Torts Flashcards
1
Q
Negligence Per Se
A
Violation of a statute can establish a breach of duty.
In Georgia, the statute must be specifically designed to protect the class of persons injured and the type of harm suffered.
Ex. -Medical malpractice: Leaving a sponge inside a patient during surgery
2
Q
Punitive Damages
A
Federal law applies caps in some cases (e.g., maritime law).
Georgia caps punitive damages at $250,000 in most cases, except for product liability or intentional harm, where there are no caps.
3
Q
Joint and Several Liability
A
Georgia abolished joint and several liability. Defendants are only liable for their proportionate share of fault unless they acted in concert.
4
Q
Defamation
A
Requires publication of a false statement of fact causing harm. Must prove malice for public figures.
Georgia distinguishes libel per se (e.g., imputing a crime) and allows presumed damages, while libel per quod requires proof of actual damages.
5
Q
Libel Per Se
A
Libel per se is a written statement that is so damaging that it is considered defamation on its own. The words themselves are harmful and do not require additional proof.
Examples of libel per se Accusing someone of a serious crime, Claiming someone has a contagious disease, Saying someone is unfit for their job, Saying someone is morally corrupt, and Saying someone is a disgrace
6
Q
Libel Per Quod
A
The words are not defamatory on their own, but become defamatory in the context of the circumstances.
Ex. A newspaper article claims a local business owner is accused of embezzlement, and the business owner can prove they lost customers or revenue.
7
Q
Negligence
A
A failure to exercise the care that a reasonably prudent person would under similar circumstances. Elements include duty, breach, causation (actual and proximate), and damages.
8
Q
Res Ipsa Loquitur
A
“The thing speaks for itself”; allows an inference of negligence when the harm would not ordinarily occur absent negligence and the defendant had control over the instrumentality causing harm.
9
Q
Strict Liability
A
Liability imposed regardless of fault, often for inherently dangerous activities or defective products.
10
Q
Comparative Negligence
A
A defense where the plaintiff’s recovery is reduced by their percentage of fault. Georgia follows modified comparative negligence (plaintiff barred if 50% or more at fault).
GA does not follow contributory negligence.
11
Q
Products Liability
A
Legal liability for defective products. Theories include strict liability, negligence, and breach of warranty.
12
Q
Apportionment of Fault
A
Georgia requires that fault be apportioned among all parties and nonparties to a lawsuit. Each party is liable only for their proportionate share of the damages.
13
Q
Dram Shop Liability
A
In Georgia, a bar or social host may be liable for injuries caused by an intoxicated person only if they knowingly provided alcohol to someone under 21 or to a visibly intoxicated person who they knew would soon be driving.
14
Q
Good Samaritan Law
A
Georgia protects individuals who render emergency aid in good faith from liability, except for gross negligence or willful misconduct.
15
Q
Slander Per Se
A
Georgia recognizes libel per se and slander per se, where harm to reputation is presumed in cases involving false statements about crimes, unchastity, or professional incompetence.
16
Q
Negligence in General
A
Georgia Law: Specific rules apply to premises liability and the duties of property owners under OCGA § 51-3-1.
Federal Law: Federal courts apply state negligence law unless a federal statute preempts it.
17
Q
Respondeat Superior
A
Employers in Georgia can be held liable for employee actions under the doctrine of respondeat superior.
18
Q
Premises Liability
A
Property owners owe a duty of care to invitees but not to licensees or trespassers unless willful or wanton harm occurs.
19
Q
A
20
Q
Battery
A
Intentionally harmful or offensive contact to the plaintiff or anything physically or closely connected thereto.
∆ does not have to intend for the contact to be harmful/offensive, only that they “know with substantial certainty that contact will occur.”
Defense = consent.
21
Q
“Harmful/Offensive Contact” for Purposes of Battery
A
Must be offensive to a reasonable person.
“Violates a person’s reasonable sense of personal dignity.”
Plaintiff need not be aware of the contact, unlike assault.
