Liability

Statutes of Limitation

Bodily Injury

1. Two (2) Year Statute of Limitation. Ga. Code §9-3-33.
2. Two (2) year statute of limitation applies to parents’ attempt to recover a minor’s medical expenses. See Mitchell v. Hamilton, 228 Ga. App. 850, 851 493 S.E. 2d 41 (1997).

Property Damage

Four (4) Year Statute of Limitation. Ga. Code §9-3-32.

UM Claims

1. In a tort case in which an uninsured motorist carrier is an interested party, the insurer must be served within the time allowed by law for valid service upon the defendant in the action. Vaughn v. Collum, 236 Ga. 582, 224 S.E.2d 416 (1976).
2. Because the uninsured motorist carrier “stands in the shoes” of the injured claimant, Georgia courts apply a two (2) year statute of limitation for a tort action. Ga. Code §9-3-33; Bailey v. Lawrence, 235 Ga. App. 73, 508 S.E. 2d 450 (1998).

Breach of Written Contracts

Six (6) Year Statute of Limitation. Ga. Code §9-3-24.

Breach of Contract for the Sale of Goods / Oral Contracts

Four (4) Year Statute of Limitation. Ga. Code §11-2-725; Ga. Code §9-3-25.

Negligent Entrustment, Hiring, Retention, Supervision

Negligent Entrustment

1. In Georgia, under the doctrine of negligent entrustment, a party is liable if he [or she] entrusts someone with an instrumentality [including a vehicle], with actual knowledge that the person to whom he [or she] has entrusted the instrumentality is incompetent by reason of his or her age or inexperience, physical or mental condition, or his or her known habit of recklessness. Gunn V. Booker, 259 Ga. 343, 347(2), 381 S.E. 2d 286 (1989).
2. A vehicle owner shall not knowingly authorize a person to drive their vehicle if the driver is not licensed to drive the type and class of vehicle, but there is no duty to request to see driver’s license. Ga. Code §40-5-122; Schofield v. Hertz Corp., 201 Ga. App. 830, 412 S.E. 2d 853 (1991).

Negligent Hiring & Negligent Retention

1. To sustain a claim for negligent hiring or retention a claimant must show that the employer knew or should have known of the employee’s propensity to engage in the conduct which caused the plaintiff’s injury. Proof of such propensity must consist of evidence substantially related to the injury-causing conduct. Piney Grove Baptist Church v. Goss, 255 Ga. App. 380, 565 S.E. 2d 569 (2002).
2. Under Georgia law, if an employer admits liability under respondeat superior, then the plaintiff does not have grounds to bring a claim based on negligent hiring, training, retention or entrustment unless there is evidence to support an independent cause of action of punitive damages on those claims. Bartja v. National Union Fire Ins. Co. of Pittsburgh, Pa., 1995, 218 Ga. App. 815, 463 S.E. 2d 358 (1995).
3. To establish a punitive claim for negligent entrustment, the claimant must prove that the employer had actual knowledge that the drive was incompetent or habitually reckless, or the employer held a legal duty to check the driver’s qualifications and failed to discovery the relevant information. Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 829 (1993).

Course and Scope of Employment

1. Under Georgia law, “every person shall be liable for the torts committed by….his servant (i) by his command; or (ii) in the prosecution and within the scope of his business,” whether the tort is committed negligently or voluntarily. Ga. Code §51-2-2
2. For the employer to be liable under the doctrine of respondeat superior, the employee must be engaged in the employer’s business and not in some private or personal matter. May v. Phillips, 157 Ga. App. 630, 278, S.E. 2d 172 (1981).

Comparative or Contributory Negligence

Georgia is a Modified Comparative Negligence State

Georgia follows a modified comparative negligence standard, allowing people to recover damages as long as they are not 50% or more at fault. Ga. Code §51-11-7.

