Georgia State Tort Law Profile
 

Center for America

State Tort Law Profile

State List

 

Georgia

Last Updated 08/25/2009

Analysis prepared for the Center for America by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

Economic Damages

No

Georgia has abolished joint and several liability.

Ga. Code Ann. § 51-12-33(b).

 

Non-Economic Damages

No

See above.

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Yes

Ga. Code Ann. § 51-12-33(c)-(f).

Market Share Liability

No

Ga. Code Ann. § 51-1-11(d-e); Chapman v. American Cyanamid Co., 861 F.2d 1515 (11th Cir. 1988); Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480 (11th Cir. 1985) (interpreting Georgia law).

 

Defenses

Comparative Negligence

Yes, modified

A plaintiff who is 50% or more at fault is barred from recovery.

Ga. Code Ann. § 51-12-33(g).

 

Assumption of Risk

Yes

To establish assumption of risk, the defendant must show that the plaintiff:

(1) had knowledge of the danger;
(2) understood and appreciated the risks associated with such danger; and 
(3) voluntarily exposed himself to those risks.

Deere & Co. v. Brooks, 299 S.E.2d 704 (Ga. 1983).

 

Product Misuse

Yes

A manufacturer may not be held strictly liable for injuries resulting from a substantial change or abnormal use of a product.

Giordano v. Ford Motor Corp., 299 S.E.2d 897 (Ga. 1983).

 

Compliance With
Government Standards

No

Compliance with federal regulations is a factor to be considered when determining product defect and in negligence actions, but is not a complete defense.

Ogletree v. Navistar Int’l Transp. Corp., 522 S.E.2d 467 (Ga. 1999).

Courts have held that punitive damages are generally improper when a manufacturer has adhered to applicable industry standards and federal regulations.  

See, e.g., Barger v. Garden Way, Inc., 499 S.E.2d 737 (Ga. Ct. App. 1998).

Statute of Repose

Yes

Lawsuits may not be brought for injuries occurring more than 10 years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.

Ga. Code Ann. § 51-1-11(b)(2).

The statute of repose does not apply to failure to warn claims.

Ga. Code Ann. § 51-1-11(c); Chrysler Corp v. Batten, 450 S.E.2d 208 (Ga. 1994).

 

Government Contractor Defense

Uncertain

 

McLawsuits Permitted? 

Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

Ga. Code Ann. § 26-2-432.

Compensatory Damages

Is there a statutory limit on economic damages?

No

 

Is there a statutory limit on non-economic damages?

Limited, in medical liability actions only

In any medical malpractice action against a single medical facility, noneconomic damages are capped at $350,000.  In any medical malpractice action against more than one facility, noneconomic damages are capped from any single medical facility and $700,000 from all medical facilities.  The aggregate limit of noneconomic damages in medical malpractice actions $1.035 million.

Ga. Code Ann. § 51-13-1.

 

Is recovery for medical monitoring permitted without physical injury?

Not likely

Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290, 1302 (N.D. Ga. 2005) ("[N]o Georgia court has ever indicated an inclination to recognize such a remedy."), aff'd, 230 Fed. Appx. 878, 2007 WL 1149982, at *5 (11th Cir., Apr. 18, 2007) ("Georgia law does not currently allow recovery of medical monitoring costs.") (unpublished).

 

Is recovery of attorney's fees or court costs permitted in actions when a settlement offer has been made?

Yes

A party declining a settlement offer is potentially liable for attorneys’ fees and court costs.   A plaintiff who rejects a written offer of settlement would be liable for attorneys’ fess and litigation costs if the defendant is found not liable or the final judgment in favor of the plaintiff is 75% of the settlement offer.   A defendant who rejects a plaintiff’s written offer of settlement can be liable for attorneys’ fees and litigation costs if the plaintiff recovers a final judgment which is 125% greater than the offer of settlement.   Any offer made shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree, but an offeror shall not be entitled to attorney's fees and costs to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period).

Ga. Code Ann. § 9-11-68(b-c).

 

Punitive Damages

Is there a statutory limit?

Yes

Punitive damages are limited to $250,000 unless the defendant acted with a specific intent to harm.

Ga. Code Ann. § 51-12-5.1(g).

 

Is there any restriction on imposing multiple punitive damage awards for same conduct?