22
Q
Transferred Intent
A
If ∆ has the requisite intent to inflict an intentional tort to a victim, but then ends up causing injury to the plaintiff, the ∆’s requisite intent is transferred to the plaintiff.
23
Q
Assault
A
∆ intentionally causes the plaintiff to be put into reasonable apprehension of imminent harmful or offensive contact.
“Reasonable apprehension”: Objective standard; does not matter if the ∆ could not have actually carried out the threat (i.e. threats with an unloaded gun will still constitute assault)
24
Q
False Imprisonment
A
Intentional confinement of another to a bounded area via physical barrier or threat of force with no reasonable means of a safe escape.
Plaintiff must be aware of the confinement, or if unaware, have been actually injured.
Confinement can be for any length of time.
“Reasonable escape” will bar liability, but must be safe/not expose the plaintiff to embarrassment.
Defense = consent.
25
Intentional Infliction of Emotional Distress
1. Intentional/reckless extreme or outrageous conduct
2. Directed at the plaintiff,
3. That causes the plaintiff to experience extreme emotional distress,
4. Resulting in physical or pecuniary injury.
***Conduct must "exceed all bounds tolerated by civilized society."***
Offensive language alone is generally not sufficient, unless ∆ is a common carrier/innkeeper, knows of the plaintiff's particular sensitivities, or is an authority figure using racial slurs.
26
Interpreting IIED
Court will consider:
- The vulnerability of the plaintiff;
- The relationship between plaintiff and ∆;
- ∆'s pattern of conduct;
- ∆'s knowledge of plaintiff's susceptibility to emotional distress, if any.
An isolated incident is less likely to rise to the level of IIED than a *pattern of behavior*.
No mere words/slurs will constitute IIED unless a special relationship exists.
27
Trespass to Chattels vs. Conversion
Trespass to Chattels — Intentional interference with chattel, causing damages. Can recover actual or nominal damages.
Conversion — Intentionally interfering with plainitff's property in a way that causes *complete destruction* or *serious interference* with property interest.
Factors include —
- The duration/extent of ∆'s control over the property;
- The ∆'s intentions;
- Any bad faith by ∆;
- Plainitiff's expenses/inconvenience;
- The actual harm done to the chattel.
28
Trespass to Land
∆'s **intentional act causes a physical invasion** onto the π's land.
Entry can include the ∆ entering themselves, entering lawfully and then not leaving, or causing someone/something else to enter. (I.e. firing a gun onto property - bullet is trespassing)
"Physical invasion" could be as small as a particle (pollution/may require actual damages).
General OR specific intent required.
Mistake ≠ defense.
Remedy = actual or nominal damages; injunction.
29
Intentional/Property Tort Defenses
POPCANS
1. **P**rivilege (shopkeeper's)
2. defense of **O**thers (reasonable/proportional to imminent harm)
3. defense of **P**roperty (deadly force never okay)
4. **C**onsent
5. **A**uthority (police)
6. **N**ecessity (public or private)
7. **S**elf-defense (deadly force okay to protect from death, serious harm, trespass of habitation, or other forcible felony)
30
Shopkeeper's Privilege
∆ is not liable for false imprisonment if there was a reasonable suspicion that the π stole from the ∆'s shop, and detainment was for a reasonable time and manner on the premises or in the immediate vicinity.
31
Private Nuisance
Requires a
(1) **substantial and unreasonable interference** with
(2) the π's **use or enjoyment** of their land,
(3) that would be **offensive to an average person** in the community, and
(4) the **injury to the π outweighs the usefulness** of the ∆'s actions.
Court will conduct a balancing test weighing the following factors:
- Value of the ∆'s activity;
- Existence of any viable alternatives;
- Nature of the locality;
- Extent of the π's injury;
- Who was there first.
Remedy = injunction.
32
Public Nuisance
Unreasonable interference with a **right commonly held by the general public**.
The nuisance must damage all who come in contact with it.
To bring suit, the π must have suffered a *different type of harm* than the general public.
33
Defamation
(1) Publication of defamatory material,
(2) concerning the plaintiff,
(3) which causes reputational harm."
