When can punitive damages be awarded in a Georgia lawsuit?

Georgia Punitive Damages Law

The place to begin when researching punitive damages in Georgia personal injury and wrongful death cases is the plain language of the pertinent statute, O.C.G.A. § 51-12-5.1. Punitive damages may be awarded in Georgia personal injury and wrongful death lawsuits only when there are "aggravating circumstances." See O.C.G.A. § 51-12-5.1(a). Punitive damages are not for deterring a certain type of behavior in society at large, but rather "to penalize, punish, or deter" a particular defendant. Id. This blog post by Lawrenceville, Gwinnett County, Georgia, based personal injury and wrongful death trial attorney Richard Armond gives an overview of punitive damages law in Georgia. 

What evidentiary standard must be met for a Georgia jury to award punitive damages?

Clear and convincing evidence. This is a higher standard than is required for a jury to find a defendant liable for general and special damages. The typical civil standard is "preponderance of the evidence," which is a simple balancing test where if the evidence is slightly greater than 50% against a defendant then that defendant can be held liable. 

Punitive damages, however, "may be awarded only in such tort actions in which it is proven 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." See O.C.G.A. § 51-12-5.1(b).

Clear and convincing evidence is defined as "evidence that will cause the jury to firmly believe each essential element of the claim to a high degree of probability. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence (but less than beyond a reasonable doubt). See Georgia Suggested Pattern Jury Instruction # 02.040, Fifth Edition.

Are there punitive damage caps depending on the type of Georgia personal injury or wrongful death lawsuit?

Yes.

Product Liability Cases:

In product liability cases there is no limit or cap to the amount of punitive damages which can be awarded under Georgia law. However, punitive damages can only assessed one time against a particular defendant anywhere in the State of Georgia. Further, 75% of the punitive damages awarded go to the State of Georgia, less a proportionate part of the costs of litigation, including reasonable attorney's fees. See O.C.G.A. § 51-12-5.1(e).

A major reason for this is the policy behind punitive damages. Georgia laws states that punitive damages are awarded "not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant." O.C.G.A. § 51-12-5.1(c).

Specific Intent to Harm Cases and Cases where the Defendant was Drunk or High:

In cases where it is shown that the defendant specifically intended to do harm (example: an assault with a baseball bat) to the plaintiff, or that the defendant was negligent while "under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is substantially impaired," no cap exists in Georgia on punitive damages. See O.C.G.A. § 51-12-5.1(f).

Further, no requirement exists under Georgia law in specific intent to harm/drunk and high cases in which the punitive damages get divided between the state and the plaintiff as is the case with products liability cases. See O.C.G.A. § 51-12-5.1(f).

Finally, punitive damages in specific intent to harm cases can only be awarded against an active tortfeaser (example: a bar knowingly serves a person too much alcohol and lets him drive drunk...only the drunk driver can have punitive damages awarded against him even if the bar is liable for its negligence under dram shop laws for general and special damages). See O.C.G.A. § 51-12-5.1(f).

All other Georgia Tort Cases:

The vast majority of Georgia personal injury and wrongful death cases, however, will unfortunately fall under the catch-call category of all other Georgia tort cases not listed above. For those cases punitive damages are capped under Georgia law at $250,000. See O.C.G.A. § 51-12-5.1(g).

Conclusion:

If you or a loved one are the victim in a Georgia personal injury or wrongful death case, punitive damages are something that should be explored. The complaint (the lawsuit you file) must specifically pray for the award of punitive damages or else you cannot pursue them at trial. See O.C.G.A. § 51-12-5.1(d)(1). An experienced attorney is needed to handle cases with potential punitive damages so that this potential source of recovery is handled properly.

If your or a loved one have been injured or lost in a personal injury or wrongful death case in Georgia, please contact Gwinnett County based personal injury and wrongful death lawyer Richard Armond at (678) 661-9585 for a free consultation. 

