TORTS - GEORGIA DISTINCTIONS BARBRI Flashcards
1
Q
What is the Georgia rule regarding incapacity defenses in intentional torts?
A
Infancy is a defense in tort actions for children under age 13
This contrasts with the multistate rule where young children or mentally incompetent individuals cannot claim incapacity as a defense.
2
Q
What is required to make a claim for trespass to chattels under Georgia law?
A
Actual damages are not required; nominal damages may be awarded
Unlike the multistate rule, which requires actual damages.
3
Q
Under what circumstances can deadly force be used in defense of habitation in Georgia?
A
Deadly force may be used if:
* Entry is violent and poses a serious threat to an occupant
* Force is used against a non-household member unlawfully entering
* Entry is for the purpose of committing a felony
This is more permissive than the general rule allowing only reasonable force.
4
Q
What is the minimum age for a child to be found negligent in Georgia?
A
A child under 13 has an absolute defense in negligence actions
This differs from the multistate rule where no fixed age is set.
5
Q
What is Georgia’s rule regarding statutory violations and negligence per se?
A
Tort actions cannot be implied from the violation of a criminal statute enacted after July 1, 2010
The right to a civil action must be expressly stated in the statute.
6
Q
What does Georgia’s Good Samaritan Statute entail?
A
Exempts from liability for ordinary negligence those who voluntarily render emergency treatment
This includes members of the public, not just medical professionals.
7
Q
Can bystanders recover damages for emotional distress in Georgia?
A
No, unless there is direct physical impact on them or conduct directed toward them
Georgia does not permit recovery of mental distress damages even in the zone of danger.
8
Q
How does Georgia apply the doctrine of res ipsa loquitur?
A
It applies only to ordinary negligence cases, not in medical malpractice cases
Medical services are presumed to be performed skillfully.
9
Q
What is the maximum amount of punitive damages recoverable in Georgia?
A
$250,000 in most cases, except in specific circumstances
This includes exceptions for products liability and specific intent cases.
10
Q
What is the rule regarding contributory negligence by children in Georgia?
A
No minimum age; whether a child can be found contributorily negligent depends on their mental and physical capabilities
Most cases hold that a child under six cannot be found contributorily negligent.
11
Q
What type of comparative negligence system does Georgia follow?
A
Partial comparative negligence; a plaintiff cannot recover if they are 50% or more responsible
This differs from pure comparative negligence systems.
12
Q
What are the requirements for the last clear chance doctrine in Georgia?
A
Defendant must have actual knowledge of the plaintiff’s peril in helpless situations
It is not enough that the defendant should have known.
13
Q
How does Georgia treat implied assumption of risk?
A
It is a separate defense that can completely exculpate the defendant
It does not apply to rescuers unless their actions are reckless.
14
Q
What is Georgia’s rule regarding strict liability for domestic animals?
A
Owners are not strictly liable unless they knew of the animal’s dangerous propensities
The plaintiff must show prior knowledge of the animal’s vicious tendencies.
15
Q
What is the status of strict products liability for distributors in Georgia?
A
Distributors are not strictly liable in tort under Georgia law
Strict liability is imposed only on manufacturers.
16
Q
What protections do agricultural facilities have against nuisance actions in Georgia?
A
Not subject to nuisance actions if in operation for two years unless negligence is shown
This provides a defense for longstanding agricultural operations.
17
Q
How does Georgia refer to vicarious liability?
A
Imputable negligence
This requires a relationship of principal and agent for liability to be imposed.
18
Q
What is the family car doctrine in Georgia?
A
The owner is liable for negligent driving by a family member using a family car
Georgia has not enacted a permissive use statute.
19
Q
What is the liability of parents for their children’s tortious conduct in Georgia?
A
Parents are liable up to $10,000 for willful or malicious acts of their minor child
This includes reasonable medical expenses and property damage.
20
Q
What is the standard for Georgia’s Dramshop statute?
A
Actual knowledge of serving alcohol to a minor is not always required for liability
Reasonable care must be exercised to determine if the recipient is a minor.
21
Q
What is the rule regarding joint and several liability in Georgia?
A
Georgia has eliminated joint liability for claims involving multiple tortfeasors
Fault must be apportioned among all contributing parties.
22
Q
What can parents recover for loss of a child’s services in Georgia?
A
Parents can recover against someone providing intoxicating beverages to their minor child
This includes engaging the child in gambling without parental consent.
23
Q
What is the measure of recovery for wrongful death actions in Georgia?
A
The full value of life of the decedent, including support and companionship
This is broader than the usual measure based on pecuniary injury.
24
Q
What is the Georgia rule regarding the survival of libel actions?
A
Pending libel actions survive the death of the plaintiff
This is unlike most states where such actions expire upon death.
25
What is the status of intra-family immunity in Georgia?
