Torts

Question 1

Negligence Per Se

Answer 1

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

Question 2

Punitive Damages

Answer 2

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.

Question 3

Joint and Several Liability

Answer 3

Georgia abolished joint and several liability. Defendants are only liable for their proportionate share of fault unless they acted in concert.

Question 4

Defamation

Answer 4

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.

Question 5

Libel Per Se

Answer 5

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

Question 6

Libel Per Quod

Answer 6

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.

Question 7

Negligence

Answer 7

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.

Question 8

Res Ipsa Loquitur

Answer 8

“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.

Question 9

Strict Liability

Answer 9

Liability imposed regardless of fault, often for inherently dangerous activities or defective products.

Question 10

Comparative Negligence

Answer 10

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.

Question 11

Products Liability

Answer 11

Legal liability for defective products. Theories include strict liability, negligence, and breach of warranty.

Question 12

Apportionment of Fault

Answer 12

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.

Question 13

Dram Shop Liability

Answer 13

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.

Question 14

Good Samaritan Law

Answer 14

Georgia protects individuals who render emergency aid in good faith from liability, except for gross negligence or willful misconduct.

Question 15

Slander Per Se

Answer 15

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.

Question 16

Negligence in General

Answer 16

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.

Question 17

Respondeat Superior

Answer 17

Employers in Georgia can be held liable for employee actions under the doctrine of respondeat superior.

Question 18

Premises Liability

Answer 18

Property owners owe a duty of care to invitees but not to licensees or trespassers unless willful or wanton harm occurs.

Question 20

Battery

Answer 20

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.

Question 21

“Harmful/Offensive Contact” for Purposes of Battery

Answer 21

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.

Question 22

Transferred Intent

Answer 22

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.

Question 23

Assault

Answer 23

∆ 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)

Question 24

False Imprisonment

Answer 24

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.

Question 25

Intentional Infliction of Emotional Distress

Answer 25

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.

Question 26

Interpreting IIED

Answer 26

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.

Question 27

Trespass to Chattels vs. Conversion

Answer 27

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.

Question 28

Trespass to Land

Answer 28

∆’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.

Question 29

Intentional/Property Tort Defenses

Answer 29

POPCANS
1. Privilege (shopkeeper’s)
2. defense of Others (reasonable/proportional to imminent harm)
3. defense of Property (deadly force never okay)
4. Consent
5. Authority (police)
6. Necessity (public or private)
7. Self-defense (deadly force okay to protect from death, serious harm, trespass of habitation, or other forcible felony)

Question 30

Shopkeeper’s Privilege

Answer 30

∆ 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.

Question 31

Private Nuisance

Answer 31

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.

Question 32

Public Nuisance

Answer 32

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.

Question 33

Defamation

Answer 33

(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.

Question 34

Libel vs. Slander

Answer 34

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.

Question 35

Republication Rule of Defamation

Answer 35

In addition to the original ∆, anyone who repeats/”republishes” the defamatory material may also be liable.

Question 36

Public vs. Private Necessity

Answer 36

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.

Question 37

Defamation Defenses

Answer 37

• Truth.
• Privilege: communications between spouses, between high-ranking officials, made in the legislature, or made in a judicial proceeding.

Question 38

Defamation of a Private Figure re: a Matter of Public Concern

Answer 38

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.

Question 39

Defamation of a Public Figure/Official

Answer 39

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.

Question 40

Negligence Definition

Answer 40

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.

Question 41

Duty, in General

Answer 41

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.

Question 42

Duty to Act/Rescue

Answer 42

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.

Question 43

Duty Owed by Landowners to Invitees

Answer 43

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)

Question 44

Duty Owed by Landowners to Trespassers

Answer 44

Whether foreseeable trespasser or not, the ∆ has a duty not to inflict willful or wanton injury.

Question 45

Duty Owed by Landowners to Licensees

Answer 45

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).

Question 46

Standard of Care Owed by Landlords

Answer 46

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.

Question 47

Standard of Care for Children

Answer 47

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.

Question 48

Attractive Nuisance Doctrine

Answer 48

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.

Question 49

Negligence Per Se

Answer 49

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.

Question 50

Standard of Care for Physicians

Answer 50

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.

Question 51

Res Ipsa Loquitur

Answer 51

“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.

Question 52

Wrongful Death vs. Survival Statute

Answer 52

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.

Question 53

Intentional Misrepresentation

Answer 53

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.

Question 54

Intentional Interference with Business Relations

Answer 54

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.

Question 55

Comparative Fault

Answer 55

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.

