(Code 1981, §51-12-5.1, enacted by Ga. L. 1987, p. 915, § 5; Ga. L. 1993, p. 1402, § 18; Ga. L. 1997, p. 837, § 1; Ga. L. 2010, p. 863, § 2/SB 296.)
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1997, in subsection (f), "tort-feasor" was substituted for "tortfeasor" in two places and "judgment" was substituted for "judgement" near the middle and "April 14, 1997" was substituted for "the effective date of this subsection" at the end of subsection (h).
Law reviews.- For article, "Products Liability Law in Georgia Including Recent Developments," see 43 Mercer L. Rev. 27 (1991). For article, "The Case for Allowing Punitive Damages in Georgia Wrongful Death Actions: The Need to Remove an Unjust Anomaly in Georgia Law," see 45 Mercer L. Rev. 1 (1993). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 63 (1997). For annual survey article on tort law, see 50 Mercer L. Rev. 335 (1998). For annual survey article discussing tort law, see 51 Mercer L. Rev. 461 (1999). For article, "Premises Liability for Criminal Attacks: Same Crimes, New Law," see 5 Ga. St. B .J. 54 (1999). For article, "Insurance," see 53 Mercer L. Rev. 281 (2001). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For annual survey of law of torts, see 56 Mercer L. Rev. 433 (2004). For survey article on labor and employment law, see 60 Mercer L. Rev. 217 (2008). For survey article on tort law, see 60 Mercer L. Rev. 375 (2008). For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009). For article, "Practice Point: Right of Publicity: A Practitioner's Enigma," see 17 J. Intell. Prop. L. 351 (2010). For article, "The Experiential Future of the Law," see 60 Emory L. J. 585 (2011). For article, "An Insurer's Duty to Settle: The Law in Georgia," see 22 Ga. St. Bar J. 19 (Aug. 2016). For article, "Do's and Don'ts When Handling a Product Liability Matter in Georgia," see 25 Ga. St. B.J. 17 (Aug. 2019). For note, "Mack Trucks, Inc. v. Conkle: The Georgia Supreme Court Tells the Legislature to Keep On Truckin' When Appropriating Punitive Damage Awards to the State Treasury," see 45 Mercer L. Rev. 1439 (1994). For comment, "Are Excessive Punitive Damages Unconstitutional in Georgia?: This Question and More in Colonial Pipeline Co. v. Brown," see 6 Ga. St. U.L. Rev. 85 (1989). For comment, "Statutory Punitive Damage Caps and the Profit Motive: An Economic Perspective," see 40 Emory L.J. 303 (1991).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- The one-award provision dealing with product liability punitive damages as set forth in the second sentence of paragraph (e)(1) of O.C.G.A. § 15-12-5.1 is unconstitutional, null, and void in that it violates the equal protection and due process clauses of the Georgia and federal constitutions. McBride v. GMC, 737 F. Supp. 1563 (M.D. Ga. 1990).
Paragraph (e)(2) of O.C.G.A. § 15-12-5.1 violates Ga. Const. 1983, Art. III, Sec. V, Par. III because it contains matter different from that expressed in the title of the Tort Reform Act and contains subject matter different from other subject matter in the body of the act. McBride v. GMC, 737 F. Supp. 1563 (M.D. Ga. 1990).
Paragraph (e)(2) of O.C.G.A. § 15-12-5.1 violates the due process and equal protection clauses of the Georgia and federal constitutions, the excessive fines provisions of the Eighth Amendment to the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Par. XVII, and the double jeopardy provision of the Fifth Amendment to the United States Constitution. McBride v. GMC, 737 F. Supp. 1563 (M.D. Ga. 1990).
Paragraph (e)(2) of O.C.G.A. § 15-12-5.1, requiring that 75 percent of punitive damages awarded in a product liability action be paid into the state treasury, does not violate the equal protection clauses of the United States and Georgia Constitutions. State v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L. Ed. 2d 663 (1994); Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993).
Paragraph (e)(2) of O.C.G.A. § 15-12-5.1, requiring that 75 percent of punitive damages awarded in a product liability action be paid into the state treasury, does not constitute a "taking" under the Fifth and Fourteenth Amendments to the United States Constitution. State v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L. Ed. 2d 663 (1994); Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993).
Punitive damages award did not violate the Due Process Clause of the Fourteenth Amendment because the district court's findings of fact and conclusions regarding the defendant's degree of reprehensibility were supported by the evidence and were therefore not clearly erroneous because there was evidence from which a jury could have concluded that the defendant acted with a bad state of mind, and the facts and circumstances of the defendant's misconduct and the potential harm to the plaintiffs justified the 7:1 ratio. E. Prop. Dev. LLC v. Gill, F.3d (11th Cir. Mar. 6, 2014)(Unpublished).
Subject matter not different from title.
- Because the trial court erroneously concluded that the purpose of O.C.G.A. § 51-12-5.1 is revenue raising, it erred in holding that the statute violates Ga. Const. 1983, Art. III, Sec. V, Par. III, providing that no bill shall contain subject matter different from that expressed in the title. State v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L. Ed. 2d 663 (1994); Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993).
Paragraph (e)(2) of O.C.G.A. § 51-12-5.1, requiring that 75 percent of punitive damages awarded in a product liability action be paid into the state treasury, does not violate Ga. Const. 1983, Art. I, Sec. I, Par. XII. State v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L. Ed. 2d 663 (1994).
Amount in controversy for diversity jurisdiction.- In a class action, the plaintiffs' punitive damages demand could be aggregated for purposes of the amount in controversy requirement for diversity jurisdiction. Turpeau v. Fidelity Fin. Servs., Inc., 936 F. Supp. 975 (N.D. Ga. 1996), aff'd, 112 F.3d 1173 (11th Cir. 1997).
Severability of unconstitutional provisions.
- With the second sentence of paragraph (e)(1) and all of paragraph (e)(2) of O.C.G.A. § 51-12-5.1 declared unconstitutional, null, and void, the remaining portions of the Tort Reform Act can stand with the unconstitutional provisions stricken. McBride v. GMC, 737 F. Supp. 1563 (M.D. Ga. 1990).
Due process guideposts for punitive damages are based on the principle that a person receive fair notice not only of the conduct that will subject the person to punishment, but also of the severity of the penalty that a state may impose; O.C.G.A. § 51-12-5.1(f) informs the public that the $250,000 cap on punitive damages in Georgia does not apply to torts when the defendant acted or failed to act while under the influence of alcohol, drugs, or other judgment altering substances. Craig v. Holsey, 264 Ga. App. 344, 590 S.E.2d 742 (2003), cert. denied, 543 U.S. 820, 125 S. Ct. 59, 160 L. Ed. 2d 29 (2004).
Punitive damages recoverable from 1987 through 1997.
- Despite the language used by the legislature in its amendment of subsection (h) of O.C.G.A. § 51-12-5.1 on April 14, 1997, substituting "the effective date of this subsection" for "July 1, 1987" in subsection (h), punitive damages were still recoverable in Georgia during the period of July 1, 1987 through April 14, 1997. K-Mart Corp. v. Hackett, 237 Ga. App. 127, 514 S.E.2d 884 (1999).
Singular references in subsection (f).
- The fact that O.C.G.A. § 51-12-5.1(f), the punitive damages statute, refers to "the defendant" and "an active tort-feasor" in the singular does not mean that only one defendant may be liable for punitive damages under subsection (f). Under O.C.G.A. § 1-3-1(d)(6), the singular or plural number each includes the other, unless the other is expressly excluded. Reid v. Morris, Ga. , 845 S.E.2d 590 (2020).
Construction of subsection (g).
- Clause in subsection (g) of O.C.G.A. § 51-12-5.1, "the amount which may be awarded in the case shall be limited to a maximum of $250,000.00," means that $250,000 is the maximum amount of money that the finder of fact may award to any one plaintiff as punitive damages - regardless of the number of defendants and regardless of the number of theories of recovery "arising out of the same transaction, occurrence, or series of transactions or occurrences." Bagley v. Shortt, 261 Ga. 762, 410 S.E.2d 738 (1991).
The phrase in subsection (g) of O.C.G.A. § 51-12-5.1, "the amount which may be awarded in the case shall be limited to a maximum of $250,000.00," means that the most money that the finder of fact may award as punitive damages - in toto, to some or to all the parties in the case; and against whomever they may be awarded - is $250,000. Bagley v. Shortt, 261 Ga. 762, 410 S.E.2d 738 (1991).
When punitive damages awarded.
- Under O.C.G.A. § 51-12-5.1(b), punitive damages may be awarded only when it is established 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 consequences. That Code section further limits punitive damages to a maximum of $250,000 for any tort action, unless the trier of fact finds that the defendant acted, or failed to act, with the specific intent to cause harm. A finding of specific intent to cause harm pursuant to O.C.G.A. § 51-12-5.1(f) is inherent in the essential elements of such an intentional fraud. Golden Atlanta Site Dev., Inc. v. Tilson, 299 Ga. App. 646, 683 S.E.2d 166 (2009).
Punitive damages awarded in foreclosure case.- Jury's finding of specific intent was supported by evidence showing the lender knew its escrow analysis was in error yet proceeded to demand payment repeatedly without explanation and then foreclosed on the homeowner's property; the finding of specific intent was supported by evidence that the lender knew the lender's conduct was almost certain to cause the homeowner emotional harm, and the lender's conduct went well beyond ordinary threats to foreclose. McGinnis v. Am. Home Mortg. Servicing, Inc., 901 F.3d 1282 (11th Cir. 2018).
Probate conservator liability for punitive damages.
- Conservator's bond pursuant to O.C.G.A. § 29-5-40 et seq. does not cover punitive damages. In re Estate of Gladstone, 303 Ga. 547, 814 S.E.2d 1 (2018).
Judgment that a conservator's bond covered punitive damages even though such damages were not expressly provided for under O.C.G.A. § 29-5-40 et seq. or under the provisions of the bond itself was reversed because a conservator's bond pursuant to § 29-5-40 et seq. does not cover punitive damages. In re Estate of Gladstone, 303 Ga. 547, 814 S.E.2d 1 (2018).
Reapportionment of total award required.
- Trial court did not err by entering a judgment awarding punitive damages against the defendant since clear and convincing evidence established that the defendant, along with others, conspired to defraud the plaintiff and the defendant received the most amount of money fraudulently. However, the award against the defendant in the amount of $250,000 individually required reduction as O.C.G.A. § 51-12-5.1(g) limited the total punitive damages award to $250,000 for any tort; therefore, reapportionment of the punitive damages award was required among the three defendants against whom such awards were found using the same ratio that had been devised by the jury in the jury's original apportionment of punitive damages. Surles v. Cornell Corr. of Cal., Inc., 290 Ga. App. 260, 659 S.E.2d 683 (2008).
O.C.G.A. §§ 51-12-5,51-12-5.1, and51-12-6 must be construed together. Mallard v. Jenkins, 186 Ga. App. 167, 366 S.E.2d 775, cert. denied, 186 Ga. App. 918, 366 S.E.2d 775 (1988).
Proportionality of damages.
- The concept of proportionality as a legal limitation on the amount of punitive damages applies, in Georgia, only when such damages are given to compensate for wounded feelings. A deterrence award is based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury. Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 436 S.E.2d 14 (1993).
Punitive damages may not be recovered when there is no entitlement to compensatory damages. Since a homeowner had settled the homeowner's property damage claim arising from an incident when a truck struck the homeowner's house, and was not allowed to recover under the bodily injury provision of the policy because the homeowner was not injured in and did not witness the incident, summary judgment for an insurance company in its declaratory judgment action addressing its liability on the homeowner's punitive damage claim was affirmed. Flynn v. Allstate Ins. Co., 268 Ga. App. 222, 601 S.E.2d 739 (2004).
Because punitive damages awarded by a state court could have been based on grounds other than fraud, a finding of fraud was not essential to the ultimate judgment for collateral estoppel purposes in a nondischargeability proceeding in bankruptcy court. An award of damages for fraud did not give rise to an inference of a finding of fraud because punitive or exemplary damages for fraud could not be recovered if there was no entitlement to compensatory damages for fraud, and the state court did not award any fraud damages. Allen v. Morrow (In re Morrow), 508 Bankr. 514 (Bankr. N.D. Ga. 2014).
Because the tenant was not awarded actual or compensatory damages for the alleged missing items after the eviction, the tenant was not entitled to punitive damages. Hart v. Walker, 347 Ga. App. 582, 820 S.E.2d 206 (2018).
Punitive damages not excluded by insurance policy as in excess of actual damages.
- In an insurance dispute, the insurer's claim that punitive damages were excluded from coverage as multiplied portions of damages in excess of actual damages, failed even though O.C.G.A. § 51-12-5.1 defined them as "additional damages"; plausible interpretation was that it meant to exclude statutory multiple damages available in certain actions, which, while punitive in nature, were not traditional "punitive damages." Evanston Ins. Co. v. Mellors, F. Supp. 2d (S.D. Ga. Sept. 28, 2015).
Punitive damages not recoverable when underlying tort failed.
- Bidding insurer's claim for punitive damages against a consultant and a consulting firm failed as the insurer could not recover on the insurer's underlying tort claims. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).
Trial court did not err in granting a car dealer summary judgment against a customer's fraud claim, as: (1) the customer's contention that the dealer knew of the alleged defects in a car sold to the customer at the time of the sale was specifically negated by affidavits submitted by the dealer's service and maintenance employees; and (2) even if the dealer knew of the car's defectiveness after the sale, this knowledge did not amount to either knowledge, or a reckless disregard of the car's defectiveness, at the time of the sale; hence, as a result, the trial court did not err in granting the dealer's motion for summary judgment on the customer's claims for attorney fees under O.C.G.A. § 13-6-11, and punitive damages pursuant to O.C.G.A. § 51-12-5.1. Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App. 238, 641 S.E.2d 222 (2007).
When a client in a legal malpractice action failed to demonstrate that genuine issues of fact existed as to whether the attorney had proximately caused the client any damages, the trial court did not err in granting the attorney summary judgment on the client's claims for punitive damages and for attorney fees under O.C.G.A. §§ 13-6-11 and51-12-5.1. Amstead v. McFarland, 287 Ga. App. 135, 650 S.E.2d 737 (2007), cert. denied, 2007 Ga. LEXIS 769 (Ga. 2007).
Because a customer had not shown that a restaurant was liable on the customer's tort claims, it was proper to grant summary judgment for the restaurant on the customer's claims for attorney fees and punitive damages under O.C.G.A. §§ 13-6-11 and51-12-5.1. Dowdell v. Krystal Co., 291 Ga. App. 469, 662 S.E.2d 150 (2008), cert. denied, 2008 Ga. LEXIS 787 (Ga. 2008).
Proposed amended complaint's new claim for punitive damages, per O.C.G.A. § 51-12-5.1, would have been futile because the complaint made conclusory allegations with no factual basis. Because punitive damages are derivative of substantive tort claims, and thus can only be awarded as additional damages, and because the plaintiff had failed to allege a valid tort, let alone demonstrate that any of the plaintiff's claims were viable and could survive the defendant's motion to dismiss, the plaintiff's claim for punitive damages would have necessarily failed. Alhallaq v. Radha Soami Trading, LLC, F.3d (11th Cir. June 5, 2012)(Unpublished).
Punitive damages claims were derivative of those underlying claims that would give rise to punitive damages under O.C.G.A. § 51-12-5.1; because the court had dismissed all of the plaintiff's claims for relief, the plaintiff's request for punitive damages necessarily failed. Warthen v. Litton Loan Servicing LP, F. Supp. 2d (N.D. Ga. Mar. 23, 2012).
