Legal Memorandum: Assumption of Duty and Foreseeability

Issue: In Georgia, what constitutes foreseeability in the context of an assumption of duty?

"Neither duty nor negligence exists in a vacuum–they are entirely dependent upon circumstances involving others and their property.  Sims v. American Cas. Co., 131 Ga. App. 461, 206 S.E.2d 121, 127 (1974).  "With reference to foreseeability of injury, ‘[t]he correct rule is that in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued.  It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.  Id., 206 S.E.2d at 127 (citing Emory Univ. v. Lee, 97 Ga. App. 680, 691, 104 S.E.2d 234).

Illustration number 2 to subparagraph (b) of Restatement § 324A states: "The A Telephone Company employs B to inspect its telephone poles.  B negligently inspects and approves a pole adjoining the public highway.  Because of its defective condition, the pole falls upon and injures a traveler upon the highway.  B is subject to liability to the traveler."  Wright v. Osmore, 206 Ga. App. 685, 426 S.E.2d 214, 218 (1992) (quoting Restatement (Second)of Torts § 324A(b) illus. 2) .

In Mull v. Aetna Cas. & Sur. Co., 226 Ga. 462, 175 S.E.2d 552, 554 (1970), the court stated that "the vast majority of jurisdictions . . . long since refused to permit the ancient shield of privity to insulate a […]