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585. The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

Saving Georgia Lives: NIH recommends lowering legal BAC limit

New BAC recommendation may save lives and prevent serious injuries and wrongful deaths in Georgia

The National Institutes of Health (NIH) is recommending lowering the legal blood alcohol concentration from .08 to .05. Should this recommendation be followed in Georgia I would hope that it would result in saving innocent lives from drunk drivers on Georgia roads. We need less wrongful death and serious injury lawsuits in Georgia and such a measure may help.

A link to the Newsweek version of the story can be accessed here. The story notes that according to the NIH, when the legal drinking age was increased from 18 to 21 in 1980 there was a significant decrease in alcohol-related accidents and fatalities. However, the reductions have plateaued in recent years and the belief is that the reduction of the legal BAC limit will further prevent DUI accidents and deaths. They also recommend other measures such as increasing alcohol taxes, decreasing the hours alcohol can be sold, and preventing the sale of alcohol to people who are already visible intoxicated (a potential Georgia dram shop claim). 

What really stands out in the Newsweek story is the staggering figures at the end:  according to the CDC, "alcohol-impaired driving kills someone every 51 minutes and alcohol-related car crashes cost more than $44 billion a year." Less than every hour someone in the United States dies in an alcohol-impaired driving crash. 

Let's hope something can be done to prevent more deaths and serious injuries at the hands of drunk drivers in Georgia. It will be up to the Georgia General Assembly to pass such a measure into law if it ever happens.

If you or a loved one have suffered an injury or loss in a Georgia car wreck, please contact Gwinnett County based injury lawyer Richard Armond at (678) 661-9585 for a free consultation. 

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585. The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

Olevik a/k/a Plevik Georgia DUI Case Impact on Criminal and Civil Cases

In the recently decided case of Olevik a/k/a Plevik v. State, S17A0738 (Ga. Sup. Ct., decided October 16, 2017), the Supreme Court of Georgia held that under Article I, Section I of the Constitution of the State of Georgia, “Paragraph XVI protects against compelled breath tests and affords individuals a constitutional right to refuse testing.” Id. at p. 48 of the slip opinion. This case may have a major impact on Georgia DUI (O.C.G.A. § 40-6-391) criminal prosecutions, and may have some effect on Georgia civil lawsuits where DUI offenders cause injuries.

Georgia has DUI implied consent statutes (most pertinent for this brief summary:  O.C.G.A. §§ 40-5-55, 40-5-67.1, and 40-6-392) in which DUI suspects, once placed under arrest, are typically read an implied consent notice in which they are informed that Georgia law requires them to consent to a state-administered chemical test of their blood, breath, urine, or other bodily substances to determine if they are under the influence of alcohol or drugs. Further, they are informed that if they refuse the testing their driver's license will be suspended.

Case law for decades up until the Olevik a/k/a Plevik decision held that although the Georgia General Assembly provided a statutory right to refuse implied consent testing, the legislature through O.C.G.A. § 40-6-392(d) had limited that right to allow for admission of the refusal in any criminal trial. In other words, it was not a right such as a federal constitutional Fourth Amendment right to refuse consent to a search in which a suspect's refusal could not be used against him at trial. In Georgia DUI trials, when a suspect refused an implied consent test, that refusal was admissible in evidence to show that a test would have shown intoxicating substances and to demonstrate a consciousness of guilt.

The Olevik a/k/a Plevik opinion seems to indicate that there is now a Georgia constitutional, as opposed to a federal constitutional or Georgia statutory, right to refuse implied consent testing. This right is based on greater self-incrimination protections afforded people in Georgia under Article I, Section I, Paragraph XVI of the Georgia Constitution than those protections given under the Fifth Amendment of the United States Constitution. The argument now is that with a constitutional, as a opposed to a mere statutory, right to refuse implied consent testing, breath test refusals should not be admissible into evidence at criminal trials.

