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title-51•Title 51 — Torts
Official Code of Georgia Annotated — Title 51. Torts
Snapshot of the Georgia code as mirrored by FindLaw, current as of 2024-03-28.
A tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied. A tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual.
In general, ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. As applied to the preservation of property, the term “ordinary diligence” means that care which every prudent man takes of his own property of a similar nature. The absence of such diligence is termed ordinary negligence.
In general, extraordinary diligence is that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances. As applied to the preservation of property, the term “extraordinary diligence” means that extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property. The absence of such extraordinary diligence is termed slight negligence.
In general, slight diligence is that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. As applied to the preservation of property, the term “slight diligence” means that care which every man of common sense, however inattentive he may be, takes of his own property. The absence of such care is termed gross negligence.
The term “due care,” when used in reference to a child of tender years, is such care as the child's mental and physical capacities enable him to exercise in the actual circumstances of the occasion and situation under investigation.
When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.
Injury suffered in common with the community, though to a greater extent, will not give a right of action to an individual for the infraction of some public duty. In order for an individual to have such a right of action, there must be some special damage to him, in which the public has not participated.
Private duties may arise from statute or from relations created by contract, express or implied. The violation of a private duty, accompanied by damage, shall give a right of action.
Every person may recover for torts committed to himself, his wife, his child, his ward, or his servant.
If a tort shall be committed upon the person or reputation of the wife, the husband or wife may recover therefor; if the wife shall be living separate from the husband, she may bring an action for such torts and also torts to her children and recover the same to her use.
(a) Except as otherwise provided in this Code section, no privity is necessary to support a tort action; but, if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract and except as provided in Code Section 11-2-318.
(b)(1) The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.
(2) No action shall be commenced pursuant to this subsection with respect to an injury after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.
(3) A manufacturer may not exclude or limit the operation of this subsection.
(c) The limitation of paragraph (2) of subsection (b) of this Code section regarding bringing an action within ten years from the date of the first sale for use or consumption of personal property shall also apply to the commencement of an action claiming negligence of a manufacturer as the basis of liability, except an action seeking to recover from a manufacturer for injuries or damages arising out of the negligence of such manufacturer in manufacturing products which cause a disease or birth defect, or arising out of conduct which manifests a willful, reckless, or wanton disregard for life or property. Nothing contained in this subsection shall relieve a manufacturer from the duty to warn of a danger arising from use of a product once that danger becomes known to the manufacturer.
(d) Irrespective of privity, a manufacturer shall not be held liable for the manufacture of a product alleged to be defective based on theories of market share or enterprise, or other theories of industry-wide liability.
(e) Irrespective of privity, a manufacturer of a product alleged to be defective shall not be held liable for a public nuisance based on theories of market share or enterprise, or other theories of industry-wide liability.
(a) As used in this Code section, the term “product seller” means a person who, in the course of a business conducted for the purpose leases or sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer's plan, intention, design, specifications, or formulation; or repairs; maintains; or otherwise is involved in placing a product in the stream of commerce. This definition does not include a manufacturer which, because of certain activities, may additionally be included within all or a portion of the definition of a product seller.
(b) For purposes of a product liability action based in whole or in part on the doctrine of strict liability in tort, a product seller is not a manufacturer as provided in Code Section 51-1-11 and is not liable as such.
(c) Nothing contained in this Code section shall be construed to grant a cause of action in strict liability in tort or any other legal theory or to affect the right of any person to seek and obtain indemnity or contribution.
(d) This Code section shall apply to all causes of action accruing on or after July 1, 1987.
By ratification of a tort committed for his own benefit, the ratifier becomes as liable as if he had commanded that it be committed. A person ratifying a tort does not become liable, however, if the act was done for the benefit of a third person.
A physical injury done to another shall give a right of action to the injured party, whatever may be the intention of the person causing the injury, unless he is justified under some rule of law. However, intention shall be considered in the assessment of damages.
Any violent injury or illegal attempt to commit a physical injury upon a person is a tort for which damages may be recovered.
A husband shall have a right of action against another for abducting or harboring his wife. Furnishing shelter and food to a wife driven from her home by cruel treatment is an act of humanity and shall give no right of action to the husband.
The seduction of a daughter, unmarried and living with her parent, whether followed by pregnancy or not, shall give a right of action to the father or to the mother if the father is dead, or absent permanently, or refuses to bring an action. No loss of services need be alleged or proved. The seduction is the gist of the action, and in well-defined cases exemplary damages shall be granted.
Adultery, alienation of affections, or criminal conversation with a wife or husband shall not give a right of action to the person's spouse. Rights of action for adultery, alienation of affections, or criminal conversation are abolished.
(a) The custodial parent or parents shall have a right of action against any person who shall sell or furnish alcoholic beverages to that parent's underage child for the child's use without the permission of the child's parent.
(b) A parent shall have a right of action against any person who shall play and bet at any game of chance with his minor child for money or any other thing of value without the parent's permission.
When trust or confidence is reposed in a person in consideration of the payment or promise of a reward to him, negligence in the person trusted which results in injury to the other person shall give the injured party a right of action.
(a) A person serving with or without compensation as a member, director, or trustee, or as an officer of the board without compensation, of any nonprofit hospital or association or of any nonprofit, charitable, or eleemosynary institution or organization or of any local governmental agency, board, authority, or entity shall be immune from civil liability for any act or any omission to act arising out of such service if such person was acting in good faith within the scope of his or her official actions and duties and unless the damage or injury was caused by the willful or wanton misconduct of such person.
(b) As used in this Code section, the term “compensation” shall not include reimbursement for reasonable expenses related to said services.
(c) This Code section shall not affect any immunity of any person arising from any source, whether or not such person may additionally be subject to and possess an immunity provided by this Code section. The immunity provided by this Code section shall be supplemental to any such existing immunity.
(a) As used in this Code section, the term:
(1) “Compensation” does not mean or include any gift, any reimbursement for any reasonable expense incurred for the benefit of a nonprofit athletic program, or, in the case of an umpire or referee, a modest honorarium.
(2) “Nonprofit association” means any entity which is organized as a nonprofit corporation or a nonprofit unincorporated association under the laws of this state, including, but not limited to, youth or sports associations, volunteer fire associations, or religious, charitable, fraternal, veterans, civic, county fair, or agricultural associations, or any separately chartered auxiliary of the foregoing, if organized and operated on a nonprofit basis.
(3) “Safety program” means a program designed for education and training with respect to safety and accident prevention as related to the home, vehicle maintenance and operation, boating, hunting, firearms, self-protection, fire hazards, or other activity which may involve exposures to personal injury or property damage.
(4) “Sports program” means any program or organized activity:
(A) Which conducts any competitive sport which is formally recognized as a sport, on the date on which any cause of action arises to which this Code section is applicable, by the United States Olympic Committee as specified by and under the jurisdiction of the Amateur Sports Act of 1978, Public Law 95-606, 36 U.S.C. Section 371, et seq., the Amateur Athletic Union, or the National Collegiate Athletic Association; and
(B) Which is organized for recreational purposes and related training and education and the activities of which are substantially for such purpose.
(5) “Volunteer” means any person rendering services as a manager, coach, instructor, umpire, or referee, or assistant to such person, who performs such services without compensation.
(b) Except as provided in subsection (c) of this Code section, no person who is a volunteer for a sports program or safety program of a nonprofit association, or any employee or officer of such nonprofit association conducting or sponsoring such sports or safety program, shall be liable to any person as a result of any acts or omissions in rendering such services or in conducting or sponsoring such sports or safety programs if such person was acting in good faith within the scope of his or her assigned duties and unless the conduct of such person amounts to willful and wanton misconduct or gross negligence; provided, however, the defense of immunity is waived as to those actions for the recovery of damages against such persons for which liability insurance protection for such claims has been provided, but such waiver shall only apply to the extent of any liability insurance so provided.
(c) Nothing in this Code section shall be construed as affecting or modifying the liability of such volunteers, employees, officers, or a nonprofit association for acts or omissions relating to the transportation of participants in a sports program or safety program to or from a game, training session, event, or practice, or relating to the care and maintenance of real estate unrelated to the practice, training, or playing areas which such volunteers, employees, officers, or a nonprofit association owns, possesses, or controls.
(d) This Code section shall apply to any cause of action arising on or after July 1, 1988.
(a) As used in this Code section, the term:
(1) “Child passenger safety technician” means a person who holds a current certification as a child passenger safety technician or technician instructor by the National Highway Traffic Safety Administration of the United States Department of Transportation, the American Automobile Association, or other entity designated by the National Highway Traffic Safety Administration but specifically does not include any person who is an employee or agent of a manufacturer of child safety seats.
(2) “Child safety seat” means a seat as defined in paragraph (1) of subsection (b) of Code Section 40-8-76.
(3) “Sponsoring organization” means a person or organization other than a manufacturer of or an employee or agent of a manufacturer of child safety seats that:
(A) Offers or arranges for the public a nonprofit child safety seat educational program, checkup event, or fitting station program utilizing child passenger safety technicians; or
(B) Owns property upon which a nonprofit child safety seat educational program, checkup event, or fitting station program for the public occurs utilizing child passenger safety technicians.
(b) A child passenger safety technician or sponsoring organization shall not be liable to any person as a result of any act or omission that occurs solely in the inspection, installation or adjustment of a child safety seat, or in providing education regarding the installation or adjustment of a child safety seat if the child passenger safety technician or sponsoring organization provides the services without a fee and acts in good faith within the scope of training for which the technician is currently certified and unless the act or omission constitutes willful and wanton misconduct or gross negligence.
(c) Nothing in this Code section shall be construed as affecting, modifying, or eliminating the liability of a manufacturer of a child safety seat or its employees or agents under any legal claim, including but not limited to product liability claims.
(d) This Code section shall apply to any cause of action arising on or after July 1, 2002.
(a) As used in this Code section, the term:
(1) “Owner” means a person other than a secured party who has title to personal property or who has the use and possession of personal property subject to a security interest.
(2) “Watercraft” means any boat, vessel, or craft, other than a seaplane, used as a means of transportation on water.
(b) The owner of a watercraft shall be liable for any tort caused by the operation of the watercraft, in the same manner and to the same degree as the owner of an automobile is liable for torts caused by its operation.
The owner of a vessel shall be liable for any injury or damage occasioned by the negligent operation of the vessel, whether the negligence consists of a violation of the statutes of this state or of neglecting to observe such ordinary care in such operation as the rules of common law require. The owner shall not be liable, however, unless the vessel is being used with his or her express or implied consent. It shall be presumed that the vessel is being operated with the knowledge and consent of the owner if, at the time of the injury or damage, the vessel is under the control of his or her spouse, father, mother, brother, sister, son, daughter, or other immediate member of the owner's family. Nothing contained in this Code section shall be construed to relieve any other person from any liability which he would otherwise have nor shall anything contained in this Code section be construed to authorize or permit any recovery in excess of injury or damage actually incurred.
Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury.
Any person who knowingly or negligently, by himself or his agent, sells adulterated drugs or alcoholic beverages to another person, by the use of which damage accrues to the purchaser, his patients, his family, or his property, shall be liable in damages for the injury done.
If a vender of drugs and medicines, by himself or his agent, either knowingly or negligently furnishes the wrong article or medicine and damage accrues to the purchaser, his patients, his family, or his property from the use of the drug or medicine furnished, the vender shall be liable for the injury done.
If death ensues as a result of any injury or damage in any case arising under Code Section 51-1-23, 51-1-24, or 51-1-25, the right of action for such death shall survive as provided in Chapter 4 of this title.
A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.
(a) The injection, transfusion, or other transfer of human whole blood, blood plasma, blood products, or blood derivatives and the transplanting or other transfer of any tissue, bones, or organs into or onto the human body shall not be considered a sale of any commodity, goods, property, or product subject to sale or barter but, instead, shall be considered as the rendition of medical services. No implied warranties of any kind or description shall be applicable thereto and no person, firm, or corporation participating in such services shall be liable for damages unless negligence is proven.
(b) Code Section 51-1-27 shall not be affected by subsection (a) of this Code section.
(a) Any person, including any person licensed to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43 and any person licensed to render services ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victims thereof without making any charge therefor shall not be liable for any civil damages as a result of any act or omission by such person in rendering emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person.
(b) As used in this Code section, the term “emergency care” shall include, but shall not be limited to, the rescue or attempted rescue of an incapacitated or endangered individual from a locked motor vehicle.
(a) Without waiving or affecting and cumulative of any existing immunity from any source, unless it is established that injuries or death were caused by gross negligence or willful or wanton misconduct:
(1) No health care provider licensed under Chapter 9, 11, 26, 30, 33, or 34 of Title 43 who voluntarily and without the expectation or receipt of compensation provides professional services, within the scope of such health care provider's licensure, for and at the request of a hospital, public school, nonprofit organization, or an agency of the state or one of its political subdivisions or provides such professional services to a person at the request of such an organization, which organization does not expect or receive compensation with respect to such services from the recipient of such services; or
(2) No licensed hospital, public school, or nonprofit organization which requests, sponsors, or participates in the providing of the services under the circumstances provided in paragraph (1) of this subsection
shall be liable for damages or injuries alleged to have been sustained by the person nor for damages for the injury or death of the person when the injuries or death are alleged to have occurred by reason of an act or omission in the rendering of such services.
(b) Nothing in this Code section shall be construed to change the scope of practice of any health care provider granted immunity in this Code section.
(c) This Code section shall apply only to causes of action arising on or after July 1, 1987.
Any natural person and any association, fraternal organization, private for profit entity, not for profit entity, religious organization, or charitable organization and the officers, directors, employees, and agents of such associations, organizations, and entities, when such persons, associations, organizations, or entities are working in coordination and under the direction of an appropriate state agency, who voluntarily and without the expectation or receipt of compensation provides services or goods in preparation for, anticipation of, or during a time of emergency and in a place of emergency as declared by the Governor for the benefit of any natural person or his or her property to prevent or minimize harm to such natural person or to prevent, minimize, and repair injury and damage to such person's property resulting from biological, chemical, or nuclear agents; terrorism; pandemics or epidemics of infectious disease; or catastrophic acts of nature, including, but not limited to, fire, flood, earthquake, wind, storm, or wave action, or any other occurrence which warrants the declaration of a state of emergency or disaster by the Governor pursuant to Code Section 38-3-51 or by a federal agency shall not be civilly liable to any natural person receiving such assistance as a result of any act or omission in rendering such service if such natural person, association, organization, or entity was acting in good faith and unless the damage or injury was caused by the willful or wanton negligence or misconduct of such natural person, association, organization, or entity. Nothing in this Code section shall be construed to amend, repeal, alter, or affect in any manner any other provision of law granting immunity or limiting liability. Nothing in this Code section shall be construed to abrogate the sovereign immunity of this state as to all actions executed by any party under this Code section.
(a) The persons described in this Code section shall be immune from civil liability for any act or omission to act related to the provision of emergency care or treatment by the use of or provision of an automated external defibrillator, as described in Code Sections 31-11-53.1 and 31-11-53.2, except that such immunity shall not apply to an act of willful or wanton misconduct and shall not apply to a person acting within the scope of a licensed profession if such person acts with gross negligence. The immunity provided for in this Code section shall extend to:
(1) Any person who gratuitously and in good faith renders emergency care or treatment by the use of or provision of an automated external defibrillator without objection of the person to whom care or treatment is rendered;
(2) The owner or operator of any premises or conveyance who installs or provides automated external defibrillator equipment in or on such premises or conveyance;
(3) Any physician or other medical professional who authorizes, directs, or supervises the installation or provision of automated external defibrillator equipment in or on any premises or conveyance other than any medical facility as defined in paragraph (5) of Code Section 31-7-1; and
(4) Any person who provides training in the use of automated external defibrillator equipment as required by subparagraph (b)(1)(A) of Code Section 31-11-53.2, whether compensated or not. This Code section is not applicable to any training or instructions provided by the manufacturer of the automated external defibrillator or to any claim for failure to warn on the part of the manufacturer.
(b) Nothing in this Code section shall be construed so as to provide immunity to the manufacturer of any automated external defibrillator or off-premises automated external defibrillator maintenance or service providers, nor shall it relieve the manufacturer from any claim for product liability or failure to warn.
(a) As used in this Code section, the term:
(1) “Free health clinic” means a nonprofit, charitable, or eleemosynary institution or organization which voluntarily and without expectation or receipt of payment or other compensation or financial benefit provides health care services to persons who do not qualify for medicare or Medicaid, have no private health insurance, and cannot afford to see a medical care professional.
(2) “Medical care professional” means a professional who is licensed under Chapter 4 of Title 26 or Chapter 9, 11, 11A, 26, 30, 33, 34, or 44 of Title 43.
(b)(1) A free health clinic and its agents, employees, and volunteers when acting within the scope of that relationship shall not be liable to a patient for ordinary negligence which proximately causes injury to or the death of that patient if the services provided to that patient were free of any charge and the free health clinic and the medical care professional whose services are at issue neither received nor expected to receive any payment or other compensation or financial benefit for providing care to that patient.
(2) A licensed hospital, public school, or nonprofit organization which requests, sponsors, or participates in providing the services of a free health clinic shall not be liable to a patient for ordinary negligence which proximately causes injury to or the death of that patient if the services requested, sponsored, or provided to that patient were free of any charge and the free health clinic, the medical care professional whose services are at issue, the licensed hospital, the public school, or the nonprofit organization did not receive or expect to receive any payment or other compensation or financial benefit for providing care to that patient.
(3) The immunity granted under this Code section shall not waive or affect and is cumulative of any existing immunity from any other source.
(c) This Code section shall apply only to causes of action arising on or after July 1, 2004.
(a) As used in this Code section, the term:
(1) “Affiliate” means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a specified person, including any direct or indirect parent or subsidiary.
(2) “Claimant” means a person, including a decedent's estate, who seeks or has sought recovery of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant.
(3) “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the person, whether through ownership of equity or securities, by contract, or otherwise.
(4) “Court” means any federal or state court.
(5) “Emergency medical care” means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.
(6) “Emergency medical services provider” means any person providing emergency medical care.
(7) “Health care” means any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.
(8) “Health care institution” means:
(A) An ambulatory surgical center;
(B) A personal care home licensed under Chapter 7 of Title 31;
(B.1) An assisted living community licensed under Chapter 7 of Title 31;
(C) An institution providing emergency medical services;
(D) A hospice;
(E) A hospital;
(F) A hospital system;
(G) An intermediate care facility for the intellectually or developmentally disabled; or
(H) A nursing home.
(9) “Health care liability claim” means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care, which departure from standards proximately results in injury to or death of a claimant.
(10) “Health care provider” means:
(A) Any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Georgia to provide health care, including but not limited to:
(i) A registered nurse;
(ii) A dentist;
(iii) A podiatrist;
(iv) A pharmacist;
(v) A chiropractor;
(vi) An optometrist; or
(vii) A health care institution; and
(B) Any person who is:
(i) An officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; or
(ii) An employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship.
(11) “Hospice” means a facility licensed as such under the “Georgia Hospice Law,” Article 9 of Chapter 7 of Title 31.
(12) “Hospital” means a facility licensed as such under Chapter 7 of Title 31.
(13) “Hospital system” means a system of hospitals located in this state that are under the common governance or control of a corporate parent.
(14) “Medical care” means any act defined as the practice of medicine under Code Section 43-34-21.
(15) “Nursing home” means a facility licensed as such under Chapter 7 of Title 31.