Yes*

*A law limiting punitive damages in product liability cases to a single award, Ga. Code Ann. § 51-12-5.1(e), was declared unconstitutional by a federal court in McBride v. Gen. Motors Corp., 737 F. Supp. 1563 (M.D. Ga. 1990).  The Georgia Supreme Court, however, declined to follow the federal ruling in Mack Trucks, Inc. v. Cockle, 436 S.E.2d 635 (Ga. 1993).

 

Does the state receive a portion of the punitive damage award?

Yes

The state treasury receives 75% of a plaintiff's punitive damages award in product liability cases.

Ga. Code Ann. § 51-12-5.1(e)(2).

 

What standard is used?

Clear and convincing evidence

Ga. Code Ann. § 51-12-5.1(b).

Procedures

Venue

 

 

Conducive to Abuse - 
Does the statute permit forum shopping?

No

Domestic and foreign corporations authorized to transact business in Georgia are deemed to reside and to subject to venue as follows:

(1) In civil proceedings generally -- in the county where the corporation maintains its registered office.
(2) In actions based on contracts -- in the county where the contract to be enforced was made or is to be performed, if the corporation has an office and transacts business in that county;
(3) In actions for damages because of torts, wrong, or injury done -- in the county where the cause of action originated, if the corporation has an office and transacts business in that county;
(4) In actions for damages because of torts, wrong, or injury done -- in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant has the right to remove the action to the county in Georgia where the defendant maintains its principal place of business.

Ga. Code Ann. § 14-2-510(b).

Georgia courts may decline jurisdiction of any civil causes of a nonresident by considering the following factors:

(1) the place of accrual of the cause of action; 
(2) the location of witnesses; 
(3) the residence or residences of the parties; 
(4) whether a litigant is attempting to circumvent the applicable statute of limitations of another state; and 
(5) the public factor of the convenience to and burden upon the court.  

Ga. Code Ann. § 50-2-21(b).

Georgia allows courts to dismiss cases with little or no connection to the venue.

Ga. Code Ann. 9-10-31.1.

In cases involving multiple defendants, if defendants who reside in the county where the action is pending are discharged from liability, the non-resident defendant may require that the case be transferred to a county or court in which venue would otherwise be proper.

 Ga. Code Ann. 9-10-31(d).

 

Class Actions

 

 

Is there a right to an immediate appeal of class certification?

Yes

Ga. Code Ann. 9-11-23(g).

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

No

In any civil case under any legal theory, including cases involving individual, aggregated, class action, or otherwise joined claims, an appeal bond may not exceed $25 million.

Ga. Code Ann. § 5-6-46(b).

 

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Yes

Georgia strengthened expert witness rules and adopted the Daubert standard in civil cases in 2005.

Ga. Code. Ann. § 24-9-67.1.

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Yes

Justifiable reliance and causation are required.

Lynas v. Williams, 454 S.E.2d 570, 574 (Ga. Ct. App. 1995); Crown Ford, Inc. v. Crawford, 473 S.E.2d 554 (Ga. Ct. App. 1996).

What is the level of scienter (intent) required of a defendant?

Not required

Regency Nissan, Inc. v. Taylor, 391 S.E.2d 467 (Ga. Ct. App. 1990); but see Colonial Lincoln-Mercury Sales, Inc. v. Molina, 262 S.E.2d 820 (Ga. Ct. App. 1979) (requiring culpable conduct).

 

Are class actions permitted?

No

Ga. Code Ann. § 10-1-399(a).

 

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

Actual damages only.

Ga. Code Ann. § 10-1-399.

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

Treble damages are available only in cases of intentional violations.

Ga. Code Ann. § 10-1-399(c).

Does every prevailing plaintiff receive attorneys' fees and costs?

Yes*

Reasonable attorney’s fees and costs are awarded to a prevailing plaintiff unless he or she rejects a reasonable settlement offer.

Ga. Code Ann. § 10-1-399(d).

 

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

 “Nothing in this part shall apply to: (1) Actions or transactions specifically authorized under laws administered by or rules and regulations promulgated by any regulatory agency of this state or the United States….”

Ga. Code Ann. § 10-1-396.

Also contains a provision stating that:

“It is the intent of the General Assembly that this part be interpreted and construed consistently with interpretations given by the Federal Trade Commission in the federal courts pursuant to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. Section 45(a)(1)), as from time to time amended."

Ga. Code Ann. § 10-1-391(b).

The Uniform Deceptive Trade Practices Act exempts         “[c]onduct in compliance with the orders or rules of or a statute administered by a federal, state, or local governmental agency.”

Ga. Code Ann. § 10-1-374.