*"Publication"*: ∆ intentionally or negligently caused a 3rd party to hear/read/see the defamatory material *and understand it*.
*"Defamatory Material"*: Must be capable of believing and causing reputational harm. (I.e. not a hyperbole, exaggeration, etc.)
Plaintiff must be *named* or *"identifiable by context"*.
Plaintiff must establish falsity in their prima facie case, unless they are a private person in a matter of private concern.
34
Libel vs. Slander
Libel — Written. Reputational harm presumed, damages must still be proven.
Slander — Spoken. Special damages (specific economic harm) required.
Slander per se — When the defamatory material alleges that the plaintiff committed a crime or makes statements regarding the plaintiff's professional capacity, damages will be presumed.
35
Republication Rule of Defamation
In addition to the original ∆, anyone who repeats/"republishes" the defamatory material may also be liable.
36
Public vs. Private Necessity
Public — ∆ is not liable **when acting to protect the public at-large from severe harm**. *(Absolute defense, ∆ not liable for any trespass or harm caused)*
Private — ∆ is not liable when **protecting themselves** from emergency. *(Not an absolute defense, still liable for damages for any damages caused) *
***The threatened injury to the ∆ must be greater than the potential harm to the π.***
37
Defamation Defenses
- Truth.
- Privilege: communications between spouses, between high-ranking officials, made in the legislature, or made in a judicial proceeding.
38
Defamation of a Private Figure re: a Matter of Public Concern
Requires all of the elements of defamation + ∆ must have acted with **malice OR negligence**, proven by clear and convincing evidence.
Malice = presumed damages + punitive damages.
Negligence = actual damages.
39
Defamation of a Public Figure/Official
Requires all of the elements of defamation + ∆ must have acted with **actual malice** (the knowledge or reckless disregard of the material's falsity), proven by clear and convincing evidence.
40
Negligence Definition
In any negligence action, the P must establish that:
1. The ∆ owed the P a duty to act as an *ordinarily prudent person* in conforming his conduct to a *standard necessary to avoid an unreasonable risk of harm* to others;
2. That the ∆'s conduct did not rise to that applicable standard of care, and that
3. That the ∆'s conduct was both the *actual and proximate cause* of the harm, that
4. Caused *damages*.
41
Duty, in General
In general, one has a duty to act as an **ordinarily prudent person** to avoid an **unreasonable risk to others** within their geographical area, based on an objective standard.
A person's *skill, knowledge, and physical characteristics* are taken into account to determine a ∆'s duty of care.
42
Duty to Act/Rescue
In general, there is no duty to act/rescue, unless the ∆'s conduct created the need to rescue or a special relationship exists (employer/employee, common carrier, innkeepers, etc.)
Under the Georgia Good Samaritan Laws, a ∆ cannot be liable for good faith emergency care.
43
Duty Owed by Landowners to Invitees
The standard of care that a landowner owes to a party depends on the class of the person.
An invitee is someone entering the land by invitation for a **business benefit** of the owner.
The landowner ∆ has a duty of **ordinary care to keep the premises safe** to invitees by inspecting and repairing premises. (**Duty to inspect and repair**)
44
Duty Owed by Landowners to Trespassers
Whether foreseeable trespasser or not, the ∆ has a duty not to inflict willful or wanton injury.
45
Duty Owed by Landowners to Licensees
Licensee — Generally a social guest, present by the landowner's consent but not for a business purpose.
Duty not to inflict willful and wanton harm + general duty of reasonable care to prevent injury.
In Georgia, there is no duty to warn, inspect, or repair (that duty is only owed to invitees).
46
Standard of Care Owed by Landlords
A landlord who is not in possession is liable to the tenant and third parties for damages arising from **defective construction** or from **failure to keep the premises in repair.**
Duty to warn of concealed defects or dangerous conditions.
Duty to maintain common areas of which they have exclusive control.
May have a duty to protect from *known* criminal activity.
47
Standard of Care for Children
A child under 5 cannot be found negligent
A child 5-13 is held to the standard of care as a reasonable child of the same age, intelligence, or experience, and is presumed incapable of negligent.