Most states have abolished spousal immunity; Georgia's status is not specified
## Footnote
The text indicates a general trend but does not clarify Georgia's specific laws.
26
What is the purpose of wrongful death actions?
For the pecuniary injury resulting to the spouse and next of kin.
27
What is the measure of recovery for wrongful death in Georgia?
The full value of life of the decedent, including loss of support and loss of companionship.
28
In wrongful death cases, what additional expenses may be recovered?
Funeral, medical, and other expenses.
29
What has most states done regarding spousal immunity?
Most states have abolished spousal immunity.
30
What is Georgia's stance on intra-family tort immunity?
Georgia still follows traditional views but may not apply the doctrine if certain policy reasons are absent.
31
How does Georgia view interspousal immunity in wrongful death actions?
It violates the constitutional right of equal protection.
32
What waiver does Georgia's state tort claims act provide?
It waives sovereign immunity for torts of state officers and employees acting within official duties.
33
What activities retain sovereign immunity in Georgia?
* Conduct by a state officer exercising due care
* Performance of discretionary functions
* Legislative, judicial, quasi-judicial actions
* Failure to provide police or fire protection
* Various intentional and quasi-intentional torts
34
What is the limit for recovery for a single person for a loss in Georgia?
Limited to $1 million.
35
What is the state's aggregate liability per occurrence in Georgia?
$3 million.
36
Are punitive damages allowed in Georgia's tort claims?
No, punitive damages are not allowed.
37
What is the status of municipal tort immunity in Georgia?
Georgia retains municipal immunity to some extent.
38
Under what conditions can Georgia municipalities waive immunity?
* Purchasing liability insurance for motor vehicles
* Insurance coverage above statutory limits
* Ministerial duties
39
What must be proven for a city to be liable for police nonfeasance?
A special relationship exists between the person and the city.
40
What are the three elements determining a 'special relationship'?
* Explicit assurance from the city
* Knowledge of potential harm from inaction
* Justifiable and detrimental reliance by the injured person
41
What immunity do public officials have in Georgia for discretionary acts?
They are immune from tort liability unless acting with malice or improper purpose.
42
Are municipal employees liable for negligent performance of their ministerial functions?
Yes, they may be liable.
43
In Georgia, what must a plaintiff prove for libel damages?
Actual injury for defamatory statements made in broadcasts.
44
What is the rule for presumed damages in Georgia for libel?
Presumed only for statements that are libel per se or published in newspapers/magazines.
45
What limits recovery for defamation in Georgia?
Actual damages if the defendant proves no malice and retraction conditions are met.
46
What must a plaintiff do to recover punitive damages for defamation in Georgia?
Request a retraction or be precluded from obtaining punitive damages.
47
What is the general rule for justifiable reliance in misrepresentation cases?
Reliance is justifiable only on representations of fact.
48
Under what condition can a plaintiff rely on a defendant's opinion in Georgia?
If the defendant has superior knowledge of the subject matter.
49
What are the elements to establish a prima facie case for interference with business relations?
* Existence of a valid relationship
* Defendant's knowledge
* Intentional interference
* Damages
50
What must a plaintiff prove for tortious interference in Georgia?
* Defendant acted improperly
* Purposeful and malicious intent
* Financial injury caused by the defendant's actions
51
What is primarily covered in Title 51 of the Official Code of Georgia Annotated?
Georgia Tort law
## Footnote
This includes distinctions between general law and Georgia law.
52
What are the four established intentional torts involving personal injury?
* Battery
* Assault
* Intentional infliction of emotional distress
* False imprisonment
53
What are the three elements required for a prima facie case for any intentional tort?
* Tortious conduct
* Requisite mental state
* Causation
54
In the context of battery and assault, what must the defendant's tortious conduct be?
An act that is voluntary
## Footnote
The defendant must have directed the physical muscular movement.
55
How is the requisite mental state for an intentional tort established?
If the defendant acts intentionally
## Footnote
This includes acting with purpose or knowing that the consequence is substantially certain to result.
56
What is a key distinction regarding children and intentional torts in Georgia?
Infancy is a defense if the defendant is less than 13 years old
## Footnote
Reference: Ga. Code Ann. §§ 51-11-6, 16-3-1.
57
What must a defendant intend to cause for a battery to occur?
Contact with the plaintiff's person
## Footnote
The contact must also cause bodily harm or be offensive.
58
What types of damages may a plaintiff recover for battery?
* Physical injury
* Emotional distress
* Nominal damages
59
What is the standard for punitive damages in Georgia tort actions?
Proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, or conscious indifference
## Footnote
Reference: Ga. Code Ann. § 51-12-5.1.
60
What is required for a defendant to be liable for the intentional infliction of emotional distress?
Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress
## Footnote
Reference: Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 46.
61
What is a Georgia distinction regarding intentional infliction of emotional distress?