(16) “Pharmacist” means a person licensed as such under Chapter 4 of Title 26.
(17) “Physician” means an individual licensed to practice medicine in this state, a professional association organized by an individual physician or group of physicians, or a partnership or limited liability partnership formed by a group of physicians.
(18) “Professional or administrative services” means those duties or services that a physician or health care provider is required to provide as a condition of maintaining the physician's or health care provider's license, accreditation status, or certification to participate in state or federal health care programs.
(b) Any legal term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common law.
(c) In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.
(d) In an action involving a health liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the court shall instruct the jury to consider, together with all other relevant matters:
(1) Whether the person providing care did or did not have the patient's medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;
(2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;
(3) The circumstances constituting the emergency; and
(4) The circumstances surrounding the delivery of the emergency medical care.
(a) As used in this Code section, the term:
(1) “Caregiver” shall have the same meaning as set forth in Code Section 31-2A-18.
(2) “Health care institution” shall have the same meaning as set forth in Code Section 51-1-29.5.
(3) “Health care provider” means any person licensed, certified, or registered under Chapter 9, 10A, 11, 11A, 26, 28, 30, 33, 34, 35, 39, or 44 of Title 43 or Chapter 4 of Title 26.
(4) “Low THC oil” shall have the same meaning as set forth in Code Section 16-12-190.
(b) A health care institution shall not be subject to any civil liability, penalty, licensing sanction, or other detrimental action and a health care provider shall not be subject to any civil liability, penalty, denial of a right or privilege, disciplinary action by a professional licensing board, or other detrimental action for allowing an individual or caregiver to possess, administer, or use low THC oil on the premises of a health care institution or offices of a health care provider, provided that the possession of such substance is in accordance with the laws of this state.
(a) As used in this Code section, the term “fire department” includes volunteer fire departments established pursuant to local act, ordinance, or resolution or established as nonprofit corporations pursuant to private subscription and any fire department established as a department, bureau, or agency of a municipality, county, fire district, or authority of this state.
(b) The officers, members, agents, or employees of any fire department established by any county, municipality, fire district, or authority shall not be liable at law for any act or acts done while actually fighting a fire or performing duties at the scene of an emergency, except for willful negligence or malfeasance.
(c) This Code section shall not affect the right of any party to recover damages for an act which occurred before July 1, 1980.
(a) As used in this Code section, the term “fire apparatus” means salvage and first-aid cars, chiefs' cars, hose wagons, pumpers, aerial trucks, water towers, service trucks, supply trucks, or other publicly owned and operated automotive equipment used in fire fighting.
(b) A driver or operator of fire apparatus publicly owned and operated by any member of a fire department in municipalities having a population of more than 300,000 according to the United States decennial census of 1940 or any future such census shall be exempted from any tort liability by reason of injuries sustained to the person or property of anyone where such damage or injury is caused by the driving of such apparatus in responding to a fire alarm or while returning to a fire station under emergency orders of a chief or assistant chief to put equipment back into service for another call.
(c) Nothing in this Code section shall affect in any manner the liability of such municipalities owning such fire apparatus for the torts of its employees under the general laws of this state.
Teachers and other school personnel shall be immune from any civil liability for communicating information in good faith concerning drug abuse by any child to that child's parents, to law enforcement officials, or to health care providers.
(a) Unless it is established that injuries or death were caused by gross negligence or willful or wanton misconduct:
(1) No natural person who voluntarily and without the expectation or receipt of compensation provides services for and at the request and sanction of a public school or private school and who does not expect or receive compensation with respect to such services from the recipient of such services; or
(2) No public school or private school which requests, sponsors, or participates in the providing of the services under the circumstances provided in paragraph (1) of this subsection
shall be liable for damages or injuries alleged to have been sustained by another person or damages for the injury or death of the other person when the injuries or death are alleged to have occurred by reason of an act or omission occurring on school property in the rendering of such services if such services are provided upon school property or at a school sponsored function.
(b) This Code section shall not apply to any incident or incidents arising out of the operation of a motor vehicle or motor vehicles. This Code section also shall not apply to any public or private school to the extent that any such public or private school has insurance in effect which covers any damages or injury or death described in paragraph (a) above.
(c) This Code section shall not apply to persons who are performing tasks associated with their normal or ordinary course of business or their trade or profession.
(d) This Code section shall apply only to causes of action arising on or after July 1, 1994.
(e) Nothing in this Code section shall be construed to alter, affect, or repeal any other provision of law granting immunity from liability or to alter or affect any other immunity provision from whatever source and shall be cumulative of any existing immunity from any source.
Notwithstanding any other provision of law, an authorized security officer as provided for in Code Section 16-11-124 acting within the scope of his or her official duties on the premises of a federally licensed nuclear power facility or the properties adjacent to the facility pursuant to a written agreement entered into with the local law enforcement agency having jurisdiction over the facility shall be entitled to immunity as provided in Code Section 51-11-9. Such officer and the officer's employer or the owner, operator, or licensee of the facility where the officer is providing security services shall also be immune from liability for the officer's good faith performance of his or her duties at such facility in accordance with a nuclear security plan approved by the United States Nuclear Regulatory Commission or other authorized federal agency.
(a) As used in this Code section, the term:
(1) “Canned food” means any food which has been commercially processed and prepared for human consumption and which has been commercially packaged in such a manner as to remain nonperishable without refrigeration for a reasonable length of time.
(2) “Donor” includes, but is not limited to, a farmer, processor, distributor, commercial food service operator, wholesaler, or retailer of food.
(3) “Gleaner” means a person who harvests for use or distribution an agricultural crop that has been donated by the owner.
(4) “Perishable food” means any food that may spoil or otherwise become unfit for human consumption because of its nature, type, or physical condition. “Perishable food” includes, but is not limited to, table-ready food, cooked foods, fresh or processed meats, poultry, seafood, dairy products, bakery products, eggs, fresh fruits or vegetables, and foods that have been noncommercially or commercially packaged or that have been frozen or otherwise require temperature control to remain nonperishable for a reasonable length of time.
(b) A good faith donor or gleaner of any canned or perishable food apparently fit for human consumption who donates such food to a bona fide charitable or nonprofit organization for use or distribution shall not be subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the recklessness or intentional misconduct of the donor or gleaner.
(c) A bona fide charitable or nonprofit organization which accepts any canned or perishable food apparently fit for human consumption from a good faith donor or gleaner for use or distribution shall not be subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the recklessness or intentional misconduct of the charitable or nonprofit organization.
(d) The provisions of this Code section apply to the good faith donation of canned or perishable food not readily marketable due to appearance, freshness, grade, surplus, or other such considerations.
(e) The provisions of this Code section shall not be construed to restrict the authority of any lawful agency otherwise to regulate or ban the use of food for human consumption.
In cases arising from the wrongful or negligent operation of a motor vehicle in which the single wrongful or negligent act causes or results in both physical injuries to a person and injuries to the property of such person, the injured person shall have a separate and distinct cause of action against the person whose wrongful or negligent act caused such injury for the physical injury to his person and a separate and distinct cause of action for the injuries to his property. The injured party shall have the right, in his sole discretion, to prosecute each cause of action separately or to combine the two causes of action in one single action.
If the two causes of action specified in Code Section 51-1-32 are tried separately, the fact that a settlement has been made or that a judgment has been rendered in the action for property damage shall not be admissible in evidence in the action for physical injuries to the person. The fact that a settlement has been made or a judgment rendered in the action for the physical injuries to the person shall not be admissible in evidence in the action for property damage.
The settlement of a claim or cause of action arising from a motor vehicle collision for property damage shall not bar or otherwise affect the prosecution of the claim or cause of action for physical injury to the person. The settlement of a claim or cause of action arising from a motor vehicle collision for physical injury to the person shall not bar or otherwise affect the prosecution of the claim or cause of action for property damage.
(a) No person whose interest is or may become adverse to an injured person who is confined to a hospital or health care center as a patient shall, within 15 days from the date of the occurrence causing the person's injury:
(1) Negotiate or attempt to negotiate a settlement with the injured patient;
(2) Obtain or attempt to obtain a general release of liability from the injured patient; or
(3) Obtain or attempt to obtain any statement, either written or oral from the injured patient, for use in negotiating a settlement or obtaining a release.
(b) Any settlement agreement entered into or any general release of liability made by any person who is confined in a hospital or health care center after he incurs a personal injury which is obtained contrary to the provisions of subsection (a) of this Code section shall not be admitted as evidence in any court action relating to the injury and shall not be utilized for any purpose in any legal action in connection therewith.
(c) Nothing in this Code section is intended to preclude an interested party from visiting an injured party while confined as a patient to a hospital or health care center for purposes of expressing concern for the injured or determining the extent of injuries incurred.
The operator of a motor vehicle owes to passengers therein the same duty of ordinary care owed to others.
(a) Any person who is given a polygraph examination and who suffers damages as a result of such polygraph examination having been administered in a negligent manner shall have a cause of action against the polygraph examiner.
(b) The measure of damages shall be the actual damages sustained by such person, together with reasonable attorneys' fees, filing fees, and reasonable costs of the action. Reasonable costs of the action may include, but shall not be limited to, the expenses of discovery and document reproduction. Damages may include, but shall not be limited to, back pay for the period during which such person did not work or was denied a job as a result of such examination.
(a) No student who participates in the provision of medical care or medical treatment under the supervision of a medical facility, academic institution, or doctor of medicine, as a part of an academic curriculum leading to the award of a medical degree, shall be liable for any civil damages as a result of any act or omission in such participation, except for willful or wanton misconduct.
(b) Subsection (a) of this Code section shall not be construed to affect or limit the liability of a medical facility, academic institution, or doctor of medicine.
A person who engages in a criminal act on property owned or leased by a political subdivision of this state and who suffers an injury as a result of said criminal act which is not inflicted by an officer, employee, or agent of such political subdivision shall not have a cause of action against such political subdivision for any injury sustained. The provisions of this Code section shall not have the effect of waiving the sovereign immunity of any political subdivision.
(a) The General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.
(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.
(c) In determining whether the sale, furnishing, or serving of alcoholic beverages to a person not of legal drinking age is done willfully, knowingly, and unlawfully as provided in subsection (b) of this Code section, evidence that the person selling, furnishing, or serving alcoholic beverages had been furnished with and acted in reliance on identification as defined in subsection (d) of Code Section 3-3-23 showing that the person to whom the alcoholic beverages were sold, furnished, or served was 21 years of age or older shall constitute rebuttable proof that the alcoholic beverages were not sold, furnished, or served willfully, knowingly, and unlawfully.
(d) No person who owns, leases, or otherwise lawfully occupies a premises, except a premises licensed for the sale of alcoholic beverages, shall be liable to any person who consumes alcoholic beverages on the premises in the absence of and without the consent of the owner, lessee, or lawful occupant or to any other person, or to the estate or survivors of either, for any injury or death suffered on or off the premises, including damage to property, caused by the intoxication of the person who consumed the alcoholic beverages.
(a) Sports officials who officiate amateur athletic contests at any level of competition in this state shall not be liable to any person or entity in any civil action for injuries or damages claimed to have arisen by virtue of actions or inactions related in any manner to officiating duties within the confines of the athletic facility at which the athletic contest is played.
(b) For the purposes of this Code section, the term “sports officials” means:
(1) Those individuals who serve as referees, umpires, linesmen, and those who serve in similar capacities but may be known by other titles and are duly registered with or are members of a local, state, regional, or national organization which is engaged in part in providing education and training to sports officials; and
(2) Those individuals who render service without compensation as a manager, coach, instructor, or assistant manager, coach, or instructor in any system of supervised recreation established pursuant to Chapter 64 of Title 36.
(c) Nothing in this Code section shall be deemed to grant the protection set forth in subsection (a) of this Code section to sports officials who cause injury or damage to a person or entity by actions or inactions which are intentional, willful, wanton, reckless, malicious, or grossly negligent.
(a) As used in this Code section, the term:
(1) “Charitable organization” means any charitable unit of a religious or civic group, including those supported wholly or partially by private donations.
(2) “Human service agency” means any human service unit, clinic, senior citizens program, congregate meal center, or day-care center for the elderly, whether supported wholly or partially from public funds.
(3) “Volunteer transportation” means motor vehicle transportation provided by an individual under the direction, sponsorship, or supervision of a human service agency or a charitable organization. A volunteer may receive reimbursement for actual expenses or an allowance to defray expenses of operating the vehicle used to provide transportation services but shall not receive compensation for his or her time.
(b) Any person who provides volunteer transportation for senior citizens shall not be liable for any civil damages for any injury to such senior citizens arising out of or resulting from such transportation if such person was acting in good faith within the scope of his or her official actions and duties and unless the conduct of such person amounts to willful and wanton misconduct.
(a) This Code section shall be known and may be cited as the “Roller Skating Safety Act of 1993.”
(b) As used in this Code section, the term:
(1) “Operator” means a person or entity who owns or controls or who has operational responsibility for a roller skating center.
(2) “Roller skater” means a person wearing roller skates while that person is in a roller skating center for the purpose of roller skating.
(3) “Roller skating center” means a building, facility, or premises which provides an area specifically designed to be used for roller skating by the public.
(4) “Spectator” means a person who is present in a roller skating center only for the purpose of observing skating activity, whether recreational or competitive.
(c) Each operator of a roller skating center shall be required to:
(1) Post the duties of roller skaters and spectators as prescribed in this Code section in conspicuous places;
(2) Comply with the safety standards ordinarily accepted in the roller skating rink industry;
(3) Maintain roller skating equipment and roller skating surfaces according to the safety standards cited in paragraph (2) of this subsection; and
(4) Maintain the stability and legibility of all required signs, symbols, and posted notices.
(d) While in a roller skating center, each roller skater shall do all of the following:
(1) Maintain reasonable control of his or her speed and course at all times;
(2) Read all posted signs and warnings;
(3) Maintain a proper lookout to avoid other roller skaters and objects;
(4) Accept the responsibility for knowing the range of his or her own ability to negotiate the intended direction of travel while on roller skates and to skate within the limits of that ability; and
(5) Refrain from acting in a manner which may cause injury to others.
(e) Each person who participates in roller skating in a roller skating center accepts the risks that are inherent in that activity insofar as the risks are obvious and necessary.
(f) A roller skater, spectator, or operator who violates the provisions of this Code section shall be liable in a civil action for damages for that portion of the loss or damage resulting from the violation.
(g) Nothing in this Code section shall be construed to relieve an operator from exercising ordinary diligence in his or her operational responsibility.
(a) No dental student who participates in the provision of dental care or dental treatment under the supervision of a medical facility, academic institution, or dentist, as a part of an academic curriculum leading to the award of a dental degree, shall be liable for any civil damages to the patient as a result of any act or omission in such participation, except for willful or wanton misconduct.
(b) Subsection (a) of this Code section shall not be construed to affect or limit the liability of a medical facility, academic institution, or dentist.
Any person licensed to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43 and including any person licensed to render services ancillary thereto who in good faith renders voluntary service without compensation as an athletic team physician, either as the team doctor during or in conjunction with athletic practice activities or athletic contests or in conducting preseason physicals for athletes, shall not be liable for any civil damages as a result of any act or omission by such person in rendering such voluntary service or in conducting such physicals or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the amateur or nonprofessional athlete. Liability for civil damages shall attach to any willful or wanton act or omission by such person committed in rendering such voluntary service or in conducting such physicals or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the athlete.
(a) This Code section shall be known and may be cited as the “Drug Dealer Liability Act.”
(b) The General Assembly finds and declares that every community in Georgia is impacted by the marketing and distribution of illegal drugs. The purpose of this Code section is to provide a civil remedy for damages to persons in a community injured as a result of illegal drug use. Those persons include parents, employers, insurers, governmental entities, and others who pay for drug treatments, as well as infants injured as a result of exposure to drugs in utero. This Code section will enable them to recover from those persons in the community who have joined the illegal drug market. A further purpose of this Code section is to shift, to the extent possible, the cost of the damage caused by the existence of the illegal drug market in a community to those who illegally profit from that market. Another purpose of this Code section is to establish the prospect of substantial monetary loss as a deterrent to those who have not yet entered into the illegal drug distribution market.
(c) As used in this Code section, the term:
(1) “Controlled substance” means that term as defined by paragraph (4) of Code Section 16-13-21. For the purpose of this Code section, the term “controlled substance” shall include marijuana as defined by paragraph (16) of Code Section 16-13-21.
(2) “Individual drug abuser” means an individual who uses a controlled substance that is not obtained directly from or pursuant to a valid prescription or order of a practitioner who is acting in the course of the practitioner's professional practice or which use is not otherwise authorized by state law.
(3) “Level one participation” means participating in illegal marketing of less than 50 grams of a mixture containing a specified controlled substance or of one or more pounds or 25 or more plants, but less than four pounds or 50 plants, of marijuana.
(4) “Level two participation” means participating in illegal marketing of 50 or more grams, but less than 225 grams, of a mixture containing a specified controlled substance or of four or more pounds or 50 or more plants, but less than eight pounds or 75 plants, of marijuana.
(5) “Level three participation” means participating in illegal marketing of 225 or more grams, but less than 650 grams, of a mixture containing a specified controlled substance or of eight or more pounds or 75 or more plants, but less than 16 pounds or 100 plants, of marijuana.
(6) “Level four participation” means participating in illegal marketing of 650 or more grams of a mixture containing a specified controlled substance or of 16 or more pounds or 100 or more plants of marijuana.
(7) “Market area” means the area in which a person is presumed to have participated in illegal marketing of a market area controlled substance.
(8) “Market area controlled substance” means a specified controlled substance or marijuana.
(9) “Participate in illegal marketing” means doing any of the following in violation of state or federal law:
(A) Manufacturing, distributing, or delivering or attempting or conspiring to manufacture, distribute, or deliver, a controlled substance; or
(B) Possessing or attempting or conspiring to possess a controlled substance with the intent to manufacture, distribute, or deliver a controlled substance.
This definition shall not include any licensed practitioner who is acting in the course of the practitioner's professional practice.
(10) “Person” means an individual, governmental entity, sole proprietorship, corporation, limited liability company, firm, trust, partnership, or incorporated or unincorporated association existing under or authorized by the laws of this state, another state, or a foreign country.
(11) “Practitioner” means that term as defined in paragraph (23) of Code Section 16-13-21.
(d)(1) A person injured by an individual drug abuser may bring an action under this Code section for damages against a person who participated in illegal marketing of the controlled substance used by the individual abuser. In an action brought under this Code section, participation in illegal marketing shall be proven by clear and convincing evidence.
(2) If a plaintiff in an action under this Code section proves that the defendant participated in illegal marketing of a market area controlled substance actually used by the individual abuser who injured the plaintiff, the defendant is presumed to have injured the plaintiff and to have acted willfully and wantonly if the plaintiff is one of the following:
(A) A parent, legal guardian, child, spouse, or sibling of the individual abuser;
(B) A child whose mother was an individual abuser while the child was in utero;
(C) The individual abuser's employer; or
(D) A medical facility, insurer, governmental entity, or other legal entity that financially supports a drug treatment or other assistance program for, or that otherwise expends money or provides unreimbursed service on behalf of, the individual abuser.
(e)(1) A plaintiff under paragraph (2) of subsection (d) of this Code section may prove that a defendant participated in illegal marketing of the market area controlled substance used by the individual abuser who injured the plaintiff by proving both of the following:
(A) The defendant was participating in the illegal marketing of the market area controlled substance at the time the individual abuser obtained or used that market area controlled substance; and
(B) The individual abuser obtained or used the market area controlled substance, or caused the injury, within the defendant's market area.