UNLESS, they are engaging in an adult activity. Then, they will be held to a standard of care of a reasonably prudent adult engaged in such activity.
Children 14+ can be negligent; parents are liable up to $10,000 for their 14+ child's willful or malicious injury to another.
48
Attractive Nuisance Doctrine
An attractive nuisance is an "**inherently dangerous man-made/artificial instrumentality that is attractive to children."**
Landowner has a **duty of reasonable care** to **eliminate the danger or protect children from harm** as long as the *risk/danger from the attractive nuicance outweighs its utility.*
49
Negligence Per Se
A ∆ is liable as a matter of law if the plaintiff can establish that:
1. The **∆ violated a criminal statute/ordinance without excuse**;
2. A plaintiff is a **member of a class** that the law was designed to protect;
3. The injury inflicted was the **type that the law sought to prevent**;
4. The ∆'s violation of the law was the **actual + proximate cause** of the plaintiff's injury.
If any of the above don't apply or there was an excuse, then the case proceeds under a reasonably prudent person standard.
50
Standard of Care for Physicians
Physicians are required to possess the **skill, knowledge, and training** as other physicians within the **same geographic community**.
*Specialists* are held to a *national* standard.
Informed consent is required unless the plaintiff is unconscious, the risk is generally known, the patient waives, or the disclosure would be harmful.
Informed consent is always required for anesthesia or IV injections for contrast.
51
Res Ipsa Loquitur
*"The thing speaks for itself."*
Negligence is inferred when —
1. An incident does not ordinarily occur without negligence,
2. Any other potential causes have been eliminated with evidence,
3. The causation was within the ∆'s exclusive control, and
4. The plaintiff was not at fault at all.
Example: a surgical tool left in the body after surgery.
52
Wrongful Death vs. Survival Statute
Wrongful Death: ∆'s survivors can sue for the full value of the ∆'s life.
Survival Action: (Think, the tort survives the death) ∆'s survivors can bring suit for any claims that the ∆ would've had at death.
53
Intentional Misrepresentation
1. A knowing or reckless **false assertion of fact**,
2. Made with the **intent to mislead**,
3. That the plainitff **reasonably and justifiably relied on**,
4. After conducting their **own investigation**,
5. That resulted in **special damages**.
54
Intentional Interference with Business Relations
When a non-privileged (non-competitor) plaintiff —
1. Purposely, with the intent to harm,
2. Caused a 3rd party to not do business with the plaintiff,
3. Which caused fiscal injury.
Georgia permits a tort action against one who maliciously procures an injury to be done to a third party, including breach of contract.
55
What must a plaintiff prove in an interference with contractual relations action?
The plaintiff must prove that the defendant acted with knowledge of the plaintiffs rights and with the malicious intent to interfere with those rights.
56
What can the plaintiff recover in an interference with contractual relations action?
all damages they suffered from the breach, including lost profits, punitive damages where appropriate, and attorneys fees.
57
What are a plaintiff's limitations to recovery in an interference with contractual relations actions?
Plaintiff can't recover if the defendant's conduct was privileged or if the defendant wasn't a stranger to the contract. Plaintiff is also limited by the "single satisfaction" rule, which bars the plaintiff from recovering their contractual expectations from the defendant and also the party who breached.
58
Comparative Fault
GA allows partial comparative negligence as a defense to a negligence claim.
A plaintiff is contributorily negligent if his **negligence was the proximate cause of the injury**, or if he **could have avoided** the defendant's negligence **by exercising ordinary care.**
*If the plaintiff is more than 50% at fault than the ∆, they cannot recover.*
If the plaintiff is less than 50% at fault, then their *recovery is reduced by that amount of fault.*
Liability of the ∆ is apportioned by proportionate fault.
59
Abnormally Dangerous Activities
Strict liability will apply if there is a foreseeably high risk of injury even with reasonable care, the activity is not a commonly undertaken activity, and the type of harm was foreseen.
60
Proximate Cause
Injury must have been a foreseeable result of the ∆'s breach. No intervening or superseding causes.