Because a trial court properly granted summary judgment to a restaurant on the negligence and gross negligence claims, the plaintiff's claim for punitive damages under O.C.G.A. § 51-12-5.1 also failed. Whitfield v. Tequila Mexican Rest. No. 1, Inc., 323 Ga. App. 801, 748 S.E.2d 281 (2013).
Under Georgia law, a plaintiff cannot recover punitive damages when the underlying tort claim fails. Johnson v. Johnson, 323 Ga. App. 836, 747 S.E.2d 518 (2013).
Punitive damages may be given even when recoverable, actual damages are small. McClure v. Gower, 259 Ga. 678, 385 S.E.2d 271 (1989); Tyler v. Lincoln, 272 Ga. 118, 527 S.E.2d 180 (2000).
Punitive damages in the amount of $1,500.00 were recoverable for tortious interference with contractual rights, even though the jury had returned a verdict of only $33.00 in actual damages. McClure v. Gower, 259 Ga. 678, 385 S.E.2d 271 (1989).
Insurance coverage for punitive damages.
- Insurance coverage for punitive damages is not against public policy. Federal Ins. Co. v. National Distrib. Co., 203 Ga. App. 763, 417 S.E.2d 671, cert. denied, 203 Ga. App. 906, 417 S.E.2d 671 (1992).
Plaintiff failed to show viable claim.
- Because the plaintiff failed to establish that the plaintiff had any viable claims against the defendant, the plaintiff could not recover punitive damages under O.C.G.A. § 51-12-5.1(b). Gordon v. Starwood Hotels & Resorts Worldwide, Inc., F. Supp. 2d (N.D. Ga. Sept. 26, 2011).
Punitive damages upheld in nuisance case.
- In a nuisance case arising out of noise from a power plant that used gas-fired combustion turbine units, a punitive damages award of $250,000 was upheld, O.C.G.A. § 51-12-5.1(g), based on evidence that, despite assurances that the plant would be "as unobtrusive as possible," the plant's owners ignored noise issues that were common knowledge in the industry and failed to take timely action to ameliorate them. The same conduct supported an award of attorney's fees under O.C.G.A. § 13-6-11. Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 774 S.E.2d 755 (2015).
Cutting of timber without authorization.
- Holder of a security deed on property from which timber was cut without authorization was not entitled to damages for the diminished value of the property, but only for the value of the trees; however, evidence of diminished value was relevant for purposes of attorney's fees and punitive damages. Redcedar, LLC v. CML-GA Social Circle, LLC, 341 Ga. App. 110, 798 S.E.2d 334 (2017).
Cited in Wammock v. Celotex Corp., 826 F.2d 990 (11th Cir. 1987); Wammock v. Celotex Corp., 835 F.2d 818 (11th Cir. 1988); Stover v. Atchley, 189 Ga. App. 56, 374 S.E.2d 775 (1988); Salsbury Labs., Inc. v. Merieux Labs., Inc., 735 F. Supp. 1555 (M.D. Ga. 1989); Massey v. Kelly, Inc., 742 F. Supp. 1156 (N.D. Ga. 1990); Simpson v. Yonts, 197 Ga. App. 311, 398 S.E.2d 407 (1990); Great Am. Ins. Co. v. International Ins. Co., 753 F. Supp. 357 (M.D. Ga. 1990); Powell v. Ferreira, 198 Ga. App. 465, 402 S.E.2d 85 (1991); Hester Enters., Inc. v. Narvais, 198 Ga. App. 580, 402 S.E.2d 333 (1991); Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 402 S.E.2d 753 (1991); Pangle v. Gossett, 261 Ga. 307, 404 S.E.2d 561 (1991); Ivey v. Golden Key Realty, Inc., 200 Ga. App. 545, 408 S.E.2d 811 (1991); City of Monroe v. Jordan, 201 Ga. App. 332, 411 S.E.2d 511 (1991); Miles Rich Chrysler-Plymouth, Inc. v. Mass, 201 Ga. App. 693, 411 S.E.2d 901 (1991); Floyd v. First Union Nat'l Bank, 203 Ga. App. 788, 417 S.E.2d 725 (1992); Sparks v. Ellis, 205 Ga. App. 263, 421 S.E.2d 758 (1992); Carney v. JDN Constr. Co., 206 Ga. App. 785, 426 S.E.2d 611 (1992); Freeman v. United Cities Propane Gas of Ga., Inc., 807 F. Supp. 1533 (M.D. Ga. 1992); Peters v. Hyatt Legal Servs., 211 Ga. App. 587, 440 S.E.2d 222 (1993); Hudgins & Co. v. J & M Tank Lines, 215 Ga. App. 308, 450 S.E.2d 221 (1994); Bradford v. Xerox Corp., 216 Ga. App. 83, 453 S.E.2d 98 (1994); Lightning v. Roadway Express, Inc., 60 F.3d 1551 (11th Cir. 1995); Keith v. Beard, 219 Ga. App. 190, 464 S.E.2d 633 (1995); Peters v. Hyatt Legal Servs., 220 Ga. App. 398, 469 S.E.2d 481 (1996); Willis v. Brassell, 220 Ga. App. 348, 469 S.E.2d 733 (1996); First Union Nat'l Bank v. Cook, 223 Ga. App. 374, 477 S.E.2d 649 (1996); Cochran v. Lowe's Home Ctr., Inc., 226 Ga. App. 417, 487 S.E.2d 50 (1997); Roberts v. Forte Hotels, Inc., 227 Ga. App. 471, 489 S.E.2d 540 (1997); BBB Serv. Co. v. Glass, 228 Ga. App. 423, 491 S.E.2d 870 (1997); Smithson v. Parker, 242 Ga. App. 133, 528 S.E.2d 886 (2000); Artzner v. A & A Exterminators, Inc., 242 Ga. App. 766, 531 S.E.2d 200 (2000); Griffin v. Associated Payphone, 244 Ga. App. 183, 534 S.E.2d 540 (2000); Cavin v. Brown, 246 Ga. App. 40, 538 S.E.2d 802 (2000); Felker v. Chipley, 246 Ga. App. 296, 540 S.E.2d 285 (2000); Crosby v. Kendall, 247 Ga. App. 843, 545 S.E.2d 385 (2001); Tunsil v. Jackson, 248 Ga. App. 496, 546 S.E.2d 875 (2001); Wal-Mart Stores, Inc. v. Johnson, 249 Ga. App. 84, 547 S.E.2d 320 (2001); Ledee v. Devoe, 250 Ga. App. 15, 549 S.E.2d 167 (2001); Thomas v. Atlanta Cas. Co., 253 Ga. App. 199, 558 S.E.2d 432 (2001); Baker v. Campbell, 255 Ga. App. 523, 565 S.E.2d 855 (2002); Johnson v. First Union Nat'l Bank, 255 Ga. App. 819, 567 S.E.2d 44 (2002); Hubbard v. DOT, 256 Ga. App. 342, 568 S.E.2d 559 (2002); Demido v. Wilson, 261 Ga. App. 165, 582 S.E.2d 151 (2003); D. G. Jenkins Homes, Inc. v. Wood, 261 Ga. App. 322, 582 S.E.2d 478 (2003); Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004); Williams Gen. Corp. v. Stone, 279 Ga. 428, 614 S.E.2d 758 (2005); Aldworth Co. v. England, 281 Ga. 197, 637 S.E.2d 198 (2006); Brookview Holdings, LLC v. Suarez, 285 Ga. App. 90, 645 S.E.2d 559 (2007); Imm v. Chaney, 287 Ga. App. 606, 651 S.E.2d 855 (2007); Ferman v. Bailey, 292 Ga. App. 288, 664 S.E.2d 285 (2008); Golden Atlanta Site Dev., Inc. v. R. Nahai & Sons, Inc., 299 Ga. App. 654, 683 S.E.2d 627 (2009); B-T Two, Inc. v. Bennett, 307 Ga. App. 649, 706 S.E.2d 87 (2011); Bedsole v. Action Outdoor Adver. JV, LLC, 325 Ga. App. 194, 750 S.E.2d 445 (2013);.
Purpose
Adherence to environmental and safety regulations.
- Punitive damages, the purpose of which is to "punish, penalize or deter," are, as a general rule, improper when a defendant has adhered to environmental and safety regulations. Stone Man, Inc. v. Green, 263 Ga. 470, 435 S.E.2d 205 (1993).
Special finding required.
- When punitive damages are claimed, the trier of fact should first resolve from the evidence produced at trial whether an award of punitive damages should be made, and that finding should be made specially through an appropriate form of verdict, along with the other required findings. Conseco Fin. Servicing Corp. v. Hill, 252 Ga. App. 774, 556 S.E.2d 468 (2001).
Evidentiary StandardSomething more than mere commission of a tort is necessary for the imposition of punitive damages. Negligence alone, even gross negligence, will not support an award of punitive damages. Lewis v. Suttles Truck Leasing, Inc., 869 F. Supp. 947 (S.D. Ga. 1994).
Negligence inadequate to support punitive damage award.
- Finding that the defendants conducted property foreclosure in a careless and negligent manner was not sufficient to support a punitive damage award; negligence, even gross negligence, is inadequate to support a punitive damage award. Tower Fin. Servs., Inc. v. Smith, 204 Ga. App. 910, 423 S.E.2d 257, cert. denied, 204 Ga. App. 922, 423 S.E.2d 257 (1992); Bartja v. National Union Fire Ins. Co., 218 Ga. App. 815, 463 S.E.2d 358 (1995).
In an action by a debtor against a creditor-bank for damages arising from the repossession of the debtor's car, even though the actions of an independent contractor hired to repossess the car may have verged on a breach of the peace and the bank may have been grossly negligent in failing to investigate the basis for the order to repossess, the conduct was not such as to warrant punitive damages. Fulton v. Anchor Sav. Bank, 215 Ga. App. 456, 452 S.E.2d 208 (1994).
In a medical malpractice action, it was not error to direct a verdict in favor of the defendant with respect to a claim for punitive damages since the evidence established mere professional negligence rather than clearly and convincingly evidencing an entire want of care. Roseberry v. Brooks, 218 Ga. App. 202, 461 S.E.2d 262 (1995).
When the plaintiff's claims against an employer for negligent entrustment, hiring, and retention were not supported by evidence which would raise the presumption of conscious indifference to consequences, the imposition of punitive damages was not warranted. Durben v. American Materials, Inc., 232 Ga. App. 750, 503 S.E.2d 618 (1998).
Trial court did not err in granting summary judgment to a bank and a credit union, on claims of conversion, civil conspiracy and for attorney fees and punitive damages as: (1) no probative evidence existed that the buyer received delivery of the check and, thus, it never became a holder of the instrument at issue or entitled to enforce it; (2) no evidence was presented that the bank and credit union acted in concert against the buyer; (3) no evidence of misconduct or bad faith on the part of the bank or the credit union was presented, and mere negligence was insufficient; but, the trial court properly found that a genuine issue of material fact existed as to whether the bank and the credit union were holders in due course and whether the check bore evidence of forgery or alteration so as to call into question its authenticity. Hartsock v. Rich's Emples. Credit Union, 279 Ga. App. 724, 632 S.E.2d 476 (2006).
Trial court did not err in granting partial summary judgment to an employer on a driver's negligent hiring claim because the driver failed to present any evidence in support of the driver's punitive damages claim that demonstrated the employer's independent negligence in the hiring, entrustment, supervision, or retention of an employee, who struck the driver's car while driving the employer's tractor-trailer; therefore, the negligent hiring claim was merely duplicative of the driver's negligence claim against the employee, for which the employer admitted responsibility under the doctrine of respondeat superior. Kelley v. Blue Line Carriers, LLC, 300 Ga. App. 577, 685 S.E.2d 479 (2009).
Trial court properly granted summary judgment to the pharmacy on the customers' claim for punitive damages because the customers failed to point to any evidence upon which a jury could properly base such an award given that the evidence, at most, presented a claim for negligence. Roberts v. Quick Rx Drugs, Inc., 343 Ga. App. 556, 807 S.E.2d 476 (2017).
Punitive damages inappropriate for rape victim.
- Defendant's failure to provide adequate locking mechanism on window through which the plaintiff's rapist gained access to her apartment does not show the requisite degree of willful misconduct, malice, wantonness, or oppression as to authorize the imposition of punitive damages under O.C.G.A. § 51-12-5.1. Walker v. Sturbridge Partners, Ltd., 221 Ga. App. 36, 470 S.E.2d 738 (1996).
Culpable conduct required.
- Under O.C.G.A. § 51-12-5.1, punitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award. Troutman v. B.C.B. Co., 209 Ga. App. 166, 433 S.E.2d 73 (1993); Howard v. Alamo Corp., 216 Ga. App. 525, 455 S.E.2d 308 (1995); MDC Blackshear, L.L.C. v. Littell, 273 Ga. 169, 537 S.E.2d 356 (2000).
Bank's actions in adding third party to joint account without notifying original accountee and subsequently disbursing funds to this party rose potentially to the level of gross negligence, but fell short of the requisite intention required for punitive damages. Ralston v. Etowah Bank, 207 Ga. App. 775, 429 S.E.2d 102 (1993).
Because the issues of proximate cause under O.C.G.A. § 51-12-5.1(b) and intent were disputed and a customer failed to prove fraud, the trial court erred in finding as a fact that a drug substitution caused the customer's injuries; consequently, the trial court erred in denying the pharmacy's motion for summary judgment. Mableton Parkway CVS v. Salter, 273 Ga. App. 477, 615 S.E.2d 558 (2005).
Evidence supported a finding that the landowners' actions in trespassing on a corporation's dam and creating a nuisance in plugging the weakened dam were wilfully taken in bad faith; therefore, attorney fees and punitive damages were authorized. Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894, 613 S.E.2d 673 (2005).
Allegations that a loan servicer foreclosed on a bankruptcy debtor's property despite agreeing not to do so, and then continued to solicit payments from the debtor as though no foreclosure occurred such that the debtor remained under the impression that the debtor still owned the property, were sufficient to state a claim for the type of wrongful conduct punitive damages were intended to address. Gordon v. Bank of Am., N.A. (In re Merriweather), Bankr. (Bankr. N.D. Ga. Aug. 28, 2015).
Punitive damages claim failed because the corporation failed to proffer summary judgment evidence indicating the securities broker-dealer firm's alleged misconduct was spiteful, malicious, fraudulent, evil, conscious, or deliberate. Owens v. Stifel Nicolaus & Co., 650 Fed. Appx. 764 (11th Cir. 2016)(Unpublished).
Wanton conduct is that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent. Craig v. Holsey, 264 Ga. App. 344, 590 S.E.2d 742 (2003), cert. denied, 543 U.S. 820, 125 S. Ct. 59, 160 L. Ed. 2d 29 (2004).
A finding of no specific intent to cause harm under O.C.G.A. § 51-12-5.1(g) did not preclude a finding of liability under a non-physical injury negligent retention claim because there was no inconsistency between a finding of willful or wanton acts directed toward an employee along with a finding of no specific intent to cause harm in that the two inquiries were separate and distinct. Tomczyk v. Jocks & Jills Rests., LLC, 513 F. Supp. 2d 1351 (N.D. Ga. 2007).
Willful and intentional conduct not essential.
- Recovery of punitive damages may be authorized when the circumstances of the tort show an entire want of care and an indifference to consequences; willful and intentional conduct is not essential. Brown v. StarMed Staffing, 227 Ga. App. 749, 490 S.E.2d 503 (1997).
Willful violation of trust.
- In a trustee's suit against a company and the company's manager (defendants) for interfering with trust assets, the trial court erred by granting summary judgment to the defendants on the trustee's claim for punitive damages and litigation expenses because the trustee offered evidence that the defendants willfully violated the partnership agreement and divested the trust of a valuable asset, which raised material factual questions as to whether such conduct supported such damages. Schinazi v. Eden, 338 Ga. App. 793, 792 S.E.2d 94 (2016).
