723 (2011).

The fact that an officer was performing the officer's professional duty in pursuing a suspect did not preclude the imposition of liability; the decision to initiate or continue pursuit of a suspect could be negligent when heightened risk of injuries to third parties was unreasonable in relation to the interest in apprehending the suspect, so that genuine issues of material fact existed as to the reasonableness of the officer's conduct. Mixon v. City of Warner Robins, 264 Ga. 385, 444 S.E.2d 761 (1994), superseded by statute as stated in City of Winder v. McDougald, 276 Ga. 866, 583 S.E.2d 879 (2003). But see Pearson v. City of Atlanta, 231 Ga. App. 96, 499 S.E.2d 89 (1998), overruled on other grounds by Strength v. Lovett, 311 Ga. App. 35, 714 S.E.2d 723 (2011).

A motorcycle police officer's high speed pursuit of a vehicle that had already been traveling at an excessive speed before the pursuit began does not constitute "proximate cause" of an accident that occurred between the speeding vehicle and another motorist. Sammor v. Mayor of Savannah, 176 Ga. App. 176, 335 S.E.2d 434 (1985).

- There was no evidence that the driver could have anticipated the drunk front seat passenger's suicidal criminal act before the fatal collision. Brown v. Mobley, 227 Ga. App. 140, 488 S.E.2d 710 (1997).

- 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).

Conduct of sheriff and deputies in transporting a felon was too remote to be the basis of recovery for the death of the plaintiff's husband, who was accidentally shot and killed by the felon using a gun wrested from a deputy during a successful escape attempt shortly before the shooting incident. Collie v. Hutson, 175 Ga. App. 672, 334 S.E.2d 13 (1985).

- When death resulted to a person, because a physician was delayed, solely from the negligence of a telephone company to answer the call, an action for damages under this section may lie. Glawson v. Southern Bell Tel. & Tel. Co., 9 Ga. App. 450, 71 S.E. 747 (1911).

- Injury to the pride or manhood of the plaintiff is not the direct result of defendant's act or the basis of damages. Atlanta & R. Air Line R.R. v. Wood, 48 Ga. 565 (1873).

- When one has violated the penal statute, which forbids the sale of a pistol to a minor, and injury results therefrom, one should be held liable for the resulting damages. Spires v. Goldberg, 26 Ga. App. 530, 106 S.E. 585 (1921).

- As a general rule under the provision of this section, an evicted passenger cannot recover for inconveniences, hardship, or injury to health originating after reaching the station to which the passenger is entitled to be carried, or needlessly caused by walking and exposure before reaching there. Georgia R.R. & Banking Co. v. Eskew, 86 Ga. 641, 12 S.E. 1061 (1891).

Railroad cannot be liable for damage that a passenger, who missed the passenger's stop, may have sustained while at a hotel, in consequence of any negligence on the part of the hotel's proprietor. Central of Ga. Ry. v. Price, 106 Ga. 176, 32 S.E. 77 (1898).

- Mental and physical suffering resulting from a delay by a telegraph company to promptly forward a telegram are not items of damages. Seifert v. Western Union Tel. Co., 129 Ga. 181, 58 S.E. 699, 121 Am. St. R. 210, 11 L.R.A. (n.s.) 1149 (1907).

- When the owners of a restaurant suffered no physical impact or injury of any kind when bricks collapsed and caused damage to their restaurant, and it was clear from their testimony that their alleged mental anguish did not result from shock or fright at the trespass, but was a consequence of their worry and distress over the failure of their business and subsequent bankruptcy, damages traceable to the act, but which were not its legal and natural consequence, were too remote and contingent to be recovered. Broadfoot v. Aaron Rents, Inc., 200 Ga. App. 755, 409 S.E.2d 870 (1991).

- When the plaintiff, while riding a bicycle was injured by a collision with a horse and buggy, in a crowded street, the city is not liable to the plaintiff because of the city's failure to keep the streets unobstructed. Shaw v. Mayor of Macon, 6 Ga. App. 306, 64 S.E. 1102 (1909).

- When the damage to the property of the plaintiff was produced by a natural slope of the land, the defendant cannot be held liable merely because the defendant constructed ditches. Brimberry v. Savannah, Fla. & W. Ry, 78 Ga. 641, 3 S.E. 274 (1887).

