Torts Distinctions Distinctions Flashcards
Describes OCGA title 51 and Georgia case law that distinguishes Georgia law from the MBE (Effective July 2016).
1
Q
What are some exceptions to the informed consent doctrine?
A
Exceptions to this requirement include emergencies and procedures that are generally recognized by the reasonably prudent physicians as not posing a material risk. O.C.G.A. § 31-9-6.1.
2
Q
Under Georgia law, what duty do common carrier have towards their clients?
A
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.
3
Q
What damages are available in a interference with contractual relations lawsuit?
A
A person who maliciously procures a breach of contract may be liable for damages, as well as the breaching party. O.C.G.A. § A defendant acts maliciously if he interferes without authorization, legal justification, or excuse. The defendant does not have to hold animosity toward the plaintiff. Luke v. Dupree, 124 S.E. 13 (Ga. 1924).
4
Q
What is “interspousal immunity,” and does Georgia recognize it?
A
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.
5
Q
Under Georgia law, what are “Property damages”?
A
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).
6
Q
What is “bad faith” regarding tort litigation expense damages?
A
“Bad faith” on the part of the defendant must occur as part of the tort at issue. It is not base don the defendant’s actions during the lawsuit itself. Brannon Enterprises v. Deaton, 285 S.E.2d 58 (Ga. App. 1981). A defendant will not be considered stubbornly litigious when a bona fide controversy exists or when he refuses to arbitrate without a mandatory arbitration clause. Witty v. McNeal Agency, 521 S.E.2d 619 (Ga. App. 1999). A bona fide controversy will also protect a defendant from causing unnecessary trouble and expense. Buffalo Cab. Co. v. Williams, 191 S.E.2d 317 (Ga. App. 1972).
7
Q
What is the “Motion Picture Operator Privilege”?
A
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.
8
Q
Under Georgia law, what duty do innkeepers have towards their clients?
A
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.
9
Q
Under Georgia law, what are “Physical Pain and suffering”?
A
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.
10
Q
What is required for a claim of “Intentional Infliction of Emotional Distress” (IIED)?
A
The conduct of the defendant must be directed at the plaintiff (no bystander recovery is allowed). The plaintiff must have either a physical or pecuniary injury, unless the defendant’s conduct was willful, wanton, or malicious. Hill v. City of Fort Valley, 554 S.E.2d 783 (Ga. App. 2001).
11
Q
Under Georgia law, what is a landlord’s duty to repair?
A
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.
12
Q
Under Georgia law, what is the “reasonable person”?
A
“Reasonable person” is a person exercising ordinary diligence. O.C.G.A. § 51-1-2.
13
Q
What is “abusive litigation”?
A
Abusive litigation occurs when a person takes an active part in initiating, continuing, or procuring civil proceedings against another with malice and without substantial justification. O.C.G.A. § 51-7-81.
14
Q
What damages are available in a nuisance lawsuit?
A
A nuisance may or may not be permanent.
If it abates, then it is not permanent, and every instance of the nuisance is a new action.
If it is deemed not to be abatable, then the nuisance is permanent, and the plaintiff is entitled to recover damages for both past and future harm in a single action. Oglethorpe Power Corp. v. Forrister, 711 S.E.2d 641 (Ga. 2011).
15
Q
Under Georgia law, how does remoteness restrict recovery?
A
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).
16
Q
What damages are available in a slander lawsuit?
A
For slander, special damages must be please only when the defendant’s disparaging words naturally produced special damages.
Damages will be inferred if the slander suggests the plaintiff committed a crime, has a contagious disease, committed an act that would cause him to be shunned, or accused the plaintiff in regards to his trade, office, or profession, with intent to injure. O.C.G.A. § 51-5-4.
17
Q
What is required under Georgia law for a “Group Defamation” claim?
A
When defamatory words refer to a general class or group but do not point to a specific class or group, then a member does not have a defamation claim. When a small group or local portion of a class is defamed, any member may sue, unless the words used are impersonal and indefinite, in which case the suing member must show that the language applied to him. Constitution Publ'g Co. v. Leathers, 172 S.E. 923 (Ga. App. 1934).
18
Q
When are state employees immune from tort liablity?
A
State officials or employees are not liable for tors committed while acting in the scope of their official duties. O.C.G.A. § 50-21-25. This immunity applies to intentional, willful, malicious, and neglgent conduct, so long as the official was acting within the scope of her official duties.