(2) If a person participated in illegal marketing of a market area controlled substance, the person's market area for that controlled substance is the following:
(A) For level one participation, each county in which the person participated in illegal marketing;
(B) For level two participation, each market area described in subparagraph (A) of this paragraph plus all counties with a border contiguous to each of those market areas;
(C) For level three participation, each market area described in subparagraph (B) of this paragraph plus all counties with a border contiguous to each of those market areas; and
(D) For level four participation, the state.
(f)(1) If a defendant under this Code section has a criminal conviction under state or federal law for an act that constitutes participation in illegal marketing of a controlled substance under this Code section, that person is conclusively presumed to have participated in illegal marketing of a controlled substance for the purposes of this Code section.
(2) If a defendant is proved or presumed to have participated in illegal marketing of a controlled substance, that defendant is presumed to have participated during the two years before and the two years after the date of the participation or conviction, unless the defendant proves otherwise by clear and convincing evidence.
(3) In addition to each county in which a defendant is proved to have actually participated in illegal marketing of a controlled substance, the defendant is presumed to have participated in each county in which the defendant resides, attends school, is employed, or does business during the period of participation. In addition to the counties in which the individual abuser is presumed to have obtained or used the controlled substance, the individual abuser is presumed to have obtained or used the controlled substance in each county in which the individual abuser resides, attends school, or is employed during the period of the individual's abuse of that controlled substance, unless the defendant proves otherwise by clear and convincing evidence.
(g)(1) A person who is entitled to a recovery under this Code section may recover economic, noneconomic, and exemplary damages and reasonable attorneys' fees and costs, including, but not limited to, reasonable expenses for expert testimony.
(2) A third party shall not pay damages awarded under this Code section or provide a defense or money for a defense on behalf of an insured under a contract of insurance or indemnification.
(h) A cause of action accrues under this Code section when a person who may recover has reason to know of the harm from use of an illegally marketed controlled substance that is the basis for the cause of action and has reason to know that the controlled substance used is the cause of the harm.
(i)(1) A prosecuting attorney may represent the state or a political subdivision of the state in an action brought under this Code section.
(2) On motion by a governmental agency involved in a controlled substance investigation or prosecution, an action brought under this Code section shall be stayed until the completion of the investigation or prosecution that gave rise to the motion for a stay of the action.
(3) An action shall not be brought under this Code section against a law enforcement officer or agency or a person acting in good faith at the direction of a law enforcement officer or agency for participation in illegal marketing of a controlled substance if that participation is in furtherance of an official investigation.
(j)(1) Two or more persons may join in one action under this Code section as plaintiffs if their respective actions have at least one market area of illegal marketing activity in common.
(2) Two or more persons may be joined in one action under this chapter as defendants if those persons are liable to at least one plaintiff.
(3) A plaintiff need not be interested in obtaining and a defendant need not be interested in defending against all the relief demanded. Judgment may be given for one or more plaintiffs according to their respective rights to relief and against one or more defendants according to their respective liabilities.
The manufacturers, distributors, dealers, and sellers of a motor vehicle and those who, on authorization and direction of the owner or lessee, lawfully install in a prudent and workmanlike manner a switch to turn off the air bag shall be immune from civil liability for any injuries caused by the failure of an air bag to deploy when the air bag has been disconnected, turned off, or otherwise disabled by the owner, lessee, or operator of the motor vehicle or an agent of the owner or lessee of the motor vehicle.
(a) Any claim administrator, health care advisor, private review agent, or other person or entity which administers benefits or reviews or adjusts claims under a managed care plan shall exercise ordinary diligence to do so in a timely and appropriate manner in accordance with the practices and standards of the profession of the health care provider generally. Notwithstanding any other provision of law to the contrary, any injury or death to an enrollee resulting from a want of such ordinary diligence shall be a tort for which a recovery may be had against the managed care entity offering such plan, but no recovery shall be had for punitive damages for such tort.
(b) The provisions of this Code section may not be waived, shifted, or modified by contract or agreement and responsibility therefor shall be a duty which shall not be delegated. Any effort to waive, modify, delegate, or shift liability for a breach of the duty provided by this Code section, through a contract for indemnification or otherwise, shall be invalid.
(c) This Code section shall not create any liability on the part of an employer of an enrollee or that employer's employees, unless the employer is the enrollee's managed care entity. This Code section shall not create any liability on the part of an employee organization, a voluntary employee beneficiary organization, or a similar organization, unless such organization is the enrollee's managed care entity and makes coverage determinations under a managed care plan.
(d) As used in this Code section and in Code Section 51-1-49, the terms “claim administrator,” “enrollee,” “health care advisor,” and “private review agent” shall be defined as set forth in Chapter 46 of Title 33 except that “enrollee” shall include the enrollee's eligible dependents; “managed care entity” and “managed care plan” shall be defined as set forth in Code Section 33-20A-3; and “independent review” means a review pursuant to Article 2 of Chapter 20A of Title 33, the “Patient's Right to Independent Review Act.”
(a) No person may maintain a cause of action pursuant to Code Section 51-1-48 unless the affected enrollee or the enrollee's representative:
(1) Has exhausted the grievance procedure provided for under Code Section 33-20A-5 and before instituting the action:
(A) Gives written notice of intent to file suit to the managed care entity; and
(B) Agrees to submit the claim to independent review if required under subsection (c) of this Code section; or
(2) Has filed a pleading alleging in substance that:
(A) Harm to the enrollee has already occurred for which the managed care entity may be liable; and
(B) The grievance procedure or independent review is not timely or otherwise available or would not make the enrollee whole,
in which case the court, upon motion by the managed care entity, shall stay the action and order such grievance procedure or independent review to be conducted and exhausted.
(b) The notice required by paragraph (1) of subsection (a) of this Code section must be delivered or mailed to the managed care entity not fewer than 30 days before the action is filed.
(c) The managed care entity receiving notice of intent to file suit may obtain independent review of the claim, if notice of a request for review is mailed or delivered to the Health Planning Agency, or its successor agency, and the affected enrollee within ten days of receipt of the notice of intent to file suit.
(a) As used in this Code section, the term:
(1) “Broadcast” means the transmission of video or audio programming by an electronic or other signal conducted by radiowaves or microwaves, by wires, lines, coaxial cables, wave guides or fiber optics, by satellite transmissions directly or indirectly to viewers or listeners, or by any other means of communication.
(2) “Broadcaster” means any corporation or other entity that is engaged in the business of broadcasting video or audio programming, whether through the public airwaves, by cable, by direct or indirect satellite transmission, or by any other means of communication.
(3) “Levi's Call: Georgia's Amber Alert Program” means the voluntary program entered into by the Georgia Bureau of Investigation, the Georgia Emergency Management and Homeland Security Agency, the Georgia Association of Broadcasters, and certain broadcasters licensed to serve in the State of Georgia, which program provides that if the Georgia Bureau of Investigation verifies that a child has been abducted and is in danger, an alert containing known details of the abduction is transmitted to the Georgia Emergency Management and Homeland Security Agency, which is then transmitted by the Georgia Emergency Management and Homeland Security Agency to broadcasters in Georgia; and those broadcasters participating in the program then broadcast or otherwise disseminate the alert to listeners, viewers, or subscribers.
(b) Any broadcaster participating in Levi's Call: Georgia's Amber Alert Program shall not be liable for any civil damages arising from the broadcast or other dissemination of any alert generated pursuant to the Levi's Call: Georgia's Amber Alert Program. The immunity provided for in this Code section shall apply to any broadcast or dissemination of information that is substantially consistent with the information transmitted by the Georgia Emergency Management and Homeland Security Agency and that takes place during an alert requested by the Georgia Emergency Management and Homeland Security Agency and for a period of two hours after such alert has ended or the Georgia Emergency Management and Homeland Security Agency informs the participating broadcasters that the alert has changed in content.
(c) Nothing in this Code section shall be construed to limit or restrict in any way any legal protection a broadcaster may have under any other law for broadcasting or otherwise disseminating any information.
(a) As used in this Code section, the term:
(1) “Liquefied petroleum gas equipment” means a liquefied petroleum gas appliance or liquefied petroleum gas equipment.
(2) “Liquefied petroleum gas provider” means any person or entity engaged in the business of supplying, handling, transporting, or selling at retail liquefied petroleum gas in this state.
(b) A liquefied petroleum gas provider shall be immune from civil liability if the proximate cause of the injury or damages was:
(1) An alteration, modification, or repair of liquefied petroleum gas equipment that could not have been discovered by the liquefied petroleum gas provider in the exercise of reasonable care; or
(2) The use of liquefied petroleum gas equipment in a manner or for a purpose other than that for which the liquefied petroleum gas equipment was intended to be used or for which could reasonably have been foreseen, provided that the liquefied petroleum gas provider or the manufacturer of the liquefied petroleum gas equipment has taken reasonable steps to warn the ultimate consumer of the hazards associated with foreseeable misuses of the liquefied petroleum gas equipment.
(c) Nothing in this Code section shall be construed as affecting, modifying, or eliminating the liability of a manufacturer of liquefied petroleum gas equipment or its employees or agents under any legal claim, including but not limited to product liability claims.
(d) This Code section shall apply to any cause of action arising on or after July 1, 2005.
(a) As used in this Code section, the term:
(1) “Criteria” means criteria relating to administrative procedures and shall not include criteria relating to medical treatment, quality of care, or best practices.
(2) “Guideline” means a guideline relating to administrative procedures and shall not include guidelines relating to medical treatment, quality of care, or best practices.
(3) “Payor” means any insurer, health maintenance organization, self-insurance plan, or other person or entity which provides, offers to provide, or administers hospital, outpatient, medical, or other health care benefits to persons treated by a health care provider in this state pursuant to any policy, plan, or contract of accident and sickness insurance as defined in Code Section 33-7-2.
(4) “Standard” means a standard relating to administrative procedures and shall not include standards relating to medical treatment, quality of care, or best practices.
(b) The development, recognition, or implementation of any guideline by any public or private payor or the establishment of any payment standard or reimbursement criteria under any federal laws or regulations related to health care shall not be construed, without competent expert testimony establishing the appropriate standard of care, to establish a legal basis for negligence or the standard of care or duty of care owed by a health care provider to a patient in any civil action for medical malpractice or product liability. Nor shall compliance with such a guideline, standard, or criteria establish a health care provider's compliance with the standard of care or duty of care owed by a health care provider to a patient in any civil action for medical malpractice or medical product liability without competent expert testimony establishing the appropriate standard of care.
(a) As used in this Code section, the term:
(1) “Facilities” means a school's buildings, fixtures, and equipment, including, but not limited to, classrooms, libraries, rooms and space for physical education, space for fine arts, restrooms, specialized laboratories, cafeterias, media centers, building equipment, building fixtures, furnishings, gardens, tracks, stadiums, and other facilities or portions of facilities used primarily for athletic competition.
(2) “Recreational joint-use agreement” means a written agreement between the governing authority of a school and a private entity authorizing such entity to access the facilities of a school under the governing authority's jurisdiction for the purposes of conducting or engaging in recreational, physical, or performing arts activity.
(3) “School” means any public pre-kindergarten, elementary school, or secondary school.
(b) A recreational joint-use agreement shall:
(1) Set forth the terms and conditions of the use of a facility;
(2) Include a hold harmless provision in favor of the governing authority;
(3) Be revocable at any time by the governing authority of the school;
(4) Require the private entity to maintain and provide proof of a minimum of $1 million in liability insurance coverage applicable to the use of the facilities and effective for the duration of such agreement; and
(5) Provide a citation that such agreement shall be governed by this Code section.
(c) The governing authority of a school that enters into a recreational joint-use agreement which complies with subsection (b) of this Code section shall not be deemed to have waived its sovereign immunity as to damages to persons or property arising out of or resulting from such recreational joint-use agreement.
(d) Code Section 51-12-33 shall not apply to claims for civil damages arising from the use of a school's facilities pursuant to a recreational joint-use agreement.
(e) This Code section shall apply to causes of action arising on or after July 1, 2013.
(a) As used in this Code section, the term “Program and Treatment Completion Certificate” means the certificate issued pursuant to Code Section 42-2-5.2 or Code Section 42-3-2.
(b) Issuance of a Program and Treatment Completion Certificate by the Board of Corrections or the Board of Community Supervision or the granting of a pardon from the State Board of Pardons and Paroles as provided in the Constitution and Code Section 42-9-42 shall create a presumption of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise engaging in activity with the individual to whom the Program and Treatment Completion Certificate was issued or the pardon was granted. Such presumption may be rebutted by relevant evidence which extends beyond the scope of the Program and Treatment Completion Certificate or pardon and which was known or should have been known by the person against whom negligence is asserted.
(c) Nothing in this Code section shall be construed to constitute a waiver of the sovereign immunity of the state, and no action shall be maintained against the state or any agency or department thereof for issuance of or failure to issue any Program and Treatment Completion Certificate or issuance of or failure to grant a pardon.
(a) As used in this Code section, the term:
(1) “Dangerous weapon” shall have the same meaning as provided for under Code Section 16-11-121.
(2) “Firearm” means any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge and which is not a dangerous weapon.
(b) Any instructor who lawfully instructs, educates, or trains a person in the safe, proper, or technical use of a firearm shall be immune from civil liability for any injuries caused by the failure of such person to use such firearm properly or lawfully.
(a) As used in this Code section, the term:
(1) “Criminal action” means the investigation or prosecution of an offense that is pending final adjudication in a trial court.
(2) “Perpetrator” means a person or entity that knowingly benefits, financially or by receiving anything of value, from participation in a venture or scheme which such person or entity knew or should have known involved a violation of Code Section 16-5-46.
(b) An individual who is a victim of a violation of Code Section 16-5-46 shall have a cause of action against any perpetrator of said violation and may recover damages and reasonable attorney's fees.
(c) Any action filed under subsection (b) of this Code section shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the individual is the victim.
(d) Notwithstanding any other law to the contrary, an action may be brought under subsection (b) of this Code section within ten years after the:
(1) Cause of action arose; or
(2) Victim reaches 18 years of age, if the victim was a minor at the time of the alleged violation.
(e) Whenever the Attorney General has reasonable cause to believe that an interest of the citizens of this state has been or is threatened or adversely affected by a perpetrator, the Attorney General shall have a cause of action against such perpetrator on behalf of the state to obtain appropriate relief.
Any person who solicits in any media in violation of Code Section 10-1-424.1 or 10-1-427 shall, in addition to any other remedies provided by law, be liable for damages caused by each media that is in violation of such Code sections. A claim of a violation of such Code sections may be brought in a representative capacity and may be the subject of a class action under Code Section 9-11-23. Damages for such violation shall be the actual damages or $500.00 per each media that is in violation, whichever is greater.
(a) For the negligence of one person to be properly imputable to another, the one to whom it is imputed must stand in such a relation or privity to the negligent person as to create the relation of principal and agent.
(b) In an action by an infant, the fault of the parent or of custodians selected by the parents is not imputable to the child.
Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.
(a) Every parent or guardian having the custody and control over a minor child or children under the age of 18 shall be liable in an amount not to exceed $10,000.00 plus court costs for the willful or malicious acts of the minor child or children resulting in reasonable medical expenses to another, damage to the property of another, or both reasonable medical expenses and damage to property.
(b) This Code section shall be cumulative and shall not be restrictive of any remedies now available to any person, firm, or corporation for injuries or damages arising out of the acts, torts, or negligence of a minor child under the “family-purpose car doctrine,” any statute, or common law in force and effect in this state.
(c) The intent of the General Assembly in passing this Code section is to provide for the public welfare and aid in the control of juvenile delinquency, not to provide restorative compensation to victims of injurious or tortious conduct by children.
An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.
An employer is liable for the negligence of a contractor:
(1) When the work is wrongful in itself or, if done in the ordinary manner, would result in a nuisance;
(2) If, according to the employer's previous knowledge and experience, the work to be done is in its nature dangerous to others however carefully performed;
(3) If the wrongful act is the violation of a duty imposed by express contract upon the employer;
(4) If the wrongful act is the violation of a duty imposed by statute;
(5) If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference; or
(6) If the employer ratifies the unauthorized wrong of the independent contractor.
(a) As used in this Code section, the term:
(1) “Health care professional” means a professional licensed as an audiologist, chiropractor, clinical social worker, dentist, dietitian, medical doctor, marriage and family therapist, registered professional or licensed practical nurse, occupational therapist, optometrist, osteopathic physician, pharmacist, physical therapist, physician assistant, professional counselor, podiatrist, psychologist, radiological technician, respiratory therapist, or speech-language pathologist.
(2) “Hospital” means a facility that has a valid permit or provisional permit issued by the Department of Community Health under Chapter 7 of Title 31.
(b) Notwithstanding the provisions of Code Section 51-2-5, no hospital which complies with the notice provisions of either subsection (c) or subsection (d) of this Code section shall be liable in a tort action for the acts or omissions of a health care professional unless there exists an actual agency or employment relationship between the hospital and the health care professional.
(c) The hospital shall post a notice in the form and manner described herein. Such notice shall:
(1) Be posted conspicuously in the hospital lobby or a public area of the hospital;
(2) Contain print at least one inch high; and
(3) Provide language substantially similar to the following:
“Some or all of the health care professionals performing services in this hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions and the hospital shall not be liable for the acts or omissions of any such independent contractors.”
(d) The hospital shall have the patient or the patient's personal representative sign a written acknowledgment that contains language substantially similar to that set forth in paragraph (3) of subsection (c) of this Code section.
(e) The notice required in this Code section shall be sufficient if it meets the requirements of either subsection (c) or subsection (d) of this Code section even if the patient or the patient's personal representative did not see or read such notice for any reason, including but not limited to medical condition or language proficiency.
(f) Whether a health care professional is an actual agent, an employee, or an independent contractor shall be determined by the language of the contract between the health care professional and the hospital. In the absence of such a contract, or if the contract is unclear or ambiguous, a health care professional shall only be considered the hospital's employee or actual agent if it can be shown by a preponderance of the evidence that the hospital reserves the right to control the time, manner, or method in which the health care professional performs the services for which licensed, as distinguished from the right to merely require certain definite results.
(g) If the court finds that there is no contract or that the contract is unclear or ambiguous as to the relationship between the hospital and health care professional, the court shall apply the following:
(1) Factors that may be considered as evidence the hospital exercises a right of control over the time, manner, or method of the health care professional's services include: the parties believed they were creating an actual agency or employment relationship; the health care professional receives substantially all the employee benefits received by actual employees of the hospital; the hospital directs the details of the health care professional's work step-by-step; the health care professional's services are terminable at the will of the hospital without cause and without notice; the hospital withholds, or is required to withhold, federal and state taxes from the remuneration paid to the health care professional for services to the patients of the hospital; and factors not specifically excluded in paragraph (2) of this subsection; and
(2) Factors that shall not be considered as evidence a hospital exercises a right of control over the time, manner, or method of the health care professional's services include: a requirement by the hospital that such health care professional treat all patients or that any health care professional or group is obligated to staff a hospital department continuously or from time to time; the hospital's payment to the health care professional on an hourly basis; the provision of facilities or equipment by the hospital; the fact a health care professional does not maintain a separate practice outside the hospital; the source of the payment for the professional liability insurance premium for that health care professional; the fact that the professional fees for services are billed by the hospital; or any requirement by the hospital that such health care professional engage in conduct required to satisfy any state or federal statute or regulation, any standard of care, any standard or guideline set by an association of hospitals or health care professionals, or any accreditation standard adopted by a national accreditation organization.
