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Talton v. Arnall Golden Gregory9/29/2005
mation was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. In making a determination of whether the reliance by the third party is justifiable, we will look to the purpose for which the report or representation was made. If it can be shown that the representation was made for the purpose of inducing third parties to rely and act upon the reliance, then liability to the third party can attach. If such cannot be shown there will be no liability in the absence of privity, willfulness or physical harm or property damage.
(Emphasis supplied.) Id. The Court later clarified its ruling in Badische Corp. v. Caylor, 257 Ga. 131, 132-133 (356 SE2d 198) (1987), holding as follows:
We specifically reject the plaintiffs' argument that the rule established in Robert & Co.[, supra,] expands professional liability for negligence to an unlimited class of persons whose presence is merely "foreseeable." Rather, professional liability for negligence . . . extends to those persons, or the limited class of persons who the professional is actually aware will rely upon the information he prepared.
(Citation, punctuation, and footnote omitted; emphasis in original and supplied in part.) Id. at 132-133 (an accountant was not liable to a third party who relied upon financial statements he had prepared for a client because the accountant did not have actual notice that the client was going to give the statements to the third party). See also Martha H. West Trust v. Market Value of Atlanta, 262 Ga. App. at 93 (2) (a property appraiser was not liable to third parties who relied on his appraisal when the appraiser expressly prohibited his client from giving the appraisal to others and did not intend for the appraisal to be used by nonclients).
In this case, the "information" which allegedly caused Talton's injuries is the content of the warning label. AGG was not identified in any way on the warning label. It is also undisputed that Cryolife, not AGG, distributed the tissue packages with the warning labels to hospitals and that Cryolife never distributed the packages or warning labels directly to patients.
In contrast, the only "information" that AGG provided in this case was its legal advice to Cryolife regarding the language of the warning label, and this advice was given within the confines of a confidential attorney/client relationship. As AGG's responsive pleadings made clear, this confidential advice was intended solely for the consideration and use by Cryolife. Further, AGG had no control over whether Cryolife followed its advice. Talton has failed to demonstrate that AGG ever intended for its advice to be disclosed to or relied upon by third parties. Accordingly, Talton is unable to show that, when AGG consulted with Cryolife, AGG was "actually aware" that patients such as Talton would rely upon such confidential legal advice. Badische Corp. v. Caylor, 257 Ga. at 133; Martha H. West Trust v. Market Value of Atlanta, 262 Ga. App. at 93 (2). Without such awareness, AGG owed no duty to Talton under Section 552 of the Restatement of Torts.
(b) Talton also argues that AGG owed a duty to him under Section 324 A of the Restatement, which addresses the liability to third parties when one undertakes to perform another's duty. The cases upon which Talton relies, however, involve the liability of manufacturers (and their corporate officers), distributors, or retailers to injured users of their products based upon their failure to warn the users. These cases are clearly distinguishable from the instant case, because there is no alleg
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