(Think Proximate = Palsgraf)
61
Eggshell Plaintiff Rule
The extent of the harm done unto a plaintiff does not have to be foreseeable, only the harm itself.
62
Actual Cause
Defendant's conduct is the actual cause of the injury if the event causing injury would not have occurred but for the defendant's conduct.
If there could be multiple ∆s/causes — the substantial factor test will apply.
If there is no ascertainable cause — the burden shifts to the ∆ to show that they were NOT the actual cause.
63
Strict Liability
Plaintiff does not have to prove negligence, only causation and injury/damages. Applies to abnormally dangerous activites, animals, and products.
64
Products Liability
1. Product was defective either in manufacture, design, or by failing to warn.
2. The defect existed at the time that it left the ∆'s control.
3. Defect caused the injury when used in a foreseeable way (defense = misuse).
May sue any merchant in the stream of commerce (manufacturer, distributor, or retailer).
65
Product Liability "Defect"
Manufacture Defect — The product deviated from the intended specs.
Design Defect — The risk of the design outweighed the benefit, and there were other reasonable alternative designs.
Failure to Warn — There was a foreseeable risk that would not have been obvious to the ordinary user, which could have been avoided with instruction or warning.
66
Vicarious Liability/Respondeat Superior
Employers are liable for the torts of their employees if it was committed within the scope of their employment.
A minor deviation in scope (a "detour") will still apply, but not a substantial and unauthorized deviation (a "frolic").
Intentional torts are generally outside the scope of employment unless authorized or done with the intention of benefiting the employer.
Employers are not liable for independent contracts over which they have no control (but may still be liable for negligent entrustment/hiring, etc.).
67
Co-∆ Liability
Generally, each ∆ is only liable for their proportionate share of fault.
Joint and several liability only applies if the ∆s acted in concert and fault is indivisible.
If 1 ∆ pays off a joint judgment, they can seek contribution from other ∆s.
68
Portrayal in a False Light
Portrayal in a false light means attributing to the plaintiff views that they do not hold or attributing actions to them that they did not take.
Must be such that a reasonable person would find it highly offensive.
Defendant must have communicated the material to a substantial number of people.
69
Intrusion into Seclusion
When a ∆ intentionally intrudes into the plaintiff's seclusion without their consent, *in a manner which would be highly offensive to a reasonable person* (includes non-physical intrusions, such as photographing someone in their backyard from off of the property).
Seclusion = the plaintiff's "zone of privacy".
70
Interference with Prospective Advantage
Established when an un-privileged defendant —
1. Acted purposely and **maliciously with intent to injure**;
3. Induced a third party **not to enter into or continue a business relationship** with the plaintiff; which
4. Caused the plaintiff **some financial injury**.
"Interference with Business Relations" = actionable without an existing contract.
"Interference with Contract" = actionable when the defendant knows of an existing contract.
71
Injurious Falsehood
- False statement;
- Actual malice;
- Published/made to another;
- Causing specific **economic** injury.
*Injurious falsehood protects ECONOMIC interests while defamation protects REPUTATIONAL interests. *
72
Public Disclosure of Private Facts
1. Disclosure of **private, non-public information** about an individual,
2. To the public **without their consent**,
3. Which would be **highly offensive to a reasonable person.**
*Facts must not be newsworthy. *
Typically personal details such as medical information, financial details, or other intimate information.
73
Tort Damages
A plaintiff must affirmatively prove actual damages; nominal damages are not available.
In tort actions, plaintiffs can seek general damages, such as past and future pain and suffering and loss of consortium.
Special damages, such as specific medical expenses, lost wages, loss of earning capacity, and property damages are also recoverable.
Attorney's fees are not recoverable.
Punitive damages are only awarded against defendants who have acted willfully, wantonly, or with the intent to harm.
74
Georgia "Dangerous Dog" Statute
Provides that an owner of a domestic animal may be liable for personal injury **if the owner had prior kowledge of the animal's dangerous propensities.**
Georgia does not have a "first bite" rule.
