Braun v. Soldier of Fortune Magazine, Inc. - 968 F.2d 1110 (11th Cir. 1992)

Rule:

To prevail in an action for negligence in Georgia, a party must establish the following elements: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty. Under Georgia law, the existence of a legal duty presents a threshold question of law for the court. Once a court finds that a legal duty exists, it generally leaves for the jury issues of negligence and proximate cause.

Facts:

Appellant magazine publisher and its parent company published a personal advertisement for a "gun for hire" and "professional mercenary" who would consider "all jobs." The man who placed the advertisement was hired to kill the father of appellee sons of murder victim. One of appellees was also injured in the shooting. Appellees were awarded compensatory and punitive damages on their wrongful death and personal injury claims against appellant. The jury found that the appellant acted with negligence and malice in publishing the advertisement. Appellant's motion for a directed verdict was denied and it sought review.

Issue:

Was the appellant negligent in publishing an advertisement that contained an offer to commit a seriously violent crime? 

Answer:

Yes.

Conclusion:

The court affirmed the district court's judgment in favor of appellees and noted that the district court had properly applied a "modified" negligence standard to find that appellant was negligent because the advertisement, on its face, would have alerted a reasonably prudent publisher that the ad contained a clearly identifiable and unreasonable risk that the offer in the ad was to commit seriously violent crime. The court found that there was no unreasonable duty to investigate ads placed on appellant because the substance of the ad itself warned of a danger of harm to the public.