 

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Generally, yes

Legislators during attendance in the State Assembly are automatically excused from jury service.  Full time students, primary care-givers of children age 6 or younger, primary teachers of home study, persons over age 70 and service members on ordered duty are excused upon request.

Ga. Code Ann. § 15-12-1.

 All other qualified citizens have an opportunity and obligation to serve as jurors.

 

Are the grounds for obtaining an excuse from service closely defined?

No

A court may dismiss “[a]ny person who shows that he or she will be engaged during his or her term of jury duty in work necessary to the public health, safety, or good order or who shows other good cause."

Ga. Code Ann. § 15-12-1(a)(1). 

 

May jurors automatically postpone and reschedule service?

No

Is a juror's employment and leave time adequately protected during service?

Yes

It is “unlawful for any employer or the agent of such employer to discharge, discipline, or otherwise penalize an employee” because he or she has been called for jury duty or is serving as a juror.

Ga. Code Ann. § 34-1-3(a).

 

Is there a limit on the frequency of jury service?

Yes

No person is allowed to serve as a juror for more than 4 weeks in any one year unless engaged in a trial lasting longer than four weeks.

Ga. Code Ann. § 15-12-3.

Any juror serving as a grand or trial juror is ineligible for service at the next succeeding term.  This does not include trial jurors serving as a grand juror at the next term of his county's superior court or any court where the grand jury list contains less than 100 names or the trial jury list contains less than 350 names.

Ga. Code Ann. § 15-12-4.

 

Is the length of service limited to no more than one day or one trial?

No

A person summoned to jury duty may serve as long as 4 weeks.

Ga. Code Ann. § 15-12-3. 

 

Juror per diem

Not less than $5 per day nor more than $50 per day

Ga. Code Ann. § 15-12-7. 

Is additional compensation available on lengthy trials?

In some courts

Some courts provide a slightly higher juror fee after the first day of service.

Is the potential penalty for nonappearance sufficient to encourage participation?

No

A person who fails to respond to a summons may be held in contempt of court.

Ga. Code Ann. § 15-12-10.

 

Problem Jurisdictions

 None reported

 

 

 

 

This Analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com.  Original material © 2009 Center for America.

 

 

Center for America

State Tort Law Profile

State List

 

Georgia

Last Updated 08/25/2009

Analysis prepared for the Center for America by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

Economic Damages

No

Georgia has abolished joint and several liability.

Ga. Code Ann. § 51-12-33(b).

 

Non-Economic Damages

No

See above.

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Yes

Ga. Code Ann. § 51-12-33(c)-(f).

Market Share Liability

No

Ga. Code Ann. § 51-1-11(d-e); Chapman v. American Cyanamid Co., 861 F.2d 1515 (11th Cir. 1988); Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480 (11th Cir. 1985) (interpreting Georgia law).

 

Defenses

Comparative Negligence

Yes, modified

A plaintiff who is 50% or more at fault is barred from recovery.

Ga. Code Ann. § 51-12-33(g).

 

Assumption of Risk

Yes

To establish assumption of risk, the defendant must show that the plaintiff:

(1) had knowledge of the danger;
(2) understood and appreciated the risks associated with such danger; and 
(3) voluntarily exposed himself to those risks.

Deere & Co. v. Brooks, 299 S.E.2d 704 (Ga. 1983).

 

Product Misuse

Yes

A manufacturer may not be held strictly liable for injuries resulting from a substantial change or abnormal use of a product.

Giordano v. Ford Motor Corp., 299 S.E.2d 897 (Ga. 1983).

 

Compliance With
Government Standards

No

Compliance with federal regulations is a factor to be considered when determining product defect and in negligence actions, but is not a complete defense.

Ogletree v. Navistar Int’l Transp. Corp., 522 S.E.2d 467 (Ga. 1999).

Courts have held that punitive damages are generally improper when a manufacturer has adhered to applicable industry standards and federal regulations.  

See, e.g., Barger v. Garden Way, Inc., 499 S.E.2d 737 (Ga. Ct. App. 1998).

Statute of Repose

Yes

Lawsuits may not be brought for injuries occurring more than 10 years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.

Ga. Code Ann. § 51-1-11(b)(2).

The statute of repose does not apply to failure to warn claims.

Ga. Code Ann. § 51-1-11(c); Chrysler Corp v. Batten, 450 S.E.2d 208 (Ga. 1994).