The conduct must be directed at the plaintiff; no bystander recovery is allowed
## Footnote
The plaintiff must have a physical or pecuniary injury unless the conduct was willful, wanton, or malicious.
62
What is required for a defendant to be liable for false imprisonment?
* Intent to confine the plaintiff
* Conduct causing the confinement
* Plaintiff's consciousness of confinement
63
In Georgia, how is false imprisonment defined?
Unlawful detention of another person for any length of time, depriving them of personal liberty
## Footnote
Reference: Ga. Code Ann. § 51-7-20.
64
What is the significance of the length of confinement in false imprisonment cases?
It is immaterial except for determining the extent of damages
## Footnote
Reference: Restatement (Third) of Torts: Intentional Torts to Persons § 8 cmt. c.
65
What privilege does a defendant have to use force for self-defense?
Use of force against the plaintiff if reasonably believed necessary and proportionate
## Footnote
Reference: Restatement (Third) of Torts: Intentional Torts to Persons § 21.
66
Under what conditions may a defendant use deadly force in Georgia?
* Necessary to prevent death or serious injury
* Necessary to prevent or terminate a trespass
* To prevent a forcible felony
67
What is the 'merchant's privilege'?
Privilege to use force to investigate theft, recapture property, or facilitate an arrest
## Footnote
Reference: Restatement (Third) of Torts: Intentional Torts to Persons § 37.
68
What are the conditions for a merchant's reasonable belief in exercising privilege?
* Wrongfully taken merchandise
* Failed to pay for property or services
69
What constitutes a trespass to chattels?
Intentional interference with a plaintiff’s right of possession
## Footnote
This includes dispossessing or using/intermeddling with the chattel.
70
What additional remedy does Georgia provide for trespass to chattels?
Statutory civil remedy for damages from willful damage or theft of personal property
## Footnote
Damages can include compensatory and exemplary damages under certain conditions.
71
What is required for a plaintiff to recover damages for intermeddling with chattel?
Actual damages must be shown
## Footnote
Restatement (Second) of Torts §§ 217–219.
72
What distinguishes intermeddling from dispossession?
Intermeddling does not involve the intent to exercise dominion and control over the chattel
## Footnote
Restatement (Second) of Torts § 221.
73
What can a plaintiff be compensated for when determining damages?
Diminution in value or cost of repair
74
True or False: Nominal damages can be recovered even when no actual damages are shown.
True
## Footnote
Ambort v. Tarica, 258 S.E.2d 755 (Ga. App. 1979).
75
What is the rule for conversion regarding a defendant's liability?
A defendant is liable if they intentionally deprive a plaintiff of possession or interfere with their chattel in a serious manner
76
What types of property can be converted?
Only personal property and intangibles reduced to physical form
## Footnote
Example: A promissory note.
77
How does Georgia define conversion?
A defendant converts property by wrongfully asserting control inconsistent with the plaintiff's rights
## Footnote
Bromley v. Bromley, 127 S.E.2d 836 (Ga. App. 1962).
78
What constitutes a public nuisance?
An unreasonable interference with a right common to the general public
79
What is required for a private citizen to claim public nuisance?
The plaintiff must suffer harm that is different in kind from that suffered by the general public
80
Define 'duty of care' in negligence law.
A duty is owed to all persons who may foreseeably be injured by a defendant’s failure to act reasonably
81
Who is considered a foreseeable plaintiff?
A rescuer who comes to the aid of another
82
What is the 'firefighter's rule'?
Emergency professionals cannot recover damages for injuries resulting from risks inherent in their job
83
What is the general rule regarding affirmative duty to act?
There is generally no duty to act affirmatively
84
Fill in the blank: A person who voluntarily aids another has a duty to act with _______.
reasonable ordinary care
85
What is Georgia's Good Samaritan statute?
It protects any person who renders emergency care in good faith
## Footnote
Ga. Code Ann. § 51-1-29.
86
What duty does a person have if they place another in peril?
A duty to exercise reasonable care to prevent further harm
87
What is the standard of care typically imposed in negligence cases?
That of a reasonably prudent person under the circumstances
88
How is the standard of care defined in Georgia?
A 'reasonable person' is defined as a person exercising ordinary diligence
## Footnote
Ga. Code Ann. § 51-1-2.
89
What is the traditional standard of care for common carriers?
Common carriers are held to the highest duty of care consistent with the practical operation of the business
90
What distinguishes invitees from licensees?
Invitees are invited for purposes benefiting both parties, while licensees have permission but do not have the same legal invitation
91
What is the duty of care owed to invitees?
A duty of reasonable care, including inspection and protection from unreasonably dangerous conditions
92
What is the duty owed to trespassers under Georgia law?
A duty to refrain from causing willful or wanton injury
## Footnote
Ga. Code Ann. § 51-3-3.
93
What is the definition of a licensee?
Someone who enters land with express or implied permission of the land possessor
94
What duty does a land possessor owe to licensees?