19
Q
What are the exceptions to the State Tort Claims Act?
A
(1) The case is brought in federal court;
(2) The state actor exercised due care int hee xecution of a statue, reguatlion, rule, or ordiance;
(3) The state actor was performing a discretionary function;
(4) A law-enforcement officer was ssessing or collecting a tax or detaining oods;
(5) A legislative, judicial, quasi-judicial, or prosecutorial actor either acted or failed to act;
(6) The state failed to control a civil disurbance or to provide police or fire protection;
(7) A state actor is accused of assault, batter, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contractual rights;
(8) A state actor execises or fails to exercise the state’s inspection powers or functions;
(9) A state actor exercises or fails to exercise the state’s licensing powers or fucntions;
(10) A public utility or public improvement failure creates a loss;
(11) A state actor engages in financing regulatory activities; or
(12) Activities of the Georgia National Guard, while it is engaged in training, create a loss, unless it is a vehicular accisent.
O.C.G.A. § 50-21-21 et seq.
20
Q
Under Georgia law, what duty does the land possessor owe to invitees?
A
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).
21
Q
Under Georgia law, what are “Motor vehicle accident” special damages?
A
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.
22
Q
For an intentional tort, what is required to satisfy the “intent” requirement?
A
A defendant acts intentionally if:
(1) The defendant acts with the purpose of causing the consequence of his act; or
(2) The defendant acts knowing that the consequence is substantially certain to result.
23
Q
Under Georgia law, what interest is present for unliquidated damages?
A
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.
24
Q
What is required under Georgia law for a court in a battery case to award a plaintiff punitive damages?
A
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.
25
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).
26
How does defendant's bad conduct effect litigation expense damages?
A plaintiff must specifically plea for litigation expenses, which can be recovered if the defendant acted in bad faith, has caused unnecessary trouble and expense to the plaintiff, or has been stubbornly litigious. O.C.G.A. § 13-6-11.
27
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).
28
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).
29
What is required under Georgia law for the "State of the Art" defense in a product's liability case?
In Georgia, compliance with industry-wide practices, federal regulations, or the state of the art will not bar a plaintiff from recovering in a design-defect case. The plaintiff will be barred, however, from recovering punitive damages. Barger v. Garden Way, 499 S.E.2d 737 (Ga. App. 1998).
30
What damages are available for a successful abusive litigation claim?
A plaintiff in a suit for abusive litigation is entitled to costs and expenses of litigation and also reasonable attorney's fees. If no damages bust costs are claimed, then the provision regarding frivolous claims and demands are used.
Punitive damages are not allowed. Snelling v. Sheppard, 494 S.E.2d 583 (Ga. App. 1997).
31
What is "intrusion upon seclusion", and does Georgia recognize it?
Intrusion upon seclusion occurs when the defendant's act of intruding, physically or otherwise, into the plaintiff's private affairs, solitude, or seclusion.
Under Georgia law, the action requires a physical intrusion, similar to trespass. Ass'n Servs. v. Smith, 549 S.E.2d 454 (Ga. App. 2001). They have also held that mere surveillance is enough, with no physical intrusion required. Anderson v. Mergenhagen, 642 S.E.2d 105 (Ga. App. 2007).
32
Under Georgia law, what are "punitive damages"?
Punitive damages are awarded when the circumstances are aggravated. They are not compensation but instead are intended to punish a defendant for his actions or deter him from repeating them. They are awarded only when the plaintiff proves by clear and convincing evidence that the defendant's conduct was malicious, fraudulent, willful or wanton, or oppressive, or if it raises a presumption of a conscious indifference to the consequences of his actions. O.C.G.A. § 51-12-5.1.
33
What is "settlements" regarding tort litigation expense damages?
If a plaintiff rejects the defendant's settlement offer, the defendant can recover attorney's fees and litigation expenses if the final judgment is for the defendant or if the judgment is for less than 75-percent of the defendant's settlement offer. O.C.G.A. § 9-11-68(b)(1).
The plaintiff may recover fees and expenses in the same manner if the plaintiff makes a rejected offer and recovers judgment that is more than 125-percent of the original settlement offer. O.C.G.A. § 9-11-68(b)(2).
34
What is Georgia's "Good Samaritan Statute"?
Georgia's Good Samaritan statute protects any person who renders emergency care in good faith. O.C.G.A. § 51-1-29.
35
How does Georgia divide liability when the plaintiff is not responsible for the injury and there is more than one defendant?
