Damages And Remedies

Front 1

Damages #1

A. What is the typical measure of tort damages?

B. What is the purposes of tort damages under GA Law?

Back 1

A. The amount necessary to make the plaintiff whole.

B. To compensate an injured plaintiff.

Front 2

Damages #2

A. Are consequential damages recoverable in tort cases?

B. Are they recoverable in contract cases?

Back 2

A. Yes.

B. No.

Front 3

Damages #3

A. What are the the types of compensatory damages?

B. What are the different relationships between damages and a wrongful act?

Back 3

A.
(1) general damages
(2) special damages
(3) nominal damages

B.
(1) direct damages
(2) consequential damages

Front 4

Damages #4

What is the presumption regarding general damages?

Back 4

General damages are presumed to flow from the commission of a tortious act. They are considered to be noneconomic or nonpecuniary in nature.

Front 5

Damages #5

What is the measure of general damages?

Back 5

"The enlightened conscience of an impartial jury."

Front 6

Damages #6

How can a plaintiff prove damages for pain and suffering?

Back 6

(1) Through his own testimony.

(2) Through expert testimony.

Front 7

Damages #7

Can a plaintiff recover when the injury is entirely to the plaintiff's feelings?

Back 7

Yes, if the defendant's misconduct was intentional, willful or wanton. Otherwise, negligent conduct must involve some physical impact upon the plaintiff that results in an injury.

Negligent conduct that results in PURELY MENTAL injury is not recoverable.

Front 8

Damages #8

How can a plaintiff prove special damages?

Back 8

By producing some record of the damages, such as a receipt, canceled check, pay stub, or some similar piece of paper proving that special damages were incurred (Note: "piece of paper" damages).

Front 9

Damages #9

What is the price requirement for the recovery of special damages for services rendered to the plaintiff as a result of defendant's misconduct?

Back 9

The price charged for the services must be the reasonable and customary charge for such services.

Front 10

Damages #10

What is the measure of damages for recovery for property damages?

Back 10

The plaintiff can recover the difference in market value of the property before the property damage and after the property damages.

Front 11

Damages #11

What can a property owner recover when they have suffered property damage?

Back 11

The lesser of the repair cost or the property's value before the damages occurred. Damages cannot be greater than the property's pre-injury value.

Front 12

Damages #12

For purposes of damages, is sentimental value considered in determining damages?

Back 12

No, sentimental value is not a proper value for damages. This includes value for pets (for pets, the chattel value is what a willing buyer would pay for the same type animal).

Front 13

Damages #13

In Georgia, must a party inured in an automobile accident bring both their personal injury and property damages claims together?

Back 13

No. Georgia law provides separate causes of action for personal injuries and property damages arising out of a motor vehicle accident ("the walking man's friend" statute).

Front 14

Damages #14

How are future special damages calculated

Back 14

They must be reduced to the present cash value using the discount rate.

Front 15

Damages #15

What is the evidentiary standard for proving conduct warranting punitive damages?

Back 15

Clear and convincing evidence.

Front 16

Damages #16

A. Purpose of punitive damages?

B. Pleading requirements to obtain punitive damages?

C. Trial procedure for punitive damages?

Back 16

A. Punishment and/or deterrence.

B. Plaintiff must ask for punitive damages.

C. One jury, two verdicts: one on liability and regular damages, another trial on punitive damages.

Front 17

Damages #17

A. What are the caps for punitive damages for traditional tort claims?

B. Exceptions? If so, what?

Back 17

A. $250,000 in any trial.

B. Products liability and intentional tort cases. In these cases, there are no limits for punitive damages.

Note: In a case where the defendant injures the defendant due to DUI, the defendant is presumed to be acting with the intent to injure someone, so no cap for punitive damages.

Front 18

Damages #18

A. In assessing punitive damages, is the defendant's financial status admissible as evidence?

B. If so, why?

Back 18

A. Yes.

B. To determine the amount necessary to adequately punish or deter the defendant.

Front 19

Damages #19

Can punitive damages be awarded against the sovereign?

Back 19

No.

Front 20

Damages #20

When the entire injury is mental, can punitive damages be awarded separately?

Back 20

No. One recovery is available for the plaintiff.