To correct or warn of concealed dangers known to the possessor
95
What duty does a land possessor have towards a licensee?
To correct or warn of concealed dangers that are known or should be obvious
## Footnote
Licensees are individuals permitted to enter the land for their own interests, not customers or servants.
96
Is a land possessor required to inspect for dangers?
No, they do not have a duty to inspect for dangers
97
What is a licensee in the context of land possession?
Someone permitted to go on the land for their own interests or convenience
98
What is the extent of the duty owed to licensees?
Only to avoid willful or wanton injury
99
What liabilities do landlords have?
Liable for injuries in common areas, hidden dangers, public use premises, negligent repairs, and hazards agreed to repair
100
What is the landlord's duty to notify in the case of flooding in Georgia?
To notify prospective tenants in writing if the property has been damaged by flooding three or more times in the last five years
101
What constitutes a breach of duty?
Departing from the required standard of care, such as failing to act as a reasonable person
102
What is the standard of care for professionals?
Exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community
103
What is required to establish negligence by a professional?
Expert testimony to establish the applicable standard of care and deviation from that standard
104
What is the Georgia point of law regarding professional negligence?
A plaintiff must submit an expert affidavit with the complaint alleging malpractice
105
What standard do physicians in Georgia adhere to?
A national standard of care rather than a local standard
106
What is informed consent in the medical context?
Physicians must explain the risks of a medical procedure to a patient before obtaining consent
107
What are some exceptions to the informed consent requirement?
* Commonly known risks
* Patient is unconscious
* Patient waives information
* Patient is incompetent
* Disclosure would harm the patient
108
What statute establishes negligence per se in Georgia?
The violation of statutory traffic laws, known as the Uniform Rules of the Road
109
What is negligent infliction of emotional distress?
Breach of duty to avoid negligently inflicting emotional distress upon a plaintiff
110
What is the 'zone of danger' rule?
A plaintiff can recover for emotional distress if they were within the zone of danger and feared for their safety
111
Does Georgia subscribe to the 'zone of danger' rule?
No, a plaintiff must suffer an impact or the defendant's conduct must be malicious, willful, or wanton
112
Who can bring wrongful-death actions in Georgia?
A decedent's spouse, next of kin, or personal representative
113
What damages are recoverable in wrongful-death actions?
* Loss of support (income)
* Loss of companionship, society, and affection
114
What are survival actions?
Claims the personal representative can pursue that the decedent would have had at the time of death
115
What distinguishes wrongful-birth claims from wrongful-life claims?
Wrongful-birth claims allow parents to recover for failures to diagnose defects, while most states do not permit wrongful-life claims
116
What is vicarious liability?
A form of strict liability where one person is liable for the tortious actions of another
117
What must a plaintiff in Georgia provide when alleging malpractice?
An expert affidavit outlining at least one negligent act or omission
118
What is wrongful pregnancy considered in legal terms?
A form of medical malpractice entitling the plaintiff to recover damages incurred during pregnancy and delivery
## Footnote
Referenced case: Atlanta Obstetrics & Gynecology Group v. Abelson, 398 S.E.2d 557 (Ga. 1990)
119
What is vicarious liability?
A form of strict liability where one person is liable for the tortious actions of another due to the right, ability, or duty to control their activities
## Footnote
Defense exists if the defendant did not have control over the person's activities
120
Under Georgia law, when can one person's negligence be imputed to another?
When the two are in a principal-agent relationship
## Footnote
Does not create liability in a child for the fault of a parent or custodian
121
What is the family-purpose doctrine?
A legal doctrine that holds the owner of an automobile liable for tortious acts of any family member driving the car with permission
## Footnote
Georgia recognizes this doctrine as per Phillips v. Dixon, 223 S.E.2d 678 (Ga. 1976)
122
What are owner liability statutes?
Statutes that hold the owner of an automobile liable for the tortious acts of anyone driving the car with permission
## Footnote
In Georgia, liability is automatic only under the family-purpose doctrine
123
What is dram-shop liability?
A cause of action against the seller of intoxicating beverages for injuries caused by a buyer's intoxication
## Footnote
Most states limit liability to situations involving minors or intoxicated buyers
124
What constitutes social host liability?
Liability of a social host for injuries caused by a guest who was served intoxicating beverages
## Footnote
Liability may extend to the intoxicated guest's torts occurring off premises
125
What are the conditions under which a server of alcohol can be liable in Georgia?
If the server willfully sold alcohol to an underage person or to someone who was noticeably intoxicated, knowing they would drive soon
## Footnote
Ga. Code Ann. § 51-1-40 outlines the conditions
126
What is the traditional view of immunity from tort liability for government entities?
Government entities, charities, and family members were traditionally immune from liability
## Footnote
Many immunities have been largely eliminated, but rules still differ for these defendants
127
What is the Georgia State Tort Claims Act's stance on sovereign immunity?