In cases where a plaintiff is not responsible for the injury and there is more than one defendant:
(1) The liability of the individual defendants is apportioned based on their proportionate fault. This analysis must also consider non-parties who were at fault. This liabilities is several, and the defendants are not entitled to contribution;
(2) The fact-finder, at its discretion, may list specific damages to be recovered from specific defendants. In such a case, the defendants are severally liable and have no right of contribution from each other.
(3) If one tortfeasor pays off a judgement entered jointly, then he will have a right of contribution (even if he settled).
O.C.G.A. § 51-12-31 – 33.
36
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).
37
Under Georgia law, what is false imprisonment?
False imprisonment is (1) the unlawful detention of another person (2) for any length of time (3) whereby the person is deprived of his personal liberty. O.C.G.A. § 51-7-20.
38
What is "Libel per quod," and does Georgia law recognize it?
Libel per quod state if the nature of the defamatory statement requires proof extrinsic facts to show that the statement is defamatory, the the plaintiff must prove either special damages or that the statement first into one of the four categories of statements that satisfy the requirements of slander per se.
Georgia requires special damages for libel per quod claims. Smith v. Steward, 660 S.E.2d 822 (Ga. App. 2008).
39
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).
40
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.
41
What damages are available in a libel per se or libel lawsuit?
To recover from libel per se, a plaintiff does not need to plead special damages. Brandon v. Arkansas Fuel-Oil Co., 12 S.E.2d 414 (Ga. App. 1940).
To recover from libel, a plaintiff must prove special damages. Webster v. Wilkins, 456 S.E.2d 699 (Ga. App. 1995).
42
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.
43
For what ages is infancy a tort defense?
In Georgia, infancy is a defense to a tort action if the defendant is less than 13 years of age at the time of the act. O.C.G.A. § 51-11-6; O.C.G.A. § 16-3-1.
44
How does Georgia divide liability when the plaintiff is to some degree responsible for the injury?
In cases where a plaintiff is to some degree responsible for the injury:
(1) The plaintiff's damages are reduced by his percentage of fault;
(2) 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 analysis must also consider non-parties who were at fault. This liabilities is several, and the defendants are not entitled to contribution;
(3) If a plaintiff is 50-percent or more responsible for the injury, then he is not entitled to damages (50-percent Bar rule).
O.C.G.A. § 51-12-33.
45
Under Georgia law, what qualifies as "slander per se"?
The defamatory statement must accuse the plaintiff of one of the following:
(1) A crime involving moral turpitude or subjects the criminal to imprisonment;
(2) Reflecting poorly on the plaintiff's trade or profession;
(3) having a loathsome disease;
(4) Sexual misconduct
(5) Accusation the plaintiff is guilty of a debasing act that would cause him to be shunned.
O.C.G.A. § 51-5-4.
46
Under Georgia law, how does judicial interference restrict recovery?
A court should not interfere with the jury's verdict. If the jury awards inadequate or excessive damages that are inconsistent with the evidence, then the judge may order a new trial on damages or condition a new trial on any party's refusal of a new amount determined by the court. O.C.G.A. § 51-12-12.
47
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.
48
How should wrongful death damages be distributed?
Any amount recovered must be equally divided among the spouse and children per capita, with descendant taking per stirpes.
Any recovery by a minor child that is less than $15,000 must be held by the child's guardian and used for the child's benefit. IF the child's recovery is $15,000 of more, then the guardian of the child's property must hold that amount. O.C.G.A. § 51-4-2(d)(1).
49
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.
50
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).
51
What is "conversion"?
A defendant converts a plaintiff's property when he wrongfully asserts control over the property either by denying the plaintiff his rights to the property or by asserting control in a manner that is inconsistent with those rights. Bromley v Bromley, 127 S.E.2d 836 (Ga. App. 1962).
52
Describe the "Shopkeeper's Privilege," and whether the privilege exists under Georgia law.
Under Georgia law, the shopkeeper's privilege is available if: (1) the plaintiff behaved in a way that would cause a person of reasonable prudence to believe that the plaintiff was shoplifting, or (2) the manner of the detention and the length of the time the plaintiff was detained were reasonable under all the circumstances. O.C.G.A. § 51-7-60.
53
Describe the Georgia rule regarding partial comparative fault.
(1) If the plaintiff is less at fault than the defendant, then the plaintiff's recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction.
