Torts Flashcards
Misappropriation of the Right to Publicity and Georgia’s Exception
An action is based on the right of an individual to control the commercial use of his identity.
Plaintiff must prove:
(i) the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity;
(ii) for the defendant’s advantage, commercial, or otherwise;(iii) lack of consent; and
(iv) resulting injury.
Georgia has a “newsworthiness” exception to the right of publicity.
There are several factors that a court may consider in determining whether a particular fact qualifies as newsworthy:
(i) the depth of the intrusion into the plaintiff’s private affairs;
(ii) the extent to which the plaintiff voluntarily pushed himself into a position of public notoriety; and
(iii) whether the information is a matter of public record.
In Georgia, the right to publicity survives the death of an individual.
Death of a Party’s effect on a Suit and
The Procedure for Continuing the Claim
In Georgia, if a tortfeasor’s tort was the cause of death of a decedent plaintiff, the cause of action will survive the death of the plaintiff.
A cause of action, in case of the death of a plaintiff and in the even there is no right of survivorship in any other person, will survive to the personal representative of the deceased plaintiff.
If a party dies with a pending claim and the claim is not extinguished:
(i) the court may order substitution of the proper parties, or (ii) a motion for substitution may be made by any party or by the successors or representatives of the deceased party no later than 180 days after the party’s death.
What’s negligent conduct?
Conduct that falls below the standard of care of a reasonable person exercising ordinary diligence.
What’s the general duty of care?
In general, a duty of care is owed to all foreseeable persons who may be injured by a defendant’s failure to act as a reasonable person of ordinary diligence under the circumstances.
Causation
A defendant’s actions must be both the actual and the proximate cause of the plaintiff’s injuries.
Actual Causation
Also known as factual causation, and it requires a showing that but for the defendant’s conduct, the injury would not have occurred.
Proximate Causation
(i) A defendant’s liability is limited to the harms that result from the risks that made the defendant’s conduct tortious. The plaintiff must have been among the class of victims who might foreseeably be injured as a result of the defendant’s tortious conduct. (foreseeability of harm)
(ii) Additionally, the defendant’s acts must be the direct cause of the plaintiff’s harm without the intervention of independent contributing acts. (no superseding cause)
–An unforeseeable intervening cause is a superseding cause that breaks the chain of causation between the defendant and the plaintiff. The criminal acts of third parties are generally regarded as unforeseeable superseding causes that break the chain of causation.
Damages
In Georgia, a plaintiff in a tort case can seek general, special, and punitive damages. Damages may also be direct, meaning they immediately result from the tortious conduct, or consequential, meaning they are only connected to the tort.
Special Damages
Must be specially plead and proven, and actually flow from the tortious act.
Must be plead with reasonable certainty.
These arise when the plaintiff loses money or some other advantage that can be valued financially, including loss of employment and profits, property damage, and medical expenses.
Property damage is measured by the difference in market value before and after the injury.
General Damages
Damages that do not require proof of amount and are presumed to flow from the tortious act.
These include pain and suffering.
When there is evidence of a physical injury, physical pain and suffering is inferred.
In order to recover for mental pain and suffering, the plaintiff must show:
(i) there was a physical impact,
(ii) the physical impact caused a physical injury, and
(iii) the injury caused mental suffering
Punitive Damages
Awarded when the circumstances are aggravated.
They are intended to punish or deter a defendant and are awarded only when the plaintiff proves by clear and convincing evidence that the defendant’s conduct was:
(i) malicious,
(ii) fraudulent,
(iii) willful or wanton, or oppressive, or
(iv) raises a presumption of conscious indifference to the consequences of their actions.
Partial Comparative Fault
GA law provides for this fault, where a plaintiff may not recover if she is 50% or more at fault for her injury. When a plaintiff is to some degree responsible for the injury, the plaintiff’s damages are generally reduced by their percentage of fault.
If there are two or more defendants, then the plaintiff’s damages are reduced by his percentage of fault, and the liability of the individual defendants is apportioned based on their proportionate fault.
-This liability is several, and the defendants are not entitled to contribution.
Negligence Per Se
Where a defendant violates a regulatory statute that imposes a penalty for a violation and injures a plaintiff of the class that was intended to be protected by that statute, the violation can constitute _________, which establishes duty and breach.
Professional’s Duty of Care
A professional person is required to use the same skill, knowledge, and care as another practitioner in their field in the same community.
Invitee
In Georgia, an _______ is anyone the land possessor expressly or impliedly invited onto the land for the benefit of both parties. In the absence of some present business relation for the benefit of the landowner, no legal invitation may be implied, and the injured person must be regarded as a licensee. Land possessor owes a non delegable duty of ordinary care to keep the premises safe.
When an _________ is injured by the intervening criminal act of a third party, the land possessor is generally not liable unless he had reason to foresee or anticipate the occurrence of such a criminal act and failed to exercise ordinary care by failing to implement reasonable security measures to keep the premises safe.
Licensee
In Georgia, social guests are _______. The land possessor owes _________ a duty to avoid willful or wanton injury, and the landowner must exercise reasonable care while conducting activities on the land.
Trespasser
A person who enters or remains on the land of another without consent or privilege to do so.
A land possessor owes them only a duty to refrain from causing willful or wanton injury to the person. This is the same duty owed to a licensee under Georgia law.
Res Ipsa Loquitur
If there is no direct evidence of negligence, then an inference of negligence is permitted when:
(i) the Plaintiff suffered a type of harm that is usually caused by the negligence of someone in the defendant’s position, and
(ii) the evidence tends to eliminate other potential causes of that harm (e.g., the instrumentality that inflicted the harm was under the defendant’s exclusive control).
Wrongful Death
A decedent’s spouse, family, or representative may bring suit to recover losses suffered as a result of a decedent’s death under a _______ action. The claim must be brought within the two-year statute of limitations for personal injuries (within two years of the death).
A surviving spouse can bring a this action. To be a surviving spouse, the spouse must have been legally married to the decedent at the time of his death.
Under the GA _____ Statute, a plaintiff can recover the full value of the decedent’s life, as shown by evidence. Recoverable damages are measured from the perspective of the decedent, and so survivors may not recover for losses they experienced personally as a result of the decedent’s wrongful death.
Many factors are considered in valuing the loss of the decedent, such as the decedent’s health, habits, earnings, services, and life expectancy. Intangible value may also be considered if it helps the jury determine the loss.
Any amount recovered is divided equally among the surviving spouse and children.
Damages for pain and suffering cannot be recovered. Punitive damages are also not recoverable.
Loss of Consortium
A spouse may recover for this as a result of injuries to the other spouse. This includes a person’s affection, company, and generally romantic society. However, the right of consortium exists only while both spouses are alive.
Survival Action
GA’s _________ statute enables the personal representative of a decedent’s estate to pursue any claims the decedent their self would have had at the time of their death.
Any damages from a survival action are recovered by the decedent’s estate and distributed according to the decedent’s will or, if the decedent died without a will, by intestacy.
The decedent’s estate can recover damages resulting from both personal injury and property damage.
These damages include:
(i) special damages – which actually flow from the tortious act and must be specially pleaded and proved;
(ii) general damages- which are presumed to flow from the tortious act and the amount of which is determined by the jury; and
(iii) punitive damages.