Clear and convincing evidence.
- When there was evidence that for four years prior to the incident giving rise to the plaintiff's injuries, the defendant ignored or rejected advice from the defendant's own engineering division regarding defects in frames on trucks and that the defendant failed to give notice to purchasers of the problems, a "conscious indifference to consequences" was shown sufficient to meet the "clear and convincing" standard of subsection (b) of O.C.G.A. § 51-12-5.1. Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993).
Jury instruction on clear and convincing evidence.
- In view of repeated requests by the defendant and the jury's apparent confusion over the issue, the trial court erred by refusing to define for the jury the "clear and convincing evidence" standard of proof required for punitive damages. GMC v. Moseley, 213 Ga. App. 875, 447 S.E.2d 302 (1994).
Leaving the scene of accident is intentional and culpable act.
- Defendant's leaving the scene of a collision without even speaking to the other party, as mandated by statute, was an intentional and culpable act; such conduct demonstrated a conscious indifference to the consequences and an entire want of care as to the victim's well being permitting the jury to find that such conduct was of an aggravated and indifferent nature for purposes of imposing punitive damages. Langlois v. Wolford, 246 Ga. App. 209, 539 S.E.2d 565 (2000).
Uncapped punitive damages in DUI case.
- Trial court erred in finding that a car owner who gave a driver the owner's car keys, even though both had been drinking and the owner knew that the driver was drunk and did not have a license, could not be liable to a collision victim for punitive damages under O.C.G.A. § 51-12-5.1(f); the term "active tort-feasor" was not limited to drunk drivers. The issue was whether the owner was intoxicated to the degree that the owner's judgment was substantially impaired and whether the owner was an "active tort-feasor." Reid v. Morris, Ga. , 845 S.E.2d 590 (2020).
Punitive damage award for hair replacement customer.
- Court did not abuse the court's discretion in denying the defendants' motion for a directed verdict on the issue of punitive damages in an action alleging that, contrary to their agreement, the defendants aired television commercials in Georgia that contained before-and-after pictures of a customer's hair replacement treatments because some clear and convincing evidence supported the jury's award of punitive damages pursuant to O.C.G.A. § 51-12-5.1(b). Zieve v. Hairston, 266 Ga. App. 753, 598 S.E.2d 25 (2004).
Tenant's claim for punitive damages.
- In a tenant's action against the leasing agent of an apartment complex alleging that soot from an apartment heating system caused the tenant to suffer respiratory and lymph node problems, the agent's motion for a directed verdict was properly granted on the tenant's claim for punitive damages under O.C.G.A. § 51-12-5.1(b); the tenant failed to present clear and convincing evidence of a conscious indifference to consequences authorizing the imposition of punitive damages because it was not shown that the tenant knew or should have known that prolonged exposure to the soot would cause the personal injury for which the tenant sought recovery. Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 640 S.E.2d 620 (2006).
Insurer was entitled to summary judgment as to an insured's claim for punitive damages because the insured failed to adduce clear and convincing evidence, as required under O.C.G.A. § 51-12-5.1(b), that the insurer's actions in refusing to honor a settlement demand by an accident victim for the policy limit amounted to willful misconduct, fraud, malice, wantonness, oppression, or want of care when the insurer contended that the demand was not honored because the insurer was investigating whether the insured, who was not a named insured under the policy, was entitled to coverage as a permissive driver. Hulsey v. Travelers Indem. Co. of Am., 460 F. Supp. 2d 1332 (N.D. Ga. 2006).
No willful or wanton conduct in invasion of privacy claim.
- In a case wherein the only tort that was properly submitted to the jury was the plaintiff's assertion of an invasion of privacy against the defendant, a psychiatrist, the trial court did not err by ruling that the evidence showed no willful or wanton conduct to support the plaintiff's claim for punitive damages and then granting a directed verdict on that claim in favor of the defendant because the plaintiff's claim presented no evidence, much less no clear and convincing evidence, that raised a question whether the defendant's actions in sending three letters to other treating physicians of the plaintiff warranted punitive damages. Haughton v. Canning, 287 Ga. App. 28, 650 S.E.2d 718 (2007), cert. denied, No. S07C1869, 2008 Ga. LEXIS 157 (Ga. 2008).
Punitive damages in limited liability company.
- In an action involving the judicial dissolution of a limited liability company, because there was clear and convincing evidence that a member of the company's actions showed willful misconduct, malice, fraud, wantonness, or oppression, the evidence was sufficient to support an award of punitive damages. Moses v. Pennebaker, 312 Ga. App. 623, 719 S.E.2d 521 (2011).
Due to overwhelming evidence that the defendant publisher reasonably and honestly (albeit mistakenly) believed that the photographs were subject to the newsworthiness exception to the right of publicity, no reasonable jury could have found by clear and convincing evidence that punitive damages were warranted under O.C.G.A. § 51-12-5.1(b). The district court was instructed to vacate the jury's punitive damages award in the plaintiff mother's favor in the plaintiff's claim for violation of the deceased daughter's right of privacy for the publication of nude photos post mortem. Toffoloni v. LFP Publ'g Group, LLC, F.3d (11th Cir. May 1, 2012), cert. denied, 133 S. Ct. 792, 184 L. Ed. 2d 582 (2012)(Unpublished).
District court did not err in allowing the jury's punitive damages award to stand because there was clear and convincing evidence that the defendant's misconduct showed the requisite bad state of mind under Georgia law because there was clear and convincing evidence from which a jury could have concluded that the defendant repeatedly acted with an intentional disregard for the plaintiffs' rights when the defendant, among other things, trespassed onto the plaintiffs' business premises, took over their operations, fired their employees, and sent letters to their tenants to redirect rent payments to the defendant's new bank account. E. Prop. Dev. LLC v. Gill, F.3d (11th Cir. Mar. 6, 2014)(Unpublished).
HOA's trespass and removal of homeowners' sign presented jury question.
- In a dispute involving a homeowners' association's (HOA) claim of a pedestrian easement access across a subdivision lot to a lake, the term "10' PEDESTRIAN ESMT" on the plat was void for uncertainty of description. The lot owners' counterclaims for trespass, theft by taking (for removal of a sign), interfering with the right of quiet enjoyment, attorney's fees, and punitive damages presented jury questions; however, their claim for intentional infliction of emotional distress was subject to summary judgment. The Plantation at Bay Creek Homeowners Association, Inc. v. Glasier, 349 Ga. App. 203, 825 S.E.2d 542 (2019).
Actions sufficient to present jury question.- Restaurant cook's actions directed against the plaintiff customers, including the use of profanity and a racial epithet, calling the police, and having the plaintiffs removed from the restaurant, were the sort of willful misconduct that suffices to present a jury question on whether the plaintiffs were entitled to punitive damages. Middlebrooks v. Hillcrest Foods Inc., 256 F.3d 1241 (11th Cir. 2001).
Trial court properly denied an insurance management company and its president's motion for directed verdict, pursuant to O.C.G.A. § 9-11-50, in an action by a contractor who was forced to pay for a subcontractor's employee's injuries due to the failure of the subcontractor to have workers' compensation insurance as there was sufficient evidence of misrepresentations by the company and its president, and justifiable reliance by the contractor, to support the contractor's fraud and negligent misrepresentation claims; the company and the company's president had assured the contractor repeatedly that the subcontractor had adequate workers' compensation insurance for building purposes, although it did not, and based on the fraud by them, punitive damages pursuant to O.C.G.A. § 51-12-5.1(b) were properly presented to the jury for consideration. FitzSimons v. W. M. Collins Enters., Inc., 271 Ga. App. 854, 610 S.E.2d 654 (2005).
Because a corporation adduced evidence from which a jury could find that the competitor, the competitor's majority shareholder, and a newly formed company liable for procuring a breach of fiduciary duty, and because acting purposefully, with malice and the intent to injure, was an essential element of this tort, the defendants were not entitled to judgment as a matter of law on the corporation's malice claims seeking punitive damages and attorney fees. Insight Tech., Inc. v. FreightCheck, LLC, 280 Ga. App. 19, 633 S.E.2d 373 (2006).
Summary judgment was properly denied on punitive damages claims in a parent's action arising out of an accusation by store employees that the parent's child stole from the store because issues of fact existed as to whether the employees acted with a wanton disregard of the child's rights under O.C.G.A. § 51-12-5.1(b). Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).
As there was evidence that a dentist failed to perform diagnostic procedures, knew that dental implants inserted in a patient's mouth were not fitting properly, and yet used permanent cement to set them into position, the trial court erred in granting summary judgment to the dentist on the patient's claim for punitive damages of less than $250,000. Tookes v. Murray, 297 Ga. App. 765, 678 S.E.2d 209 (2009).
Partner, who sought punitive damages based upon another partner's actions, was not entitled to summary judgment because the evidence created a jury question over whether the investment bank partner acted with the specific intent to cause harm, and thus over whether the statutory cap should apply in the case. AAF-McQuay, Inc. v. Willis, 308 Ga. App. 203, 707 S.E.2d 508 (2011).
Trial court did not err by denying a manager's motion for summary judgment as to the joint venturers' counterclaim for punitive damages because the venturers' breach of fiduciary duty claim survived and the venturers presented evidence from which a jury could properly conclude that an award of punitive damages was warranted based on whether the manager exercised good faith by depleting the business funds and suspending distributions. Maree v. ROMAR Joint Venture, 329 Ga. App. 282, 763 S.E.2d 899 (2014), overruled on other grounds by SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404, 841 S.E.2d 729 (2020).
Threat of criminal prosecution sufficient.
- A contractor's conduct in attempting to use the threat of criminal prosecution to pressure a client into paying a disputed bill met the standard for awarding the client punitive damages in the client's counterclaim for malicious prosecution. Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009).
Purposeful action required in identity fraud cases.
- Trial court properly granted summary judgment to the auto dealer, the mortgage broker, and the lender on the accused person's claim for punitive damages for repossessing the truck that had been fraudulently financed by another person in the accused person's name and then reporting that repossession to credit agencies that had the accused person's information before finally getting the repossession information deleted from the accused person's credit reports as the evidence did not show they purposefully acted to harm the accused person. Blakey v. Victory Equip. Sales, Inc., 259 Ga. App. 34, 576 S.E.2d 38 (2002).
Employer's conduct was proper response in employee's claim of sexual harrasment by a co-worker.
- Evidence did not support a claim by an employee against an employer of intentional infliction of emotional distress due to a co-employee's acts of sexual harassment directed at the employee, as the employer's conduct in response to the harassment was neither extreme or outrageous, nor malicious, willful, or wanton, based on the same test used for determination of punitive damages under O.C.G.A. § 51-12-5.1; rather, the employer responded to the employee's indication of sexual harassment by putting a ban on communications between the employees and by ultimately terminating the co-employee for a failure to adhere to that ban. Travis Pruitt & Assocs., P.C. v. Hooper, 277 Ga. App. 1, 625 S.E.2d 445 (2005).
No proof of intent to cause harm.
- As there was no evidence a dentist acted with the specific intent to cause harm to a patient, as required under O.C.G.A. § 51-12-5.1(f)-(g) to support a claim for unlimited punitive damages, the patient's claim for punitive damages exceeding $250,000 was properly dismissed. Tookes v. Murray, 297 Ga. App. 765, 678 S.E.2d 209 (2009).
Product Liability
Award not excessive.
- In an action against a truck manufacturer, a punitive damages award of $2 million was not so excessive as to violate the due process clauses of the Georgia and United States Constitutions, the Eighth Amendment of the United States Constitution, and the excessive fines clause of Ga. Const., 1983, Art. I, Sec. I, Par. XVII. Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993).
In an action against a manufacturer of a pickup truck whose side saddle fuel tank ruptured and burst into flames after a collision, an award of punitive damages of $101,000,000 was not unreasonable and rationally served the purpose of punishing and deterring, considering the public nature of the harm, the corporate defendant involved, and the protection afforded by the "one award" provision of paragraph (e)(1) of O.C.G.A. § 51-12-5.1. GMC v. Moseley, 213 Ga. App. 875, 447 S.E.2d 302 (1994).
Punitive damages proper.
- Award of punitive damages in a personal injury action arising from exposure to pesticides was proper because the evidence supported a finding that the extermination company displayed a conscious indifference to the possible infliction of personal injury on the company's customers as a result of their exposure to pesticides misapplied by extermination company technicians. Orkin Exterminating Co. v. Carder, 258 Ga. App. 796, 575 S.E.2d 664 (2002).
Trial court properly denied an automobile manufacturer's motion judgment notwithstanding the verdict on a grant of punitive damages, pursuant to O.C.G.A. § 51-12-5.1(b), in a products liability action; the evidence indicated that the manufacturer had been aware of faulty backseat latches for years prior to the accident, in which a latch failed and the seat flew forward, permanently paralyzing a child, and did nothing to remedy or warn customers of the problem. Ford Motor Co. v. Sasser, 274 Ga. App. 459, 618 S.E.2d 47 (2005).
Injury from construction boom.
- Construction worker's O.C.G.A. § 51-12-5.1(b) punitive damages claim against a boom manufacturer and two rental companies failed because the worker's underlying products liability claims failed as there was no evidence that the manufacturer or the rental companies produced or placed into the stream of commerce the boom that injured the worker. McBride v. JLG Indus., F. Supp. 2d (M.D. Ga. Sept. 20, 2005); Mosley v. JLG Indus., F. Supp. 2d (M.D. Ga. Sept. 20, 2005).
Other Cases
Summary judgment properly denied as to invasion of privacy claim.
- Summary judgment motion filed by employer was properly denied on an intentional infliction of emotional distress claim brought under the doctrine of respondeat superior by a group of female employees, after the employer installed a video surveillance system in the women's restroom in response to rumored drug use, placed a manager in charge of the system, and asked the manager to monitor the activity of the employees; there was no evidence that the manager acted solely for personal sexual gratification. Johnson v. Allen, 272 Ga. App. 861, 613 S.E.2d 657 (2005).
Summary judgment was properly denied on arrestees' punitive damages claim, which arose from their allegations that the arrestees were transported to jail with their genitalia exposed; whether to award punitive damages was left to the factfinder. Mitchell v. Stewart, F.3d (11th Cir. Apr. 9, 2015)(Unpublished).
Summary judgment properly denied on conversion claim.
- Denial of summary judgment to the defendants on the plaintiff's claim for punitive damages was proper because the plaintiff asserted an independent tort claim for conversion, which could support an award of punitive damages and an award of attorney fees. McCalla Raymer, LLC v. Foxfire Acres, Inc., Ga. App. , 846 S.E.2d 404 (2020).
Specific intent requirement.
- Under subsection (f) of O.C.G.A. § 51-12-5.1, a jury on a claim for fraud was not required to make a separate finding that the defendant acted with specific intent to injure in order to authorize an award above $250,000; however, in future cases, a bright line rule is adopted requiring both a charge on specific intent to cause harm and a separate finding of specific intent to cause harm by the trier of fact in order to avoid the cap on punitive damages. McDaniel v. Elliott, 269 Ga. 262, 497 S.E.2d 786 (1998).
When an employer sought an award of punitive damages against an employee in an amount exceeding $250,000, there was a bright line rule requiring the employer to request both a charge on the employee's specific intent to cause harm and a separate finding of the employee's specific intent to cause harm by the trier of fact in order to avoid the $250,000 cap in O.C.G.A. § 51-12-5.1(g). Quay v. Heritage Fin., Inc., 274 Ga. App. 358, 617 S.E.2d 618 (2005).