Sudden Emergency Defense

1. A driver of an automobile who suffers an unforeseeable illness which causes him to suddenly lose consciousness and control of the automobile is not negligent. Eatmon v. Weeks, 323 Ga. App. 578, 746 S.E.2d 886 (2013).
2. It is a question for the jury if a driver’s knowledge and acts constitute negligence where the driver has suffered similar loss of consciousness and has received medical treatment for it in the past. Co-op Can Co., Inc., v Arnold, 106 Ga. App. 160, 126 S.E. 2d 689 (1962).

Contribution or Implied Indemnity from Third-Parties

1. Georgia’s apportionment statute states there is no right of contribution or joint liability. Ga. Code §51-12-33.
2. A third-party claim for indemnity may be proper under the right facts – for example where there is a contractual indemnity or common law indemnity principle of vicarious liability / imputed negligence. Dist. Owners Ass’n, Inc., v. AMEC Envtl. & Infrastructure, Inc., 322 Ga. App. 713 (2013).

Exclusivity of Workers Compensation

The Georgia Workers’ Compensation Act provides that if an employee is injured while working, the benefits received through their workers’ compensation claim is the only compensation that will be given; thus, employees cannot sue their employer under Georgia law for additional compensation. Ga. Code §34-9-11.

Seat Belt and Helmet Use

1. Seat Belt: Generally, occupants and drivers of motor vehicles must be restrained by safety seat belts while the vehicle is being operated; however, an occupant’s failure to wear a safety seat belt cannot be considered evidence of negligence or causation, and cannot be considered by a finder of fact to diminish any recovery for damages arising out of ownership, maintenance, occupancy, or operation of a motor vehicle. Ga. Code §40-8-76.1.
2. Helmet: Those operating or riding upon a motorcycle must wear a helmet. If the motorcycle does not have a windshield, the operator or rider must wear protective eyewear. Ga. Code §40-6-315.

Spoliation

1. Spoliation refers to the “destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Phillips v. Harmon, 297, Ga. 386, 393 (2015).
2. If spoliation has occurred and the trial court finds (i) the evidence at issue was “necessary” to the litigation; and (ii) there was “contemplated or pending litigation” at the time of the spoliation, sanctions may apply. Padgett v. Kroger, 311 Ga. App. 690 (2011); Silman v. Associates Bellemeade, 286 Ga. 27 (2009).
3. Sanctions for spoliation include striking pleadings, striking discovery responses, exclusion of evidence / testimony, or a jury instruction that destruction of the evidence may give rise to the rebuttable presumption that the evidence would have been harmful to the spoliator. Phillips v. Harmon, 297, Ga. 386, 393 (2015).

Damages

Caps

Compensatory Damages: No cap in personal injury cases.

Joint & Several Liability

1. Georgia’s apportionment statute states there is no right of contribution or joint liability. Ga. Code §51-12-33.
2. Ga. Code §51-12-33 requires juries to apportion fault and damages among multiple tortfeasors and, in doing so, it practically eliminated joint and several verdicts.

Standard of Proof Required for Compensatory Damages

1. In Georgia, the preponderance of evidence standard is applied with regard to the liability for compensatory damages. Clark v. Cotton, 263. Ga. 861, 440 S.E. 2d 165 (1994).
2. Collateral Source Rule

1. Georgia’s Collateral Source Rule bars the defendant from presenting any evidence of payments by third-parties for the expenses of a tortuous injury and taking any credit toward the defendant’s liability and damages for such payments. Kelly v. Purcell, 301 Ga. App. 88. 91, 686 S.E. 2d 79, 882 (Ga. Ct. App. 2009).
2. In Georgia, a plaintiff is entitled to claim….the full amount of reasonable medical expenses billed, notwithstanding the portions of the expenses billed that have been written off as a result of contractual rate reductions or those required by statutes. Olariu v. Marrero, 248 Ga. App. 824, 549 S.E. 2d 121 (Ga. Ct. App. 2001); Candler Hosp., Inc. v. Dent, 228 Ga. App. 421, 491 S.E. 2d 868 (Ga. Ct. App. 1997).
3. Medical bills that have been discharged in bankruptcy are not recoverable. Olariu, 248 Ga. App. at 846, 491 S.E.2d at 123.