Once an owner *knows or has reason to believe that an animal is likely to cause injury*, they have a **duty to prevent such injury from occurring**.
75
Assumption of Risk
If a plaintiff
(1) had **actual knowledge** of danger,
(2) **understood the risk** associated with said danger, and
(3) **voluntarily exposed themselves** to the risk anyway,
assumption of risk may bar recovery.
76
Survival Statute
When a decedent suffers personal injuries, the survival statute preserves a cause of action despite the decedent's death.
77
Wrongful Death
The heirs and personal representatives of the deceased may bring a wrongful death action to seek:
1. Lost wages over the decedent's remaining life.
2. Medical + funeral expenses.
3. Pain and suffering.
4. Loss of consortium, if pursued by a spouse.
Punitive damages may also be recovered if the plaintiff can prove by clear and convincing evidence that the defendant's actions constituted willful misconduct or malice. (No more than $250,000 unless specific intent to cause harm or under influence of alcohol/drugs)
78
Voluntary Intoxication
A person who is voluntarily intoxicated is still held to the same reasonable person standard as they would be if they weren't intoxicated.
"A voluntarily intoxicated person will be presumed sober for the purposes of a reasonably prudent person analysis."
79
Dangerous Instrumentalities (Guns)
When a parent provides a dangerous instrumentality to their child, or doesn't provide but through their negligence the child accesses it, the standard for hte parent's liability is **whether the parent knew of their child's propensity for the specific dangerous activity. **
80
Car Chase Liability
When a law enforcement officer pursues a fleeing suspect in hot pursuit, who then kills a civillian during the pursuit, the pursuit is not the proximate cause of the death unless the LEO acted with reckless disregard for proper law enforcement procedures in the officer's decision to initiate or continue the pursuit.
81
82
Under Georgia law, what duty do common carrier have towards their clients?
Common carriers have a higher standard of care in Georgia, with presumptions against them unless the injury was an act of God or caused by a public enemy. O.C.G.A. § 46-9-1.
83
What is "interspousal immunity," and does Georgia recognize it?
Interspousal immunity prevents one spouse from suing the other in a personal-injury action. In Georgia, interspousal immunity is still recognized. O.C.G.A. § 19-3-8.
84
Under Georgia law, what are "Property damages"?
Property damages are special damages generally measured by the difference in market value before and after the injury, unless there is a more accurate and direct way to measure the damages. Clarke County School Dist. v. Madden, 110 S.E.2d 47 (Ga. App. 1959).
85
What is the "Motion Picture Operator Privilege"?
Under Georgia law, a movie theater operator's privilege is available if: (1) the plaintiff behaved in a manner as to cause a person of reasonable prudence to believe that the plaintiff was committing the offense of film piracy, or (2) the manner of the detention or arrest and the length of time during which such plaintiff was detained was under all the circumstances reasonable. O.C.G.A. § 51-7-62.
86
Under Georgia law, what duty do innkeepers have towards their clients?
Innkeepers generally have only a duty of ordinary care to maintain safe premises. Rasnick v. Krishna Hospitality, 713 S.E.2d 835 (Ga. 2011). Nevertheless, innkeepers also have a duty of extraordinary diligence to protect entrusted property from theft. O.C.G.A. § 43-21-8. Innkeepers are liable up to $1,000 for valuables left in the hotel's safe. O.C.G.A. § 43-21-11.
87
Under Georgia law, what are "Physical Pain and suffering"?
Physical pain and suffering damages are inferred when there is evidence of a physical injury. Dodson v. Cobb, 89 S.E.2d 552 (Ga. App. 1955). The plaintiff may testify to his pain and suffering, but they are considered subjective testimony. A physician may provide testimony as to observing the plaintiff in pain, and may offer expert testimony as to the plaintiff's injuries.
88
Under Georgia law, what is a landlord's duty to repair?
A landlord has a statutory duty to keep the premises in repair, and he is liable for injuries resulting from any repairs made with his consent, as well as damages arising from defective construction. O.C.G.A. §§ 44-7-13 – 14.
89
Under Georgia law, how does remoteness restrict recovery?