- The chances that the plaintiff has for promotion are not an item of damages under this section. Richmond & D.R.R. v. Allison, 86 Ga. 145, 12 S.E. 352, 11 L.R.A. 43 (1890).

- On motion for summary judgment, when a bank customer introduced proof that the payee of a wrongfully dishonored check would not have accepted any untimely tender of the amount owed after the first check was dishonored, the bank had the burden of establishing as a matter of law that the damages the customer suffered were not the result of the bank's wrongful dishonor of the check. Malak v. First Nat'l Bank, 195 Ga. App. 105, 393 S.E.2d 267 (1990).

- Plaintiff had no cognizable claim for damage to the plaintiff's credit reputation which could be attributed to the collapse of an adjacent building since there was evidence that the restaurant had been in financial trouble from the day it opened and had consistently lost money. Broadfoot v. Aaron Rents, Inc., 200 Ga. App. 755, 409 S.E.2d 870 (1991).

Jury Instructions and Decisions

Improper charge of section.

- It is error to charge that the plaintiff must show that the plaintiff's damage was the usual, direct, and necessary consequence of the wrongful act. Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809, 49 S.E. 839 (1905); Georgia Ry. & Power Co. v. Howell, 28 Ga. App. 798, 113 S.E. 101 (1922).

Question of proximate cause is one for jury except in palpably clear and indisputable cases. Crankshaw v. Piedmont Driving Club, Inc., 115 Ga. App. 820, 156 S.E.2d 208 (1967).

- Questions as to diligence and negligence, including contributory negligence, and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, except when the solution of the question appears to be palpably clear, plain, and indisputable. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

The determination of questions as to negligence lies peculiarly within the province of the jury, and, in the exercise of this function, the question as to what constitutes the proximate cause of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to. McGinnis v. Shaw, 46 Ga. App. 248, 167 S.E. 533 (1933).

The determination of the proximate cause of an injury is for determination by the jury except in clear and unmistakable cases, and not for determination as a matter of law by the court. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933).

When the proximate cause of an injury depends upon a state of facts from which different minds might reasonably draw different inferences, it is a question for consideration by a jury. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933).

Except in plain and indisputable cases, what negligence as well as whose negligence constitutes the proximate cause of an injury is for determination by the jury under proper instructions from the court. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 51 S.E.2d 705 (1949).

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).

Ordinarily the question of proximate cause is a question of fact properly for determination by the jury under appropriate instructions from the court as to the applicable principles of law. It is only in plain and indisputable cases that the court as a matter of law will undertake to determine it. Georgia Power Co. v. Womble, 150 Ga. App. 28, 256 S.E.2d 640 (1979).

When the evidence does not plainly, palpably and indisputably show a lack of proximate cause, the issue of proximate cause, as well as that of negligence, is for the jury. DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811, 278 S.E.2d 712 (1981).

- Only when it clearly appears from the petition that the negligence charged was not the proximate and effective cause of the injury that the court may upon general demurrer (now motion to dismiss), as a matter of law, so determine. Maddox Coffee Co. v. Collins, 46 Ga. App. 220, 167 S.E. 306 (1932).

The court must assume the burden of deciding the question of proximate cause when a jury can draw but one reasonable conclusion if the facts alleged are proved, that conclusion being that the acts of the defendant were not the proximate cause of the injury. Crankshaw v. Piedmont Driving Club, Inc., 115 Ga. App. 820, 156 S.E.2d 208 (1967).

While the question of proximate cause is usually submitted to the jury as a question of fact, it may be decided as a matter of law when the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, that the defendant's acts were not the proximate cause of the injury. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 222 S.E.2d 105 (1975); Kells v. Northside Realty Assocs., 156 Ga. App. 164, 274 S.E.2d 66 (1980).

RESEARCH REFERENCES

Am. Jur. 2d.

- 22 Am. Jur. 2d, Damages, § 500.

- 25 C.J.S., Damages, § 36 et seq.

- Liability for loss of property left unprotected when owner was wrongfully arrested, 5 A.L.R. 362.

Right of landowner to recover for personal injuries incidental to trespass on his land, 32 A.L.R. 921.

Liability of carrier which negligently delays transportation or delivery for loss of or damage to goods from causes for which it is not otherwise responsible, 46 A.L.R. 302.

Liability of one who leaves building materials accessible to children for injury to third person by child's act, 62 A.L.R. 833.