Bright line rule regarding awarding punitive damages in excess of the cap in O.C.G.A. § 51-12-5.1(g) means that a failure to object to the absence or inadequacy of a specific intent charge or finding does not constitute a waiver of the error for the purpose of appellate review, and because a claimant for punitive damages bears the burden of meeting the procedural requirements of O.C.G.A. § 51-12-5.1(g), a verdict for punitive damages in excess of $250,000 may not stand unless the record reflects both a request to charge on specific intent to cause harm and a separate finding of specific intent to cause harm by the trier of fact. Quay v. Heritage Fin., Inc., 274 Ga. App. 358, 617 S.E.2d 618 (2005).
In a "road rage" suit against a supplier and a carrier involving an assault by a truck driver, the evidence did not support an award of punitive damages over $250,000 under O.C.G.A. § 51-12-5.1(f); it had not been alleged that the supplier, which defaulted, acted with the specific intent to cause harm, and such intent was not established by a showing of conscious indifference on the carrier's part. Aldworth Co. v. England, 286 Ga. App. 1, 648 S.E.2d 198 (2007).
Trial court did not err in refusing to limit the punitive damages award to $250,000, the statutory cap set forth in O.C.G.A. § 51-12-5.1(f) and (g), in a corporation's action against a former president alleging breach of fiduciary duty and misappropriation of corporate opportunity because the following evidence supported the jury's finding of specific intent to harm: (1) an employee who worked for both the corporation and a business that was formed by the president and by the owner of the corporation's competitor testified that the president warned the employee and other employees not to reveal their involvement with the business because "it would only be a detriment to you"; (2) the owner of the corporate competitor testified that the president had stated that the president had permission to work on a second factoring company; and (3) the corporation's owner testified that the corporation had no knowledge of the president's involvement in a second factoring business. Brewer v. Insight Tech., Inc., 301 Ga. App. 694, 689 S.E.2d 330 (2009), cert. denied, No. S10C0678, 2010 Ga. LEXIS 455 (Ga. 2010).
Insufficient evidence for subsection (f) award.
- Evidence that the truck driver continued on the highway driving erratically for several minutes before veering off the road to strike the plaintiff's vehicle and that the driver's employer utilized a "forced dispatch" system resulting in a significant number of safety regulation violations did not sufficiently demonstrate "specific intent to harm" for a punitive award under O.C.G.A. § 51-12-5.1. J.B. Hunt Transport, Inc. v. Bentley, 207 Ga. App. 250, 427 S.E.2d 499 (1992).
In an action arising from an accident allegedly caused when pegboard fell from a van, it was not shown that the store employee who tied the pegboard to the top of the van had an intent to cause specific harm as required for the payment of unlimited punitive damages. Bonard v. Lowe's Home Ctrs., Inc., 224 Ga. App. 85, 479 S.E.2d 784 (1996).
Since there was no evidence of any complaints to the developers while a subdivision was being built, or that the drainage system was designed with knowledge that it would increase the runoff of storm-water or sediment onto the plaintiffs' property, and since the developers complied with all requirements imposed by the county, the plaintiffs' failure to comply with the county's request that the plaintiffs provide documentation of their complaints, and the findings of various governmental agencies as to the plaintiffs' lack of damages, supported the granting of summary judgment to the developers as to the plaintiffs' claims for punitive damages and attorney fees. Tyler v. Lincoln, 236 Ga. App. 850, 513 S.E.2d 6 (1999).
No punitive damages for trespass without compensatory damages award.
- Trial court erred in awarding a grandfather punitive damages against a grandson for trespass, as punitive damages could not be awarded absent a compensatory damages award, even though injunctive relief was granted. Martin v. Martin, 267 Ga. App. 596, 600 S.E.2d 682 (2004).
Damages properly denied; conscious indifference not proven.- Evidence of corporate trucking agency's knowledge of employee's less than stellar driving record and of limited experience credentials was insufficient to conclude that the agency was consciously indifferent in hiring or retaining the employee. Hutcherson v. Progressive Corp., 984 F.2d 1152 (11th Cir. 1993).
Truck repairer was properly granted a directed verdict under O.C.G.A. § 9-11-50 with respect to a truck owner's request for punitive damages as the repairer's acts did not amount to willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to the consequences pursuant to O.C.G.A. § 51-12-5.1(b). Puckette v. John Bailey Pontiac-Buick-GMC Truck, Inc., 311 Ga. App. 138, 714 S.E.2d 750 (2011).
Claim for damages fails.
- Since punitive damages could only be awarded as damages additional to other damages, and because the medical director did not establish any other claim for damages in the medical director's suit for damages for the disclosure of the fact that the medical director tested positive for an infectious disease, the medical director's claim for punitive damages had to fail. Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga. App. 571, 571 S.E.2d 557 (2002).
When no actual damages, no punitive damages.
- Trial court erred in granting actual damages for orthodontic expenses, as well as punitive damages and attorney fees, to an ex-husband in a fraud claim against the ex-wife, arising from allegations that the ex-wife fraudulently misrepresented that the former husband had abandoned the ex-wife's daughters, which the ex-husband later adopted, as the divorce decree and the adoption order were presumptively valid and in full force and effect and, accordingly, the ex-husband could not recover for expenses that the ex-husband was legally obligated to pay; although the ex-wife failed to respond to the complaint, the trial court erred in granting the ex-husband a default judgment under O.C.G.A. § 9-11-55(a) because the relief was not available to him, and as there was no actual damages awarded, there could be no punitive damages under O.C.G.A. § 51-12-5.1(b) and no attorney fees. Grand v. Hope, 274 Ga. App. 626, 617 S.E.2d 593 (2005).
Insured could not sustain a claim that the parent insurance company interfered with a policy issued by its subsidiary and induced the subsidiary to breach the policy because the parent company could not be a stranger to the subsidiary's contractual relations; therefore, the insured's claims for tortious interference with contractual relations and punitive damages arising out of that alleged tortious interference were dismissed for failure to state a claim. Perry v. Unum Life Ins. Co. of Am., 353 F. Supp. 2d 1237 (N.D. Ga. 2005).
In an advertiser's suit alleging claims for fraud, breach of contract, gross negligence, and punitive damages in connection with a publisher and its sales agent's failure to ensure that the advertiser's business was listed in a telephone directory, the punitive damages claim failed under O.C.G.A. § 51-12-5.1 because the advertiser's underlying claims were dismissed on summary judgment. Integrated Pest Mgmt. Servs., LLC v. Bellsouth Adver. & Publ. Corp., F. Supp. 2d (N.D. Ga. Nov. 16, 2005).
Because an executor's underlying claims of fraud, breach of fiduciary duty, and conversion against a brother and a wife were dismissed upon summary judgment, the executor's O.C.G.A. § 51-12-5.1(b) claim for punitive damages also had to be dismissed, as the executor no longer had any claims supporting actual damages. Rowland v. Rowland, F. Supp. 2d (N.D. Ga. Nov. 16, 2005).
Administrator's claim for punitive damages against an insurance company, which allegedly improperly denied insurance death benefits, was dismissed because Georgia law did not provide the administrator with a tort claim; since the administrator's tort claims were dismissed, the punitive damages claim under O.C.G.A. § 51-12-5.1 required dismissal. Garrett v. Unum Life Ins. Co. of Am., 427 F. Supp. 2d 1158 (M.D. Ga. 2005).
Punitive damages in medical malpractice claim.
- In a medical malpractice action, an executrix failed to support a claim for punitive damages related to a claim of abandonment as the executor failed to present any expert testimony that there was a reasonable degree of medical certainty the decedent would have survived, even if the doctor or another qualified surgeon had been at the hospital when the decedent began to bleed internally; thus, the trial court properly granted the doctor a directed verdict as to both claims. King v. Zakaria, 280 Ga. App. 570, 634 S.E.2d 444 (2006).
While judgment creditors were entitled to default judgment on claims under 11 U.S.C. § 523(a)(2)(A) against the debtor husband because state court adjudication of the debtor husband's liability for fraud necessarily adjudicated the same issues that rendered liability nondischargeable under § 523(a)(2)(A), and collateral estoppel applied, because it was not clear how a punitive damages award was allocated under state law, judgment could not be awarded regarding such damages. Palloto v. Neri (In re Neri), Bankr. (Bankr. N.D. Ga. Jan. 8, 2018).
Punitive damages in consumer fraud cases.
- Although punitive damages were available for fraud claims, because the court had dismissed the consumers' fraud claim for failure to plead fraud with sufficient particularity, there was no claim remaining in the case to support a claim for punitive damages under O.C.G.A. § 51-12-5.1(b); therefore, the claim for punitive damages was dismissed. Danielson v. DBM, Inc., F. Supp. 2d (N.D. Ga. July 31, 2006).
Penalty was assessed against two customers for bringing a frivolous appeal as their punitive damages claim based on a salesperson placing an acrylic riser back in its original position on a counter without a warning after the riser had fallen on a customer's toe was without a factual or legal support since placing the acrylic riser on the counter was not willful, malicious, or designed to cause injury to others, and no person was injured when the riser was placed back on the counter after the riser fell and struck the customer's toe. Kurtz v. Brown Shoe Co., 281 Ga. App. 706, 637 S.E.2d 111 (2006).
Physical injury required for punitive damages.
- Because an employee chose to pursue punitive damages under O.C.G.A. § 51-12-5.1 rather than O.C.G.A. § 51-2-6, the employee was not entitled to punitive damages on a claim for negligent retention due to the fact that the jury specifically found that the employee had not suffered a physical injury. A finding of physical injury was required for punitive damages under O.C.G.A. § 51-12-5.1. Tomczyk v. Jocks & Jills Rests., LLC, 513 F. Supp. 2d 1351 (N.D. Ga. 2007).
Punitive damages in injury following boat fueling.
- In a boat buyer's suit alleging negligence by the defendants, a marina, a boat yard, and the seller of the boat in connection with a fire that caused the buyer to sustain severe burns, the buyer's claims for punitive damages under O.C.G.A. § 51-12-5.1(b) failed since there was no evidence that the defendants acted with willful misconduct or recklessness in the installation of an alternator that may have been defective or in using an automated fuel pump to refuel the boat. Muhs v. River Rats, Inc., 586 F. Supp. 2d 1364 (S.D. Ga. 2008).
Employee acting without intentional disregard of others.
- Employee, who cut a tree that fell on a landscaper's truck, was properly granted summary judgment as to the landscaper's claim for punitive damages. Because the employee, who had eight years' experience in removing trees, believed the tree could be cut so the tree would fall away from the road, and used an anchor rope to control the tree's descent, no rational fact finder could have found by clear and convincing evidence that the employee intentionally disregarded the rights of others. Wardlaw v. Ivey, 297 Ga. App. 240, 676 S.E.2d 858 (2009).
Punitive damages following auto accident.
- Like the driver who was speeding on wet roads and had consumed alcohol before the crash, the evidence the executor adduced against the driver was that the driver drove at excessive speeds, carried a slightly overweight load, and drove despite knowing that the driver's blood sugar situation was not being properly controlled. Those facts did not form the basis of a pattern and policy of dangerous driving and were more akin to violating rules of the road; therefore, the court granted the driver, the trucking company, the corporation, and the insurance company's motion for summary judgment as to punitive damages under O.C.G.A. § 51-12-5.1(b). Lewis v. D. Hays Trucking, Inc., F. Supp. 2d (N.D. Ga. Mar. 22, 2010).
After being granted summary judgment dismissing claims for breach of contract and breach of fiduciary duty, resulting in no actual damages being awarded, punitive damages were unavailable under O.C.G.A. § 51-12-5.1. Durkin v. Platz, F. Supp. 2d (N.D. Ga. Jan. 30, 2013).
No proof of entitlement to punitive damages.
- Although the bank was liable for conversion to the client of an attorney who deposited a forged check to the attorney's trust account, the bank was not liable for punitive damages since there was no evidence of conduct by the bank sufficient to raise the presumption of conscious indifference to the consequences. Tifton Bank & Trust Co. v. Knight's Furn. Co., 215 Ga. App. 471, 452 S.E.2d 219 (1994).
There was insufficient evidence to support a finding that the defendant wilfully or with conscious indifference failed to abate the nuisance; therefore, there was no support for a claim of punitive damages. Tri-County Inv. Group v. Southern States, Inc., 231 Ga. App. 632, 500 S.E.2d 22 (1998).
Evidence that a cell phone company erroneously charged its customers taxes and delayed reimbursement for several months was insufficient to establish a material issue of fact as to the customers' entitlement to punitive damages. Taylor v. Powertel, Inc., 250 Ga. App. 356, 551 S.E.2d 765 (2001).
When injured parties sought punitive damages from a motorist who collided with their vehicle because the motorist was a minor whose license did not allow the minor to drive after 1:00 a.m., and the collision occurred after 1:00 a.m., the recovery of punitive damages was not allowed because the time at which the motorist was driving did not proximately cause the collision, and the minor's action was not part of a pattern or policy of dangerous driving, such as driving while intoxicated or excessive speeding, which could justify the imposition of punitive damages, under O.C.G.A. § 51-12-5.1(b). Brooks v. Gray, 262 Ga. App. 232, 585 S.E.2d 188 (2003).
Spouse of a decedent worker presented no evidence that the corporations engaged in the sort of conduct that would warrant an imposition of punitive damages because the spouse's suit was based on a simple negligence theory; because the spouse failed to satisfy the statutory requirements in O.C.G.A. § 51-12-5.1, the spouse's claim for punitive damages did not succeed. Clark v. Roberson Mgmt. Corp., F. Supp. 2d (M.D. Ga. Jan. 11, 2005).
Corporation, the employee, and the insurance company's motion for summary judgment on the punitive damages claim under O.C.G.A. § 51-12-5.1(b) was granted because: (1) the injured individual had not alleged any facts that show that the employee acted maliciously; and (2) the employee's speeding tickets were not such numerous and serious violations as to suggest that the collision resulted from a pattern or policy of dangerous driving. Ballard v. Keen Transp., Inc., F. Supp. 2d (S.D. Ga. Jan. 19, 2011).
Claim for punitive damages failed as evidence that the employer checked the driver's driving record before hiring the driver, reviewed the record during the first year of employment, required the driver to comply with driver training and safety rules, and the driver's most recent violation was over three years old failed to rise to the level of clear and convincing evidence demonstrating that the employer should have known that the driver was a habitually reckless or dangerous driver. MasTec N. Am., Inc. v. Wilson, 325 Ga. App. 863, 755 S.E.2d 257 (2014).
Damages properly awarded; conscious indifference proven.
- In a malpractice action, evidence of the defendant dentist's extended treatment of the plaintiff during a time the dentist was impaired by the use of addictive drugs raised the presumption of conscious indifference to the consequences so as to justify a punitive damages award. Martin v. Williams, 215 Ga. App. 649, 451 S.E.2d 822 (1994).
There was no error in an award of punitive damages when the plaintiff's actions showed willful misconduct, fraud, wantonness, and an entire want of care, which raised the presumption of conscious indifference to the consequences of the defendant's conduct. Scriver v. Lister, 235 Ga. App. 487, 510 S.E.2d 59 (1998).
Evidence that the defendant refused to maintain drainage control around the defendant's rails despite knowledge that the plaintiff's property flooded as a result authorized the finding that the defendant acted with conscious indifference to the plaintiff's plight. CSX Transp., Inc. v. West, 240 Ga. App. 209, 523 S.E.2d 63 (1999), overruled on other grounds by Monterrey Mexican Rest. of Wise, Inc. v. Leon, 282 Ga. App. 439, 638 S.E.2d 879 (2006).