Imaginary or theoretical damages cannot be recovered, nor will they be recovered when other contingencies were of great importance in causing the injury. O.C.G.A. § 51-12-8.
Even if a contingency in involved, damages will not be too remote to be recovered as long as they are the legal and natural result of the tortuous act. O.C.G.A. § 51-12-9. In the defendant acted with knowledge to purposely deprive the plaintiff of contemplated benefits, then remoteness damages may be recoverable. O.C.G.A. § 51-12-10. Damages that are not provable may not be recovered under this exception. Blue Ridge Mt. Fisheries v. Dep't of Naturla Res. , 456 S.E.2d 651 (Ga. App. 1995).
90
Under Georgia law, what duty does the land possessor owe to invitees?
The land possessor owes invitees a duty of ordinary care to keep the premises safe. O.C.G.A. § 51-3-1. Once an invitee goes beyond the scope of the invitation, he becomes a licensee. Atkins v. Tri-Cities Steel, 304 S.E.2d 409 (Ga. App. 1983).
91
Under Georgia law, what are "Motor vehicle accident" special damages?
Motor vehicle accident damages regarding property damage or personal injury are special damages. They may be pursued in separate lawsuits. The settlement of one suit does not preclude the claim in the other lawsuit or affect the other lawsuit. O.C.G.A. § 51-1-32 – 34.
92
Under Georgia law, what interest is present for unliquidated damages?
When a claimant delivers written notice by registered mail, certified mail, or statutory overnight delivery to a person against whom the claim is made demanding an amount or unliquidated damages in a tort action, that person has 30 days to pay before interest accrues.
After the 30 days expire but before the claimant withdraws his demand, if the person against whom the claim is made gives written notice and delivers it by any of the above-mention methods offering to pay the amount demanded plus interest and that offer is not accepted within 30 days, then the claimant is not entitled to interest after that 30th day, even if a subsequent judgment is for at least the sum demanded. O.C.G.A. § 51-12-14.
93
What is required under Georgia law for a court in a battery case to award a plaintiff punitive damages?
Georgia allows punitive damages whenever a defendant's actions are willful misconduct, malicious, fraudulent, wanton, oppressive, or evidence of such a total lack of care that it can be presumed that the defendant was consciously indifferent to the consequences of his actions. O.C.G.A. § 51-12-5.1.
94
Under Georgia law, how is a prosecutor's privilege modified?
In Georgia, a plaintiff has a claim for malicious prosecution when he was prosecuted maliciously, without probable cause, and suffered damages. O.C.G.A. § 51-7-40.
The prosecutor in a criminal case does not have to know for certain that a defendant is guilty, or that conviction is guaranteed, but he may be liable for malicious prosecution if even slight diligence would ahve allowed him to find facts that conclusively proved the defendant's innocence. Auld v. Colonial Stores, Inc., 45 S.E.2d 827 (Ga. App. 1947).
95
What is Georgia law's handling of a domesticated animal attack?
Georgia does not recognize strict liability for acts of domestic animals. Under Georgia law, a plaintiff must prove that an animal has a vicious propensity, which may be proved by showing that the animal was required to be at heel or on a leash, but was not. O.C.G.A. § 51-2-7. Additionally, the plaintiff must prove the owner had knowledge that the animal was dangerous or vicious. Rowlette v. Paul, 466 S.E.2d 37 (Ga. App. 1995).
96
Under Georgia law, what are "Special damages"?
Special damages are damages that actually flow from the tortuous act, and they must be specially pleaded and proved. O.C.G.A. §§ 51-12-2; 51-11-9. Special damages arise when the plaintiff loses money or some other advantage that can be valued financially. Hood v. Dun & Bradstreet, 486 F.2d 25 (5th Cir. 1973). This includes doctor's bills and other medical expenses. Central Ga. Power Co. v. Fincher, 80 S.E. 645 (Ga. 1913).
97
Under Georgia law, does a claim misappropriation of the right to publicity dissolve upon a person's death?
