Torts Distinctions Distinctions Flashcards
Describes OCGA title 51 and Georgia case law that distinguishes Georgia law from the MBE (Effective July 2016).
What are some exceptions to the informed consent doctrine?
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.
Under Georgia law, what duty do common carrier have towards their clients?
Common carriers have a higher standard of care in Georgia, with presumptions against them unless the injury was an act of God or caused by a public enemy. O.C.G.A. § 46-9-1.
What damages are available in a interference with contractual relations lawsuit?
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).
What is “interspousal immunity,” and does Georgia recognize it?
Interspousal immunity prevents one spouse from suing the other in a personal-injury action. In Georgia, interspousal immunity is still recognized. O.C.G.A. § 19-3-8.
Under Georgia law, what are “Property damages”?
Property damages are special damages generally measured by the difference in market value before and after the injury, unless there is a more accurate and direct way to measure the damages. Clarke County School Dist. v. Madden, 110 S.E.2d 47 (Ga. App. 1959).
What is “bad faith” regarding tort litigation expense damages?
“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).
What is the “Motion Picture Operator Privilege”?
Under Georgia law, a movie theater operator’s privilege is available if: (1) the plaintiff behaved in a manner as to cause a person of reasonable prudence to believe that the plaintiff was committing the offense of film piracy, or (2) the manner of the detention or arrest and the length of time during which such plaintiff was detained was under all the circumstances reasonable. O.C.G.A. § 51-7-62.
Under Georgia law, what duty do innkeepers have towards their clients?
Innkeepers generally have only a duty of ordinary care to maintain safe premises. Rasnick v. Krishna Hospitality, 713 S.E.2d 835 (Ga. 2011). Nevertheless, innkeepers also have a duty of extraordinary diligence to protect entrusted property from theft. O.C.G.A. § 43-21-8. Innkeepers are liable up to $1,000 for valuables left in the hotel’s safe. O.C.G.A. § 43-21-11.
Under Georgia law, what are “Physical Pain and suffering”?
Physical pain and suffering damages are inferred when there is evidence of a physical injury. Dodson v. Cobb, 89 S.E.2d 552 (Ga. App. 1955). The plaintiff may testify to his pain and suffering, but they are considered subjective testimony. A physician may provide testimony as to observing the plaintiff in pain, and may offer expert testimony as to the plaintiff’s injuries.
What is required for a claim of “Intentional Infliction of Emotional Distress” (IIED)?
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).
Under Georgia law, what is a landlord’s duty to repair?
A landlord has a statutory duty to keep the premises in repair, and he is liable for injuries resulting from any repairs made with his consent, as well as damages arising from defective construction. O.C.G.A. §§ 44-7-13 – 14.
Under Georgia law, what is the “reasonable person”?
“Reasonable person” is a person exercising ordinary diligence. O.C.G.A. § 51-1-2.
What is “abusive litigation”?
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.
What damages are available in a nuisance lawsuit?
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).
Under Georgia law, how does remoteness restrict recovery?
Imaginary or theoretical damages cannot be recovered, nor will they be recovered when other contingencies were of great importance in causing the injury. O.C.G.A. § 51-12-8.
Even if a contingency in involved, damages will not be too remote to be recovered as long as they are the legal and natural result of the tortuous act. O.C.G.A. § 51-12-9. In the defendant acted with knowledge to purposely deprive the plaintiff of contemplated benefits, then remoteness damages may be recoverable. O.C.G.A. § 51-12-10. Damages that are not provable may not be recovered under this exception. Blue Ridge Mt. Fisheries v. Dep’t of Naturla Res. , 456 S.E.2d 651 (Ga. App. 1995).
What damages are available in a slander lawsuit?
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.
What is required under Georgia law for a “Group Defamation” claim?
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).
When are state employees immune from tort liablity?
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.
What are the exceptions to the State Tort Claims Act?
(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.
Under Georgia law, what duty does the land possessor owe to invitees?
The land possessor owes invitees a duty of ordinary care to keep the premises safe. O.C.G.A. § 51-3-1. Once an invitee goes beyond the scope of the invitation, he becomes a licensee. Atkins v. Tri-Cities Steel, 304 S.E.2d 409 (Ga. App. 1983).
Under Georgia law, what are “Motor vehicle accident” special damages?
Motor vehicle accident damages regarding property damage or personal injury are special damages. They may be pursued in separate lawsuits. The settlement of one suit does not preclude the claim in the other lawsuit or affect the other lawsuit. O.C.G.A. § 51-1-32 – 34.
For an intentional tort, what is required to satisfy the “intent” requirement?
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.
Under Georgia law, what interest is present for unliquidated damages?
When a claimant delivers written notice by registered mail, certified mail, or statutory overnight delivery to a person against whom the claim is made demanding an amount or unliquidated damages in a tort action, that person has 30 days to pay before interest accrues.
After the 30 days expire but before the claimant withdraws his demand, if the person against whom the claim is made gives written notice and delivers it by any of the above-mention methods offering to pay the amount demanded plus interest and that offer is not accepted within 30 days, then the claimant is not entitled to interest after that 30th day, even if a subsequent judgment is for at least the sum demanded. O.C.G.A. § 51-12-14.
What is required under Georgia law for a court in a battery case to award a plaintiff punitive damages?
Georgia allows punitive damages whenever a defendant’s actions are willful misconduct, malicious, fraudulent, wanton, oppressive, or evidence of such a total lack of care that it can be presumed that the defendant was consciously indifferent to the consequences of his actions. O.C.G.A. § 51-12-5.1.
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).
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.
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).
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).
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).
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).
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).
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.
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).
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.
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.
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).
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.
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).
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).
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.
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).
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.
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.
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.
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.
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.
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.
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).