Hedonic Damages

Under Georgia’s wrongful death statute, Hedonic Damages, or the loss of enjoyment of life damages, are recoverable. Ga. Code § 51-4-1 (1).

Life Care Plans

Life care plans may be admissible in Georgia, as long as the expert’s opinion is compliant with Ga. Code §24-7-702.

Wrongful Death Standing and Damages

1. Standing

1. The surviving spouse has priority standing; if there is no surviving spouse then the surviving children have standing, if no surviving spouse or children, then the parents have standing, if no spouse, child, or parent, then the decedent’s estate has standing to bring a wrongful death claim. Ga. Code § 51-4-2.
2. Damages

1. The “full value of the life of the decedent,” as shown by the evidence, means the full value of the life of the decedent without deductions for any of the necessary or personal expenses of the decedent had he lived. Ga. Code § 51-4-1.
2. The “full value of the life of the decedent” includes an economic component, consisting of “those items having a proven monetary value such as lost potential lifetime earnings, income, or services reduced to present cash value.” Consol. Freightways Corp. of Del. V. Futrell, 201 Ga. App. 233, 233 410 S.E. 2d 751, 752 (1991).
3. It also includes the “non-economic” value of the decedent’s life, based upon the “enlightened conscience of the jury.” Williams v. Worsley, 235 Ga. App. 806, 808, 510 S.E. 2d 46, 49 (1998).

Punitive Damages

1. Punitive Damages are Recoverable in Georgia
1. Where a claimant can prove by “clear and convincing” evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to the consequences. Ga. Code §51-12-5.1(b); OR
2. Claimant can prove defendant acted, or failed to act, with specific intent to cause harm, or defendant acted or failed to act while under the influence of drugs and /or alcohol. Ga. Code §(f).
2. Punitive Damages Must be Specifically Prayed for in Plaintiff’s Complaint

1. Ga. Code §51-12-5.1(d)(1).
3. Statutory Cap on Punitive Damages

1. In Georgia, there is a $250,000.00 cap on punitive damages for any tort action except those arising from product liability or where it is found that defendant acted with specific intent to cause harm or defendant acted or failed to act while under the influence of alcohol or drugs. See generally Ga. Code §51-12-5.
2. Where no statutory cap is imposed, 75% of any amount awarded….shall be paid into the treasury of the state through the Office of the State Treasurer. Ga. Code §51-12-5.1(e)(2).
4. Punitive Damages Available Under Insurance Policy

1. Punitive damages are available from an insurance company unless the insurance company has specifically exempted such damages in its policy. Flynn v. Allstate Ins. Co., 268 Ga. App. 222, 222, 601 S.E.2d 739, 740 (2004).

Offers of Judgment

In Georgia, a defendant may recover attorneys’ fees and expenses after making a settlement offer if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75% of the offer. Ga. Code § 9-11-68.

Biomechanics

Biomechanical physicists are qualified to render opinions regarding how the incident occurred, what manner it occurred, the velocity that he [or she] believed the vehicles were traveling, and even how he [or she] believed the body would have reacted inside the cabin, but they are not qualified to render opinions on the cause of the condition found to exist in the plaintiff’s body. Cromer v. Mulkey Enter., Inc., 254 Ga. App. 388, 562 S.E. 2d 783 (2002).

Policy Limits Disclosure

Yes. Under Georgia law, insurers shall provide…within 60 days of receiving a written request from the claimant..a statement under oath..stating with regard to each known policy of the insurance issued by it, including excess or umbrella insurance, the name of the insurer, the name of each insured, and the limits of coverage. Ga. Code §33-3-28.

May claimant recover general damages if the claimant does not have own auto-insurance?

Yes. In Georgia, a claimant may recover damages even if they are uninsured, so long as they are not found to be more than 50% at fault for the accident.