Front 21

Damages #21

A. Is there a cap on noneconomic damages for medical malpractice cases?

B. If so, what is the cap?

Back 21

A. Yes.

B. For medical malpractice cases arising on or after February 16, 2005, noneconomic damages against health care providers is capped at $350,000. If a medical facility is a defendant, an additional $350 can be recovered against the facility, and a total of $1,050,000 can be recovered if multiple medical facilities are involved.

Front 22

Damages #22

A. Is the duty to mitigate damages recognized in tort law?

B. Recognized in contract law?

Back 22

A. Yes.

B. Yes.

Front 23

Damages #23

A. Does the duty to mitigate damages apply to intentional torts?

B. Does the duty to mitigate damages apply to the failure to wear a seatbelt?

Back 23

A. No.

B. No.

Front 24

Damages #24

When are lost future profits recoverable as damages?

Back 24

The lost future profits are recoverable when they are (1) reasonably certain; and (2) proximately caused.

Front 25

Damages #25

Are damages considered too remote if the defendant's conduct is intentional?

Back 25

No. Intentional wrong removes the element of remoteness.

Front 26

Damages #26

A. What is the collateral source rule?

B. What are some examples of "collateral sources?"

Back 26

A. A rule of evidence that excludes evidence of payments made by those outside of the defendant in determining a plaintiff's damages award.

B. Plaintiff's own insurance, sick pay, etc.

Front 27

Damages #27

What is the new GA rule for joint and severable liability?

Back 27

For causes of action arising on or after February 16, 2005, the jury may specify the particular damages to be recovered from each defendant. Judgment in such cases must be entered severably.

Note: Vicarious liability still applies in Georgia.

Front 28

Damages #28

What are the two types of wrongful death claims recognized in Georgia?

Back 28

(1) survival claim (for the decedent's pre-death plain and suffering).

(2) full value of the decedent's life (measured from the time of the decedent's death).

Front 29

Damages #29

What is the priority order for wrongful death claimants?

Back 29

(1) Spouse; (2) Children; (3) Parents; (4) Personal Representative

Note: Remember "Someone Can Pay the PRice" (SCPPR)

Front 30

Damages #30

Types of claims recognized and not recognized for wrongful death action?

Back 30

(1) Future earnings (reduced to present value)
(2) Loss of consortium (ends at death)
(3) "solatium" damages - not recognized unless parent is injured by the same force that killed their child (common force rule)

(4) "Hedonic" (smell the roses) damages

Front 31

Damages #31

A. Who gets pre-death damages and damages flowing directly from the death (such as funeral expenses)?

B. Post-death damages (including the full value of the life of the decedent)?

C. Punitive damages?

Back 31

A. Decedent's estate

B. Statutorily defined survivors (beneficiaries).

C. Decedent's estate.

Front 32

Damages #32

Does Georgia recognize wrongful birth/wrongful life damages (where doctor performed procedure so that plaintiff was not supposed to get pregnant but did, did not advise parent of potential birth defects)?

Back 32

No.

Front 33

Damages #33

A. Can one recover loss of consortium due to the death of a spouse?

B. What are the damages?

C. What is the measure the damages?

D. Measure of damages?

D. Loss of child/parent consortium recognized?

Back 33

A. No.

B. Loss of services, society, companionship and affection.

C. Enlightened conscience of the jury (general damages)

D. Loss of child consortium: limited to loss of service; loss of parental consortium not recognized under GA law.

Front 34

Damages #34

What is required for a plaintiff to recover for intentional infliction of emotional distress?

Back 34

Defendant commits a terrifying or insulting act that is direct at the plaintiff and causes injury.

Front 35

Damages #35

What is required for a plaintiff to recover for negligent infliction of emotion al distress?

Back 35

Defendant commits a terrifying or insulting act that is directed at the plaintiff, and there is a physical impact with the plaintiff that results in an injury to the plaintiff or aggravates a prior mental condition the plaintiff had.

Front 36

Damages #36

Does Georgia follow the "Zone of Danger" rule (where plaintiff should have been injured by defendant's act but wasn't but for the grace of God)?

Back 36

No.