In Georgia, the right to publicity survives the death of the individual. Martin Luther King Jr. Center for Social Change v. American Heritage Products, 296 S.E.2d 697 (Ga. 1982).
98
Under Georgia law, how does mitigation restrict recovery?
A plaintiff suing for negligence must mitigate his damages, unless the tort is (1) for fraud, (2) an ongoing violation of a property right, or (3) an intentional tort. Failure to mitigate will prevent he plaintiff from recovering anything other than what he would have suffered had he properly mitigated his damages. Wachovia Bank of Ga. v. Namik, 620 S.E.2d 470 (Ga. App. 2005).
99
What is "Charitable immunity," and does Georgia recognize it?
Charitable immunity protects charities and their officers from civil liability. In Georgia, a person serving a charitable or nonprofit institution without compensation is immune from civil liability if she was acting in good faith within the scope of her official actions and duties. Immunity does not apply if the person is guilty of willful or wanton misconduct. O.C.G.A. § 51-1-20.
100
Under Georgia law, what duty does the land possessor owe to licensees?
Licensees are owed only a duty to avoid willful or wanton injury. O.C.G.A. § 51-3-2.
101
Describe Georgia's "Liability for Acts of Intoxicated Persons" statute.
In Georgia, one who serves alcohol may be liable to a third person for injuries if the server (1) willfully, knowingly, and unlawfully sold or furnished alcohol to an underaged person whom the server knew would be driving soon, or (2) knowingly sold or furnished alcohol to a person who was noticeably intoxicated, knowing that person would be driving soon. The sale or furnishing of alcohol must be the proximate cause of the plaintiff's injuries or damages. O.C.G.A. § 51-1-40.
102
Under Georgia law, what is required to support a professional negligence claim?
A plaintiff must submit an expert affidavit with the complaint if the plaintiff is alleging malpractice by a professional. The affidavit must set for the specifically at least one negligent act or omission and the factual basis for the claim. O.C.G.A. § 9-11-9.1. The expert must be licensed to practice the relevant profession.
103
What is "Parent-child immunity," and does Georgia recognize it?
Parents are immune from tort claims brought by their children in "core parenting activities." Areas not considered core parenting activities include: (1) injuries arising from automobile accidents, (2) sexual abuse and intentional tortious conduct, (3) when a parent is acting in a "dual capcity" (e.g., a parent-physician treating his child). Georgia still recognizes parental immunity and extends it to include foster parents. Newsome v. Department of Human Resources, 405 S.E.2d 61 (Ga. App. 1991).
104
Under Georgia law, what are "Mental pain and suffering"?
Mental pain and suffering damages are available if the plaintiff satisfies three elements:
(1) There was a physical impact to the plaintiff;
(2) The impact caused a physical injury to the plaintiff; and
(3) The injury caused the plaintiff's mental suffering.
Wilson v. Allen, 612 S.E.2d 39 (Ga. App. 2005).
105
What is the "last clear chance doctrine," and does Georgia recognize it?
The last clear chance doctrine bars a plaintiff's recover if, by use of ordinary care, she could have avoided the consequences of the defendant's negligence. Georgia still follows this doctrine. O.C.G.A. § 51-11-7.
106
What is "defamacasts"?
Georgia law possess a seperate defamation category, called "defamacasts," that provides an owner, operator, or licensee of a broadcasting station or network and its agents can be held liable for defamation under a negligence standard. Stations and employees are not liable for defamation made by or for a political candidate. O.C.G.A. § 51-5-10. These defamacasts contain elements of both libel and slander. Am. Broadcasting-Paramount Theaters v. Simpson, 126 S.E.2d 873 (Ga. App. 1962).
107
What are Georgia's special tort liability rules for sporting venues and events?
(1) A possessor of land has a duty to maintain safe premises for invited spectators at sporting events. Macon Tel. Pub. Co. v. Graeden, 53 S.E.2d 371 (Ga. App. 1949).
(2) Spectators voluntarily assume the risks of unprotected seating (e.g., errant baseballs, hooked golf balls). Dalton v. Jones, 581 S.E.2d 360 (Ga. App. 2003).
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