 

Government Contractor Defense

Uncertain

 

McLawsuits Permitted? 

Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

Ga. Code Ann. § 26-2-432.

Compensatory Damages

Is there a statutory limit on economic damages?

No

 

Is there a statutory limit on non-economic damages?

Limited, in medical liability actions only

In any medical malpractice action against a single medical facility, noneconomic damages are capped at $350,000.  In any medical malpractice action against more than one facility, noneconomic damages are capped from any single medical facility and $700,000 from all medical facilities.  The aggregate limit of noneconomic damages in medical malpractice actions $1.035 million.

Ga. Code Ann. § 51-13-1.

 

Is recovery for medical monitoring permitted without physical injury?

Not likely

Parker v. Brush Wellman, Inc., 377 F. Supp. 2d 1290, 1302 (N.D. Ga. 2005) ("[N]o Georgia court has ever indicated an inclination to recognize such a remedy."), aff'd, 230 Fed. Appx. 878, 2007 WL 1149982, at *5 (11th Cir., Apr. 18, 2007) ("Georgia law does not currently allow recovery of medical monitoring costs.") (unpublished).

 

Is recovery of attorney's fees or court costs permitted in actions when a settlement offer has been made?

Yes

A party declining a settlement offer is potentially liable for attorneys’ fees and court costs.   A plaintiff who rejects a written offer of settlement would be liable for attorneys’ fess and litigation costs if the defendant is found not liable or the final judgment in favor of the plaintiff is 75% of the settlement offer.   A defendant who rejects a plaintiff’s written offer of settlement can be liable for attorneys’ fees and litigation costs if the plaintiff recovers a final judgment which is 125% greater than the offer of settlement.   Any offer made shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree, but an offeror shall not be entitled to attorney's fees and costs to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period).

Ga. Code Ann. § 9-11-68(b-c).

 

Punitive Damages

Is there a statutory limit?

Yes

Punitive damages are limited to $250,000 unless the defendant acted with a specific intent to harm.

Ga. Code Ann. § 51-12-5.1(g).

 

Is there any restriction on imposing multiple punitive damage awards for same conduct?

Yes*

*A law limiting punitive damages in product liability cases to a single award, Ga. Code Ann. § 51-12-5.1(e), was declared unconstitutional by a federal court in McBride v. Gen. Motors Corp., 737 F. Supp. 1563 (M.D. Ga. 1990).  The Georgia Supreme Court, however, declined to follow the federal ruling in Mack Trucks, Inc. v. Cockle, 436 S.E.2d 635 (Ga. 1993).

 

Does the state receive a portion of the punitive damage award?

Yes

The state treasury receives 75% of a plaintiff's punitive damages award in product liability cases.

Ga. Code Ann. § 51-12-5.1(e)(2).

 

What standard is used?

Clear and convincing evidence

Ga. Code Ann. § 51-12-5.1(b).

Procedures

Venue

 

 

Conducive to Abuse - 
Does the statute permit forum shopping?

No

Domestic and foreign corporations authorized to transact business in Georgia are deemed to reside and to subject to venue as follows:

(1) In civil proceedings generally -- in the county where the corporation maintains its registered office.
(2) In actions based on contracts -- in the county where the contract to be enforced was made or is to be performed, if the corporation has an office and transacts business in that county;
(3) In actions for damages because of torts, wrong, or injury done -- in the county where the cause of action originated, if the corporation has an office and transacts business in that county;
(4) In actions for damages because of torts, wrong, or injury done -- in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant has the right to remove the action to the county in Georgia where the defendant maintains its principal place of business.

Ga. Code Ann. § 14-2-510(b).

Georgia courts may decline jurisdiction of any civil causes of a nonresident by considering the following factors:

(1) the place of accrual of the cause of action; 
(2) the location of witnesses; 
(3) the residence or residences of the parties; 
(4) whether a litigant is attempting to circumvent the applicable statute of limitations of another state; and 
(5) the public factor of the convenience to and burden upon the court.  

Ga. Code Ann. § 50-2-21(b).

Georgia allows courts to dismiss cases with little or no connection to the venue.

Ga. Code Ann. 9-10-31.1.

In cases involving multiple defendants, if defendants who reside in the county where the action is pending are discharged from liability, the non-resident defendant may require that the case be transferred to a county or court in which venue would otherwise be proper.

 Ga. Code Ann. 9-10-31(d).

 

Class Actions

 

 

Is there a right to an immediate appeal of class certification?