Evidence supported a finding that the defendant company acted with reckless disregard of the plaintiff's welfare by allowing the plaintiff to sit in jail as a result of its failure to pay its own charges for false alarms. E-Z Serve Convenience Stores, Inc. v. Crowell, 244 Ga. App. 43, 535 S.E.2d 16 (2000).
Award of punitive damages under O.C.G.A. § 51-12-5.1(b) to the injured party in the trover action was supported by the evidence, after the bank wrongfully repossessed the injured party's trailer under the assumption that it was the injured party's son's, it failed to follow standard banking practice requiring that an attempt be made to identify the secured vehicle correctly before repossessing it, and the bank did not hold title to the trailer, but merely had a financing statement granting it a security interest in the injured party's son's equipment. Gateway Bank & Trust v. Timms, 259 Ga. App. 299, 577 S.E.2d 15 (2003).
When a construction company promised to remedy a problem with standing water in the backyard of a house it sold to a homeowner, which was a problem it had created when it removed soil from the yard, but, after two years, told the homeowner it had no intention of taking care of the problem, an award of punitive damages was proper, under O.C.G.A. § 51-12-5.1(b), as the evidence showed clearly and convincingly that the company refused to acknowledge the problem and the problem took a physical toll on the elderly homeowner. Bowen & Bowen Constr. Co. v. Fowler, 265 Ga. App. 274, 593 S.E.2d 668 (2004).
After a company established that a former agent of the company solicited the company's customers for a competing enterprise during the tenure of the agent's employment, such conduct demonstrated the type of willful misconduct contemplated by O.C.G.A. § 51-12-5.1(b) to warrant an award of punitive damages, but the award was limited to half of the amount awarded as damages since the agent's conduct did not appear to be calculated to harm the company and the agent's competing enterprise was not a robust operation and was suffering a loss of business as a result of the case. KEG Techs., Inc. v. Laimer, 436 F. Supp. 2d 1364 (N.D. Ga. 2006).
Award of punitive damages was authorized in a trespass action filed against owners of property by the holder of an easement over their property because the evidence authorized a finding that the owners participated in repeated trespasses to the holder's property; under O.C.G.A. § 51-12-5.1(b), punitive damages could be awarded in tort actions in which willful misconduct was proven by clear and convincing evidence, and because trespass was an intentional act, a willful repetition of trespass authorized the claim for punitive damages. Paine v. Nations, 283 Ga. App. 167, 641 S.E.2d 180 (2006).
Jury properly found that a corporation that manufactured carbon black and permitted its smokestacks to spew an oily substance onto adjacent properties over a course of years with notice but without effectively remedying the problem evinced a specific intent to cause harm, overcoming the punitive damage cap in O.C.G.A. § 51-12-5.1(f) and (g). Action Marine, Inc. v. Cont'l Carbon, Inc., 481 F.3d 1302 (11th Cir. 2007).
In a "road rage" suit against a carrier involving an assault by a truck driver, limited punitive damages under O.C.G.A. § 51-12-5.1(b) were authorized against the carrier. A finding of conscious indifference was supported by evidence that the carrier violated federal regulations by not obtaining an address history for the driver, that the carrier knew the driver had been fired from the driver's last job after an accident, that the carrier knew that the driver had not disclosed numerous driving citations, and that the carrier had not investigated any of the infractions. Aldworth Co. v. England, 286 Ga. App. 1, 648 S.E.2d 198 (2007).
Evidence supported an award of punitive damages under O.C.G.A. § 51-12-5.1(b) as it was undisputed that a developer trespassed on an owner's property, causing a continuing nuisance of run-off and erosion, that the developer knew of the problems the developer created, and that the developer showed a conscious indifference as the developer made no attempt to correct the problems. Wildcat Cliffs Builders, LLC v. Hagwood, 292 Ga. App. 244, 663 S.E.2d 818 (2008).
Damages properly denied; lack of clear and convincing evidence.
- The trial court did not err in granting j.n.o.v. to the defense on the issue of punitive damages in an action arising from an incident in which a portion of needle broke off during a tonsillectomy and a portion of the needle lodged in a child's tonsil fossa since testimony by the child's mother that a nurse stated that the needle remaining in the child's throat was "microscopic" in size and that this occurrence was common was not clear and convincing, given that it was contradicted by the testimony of the nurse and the physician, as well as the physician's notes of the conversation. Kodadek v. Lieberman, 247 Ga. App. 606, 545 S.E.2d 25 (2001).
Employers or principals may be vicariously liable for punitive damages arising from the acts or omissions of their employees or agents if such tortious conduct is committed in the course of the employer's or principal's business, within the scope of the servant's or agent's employment, and is sufficient to authorize a recovery of punitive damages under O.C.G.A. § 51-12-5.1. Fowler v. Smith, 237 Ga. App. 841, 516 S.E.2d 845 (1999).
Evidence of employee's conviction could not be presented.
- When an employer was liable under respondeat superior for the tort of its employee and punitive damages were sought, the employer had no right to present as mitigative evidence the conviction of its employee; a corporation had no right to present evidence of the conviction and fine of its employee who allegedly assaulted one of the corporation's customers. May v. Crane Bros., Inc., 276 Ga. 280, 576 S.E.2d 286 (2003).
RICO violation demonstrates "intent to cause harm."
- Evidence sufficient to show a racketeer influenced and corrupt organization (RICO) violation necessarily also demonstrates the "intent to cause harm" that removes the cap to a punitive damage award. Speir v. Krieger, 235 Ga. App. 392, 509 S.E.2d 684 (1998).
Punitive damages based on intentional fraud uncapped.
- Because a finding of specific "intent to cause harm" is inherent in the essential elements of an intent to defraud consumers, a punitive damage award based upon intentional fraud was not subject to the $250,000 cap of subsection (g) of O.C.G.A. § 51-12-5.1. Speir v. Krieger, 235 Ga. App. 392, 509 S.E.2d 684 (1998).
Fraud.
- The nature of fraud is such that it includes within its elements the intent to commit harm to the victim under O.C.G.A. § 51-12-5.1(f), justifying punitive damages. Kent v. A.O. White, Jr., Consulting Eng'rs, P.C., 253 Ga. App. 492, 559 S.E.2d 731 (2002), overruled in part, Time Warner Entm't Co. v. Six Flags Over Ga., L.L.C., 254 Ga. App. 598, 563 S.E.2d 178 (2002), cert. denied, 538 U.S. 977, 123 S. Ct. 1783, 155 L. Ed. 2d 665 (2003).
A trial court erred in granting summary judgment to an auto dealership in a purchaser's suit asserting fraud and violations of Georgia's Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., with regard to the purchase of a vehicle as genuine issues of material fact existed as to each element, including whether the purchaser was entitled to punitive damages under O.C.G.A. § 51-12-5.1(b) for the fraud. Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 663 S.E.2d 779 (2008).
Personal representative's wrongful conveyance of the estate's primary asset, a house, to the personal representative was both a breach of fiduciary duty and fraud, entitling the beneficiary to punitive damages under O.C.G.A. § 51-12-5.1(b). In re Estate of Zeigler, 295 Ga. App. 156, 671 S.E.2d 218 (2008).
Insurance fraud.- When the court found that a Chapter 7 debtor, as owner of an insured, knowingly and intentionally submitted fraudulent claims to the insurer in the amount of $7,761, the insurer was entitled to punitive damages in the amount of $25,000, payment of which would affect the insurer's lifestyle, yet the debtor should have a realistic chance of paying the amount over time. Cincinnati Ins. Co. v. Porter (In re Porter), Bankr. (Bankr. N.D. Ga. May 23, 2007).
Uncapped punitive damages recoverable.- See Anderson v. Radisson Hotel Corp., 834 F. Supp. 1364 (S.D. Ga. 1993).
Financial resources of defendant.
- Plaintiff was not entitled to discover information concerning the defendant's personal financial resources absent an evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for the plaintiff's punitive damage claim. Holman v. Burgess, 199 Ga. App. 61, 404 S.E.2d 144, cert. denied, 199 Ga. App. 906, 404 S.E.2d 144 (1991).
The clear language of O.C.G.A. § 51-12-5.1 indicates that the financial circumstances of a defendant are relevant to the issue of damages. Palmquist v. Piper Aircraft Corp., 757 F. Supp. 1411 (N.D. Ga. 1991).
For purposes of determining the amount of punitive damages, the trial court did not err in excluding evidence of the defendant's insurance policy that the plaintiff sought to introduce because the evidence was substantially prejudicial and, out of fairness to the plaintiff, the trial court also prevented the defendant from introducing evidence of the defendant's financial condition. Dagne v. Schroeder, 336 Ga. App. 36, 783 S.E.2d 426 (2016).
Dischargeability in bankruptcy.- Punitive damages can be excepted from discharge in bankruptcy, when the defendant's actions were intentional or deliberate, and were wrongful and without just cause or excessive. Fincher v. Holt, 173 Bankr. 806 (Bankr. M.D. Ga. 1994).
After a state court awarded a creditor punitive damages in the creditor's suit against the debtors for actions that showed "willful misconduct, malice, fraud, wantonness, oppression, or entire want of care," then even assuming arguendo that a finding that the debtors acted with an "entire want of care" would satisfy 11 U.S.C. § 523(a)(6), because the state court did not identify on which of the six disjunctive parts of O.C.G.A. § 51-12-5.1(b), or combinations thereof, that the court based the court's decision; thus, a bankruptcy court could not determine as a matter of law that the state court judgment satisfied the requirements of 11 U.S.C. § 523(a)(6). Jefferson v. Hedd-Williams (In re Hedd-Williams), Bankr. (Bankr. N.D. Ga. Mar. 30, 2011).
Although a state court awarded punitive damages in a default judgment in favor of a creditor, the court's basis for the award was too vague and ambiguous to warrant a preclusive finding in a nondischargeability proceeding against the debtor as Georgia law contemplated an award of punitive damages for fraud but also permitted punitive damages in circumstances that did not rise to the level that would render the debt nondischargeable. Hit-Em-Hard Corp. v. Lewis (In re Lewis), Bankr. (Bankr. N.D. Ga. Apr. 10, 2016).
Denial in bankruptcy non-dischargeability matter.- Although bankruptcy court found the debtor civilly liable to a corporation for conversion and breach of fiduciary duty and to a shareholder for fraud, the court declined to award punitive damages under Georgia law, as finding the debt non-dischargeable was a significant deterrent in and of itself. The shareholder was entitled to an award of attorney's fees because the debtor acted in bad faith with respect to the debtor and caused the debtor unnecessary trouble and expenses, but the corporation was not awarded fees, as it failed on a substantial amount of its damage claims, and its claims were significantly overstated, which extended the litigation and thwarted any efforts at resolution that the debtor attempted. Hot Shot Kids Inc. v. Pervis (In re Pervis), 512 Bankr. 348 (Bankr. N.D. Ga. 2014).
Creditor who loaned 503,170 Euros to a debtor before the debtor moved to the United States and declared Chapter 7 bankruptcy proved that the debtor was ineligible under 11 U.S.C. § 727 to have the debt discharged because the debtor made a false oath in conjunction with the bankruptcy case by testifying falsely that the debtor did not sign an Acknowledgement of Debt the creditor offered as evidence of the debt; however, the creditor was not entitled to punitive damages under O.C.G.A. § 51-12-5.1 or an award of attorney's fees and costs under O.C.G.A. § 13-6-11 because those statutes did not apply in an adversary proceeding filed pursuant to 11 U.S.C. § 727. Locci v. Siewe (In re Siewe), Bankr. (Bankr. N.D. Ga. June 13, 2017).
Punitive damage award upheld for breach of non-compete agreement although only nominal damages awarded.
- Although only nominal damages were awarded to a secured seller of an adult novelty business when the buyer defaulted and proceeded to open the buyer's own competing business in violation of the parties' non-compete agreement, an award of $50,000 punitive damages was not excessive given the intentional nature of the buyer's conduct, the buyer's conversion of the business's social media accounts, and the buyer's failure to turn over cash collateral in violation of a bankruptcy court order. Bearoff v. Craton, 350 Ga. App. 826, 830 S.E.2d 362 (2019).
Proportionality of damages.
- An award of punitive damages for intentional tortious conduct approximately only three times greater than the combined amount of direct damages and attorney fees when the plaintiff incurred the trauma and expense of litigation, including the incurring of a substantial charge for attorney fees, was not disproportionate. Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 436 S.E.2d 14 (1993).
Denial of directed verdict on issue of punitive damages erroneous.
- When there was evidence from the plaintiff that the plaintiff repeatedly pled with defendant's employees not to destroy the plaintiff's truck and that the employees proceeded to exercise little or no care to preserve the plaintiff's trailer during the employees' attempt to retrieve a forklift from the trailer, and the defendant put forth evidence that it operated its equipment in a normal manner and made a reasonable attempt to free the forklift from the trailer, the jury could have determined the plaintiff's testimony established by clear and convincing evidence that the defendant showed an entire want of care of the plaintiff's trailer and raised a presumption that the defendant was consciously indifferent to the consequences. Georgia Kraft Co. v. Faust, 200 Ga. App. 686, 409 S.E.2d 247 (1991).
Severance of issues.
- In an action against a physician for medical malpractice, fraud, and loss of consortium, the trial court did not abuse the court's discretion in severing the issue of professional negligence from the trial of issues of liability for and amount of punitive damages. Hanie v. Barnett, 213 Ga. App. 158, 444 S.E.2d 336 (1994).
Applicable to electric membership corporation.
- There is no public policy interest that would prevent the application of O.C.G.A. § 51-12-5.1 to an electric membership corporation. Walton Elec. Membership Corp. v. Snyder, 270 Ga. 62, 508 S.E.2d 167 (1998).
Action against hospital authority.
- It is against Georgia public policy to allow an award of punitive damages in a medical malpractice action against a hospital authority created as a governmental entity under the Hospital Authorities Act, O.C.G.A. § 31-7-70 et seq. Hospital Auth. v. Martin, 210 Ga. App. 893, 438 S.E.2d 103 (1993), aff'd, 264 Ga. 626, 449 S.E.2d 827 (1994).
Not allowed for breach of contract.
- Punitive damages are not available in actions for breach of contract. Trust Co. Bank v. Citizens & S. Trust Co., 260 Ga. 124, 390 S.E.2d 589 (1990).
Because a general contractor's action involved only contract claims, the contractor could not claim relief in the form of punitive damages under O.C.G.A. § 51-12-5.1. Apac-Southeast, Inc. v. Coastal Caisson Corp., 514 F. Supp. 2d 1373 (N.D. Ga. 2007).
Liability of power corporation.
- Power corporation failed to show that it was a public service corporation and, accordingly, shielded from liability for punitive damages as a matter of law; an electrical membership, under the Georgia Electric Membership Corporation Act, O.C.G.A. § 46-3-170 et seq., is vested with the power to sue and be sued and is provided with no express statutory immunity from liability for punitive damages. Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 436 S.E.2d 14 (1993).
Punitive damages are available in an action against a public utility corporation when there exists clear and convincing evidence from which a jury could find that the company's actions in committing the intentional tort showed one or more of the criteria for the award of punitive damages as stated in subsection (b) of O.C.G.A. § 51-12-5.1, particularly that entire want of care which would raise the presumption of conscious indifference to consequences. Rossee Oil Co. v. BellSouth Telecommunications, Inc., 212 Ga. App. 235, 441 S.E.2d 464 (1994).
A traffic violation, without more, simply does not rise to the level of wilfully illegal behavior contemplated by O.C.G.A. § 51-12-5.1. Lewis v. Suttles Truck Leasing, Inc., 869 F. Supp. 947 (S.D. Ga. 1994).
Failure to warn of obstruction in roadway.