Georgia has waived sovereign immunity in certain instances, but limits recovery amounts and imposes procedural barriers
## Footnote
Specific exemptions include cases brought in federal court and certain actions by state actors
128
What is interspousal immunity?
A legal doctrine preventing one spouse from suing the other for personal injury
## Footnote
In Georgia, interspousal immunity is still recognized as per Ga. Code Ann. § 19-3-8
129
What is parental immunity?
A traditional doctrine that protected parents from being sued by their children for tort claims
## Footnote
Georgia still recognizes this immunity, extending it to foster parents
130
What is charitable immunity?
A legal doctrine that provides immunity from liability for individuals serving charitable organizations without compensation
## Footnote
In Georgia, immunity applies if actions were taken in good faith and within the scope of official duties
131
What is the principle of shared liability among multiple defendants under Georgia law?
Joint tortfeasors may have damages awarded against them, with the jury specifying damages for each defendant
## Footnote
Ga. Code Ann. § 51-12-31 outlines this principle
132
What does the Apportionment Statute in Georgia entail?
It allows the trier of fact to consider the plaintiff's fault and apportion damages among liable parties based on their percentage of fault
## Footnote
Ga. Code Ann. § 51-12-33 outlines the rules for apportionment
133
What is the last clear chance doctrine?
A doctrine allowing a plaintiff to mitigate their own contributory negligence if the defendant had the last clear chance to avoid the injury
## Footnote
Georgia continues to recognize this doctrine
134
What distinguishes a helpless plaintiff from an inattentive plaintiff?
A helpless plaintiff cannot escape peril, while an inattentive plaintiff could escape by paying attention
## Footnote
Liability for a helpless plaintiff requires the defendant knew of their peril
135
What is an inattentive plaintiff?
A person in peril who could escape by paying attention and taking action to avoid the peril.
## Footnote
An inattentive person's peril is due to their own contributory negligence.
136
What is the last clear chance doctrine?
A legal doctrine recognized in some jurisdictions, including Georgia, that allows a plaintiff to recover damages even if they were negligent, if the defendant had the last clear opportunity to avoid the accident.
## Footnote
Ga. Code Ann. § 51-11-7.
137
Define modified (partial) comparative fault.
A system where the plaintiff's recovery is reduced by their percentage of fault, barred if more at fault than the defendant, and may recover 50% of damages if equally at fault.
## Footnote
In some jurisdictions, equal fault results in no recovery.
138
What does Georgia law state about partial comparative fault?
A plaintiff may not recover if they are 50% or more at fault for their injury.
## Footnote
Ga. Code Ann. § 51-12-33.
139
What are exculpatory clauses in contracts?
Clauses that disclaim liability for negligence, but may not be enforced under certain conditions, such as gross negligence or public necessity.
## Footnote
Courts may not enforce these clauses if they violate public policy.
140
What is the Georgia distinction regarding exculpatory clauses?
Georgia does not require the term 'negligence' in exculpatory clauses and does not prevent claims for willful or wanton misconduct.
## Footnote
Neighborhood Assistance Corp. of Am. v. Dixon, 593 S.E.2d 717 (Ga. App. 2004).
141
What is the rule regarding assumption of risk in Georgia?
Voluntarily proceeding in the face of a known, specific risk will bar recovery if unreasonable, unless the defendant acted willfully or wantonly.
## Footnote
Newman v. Collins, 367 S.E.2d 866 (Ga. App. 1988).
142
What constitutes strict liability for animals?
An owner is strictly liable if they know or have reason to know the animal has dangerous propensities and harm results from those propensities.
## Footnote
Common law generally holds domestic animal owners liable only for negligence.
143
What are 'dog-bite' statutes?
State laws that hold owners of certain animals strictly liable for damages from personal injuries caused by those animals.
## Footnote
Georgia requires proof of a vicious propensity for domestic animals.
144
What is the landlord's liability regarding tenant's animals in Georgia?
Landlords are generally not liable for harms caused by tenants' animals unless it can be attributed to defective construction or failure to maintain the premises.
## Footnote
Ga. Code Ann. § 44-7-14.
145
Does contributory negligence serve as a defense to strict liability?
No, in contributory-negligence jurisdictions, it does not bar recovery under strict liability.
## Footnote
In Georgia, assumption of risk is a valid defense.
146
What is strict products liability?
Liability of manufacturers, retailers, or distributors for harm caused by a defective product.
## Footnote
Includes claims based on breach of warranty and negligence.
147
What must a plaintiff prove in a strict products liability claim?
* The product was defective
* The defect existed at the time it left the defendant's control
* The defect caused the plaintiff's injuries
## Footnote
Defects can be due to manufacturing, design, or inadequate warnings.
148
What constitutes a manufacturing defect?
A deviation from the manufacturer's intended product that causes harm.
## Footnote
Determined by whether the product conforms to the defendant’s specifications.