If any dog, while not on the premises of its owner or the person having charge of it, kills or injures any livestock, the owner or person having charge of the dog shall be liable for damages sustained by the killing or maiming of the livestock and for the full costs of action.
A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash. The foregoing sentence shall not apply to domesticated fowl including roosters with spurs. The foregoing sentence shall not apply to domesticated livestock.
Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.
(a) A licensee is a person who:
(1) Is neither a customer, a servant, nor a trespasser;
(2) Does not stand in any contractual relation with the owner of the premises; and
(3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.
(b) The owner of the premises is liable to a licensee only for willful or wanton injury.
(a) As used in this Code section, the term “possessor of land” means the landowner, occupant of the land, holder of any easement to the land, or lessee of the land.
(b) A lawful possessor of land owes no duty of care to a trespasser except to refrain from causing a willful or wanton injury.
(c) Georgia common law as it exists and is applied to the doctrine of attractive nuisance, in effect as of January 1, 2014, shall not be construed to be altered by this Code section.
(d) This Code section shall not affect any immunities from or defenses to civil liability to which a lawful possessor of land may be entitled.
The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners' liability toward persons entering thereon for recreational purposes.
As used in this article, the term:
(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.
(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(3) “Owner” means the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.
(4) “Recreational purpose” includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, aviation activities, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.
Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.
Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose;
(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or
(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.
Unless otherwise agreed in writing, Code Sections 51-3-22 and 51-3-23 shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.
Nothing in this article limits in any way any liability which otherwise exists:
(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or
(2) On a date when the owner of land charges any individual who lawfully enters such land for recreational use and any individual is injured in connection with the recreational use for which the charge was made, provided that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this Code section.
Nothing in this article shall be construed to:
(1) Create a duty of care or ground of liability for injury to persons or property; or
(2) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this article to exercise care in his use of the land and in his activities thereon or from the legal consequences of failure to employ such care.
A landowner who allows wildlife to traverse the owner's property, or a person hunting game on such property with permission, shall be immune from civil liability for damage and injuries which may be caused by wildlife which traverse the landowner's property and enter a public roadway or right of way, provided that the conduct of the landowner or person hunting game does not constitute gross negligence or willful and wanton misconduct.
(a) For the purposes of this Code section, the term “agritourism” shall carry the same meaning as set out in subparagraph (p)(7)(B) of Code Section 48-5-7.4.
(b) A landowner who charges admission for a person who is 18 years of age or older to hunt or fish on the owner's property or to enter the owner's property for the purposes of agritourism shall be immune from civil liability for any injuries caused by the inherent risk associated with agritourism, hunting, or fishing activity, provided that:
(1) The landowner's conduct does not constitute gross negligence or willful and wanton misconduct;
(2) The landowner has posted at the main point of entry, if present, to the property a sign with a warning notice stating the following:
(A) In the case of agritourism:
“Warning
Under Georgia law, there is no liability for an injury or death of a participant at least 18 years of age in a registered agritourism activity conducted at this registered agritourism location if such injury or death results from the inherent risks of such agritourism activity. Inherent risks of agritourism activities include, but shall not be limited to, the potential of you to act in a negligent manner that may contribute to your injury or death and the potential of another participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this registered agritourism activity.”
(B) In the case of a landowner who charges admission for a person who is 18 years of age or older to hunt or fish on the owner's property:
“Warning
Under Georgia law, there is no liability for an injury or death of a hunting or fishing participant at least 18 years of age conducted at this location if such injury or death results from the inherent risks of such hunting or fishing activity. Inherent risks of hunting or fishing activities include, but shall not be limited to, the potential of you to act in a negligent manner that may contribute to your injury or death and the potential of another participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this hunting or fishing activity.”
The warning notice specified in this paragraph shall appear on the sign in black letters, with each letter to be a minimum of one inch in height; and
(3) The person who has paid admission to the landowner to enter such landowner's property to hunt, fish, or for the purposes of agritourism has signed a waiver of liability form stating that the person entering the landowner's property has waived all civil liability against the landowner for any injuries caused by the inherent risk associated with agritourism, hunting, or fishing activity. Such waiver of liability form shall mirror the language provided for in paragraph (2) of this subsection regarding the warning notice.
(c) This Code section shall be supplemental to all other provisions of law that provide defenses to property owners. This Code section shall not create any new cause of action against a property owner or additional liability to property owners.
As used in this article, the term:
(1) “Crew member” means any employee of a space flight entity or any contractor or subcontractor of a space flight entity who performs activities directly relating to the launch, reentry, or other operation of or in a spacecraft, launch vehicle, or reentry vehicle.
(2) “Launch” means a placement or attempted placement of a launch vehicle, reentry vehicle, or spacecraft in a suborbital trajectory, in Earth orbit, or in outer space, including activities involved in the preparation of a launch vehicle, reentry vehicle, or spacecraft for such placement or attempted placement.
(3) “Launch vehicle” means any contrivance and its stages or components designed to operate or place a spacecraft in a suborbital trajectory, in Earth orbit, or in outer space.
(4) “Local government” means a county, municipal corporation, or consolidated government of the State of Georgia.
(5) “Local governmental unit” means a local government and any office, agency, department, commission, board, body, division, instrumentality, or institution thereof.
(6) “Person” means an individual, proprietorship, corporation, firm, partnership, association, or other such entity.
(7) “Reentry” means a return or attempt to return of a launch vehicle, reentry vehicle, or spacecraft from a suborbital trajectory, from Earth orbit, or from outer space to Earth, including activities involved in the recovery of a launch vehicle, reentry vehicle, or spacecraft.
(8) “Reentry vehicle” means any contrivance and its stages or components designed to return from Earth orbit or outer space to Earth substantially intact. The term “reentry vehicle” shall include a reusable launch vehicle.
(9) “Reusable launch vehicle” means a launch vehicle that is designed to return to Earth substantially intact for use in more than one launch or that contains vehicle stages that may be recovered for future use in the operation of a substantially similar launch vehicle.
(10) “Spacecraft” means any object and its components designed to be launched for operations in a suborbital trajectory, in Earth orbit, or in outer space, including, but not limited to, a satellite, a payload, an object carrying a crew member or space flight participant, and any subcomponents of the launch vehicle or reentry vehicle specifically designed or adapted for such object.
(11) “Space flight activities” means activities and training in any phase of preparing for or undertaking space flight, including, but not limited to, the:
(A) Preparation of a launch vehicle, reentry vehicle, payload, spacecraft, crew member, or space flight participant for launch, space flight, or reentry;
(B) Conduct of the launch;
(C) Conduct occurring between the launch and reentry;
(D) Conduct of reentry and descent;
(E) Conduct of the landing;
(F) Conduct of post landing recovery of a launch vehicle, reentry vehicle, payload, spacecraft, crew member, or space flight participant; and
(G) Conduct of embarking or disembarking of a launch vehicle, reentry vehicle, payload, spacecraft, crew member, or space flight participant.
(12) “Space flight entity” means:
(A) A person which conducts space flight activities and which, to the extent required by federal law, has obtained the appropriate Federal Aviation Administration license or other authorization, including any safety approval and a payload determination that may be required under federal law or the laws of the State of Georgia;
(B) A manufacturer or supplier of components, services, spacecrafts, launch vehicles, or reentry vehicles used in space flight activities;
(C) An employee, officer, director, owner, stockholder, member, manager, advisor, or partner of the entity, manufacturer, or supplier;
(D) An owner or lessor of real property on which space flight activities are conducted;
(E) A state agency or local governmental unit with a contractual relationship with any person described in subparagraphs (A) through (D) of this paragraph; or
(F) A state agency or local governmental unit having jurisdiction in the territory in which space flight activities are conducted.
(13) “Space flight participant” means an individual who:
(A) Is not a crew member; and
(B)(i) Is carried aboard a spacecraft, launch vehicle, or reentry vehicle; or
(ii) Has indicated a desire to be carried aboard a spacecraft, launch vehicle, or reentry vehicle as demonstrated by paying any deposit or fee required, if any, to be carried aboard a spacecraft, launch vehicle, or reentry vehicle or by participating in any training program or orientation session that may be required by a space flight entity.
(14) “Space flight participant injury” means harm or damage sustained by a space flight participant, including bodily harm, emotional distress, death, disability, or any other loss.
(15) “State agency” means any department, commission, or other institution of the executive branch of the government of the State of Georgia.
(16) “This state” means the State of Georgia, all land and water over which it has either exclusive or concurrent jurisdiction, and the airspace above such land and water.
(a) Except as provided in subsection (b) of this Code section, a space flight entity shall not be civilly liable to or criminally responsible for any person for a space flight participant injury arising out of inherent risks associated with any space flight activities occurring in or originating from this state if the space flight participant has:
(1) Signed the warning and agreement required by Code Section 51-3-43; and
(2) Given written informed consent as may be required by 51 U.S.C. Section 50905 or other federal law.
(b) Nothing in this Code section shall:
(1) Limit liability for a space flight participant injury:
(A) Proximately caused by the space flight entity's gross negligence for the safety of the space flight participant; or
(B) Intentionally caused by the space flight entity;
(2) Limit the liability of any space flight entity against any person other than a space flight participant who meets the requirements of paragraphs (1) and (2) of subsection (a) of this Code section;
(3) Limit liability for the breach of a contract for use of real property by a space flight entity; or
(4) Preclude an action by the federal government, the State of Georgia, or any state agency to enforce a valid statute or rule or regulation.
(c) The limitations on legal liability afforded to a space flight entity by the provisions of this article shall be in addition to any other limitations of legal liability provided by federal law or the laws of this state.
(a) A space flight participant shall sign a warning and agreement before participating in any space flight activity. Such warning and agreement shall be in writing and include the following language:
“WARNING AND AGREEMENT
UNDER GEORGIA LAW THERE IS NO LIABILITY FOR INJURY, DEATH, OR OTHER LOSS RESULTING FROM ANY INHERENT RISKS OF SPACE FLIGHT ACTIVITIES. SUCH INHERENT RISKS OF SPACE FLIGHT ACTIVITIES INCLUDE, WITHOUT LIMITATION, THE POTENTIAL FOR SERIOUS BODILY INJURY, SICKNESS, PERMANENT DISABILITY, PARALYSIS, AND LOSS OF LIFE; EXPOSURE TO EXTREME CONDITIONS AND CIRCUMSTANCES; ACCIDENTS, CONTACT, OR COLLISION WITH OTHER SPACE FLIGHT PARTICIPANTS, SPACE FLIGHT VEHICLES, AND EQUIPMENT; AND DANGERS ARISING FROM ADVERSE WEATHER CONDITIONS AND EQUIPMENT FAILURE.
I UNDERSTAND AND ACKNOWLEDGE THAT BY SIGNING THIS WARNING AND AGREEMENT, I HAVE EXPRESSLY ACCEPTED AND ASSUMED ALL RISKS AND RESPONSIBILITIES FOR INJURY, DEATH, AND OTHER LOSS THAT MAY RESULT FROM THE INHERENT RISKS ASSOCIATED WITH PARTICIPATION IN ANY SPACE FLIGHT ACTIVITIES. I FURTHER UNDERSTAND AND AGREE THAT BY SIGNING THIS WARNING AND AGREEMENT, I HAVE EXPRESSLY WAIVED ALL CLAIMS OF MY HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, AND ASSIGNEES FOR ANY INJURY, DEATH, AND OTHER LOSS THAT MAY RESULT FROM MY PARTICIPATION IN ANY SPACE FLIGHT ACTIVITIES DUE TO THE INHERENT RISKS ASSOCIATED WITH PARTICIPATION IN SPACE FLIGHT ACTIVITIES.
FURTHER WARNING: DO NOT SIGN UNLESS YOU HAVE READ AND UNDERSTOOD THIS WARNING AND AGREEMENT.”
(b) The warning and agreement under subsection (a) of this Code section shall be considered effective and enforceable if it is:
(1) In writing;
(2) In a document separate from any other agreement between the space flight participant and the space flight entity other than a warning, consent, or assumption of risk statement required under federal law or under applicable laws of another state;
(3) Printed in capital letters in not less than 10-point bold type;
(4) Signed by the space flight participant;
(5) Signed by a competent witness; and
(6) Provided to the space flight participant at least 24 hours prior to such space flight participant's participation in any space flight activity.
(c) A warning and agreement that is in writing and signed by a space flight participant that is in compliance with the requirements of this Code section shall be considered effective and enforceable as to the heirs, executors, administrators, successors, and assignees of the space flight participant with respect to a space flight entity's civil liability or criminal responsibility for a space flight participant injury to such space flight participant.
(d) A warning and agreement executed pursuant to this Code section shall not limit liability for a space flight participant injury:
(1) Proximately caused by the space flight entity's gross negligence evidencing willful or wanton disregard for the safety of the space flight participant; or
(2) Intentionally caused by a space flight entity.
(e) A warning and agreement executed in compliance with this Code section shall not be deemed unconscionable or against public policy.
Any litigation, action, suit, or other arbitral, administrative, or judicial proceeding at law or equity against a space flight entity pertaining to space flight activities shall be governed by the laws of the State of Georgia.
As used in this chapter, the term:
(1) “Full value of the life of the decedent, as shown by the evidence” means the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived.
(2) “Homicide” includes all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence.
(a) The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.
(b)(1) If an action for wrongful death is brought by a surviving spouse under subsection (a) of this Code section and the surviving spouse dies pending the action, the action shall survive to the child or children of the decedent.
(2) If an action for wrongful death is brought by a child or children under subsection (a) of this Code section and one of the children dies pending the action, the action shall survive to the surviving child or children.
(3) If there is no surviving spouse and an action for wrongful death is brought by a minor child or minor children under subsection (a) of this Code section, the natural guardian, guardian, or next friend of any such minor child shall:
(A) Qualify as a conservator if necessary to receive payment of the settlement and shall thereafter hold and use the settlement for the benefit of the minor and shall be accountable for the same as provided in Code Section 29-3-1, and
(B) Obtain court approval of such settlement of such minor child or minor children as provided in Code Section 29-3-3.
(c) The surviving spouse may release the alleged wrongdoer without the concurrence of the child or children or any conservator, guardian, next friend, or other authorized representative thereof and without any order of court, provided that such spouse shall hold the consideration for such release subject to subsection (d) of this Code section and shall be accountable for same.
(d)(1) Any amount recovered under subsection (a) of this Code section shall be equally divided, share and share alike, among the surviving spouse and the children per capita, and the descendants of children shall take per stirpes.
(2) Notwithstanding paragraph (1) of this subsection, the surviving spouse shall receive no less than one-third of such recovery as such spouse's share. If there is no surviving spouse, the amount recovered under subsection (a) of this Code section shall be equally divided, share and share alike, among the children per capita, and the descendants of children shall take per stirpes.
(e) No recovery had under subsection (a) of this Code section shall be subject to any debt or liability of the decedent or of the decedent's estate.
(f) In actions for recovery under this Code section, the fact that a child has been born out of wedlock shall be no bar to recovery.
The right to recover for the homicide of a child shall be as provided in Code Section 19-7-1 and Code Section 53-1-5.
(a) When there is no person entitled to bring an action for the wrongful death of a decedent under Code Section 51-4-2 or 51-4-4, the administrator or executor of the decedent may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin. In any such case the amount of the recovery shall be the full value of the life of the decedent.
(b) When death of a human being results from a crime or from criminal or other negligence, the personal representative of the deceased person shall be entitled to recover for the funeral, medical, and other necessary expenses resulting from the injury and death of the deceased person.
(a) As used in this Code section, the term “health care provider” shall have the same meaning as set forth in Code Section 16-5-5.
(b) Within ten days of a judgment, a health care provider against whom a judgment has been obtained under the provisions of this chapter shall notify in writing the applicable licensing board for his or her licensure, certification, registration, or other authorization to conduct such health care provider's occupation so that disciplinary action may be taken as determined necessary by the applicable board.
(a) A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.
(b) The publication of the libelous matter is essential to recovery.
(a) Any false and malicious defamation of another in any newspaper, magazine, or periodical, tending to injure the reputation of the person and expose him to public hatred, contempt, or ridicule, shall constitute a newspaper libel.
(b) The publication of the libelous matter is essential to recovery.
A libel is published as soon as it is communicated to any person other than the party libeled.
(a) Slander or oral defamation consists in:
(1) Imputing to another a crime punishable by law;
(2) Charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society;
(3) Making charges against another in reference to his trade, office, or profession, calculated to injure him therein; or
(4) Uttering any disparaging words productive of special damage which flows naturally therefrom.
(b) In the situation described in paragraph (4) of subsection (a) of this Code section, special damage is essential to support an action; in the situations described in paragraphs (1) through (3) of subsection (a) of this Code section, damage is inferred.
In all actions for printed or spoken defamation, malice is inferred from the character of the charge. However, the existence of malice may be rebutted by proof. In all cases, such proof shall be considered in mitigation of damages. In cases of privileged communications, such proof shall bar a recovery.
The truth of the charge made may always be proved in justification of an alleged libel or slander.
The following communications are deemed privileged:
(1) Statements made in good faith in the performance of a public duty;
(2) Statements made in good faith in the performance of a legal or moral private duty;
(3) Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned;
(4) Statements made in good faith as part of an act in furtherance of the person's or entity's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1;
(5) Fair and honest reports of the proceedings of legislative or judicial bodies;
(6) Fair and honest reports of court proceedings;
(7) Comments of counsel, fairly made, on the circumstances of a case in which he or she is involved and on the conduct of the parties in connection therewith;
(8) Truthful reports of information received from any arresting officer or police authorities; and
(9) Comments upon the acts of public men or public women in their public capacity and with reference thereto.
All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.
In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action.
(a) The owner, licensee, or operator of a visual or sound broadcasting station or network of stations and the agents or employees of any owner, licensee, or operator shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound broadcast by one other than the owner, licensee, or operator or an agent or employee thereof, unless it is alleged and proved by the complaining party that the owner, licensee, operator or the agent or employee has failed to exercise due care to prevent the publication or utterance of the statement in the broadcast.
(b) In no event shall any owner, licensee, or operator or the agents or employees of any owner, licensee, or operator of such a station or network of stations be held liable for any damages for any defamatory statement uttered over the facilities of the station or network by or on behalf of any candidate for public office.
(c) In any action for damages for any defamatory statement published or uttered in or as a part of a visual or sound broadcast, the complaining party shall be allowed only such actual, consequential, or punitive damages as have been alleged and proved.
(a) In any civil action for libel which charges the publication of an erroneous statement alleged to be libelous, it shall be relevant and competent evidence for either party to prove that the plaintiff requested retraction in writing at least seven days prior to the filing of the action or omitted to request retraction in this manner.
(b) In any such action, the defendant may allege and give proof of the following matters, as applicable:
(1)(A) That the matter alleged to have been published and to be libelous was published without malice;
(B) That the defendant, in a regular issue of the newspaper or other publication in question, within seven days after receiving written demand, or in the next regular issue of the newspaper or other publication following receipt of the demand if the next regular issue was not published within seven days after receiving the demand, corrected and retracted the allegedly libelous statement in as conspicuous and public a manner as that in which the alleged libelous statement was published; and
(C) That, if the plaintiff so requested, the retraction and correction were accompanied, in the same issue, by an editorial in which the allegedly libelous statement was specifically repudiated; or
(2) That no request for correction and retraction was made in writing by the plaintiff.