(2) If the plaintiff is more at fault than the defendant, then the plaintiff's recovery is barred, just as in a contributory-negligence jurisdiction.
(3) If the plaintiff and the defendant are equally at fault, then the plaintiff recovers nothing.
54
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).
55
What factors are considered in a wrongful death lawsuit to calculate the loss of the decedent?
Tangible evidence includes:
§ general health
§ habits
§ earnings
§ services, and
§ life expectancy.
Pollard v. Boatwright, 196 S.E. 215 (Ga. App. 1938).
Intangible value may also be considered. Consol. Freightways Corp. v. Futrell, 410 S.E.2d 751 (Ga. App. 1991).
Pain and suffering is considered a separate action, and, therefore, it is not recoverable in a wrongful death lawsuit. Complete Auto Transit v. Floyd, 104 S.E.2d 208 (Ga. 1958).
Punitive damages are not recoverable. Truelove v. Wilson, 159 Ga. App. 906 (Ga. App. 1981).
56
Under Georgia law, when may a person defend real or personal property (other than the person's habitation) to prevent a trespass or interference?
A person may use force to prevent or terminate a trespass or interference with real or personal property that he or a member of his immediate family lawfully possesses, or that he had a legal duty to protect. A person may only use force likely to cause serious injury or death if he reasonably believes that it is necessary to prevent the commission of a forcible felony. O.C.G.A. § 16-3-24.
57
Under Georgia law, what interest is present for liquidated damages?
Prejudice interest on liquidated damages is available from the time a party is liable and bound to pay them, or from the time of demand. O.C.G.A. § 7-4-15. Interest should be calculated at a rate of seven percent annually, unless another rate is established by written by contract. O.C.G.A. § 7-4-2.
58
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.
59
Under Georgia law, who is an "invitee"?
An invitee is anyone the land possessor expressly or impliedly invited onto the land.
60
Under Georgia law, how do you determine the zone of danger?
Georgia does not subscribe to the "zone of danger" rule. To recover, the plaintiff must suffer an impact or the defendant's conduct must be malicious, willful, or wanton. Hang v. Wages & Sons Funeral Home, 585 S.E.2d 118 (Ga. App. 2003).
61
In Georgia, what is required to establish prospective economic advantage?
The defendant's actions must be the proximate cause of the damage when a third party fails to enter into a prospective business relationship with the plaintiff. The defendant must have acted maliciously and purposely, with intent to injure. The defendant's actions must have been improper, without any privilege. Crane v. Albertelli, 592 S.E.2d 684 (Ga. App. 2003).
62
Under Georgia law, how does the "collateral-source rule" restrict recovery?
A defendant may not introduce evidence regarding outside sources of payment to the plaintiff in order to reduce the defendant's liability. Amalgamated Transit Union Local 1324 v. Roberts, 434 S.E.2d 450 (Ga. 1993).
63
In Georgia, what is required to establish intentional interference with business relations?
A plaintiff must show that (1) the defendant acted improperly, without any privilege, (2) the defendant acted purposely and maliciously, intending to hurt the plaintiff, (3) the defendant persuaded a third party or parties not to begin or continue a business relationship with the plaintiff, and (4) the plaintiff suffered financial fiscal injury. Life Care Ambulance, Inc. v. Hosp. Auth., 415 S.E.2d 502 (Ga. App. 1992).
64
Is contributory negligence a valid defense against strict liability?
No. In Georgia, contributory negligence is not a valid defense,. Deere & Co. v. Brooks, 299 S.E.2d 704 (Ga. 1983).
65
Under Georgia law, what interest is present for post-judgment damages?
Interest on tort judgment may be recovered at a rate of three percent above the prime rate. O.C.G.A. § 7-4-12.
66
What is "placing the plaintiff in a false light," and does Georgia recognize it?
Placing the plaintiff in a false light occurs when the defendant (1) made public facts about the plaintiff that (2) placed the plaintiff in a false light, (3) which false light would be highly offensive to a reasonable person.
Georgia recognizes the claim for false light, but the plaintiff must distinguish the claim from defamation.
67
Describe Georgia's "wrongful life" and "wrongful birth" statutes?
Georgia does not have a "wrongful birth" or "wrongful life" statue. It does have a wrongful pregnancy or wrongful conception claim. This action occurs when there is a negligent performance of a sterilization or an abortion. Wrongful pregnancy is considered a form ao medical malpractice, and it entitles the plaintiff to recover only damages incurred during the pregnancy and delivery. Atlanta Obstetrics & Gynecology Group. v. Abelson, 398 S.E.2d 557 (Ga. 1990).