- Allegations that a corporation's employees had negligently, recklessly, wantonly, and with a conscious disregard for the consequences failed to warn a driver of an obstruction in the roadway that the employees had created, which were admitted by the corporation through its default, were sufficient to support punitive damages under O.C.G.A. § 51-12-5.1. COMCAST Corp. v. Warren, 286 Ga. App. 835, 650 S.E.2d 307 (2007), cert. denied, 2008 Ga. LEXIS 82 (Ga. 2008).
Uninsured motorist insurer not liable for punitive damages.
- In an action against a tortfeasor's estate defended by the tortfeasor's uninsured motorist insurer, evidence of the tortfeasor's intoxication was admissible as relevant to the issues of causation and damages, even though punitive damages could not be sought against the insurer. Shelter Mut. Ins. Co. v. Bryant, 220 Ga. App. 526, 469 S.E.2d 792 (1996).
In a personal injury action arising from an automobile accident, the trial court did not abuse the court's discretion when it prohibited evidence of the defendant's prior conviction for drunk driving during the liability phase of a bifurcated trial, or when it refused to separate the issue of liability for punitive damages from the issue of compensatory damages. Webster v. Boyett, 269 Ga. 191, 496 S.E.2d 459 (1998), reversing Boyett v. Webster, 224 Ga. App. 843, 482 S.E.2d 377 (1997).
Talking on cell phone while driving.
- Trial court erred in denying an employee driver's and the employer's motion for summary judgment on the issue of punitive damages because the employee was traveling approximately 48 - 51 miles per hour in a 45 miles per hour zone while talking on the employee's cell phone; this was insufficient under O.C.G.A. § 51-12-5.1(b). Archer Forestry, LLC v. Dolatowski, 331 Ga. App. 676, 771 S.E.2d 378 (2015).
Trial court did not err in denying the defendant's motion for directed verdict and judgment notwithstanding the verdict on punitive damages because, although the jury concluded that the defendant was not driving under the influence at the time of the collision, there were other grounds on which the jury could have awarded punitive damages as the trial court ruled that the defendant's erratic driving raised a jury question as to whether the defendant's actions showed wilful misconduct, malice, wantonness, or an entire want of care so as to raise a presumption of conscious indifference to the consequences. Dagne v. Schroeder, 336 Ga. App. 36, 783 S.E.2d 426 (2016).
Given uncontroverted evidence that a teen driver was not using the driver's cell phone at the time of the accident, the driver's earlier conduct of texting and talking on the driver's phone was not the proximate cause of the driver accidentally striking a pedestrian and the pedestrian's dog, and punitive damages were not available. Head v. de Souse, 353 Ga. App. 309, 836 S.E.2d 227 (2019).
In automobile collision cases, punitive damages may be awarded when it is proven by clear and convincing evidence that the defendant's act or omissions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to the consequences. Fowler v. Smith, 237 Ga. App. 841, 516 S.E.2d 845 (1999).
After the driver of the defendant company's truck was involved in an accident, the defendants' motion for summary judgment was improperly denied because the plaintiffs could not recover punitive damages against the defendant individual with an ownership interest in the company as the only active tortfeasor in the case was the driver. Corrugated Replacements, Inc. v. Johnson, 340 Ga. App. 364, 797 S.E.2d 238 (2017).
Punitive damages against automobile insurer.
- Evidence that an insurer took the claimant's vehicle without the claimant's permission, demanded storage fees after wrongfully taking the vehicle from a location that was not charging storage, and the callous disregard of the claimant's rights as shown by an adjuster's letters and deposition testimony, was sufficient to present a jury question regarding punitive damages. Jerrell v. Classic Ins. Co., 246 Ga. App. 565, 541 S.E.2d 53 (2000).
Punitive damages of $1 million not excessive.
- After a truck driver punched the plaintiff in the face during a road rage incident and the employer, by defaulting, admitted acting recklessly in allowing the truck driver to drive, a punitive damages award of $1 million, or 1.3 times compensatory damages, was not so excessive as to deny the employer due process; therefore, the employer was not entitled to a new trial. Aldworth Co. v. England, 276 Ga. App. 31, 622 S.E.2d 367 (2005), aff'd in part and rev'd in part, 281 Ga. 197, 637 S.E.2d 198, 2006 Ga. LEXIS 883 (2006).
Drunk driving supporting punitive damages.
- Evidence that the defendant had a high level of intoxication only a short time after the collision gave rise to the reasonable inference that the defendant was also intoxicated at the time of the collision and, coupled with a past history of drinking and D.U.I., gave rise to the reasonable inference that the defendant had been drinking and driving when the collision occurred and that the defendant sought to conceal such conduct by flight; thus, driving under the influence was an aggravated conduct supporting punitive damages. Langlois v. Wolford, 246 Ga. App. 209, 539 S.E.2d 565 (2000).
Driving without license alone did not support punitive damages.
- Trial court properly granted summary judgment for a motorist on an injured person's claim for punitive damages sought on the sole ground that the motorist was knowingly driving without a valid driver's license at the time of the accident; driving without a license was not the proximate cause of the accident and there was no pattern or policy of dangerous driving. Doctoroff v. Perez, 273 Ga. App. 560, 615 S.E.2d 623 (2005).
Employer not vicariously liable for punitive damages when employee drunk.
- In a negligence action, a truck driver's employer could not be vicariously liable for punitive damages under O.C.G.A. § 51-12-5.1(f) as the truck driver acted under the influence of alcohol when the truck driver was involved in a collision with an automobile driver. Am. Material Servs. v. Giddens, 296 Ga. App. 643, 675 S.E.2d 540 (2009).
No punitive damages against server of alcohol.
- Punitive damages are not authorized against a server of alcohol under O.C.G.A. § 51-12-5.1(f). O.C.G.A. § 51-12-5.1(f) provides that if the defendant acted or failed to act while under the influence of alcohol, there shall be no limitation regarding the amount which may be awarded as punitive damages against such an active tortfeasor; however, such damages shall not be the liability of any defendant other than an active tortfeasor; that is the defendant acting under the influence of alcohol. Capp v. Carlito's Mexican Bar & Grill #1, Inc., 288 Ga. App. 779, 655 S.E.2d 232 (2007), cert. denied, 2008 Ga. LEXIS 317 (Ga. 2008).
Arbitrator did not exceed authority by awarding punitive damages based on findings that the defendants violated express terms of a security agreement expressly prohibiting the sale, transfer, or disposal of the collateral without the prior written consent of the plaintiff. Faiyaz v. Dicus, 245 Ga. App. 55, 537 S.E.2d 203 (2000).
Reduction of award to authorized maximum.
- Trial court correctly reduced an award to the maximum authorized by O.C.G.A. § 51-12-5.1(g) after a party failed to fulfill the requirements of the bright line rule requiring both a charge on specific intent to cause harm and a separate finding of specific intent to cause harm by the trier of fact. Scott v. Battle, 249 Ga. App. 618, 548 S.E.2d 124 (2001).
Tortfeasor should not profit from wrongdoer.
- Trial court did not abuse the court's discretion in refusing to overrule the jury's award of punitive damages in its entirety since the award achieved the legitimate goal of depriving the tortfeasor of the wrongdoer's profitability. Scott v. Battle, 249 Ga. App. 618, 548 S.E.2d 124 (2001).
Breach of fiduciary duty and conversion claims.
- In a beneficiary's suit against a trust's attorneys and trustee, the trial court erred in finding that attorney's fees under O.C.G.A. § 13-6-11 and punitive damages under O.C.G.A. § 51-12-5.1(b) were not available because the beneficiary's claims for breach of fiduciary duty, conversion, and wrongful eviction should have remained in the case. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014).
Trusts.
- In a breach of trust action, the trial court erred in denying the defendant brothers' motion to reduce damages with respect to the punitive damage award because the jury specifically found that the brothers did not act with the specific intent to cause harm to the sister; the judgment could be affirmed only on the condition that the sister agreed to strike therefrom the award of punitive damages in excess of $250,000. Sims v. Heath, 258 Ga. App. 681, 577 S.E.2d 789 (2002), overruled on other grounds by Rockdale Hospital, LLC v. Evans, 306 Ga. 847, 834 S.E.2d 77 (2019)(Unpublished).
In a trust beneficiary's claim against a co-trustee and attorneys for the trust for breach of fiduciary duty, conversion, and wrongful eviction and trespass, because issues of fact remained as to those claims, the beneficiary's claims for bad faith expenses of litigation and punitive damages were not subject to summary judgment. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014).
Willful, wrongful conversion of property.
- Award of $50,000 in punitive damages for a lessee's willful conversion of a leased trailer was not excessive since clear and convincing evidence showed the lessee's willful misconduct in refusing to return the trailer, concealing it, and misrepresenting its location to the lessor. Lawrence v. Direct Mortg. Lenders Corp., 254 Ga. App. 672, 563 S.E.2d 533 (2002).
Building in violation of ordinance resulting in nuisance.
- When the evidence showed that a homebuilder, with willful misconduct and indifference to the consequences, built a house too close to a homeowner's home, in violation of zoning laws, the evidence supported the jury's finding of a nuisance and the award of punitive damages. Segars v. Cleland, 255 Ga. App. 293, 564 S.E.2d 874 (2002).
Apartment owners.
- In a wrongful death action against an apartment complex based on the strangulation of a tenant by a maintenance worker, a directed verdict on the issue of punitive damages was properly denied because there was sufficient clear and convincing evidence to create a jury issue on whether the complex displayed a conscious indifference to the possibility that an under-investigated employee was involved in a series of crimes that could foreseeably lead to violent results for one of its tenants. TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456, 590 S.E.2d 807 (2003).
Punitive damages awarded in trespass case.
- Jury was entitled to award a property owner compensatory and punitive damages pursuant to O.C.G.A. §§ 51-9-3 and51-12-5.1 because a willful trespass occurred when a neighbor directed the construction of a sewer lateral across the owner's property to tie into the owner's sewer line when the neighbor knew that the neighbor had neither a written easement nor permission from the owner to do so. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85 (2010).
Punitive damages denied in trespass case.
- LLC that declared Chapter 11 bankruptcy committed trespass in violation of O.C.G.A. § 51-9-10 when the LLC interfered with a pilot's right to use an airport the LLC owned after the LLC gave the pilot permission to do so, but the pilot's right was limited to use of the taxiways and runway and the pilot violated O.C.G.A. § 51-9-10 by entering the airport for other purposes after being told not to do so; although the court awarded the LLC $100 for the pilot's trespass and the pilot $600 for the LLC's trespass, neither party showed that the opposing party committed a private nuisance in violation of Georgia law, and the court refused to award punitive damages under O.C.G.A. § 51-12-5.1 or attorney's fees under O.C.G.A. § 13-6-11 to either party. Flyboy Aviation Props., LLC v. Franck (In re Flyboy Aviation Props., LLC), 525 Bankr. 510 (Bankr. N.D. Ga. 2015).
Outdoor fireplace and resultant smoke raises issues of punitive damages.
- Trial court erred by granting neighbors' motion for summary judgment in property owners' action to recover damages arising from smoke emanating from the neighbors' outdoor fireplace because there was some evidence of acts by the neighbors that could allow a jury to consider a claim for punitive damages; the neighbors continued to use the fireplace after the owners notified the neighbors that the fireplace caused smoke to enter the owners' home, resulting in physical discomfort to the owners and interfering with the owners' use and enjoyment of the owners' home. Weller v. Blake, 315 Ga. App. 214, 726 S.E.2d 698 (2012).
Legal malpractice.
- Trial court properly awarded partial summary judgment to an attorney because the damages flowing from the client's separate claim that the attorney fraudulently misrepresented the attorney's expertise or experience to induce employment were no different from the damages flowing from the client's claim of alleged legal malpractice against the attorney. Therefore, even if there had been evidence to support the allegation of fraud, there would have been no separate cause of action for fraud apart from the malpractice claim, but simply a claim for the award of punitive damages based on fraud as an aggravating circumstance in the malpractice claim. Griffin v. Fowler, 260 Ga. App. 443, 579 S.E.2d 848 (2003).
When the plaintiff patient sued the defendant manufacturer of a surgically implanted medical device alleging design defects, breach of warranty, failure to warn of risks, and breach of contracts to pay for surgeries, the manufacturer's motion for summary judgment on the issue of the patient's ability to recover punitive damages under O.C.G.A. § 51-12-5.1 was denied because the patient testified that the manufacturer's misrepresentations that it would pay for the third surgery induced the patient to undergo additional surgery, and relying on the representations, the patient incurred additional medical expenses that the manufacturer refused to pay, which exposed the patient to financial ruin. Trickett v. Advanced Neuromodulation Sys., 542 F. Supp. 2d 1338 (S.D. Ga. 2008).
Trial court did not err in awarding summary judgment to an attorney and a law firm in a former client's legal malpractice action seeking punitive damages because there was no evidence from which a jury could properly conclude that an award of punitive damages was warranted; although the client pointed to evidence that the attorney could have breached the standard of care, that evidence did not show anything more than, at worst, gross negligence. Duncan v. Klein, 313 Ga. App. 15, 720 S.E.2d 341 (2011).
Financial records of law firm against which punitive damages sought.
- When the trial court determined that jury issues remained as to a claim for punitive damages against a law firm, the trial court abused the court's discretion in denying production of any of the law firm's financial records until after the jury rendered the jury's verdict. Smith v. Morris, Manning & Martin, LLP, 293 Ga. App. 153, 666 S.E.2d 683 (2008).
Insurer not obligated to defend its insured in action requesting punitive damages.
- When an amended complaint sought punitive damages, describing acts and omissions as willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences and their effects, an insurer was not obligated to defend its insured in such action. Ga. Farm Bureau Mut. Ins. Co. v. Hall County, 262 Ga. App. 810, 586 S.E.2d 715 (2003).
Punitive damages proper against real estate broker.
- When a business broker's client sought punitive damages against the broker for filing a lien against the client's business, which was based on a false document, sufficient evidence supported the jury's award of such damages, under O.C.G.A. § 51-12-5.1(b), as undisputed evidence showed the broker intentionally altered and then filed a sales agreement with a financing statement to falsely reflect that the broker was a party to the sales agreement. Bienert v. Dickerson, 276 Ga. App. 621, 624 S.E.2d 245 (2005).
Breach of fiduciary duty as executor of estate.
- Beneficiaries of a will sued the decedent's grandchild for conversion of stock the beneficiaries alleged was intended to be part of the decedent's estate; as the jury found the stock was not a gift, the jury necessarily found that the stock was entrusted to the grandchild as a purported co-executor. The grandchild's breach of fiduciary duty supported an award of punitive damages to the beneficiaries under O.C.G.A. § 51-12-5.1(b). Bunch v. Byington, 292 Ga. App. 497, 664 S.E.2d 842 (2008).
Punitive damages to make plaintiff whole improper.
- A customer sued a company for falsely reporting that the customer did not pay a bill, which damaged the customer's credit rating. As the trial court's written judgment contained no explicit findings that the company acted willfully, maliciously, or with conscious indifference - requirements for a punitive damage award under O.C.G.A. § 51-12-5.1(b) - and the trial court orally stated the court awarded punitive damages to make the customer whole, which was improper under § 51-12-5.1(c), that award could not stand. Infinite Energy, Inc. v. Cottrell, 295 Ga. App. 306, 671 S.E.2d 294 (2008).
Defamation and breach of fiduciary claims supported punitive damages.
- In a suit brought by a golf course development company against two other members of a limited liability company and a housing authority, the trial court erred by dismissing the golf course development company's claim for punitive damages since the company's additional claims of breach of fiduciary duty and defamation supported such damages, and the company alleged that the other two members of the limited liability company behaved maliciously, in bad faith, and with reckless disregard for the legality of their actions when those entities negotiated the golf course development out of the project. Perry Golf Course Dev., LLC v. Hous. Auth., 294 Ga. App. 387, 670 S.E.2d 171 (2008).