(c) Upon proof of the facts specified in paragraph (1) or (2) of subsection (b) of this Code section, the plaintiff shall not be entitled to any punitive damages and the defendant shall be liable only to pay actual damages. The defendant may plead the publication of the correction, retraction, or explanation, including the editorial, if demanded, in mitigation of damages.
(a) In any civil action for a defamatory statement which charges the visual or sound broadcast of an erroneous statement alleged to be defamatory, it shall be relevant and competent evidence for either party to prove that the plaintiff requested retraction or omitted to request retraction.
(b) In any such action, the defendant may allege and give proof of the following matters, as applicable:
(1)(A) That the matter alleged to have been broadcast and to be defamatory was published without malice;
(B) That the defendant, in a regular broadcast of the station over which the broadcast in question was made, within three days after receiving written demand, corrected and retracted the allegedly defamatory statement in as conspicuous and public a manner as that in which the alleged defamatory statement was broadcast; and
(C) That, if the plaintiff so requested, the retraction and correction were accompanied, on the same day, by an editorial in which the allegedly defamatory statement was specifically repudiated; or
(2) That no request for correction and retraction was made by the plaintiff.
(c) Upon proof of the facts specified in paragraph (1) or (2) of subsection (b) of this Code section, the plaintiff shall not be entitled to any punitive damages and the defendant shall be liable only to pay actual damages. The defendant may plead the broadcast of the correction, retraction, or explanation, including the editorial, if demanded, in mitigation of damages.
Fraud, accompanied by damage to the party defrauded, always gives a right of action to the injured party.
(a) Willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action. Mere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action.
(b) In all cases of deceit, knowledge of the falsehood constitutes an essential element of the tort. A fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false.
No action shall be sustained for deceit in a representation to obtain credit for another unless the misrepresentation is in writing and is signed by the party to be charged therewith.
(a) A fraud may be committed by acts as well as words.
(b) One who silently stands by and permits another to purchase his property, without disclosing his title, is guilty of such a fraud as estops him from subsequently setting up such title against the purchaser.
An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested.
Malice consists in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.
Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Lack of probable cause shall be a question for the jury, under the direction of the court.
The willful arrest, under civil process, of a person exempt by law from such arrest shall be deemed malicious until the contrary shall be proved.
False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.
If imprisonment is by virtue of a warrant, neither the party who procured the warrant in good faith nor the officer who executed the warrant in good faith shall be liable for false imprisonment even if the warrant is defective in form or is void for lack of jurisdiction. In such cases, good faith must be determined from the circumstances. A judicial officer issuing a warrant in good faith shall not be liable for false imprisonment, provided that, when he has no jurisdiction, there shall be a presumption against such officer's good faith.
If false imprisonment is the act of several persons, they may be subject to an action jointly or separately. If jointly, all shall be responsible for the entire recovery.
A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.
The criminal prosecution forming the basis for an action for malicious prosecution must be ended before the right of action for malicious prosecution accrues.
For purposes of this article, an inquiry before a committing court or a magistrate shall amount to a prosecution.
Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Lack of probable cause shall be a question for the jury, under the direction of the court.
A total lack of probable cause is a circumstance from which malice may be inferred; however, the inference may be rebutted by proof.
For consideration of the existence of probable cause, the evidence given during the criminal prosecution by the person accused of the malicious prosecution may be submitted to the jury by either party. The credibility of such evidence shall be determined by the jury.
(a) No member of a grand jury shall be subject to an action for malicious prosecution based upon a presentment made by the grand jury.
(b) If a presentment is made at the instigation of a third person, from malice on his part and without probable cause, he shall be liable to an action for malicious prosecution just as if he were named as prosecutor.
Recovery in actions for malicious prosecution shall not be confined to the actual damage sustained by the accused but shall be regulated by the circumstances of each case.
Whenever the owner or operator of a retail establishment as defined in Code Section 16-7-2 or a food service establishment as defined in Code Section 26-2-370 or any agent or employee thereof detains or causes to be detained any person pursuant to Code Section 17-4-80 and any person who detains or causes to be detained a person while acting pursuant to Article 2 of Chapter 3 of Title 16 wherein the person so detained brings an action for false arrest or false imprisonment against such owner, operator, agent, employee, or person, no recovery shall be had by the plaintiff in such action when it is established by competent evidence:
(1) That the plaintiff had so conducted himself or herself or behaved in such manner as to cause a person of reasonable prudence to believe that the plaintiff, at or immediately prior to the time of the detention, was committing an:
(A) Offense authorized for detention pursuant to Code Section 17-4-80; or
(B) Act which caused a detention which was justified as provided in Article 2 of Chapter 3 of Title 16; and
(2) That the manner of the detention and the length of time during which such plaintiff was detained was under all the circumstances reasonable.
(a) As used in this Code section, the term “antishoplifting or inventory control device” means a mechanism or other device designed and operated for the purpose of detecting the removal of specially marked or tagged merchandise from a mercantile establishment or similar enclosure or from a protected area within such an enclosure.
(b) In the case of a mercantile establishment utilizing an antishoplifting or inventory control device, the automatic activation of the device as a result of a person exiting the establishment or a protected area within the establishment shall constitute reasonable cause for the detention of the person so exiting by the owner or operator of the establishment or by an agent or employee of the owner or operator. Each detention shall be made only in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the device.
(c) This Code section shall apply only with respect to mercantile establishments in which a notice has been posted in a clear and visible manner advising patrons of the establishment that an antishoplifting or inventory control device is being utilized in the establishment.
Whenever the owner, operator, or lessee of a motion picture exhibition facility or any agent or employee of the owner, operator, or lessee detains, arrests, or causes to be detained or arrested any person reasonably thought to be engaged in film piracy in violation of Code Section 16-8-62 and, as a result of the detention or arrest, the person so detained or arrested brings an action for false arrest or false imprisonment against the owner, operator, lessee, agent, or employee, no recovery shall be had by the plaintiff in such action where it is established by competent evidence:
(1) That the plaintiff had so conducted himself or herself or behaved in such manner as to cause a person of reasonable prudence to believe that the plaintiff, at or immediately prior to the time of the detention or arrest, was committing the offense of film piracy, as defined by Code Section 16-8-62; or
(2) That the manner of the detention or arrest and the length of time during which such plaintiff was detained was under all the circumstances reasonable.
As used in this article, the term:
(1) “Civil proceeding” includes any action, suit, proceeding, counterclaim, cross-claim, third-party claim, or other claim at law or in equity.
(2) “Claim” includes any allegation or contention of fact or law asserted in support of or in opposition to any civil proceeding, defense, motion, or appeal.
(3) “Defense” includes any denial of allegations made by another party in any pleading, motion, or other paper submitted to the court for the purpose of seeking affirmative or negative relief, and any affirmative defense or matter asserted in confession or avoidance.
(4) “Good faith,” when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position, means that to the best of a person's or his or her attorney's knowledge, information, and belief, formed honestly after reasonable inquiry, that such civil proceeding, claim, defense, motion, appeal, or other position is well grounded in fact and is either warranted by existing law or by reasonable grounds to believe that an argument for the extension, modification, or reversal of existing law may be successful.
(5) “Malice” means acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.
(6) “Person” means an individual, corporation, company, association, firm, partnership, society, joint-stock company, or any other entity, including any governmental entity or unincorporated association of persons with capacity to sue or be sued.
(7) “Without substantial justification,” when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position, means that such civil proceeding, claim, defense, motion, appeal, or other position is:
(A) Frivolous;
(B) Groundless in fact or in law; or
(C) Vexatious.
(8) “Wrongful purpose” when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position results in or has the effect of:
(A) Attempting to unjustifiably harass or intimidate another party or witness to the proceeding; or
(B) Attempting to unjustifiably accomplish some ulterior or collateral purpose other than resolving the subject controversy on its merits.
Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts:
(1) With malice; and
(2) Without substantial justification.
(a) It shall be a complete defense to any claim for abusive litigation that the person against whom a claim of abusive litigation is asserted has voluntarily withdrawn, abandoned, discontinued, or dismissed the civil proceeding, claim, defense, motion, appeal, civil process, or other position which the injured person claims constitutes abusive litigation within 30 days after the mailing of the notice required by subsection (a) of Code Section 51-7-84 or prior to a ruling by the court relative to the civil proceeding, claim, defense, motion, appeal, civil process, or other position, whichever shall first occur; provided, however, that this defense shall not apply where the alleged act of abusive litigation involves the seizure or interference with the use of the injured person's property by process of attachment, execution, garnishment, writ of possession, lis pendens, injunction, restraining order, or similar process which results in special damage to the injured person.
(b) It shall be a complete defense to any claim for abusive litigation that the person against whom a claim of abusive litigation is asserted acted in good faith; provided, however, that good faith shall be an affirmative defense and the burden of proof shall be on the person asserting the actions were taken in good faith.
(c) It shall be a complete defense to any claim for abusive litigation that the person against whom a claim of abusive litigation is asserted was substantially successful on the issue forming the basis for the claim of abusive litigation in the underlying civil proceeding.
(a) A plaintiff who prevails in an action under this article shall be entitled to all damages allowed by law as proven by the evidence, including costs and expenses of litigation and reasonable attorney's fees.
(b) If the abusive litigation is in a civil proceeding of a court of record and no damages other than costs and expenses of litigation and reasonable attorney's fees are claimed, the procedures provided in Code Section 9-15-14 shall be utilized instead.
(c) No motion filed under Code Section 9-15-14 shall preclude the filing of an action under this article for damages other than costs and expenses of litigation and reasonable attorney's fees. Any ruling under Code Section 9-15-14 is conclusive as to the issues resolved therein.
(a) As a condition precedent to any claim for abusive litigation, the person injured by such act shall give written notice by registered or certified mail or statutory overnight delivery or some other means evidencing receipt by the addressee to any person against whom such injured person intends to assert a claim for abusive litigation and shall thereby give the person against whom an abusive litigation claim is contemplated an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding, claim, defense, motion, appeal, civil process, or other position. Such notice shall identify the civil proceeding, claim, defense, motion, appeal, civil process, or other position which the injured person claims constitutes abusive litigation.
(b) An action or claim under this article requires the final termination of the proceeding in which the alleged abusive litigation occurred and must be brought within one year of the date of final termination.
On and after April 3, 1989, no claim other than as provided in this article or in Code Section 9-15-14 shall be allowed, whether statutory or common law, for the torts of malicious use of civil proceedings, malicious abuse of civil process, nor abusive litigation, provided that claims filed prior to such date shall not be affected. This article is the exclusive remedy for abusive litigation.
The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.
The bare right to possession of lands shall authorize their recovery by the owner of such right, as well as damages for the withholding of such right.
The bare possession of land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any manner.
The person having title to lands, if no one is in actual possession under the same title with him, may bring an action for a trespass thereon. If a tenant is in possession and the trespass is one which injures the freehold, the owner or a remainderman or reversioner may still bring the action.
If two persons claim to have actual possession of the same land, the person having legal title shall be deemed to be in possession and the other person shall be considered a trespasser.
Damages for a continuing trespass are limited to those which have occurred before an action is commenced. Subsequent damages flowing from a continuation of the trespass give a new cause of action.
The owner of land through which nonnavigable watercourses flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other riparian proprietors. The diverting of the stream in whole or in part from its natural and usual flow, or the obstructing thereof so as to impede its course or cause it to overflow or injure the land through which it flows or any right appurtenant thereto, or the polluting thereof so as to lessen its value to the owner of such land shall constitute a trespass upon the property.
The course of a stream of water underground and its exact condition before its first use are so difficult of ascertainment that trespass may not be brought for any supposed interference with the rights of a proprietor.
The owner of realty has title downwards and upwards indefinitely; and an unlawful interference with his rights, either below or above the surface, gives him a right of action.
The unlawful interference with a right of way or a right of common constitutes a trespass to the party entitled thereto.
The owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.
The owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies.
Interference with the mere possession of a chattel, even if the possession is without title or is wrongful, shall give a right of action to the possessor, except as against the true owner or the person wrongfully deprived of possession.
Any unlawful abuse of or damage done to the personal property of another constitutes a trespass for which damages may be recovered.
Where the possession of personalty is in a bailee, a trespass committed during the existence of the bailment shall give a right of action to the bailee for the interference with his special property and a concurrent right of action to the bailor for the interference with his general property.
A remainderman or reversioner of personalty may bring an action against a wrongdoer for any injury tending to destroy the existence or ultimate value of the property. In such cases the tenant in possession may bring an action jointly with the remainderman or reversioner for the injury to the entire estate, the recovery being held under like limitations.
(a) Any owner of personal property shall be authorized to bring a civil action to recover damages from any person who willfully damages the owner's personal property or who commits a theft as defined in Article 1 of Chapter 8 of Title 16 involving the owner's personal property. The owner of the personal property may recover as follows:
(1) In any such action, the property owner may recover compensatory damages which may include, in addition to the value of the personal property, any other loss sustained as a result of the willful damage or theft offense; and
(2) In any such action in which the value of the total claim, including exemplary damages, is less than $5,000.00, the property owner may recover compensatory damages, as described in paragraph (1) of this subsection, and additionally may recover liquidated exemplary damages equal to $300.00 or triple the amount of the entire loss sustained by the property owner as a result of the willful damage or theft offense, whichever is greater, and the cost of maintaining the civil action if all of the following apply:
(A) The property owner, at least 30 days prior to the filing of the action, provided written notice of a demand by personal delivery or certified mail or statutory overnight delivery, return receipt requested, for payment of the value of that personal property, the amount of any other loss sustained as a result of the willful damage or theft offense, and the liquidated exemplary damages set out in this paragraph upon the person who willfully damaged the property or who committed the theft offense;
(B) Either the person who willfully damaged the personal property or who committed the theft offense did not make payment to the property owner of the amount specified in the demand within 30 days after the date of receipt of the written demand or did not enter into an agreement with the property owner during that 30 day period for such payment, or the person who willfully damaged the personal property or who committed the theft offense entered into an agreement with the property owner during that 30 day period for such payment but the person did not make such payment in accordance with the terms of the agreement; and
(C) The property owner did not file a civil complaint against the person who willfully damaged the personal property or who committed the theft offense prior to the expiration of 30 days after the date of service of the written demand upon the person, or, if the person had entered into an agreement with the property owner during that 30 day period for payment, prior to the day on which the person failed to make payment in accordance with the terms of the agreement, whichever is applicable.
(b) The person or persons against whom the property owner brings a civil action pursuant to this Code section shall be entitled to recover reasonable attorney's fees and court costs upon a finding that the claimant raised a claim which was without reasonable, factual, or legal support.
(c) For purposes of paragraph (2) of subsection (a) of this Code section, written notice of demand for payment shall be substantially as follows:
“Upon reasonable cause, notice is given of (my) (our) demand for payment of damages in the amount of (state amount claimed: total should be $300.00 or triple the amount of the entire loss sustained by the property owner as a result of the willful damage or theft offense, whichever is greater) arising out of your (willful damage, theft, or unlawful conversion) of the following personal property owned by (the undersigned or other owner):
(List affected property)
Pursuant to Code Section 51-10-6 of the Official Code of Georgia Annotated, you are further notified that if the above-stated amount is not paid, or a written agreement as to its payment is not reached, within 30 days of the date you receive this letter, (I) (we) (other owner) intend to bring an action against you for such amount, plus attorney's fees, plus court costs, and such other relief as the law provides.
____________________”
(d) If a property owner whose personal property was willfully damaged or was the subject of a theft offense provides written notice of demand for payment upon a person who willfully damaged the personal property or who committed the theft offense, and the person makes payment in accordance with the demand within 30 days after the date of service of the written demand upon him or the person enters into an agreement with the property owner during that 30 day period for such payment and makes payment in accordance with the agreement, the property owner shall not file a civil complaint against the person in relation to the willful property damage or theft offense.
(e) In a civil action to recover damages for willful damage to personal property or for a theft offense, the trier of fact may determine that an owner's property was willfully damaged or that a theft offense involving the owner's personal property has been committed, whether or not any person has pleaded guilty to or has been convicted of any criminal offense or has been adjudicated delinquent in relation to any act involving the owner's personal property.
(f) As used in this Code section, the term “value” means the retail value of any personal property that is offered for sale by a mercantile establishment or the replacement value of any other personal property.
(g) If a civil action is filed pursuant to Article 4 of Chapter 12 of Title 44 to recover personal property or damages resulting from willful damage to or theft of such personal property, no civil action authorized by this Code section shall be permitted.
(h) The measure of damages provided for in this Code section shall not be applicable in cases involving the unauthorized cutting or cutting and carrying away of timber from the property of another. In such cases, damages shall be awarded in accordance with Code Section 51-12-50.
If the defendant in a tort action was authorized to do the act complained of, he may plead such authorization as justification. The effect of such plea is to admit that the act was done and to entitle the defendant to all the privileges of one holding the affirmative of the issue. Such plea, however, shall not give the defendant the right to open and conclude the argument before the jury unless it is filed before the plaintiff submits any evidence to the jury.
As a general rule no tort can be committed against a person consenting thereto if that consent is free, is not obtained by fraud, and is the action of a sound mind. The consent of a person incapable of consenting, such as a minor, may not affect the rights of any other person having a right of action for the injury.
Circumstances not amounting to justification may be pleaded in extenuation and mitigation of damages.
Arbitrament and award constitute a good defense to a tort action, and the rules applied to this defense in a contract action apply equally to tort actions.
Former recovery and the pendency of another action are good defenses in tort actions and are subject to the same rules as when applied to contracts.
Infancy is no defense to a tort action so long as the defendant has reached the age of discretion and accountability prescribed by Code Section 16-3-1 for criminal offenses.
If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.
(a) Any person employed by a licensed compressed gas dealer who provides assistance upon request of any law enforcement agency, fire department, rescue or emergency squad, or any governmental agency in the event of an accident or other emergency involving the use, handling, transportation, transmission, or storage of liquefied petroleum gas, when the reasonably apparent circumstances require prompt decisions and actions, shall not be liable for any civil damages resulting from any act of commission or omission on his part in the course of his rendering such assistance unless such acts or omissions amount to willful or wanton negligence or intentional wrongdoing. Nothing in this Code section shall be deemed or construed to relieve any person from liability for civil damages: (1) where the accident or emergency referred to in this subsection involved his own facilities or equipment or (2) resulting from any act of commission or omission on his part in the course of providing care or assistance in the normal and ordinary course of conducting his own business or profession, nor shall this Code section be construed to relieve from liability for civil damages any other tort-feasor not referred to in this Code section.
(b) Nothing in subsection (a) of this Code section applies to the rendering of such care, assistance, or advice where the same is rendered for remuneration beyond reimbursement for out-of-pocket expenses in connection therewith, or with the expectation of such remuneration, from the recipient or recipients of such care, assistance, or advice or someone on his or their behalf.
(c) Subsection (a) of this Code section shall not preclude liability for civil damages as the result of gross negligence or intentional misconduct. Reckless, willful, or wanton misconduct shall constitute gross negligence.
A person who is justified in threatening or using force against another under the provisions of Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat from the use of such force and shall not be held liable to the person against whom the use of force was justified or to any person acting as an accomplice or assistant to such person in any civil action brought as a result of the threat or use of such force.
