Written by attorney Dustin R. Marlowe

Business Torts in Georgia, Part II

Consumer or Individual-Specific Business Torts

With the exception of fraud and negligent misrepresentation, the majority of business torts described above will typically be asserted as part of a business-to-business dispute. And while business-to-business disputes probably are what most people, lawyers included, associate with “business torts," there is another category of business torts, the importance of which cannot be overstated (especially amongst plaintiffs’ lawyers), those brought by consumers or individual employees against the businesses they patronize or the employers for whom they work.

The Georgia Fair Business Practices Act of 1975

This Act protects “consumers and legitimate business enterprises" by forbidding and declaring unlawful any “unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce." O.C.G.A. § 10-1-393(c). Despite its sweeping terms, the Fair Business Practices Act applies to activities in trade or commerce only; it does not provide a remedy for private wrongs that do not generally affect the consuming public. Pryor v. CCEC, Inc., 257 Ga. App. 450, 451 (2002) ("One may bring a private suit under the FBPA only if he is individually injured by the breach of a duty owed to the consuming public in general."). Nevertheless, it applies to and prohibits the operation of classic "bait and switch schemes," Miles Rich Chrysler-Plymouth, Inc. v. Mass, 201 Ga. App. 693, 697 (1991), concealing pre-sale damage to a vehicle sold as "new," Neal Pope, Inc. v. Garlington, 245 Ga. App. 49, 51 (2000), and misrepresenting a Ford Mustang GT as a rare Saleen model, Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 85 (2008).

A plaintiff who has been injured by a defendant’s unfair or deceptive business practice must give thirty days’ notice of the filing of his claim to the offending defendant. O.C.G.A. § 10-1-399(b). Thereafter, the injured consumer may file suit, and if he can show a violation, an injury, and that the violation proximately caused that injury, Nims v. Otter, 188 Ga. App. 516, 517 (1988), he shall be entitled to recover compensatory damages and reasonable attorneys' fees, O.C.G.A. § 10-1-399(a), (d), and, in the event of an intentional violation, treble damages. O.C.G.A. § 10-1-399(c).

Invasion of Privacy

Although Georgia recognizes four distinct privacy-related torts, the one that is most closely associated with business torts is the wrongful intrusion into a person’s seclusion. Such a claim may lie when an employer unreasonably monitors its employees or when a department store unreasonably monitors its patrons. For example, in Johnson v. Allen, 272 Ga. App. 861, 864 (2005), the Court of Appeals held that the continuous video surveillance of a public restroom in a cold storage facility constituted an actionable invasion of privacy. And other courts have refused to tolerate similar unjustified forms of undisclosed surveillance, including eavesdropping and wiretapping. See Awbrey v. Great Atlantic & Pac. Tea Co., 505 F. Supp. 604, 610 (N.D. Ga. 1980); Cabanis v. Hipsley, 114Ga. App. 367, 371 (1966) (providing extensive list of cases in which seclusion-related invasion of privacy claim stated).

False Imprisonment

One of the most litigated consumer-oriented “business torts" is likely false imprisonment. Daily, shoppers are stopped—detained—in department stores, grocery stores, and the like because a store employee or security guard suspects that the consumer is shoplifting. Subject to the application of an immunity, which is discussed below, that detention, whatever its duration, is a tort for which an action will lie. See O.C.G.A. § 51-7-20 (defining false imprisonment as "the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty").

For decades, the Georgia General Assembly has recognized that merchants and shopkeepers have an interest in protecting their personal property that must be balanced against the right of the consuming public to be free from unauthorized detentions. The product of these competing interests is a statute that confers immunity from a false imprisonment claim upon a merchant who detains or arrests a person reasonably thought to be shoplifting, but only so long as (1) the manner of arrest or detention is reasonable and (2) the length of the detention is reasonable. O.C.G.A. § 51-7-60. When a detention occurs, its reasonableness is a question for the jury. Fields v. Kroger Co., 202Ga. App. 475, 475 (1992).

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