Malicious prosecution.
- A contractor using the threat of criminal prosecution in an attempt to pressure a property owner into paying a disputed bill, which resulted in the owner being arrested and jailed, supported an award of punitive damages under O.C.G.A. § 51-12-5.1(b). Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009).
Punitive damages improper in investor's summary judgment against corporation.
- Because a corporation, the corporation's chief executive officer, and the corporation's chief financial officer did not demonstrate that they were entitled to judgment as a matter of law on an inventor's claims for money had and received and for conversion, summary judgment dismissing the inventor's claims for punitive damages and litigation expenses based on those causes of action was improper. Fernandez v. WebSingularity, Inc., 299 Ga. App. 11, 681 S.E.2d 717 (2009).
Fact that a creditor won an award of punitive damages under O.C.G.A. § 51-12-5.1(f) afforded an insufficient basis for summary judgment on the creditor's claim that the obligation was nondischargeable in a Chapter 7 case because an "entire want of care," which was one possible basis for the judgment, was distinguishable from the "intent" or "willfulness" required to establish a right to nondischargeability under 11 U.S.C. § 523(a)(6). Terhune v. Houser (In re Houser), 458 Bankr. 771 (Bankr. N.D. Ga. 2011).
Punitive damages for tortuous interference with resale of equipment.
- Debtor established the debtor was entitled to damages for tortious interference with the debtor's resale of medical equipment from defendant manufacturers. Bad faith under O.C.G.A. § 13-6-11 required more than bad judgment or negligence, but the debtor established a dishonest purpose and a breach of a known duty under O.C.G.A. § 51-12-5.1(b). Bailey v. Hako-Med USA, Inc. (In re Bailey), Bankr. (Bankr. S.D. Ga. Nov. 16, 2010).
Medical clinic with pattern of unsanitary conditions.
- In a medical malpractice suit, the award of punitive damages to the plaintiffs was supported based on the evidence demonstrating that the clinic had a pattern of maintaining poor sanitary conditions and that the clinic failed to improve such conditions when presented with suggestions on how to do so, which was sufficient for the jury to have found, under the clear and convincing standard, that the defendants' negligence exhibited an entire want of care and a conscious indifference to consequences. Ga. Clinic, P.C. v. Stout, 323 Ga. App. 487, 747 S.E.2d 83 (2013).
Cell phone use.- After an employee collided with a vehicle while driving a tractor-trailer, the employee was not entitled to summary judgment on the punitive damages claim because, although the proper use of a cell phone while driving was permissible in Georgia, the court could not find as a matter of law that the plaintiffs could not prove aggravating circumstances that would warrant an award of punitive damages; whereas, the punitive damages claims against other defendants failed because the plaintiffs presented no evidence that these defendants actually knew about the nature of the employee's cell phone use. Little v. McClure, F. Supp. 2d (M.D. Ga. Aug. 29, 2014).
Procedure
Multiple causes of action.
- The trial court did not err in allowing a verdict for punitive damages under O.C.G.A. § 51-12-5.1 to be considered by the jury when an award was made under O.C.G.A. § 51-12-6 for a claim in which the entire injury was to the peace, happiness, or feelings of the plaintiff since a number of distinct tortious acts and causes of action were pled separately, and while the award theoretically could have been based entirely on a claim of injury to the peace and feelings of the plaintiff, it was equally possible that the jury awarded compensatory damages and punitive damages on one of the plaintiff's other claims or on a combination of claims. Alternative Health Care Sys. v. McCown, 237 Ga. App. 355, 514 S.E.2d 691 (1999).
Because the appeals court found that other intentional tort claims survived summary judgment which would authorize the imposition of punitive damages if the jury were to find that a retailer and its employees acted with a wanton disregard of a nine-year-old child's rights, the trial court did not err by denying summary judgment on these grounds. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).
Conflict with federal rule for pleading.
- Because O.C.G.A. § 51-12-5.1(d)(1) unavoidably conflicted with Fed. R. Civ. P. 54(c) on the procedural matter of whether the plaintiffs in a breach of contract suit that also alleged an independent tort, the unauthorized excavation and removal of dirt from another person's land, were required to plead punitive damages in the complaint, a federal district court sitting in diversity applied Rule 54(c) and held that punitive damages need not be specifically pled; therefore, the court denied the plaintiffs' motion to amend their complaint. Toler v. Engelhard Corp., F. Supp. 2d (M.D. Ga. Sept. 14, 2006).
Failure to object to absence of special interrogatory.
- The defendant's failure to object after the entry of judgment amounted to a waiver of the special interrogatory to the jury mandated by paragraph (d)(1) of O.C.G.A. § 51-12-5.1. Kopp v. First Bank, 235 Ga. App. 520, 509 S.E.2d 384 (1998).
Bifurcated trial.
- In an invasion of privacy case, even though the evidence was insufficient to support an award of punitive damages, the entire award (including general damages of $500,000) would not be vacated if the trial court held a bifurcated trial and the general damage award was identifiable and separable. Multimedia WMAZ, Inc. v. Kubach, 212 Ga. App. 707, 443 S.E.2d 491 (1994).
Trial court did not err in failing to bifurcate the proceeding as required by subsection (d) of O.C.G.A. § 51-12-5.1 after the defendant waived such an objection by acquiescing in the form of the verdict and failed to raise the issue at trial. Martin v. Williams, 215 Ga. App. 649, 451 S.E.2d 822 (1994).
In a suit brought by a biological father to recover one-half of the proceeds of a settlement of a wrongful death action arising out of the death of a son, which the father brought against that child's mother and others, the trial court abused the court's discretion in bifurcating the trial in the manner chosen since the trial court did not follow any of the procedures set forth in O.C.G.A. § 51-12-5.1, regarding punitive damages; secondly, the manner of bifurcation unfairly limited the father's right of cross-examination regarding post-death facts involving allegations by the father that the child's mother and the others took steps to conceal the recovery and to otherwise defraud the father. Bolden v. Ruppenthal, 286 Ga. App. 800, 650 S.E.2d 331 (2007), cert. denied, No. S07C1831, 2007 Ga. LEXIS 756 (Ga. 2007).
Severance required.
- Statute required that issues of the liability for punitive damages and the amount of punitive damages be severed; thus, the trial court did not abuse the court's discretion in severing those issues in the customer and spouse's case against the pharmacist and pharmacy for dispensing the wrong drug to the customer. Moresi v. Evans, 257 Ga. App. 670, 572 S.E.2d 327 (2002).
Seeking damages for injuried feelings and, alternatively, punitive damages.- Former employee was authorized in a renewal complaint to request, as part of the statutory abusive litigation claim, damages for injured feelings and, alternatively, punitive damages, even if the employee ultimately could not recover both types of damages. Coen v. Aptean, Inc., Ga. App. , S.E.2d (Aug. 25, 2020).
Absence of bad faith prevents punitive and attorney fees awards.
- Because the trial court's ruling that neither the insurance agent or company had a contract of insurance with the tree service company owner in effect on the date of the accident, no bad faith claim could be asserted against either defendant for failure to pay a claim arising from the accident; thus, the claims for punitive damages and attorney fees also failed since those claims were derivative of the underlying claims. Popham v. Landmark Am. Ins. Co., 340 Ga. App. 603, 798 S.E.2d 257 (2017).
Error to not allow closing argument in punitive damage phase.
- Trial court committed reversible error in refusing to allow counsel to present closing argument to the jury at the phase of the trial in which the amount of the punitive-damage award was adjudicated, since the right of the parties to be represented by counsel at all stages of a trial is a fundamental component of American jurisprudence. McClure v. Gower, 259 Ga. 678, 385 S.E.2d 271 (1989).
Error to allow defendant to make opening, closing arguments.
- After evidence was introduced during the initial phase of the trial in defense of the plaintiff's claim for punitive damages, the trial court erred in permitting the defendant to make the opening and concluding argument in the punitive damages phase of the trial. Combustion Chems., Inc. v. Spires, 209 Ga. App. 240, 433 S.E.2d 60 (1993).
Instruction that 75 percent of award paid to state was harmful error.
- Instructing the jury that the state would receive 75 percent of any punitive damages awarded created a substantial risk that the jury was improperly influenced by this consideration to adjust the jury's award of punitive damages in a manner which prejudiced the defendants; accordingly, the instruction was harmful error requiring reversal of the award of punitive damages. Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 461 S.E.2d 877 (1995), aff'd, 276 Ga. 226, 476 S.E.2d 565 (1996).
Standard of proof of specific intent to harm.
- Trial court did not err in instructing the jury that the jury was permitted to award unlimited damages if the jury found by a preponderance of the evidence that there was a specific intent to harm as the applicable statute did not mention a specific standard of proof and, thus, the common law burden of proof in cases involving punitive damages applied. Kothari v. Patel, 262 Ga. App. 168, 585 S.E.2d 97 (2003).
Trial court erred in awarding punitive damages in excess of $250,000 because the court's finding that the defendant intended to specifically harm the plaintiff was not supported by the record since the plaintiff did not exist at the time of the tortious actions and was created for the sole purpose of suing the defendants on the investors' behalf; thus, the defendants could not have specifically intended to harm the plaintiff. Ballistics Research, Inc. v. BRI Funding, LLC, 336 Ga. App. 77, 783 S.E.2d 678 (2016).
Instruction as to "clear and convincing evidence."
- It was not error for the trial court to refuse a requested instruction which would inform the jury only that "clear and convincing evidence" is a greater standard of proof than the preponderance of the evidence standard. Such an instruction would not properly characterize "clear and convincing evidence" as being an intermediate standard of proof and would leave the jury without any guidance as to the extent to which the "clear and convincing evidence" standard was greater than the preponderance of the evidence standard. Clarke v. Cotton Clarke Communications, Inc., 207 Ga. App. 883, 429 S.E.2d 291 (1993), aff'd, 263 Ga. 861, 440 S.E.2d 165 (1994).
The trial court erred in failing to define the clear and convincing evidence standard required for punitive damages in the court's charge to the jury. Clarke v. Cotton, 263 Ga. 861, 440 S.E.2d 165 (1994).
Because an owner and the owner's agent did not object to the trial court's failure to give a certain jury instruction, because their liability had already been established as a matter of law by way of their default, and because they failed to show harm resulting from the trial court's failure to define the clear and convincing evidence standard in O.C.G.A. § 51-12-5.1(b), they failed to preserved their claims on appeal in accordance with O.C.G.A. § 5-5-24(a). Waller v. Rymer, 293 Ga. App. 833, 668 S.E.2d 470 (2008).
"Clear and convincing" evidence instruction required.
- Even though sufficient evidence was presented to submit the question of punitive damages to the jury, the evidence was not overwhelming and the trial court erred in not providing the jury any guidance on the meaning of "clear and convincing" evidence. H & H Subs, Inc. v. Lim, 223 Ga. App. 656, 478 S.E.2d 632 (1996).
Instruction and finding on specific intent on conspiracy count.
- The trial court did not err in failing to limit the amount of the punitive damages award to $250,000 because the jury was specifically instructed that for the plaintiff to recover damages on a conspiracy count the plaintiff must demonstrate that the defendant acted with the specific intent to drive the plaintiff out of business and the jury's response on a special verdict form was tantamount to a finding that the defendant had acted with specific intent to cause harm to the plaintiff. Alta Anesthesia Assocs. of Ga., P.C. v. Gibbons, 245 Ga. App. 79, 537 S.E.2d 388 (2000).
Jury instructions on battery claim in error resulting in no punitive damages.- District court properly set aside a punitive damages award for an employee under a Georgia state law battery claim because, inter alia, compensatory or nominal damages had to be awarded before punitive damages could be awarded, and the employee invited error in the jury instructions since the employee did not object to the instructions as given with regard to damages for battery. Smith v. Metro. Sec. Servs., F.3d (11th Cir. Sept. 18, 2013)(Unpublished).
Punitive damage was jury issue.
- Trial court erred in withdrawing the issue of punitive damages from the jury as the defendant's actions were sufficient evidence of conscious indifference to authorize such an award. Whitaker Farms, LLC v. Fitzgerald Fruit Farms, LLC, 347 Ga. App. 381, 819 S.E.2d 666 (2018), cert. denied, No. S19C0294, 2019 Ga. LEXIS 429 (Ga. 2019), cert. denied, No. S19C0293, 2019 Ga. LEXIS 411 (Ga. 2019).
An award of punitive damages could not be affirmed after the trial court declined to follow the procedures and standards required by O.C.G.A. § 51-12-5.1, awarded punitive damages to a party who did not pray for them, and gave an outdated charge on punitive damages. Drug Emporium, Inc. v. Peaks, 227 Ga. App. 121, 488 S.E.2d 500 (1997).
In an employer's suit against a former employee for breach of fiduciary duty, and other claims, the jury's award of $650,000 in punitive damages could not be affirmed because there was no evidence in the record that the employer sought a charge on specific intent to cause harm or that the jury made a separate finding of specific intent to cause harm, and, as a result, the statutory cap of such an award to $250,000 could not be exceeded. Quay v. Heritage Fin., Inc., 274 Ga. App. 358, 617 S.E.2d 618 (2005).
Denial of punitive damages award erroneous.
- The trial court erred in concluding record did not warrant an award of punitive damages after the driver struck the defendant's vehicle twice and kept pushing the defendant down the road, causing the defendant's injury. Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 435 S.E.2d 54 (1993).
After the defendants constructed a drainage system, through a dry stream bed, which concentrated and directed water onto the plaintiff's property and they were on notice of a water discharge problem even before the stream bed was constructed, but never acted to abate it, this was sufficient evidence of "conscious indifference" to authorize a jury to award punitive damages and the trial court's grant of a motion for directed verdict on the issue of punitive damages was erroneous. Baumann v. Snider, 243 Ga. App. 526, 532 S.E.2d 468 (2000).
Nolo contendere plea as evidence.
- O.C.G.A. § 17-7-95 prohibits use of a prior plea of nolo contendere as evidence relevant to the issue of punitive damages. Holt v. Grinnell, 212 Ga. App. 520, 441 S.E.2d 874 (1994).
In an action for injuries arising from an automobile accident, after the defendant pled guilty to driving under the influence of alcohol, evidence that the defendant had twice previously committed the offense of DUI was admissible for the purpose of determining punitive damages as long as there was no reference to prior pleas of nolo contendere, or to the disposition of DUI charges resulting from such pleas. Holt v. Grinnell, 212 Ga. App. 520, 441 S.E.2d 874 (1994).
Prejudicial evidence not admissible.
- Even though evidence may have been relevant to the issue of punitive damages, the trial court did not abuse the court's discretion in excluding the evidence when its admission was potentially prejudicial. Goss v. Total Chipping, Inc., 220 Ga. App. 643, 469 S.E.2d 855 (1996).
Default judgment did not authorize punitive damages.
- A default judgment on the issue of liability was not sufficient to authorize an award of punitive damages because no evidence on liability for punitive damages was presented at the hearing on damages. Drug Emporium, Inc. v. Peaks, 227 Ga. App. 121, 488 S.E.2d 500 (1997).
Trial court erred in various ways.
- Trial court erred when the court denied a bank's motion for a new trial in a fraud case because the amount of damages awarded was excessive in that the evidence adduced at trial did not authorize the jury's award of $100,000 against the bank because the suing construction company alleged and proved only economic harm in an amount substantially less than that award, namely $9,400 via a materialman's lien, and renovation expenses in the amount of $23,000. Further, the jury's award of an additional $55,000 against the bank as punitive damages was erroneous since there was no charge on punitive damages, let alone proper guidance on the clear and convincing evidence required; the verdict form did not pose the question of punitive damages except by quotation of O.C.G.A. § 51-12-5.1(f), which required the jury to find specific intent to cause harm before the jury could award punitive damages in excess of $250,000; and the proceedings were not properly bifurcated. First Southern Bank v. C & F Servs., 290 Ga. App. 304, 659 S.E.2d 707 (2008).