There shall be a rebuttable presumption that a property owner selling timber from his or her land and acting in good faith shall not be liable to adjoining landowners for any trespass or conversion of property caused by a third party timber harvester who is not subject to the control and direction of the property owner selling timber if, prior to the harvesting of such timber:
(1) A land surveyor possessing a certificate of registration issued by the State Board of Registration for Professional Engineers and Land Surveyors has surveyed the property from which the timber is to be harvested and plainly established and clearly marked the metes and bounds of the property such that a reasonable person would know or should have known of the existence of such markings when harvesting the timber and has provided a copy of that survey to the third-party timber harvester;
(2) The boundaries of the property from which timber is sold have been completely and accurately indicated using physical markers that are clearly visible such that a reasonable person would know or should have known of the existence of such physical markers; or
(3) The property owner has obtained a document indicating where the boundaries are and signed by adjoining landowners indicating that they agree on the location of such boundaries and has provided a copy of such document to the third-party timber harvester; provided, however, that such document shall only create a presumption in favor of the property owner with regard to those landowners who have signed such document.
(a) If a tort does not amount to a crime, the person injured may consent to a satisfaction and settlement thereof.
(b)(1) If a tort amounts to a crime, the person injured may agree upon and receive compensation for the personal injury.
(2) However, any attempt to satisfy the public offense or to suppress a prosecution therefor is illegal and will vitiate the entire agreement, except in those cases for which the law expressly allows such a settlement. Such an attempt to satisfy or to suppress prosecution of a public offense which amounts to a felony is itself an offense under this Code; and, even if executed, an agreement to this effect shall be no defense to an action for the tort. If the offense does not amount to a felony and the agreement is fully executed, such agreement shall constitute satisfaction for the private tort.
A person committing a tort may, before or after an action is brought, tender to the person injured such an amount of damages as in his judgment will cover the injury; and, if the same shall be rejected, he may deposit the amount in the office of the clerk of the superior court of the county of his residence as a continuing tender; and, if the jury trying the cause shall give no more damages than the amount tendered, the plaintiff shall recover no costs accruing subsequently to the time of the tender.
(a) Damages may be either general or special, direct or consequential.
(b) In any civil action, whether in tort or in contract, for the recovery of damages arising from a tortious injury in which special damages are sought to be recovered or evidence of same is otherwise introduced by the plaintiff, evidence of all compensation, indemnity, insurance (other than life insurance), wage loss replacement, income replacement, or disability benefits or payments available to the injured party from any and all governmental or private sources and the cost of providing and the extent of such available benefits or payments shall be admissible for consideration by the trier of fact. The trier of fact, in its discretion, may consider such available benefits or payments and the cost thereof but shall not be directed to reduce an award of damages accordingly.
(a) General damages are those which the law presumes to flow from any tortious act; they may be recovered without proof of any amount.
(b) Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered.
(a) Direct damages are those which follow immediately upon the doing of a tortious act.
(b) Consequential damages are those which are the necessary and connected effect of a tortious act, even though they are to some extent dependent upon other circumstances.
Damages are given as compensation for injury; generally, such compensation is the measure of damages where an injury is of a character capable of being estimated in money. If an injury is small or the mitigating circumstances are strong, nominal damages only are given.
(a) In a tort action in which there are aggravating circumstances, in either the act or the intention, the jury may give additional damages to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.
(b) This Code section shall apply only to causes of action for torts arising before July 1, 1987.
(a) As used in this Code section, the term “punitive damages” is synonymous with the terms “vindictive damages,” “exemplary damages,” and other descriptions of additional damages awarded because of aggravating circumstances in order to penalize, punish, or deter a defendant.
(b) Punitive damages 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.
(c) Punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.
(d)(1) An award of punitive damages must be specifically prayed for in a complaint. In any case in which punitive damages are claimed, the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made. This finding shall be made specially through an appropriate form of verdict, along with the other required findings.
(2) If it is found that punitive damages are to be awarded, the trial shall immediately be recommenced in order to receive such evidence as is relevant to a decision regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case. It shall then be the duty of the trier of fact to set the amount to be awarded according to subsection (e), (f), or (g) of this Code section, as applicable.
(e)(1) In a tort case in which the cause of action arises from product liability, there shall be no limitation regarding the amount which may be awarded as punitive damages. Only one award of punitive damages may be recovered in a court in this state from a defendant for any act or omission if the cause of action arises from product liability, regardless of the number of causes of action which may arise from such act or omission.
(2) Seventy-five percent of any amounts awarded under this subsection as punitive damages, less a proportionate part of the costs of litigation, including reasonable attorney's fees, all as determined by the trial judge, shall be paid into the treasury of the state through the Office of the State Treasurer. Upon issuance of judgment in such a case, the state shall have all rights due a judgment creditor until such judgment is satisfied and shall stand on equal footing with the plaintiff of the original case in securing a recovery after payment to the plaintiff of damages awarded other than as punitive damages. A judgment debtor may remit the state's proportional share of punitive damages to the clerk of the court in which the judgment was rendered. It shall be the duty of the clerk to pay over such amounts to the Office of the State Treasurer within 60 days of receipt from the judgment debtor. This paragraph shall not be construed as making the state a party at interest and the sole right of the state is to the proceeds as provided in this paragraph.
(f) In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act 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, there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than an active tort-feasor.
(g) For any tort action not provided for by subsection (e) or (f) of this Code section in which the trier of fact has determined that punitive damages are to be awarded, the amount which may be awarded in the case shall be limited to a maximum of $250,000.00.
(h) This Code section shall apply only to causes of action arising on or after April 14, 1997.
In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such an action, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be awarded.
In all cases, necessary expenses consequent upon an injury are a legitimate item in the estimate of damages.
If the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act or if other and contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer.
Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.
When a tort is committed, a contract is broken, or a duty is omitted with knowledge and for the purpose of depriving the plaintiff of certain contemplated benefits, the remote damages occasioned thereby become a proper subject for the consideration of the jury.
When a person is injured by the negligence of another, he must mitigate his damages as far as is practicable by the use of ordinary care and diligence. However, this duty to mitigate does not apply in cases of positive and continuous torts.
(a) The question of damages is ordinarily one for the jury; and the court should not interfere with the jury's verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.
(b) If the jury's award of damages is clearly so inadequate or so excessive as to any party as to be inconsistent with the preponderance of the evidence, the trial court may order a new trial as to damages only, as to any or all parties, or may condition the grant of such a new trial upon any party's refusal to accept an amount determined by the trial court.
(c) Only one grant of a new trial by the judge may be based upon the powers conferred by this Code section. The first grant of a new trial other than one ordered under this Code section and which order granting the new trial is not based on this Code section shall remain governed by Code Section 5-5-50.
(a) In determining the present value of future medical expenses, living expenses, lost wages, or other economic damages, the trier of fact may reduce the same to the present value based on a discount rate of 5 percent or any other discount rate as the trier of fact may deem appropriate.
(b) This Code section shall not be construed to provide for the introduction of evidence showing the cost of any specific private investment product, including, but not limited to, an annuity.
(a) Where a claimant has given written notice by registered or certified mail or statutory overnight delivery to a person against whom claim is made of a demand for an amount of unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days from the mailing or delivering of the notice, the claimant shall be entitled to receive interest on the amount demanded if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the amount demanded. However, if, at any time after the 30 days and before the claimant has withdrawn his or her demand, the person against whom such claim is made gives written notice by registered or certified mail or statutory overnight delivery of an offer to pay the amount of the claimant's demand plus interest under this Code section through the date such notice is given, and such offer is not accepted by the person making the demand for unliquidated damages within 30 days from the mailing or delivering of such notice by the person against whom such claim is made, the claimant shall not be entitled to receive interest on the amount of the demand after the thirtieth day following the date on which the notice of the offer is mailed or delivered even if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the sum demanded pursuant to this Code section.
(b) Any written notice referred to in subsection (a) of this Code section shall specify that it is being given pursuant to this Code section.
(c) The interest provided for by this Code section shall be at an annual rate equal to the prime rate as published by the Board of Governors of the Federal Reserve System, as published in statistical release H. 15 or any publication that may supersede it, on the thirtieth day following the date of the mailing of the last written notice plus 3 percent, and shall begin to run from the thirtieth day following the date of the mailing or delivering of the written notice until the date of judgment. This subsection shall apply to all civil actions filed on or after July 1, 2003.
(d) Evidence or discussion of interest on liquidated damages, as well as evidence of the offer, shall not be submitted to the jury. Interest shall be made a part of the judgment upon presentation of evidence to the satisfaction of the court that this Code section has been complied with and that the verdict of the jury or the award by the judge trying the case without a jury is equal to or exceeds the amount claimed in the notice.
(e) This Code section shall be known and may be cited as the “Unliquidated Damages Interest Act.”
In all cases, a person who maliciously procures an injury to be done to another, whether an actionable wrong or a breach of contract, is a joint wrongdoer and may be subject to an action either alone or jointly with the person who actually committed the injury.
Except as provided in Code Section 51-12-33, where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury. In its verdict, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally.
(a) Except as provided in Code Section 51-12-33, where a tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.
(b) If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution.
(c) Without the necessity of being charged by an action or judgment, the right of indemnity, express or implied, from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.
(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(b) Where an action is brought against one or more persons for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the person or persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.
(d)(1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.
(f)(1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.
(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.
(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.
(a) When a plaintiff, other than a plaintiff under Code Section 51-12-51, recovers for timber cut or cut and carried away, the measure of damages shall be:
(1) Treble the fair market value of the trees cut as they stood;
(2) Treble the diminished fair market value of any trees incidentally harmed;
(3) Costs of reasonable reforestation activities related to the plaintiff's injury; and
(4) Attorney fees and expenses of litigation.
(b) When the defendant is a willful trespasser, the plaintiff may also recover punitive damages.
(c) When the boundary lines of the property have been clearly and accurately marked, it shall be presumed that the defendant was a willful trespasser.
(a) Every person, firm, or corporation who, without the written consent of the person holding legal title to land or to an interest in land as security for debt, as shown by the public records of the county where such land is located, buys, sells, cuts, removes, holds, disposes of, changes the form of, or otherwise converts to the use of such person, firm, corporation, or another any trees growing or grown on such land shall be liable to the holder of the legal title for such trees, in any form, bought, sold, cut, removed, held, disposed of, changed in form, or otherwise converted by such person, firm, or corporation, or for the value of such trees, provided that recovery may not be for more than the unpaid portion of the secured indebtedness, interest thereon, and a reasonable attorney's fee. Recovery may be had by action at law from one who purchases, without the consent of the holder of the legal title, such interest in the trees, mineral or other rights, or interest in the encumbered real estate, either jointly or severally, with the holder of the equitable title. Notwithstanding any other provision of law, any such person, firm, or corporation who is a buyer in the ordinary course of business pursuant to Title 11, the “Uniform Commercial Code,” including, but not limited to, Code Section 11-9-320, shall have no liability under this Code section.
(b) The equitable owner of the land shall be allowed to use the timber for such equitable owner's own use, such as for firewood or other necessary uses of timber in and around such equitable owner's farm.
This article shall be known and may be cited as the “Georgia Structured Settlement Protection Act.”
As used in this article, the term:
(1) “Annuity issuer” means an insurer that has issued a contract to fund periodic payments under a structured settlement.
(2) “Assignee” means a person or entity acquiring or proposing to acquire structured settlement payments from a structured settlement purchase company or transferee after, or concurrently with, the transfer by the payee to the structured settlement purchase company or transferee.
(3) “Dependents” include a payee's spouse and minor children and all other persons for whom the payee is legally obligated to provide support, including alimony.
(4) “Discounted present value” means the present value of future payments determined by discounting such payments to the present using the most recently published Applicable Federal Rate for determining the present value of an annuity, as issued by the United States Internal Revenue Service.
(5) “Gross advance amount” means the sum payable to the payee or for the payee's account as consideration for a transfer of structured settlement payment rights, before any reductions for transfer expenses or other deductions to be made from such consideration.
(6) “Independent professional advice” means advice of an attorney, certified public accountant, actuary, or other licensed professional adviser.
(7) “Interested party” means, with respect to any structured settlement, the payee, any beneficiary irrevocably designated under the annuity contract to receive payments following the payee's death, the annuity issuer, the structured settlement obligor, and any party to the structured settlement that has continuing obligations to make payments under the structured settlement.
(8) “Net advance amount” means the gross advance amount, less the aggregate amount of the actual and estimated transfer expenses required to be disclosed under paragraph (5) of subsection (a) of Code Section 51-12-76.
(9) “Payee” means an individual who is receiving tax free payments under a structured settlement and proposes to make a transfer of payment rights thereunder.
(10) “Periodic payments” includes both recurring payments and scheduled future lump sum payments.
(11) “Qualified assignment agreement” means an agreement providing for a qualified assignment within the meaning of Section 130 of the United States Internal Revenue Code, United States Code Title 26, as amended.
(12) “Renewal date” means the date on which a registered structured settlement purchase company is required to have renewed their registration under this statute, which date shall be one year after the initial registration or any subsequent renewal.
(13) “Structured settlement” means an arrangement for periodic payment of damages for personal injuries or sickness established by settlement or judgment in resolution of a tort claim.
(14) “Structured settlement agreement” means the agreement, judgment, stipulation, or release embodying the terms of a structured settlement.
(15) “Structured settlement obligor” means, with respect to any structured settlement, the party that has the continuing obligation to make periodic payments to the payee under a structured settlement agreement or qualified assignment agreement.
(16) “Structured settlement payment rights” means rights to receive periodic payments under a structured settlement, whether from the structured settlement obligor or the annuity issuer, where the payee is domiciled in this state or the structured settlement agreement was approved by a court in this state.
(17) “Structured settlement purchase company” means a person that acts as a transferee in this state and who is registered with the Secretary of State pursuant to Code Section 51-12-73.
(18) “Structured settlement transfer proceeding” means a court proceeding filed by a structured settlement purchase company seeking court approval of a transfer in accordance with this article.
(19) “Terms of the structured settlement” include, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement, and any order or other approval of any court.
(20) “Transfer” means any sale, assignment, pledge, hypothecation, or other alienation or encumbrance of structured settlement payment rights made by a payee for consideration. Such term shall not include the creation or perfection of a security interest in structured settlement payment rights under a blanket security agreement entered into with an insured depository institution, in the absence of any action to redirect the structured settlement payments to such insured depository institution, or an agent or successor in interest thereof, or otherwise to enforce such blanket security interest against the structured settlement payment rights.
(21) “Transfer agreement” means the agreement providing for a transfer of structured settlement payment rights.
(22) “Transfer expense” means all expenses of a transfer that are required under the transfer agreement to be paid by the payee or deducted from the gross advance amount, including, without limitation, court filing fees, attorney fees, escrow fees, lien recordation fees, judgment and lien search fees, finders' fees, commissions, and other payments to a broker or other intermediary. Such term shall not include preexisting obligations of the payee payable for the payee's account from the proceeds of the transfer.
(23) “Transfer order” means an order approving a transfer in accordance with Code Section 51-12-77.
(24) “Transferee” means a party acquiring or proposing to acquire structured settlement payment rights through a transfer.
(a) A person or entity shall not act as a transferee, attempt to acquire structured settlement payment rights through a transfer from a payee who resides in this state, or file a structured settlement transfer proceeding in this state unless the person or entity has registered with the Secretary of State to do business in this state.
(b)(1) An applicant's initial registration application shall be submitted on a form prescribed by the Secretary of State, and shall include a sworn certification by an owner, officer, director, or manager of the applicant, if the applicant is an entity, or by the individual applicant if the applicant is an individual, certifying that the applicant has secured a surety bond, or has been issued a letter of credit, or has posted a cash bond in the amount of $50,000.00, relative to its business as a structured settlement purchase company in this state. The surety bond or letter of credit is intended to protect payees who do business with a structured settlement purchase company.
(2) The bond shall be payable to the State of Georgia.
(3) The bond, letter of credit, or cash bond shall be effective concurrently with the applicant's registration with the Secretary of State and shall remain in effect for not less than three years after expiration or termination of that registration. The bond, letter of credit, or cash bond shall be renewed each year when the registration of the applicant is renewed.
(4) The applicant shall submit to the Secretary of State a copy of the bond, letter of credit, or cash bond with its registration or renewal application.
(5) The bond, letter of credit, or cash bond is intended to ensure that the structured settlement purchase company will comply with the provisions of this article relative to the payee and perform its obligations to the payee under this article, and to provide a source for recovery for the payee should a payee recover a judgment against a structured settlement purchase company for a violation of this article.
(6) The Secretary of State shall be authorized to set and charge a fee to offset the costs of processing and maintaining the registration required by this Code section.
(c) Within ten days after a judgment is secured against a structured settlement purchase company by a payee, the structured settlement purchase company shall file a notice with the Secretary of State and the surety providing a copy of the judgment and the name and address of the judgment creditor, and include the status of the matter, including whether the judgment will be appealed, or has been paid or satisfied.
(d) The liability of the surety under the bond shall not be affected by any breach of contract, breach of warranty, failure to pay a premium or other act or omission of the bonded structured settlement purchase company, or by any insolvency or bankruptcy of the structured settlement purchase company.
(e) Neither the bonded structured settlement purchase company nor the surety shall cancel or modify the bond during the term for which it is issued, except with written notice to the Secretary of State at least 20 days prior to the effective date of such cancellation or modification.
(f) In the event of a cancellation of the bond, the registration of the structured settlement purchase company shall automatically expire unless a new surety bond, letter of credit, or cash bond, which complies with this Code section, is filed with the Secretary of State. The cancellation or modification of a bond shall not affect any liability of the bonded surety company incurred before the cancellation or modification of the bond.
(g) The applicant shall comply with all of the provisions of this article when acting as a structured settlement purchase company and filing structured settlement transfer proceedings in this state.
(h) An assignee shall not be required to register as a structured settlement purchase company in order to acquire structured settlement payment rights or to take a security interest in structured settlement payment rights that were transferred by the payee to a structured settlement purchase company.
(i) An employee of a structured settlement purchase company, if acting on behalf of the employer structured settlement purchase company in connection with a transfer, is not required to be registered.
(j) A registered structured settlement purchase company shall renew its registration annually, on or before the renewal date, and provide the certifications set forth in this Code section.