68
What is required under Georgia's informed consent doctrine?
Informed consent requires the physician to advise the patient of (1) the diagnosis that requires the proposed procedure, (2) the nature and purpose fo the procedure, (3) the material risks (recognized and accepted by reasonably prudent physicians) that could cause a reasonable person to decline the procedure, (4) the likelihood of success of the procedure, (5) practical alternatives to the procedure, and (6) the patient's prognosis without the procedure.
69
Under Georgia law, what is the "Landlord's Duty to Notify of Flooding"?
If a property has been damaged by flooding three or more times in the five years preceding the lease, a landlord has a statutory duty to notify prospective tenants in writing. If the landlord fails to give notice, then he is liable in tort to the tenant for damages to personal property caused by flooding. O.C.G.A. § 44-7-20.
70
Under Georgia law, what are "consequential damages"?
Consequential damages may be dependent on other circumstances, but they are the connected effect of the tortuous act and are necessarily related to it. O.C.G.A. § 51-12-3.
71
Under Georgia law, is there a duty to retreat?
Hell no. A person who is justified in using force has no duty to retreat and will not be liable to the person against whom force was used or to that person's accomplice. O.C.G.A. § 51-11-9.
72
What procedures are necessary to file an abusive litigation claim?
A plaintiff must give written notice to the other party before he files a claim, thereby giving that party a chance to voluntarily discontinue the abusive litigation. The plaintiff must wait until the proceeding is terminated and then must bring a claim for abusive litigation within one year of the termination of that proceeding. O.C.G.A. § 51-7-84.
73
Under Georgia law, when may a person use deadly force to prevent or terminate an attack on the person's habitation?
A person may use deadly force if (1) the entry is made in a violent or disorderly manner, or the person believes that the entry is attempted or made for the purpose of assaulting someone in the dwelling and the force is necessary to prevent the assault, (2) the person using force knew that the entry was made unlawfully or forcibly, or (3) the person using force believes that the entry is made to commit a felony, and the force is necessary to prevent it. O.C.G.A. § 16-3-23.
74
What damages are available in a conversion lawsuit?
A plaintiff may seek replevin, damages, or replevin plus the reasonable rental value or interest accrued while the chattel was gone. O.C.G.A. § 44-12-151.
Damages are calculated based on the highest market value of the chattel between the conversion and the trial. O.C.G.A. § 44-12-152. The plaintiff bears the burden of proving this number.
75
What damages are available in a Intentional Infliction of Emotional Distress lawsuit?
The plaintiff must have suffered either a physical injury or a pecuniary loss as a result of the defendant's actions. In absence of physical injury or pecuniary loss, the plaintiff may only recover if the defendant's conduct is willful, wanton, or malicious. The conduct must be directed towards the plaintiff. Hill v. City of Fort Valley, 554 S.E.2d 783 (Ga. App. 2001).
76
Under Georgia law, what are "General damages"?
General damages are preusmed to flow form the tortuous act, and no proof of amount is required. O.C.G.A. § 51-12-2.
77
Can a jury consider the defendant's intent when assessing damages?
Yes. O.C.G.A. § 51-1-13.
78
What damages are available for trespass to chattels?
A plaintiff can recover actual damages by showing actual harm to or deprivation of the use of the chattel for a substantial time. Additionally, Georgia law provides nominal damages will be recoverable when no actual damages can be shown. Ambort v. Tarica, 258 S.E.2d 755 (Ga. App. 1979).
79
What is "loss of consortium" damages?
When a plaintiff's spouse is injured, the plaintiff may recover loss-of-consortium damages. These damages take into account a person's affection, company, and romantic society. Hosford v. Hosford, 198 S.E. 289 (Ga. App. 1938).
The right of consortium exists only while the husband and wife and both alive. Walden v. Coleman, 124 S.e.2d 313 (Ga. App. 1962).
80
Under Georgia law who may bring a "Wrongful-Death Action"?
In Georgia, the surviving spouse can bring a wrongful-death action. The recovery is divided equally among the surviving spouse and children per capita. O.C.G.A. § 51-4-2. A spouse may be equitably replaced as the plaintiff in a wrongful death suit when the spouse caused the decedent's death. Carringer v. Rodgers, 578 S.E.2d 841 (Ga. 2003).