149
What are the tests for determining a design defect?
* Consumer-expectation test
* Risk-utility test
## Footnote
Some jurisdictions allow proving a design defect under either test.
150
What is the Georgia distinction regarding the risk-utility test?
Georgia applies the risk-utility test to determine design defects.
## Footnote
Banks v. Ici Ams., 450 S.E.2d 671 (Ga. 1994).
151
What is the effect of assumption of risk in strict liability cases?
It serves as a complete bar to recovery if the plaintiff knowingly exposes themselves to danger.
## Footnote
Known as 'knowing contributory negligence'.
152
What is the definition of assumption of the risk?
A subjective standard where the plaintiff must be aware of the danger and knowingly expose himself to it
153
In which jurisdictions is voluntary assumption of the risk a complete bar to recovery?
Contributory-negligence jurisdictions and a small number of comparative-fault jurisdictions
154
How does assumption of the risk affect recovery in most comparative-fault jurisdictions?
It reduces recovery in proportion to the plaintiff's degree of fault
155
What term does Georgia use as a synonym for assumption of the risk?
Consent
156
Under Georgia law, what three conditions must be met for consent to be valid?
* The plaintiff freely consents
* The consent is not obtained by fraud
* The plaintiff was of sound mind
157
What is the state-of-the-art standard in design-defect cases?
The level of relevant scientific, technological, and safety knowledge existing at the time of the product’s distribution
158
In Georgia, does compliance with the state-of-the-art standard bar recovery in design-defect cases?
No, but it bars punitive damages
159
What must a reasonable person believe for a communication to be considered defamatory?
That the communication refers to the particular plaintiff and holds them up to scorn or ridicule
160
Can a deceased individual be defamed?
No
161
Under what conditions can a member of a group maintain a defamation action?
If the group is small enough that the matter can reasonably be understood to refer to that member
162
What must a public official or public figure prove in a defamation action?
That the defendant acted with actual malice
163
What constitutes actual malice in defamation cases?
* Knowledge that the statement was false
* Acting with reckless disregard for the truth
164
What is the standard for private persons in defamation actions involving matters of public concern?
The plaintiff must prove that the defendant acted with fault—either negligence or actual malice
165
What is the common law requirement for private persons in defamation actions not involving matters of public concern?
The defendant was strictly liable
166
What must a plaintiff prove for written defamation in Georgia?
That it was false and malicious
167
What is the definition of libel?
Defamation by words written, printed, or otherwise recorded in permanent form
168
In Georgia, how is defamation by television and radio broadcasts classified?
As a separate category called defamacasts
169
What is required for a claim of libel per quod?
The plaintiff must prove either special damages or that the statement fits into one of the categories of slander per se
170
What is the definition of slander?
Defamation by spoken word, gesture, or any form other than libel
171
What must a plaintiff prove for slander per se?
The statement fits into one of four specific categories
172
What are the four categories that qualify as slander per se?
* Committing a crime
* Conduct reflecting on fitness to conduct business
* Having a loathsome disease
* Sexual misconduct
173
What is a qualified privilege in defamation cases?
A defense that may be lost if abused
174
What constitutes abuse of a qualified privilege?
Making statements outside the scope of the privilege or acting with malice
175
What is misappropriation of the right to publicity?
Unauthorized appropriation of a person's name, likeness, or identity for the defendant's advantage
176
What four elements must a plaintiff prove for misappropriation of the right to publicity?
* Unauthorized appropriation
* For the defendant's advantage
* No consent from the plaintiff
* Resulted in injury to the plaintiff
177
What is the legal standard for intrusion upon seclusion?
Intentional intrusion into the plaintiff's private affairs that is highly offensive to a reasonable person
178
What must a plaintiff prove for the tort of false light?
* Public facts that place the plaintiff in a false light
* Such false light is highly offensive to a reasonable person
179
What is required for justifiable reliance in intentional misrepresentation?
The reliance must not be justifiable if the facts are obviously false or if the defendant is stating a lay opinion
180
In Georgia, what is required for a plaintiff to recover for fraud?
The plaintiff must exercise ordinary care in independently verifying the contract's terms and factual representations
181
What type of damages must a plaintiff prove to recover in intentional misrepresentation?
Actual damages; nominal damages are not awarded
182
What are the five essential elements of an action for fraud and deceit in Georgia?
* That the defendant made the representations
* That at the time the defendant knew the representations were false
* That the defendant made the representations with the intention and purpose of deceiving the plaintiff
* That the plaintiff reasonably relied upon such representations
* That the plaintiff sustained the alleged loss and damage as the proximate result of the representations having been made
## Footnote
Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (1941)
183
What type of damages can a plaintiff recover if negligent misrepresentation is proven in Georgia?