Question 56

Abnormally Dangerous Activities

Answer 56

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.

Question 57

Proximate Cause

Answer 57

Injury must have been a foreseeable result of the ∆’s breach. No intervening or superseding causes.

(Think Proximate = Palsgraf)

Question 58

Eggshell Plaintiff Rule

Answer 58

The extent of the harm done unto a plaintiff does not have to be foreseeable, only the harm itself.

Question 59

Actual Cause

Answer 59

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.

Question 60

Strict Liability

Answer 60

Plaintiff does not have to prove negligence, only causation and injury/damages. Applies to abnormally dangerous activites, animals, and products.

Question 61

Products Liability

Answer 61

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).

Question 62

Product Liability “Defect”

Answer 62

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.

Question 63

Vicarious Liability/Respondeat Superior

Answer 63

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.).

Question 64

Co-∆ Liability

Answer 64

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.

Question 65

Portrayal in a False Light

Answer 65

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.

Question 66

Intrusion into Seclusion

Answer 66

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”.

Question 67

Interference with Prospective Advantage

Answer 67

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.

Question 68

Injurious Falsehood

Answer 68

• False statement;
• Actual malice;
• Published/made to another;
• Causing specific economic injury.

*Injurious falsehood protects ECONOMIC interests while defamation protects REPUTATIONAL interests. *

Question 69

Public Disclosure of Private Facts

Answer 69

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.

Question 70

Tort Damages

Answer 70

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.

Question 71

Georgia “Dangerous Dog” Statute

Answer 71

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.

Question 72

Assumption of Risk

Answer 72

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.

Question 73

Survival Statute

Answer 73

When a decedent suffers personal injuries, the survival statute preserves a cause of action despite the decedent’s death.

Question 74

Wrongful Death

Answer 74

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)

Question 75

Voluntary Intoxication

Answer 75

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.”

Question 76

Dangerous Instrumentalities (Guns)

Answer 76

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. **

Question 77

Car Chase Liability

Answer 77

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.

Question 79

Under Georgia law, what duty do common carrier have towards their clients?

Answer 79

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.

Question 80

What is “interspousal immunity,” and does Georgia recognize it?

Answer 80

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.

Question 81

Under Georgia law, what are “Property damages”?

Answer 81

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).

Question 82

What is the “Motion Picture Operator Privilege”?

Answer 82

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.

Question 83

Under Georgia law, what duty do innkeepers have towards their clients?

Answer 83

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.

Question 84

Under Georgia law, what are “Physical Pain and suffering”?

Answer 84

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.

Question 85

Under Georgia law, what is a landlord’s duty to repair?

Answer 85

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.

Question 86

Under Georgia law, how does remoteness restrict recovery?

Answer 86

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).

Question 87

Under Georgia law, what duty does the land possessor owe to invitees?

Answer 87

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).

Question 88

Under Georgia law, what are “Motor vehicle accident” special damages?

Answer 88

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.

Question 89

Under Georgia law, what interest is present for unliquidated damages?

Answer 89

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.

Question 90

What is required under Georgia law for a court in a battery case to award a plaintiff punitive damages?

Answer 90

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.

Question 91

Under Georgia law, how is a prosecutor’s privilege modified?

Answer 91

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).

Question 92

What is Georgia law’s handling of a domesticated animal attack?

Answer 92

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).

Question 93

Under Georgia law, what are “Special damages”?

Answer 93

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).

Question 94

Under Georgia law, does a claim misappropriation of the right to publicity dissolve upon a person’s death?

Answer 94

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).

Question 95

Under Georgia law, how does mitigation restrict recovery?

Answer 95

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).

Question 96

What is “Charitable immunity,” and does Georgia recognize it?

Answer 96

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.

Question 97

Under Georgia law, what duty does the land possessor owe to licensees?

Answer 97

Licensees are owed only a duty to avoid willful or wanton injury. O.C.G.A. § 51-3-2.

Question 98

Describe Georgia’s “Liability for Acts of Intoxicated Persons” statute.

Answer 98

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.

Question 99

Under Georgia law, what is required to support a professional negligence claim?

Answer 99

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.

Question 100

What is “Parent-child immunity,” and does Georgia recognize it?

Answer 100

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).

Question 101

Under Georgia law, what are “Mental pain and suffering”?

Answer 101

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).

Question 102

What is the “last clear chance doctrine,” and does Georgia recognize it?

Answer 102

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.

Question 103

What is “defamacasts”?

Answer 103

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).

Question 104

What are Georgia’s special tort liability rules for sporting venues and events?

Answer 104

(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).