If there is no surviving spouse, then the decedent's children (minor or adult) may bring the action. If an unmarried decedent dies without children, then his parents have the right to bring a wrongful-death action. O.C.G.A. §§ 51-4-4, 19-7-1. The personal representative of the estate may pursue a claim when there are no other eligible plaintiffs. O.C.G.A. § 51-4-5.
81
What damages are available for defamation occurring by radio or television broadcast?
The plaintiff may only recover the actual, consequential, or punitive damages he both alleges and proves. The plaintiff must also establish that the defendant failed to exercise due care to prevent the defamation if the defendant is not the actual speaker of the defamatory statements. O.C.G.A. § 51-5-10.
82
Under Georgia law, what is a "malicious abuse of privilege"?
In Georgia, privileges are overcome when the party making the defamatory statements is using the privilege as a disguise for private malice. O.C.G.A. § 51-5-9. This rule applies only to qualified privileges, and it requires a showing of actual malice. Morton v. Gardner, 271 S.E.2d 733 (Ga. App. 1980).
83
What standard of care does Georgia law require medical professional to uphold?
Physicians are held to a national standard of care. Summerour v. St. Joseph's Infirmary, Inc., 286 S.E.2d 508 (Ga. App. 1981).
84
Under Georgia law, what are "Pain and Suffering"?
Pain and suffering damages are determined by the jury. The plaintiff does not need to provide any evidence as to the exact amount of pain and suffering that should be awarded, including when the plaintiff seeks damages for loss of capacity to work.
85
What test does Georgia law use for product's liability cases?
Georgia applies the "risk-utility test." Banks v. Ici Ams., 450 S.E.2d 671 (Ga. 1994). This test asks, "Do the risks posed by the product outweigh its benefit?"
86
What damages are available for defamation occurring by radio or television broadcast if the plaintiff did not request a retraction?
Only actual damages. O.C.G.A. §§ 51-5-11 – 12.
87
Under Georgia law, what are "direct damages"?
Direct damages are damages that are the immediate result of the tortuous act. O.C.G.A. § 51-12-3.
88
Under Georgia law, when may a persons use force that is intended to likely to cause death or great bodily harm?
If the defendant believes: (1) the force is necessary to prevent death or serious injury to himself or another person, (2) the force is necessary to prevent or terminate a trespass of a habitation (a dwelling, motor vehicle, or place of work), or (3) to prevent the commission of a forcible felony. O.C.G.A. § 16-3-21; 16-3-23; 16-3-24.
89
Under Georgia law, what special requirements must be met for a medical malpractice claim?
In the case of a medical malpractice action, the expert must be a member of the same profession and must have been regularly engaged in (i) the active practice of the relevant profession or speciality for at least three of the last five years, or (ii) the teach of the relevant profession for at least three of the last five years as a faculty member of an educational institution accredited in the teaching of the profession O.C.G.A § 24-7-702.
90
When are local governments immune from tort liability?
The state has also waived the immunity of local governments for claims for the negligent use of a motor vehcile owned or rented by a local government entity. Immunity is waived only up to $500,000 for bodily injury or death of one person, or an aggregated amount of $700,000 for the bodily injury or death of two or more persons. Immunity is waived up to $50,000 for property damage. O.C.G.A. § 36-92-2.
91
Under Georgia law, what standard must be met regarding private individual s and matter of public concern?
In Georgia, written defamation must be false and malicious. O.C.G.A. § 51-5-1. The Georgia Supreme Court held that a "negligence standard" applies for private-figure plaintiffs. Triangle Publ'ns, Inc. v. Chumley, 317 S.E.2d 534 (Ga. 1984) (reacting to Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), that requires a defendant acted with fault—either negligence or actual malice).
92
What is the duty to investigate regarding justifiable reliance?
In Georgia, in the absence of special circumstances, the plaintiff will be barred from recovery for fraud unless he exercised ordinary care in independently verifying the contract's terms and factual representations. Mabry v. Pelton, 432 S.E.2d 588 (Ga. App. 1993).
93
In order to recover in a tort action, what must a plaintiff prove?
That general or special damages are either direct or consequential. O.C.G.A. § 51-12-1 & 8.
94
Is assumption of the risk a valid defense against strict liability?
Yes. Georgia's vicious-animal statute specifically protects only plaintiffs who did not provoke attack. O.C.G.A. § 51-2-7. When a person provokes a dangerous animal and is injured, he is considered to have consented to the damage. The plaintiff's provocation must have a natural, normal connection the injury. If the plaintiff's actions would not naturally lead to an attack, then the animal owner will remain liable. Conway v. Grant, 13 S.E. 803 (Ga. 1891).