(a) A transferee or structured settlement purchase company, and an employee or representative of a transferee or structured settlement purchase company, shall not engage in any of the following actions:
(1) Pursue or complete a transfer with a payee without complying with this article;
(2) Refuse or fail to fund a transfer, following court approval of the transfer;
(3) Acquire structured settlement payment rights from the payee without complying with this article and securing court approval of the transfer in accordance with this article;
(4) Intentionally file a structured settlement transfer proceeding in any court other than the court specified in subsection (a) of Code Section 51-12-79, unless the transferee is required to file in some other court by other applicable law;
(5) Pay a commission or finder's fee to a person or entity for facilitating or arranging a structured settlement transfer with a payee, unless such person or entity is registered as a structured settlement purchase company or is an employee of a registered structured settlement purchase company. A structured settlement purchase company may pay to third parties routine transfer expenses, such as court filing fees, escrow fees, lien recordation fees, judgment and lien search fees, attorney fees, and other similar types of fees relating to a transfer. A structured settlement purchase company may pay a reasonable referral fee to an attorney, certified public accountant, actuary, licensed insurance agent, or other licensed professional advisor in connection with a transfer;
(6) Intentionally advertise materially false or misleading information regarding its products or services;
(7) Attempt to coerce, bribe, or intimidate any payee seeking to transfer structured settlement payment rights;
(8) Attempt to defraud a payee or any party to a structured settlement transfer or any interested party in a structured settlement transfer proceeding by means of forgery or false identification;
(9) Intervene in a pending structured settlement transfer proceeding, if the transferee or structured settlement purchase company is not a party to such proceeding or an interested party relative to the proposed transfer which is the subject of the pending structured settlement transfer proceeding. However, this shall not preclude a structured settlement purchase company from intervening in a pending structured settlement transfer proceeding where the payee has signed a transfer agreement with the structured settlement purchase company within 60 days prior to the filing of the pending structured settlement proceeding, and the structured settlement purchase company who filed the pending structured settlement transfer proceeding violated any of the provisions of this article in connection with the proposed transfer that is the subject of the pending structured settlement transfer proceeding;
(10) Knowingly contact a payee who has signed a transfer agreement and is pursuing a proposed transfer with another structured settlement purchase company for the purpose of inducing the payee into canceling the proposed transfer or transfer agreement with the other structured settlement purchase company, if a structured settlement transfer proceeding has been filed by the other structured settlement purchase company and is pending. However, if no hearing has been held in the pending structured settlement transfer proceeding within 90 days of the filing of same, this paragraph shall not apply; or
(11) Fail to dismiss a pending structured settlement transfer proceeding at the request of the payee. A dismissal of a structured settlement proceeding under this Code section shall not exempt a person who violates this Code section from any liability under this article.
(b) A payee may pursue a private action as a result of a violation of this Code section, and may recover all damages and pursue all rights and remedies to which the payee may be entitled under this article, the Fair Business Practices Act, or other applicable law.
(c) A structured settlement purchase company may pursue a private action to enforce paragraphs (4), (7), (9), (10), or (11) of subsection (a) of this Code section as a result of a violation of such paragraphs, and may recover all damages and pursue all remedies to which the structured settlement purchase company may be entitled under this article or other applicable law.
(d) If a court determines that a structured settlement purchase company or transferee is in violation of this Code section, the court may revoke the registration of the structured settlement purchase company, suspend the registration of the structured settlement purchase company for a period of time to be determined at the discretion of the court, or enjoin the structured settlement purchase company or transferee from filing new structured settlement transfer proceedings or pursuing transfers in this state.
A transfer order signed by a Georgia court of competent jurisdiction in accordance with this article shall constitute a qualified order under 26 U.S.C. Section 5891. A transfer order signed by a Georgia court of competent jurisdiction after July 1, 2021, where the transferee is not a registered structured settlement purchase company at the time the transfer order is signed shall not constitute a qualified order under 26 U.S.C. Section 5891.
Not less than ten days prior to the date on which a payee signs a transfer agreement, the transferee shall provide to the payee a separate disclosure statement, in bold type no smaller than 14 point font, setting forth the following:
(1) The amounts and due dates of the structured settlement payments to be transferred;
(2) The aggregate amount of such payments;
(3) The discounted present value of the payments to be transferred, which shall be identified as the “calculation of current value of the transferred structured settlement payments under federal standards for valuing annuities,” and the amount of the Applicable Federal Rate used in calculating such discounted present value;
(4) The gross advance amount;
(5) An itemized listing of all applicable transfer expenses, other than attorney fees and related disbursements, payable in connection with the transferee's application for approval of the transfer, and the transferee's best estimate of the amount of any such fees and disbursements;
(6) The effective annual interest rate, which must be disclosed in a statement in the following form: “On the basis of the net amount that you will receive from us and the amounts and timing of the structured settlement payments that you are transferring to us, you will, in effect, be paying interest to us at a rate of ___ percent per year.”;
(7) The net advance amount;
(8) The amount of any penalties or liquidated damages payable by the payee in the event of any breach of the transfer agreement by the payee;
(9) That the payee has the right to cancel the transfer agreement, without penalty or further obligation, until the transfer is approved by the court;
(10) That the payee has the right to seek and receive independent professional advice regarding the proposed transfer and should consider doing so before agreeing to transfer any structured settlement payment rights; and
(11) That the payee has the right to seek out and consider additional offers for transferring the structured settlement payments and should do so.
No direct or indirect transfer of structured settlement payment rights shall be effective, and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee or assignee of structured settlement payment rights, unless the transfer has been approved in advance in a final court order based on express findings by such court that all of the following apply:
(1) The transfer is in the best interest of the payee, taking into account the welfare and support of the payee's dependents;
(2) The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer, and has either received such advice or knowingly waived in writing the opportunity to seek and receive such advice; and
(3) The transfer does not contravene any applicable statute or the order of any court or other government authority.
(a) Following a transfer of structured settlement payment rights, the structured settlement obligor and the annuity issuer may rely on the court order approving the transfer in redirecting periodic payments to an assignee or transferee in accordance with the order approving the transfer and shall, as to all parties except the transferee or an assignee designated by the transferee, be discharged and released from any and all liability for the redirected payments. Such discharge and release shall not be affected by the failure of any party to the transfer to comply with this article or with the court order approving the transfer.
(b) The transferee shall be liable to the structured settlement obligor and the annuity issuer:
(1) If the transfer contravenes the terms of the structured settlement, for any taxes incurred by the structured settlement obligor or annuity issuer as a consequence of the transfer; and
(2) For any other liabilities or costs, including reasonable costs and attorney fees, arising from compliance by the structured settlement obligor or annuity issuer with the court order approving the transfer, or from the failure of any party to the transfer to comply with this article.
(c) Neither the annuity issuer nor the structured settlement obligor may be required to divide any periodic payment between the payee and any transferee or assignee or between two or more transferees or assignees.
(d) Any further transfer of structured settlement payment rights by the payee may be made only after compliance with all of the requirements of this article.
(a) An application under this article for approval of a transfer of structured settlement payment rights shall be made by the transferee. The application shall be brought in superior court in the county in which the payee is domiciled, except that if the payee is not domiciled in this state, the application may be brought in the court in this state that approved the structured settlement agreement.
(b) At the time any application is made under this article for approval of a transfer of structured settlement payment rights, the transferee's application shall include evidence that the transferee is registered to do business in this state as a structured settlement purchase company.
(c) A timely hearing shall be held on an application for approval of a transfer of structured settlement payment rights. The payee shall appear in person at the hearing, unless the court determines that good cause exists to excuse the payee from appearing in person.
(d) Not less than 20 days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Code Section 51-12-77, the transferee shall file with the court and serve on all interested parties a notice of the proposed transfer and the application for authorization. Such notice and application shall include all of the following:
(1) A copy of the transferee's application;
(2) A copy of the transfer agreement;
(3) A copy of the disclosure statement required under Code Section 51-12-76;
(4) The payee's name, age, county of domicile, and the number and ages of each of the payee's dependents;
(5) A summary of:
(A) Any prior transfers by the payee to the transferee or an affiliate, or through the transferee or an affiliate to an assignee, within the four years preceding the date of the transfer agreement and any proposed transfers by the payee to the transferee or an affiliate, or through the transferee or an affiliate, applications for approval of which were denied within the two years preceding the date of the transfer agreement; and
(B) Any prior transfers by the payee to any person or entity other than the transferee or an affiliate or an assignee of the transferee or an affiliate within the three years preceding the date of the transfer agreement, and any prior proposed transfers by the payee to any person or entity other than the transferee or an affiliate or an assignee of a transferee or affiliate, applications for approval of which were denied within the one year preceding the date of the current transfer agreement, to the extent that the transfers or proposed transfers have been disclosed to the transferee by the payee in writing or otherwise are actually known to the transferee;
(6) Notification that any interested party is entitled to support, oppose, or otherwise respond to the transferee's application, either in person or by counsel, by submitting written comments to the court or by participating in the hearing;
(7) Notification of the time and place of the hearing and notification of the manner in which and the date by which written responses to the application must be filed, which date shall be not less than five days prior to the hearing, in order to be considered by the court; and
(8) Evidence of the transferee's registration to do business in this state as a structured settlement purchase company.
(a) The provisions of this article shall not be waived by any payee.
(b) Any transfer agreement entered into on or after July 1, 2021, by a payee who is domiciled in this state shall provide that disputes under such transfer agreement, including any claims that the payee has breached the agreement, shall be determined in and under the laws of the State of Georgia. No such transfer agreement shall authorize the transferee or any other party to confess judgment or consent to entry of judgment against the payee.
(c) No transfer of structured settlement payment rights shall extend to any payments that are life contingent unless, prior to the date on which the payee signs the transfer agreement, the transferee has established and has agreed to maintain procedures reasonably satisfactory to the annuity issuer and the structured settlement obligor for periodically confirming the payee's survival and giving the annuity issuer and the structured settlement obligor prompt written notice in the event of the payee's death.
(d) If the payee cancels a transfer agreement, or if the transfer agreement otherwise terminates, after an application for approval of a transfer of structured settlement payment rights has been filed and before it has been granted or denied, the transferee shall promptly request dismissal of the application.
(e) No payee who proposes to make a transfer of structured settlement payment rights shall incur any penalty, forfeit any application fee or other payment, or otherwise incur any liability to the proposed transferee or any assignee based on any failure of such transfer to satisfy the conditions of this article.
(f) Nothing contained in this article shall:
(1) Be construed to authorize any transfer of structured settlement payment rights in contravention of any applicable law or to imply that any transfer under a transfer agreement entered into prior to July 1, 2021, is valid or invalid; or
(2) Affect the validity of any transfer of structured settlement payment rights, whether under a transfer agreement entered into prior to or subsequent to July 1, 2021, in which the structured settlement obligor and annuity issuer have waived, or have not asserted their rights under, terms of the structured settlement prohibiting or restricting sale, assignment, or encumbrance of the structured settlement payment rights.
(g) The compliance with the requirements set forth in Code Section 51-12-76 and fulfillment of the conditions set forth in Code Section 51-12-77 shall be solely the responsibility of the transferee in any transfer of structured settlement payment rights, and neither the structured settlement obligor nor the annuity issuer shall bear any responsibility for, or any liability arising from, noncompliance with such requirements or failure to fulfill such conditions.
(h) This article shall apply to any transfer of structured settlement payment rights under a transfer agreement entered into on or after July 1, 2021.
(a) As used in this Code section, the term:
(1) “Claimant” means a person, including a decedent's estate, who seeks or has sought recovery of damages in a medical malpractice action. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant.
(2) “Health care provider” means any person licensed under Chapter 9, 10A, 11, 11A, 26, 28, 30, 33, 34, 35, 39, or 44 of Title 43. The term shall also include any corporation, professional corporation, partnership, limited liability company, limited liability partnership, authority, or other entity comprised of such health care providers.
(3) “Medical facility” means any institution or medical facility licensed under Chapter 7 of Title 31 or any combination thereof under common ownership, operation, or control.
(4) “Noneconomic damages” means damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature. This term does not include past or future:
(A) Medical expenses, including rehabilitation and therapy;
(B) Wages or earnings capacity;
(C) Income;
(D) Funeral and burial expenses;
(E) The value of services performed by the injured in the absence of the injury or death including those domestic and other necessary services performed without compensation; or
(F) Other monetary expenses.
(b) In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against one or more health care providers, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00, regardless of the number of defendant health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based.
(c) In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against a single medical facility, inclusive of all persons and entities for which vicarious liability theories may apply, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00, regardless of the number of separate causes of action on which the claim is based.
(d) In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against more than one medical facility, inclusive of all persons and entities for which vicarious liability theories may apply, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00 from any single medical facility and $700,000.00 from all medical facilities, regardless of the number of defendant medical facilities against whom the claim is asserted or the number of separate causes of action on which the claim is based.
(e) In applying subsections (b), (c), and (d) of this Code section, the aggregate amount of noneconomic damages recoverable under such subsections shall in no event exceed $1,050,000.00.
(f) In any medical malpractice action, if an award of future damages equaling or exceeding $350,000.00 is made against any party in the action, the trial court shall, upon the request of any party, issue an order providing that such damages be paid by periodic payments. Such periodic payments shall be funded through an annuity policy with the premium for such annuity equal to the amount of the award for future damages.
(a) The General Assembly finds that:
(1) Asbestos is a mineral that was widely used prior to the 1980s for insulation, fire-proofing, and other purposes;
(2) Many American workers and others were exposed to asbestos, especially during and after World War II, at shipyards and other sites, prior to the advent of regulation by the United States Occupational Safety and Health Administration in the early 1970s;
(3) Exposure to asbestos is associated with various types of cancer, including mesothelioma, as well as nonmalignant conditions such as asbestosis and diffuse pleural thickening;
(4) Diseases caused by asbestos exposure often have long latency periods;
(5) Silica is a naturally occurring mineral and is the second most common constituent of the earth's crust. Crystalline silica in the form of quartz is present in sand, gravel, soil, and rocks;
(6) Silica related illnesses, including silicosis, can develop from the inhalation of respirable silica dust. Silicosis was widely recognized as an occupational disease many years ago;
(7) Concerns about statutes of limitations may prompt unimpaired asbestos and silica claimants to bring lawsuits to protect their ability to recover for their potentially progressive occupational disease;
(8) It is proper for the General Assembly to support and protect the Georgia courts from the massive litigation expense and the crowding of trial dockets caused by asbestos and silica litigation;
(9) The cost of compensating exposed individuals who are not sick and legal costs spent on their claims jeopardize recoveries both now and in the future by people with cancer or other serious asbestos related injuries; threaten the savings, retirement benefits, and jobs of current and retired employees of the defendants; and adversely affect the communities in which the defendants operate;
(10) In February, 2003, the American Bar Association Commission on Asbestos Litigation, with input from ten of the nation's most prominent physicians in the area of pulmonary function, adopted the “ABA Standard For Non-Malignant Asbestos-Related Disease Claims,” which sets forth medical criteria for demonstrating asbestos related impairment that provide the underlying framework for the criteria set forth in this chapter and in similar legislation adopted in several other states;
(11) Ohio, Florida, Texas, Kansas, South Carolina, and Tennessee have enacted legislation similar to this chapter that, among other things, sets medical criteria governing asbestos or silica claims or both, tolls statutes of limitations, and requires persons alleging nonmalignant disease claims to demonstrate physical impairment as a prerequisite to filing or maintaining such claims; and
(12) Sound public policy requires deferring the claims of persons exposed to asbestos or silica and who are not presently impaired in order to give priority to those cases that involve claims of actual and current conditions of impairment; preserve compensation for people with cancer and other serious injuries; and safeguard the jobs, benefits, and savings of workers.
(b) It is the purpose of this chapter to:
(1) Give priority to claimants who can demonstrate actual physical harm or illness caused by asbestos or silica;
(2) Preserve the rights of claimants to pursue asbestos or silica claims if an exposed person becomes sick in the future;
(3) Enhance the ability of the courts to supervise and control asbestos litigation and silica litigation; and
(4) Conserve resources to allow compensation of claimants who have cancer and others who are impaired as a result of exposure to asbestos or silica while securing the right to similar compensation for those who may suffer physical impairment in the future.
This chapter applies to any claim defined in this chapter as an asbestos claim or as a silica claim.
As used in this chapter, the term:
(1) “Asbestos” means chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, and any of these minerals that have been chemically treated or altered, including but not limited to all minerals defined as asbestos in 29 C.F.R. 1910.
(2)(A) “Asbestos claim” means any claim, wherever or whenever made, for damages, losses, indemnification, contribution, loss of consortium, or other relief arising out of, based on, or in any way related to the health effects of exposure to asbestos, including, but not limited to:
(i) Any claim, to the extent recognized by applicable state law now or in the future, for:
(I) Personal injury or death;
(II) Mental or emotional injury;
(III) Risk or fear of disease or other injury;
(IV) The costs of medical monitoring or surveillance; or
(V) Damage or loss caused by the installation, presence, or removal of asbestos; and
(ii) Any claim made by or on behalf of an exposed person or based on that exposed person's exposure to asbestos, including a representative, spouse, parent, child, or other relative of the exposed person.
(B) “Asbestos claim” shall not mean a claim brought under:
(i) A workers' compensation law administered by this state to provide benefits, funded by a responsible employer or its insurance carrier, for occupational diseases or injuries or for disability or death caused by occupational diseases or injuries;
(ii) The Act of April 22, 1908, known as the Federal Employers' Liability Act, 45 U.S.C. Section 51, et seq.;
(iii) The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sections 901-944, 948-950; or
(iv) The Federal Employees Compensation Act, 5 U.S.C. Chapter 81.
(3) “Asbestosis” means bilateral diffuse interstitial fibrosis of the lungs caused by inhalation of asbestos.
(4) “Board certified internist” means a qualified physician licensed to practice medicine who is currently certified by the American Board of Internal Medicine.
(5) “Board certified occupational medicine physician” means a qualified physician licensed to practice medicine who is currently certified in the subspecialty of occupational medicine by the American Board of Preventive Medicine.
(6) “Board certified oncologist” means a qualified physician licensed to practice medicine who is currently certified in the subspecialty of medical oncology by the American Board of Internal Medicine.
(7) “Board certified pathologist” means a qualified physician licensed to practice medicine who holds primary certification in anatomic pathology or combined anatomic or clinical pathology from the American Board of Pathology and whose professional practice is principally in the field of pathology and involves regular evaluation of pathology materials obtained from surgical or post-mortem specimens.
(8) “Board certified pulmonologist” means a qualified physician licensed to practice medicine who is currently certified in the subspecialty of pulmonary medicine by the American Board of Internal Medicine.
(9) “Certified B-reader” means a qualified physician who has successfully passed the B-reader certification examination for X-ray interpretation sponsored by the National Institute for Occupational Safety and Health and whose certification was current at the time of any readings required by this chapter.
(10) “Chest X-rays” means films taken in two views (PA and Lateral) for reading in accordance with the radiological standards established by the International Labor Office, as interpreted by a certified B-reader.
(11) “Claimant” means a party seeking recovery of damages for an asbestos claim or silica claim, including the exposed person, any other plaintiff making a claim as a result of the exposed person's exposure to asbestos or silica, counterclaimant, cross-claimant, or third- party plaintiff. If a claim is brought through or on behalf of an estate, the term includes the claimant's decedent; if a claim is brought through or on behalf of a minor or incompetent, the term includes the claimant's parent or guardian.
(12) “Exposed person” means any person whose exposure to asbestos or silica is the basis for an asbestos claim or a silica claim.
(13) “FEV-1” means forced expiratory volume in the first second, which is the maximal volume of air expelled in one second during performance of simple spirometric tests.
(14) “FVC” means forced vital capacity, which is the maximal volume of air expired with maximum effort from a position of full inspiration.
(15) “ILO system” means the radiological ratings of the International Labor Office set forth in Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses , revised edition, as amended from time to time by the International Labor Office.
(16) “Lower limit of normal” means the fifth percentile of healthy populations based on age, height, and gender, as referenced in the American Medical Association's Guides to the Evaluation of Permanent Impairment , fifth edition, as amended from time to time by the American Medical Association.