* Reliance (out-of-pocket) damages
* Other consequential pecuniary damages
## Footnote
BDO Seidman v. Mindis Acquisition Corp., 578 S.E.2d 400 (Ga. 2003)
184
What must a plaintiff prove to establish a prima facie case for intentional interference with a contract?
* A valid contract existed between the plaintiff and a third party
* The defendant knew of the contractual relationship
* The defendant intentionally interfered with the contract, causing a breach
* The breach caused damages to the plaintiff
## Footnote
Elements of intentional interference with a contract
185
In Georgia, what additional elements must a plaintiff show for tortious interference with business relations?
* The defendant acted improperly, without any privilege
* The defendant acted purposely and maliciously, intending to hurt the plaintiff
* The defendant persuaded a third party not to begin or continue a business relationship with the plaintiff
* The plaintiff suffered financial injury
## Footnote
Life Care Ambulance, Inc. v. Hosp. Auth., 415 S.E.2d 502 (Ga. App. 1992)
186
True or False: In Georgia, a defendant can be liable for intentionally interfering with a prospective business relationship without an existing contract.
True
## Footnote
The elements remain similar, but some jurisdictions require proof of wrongful conduct.
187
What are the requirements for establishing malicious prosecution?
* Intentionally and maliciously institutes or pursues a legal action
* For an improper purpose
* Brought without probable cause
* That action is dismissed in favor of the person against whom it was brought
## Footnote
Malicious prosecution includes civil cases as well as criminal actions.
188
What is the primary distinction of Georgia law regarding malicious prosecution?
The prosecutor does not have to know for certain that a defendant is guilty but may be liable if slight diligence would have revealed the defendant's innocence.
## Footnote
Auld v. Colonial Stores, Inc., 45 S.E.2d 827 (Ga. App. 1947)
189
What must a plaintiff prove for abuse of process?
* A legal procedure set in motion in proper form
* That is 'perverted' to accomplish an ulterior motive
* A willful act perpetrated in the use of process that is not proper in the regular conduct of the proceeding
* Causing the plaintiff to sustain damages
## Footnote
Abuse of process does not require ill will or spite.
190
What are general damages?
Damages presumed to flow from the tortious act, requiring no proof of amount.
## Footnote
Ga. Code Ann. § 51-12-2.
191
What is required for a plaintiff to recover damages for mental pain and suffering in Georgia?
* There was a physical impact to the plaintiff
* The impact caused a physical injury
* The injury caused the plaintiff’s mental suffering
## Footnote
This follows the 'impact rule' in negligence claims.
192
What are special damages?
Damages that actually flow from the tortious act and must be specially pleaded and proved.
## Footnote
Ga. Code Ann. §§ 51-12-2; -11-9.
193
What is the limit on punitive damages in Georgia for product liability cases?
There is no limit on punitive damages, but 75% must be paid to the Office of the State Treasurer.
## Footnote
Ga. Code Ann. § 51-12-5.1(e).
194
Fill in the blank: In Georgia, punitive damages cannot be recovered from the _______.
[government]
## Footnote
Individual governmental defendants may be liable in civil-rights cases.
195
What is the avoidable consequences doctrine?
A plaintiff's recovery may be barred if they fail to mitigate damages unless the tort is for fraud, ongoing property violation, or an intentional tort.
## Footnote
Wachovia Bank of Ga. v. Namik, 620 S.E.2d 470 (Ga. App. 2005).
196
What is the principle of mitigation in tort law?
Mitigation will prevent the plaintiff from recovering anything other than what he would have suffered had he properly mitigated his damages.
## Footnote
Referenced case: Wachovia Bank of Ga. v. Namik, 620 S.E.2d 470 (Ga. App. 2005).
197
Does failure to wear a seatbelt affect a plaintiff's recovery in a motor vehicle case in Georgia?
Failure to wear a seatbelt is not a failure to mitigate, and evidence of this cannot be introduced to reduce recovery.
## Footnote
Ga. Code Ann. § 40-8-76.1(d).
198
What doctrine does Georgia follow regarding avoidable consequences?
Georgia follows the avoidable consequences doctrine and bars recovery if the plaintiff could have avoided the consequences of the defendant’s negligence.
## Footnote
Ga. Code Ann. § 51-11-7.
199
What types of damages cannot be recovered in Georgia?
Imaginary or theoretical damages cannot be recovered, nor will they be recovered when other contingencies were of great importance in causing the injury.
## Footnote
Ga. Code Ann. § 51-12-8.
200
What is the significance of remoteness in damage recovery?
Damages will not be too remote to be recovered if they are the legal and natural result of the tortious act.
## Footnote
Ga. Code Ann. § 51-12-9.
201
Under what condition can remote damages become recoverable?
Remote damages may be recoverable if the defendant acted with knowledge to purposely deprive the plaintiff of contemplated benefits.
## Footnote
Ga. Code Ann. § 51-12-10.
202
When can a court interfere with a jury's verdict?