95
Under Georgia law, what are "compensatory damages"?
Compensatory damages reimburse the plaintiff of the estimate financial value of his or her injuries. If injury is slight, nominal damages (compensatory damages associated with the court costs) are available. O.C.G.A. § 51-12-4; Conley v. Arnold, 20 S.E. 762 (Ga. 1894).
96
What is the statute of limitations for a products liability case?
Georgia provides strict liability for manufactures of personal property, for cases brought within 10 years of the first sale for use or consumption. O.C.G.A. § 51-1-11.
97
What are the elements of any intentional tort?
Act, Intent, Causation
98
What procedural acts must a plaintiff perform before filing a lawsuit against a government entity or employee?
Before filing suit against the state, a plaintiff must give notice of a claim within 12 months of the date the loss was, or should have been, discovered. The notice must be sent to the Department of Administrative Services, as well as to the entity that is responsible for the loss. The plaintiff cannot file suit until either the Department of Adminstrative Services has denied the claim or 90 days have elapsed from the date of the ntoice. O.C.G.A. § 50-21-26.
99
What is a "public nuisance"?
A public nuisance is a nuisance that causes damage to everyone who comes in contract with it, though the effect may be different for different individuals. O.C.G.A. § 41-1-2.
100
For an intentional tort, what is required to satisfy the "act" requirement?
The act must be voluntary, meaning the defendant must have directed the physical muscular movement.
101
Under Georgia law, what is "trespass to chattels"?
A defendant is liable for trespass to chattels if the defendant intentionally interferes with the plaintiff's right of possessing by either: (1) dispossessing the plaintiff of the chattel, (2) using or intermeddling with the plaintiff's chattel, or (3) willfully damaging the chattel. O.C.G.A. § 51-10-6.
102
Under Georgia law, what is a sufficient length of restraint for false imprisonment?
By example: The momentary pause in progress through a checkout line is enough to be a detention if it is unlawful. Williams v. Food Lion, 446 S.E.2d 221 (Ga. App. 1994).
103
Under Georgia law, what are the punitive damages limits?
Punitive damages are available and limited in four areas:
(1) Products Liability: There is no limit on punitive damages. 75-percent of punitive damages awarded for product-liability cases (minus a portion of the costs of litigation and attorney's fees) must be paid to the Office of the State Treasurer. The clerk of court must pay the amount to the office within 60 days of receiving the punitive damages. O.C.G.A. § 51-12-5.1(e).
(2) In "other tort" actions when the defendant acted or failed to act (so-called act of omission) with the specific intent to harm, there is no limited on punitive damages, but only the active tortfeasor is liable for them. O.C.G.A. § 51-12-5.1(e).
(3) For all other torts, punitive damages are limited to $250,000. O.C.G.A. § 51-12-5.1(g).
(4) Punitive damages cannot be recovered from a government actor. Hospital Authority of Clarke County v. Martin, 438 S.E.2d 103 (Ga. App. 1993). Individual government defendants may be liable for punitive damages in civil-rights cases. Smith v. Wade, 461 U.S. 30 (1983).
104
Describe Georgia's assumption of the risk rule.
Voluntarily proceeding in the face of a known, specific risk or peril will bar recovery if proceeding is unreasonable, unless there was willful or wanton conduct on the defendant's part. Newman v. Collins, 367 S.E.2d 866 (Ga. App. 1988).
105
What damages are available in a Negligent Infliction of Emotional Distress lawsuit?
A plaintiff may recover (according to the Impact Rule) without an impact only when the defendant's actions are malicious, willful, or wanton. Hang v. Wages & Sons Funeral Home, 585 S.E.2d 118 (Ga. App. 2003). Georgia allows a parent to recover for witnessing her child's death when the parent and child were both injured though a negligent act. Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82 (Ga. 2000).
106
What is required under Georgia law for the product's liability assumption of the risk defense.
The theory of consent (synonym for assumption of the risk in Georgia) is that no tort can be committed against a plaintiff if (1) the plaintiff freely consents, (2) the consent is not obtained by fraud, and (3) the plaintiff was of sound mind. O.C.G.A. § 51-11-2.
Assumption of the risk will bar recovery. Deere & Co. v. Brooks, 299 S.E.2d 704 (Ga. 1983).