Summary judgment.- Plaintiff failed to raise a material issue of fact as to the availability of punitive damages after the vehicle manufacturer complied with applicable federal regulations and the defendant believed it was complying with regulatory agencies' requirements. Welch v. GMC, 949 F. Supp. 843 (N.D. Ga. 1996).
In an action for contamination of property, insofar as the plaintiffs could prove that contamination laid down continued to migrate and was not abated by the defendant after notice, it was error to grant summary judgment on the issue of punitive damages. Smith v. Branch, 226 Ga. App. 626, 487 S.E.2d 35 (1997).
Since there was evidence of an intentional and complete absence of security measures taken to protect customers in a grocery store parking lot, the trial court erred in granting the store summary judgment on the plaintiff's claim for punitive damages. Carlock v. Kmart Corp., 227 Ga. App. 356, 489 S.E.2d 99 (1997).
After the plaintiff tenant was beaten, robbed, and raped in her apartment by an intruder, fact issues precluded summary judgment on her claim for punitive damages because a jury could conclude that the defendant apartment owner was not providing any security for its residents, even though it had knowledge of a prior attack on the plaintiff. Doe v. Briargate Apts., Inc., 227 Ga. App. 408, 489 S.E.2d 170 (1997).
Summary judgment was precluded on the issue of punitive damages in a consumer's action against the manufacturer of lemon-scented bleach when the manufacturer added the lemon scent to mask the noxious odor of the bleach, although it was aware of the dangers of adding the scent, which enhanced the danger of the product to consumers, from which a jury could infer a conscious disregard for the safety of others. Zeigler v. Clowhite Co., 234 Ga. App. 627, 507 S.E.2d 182 (1998).
Summary judgment was precluded because the failure to provide a real security patrol for an apartment complex and to have a fenced and gated access gave rise to a jury issue as to an entire want of care, which gave rise to a presumption of a conscious indifference to the consequences for tenants. FPI Atlanta, L.P. v. Seaton, 240 Ga. App. 880, 524 S.E.2d 524 (1999).
Summary judgment in favor of the defendants was erroneous after the plaintiffs presented evidence of excessive stormwater runoff and sediment deposit, flooding of their property, and pollution of their ponds directly from defendant developer's subdivision and that they repeatedly asked the developers to correct the problems. Tyler v. Lincoln, 272 Ga. 118, 527 S.E.2d 180 (2000).
Because there was no error in the trial court's grant of summary judgment on the plaintiff's breach of fiduciary duty claim, likewise, summary judgment on the plaintiff's punitive damages claim was appropriate because that claim was dependent upon the merits of the breach of fiduciary duty claim. Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 537 S.E.2d 670 (2000).
Evidence of circumstances of aggravation or outrage was sufficient to defeat a motion for summary judgment on punitive damages. Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 585 S.E.2d 643 (2003).
Absent a confidential relationship between a lienholder and a prospective buyer of a vehicle subject to a lien, and absent any duty on the lienholder to disclose any problems with the vehicle's title to the buyer, the lienholder was properly granted summary judgment on the buyer's negligence, fraudulent concealment, and derivative claim for punitive damages. Lilliston v. Regions Bank, 288 Ga. App. 241, 653 S.E.2d 306 (2007), cert. denied, 2008 Ga. LEXIS 275 (Ga. 2008).
In a negligence case in which the plaintiff was injured by dogs owned by the defendants when those dogs allegedly attacked the dog that the plaintiff was walking, partial summary judgment was improperly granted to the defendants as there was sufficient evidence for the issue of punitive damages to go to a jury because there was evidence from the defendants' neighbors that there had been a prior instance in which the defendants lost control of the dogs, which allowed the dogs to act aggressively and attack another dog, and a neighbor testified that the neighbor believed that it was only the neighbor's intervention that prevented an injury on that occasion; and it was for the jury to determine whether punitive damages were appropriate. Weinstein v. Holmes, 344 Ga. App. 391, 810 S.E.2d 320 (2018).
Copyright owner's claim for punitive damages for an unfair competition claim was not appropriate under O.C.G.A. § 51-12-5.1 because the record contained very little evidence of willful misconduct, malice, fraud, wantonness, oppression, or conscious indifference and further whether the customer's actions were willful, wanton, or malicious to sustain a claim for punitive damages was an issue for a jury and not for summary judgment. SCQuARE Int'l, Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347 (N.D. Ga. 2006).
Wrongful foreclosure.
- Fact questions regarding whether a mortgagee intended to cause harm when it initiated a foreclosure proceeding against mortgagors precluded summary judgment regarding whether any punitive damages that might be awarded to the mortgagors on their attempted wrongful foreclosure claim would be capped at $250,000 pursuant to O.C.G.A. § 51-12-5.1(g); the mortgagors alleged that the mortgagee acted with a conscious disregard of the consequences by initiating a foreclosure action even though the mortgagors' loan was not in default. Hauf v. HomEq Servicing Corp., F. Supp. 2d (M.D. Ga. Feb. 9, 2007).
Issue was one for jury to resolve.
- As claims survived upon reversal of a trial court's summary judgment rulings which authorized punitive damages in an unarmed visitor's multi-tort action, arising from having been shot by an off-duty police officer who was providing security services to the complex, the issue was properly one for the jury to resolve. Miller v. City Views at Rosa Burney Park GP, LLC, 323 Ga. App. 590, 746 S.E.2d 710 (2013).
In a case in which summary judgment and judgment on the pleadings was properly granted in favor of the buyer on the buyer's breach of contract, trespass to personal property, and conversion claims, the trial court erroneously granted judgment on the pleadings on the buyer's claim for punitive damages because the issue of punitive damages had to be decided by a jury or a court sitting as the trier of fact; and the trial court was not sitting as a trier of fact when the court ruled on the motion for judgment on the pleadings. Caldwell v. Church, 341 Ga. App. 852, 802 S.E.2d 835 (2017).
Default judgment case.
- Even if the trial court erred in awarding punitive damages in a default judgment case by not making a specific finding on a verdict form that punitive damages were authorized, the error was harmless; prior to awarding the punitive damages, the trial court conducted a separate hearing and received evidence on damages thereby satisfying statutory requirements. Hill v. Johnson, 210 Ga. App. 824, 437 S.E.2d 801 (1993).
In a medical malpractice case, when, because of default, a jury trial was held on the issue of damages only, including the issue of punitive damages, evidence of the doctor's conduct was both relevant and necessary to deter or punish that conduct. Daniel v. Causey, 220 Ga. App. 589, 469 S.E.2d 839 (1996).
Facts not warranting punitive damages.
- In action against seller in connection with repossession of a vehicle which was the subject of an installment contract, the buyer was not entitled to punitive damages when the buyer's account was past due for three months, no claim for outstanding payments had been made against the buyer's disability insurer, and there was no evidence that the seller behaved maliciously or with conscious indifference to the consequences of the repossession. Hillman v. GMAC, 210 Ga. App. 837, 437 S.E.2d 803 (1993).
In an action by an automobile dealership franchisee against the franchisor for wrongful termination of the franchise agreement, the issue of punitive damages should not have been submitted to the jury under O.C.G.A. § 51-12-5.1 inasmuch as the franchisor had not been charged with a tort. Moore v. American Suzuki Motor Corp., 211 Ga. App. 337, 439 S.E.2d 43 (1993).
In a product liability action against a tire manufacturer, even though evidence showed continuing manufacturing and quality control problems which were known to the manufacturer and which resulted in higher than normal belt/tread separation problems, there was no clear and convincing evidence that the manufacturer engaged in wilful conduct by which the manufacturer knowingly placed the plaintiffs or others in danger. Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 461 S.E.2d 877 (1995), aff'd, 276 Ga. 226, 476 S.E.2d 565 (1996).
When an auto insurer failed to notify the Division of Motor Vehicles that a stolen vehicle had been recovered prior to its sale to a salvage company and a purchaser of the vehicle was later arrested while operating the vehicle and spent approximately eight hours in jail, the facts did not justify an award of punitive damages. Georgia Farm Bureau Mut. Ins. Co. v. Miller, 222 Ga. App. 95, 473 S.E.2d 189 (1996).
Punitive damages were not recoverable in the absence of evidence that a motor vehicle collision resulted from a pattern or policy of dangerous driving on the part of the defendant. Carter v. Spells, 229 Ga. App. 441, 494 S.E.2d 279 (1997).
In an action for negligence resulting in an automobile collision causing injuries, the trial court did not err in granting the defendant's motion for partial summary judgment on the issue of punitive damages since there was no evidence that the defendant caused the collision through a "pattern or policy of dangerous driving." Miller v. Crumbley, 249 Ga. App. 403, 548 S.E.2d 657 (2001).
After the plaintiff was arrested outside the police department where the plaintiff's spouse worked, the district court dismissed all of the plaintiff's state law claims for malicious arrest, malicious prosecution, and false imprisonment; therefore, the plaintiff's Georgia law claims for punitive damages and attorney's fees failed as a matter of law. Perkins v. Thrasher, 701 Fed. Appx. 887 (11th Cir. 2017)(Unpublished).
Evidence of failure to comply with fire safety standards.
- The rules and regulations of the Fire Safety Commissioner, having the force and effect of law, were applicable to the landlord of an apartment building, and the landlord's failure to comply with mandatory safety provisions of a fire or building exit code provided a clear and convincing evidentiary basis for an award of punitive damages. Windermere v. Bettes, 211 Ga. App. 177, 438 S.E.2d 406 (1993).
Review of evidence presented during punitive damages phase.
- O.C.G.A. § 51-12-5.1 vests trial courts with discretion to control the litigants' presentation of evidence during the punitive damages phase of a trial in the same manner that evidentiary matters are regulated generally; thus, the decisions regarding such evidence would be reviewed only for an abuse of discretion. Softball Country Club - Atlanta v. Decatur Fed. Sav. & Loan Ass'n, 121 F.3d 649 (11th Cir. 1997).
Punitive damages claim required to be submitted to the jury.
- Trial court erred in ruling that a camp's punitive damages issue could not be presented to the jury because the evidence presented a material question as to whether a marina's trespass and nuisance onto the camp's property was knowing, willful, and a conscious indifference to the property rights of the camp; thus, the issue regarding the camp's claim for punitive damages was required to be submitted to the jury. Camp Cherokee, Inc. v. Marina Lane, LLC, 316 Ga. App. 366, 729 S.E.2d 510 (2012).
In a boundary line dispute, the trial court improperly granted the defendant's motion for summary judgment as to the plaintiff's punitive damages claim as there were genuine issues of material facts as to the plaintiff's claims of trespass and nuisance because a jury question remained as to the boundary line and pointed to evidence showing that there was water runoff onto the plaintiff's property and that construction materials and debris had repeatedly been discharged onto the plaintiff's property causing damages; and just as there were material questions of fact regarding the allegations of repeated trespass and continuing nuisance, the evidence of such acts by the defendant allowed the jury to consider a claim for punitive damages. McDonald v. Silver Hill Homes, LLC, 343 Ga. App. 194, 806 S.E.2d 651 (2017).
Failure of court to make specific findings not reversible error.
- Trial court's failure to make a specific finding through a special verdict form that punitive damages were awardable was not reversible error since the court set forth findings of fact and conclusions of law making it clear that the court deemed the defendant's actions constituted willful and malicious misconduct and the defendant failed to show any harm due to the deviation from the special verdict form. Wal-Mart Stores, Inc. v. Forkner, 221 Ga. App. 209, 471 S.E.2d 30 (1996).
Evidence relating to attorneys' fees and litigation expenses should have been excluded during the punitive damages phase of the trial. H & H Subs, Inc. v. Lim, 223 Ga. App. 656, 478 S.E.2d 632 (1996).
Injured party failed to show that the injured party was justified in seeking punitive damages or attorney fees from a welder based on a difficult welding job because the case did not involve special circumstances of aggravation or outrage; further, the injured party failed to show that there was information that led the injured party to believe that the injured party was entitled to punitive damages or attorney fees. Trotter v. Summerour, 273 Ga. App. 263, 614 S.E.2d 887 (2005).
Res judicata.
- Punitive damages served a public interest and were intended to protect the general public, and when the state sought punitive damages in a prior suit it did so as parens patriae, representing the interests of all Georgia citizens, including an administrator of a decedent's estate; the state and the administrator were privies in that prior case, and, pursuant to res judicata, a release executed as part of a settlement of that prior case barred punitive damages in a later case brought by the administrator alleging the same products liability theory. Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 627 S.E.2d 549 (2006).
Punitive damages even if breach of contract also present.- Whether the conversion was deemed to have occurred in Georgia (where the engines were built down) or, more plausibly, in Minnesota (where they were attached to the airframes), the jury, if the jury found the defendant's actions sufficiently willful and malicious, may award punitive damages; punitive damages were awarded because of tortious conduct, not because a plaintiff sustained a particular injury, and such an award was not precluded merely because a breach of contract was present. First Sec. Bank, N.A. v. Northwest Airlines, Inc., F. Supp. 2d (D. Mass. Jan. 3, 2001).
Jury, not judge, must determine both whether and in what amount to award punitive damages.
- Tenant whose former landlord cashed a check for property taxes that the tenant mailed to the landlord by mistake was entitled to summary judgment on a claim for conversion and bad faith attorney's fees under O.C.G.A. § 13-6-11; however, under O.C.G.A. § 51-12-5.1(d), the question of whether punitive damages should be awarded and the amount thereof was for a jury. Covington Square Assocs., LLC v. Ingles Mkts., Inc., 300 Ga. App. 740, 686 S.E.2d 359 (2009), aff'd in part and rev'd in part, 287 Ga. 445, 696 S.E.2d 649 (2010).
RESEARCH REFERENCES
Am. Jur. 2d.
- 22 Am. Jur. 2d, Damages, §§ 556 et seq, 747 et seq.
C.J.S.- 25A C.J.S., Damages, § 221 et seq.
ALR.- Liability of successor corporation for punitive damages for injury caused by predecessor's product, 55 A.L.R.4th 166.
Credit life insurer's punitive damage liability for refusing payment, 55 A.L.R.4th 246.
Punitive damages: power of equity court to award, 58 A.L.R.4th 844.
Standard of proof as to conduct underlying punitive damage awards - modern status, 58 A.L.R.4th 878.
Measure and elements of damages for pollution of well or spring, 76 A.L.R.4th 629.
Punitive damages: relationship to defendant's wealth as factor in determining propriety of award, 87 A.L.R.4th 141.
Plaintiff's rights to punitive or multiple damages when cause of action renders both available, 2 A.L.R.5th 449.
Right to prejudgment interest on punitive or multiple damages awards, 9 A.L.R.5th 63.
Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.
Validity, construction, and application of statutes requiring that percentage of punitive damages awards be paid directly to state or court-administered fund, 16 A.L.R.5th 129.
Intoxication of automobile driver as basis for awarding punitive damages, 33 A.L.R.5th 303.
Allowance of punitive damages in medical malpractice action, 35 A.L.R.5th 145.
Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.
Validity of state statutory cap on punitive damages, 103 A.L.R.5th 379.
Exemplary or punitive damages for pharmacist's wrongful conduct in preparing or dispensing medical prescription - Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072), 109 A.L.R.5th 397.
Monetary remedies under § 23 of Consumer Product Safety Act (15 USCS § 2072), 87 A.L.R. Fed. 587.