Flashcards in Torts Distinctions Distinctions Deck (122)
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).