Damages

Question 1

What are the five types of damages?

Answer 1

1) Compensatory
2) General
3) Special
4) Nominative
5) Punitive

Question 2

What are compensatory damages?

Answer 2

Damages given as compensation for injuries (i.e. the amount of money needed to make P whole again or restore him to the status quo ante.)

Question 3

What are the two subtypes of compensatory damages?

Answer 3

General and Special

Question 4

What is required to obtain general damages?

Answer 4

Presumed to flow from the commission of a tort and may be recovered without proof a specific dollar amount (Ex: Pain and Suffering; Loss of Future Earning Capacity; )

Question 5

What is required to obtain special damages?

Answer 5

Flow from the commission of a tort. They may be aware when there is a loss of money or some other material advantage that can be given a monetary value. Special damages must be specifically pleaded and proved.

Ex: Physicians’ bills, expenses of nursing, loss of income, and loss of profits

Question 6

What is required to obtain nominal damages?

Answer 6

Nominal damages (i.e. a small amount to cover court costs) are aware where an injury is light or there are strong mitigating circumstances

Question 7

What is required to obtain Punitive Damages?

Answer 7

Punitive damages are awarded to punish or deter the D. They are appropriate only when it is proved by clear and convincing evidence that the D’s actions demonstrate willful misconduct, malice, fraud, wantonness, oppression, or entire want of care as to raise a presumption of conscious indifference to the consequence.

Note: these may be awarded in addition to general, special, or nominal damages. P’s complaint must specifically ask for punitive damages to be awarded

Question 8

What are the limitations on recovery of punitive damages?

Answer 8

There is no limit on the amount that can be awarded as punitive damages in a products liability case, but 75% of the award must be paid to the state. In a case NOT arising from products liability, there is no limitation on punitive damages if the D acted (or failed to act) with specific intent to cause harm, or while under the influence of alcohol or drugs. In case not involving intentional torts or products liability, the maximum amount that may be awarded as punitive damages is $250,000

Note: where the entire injury is to the P’s peace, happiness, or feelings (e.g. invasion of privacy case), punitive damages are not separately available.

Question 9

What is an injured person’s duty to mitigate damages?

Answer 9

Except in cases of willful and continuous torts (e.g., fraud), an injured person has a duty to mitigate damages by the use of ordinary care and diligence. Failure to mitigate damages by the use of ordinary care and diligence. Failure to mitigate damages caused by aggravation of the injury. Failure to use a seatbelt does not constitute failure to mitigate damages

Question 10

When is remoteness a bar to recovery?

Answer 10

Damages must be both actually and proximately caused by the D’s tortious act, or they will be too remote for recovery.

Ex: damages for the loss of profits are allowed only when they can be established with reasonable certainty (such as with an ongoing business) and are proximately caused by the defenant

Question 11

When can the court interfere with a jury verdict as to damages?

Answer 11

If the damages awarded by the jury are so inadequate or so excessive that are inconsistent with the preponderance of the evidence, the trial court may order a new trial as to damages only.

Question 12

Do benefits from call tear sources reduce damages awards?

Answer 12

No, GA adheres to the traditional “collateral source rule” which prohibits a D from introducing evidence relating to benefits received by the P from sources other than the D (e.g. health insurance or sick pay) in order to reduce the P’s damage award

Question 13

When are attorneys’ fees and costs awarded?

Answer 13

If a party has acted improperly, the expenses of litigation may be allowed, by statute as part of the other party’s damages

Question 14

Litigation expenses may be recovered in both tort and contract actions if:

Answer 14

the P specifically pleads them and the D has (1) acted in bad faith with respect to the transactions or occurrence upon which the complaint is based; (2) been stubbornly litigious (meaning there is no bona fide controversy); or (3) caused the P unnecessary trouble and expense by forcing him to sue when no bona fide controversy exists

Note: a D may not recover litigation expenses unless he is in effect a P in a viable independent counterclaim

Question 15

When can attorney’s fees and costs be awarded for frivolous claims and defenses?

Answer 15

When any party against whom another party has asserted a claim or defense that had such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept it. Fees and expenses will not be assessed as to any claim or defense asserted in a good faith attempt to establish a new legal theory if the new theory is based on recognized precedent or persuasive authoiryy

Question 16

What is the procedure for asking for attorneys’ fees?

Answer 16

Must be requested by motion within 45 days after final disposition of the action

Question 17

Does GA still have joint and several liability

Answer 17

No, this was abolished by statute. A defendant is only liable up until their percentage of fault.

Question 18

Does the release of one tort feasor release others?

Answer 18

No, the release of one tort feasor does not release others, absent an agreement between the parties

Question 19

When is there a right to contribution?

Answer 19

When a single D settles a claim where a single D is held liable by the trier of fact WITHOUT an apportionment of damages made

Question 20

When may a party recover indemnity?

Answer 20

A party may recover indemnity (i.e. the entire amount paid to the P) in imputed or vicarious liability situations. One person may agree to be held responsible for the negligence of another, but statutes may limit or prohibit enforcement of such agreements.

Question 21

What type of negligence is used in GA?

Answer 21

Partial comparative negligence. A P may recover unless he is 50% or more responsible for his injury or damages. The P’s recovery is reduced in proportion to his degree of fault

Question 22

What is the last clear chance exception?

Answer 22

If both the P and D are negligent, the D can be found solely liable for all damages if he had the last clear chance to avoid injury and did not exercise ordinary care. The P’s negligence will not reduce any award of damages

Question 23

What is a complete bar(s) to recovery?

Answer 23

GA recognizes the assumption of risk and P’s “last clear chance” as complete bars to recovery in negligence actions. Under the latter doctrine, the P cannot recover anything if he could have avoided the consequences of the D’s prior negligence by exercising ordinary care. Assumption of risk is a defense to willful and wanton conduct but not an intentional tort.

Question 24

Who may recover for wrongful death?

Answer 24

The surviving spouse, (or, if none, a child) may recover for wrongful death of a spouse (or parent). If there is no spouse or children, the decedent’s personal representative may bring the action and hold any amount recovered for the benefit of the decedent’s next of kin. If the decedent’s death is caused by the surviving spouse, the court may substitute another party as plaintiff