Yes

Ga. Code Ann. 9-11-23(g).

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

No

In any civil case under any legal theory, including cases involving individual, aggregated, class action, or otherwise joined claims, an appeal bond may not exceed $25 million.

Ga. Code Ann. § 5-6-46(b).

 

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Yes

Georgia strengthened expert witness rules and adopted the Daubert standard in civil cases in 2005.

Ga. Code. Ann. § 24-9-67.1.

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Yes

Justifiable reliance and causation are required.

Lynas v. Williams, 454 S.E.2d 570, 574 (Ga. Ct. App. 1995); Crown Ford, Inc. v. Crawford, 473 S.E.2d 554 (Ga. Ct. App. 1996).

What is the level of scienter (intent) required of a defendant?

Not required

Regency Nissan, Inc. v. Taylor, 391 S.E.2d 467 (Ga. Ct. App. 1990); but see Colonial Lincoln-Mercury Sales, Inc. v. Molina, 262 S.E.2d 820 (Ga. Ct. App. 1979) (requiring culpable conduct).

 

Are class actions permitted?

No

Ga. Code Ann. § 10-1-399(a).

 

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

Actual damages only.

Ga. Code Ann. § 10-1-399.

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

Treble damages are available only in cases of intentional violations.

Ga. Code Ann. § 10-1-399(c).

Does every prevailing plaintiff receive attorneys' fees and costs?

Yes*

Reasonable attorney’s fees and costs are awarded to a prevailing plaintiff unless he or she rejects a reasonable settlement offer.

Ga. Code Ann. § 10-1-399(d).

 

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

 “Nothing in this part shall apply to: (1) Actions or transactions specifically authorized under laws administered by or rules and regulations promulgated by any regulatory agency of this state or the United States….”

Ga. Code Ann. § 10-1-396.

Also contains a provision stating that:

“It is the intent of the General Assembly that this part be interpreted and construed consistently with interpretations given by the Federal Trade Commission in the federal courts pursuant to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. Section 45(a)(1)), as from time to time amended."

Ga. Code Ann. § 10-1-391(b).

The Uniform Deceptive Trade Practices Act exempts         “[c]onduct in compliance with the orders or rules of or a statute administered by a federal, state, or local governmental agency.”

Ga. Code Ann. § 10-1-374.

 

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Generally, yes

Legislators during attendance in the State Assembly are automatically excused from jury service.  Full time students, primary care-givers of children age 6 or younger, primary teachers of home study, persons over age 70 and service members on ordered duty are excused upon request.

Ga. Code Ann. § 15-12-1.

 All other qualified citizens have an opportunity and obligation to serve as jurors.

 

Are the grounds for obtaining an excuse from service closely defined?

No

A court may dismiss “[a]ny person who shows that he or she will be engaged during his or her term of jury duty in work necessary to the public health, safety, or good order or who shows other good cause."

Ga. Code Ann. § 15-12-1(a)(1). 

 

May jurors automatically postpone and reschedule service?

No

Is a juror's employment and leave time adequately protected during service?

Yes

It is “unlawful for any employer or the agent of such employer to discharge, discipline, or otherwise penalize an employee” because he or she has been called for jury duty or is serving as a juror.

Ga. Code Ann. § 34-1-3(a).

 

Is there a limit on the frequency of jury service?

Yes

No person is allowed to serve as a juror for more than 4 weeks in any one year unless engaged in a trial lasting longer than four weeks.

Ga. Code Ann. § 15-12-3.

Any juror serving as a grand or trial juror is ineligible for service at the next succeeding term.  This does not include trial jurors serving as a grand juror at the next term of his county's superior court or any court where the grand jury list contains less than 100 names or the trial jury list contains less than 350 names.

Ga. Code Ann. § 15-12-4.

 

Is the length of service limited to no more than one day or one trial?

No

A person summoned to jury duty may serve as long as 4 weeks.

Ga. Code Ann. § 15-12-3. 

 

Juror per diem

Not less than $5 per day nor more than $50 per day

Ga. Code Ann. § 15-12-7. 

Is additional compensation available on lengthy trials?

In some courts

Some courts provide a slightly higher juror fee after the first day of service.

Is the potential penalty for nonappearance sufficient to encourage participation?

No

A person who fails to respond to a summons may be held in contempt of court.

Ga. Code Ann. § 15-12-10.

 

Problem Jurisdictions

 None reported

 

 

 

 

This Analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com.  Original material © 2007 Center for America.