Responsibility of negligent driver of automobile or his employer for damages immediately inflicted by another car, 62 A.L.R. 1181.

Negligence causing accident or threatening property damage as proximate cause of injury sustained in an effort to recover the property or avoid damages, 64 A.L.R. 515; 166 A.L.R. 752.

Intervening criminal act as breaking causal chain, 78 A.L.R. 471.

Injury as proximate cause of death where disease intervenes, 79 A.L.R. 351.

Liability of manufacturer or packer of defective article for injury to person or property of ultimate consumer who purchased from a middleman, 88 A.L.R. 527; 105 A.L.R. 1502; 111 A.L.R. 1239; 140 A.L.R. 191, 142 A.L.R. 1490.

Inadequacy of appliance for purpose contemplated by safety appliance act as proximate cause of and ground of liability for injury to employee who was using it for another purpose, 96 A.L.R. 1138.

Sufficiency of instruction on contributory negligence as respects the element of proximate cause, 102 A.L.R. 411.

Damage incident to travel on detour as part of recovery for wrongfully preventing or impeding use of highway, 106 A.L.R. 1305.

Determination of quantum of damages for injury to property recoverable against defendant whose wrong concurred with act of God, 112 A.L.R. 1084.

Admissibility, as against objection of remoteness, of evidence as to past earnings, upon issue as to amount of damages in action for personal injury or death, 130 A.L.R. 164; 81 A.L.R.2d 733.

Foreseeability as an element of negligence and proximate cause, 155 A.L.R. 157; 100 A.L.R.2d 942.

Ejection of passenger as ground of motorbus carrier's liability for subsequent injury or death, 165 A.L.R. 545.

Liability of person furnishing, installing, or maintaining burglar alarm for loss from burglary, 165 A.L.R. 1254.

Negligence causing automobile accident as proximate cause of injury or death resulting from acts done or attempted with reference to person or property involved, 166 A.L.R. 752.

Loss of profits of a business in which plaintiff is interested as a factor in determining damages in action for personal injuries, 12 A.L.R.2d 288.

Negligence causing dazed or stunned condition as proximate cause of injuries occasioned by such condition, 29 A.L.R.2d 690.

Liability of private person negligently causing malfunctioning, removal, or extinguishment of traffic signal or sign for subsequent motor vehicle accident, 64 A.L.R.2d 1364.

Admissibility, as against objection of remoteness, of evidence as to past earnings, upon issue as to amount of damages in action for personal injury or death, 81 A.L.R.2d 733.

Obstruction of sidewalk as proximate cause of injury to pedestrian forced to go into street and there injured, 93 A.L.R.2d 1187.

Foreseeability as an element of negligence and proximate cause, 100 A.L.R.2d 942.

Right of tort-feasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment, 8 A.L.R.3d 639.

Injury or disability resulting from medical treatment for accident as proximately caused by original accident within coverage of accident or disability insurance, 25 A.L.R.3d 1386.

Proximate cause: liability of tort-feasor for injured person's subsequent injury or reinjury, 31 A.L.R.3d 1000.

Products liability: alteration of product after it leaves hands of manufacturer or seller as affecting liability for product-caused harm, 41 A.L.R.3d 1251.

Profits of business as factor in determining loss of earnings or earning capacity in action for personal injury or death, 45 A.L.R.3d 345.

Recovery for mental anguish or emotional distress, absent independent physical injury, consequent upon breach of contract in connection with sale of real property, 61 A.L.R.3d 922.

Recovery of damages for emotional distress resulting from discrimination because of sex or marital status, 61 A.L.R.3d 944.

Proof of causation of intoxication as a prerequisite to recovery under Civil Damage Act, 64 A.L.R.3d 882.

Civil Damage Act: liability of one who furnishes liquor to another for consumption by third parties, for injury caused by consumer, 64 A.L.R.3d 922.

Liability of one causing physical injuries as a result of which injured party attempts or commits suicide, 77 A.L.R.3d 311.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from failure to repair pothole in surface of highway or street, 98 A.L.R.3d 101.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment, 72 A.L.R.4th 231.

Rescue doctrine: liability of one who negligently causes motor vehicle accident for injuries to person subsequently attempting to rescue persons or property, 73 A.L.R.4th 737.

Validity, construction, and application of products liability statute precluding or limiting recovery where product has been altered or modified after leaving hands of manufacturer or seller, 13 A.L.R.7th 8.