Front 37

Damages #37

What are the remedies available for a plaintiff who has had their property converted?

Back 37

(1) give back the property intact

(2) payment for the market price if it has been damaged or destroyed

(3) receive rent for the time the defendant retains possession of the property, and get it back eventually.

Front 38

Damages #38

A. What is the measure of damages in fraud cases?

B. Why?

C. Other damages available for fraud?

Back 38

A. The benefit of the bargain.

B. Deterrence.

C. Punitive damages, attorneys' fees, consequential damages.

Front 39

Damages #39

A. When can a defendant be liable for interference with contractual relations?

B. What are some of the elements?

Back 39

A. The defendant is a third party, a stranger to the contract.

B. Malice (not negligence) - defendant was aware of the contract and acted to interfere with it.

Front 40

Damages #40

What is the measure of damages for interference with contractual relations?

Back 40

The loss of the bargain; pain and suffering.

Front 41

Damages #41

What are the limitations on recovery for interference with contractual relations?

Back 41

Single satisfaction rule: A plaintiff is entitled to only one satisfaction of a wrong. If a plaintiff gets satisfaction for a breach from the other contracting party, he cannot recover from the third party for their interference.

Front 42

Damages #42

A. What is the standard of care for a claim for breach of fiduciary duty?

B. Measure of actual damages?

C. Other damages that are recoverable?

Back 42

A. Case of an ordinary fiduciary (higher than simple ordinary care).

B. Loss of value of the trust property.

C. Examples: personal injury (against a doctor), pain and suffering, punitive damages.

Front 43

Damages (Contracts) #43

What is the overriding purpose of contract damages?

Back 43

To give the plaintiff the benefit of the bargain (expectation damages v. restitution).

Front 44

Damages (Contracts) #44

What is the limit on contract damages?

Back 44

Contract damages are limited to those arising naturally from the breach of contract, and that were within contemplation of the parties at the time the contract was made.

Front 45

Damages (Contracts) #45

Are consequential contract damages recoverable?

Back 45

No. Consequential damages are not recoverable unless a public duty has been breached.

Front 46

Damages (Contracts) #46

A. What is quantum meruit?

B. Measure of damages for a quantum merium claim?

Back 46

A. When goods or materials have been furnished by one to another or services have been rendered, the law implies a promise to pay the reasonable value thereof.

B. The value of the goods or services to the recipient.

Front 47

Damages (Contracts) #47

A. Does a plaintiff have a duty to mitigate contract damages?

B. If so, what is the standard that the plaintiff must adhere to?

Back 47

A. Yes.

B. To lessen the damages by way of ordinary care.

Front 48

Damages (Contracts) #48

A. In a lease situation, in GA, must the landlord try and re-rent the premises if the tenant leaves?

B. What if after the tenant has left, another party offers to rent the premises? Can the landlord refuse and still recover from the original tenant?

C. What if someone wants the landlord to rent the premises to an unruly tenant?

Back 48

A. No.

B. No.

C. Landlord may refuse. In mitigating damages, they only must do whatever is reasonable.

Front 49

Damages (Contracts) #49

Can remote or consequential damages be awarded on a contract claim?

Back 49

No, unless they are traceable solely to the breach and unless they are capable of exact computation.

Front 50

Damages (Contracts) #50

Can punitive damages be recovered in a breach of contract case?

Back 50

No.

Front 51

Damages and Remedies #51

What are the requirements for an equity remedy to be granted?

Back 51

(1) Legal remedy must be inadequate.

(2) The equitable remedy must be feasible.

Front 52

Damages and Remedies #52

What are examples of an inadequate legal remedy?

Back 52

(1) The subject matter of the controversy is unique.

(2) monetary damages would be speculative or uncertain.

(3) If multiple or successive lawsuits would be required to give plaintiff relief.

(4) Under some circumstances, the defendant is insolvent.

(5) Where the harm is inseparable.

Front 53

Damages and Remedies #53

What must be present in the forum state for an equitable remedy to be feasible?

Back 53

(1) the defendant must be personally present in the forum state (personal jurisdiction); or

(2) the property subject to the litigation (in rem jurisdiction)

Front 54

Damages and Remedies #54

What courts (federal and state) have jurisdiction to award non-monetary remedies?