However, this is a very undetermined area of Georgia law at this time. Prosecutors are now arguing that the holding of the Georgia Supreme Court in Olevik a/k/a Plevik is found at page 36 of the slip opinion which states, "[a]ccordingly, we overrule Klink and other cases to the extent they hold that Paragraph XVI of the Georgia Constitution does not protect against compelled breath tests or that the right to refuse to submit to such testing is not a constitutional right." Prosecutors are focusing on the word "such" in page 36 to claim that the holding, which, as cited in the first paragraph of this blog post above from page 48 of the slip opinion does not contain the word "such," means that there is only a constitutional right to refuse compelled breath testing. Defense attorneys are obviously arguing that it cannot be any clearer when the Court announced its holding at page 48 that there is a constitutional right to refuse in Georgia. 

It appears that there is likely now a constitutional right to refuse testing in which a refusal of a breath test cannot be used against a DUI suspect in a criminal trial. This is because compelled breath testing was already unlawful prior to this new decision. However, the law is unsettled and will be clarified in subsequent opinions in the next year.

This can have a major impact on DUI criminal prosecutions as breath test refusal cases may be harder to prosecute. It may also result in more police departments obtaining search warrants to draw blood samples in the future when suspects refuse breath tests. In civil cases, it can potentially make those existing DUI injury cases more difficult to settle as some DUI prosecutions that would have resulted in convictions may end up with crucial evidence inadmissible and less bargaining power when the question of whether a liable party was driving under the influence is still at issue. However, in civil cases, DUI breath test refusals in Georgia should still be admissible as criminal self-incrimination rights should not prohibit a police officer from testifying about a DUI driver's refusal in a civil trial.

If you would like to speak with an attorney about a DUI injury or fatality case, please contact Richard Armond at (678) 661-9585 for a free consultation today.

Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585.The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.

Georgia Dram Shop Statute

Attorney Richard Armond of The Armond Firm, LLC, is licensed to practice law in the State of Georgia. Based in Lawrenceville, Georgia in Gwinnett County, he handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. Call him for a free consultation at (678) 661-9585.

Dram shop laws refer to laws that hold liable establishments that serve alcohol to patrons who then drive and injure or kill innocent victims. The Georgia dram shop statute is O.C.G.A. § 51-1-40. The pertinent part of the statute is subsection (b) which provides:

“(b) A person who sells, furnishes, or serves alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury, death, or damage caused by or resulting from the intoxication of such person, including injury or death to other persons; provided, however, a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle, or who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such minor or person when the sale, furnishing, or serving is the proximate cause of such injury or damage. Nothing contained in this Code section shall authorize the consumer of any alcoholic beverage to recover from the provider of such alcoholic beverage for injuries or damages suffered by the consumer.”

In other words, when a person in Georgia is injured or killed by a driver who was driving under the influence of alcohol, in addition to recovering damages from the DUI driver, the person or business that either sold, furnished, or served the alcohol to that driver may also be held liable and may be an additional source of recovery. O.C.G.A. § 51-1-40(b) applies when alcohol is sold, furnished, or served:

(1)

a.  Willfully, knowingly, and unlawfully to a person under 21 years of age, OR

b.  Knowingly to a person who is in a noticeable state of intoxication;

(2) Knowing that such person (either the under 21 person or the noticeably intoxicated person) will soon be driving a motor vehicle; and

(3) when the sale, furnishing, or serving is the proximate cause of the injury or damage.

The statute further provides a defense to the person or business serving the alcohol to under 21 persons when relying on an identification showing the person was 21 or older. In any dram shop case there will be significant battles during the course of negotiation or litigation regarding each of the three elements outlined above. It is very important to have a lawyer representing you if you have been injured by a DUI driver as dram shop cases can be very complicated to prove. While a battle, dram shop laws are a potential source of a significant increase in recovery to victims of DUI drivers who often have significant losses. Many victims of DUI wrecks sustain life-altering injuries, and, unfortunately, there are way too many DUI Vehicular Homicide wrecks in Georgia.         

If you or a loved one have been injured or killed in DUI motor vehicle wreck in Georgia, contact attorney Richard Armond at (678) 661-9585 for a free consultation today.

The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.