A court may interfere if the jury awards inadequate or excessive damages inconsistent with the evidence.
## Footnote
Ga. Code Ann. § 51-12-12.
203
What is the collateral-source rule in Georgia?
A defendant may not introduce evidence regarding outside sources of payment to the plaintiff to reduce the defendant’s liability.
## Footnote
Amalgamated Transit Union Local 1324 v. Roberts, 434 S.E.2d 450 (Ga. 1993).
204
What happens when a claimant delivers written notice demanding unliquidated damages?
The person against whom the claim is made has 30 days to pay before interest accrues.
## Footnote
Ga. Code Ann. § 51-12-14.
205
How is interest calculated on unliquidated damages in Georgia?
Interest is calculated at an annual rate equal to the prime rate plus 3%, from the 30th day following the notice until the date of judgment.
## Footnote
Ga. Code Ann. § 51-12-14.
206
When does prejudgment interest on liquidated damages become available?
From the time a party is liable and bound to pay them, or from the time of demand.
## Footnote
Ga. Code Ann. § 7-4-15.
207
What is the rate of interest on tort judgments in Georgia?
Interest may be recovered at a rate of 3% above the prime rate.
## Footnote
Ga. Code Ann. § 7-4-12.
208
Under what conditions can a plaintiff recover litigation expenses?
If the defendant acted in bad faith, caused unnecessary trouble and expense, or was stubbornly litigious.
## Footnote
Ga. Code Ann. § 13-6-11.
209
What defines 'bad faith' in the context of litigation expenses?
'Bad faith' must occur as part of the tort at issue, not during the lawsuit itself.
## Footnote
Brannon Enterprises v. Deaton, 285 S.E.2d 58 (Ga. App. 1981).
210
When can reasonable attorney’s fees be awarded in Georgia?
When a party asserts a claim or defense that totally lacked a triable issue of law or fact.
## Footnote
Ga. Code Ann. § 9-15-14.
211
What is considered abusive litigation in Georgia?
Abusive litigation occurs when civil proceedings are initiated with malice and without substantial justification.
## Footnote
Ga. Code Ann. § 51-7-81.
212
What must a plaintiff do before filing a claim for abusive litigation?
Give written notice to the other party, allowing them a chance to voluntarily discontinue the abusive litigation.
## Footnote
Ga. Code Ann. § 51-7-84.
213
What damages can a plaintiff recover in a wrongful death claim?
The full value of the decedent’s life, as shown by evidence.
## Footnote
Ga. Code Ann. § 51-4-2.
214
What factors are considered in valuing the loss of a decedent's life?
* Decedent’s health
* Habits
* Earnings
* Services
* Life expectancy
## Footnote
Pollard v. Boatwright, 196 S.E. 215 (Ga. App. 1938).
215
Is pain and suffering recoverable in a wrongful death action?
Pain and suffering is considered a separate cause of action and is not recoverable in a wrongful-death action.
## Footnote
Complete Auto Transit v. Floyd, 104 S.E.2d 208 (Ga. 1958).
216
Who can recover loss-of-consortium damages?
A plaintiff whose spouse is injured may recover loss-of-consortium damages.
## Footnote
Hosford v. Hosford, 198 S.E. 289 (Ga. App. 1938).
217
What must a plaintiff prove to recover for libel per se?
A plaintiff does not need to plead special damages.
## Footnote
Brandon v. Arkansas Fuel-Oil Co., 12 S.E.2d 414 (Ga. App. 1940).
218
What is required for a plaintiff to recover for slander?
Special damages must be pleaded only when the defendant’s disparaging words naturally produced special damage.
## Footnote
Ga. Code Ann. § 51-5-4.
219
What is the impact rule in negligent infliction of emotional distress cases in Georgia?
A plaintiff can recover without an impact only when the defendant’s actions are malicious, willful, or wanton.
## Footnote
Hang v. Wages & Sons Funeral Home, 585 S.E.2d 118 (Ga. App. 2003).
220
What can a plaintiff seek in a conversion action?
A plaintiff may seek replevin, damages, or replevin plus the reasonable rental value or interest accrued while the chattel was gone.
## Footnote
Ga. Code Ann. § 44-12-151.
221
How is damage calculated in a conversion action?
Based on the highest market value of the chattel between the conversion and the trial.
## Footnote
Ga. Code Ann. § 44-12-152.
222
What distinguishes a permanent nuisance from an abatable nuisance?
If a nuisance is abatable, it is not permanent, and every instance is a new action; if not, it is permanent, and damages for both past and future harm may be recovered in a single action.
## Footnote
Oglethorpe Power Corp v. Forrister, 711 S.E.2d. 641 (Ga. 2011).
223
What liability exists for maliciously procuring a breach of contract?
A person who maliciously procures a breach of contract may be liable for damages, as well as the breaching party.
## Footnote
Ga. Code Ann. § 51-12-30.