Back 54

Federal courts: district court

Georgia courts: superior court

Front 55

Damages and Remedies #55

Is there a right to a jury trial in equity cases?

Back 55

Generally, no. A just may determine equity issues if

(1) there are common facts involving a claim for damages

(2) there is a single claim involving equitable and legal issues.

(3) if a statute allows this

Front 56

Damages and Remedies #56

How does an equity court in Georgia view land?

Back 56

All land as a mater of law is deemed unique.

Front 57

Damages and Remedies #57

In what type of situations are injunctions normally available?

Back 57

(1) trespass (to land or chattel)

(2) conversion

(3) invasion of privacy (intrusion upon seclusion)

(4) invasion of privacy (misappropriation of name or likeness)

Front 58

Damages and Remedies #58

Injunctions are sometimes available for:

Back 58

(1) to eliminate a nuisance, provided it is a private nuisance, but not if it is a public nuisance.

(2) to prevent waste, provided this waste is destructive (that it causes permanent harm), or permissive (failing to keep up the property).

(3) inducement of breach of contract, unless the defendant's conduct is privileged.

Front 59

Damages and Remedies #59

Injunctions are normally not available for:

Back 59

(1) defamation (libel and slander).

(2) false light (invasion of privacy).

(3) public disclosure of embarrassing facts (invasion of privacy).

(4) equity will not enjoin pending criminal proceedings, and will enjoin threatened criminal proceedings only under extraordinary circumstances.

Front 60

Damages and Remedies #60

What are the two types of interlocutory injunctive relief?

Back 60

(1) temporary restraining order (TRO) (granted in extraordinary circumstances) - effective for only 30 days.

(2) interlocutory injunction - - normally granted after notice and a hearing; - an injunction bond is normally required.

Front 61

Damages and Remedies #61

What are the requirements to obtain an interlocutory injunction or temporary restraining order?

Back 61

(1) irreparable injury, and

(2) a likelihood of success on the merits.

Front 62

Damages and Remedies #62

What is specific performance?

Back 62

Specific performance is an equitable remedy by which a party to a contract is ordered to perform according to its terms.

Front 63

Damages and Remedies #63

What are the requirements that must be shown for specific performance to be awarded?

Back 63

(1) existence of a contract

(2) party seeking relief has fulfilled all conditions precedent

(3) mutuality of remedies

Front 64

Damages and Remedies #64

Specific Performance: What must be established to show that a contract is valid?

Back 64

(1) certainty of terms:
(a) identity of the parties
(b) evidence of some consideration
(c) evidence as to the time and manner of payment
(d) evidence as to the subject matter

(2) existence of consideration (inadequacy is irrelevant unless it is so extreme that the contract is unconscionable).

Front 65

Damages and Remedies #65

A. What is a time is of the essence provision of a contract?

B. How does this provision affect specific performance of a contract?

Back 65

A. A condition that insists upon full performance by a specified time.

B. Failure to comply with this condition can prevent specific performance unless the equity chooses to ignore strict enforcement of this clause.

Front 66

Damages and Remedies #66

How does sufficiency of title affect specific performance?

Back 66

If a seller cannot convey marketable title equity will not normally grant specific performance unless:

(1) the deficiency is minor, in which case specific performance may be granted with a reasonable reduction in price, or

(2) the deficiency is severable, and specific performance may be granted with reasonable reduction in the price.

Front 67

Damages and Remedies #67

What is necessary for remedies to be considered mutual?

Back 67

(1) both parties are capable of performance; and

(2) plaintiff's counterperformance can be secured.

Front 68

Damages and Remedies #68

In GA, for a real estate sales contract, absent an agreement to the contract, who has the risk of loss if a building is damaged of destroyed before closing?

B. Is the seller entitled to specific performance without a reduction in price?

Back 68

A. The buyer (majority view).

B. Yes, but the buyer may ave the right in equity to any insurance proceeds collected by the seller (under constructive trust theory).

Front 69

Damages and Remedies #69

How can specific performance in land contracts be achieved?

Back 69

(1) ordering seller to convey and buyer to pay, or

(2) transferring title by court order upon payment.