107
Under Georgia Law, what is required to prove "abusive litigation"?
When a person maliciously takes an active part in beginning, continuing, or procuring a civil action against another person without substantial justification. O.C.G.A. § 51-7-81.
108
What duty is owed by a person to another person that person placed in peril?
A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid. The driver of any vehicle involved in an accident is required by statute to render reasonable assistance to anyone injured in the crash, including transporting or arranging transport to a doctor, surgeon, or hospital. O.C.G.A. § 40-6-270.
109
Under Georgia law, what duty do land possessors have towards trespassers?
A possessor of land owes trespassers a duty to refrain from causing willful or wanton injury. O.C.G.A. § 51-3-3.
110
Under Georgia law, what are "future special damages"?
Future special damages are valued at a discount of five percent, unless the trier of fact deems another percentage more appropriate. O.C.G.A. § 51-12-13.
111
Under Georgia law, what types of damages may be available in a tort action?
(1) Compensatory damages
(2) General damages
(3) Special damages
(4) Punitive damages
112
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).
113
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).
114
What is "frivolous claims and demands" regarding tort litigation expense damages?
Reasonable attorney fees and expesnes should be awarded to any party when the other party asserted a claim or defense that totally lacked a triable issue of law or fact, so that the party could not have reasonably believed that the court would accept it. O.C.G.A. § 9-15-14. A party seeking fees and expenses may make a motion for them no later than 45 days after the final disposition of the case.
Fee will not be awarded, however, if the court determines that the untriable theory was pursed by a party in a good-faith effort to establish new law, as long as the effort is based on precedent or persuasive authority. O.C.G.A. § 9-15-14(c).
115
What are Georgia's special tort liability rules regarding exculpatory clause language?
(1) Georgia does not require the word "negligence."
(2) Exculpatory clauses will not prevent a plaintiff from initiating a claim for willful or wanton misconduct.
Neighborhood Assistance Corp. of Am. v. Dixon, 593 S.E.2d 717 (Ga. App. 2004).
116
What is the "Firefighter's Rule"?
Firefighters may not recover damages when they receive injuries caused by negligent acts when that negligent act is what brought them to the scene in the first place. A firefighter may still recover when the negligence that injured him was not the reason for his presence. Firefighters who come on another' s land in their professional capacity are licensees, and the landowner only has a duty to avoid wilful and wanton negligence. Wilbanks v. Echols, 433 S.E.2d 134 (Ga. App. 1993).
117
Under Georgia law, what is required to establish "misappropriation of the right to publicity"?
(1) The defendant's unauthorized appropriation of the plaintiff's name, likeness, or identity;
(2) For the defendant's advantage, commercial or otherwise;
(3) Lack of consent; and
(4) Resulting injury.
118
Under Georgia law, who is a "licensee"?
A licensee is someone who is permitted to go on the land for his own interests or convenience. Licensees are not customers or servants, and they do not have any contractual relationship with the land possessor.
119
Is comparative fault a valid defense against strict liability?
No. Georgia does not apply comparative fault when a defendant is found to be strictly liable. Patterson v. Long, 741 S.E.2d 242 (Ga. App. 2013).
120
Under Georgia law, what are "lost wages" special damages?
Lost wages damages are calculated by future earning reduced to their present value. Central Truckaway System v. Harrigan, 53 S.E.2d 186 (Ga. App. 1949). This should be based on a discount of five-percent, unless the trier of fact deems another percentage more appropriate. O.C.G.A. § 51-12-13. The jury must receive enough evidence to determine this amount with reasonable certainty. Schriever v. Maddox, 578 S.E.2d 210 (Ga. App. 2003).
121
How are damages measured for negligent misrepresentation?
In Georgia, damages are measured by the plaintiff's out-of-pocket losses. BDO Seidman v. Mindis Acquisition Corp., 578 S.E.2d 400 (Ga. 2003).
122
How does a radio or television broadcast properly retract a defaming statement?
(1) The matter was published or broadcast without malice,
(2) The defendant corrected and retracted the statement:
- Within seven days of receiving written demand (or int he next regular issue), in a manner as conspicuous and public as the original statement, if the statement was published; or
- Within three days of receiving written demand, in a regular broadcast on the station over which the statement was made, if the statement was broadcast; and
(3) If requested, the retraction was accompanied by an editorial repudiating the statement.
O.C.G.A. §§ 51-5-11 – 12.