(17) In the context of an asbestos claim, “prima-facie evidence of physical impairment” means:
(A) For an asbestos claim that accrued before April 12, 2005:
(i) For an asbestos claim alleging mesothelioma: that a claimant alleges mesothelioma caused by exposure to asbestos, and no further prima-facie evidence of physical impairment shall be required;
(ii) For an asbestos claim alleging cancer other than mesothelioma: that a physician licensed to practice medicine (who need not be a “qualified physician” as defined in this Code section) has signed a medical report certifying to a reasonable degree of medical probability that the exposed person's exposure to asbestos was a contributing factor to the diagnosed cancer other than mesothelioma and attaching whatever evidence the physician relied upon in determining that the exposed person has or had an asbestos related cancer; and
(iii) For an asbestos claim alleging nonmalignant injury: that a physician licensed to practice medicine (who need not be a “qualified physician” as defined in this Code section) has signed a medical report certifying to a reasonable degree of medical probability that the exposed person's exposure to asbestos was a contributing factor to the diagnosed nonmalignant asbestos injury and attaching whatever evidence the physician relied upon in determining that the exposed person has or had a nonmalignant asbestos injury;
(B) For an asbestos claim that accrued on or after May 1, 2007:
(i) For an asbestos claim alleging mesothelioma: that a claimant alleges mesothelioma caused by exposure to asbestos, and no further prima-facie evidence of physical impairment shall be required;
(ii) For an asbestos claim alleging cancer other than mesothelioma: that a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist has signed a medical report certifying to a reasonable degree of medical probability that the exposed person has or had a cancer other than mesothelioma; that the cancer is a primary cancer; that exposure to asbestos was a substantial contributing factor to the diagnosed cancer; and that other potential causes (such as smoking) were not the sole or most likely cause of the injury at issue;
(iii) For an asbestos claim alleging nonmalignant injury: that a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist has signed a medical report stating that the exposed person suffers or suffered from a nonmalignant asbestos injury and:
(I) Verifying that the doctor signing the medical report or a medical professional or professionals employed by and under the direct supervision and control of that doctor has taken histories as defined below or, alternatively, confirming that the signing doctor is relying on such histories taken or obtained by another physician or physicians who actually treated the exposed person or who had a doctor-patient relationship with the exposed person or by a medical professional or professionals employed by and under the direct supervision and control of such other physician or physicians, with such histories to consist of the following:
(a) A detailed occupational and exposure history from the exposed person or, if the exposed person is deceased or incapable of providing such history, from the person or persons most knowledgeable about the exposures that form the basis for the asbestos claim. The history shall include all of the exposed person's principal employments and his or her exposures to airborne contaminants that can cause pulmonary impairment, including, but not limited to, asbestos, silica, and other disease-causing dusts, and the nature, duration, and level of any such exposure; and
(b) A detailed medical and smoking history from the exposed person or, if the exposed person is deceased or incapable of providing such history, from the person or persons most knowledgeable about the exposed person's medical and smoking history, or the exposed person's medical records, or both, that includes a thorough review of the exposed person's past and present medical problems and their most probable cause;
(II) Setting out the details of the exposed person's occupational, medical, and smoking histories and verifying that at least 15 years have elapsed between the exposed person's first exposure to asbestos and the time of diagnosis;
(III) Verifying that the exposed person has:
(a) An ILO quality 1 chest X-ray taken in accordance with all applicable state and federal regulatory standards, and that the X-ray has been read by a certified B-reader according to the ILO system of classification as showing bilateral small irregular opacities (s, t, or u) graded 1/1 or higher or bilateral diffuse pleural thickening graded b2 or higher including blunting of the costophrenic angle; provided, however, that in a death case where no pathology is available, the necessary radiologic findings may be made with a quality 2 film if a quality 1 film is not available; or
(b) Pathological asbestosis graded 1(B) or higher under the criteria published in the Asbestos-Associated Diseases, Special Issue of the Archives of Pathological and Laboratory Medicine , Volume 106, Number 11, Appendix 3, as amended from time to time;
(IV) Verifying that the exposed person has pulmonary impairment related to asbestos as demonstrated by pulmonary function testing, performed using equipment, methods of calibration, and techniques that meet the criteria incorporated in the American Medical Association's Guides to the Evaluation of Permanent Impairment , fifth edition, and reported as set forth in 20 C.F.R. 404, Subpt. P. App 1, Part (A) Section 3.00 (E) and (F), as amended from time to time by the American Medical Association, and the interpretative standards of the American Thoracic Society, Lung Function Testing: Selection of Reference Values and Interpretive Strategies , 144 Am. Rev. Resp. Dis. 1202- 1218 (1991), as amended from time to time by the American Thoracic Society, that shows:
(a) Forced vital capacity below the lower limit of normal and FEV1/FVC ratio, using actual values, at or above the lower limit of normal; or
(b) Total lung capacity, by plethysmography or timed gas dilution, below the lower limit of normal,
except that this subdivision (17)(B)(iii)(IV) shall not apply if the medical report includes the pathological evidence set forth in clause (17)(B)(iii)(III)(b) of this Code section;
(V)(a) Exception to pulmonary function test requirement in subdivision (17)(B)(iii)(IV) of this Code section: If the doctor signing the medical report states in the medical report that the exposed person's medical condition or process prevents the pulmonary function test described in subdivision (17)(B)(iii)(IV) of this Code section from being performed or makes the results of such test an unreliable indicator of physical impairment, a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist (none of whom need be a “qualified physician” as defined in this Code section), independent from the physician signing the report required in this subdivision, must provide a report which states to a reasonable degree of medical probability that the exposed person has or had a nonmalignant asbestos related condition causing physical impairment equivalent to that required in subdivision (17)(B)(iii)(IV) of this Code section and states the reasons why the pulmonary function test could not be performed or would be an unreliable indicator of physical impairment.
(b) Exception to X-ray requirement in clause (17)(B)(iii)(III)(a) of this Code section: Alternatively and not to be used in conjunction with clause (17)(B)(iii)(V)(a) of this Code section, if the doctor signing the medical report states in the medical report that the exposed person's medical condition or process prevents a physician from being able to diagnose or evaluate that exposed person sufficiently to make a determination as to whether that exposed person meets the requirements of clause (17)(B)(iii)(III)(a) of this Code section, the claimant may serve on each defendant a report by a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist (none of whom need be a “qualified physician” as defined in this Code section) that:
(1) Verifies that the physician has or had a doctor patient relationship with the exposed person;
(2) Verifies that the exposed person has or had asbestos related pulmonary impairment as demonstrated by pulmonary function testing showing:
(A) Forced vital capacity below the lower limit of normal and total lung capacity, by plethysmography, below the lower limit of normal; or
(B) Forced vital capacity below the lower limit of normal and FEV1/FVC ratio (using actual values) at or above the lower limit of normal; and
(3) Verifies that the exposed person has a chest X-ray and computed tomography scan or high resolution computed tomography scan read by the physician or a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, board certified oncologist, or board certified radiologist (none of whom need be a “qualified physician” as defined in this Code section) showing either bilateral pleural disease or bilateral parenchymal disease diagnosed and reported as being a consequence of asbestos exposure; and
(VI) Verifies that the doctor signing the medical report has concluded to a reasonable degree of medical probability that exposure to asbestos was a substantial contributing factor to the exposed person's physical impairment.
Copies of the B-reading, the pulmonary function tests, including printouts of the flow volume loops and all other elements required to demonstrate compliance with the equipment, quality, interpretation, and reporting standards set forth in this paragraph (17), the medical report (in the form of an affidavit as required by subparagraph (A) of paragraph (2) of Code Section 51-14-6), and all other required reports shall be submitted as required by this chapter. All such reports, as well as all other evidence used to establish prima-facie evidence of physical impairment, must comply, to the extent applicable, with the technical recommendations for examinations, testing procedures, quality assurance, quality controls, and equipment in the American Medical Association's Guides to the Evaluation of Permanent Impairment, fifth edition, as amended from time to time by the American Medical Association, and the most current version of the Official Statements of the American Thoracic Society regarding lung function testing. Testing performed in a hospital or other medical facility that is fully licensed and accredited by all appropriate regulatory bodies in the state in which the facility is located is presumed to meet the requirements of this chapter. This presumption may be rebutted by evidence demonstrating that the accreditation or licensing of the hospital or other medical facility has lapsed or by providing specific facts demonstrating that the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment have not been followed. All such reports, as well as all other evidence used to establish prima-facie evidence of physical impairment, must not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement, or medical code of practice and must not be obtained under the condition that the exposed person retain legal services in exchange for the examination, testing, or screening. Failure to attach the required reports or demonstration by any party that the reports do not satisfy the standards set forth in this paragraph (17) shall result in the dismissal of the asbestos claim, without prejudice, upon motion of any party.
(18) In the context of a silica claim, “prima-facie evidence of physical impairment” means:
(A) For a silica claim that accrued before April 12, 2005, that a physician licensed to practice medicine (who need not be a “qualified physician” as defined in this Code section) has signed a medical report certifying to a reasonable degree of medical probability that the exposed person's exposure to silica was a contributing factor to the claimed injury and attached whatever evidence the physician relied upon in determining that the exposed person has or had a silica related injury; and
(B) For a silica claim that accrued on or after May 1, 2007:
(i) A medical report asserting that the exposed person has or had a silica related lung cancer and:
(I) Certifying to a reasonable degree of medical probability that the cancer is a primary lung cancer; and
(II) Signed by a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist stating to a reasonable degree of medical probability that exposure to silica was a substantial contributing factor to the lung cancer with underlying silicosis demonstrated by an X-ray that has been read by a certified B-reader according to the ILO system of classification as showing bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher, and that the lung cancer was not more probably the sole result of causes other than the silica exposure revealed by the exposed person's occupational, silica exposure, medical, and smoking histories;
(ii) A medical report asserting that the exposed person has or had silica related progressive massive fibrosis or acute silicoproteinosis, or silicosis complicated by documented tuberculosis, signed by a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist; or
(iii) A medical report signed by a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist stating that the exposed person suffers from other stages of nonmalignant disease related to silicosis other than those set forth in divisions (i) and (ii) of this subparagraph, and:
(I) Verifying that the doctor signing the medical report or a medical professional or professionals employed by and under the direct supervision and control of that doctor has taken histories as defined below or, alternatively, confirming that the signing doctor is relying on such histories taken or obtained by another physician or physicians who actually treated the exposed person or who had a doctor-patient relationship with the exposed person or by a medical professional or professionals employed by and under the direct supervision and control of such other physician or physicians, with such histories to consist of the following:
(a) A detailed occupational and exposure history from the exposed person or, if the exposed person is deceased or incapable of providing such history, from the person or persons most knowledgeable about the exposures that form the basis for the silica claim. The history shall include all of the exposed person's principal employments and his or her exposures to airborne contaminants that can cause pulmonary impairment, including, but not limited to, asbestos, silica, and other disease-causing dusts, and the nature, duration, and level of any such exposure; and
(b) A detailed medical and smoking history from the exposed person or, if the exposed person is deceased or incapable of providing such history, from the person or persons most knowledgeable about the exposed person's medical and smoking history, or the exposed person's medical records, or both, that includes a thorough review of the exposed person's past and present medical problems and their most probable cause;
(II) Setting out the details of the exposed person's occupational, medical, and smoking histories and verifying a sufficient latency period for the applicable stage of silicosis;
(III) Verifying that the exposed person has at least Class 2 or higher impairment due to silicosis, as set forth in the American Medical Association's Guides to the Evaluation of Permanent Impairment , fifth edition, as amended from time to time by the American Medical Association and:
(a) Has an ILO quality 1 chest X-ray taken in accordance with all applicable state and federal regulatory standards, and that the X-ray has been read by a certified B-reader according to the ILO system of classification as showing bilateral nodular opacities (p, q, or r) occurring primarily in the upper lung fields, graded 1/1 or higher; provided, however, that in a death case where no pathology is available, the necessary radiologic findings may be made with a quality 2 film if a quality 1 film is not available; or
(b) Has pathological demonstration of classic silicotic nodules exceeding 1 centimeter in diameter as set forth in 112 Archives of Pathological & Laboratory Medicine 7 (July 1988), as amended from time to time; and
(IV) Verifying that the doctor signing the medical report has concluded to a reasonable degree of medical probability that the exposure to silica was a substantial contributing factor to the exposed person's physical impairment.
Copies of the B-reading, the pulmonary function tests, including printouts of the flow volume loops and all other elements required to demonstrate compliance with the equipment, quality, interpretation, and reporting standards set forth in this paragraph (18), and the medical report (in the form of an affidavit as required by subparagraph (A) of paragraph (2) of Code Section 51-14-6), and all other required reports shall be submitted as required by this chapter. All such reports, as well as all other evidence used to establish prima-facie evidence of physical impairment, must comply, to the extent applicable, with the technical recommendations for examinations, testing procedures, quality assurance, quality controls, and equipment in the American Medical Association's Guides to the Evaluation of Permanent Impairment, fifth edition, as amended from time to time by the American Medical Association, and the most current version of the Official Statements of the American Thoracic Society regarding lung function testing. Testing performed in a hospital or other medical facility that is fully licensed and accredited by all appropriate regulatory bodies in the state in which the facility is located is presumed to meet the requirements of this chapter. This presumption may be rebutted by evidence demonstrating that the accreditation or licensing of the hospital or other medical facility has lapsed or by providing specific facts demonstrating that the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment have not been followed. All such reports, as well as all other evidence used to establish prima-facie evidence of physical impairment, must not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement, or medical code of practice, and must not be obtained under the condition that the exposed person retain legal services in exchange for the examination, testing, or screening. Failure to attach the required reports or demonstration by any party that the reports do not satisfy the standards set forth in this paragraph (18) shall result in the dismissal of the silica claim, without prejudice, upon motion of any party.
(19) “Qualified physician” means a medical doctor, who:
(A) Spends no more than 35 percent of his or her professional practice time in providing consulting or expert services in connection with actual or potential civil actions, and whose medical group, professional corporation, clinic, or other affiliated group earns not more than 50 percent of its revenues from providing such services; provided, however, that the trial court, in its discretion, may allow a physician who meets the other requirements of this chapter but does not meet the time and revenue requirements of this subparagraph to submit a report required by this chapter if the trial court first makes an evidentiary finding (after all parties have had a reasonable opportunity to present evidence) that it would be manifestly unjust not to allow the physician at issue to submit the report and makes specific and detailed findings, setting forth the bases therefor, that the physician's opinions appear to be reliable medical opinions in that they are supported by documented, reliable medical evidence that was obtained through testing or examinations that comply with and do not violate any applicable law, regulation, licensing requirement, or medical code of practice and that the opinions are not the product of bias or the result of financial influence due to his or her role as a paid expert. The cost of retaining another physician who is qualified pursuant to this subparagraph for the purpose of submitting a report required by this chapter may not be considered in determining manifest injustice, but the availability or unavailability of other physicians who meet the time and revenue requirements of this subparagraph shall be considered as a relevant factor; and
(B) Does not require as a condition of diagnosing, examining, testing, screening, or treating the exposed person that legal services be retained by the exposed person or any other person pursuing an asbestos or silica claim based on the exposed person's exposure to asbestos or silica.
The board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist who submits a report under this chapter may be an expert witness retained by counsel for the exposed person or claimant, so long as the physician otherwise meets the requirements of this chapter and any other applicable Code sections governing the qualifications of expert witnesses.
(20) “Silica” means a group of naturally occurring crystalline forms of silicon dioxide, including, but not limited to, quartz and silica sand, whether in the form of respirable free silica or any quartz- containing or crystalline silica-containing dust, in the form of a quartz- containing by-product or crystalline silica-containing by-product, or dust released from individual or commercial use, release, or disturbance of silica sand, silicon dioxide, or crystalline-silica containing media, consumables, or materials.
(21)(A) “Silica claim” means any claim, wherever or whenever made, for damages, losses, indemnification, contribution, loss of consortium, or other relief arising out of, based on, or in any way related to the health effects of exposure to silica, including, but not limited to:
(i) Any claim, to the extent recognized by applicable state law now or in the future, for:
(I) Personal injury or death;
(II) Mental or emotional injury;
(III) Risk or fear of disease or other injury; or
(IV) The costs of medical monitoring or surveillance; and
(ii) Any claim made by or on behalf of an exposed person or based on that exposed person's exposure to silica, including a representative, spouse, parent, child, or other relative of the exposed person.
(B) “Silica claim” shall not mean a claim brought under:
(i) A workers' compensation law administered by this state to provide benefits, funded by a responsible employer or its insurance carrier, for occupational diseases or injuries or for disability or death caused by occupational diseases or injuries;
(ii) The Act of April 22, 1908, known as the Federal Employers' Liability Act, 45 U.S.C. Section 51, et seq.;
(iii) The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sections 901-944, 948-950; or
(iv) The Federal Employees Compensation Act, 5 U.S.C. Chapter 81.
(22) “Silicosis” means nodular interstitial fibrosis of the lung produced by inhalation of silica.
(23) “Substantial contributing factor” means that exposure to asbestos or silica took place on a regular basis over an extended period of time and in close proximity to the exposed person and was a factor without which the physical impairment in question would not have occurred.
(24) “Total lung capacity” means the volume of gas contained in the lungs at the end of a maximal inspiration.
(a) Prima-facie evidence of physical impairment of the exposed person as defined in paragraph (17) or (18) of Code Section 51-14-3 shall be an essential element of an asbestos claim or silica claim.
(b) In order to bring or maintain an asbestos claim or silica claim, the claimant shall submit prima-facie evidence of physical impairment in accordance with the requirements of this chapter.
Notwithstanding any other provision of law, with respect to any asbestos claim or silica claim not barred as of May 1, 2007, the limitations period shall not begin to run until the exposed person, or any plaintiff making an asbestos claim or silica claim based on the exposed person's exposure to asbestos or silica, obtains, or through the exercise of reasonable diligence should have obtained, prima-facie evidence of physical impairment, as defined in paragraph (17) or (18) of Code Section 51-14-3.
Subject to the provisions of Code Section 51-14-12:
(1) Any asbestos claim or silica claim pending in this state on May 1, 2007, shall be dismissed within 180 days after May 1, 2007, without prejudice unless:
(A) All parties stipulate by no less than 60 days prior to the commencement of trial that the plaintiff has established prima-facie evidence of physical impairment with respect to an asbestos claim or silica claim; or
(B) The trial court in which the complaint was initially filed issues an order that the plaintiff has established prima-facie evidence of physical impairment with respect to an asbestos claim or silica claim. Such an order shall be issued only if the following conditions and procedures are met:
(i) By no less than 60 days prior to the commencement of trial, the plaintiff files with the trial court and serves on each defendant named in the complaint or on counsel designated by each defendant the medical documentation necessary to establish prima-facie evidence of physical impairment;
(ii) Within 30 days of service of plaintiff's documentation establishing prima-facie evidence of physical impairment, any defendant may file an opposition with the trial court challenging plaintiff's prima-facie evidence of physical impairment. To the extent any such opposition is based upon the medical opinion of a licensed physician, that physician shall be a qualified physician, as that term is defined in subparagraph (A) of paragraph (19) of Code Section 51-14-3, and shall be either a board certified internist, a board certified pathologist, a board certified pulmonologist, a board certified occupational medicine physician, a board certified oncologist, or a certified B-reader. Defendant's opposition shall be filed with the trial court and served on plaintiff's counsel and each defendant;
(iii) If a defendant does not file an opposition within the time permitted, the trial court shall determine if the plaintiff has established prima-facie evidence of physical impairment in a timely manner based on the papers and documentation submitted to the trial court;
(iv) If a defendant files an objection, then within ten days of service of defendant's opposition, the plaintiff may file a reply with the trial court. The reply must be served on each defendant; and
(v) The trial court shall determine if the plaintiff has established prima-facie evidence of physical impairment in a timely manner based on the papers and documentation submitted to the trial court. A hearing will be conducted only if the trial court so orders on its own motion or if, in the exercise of discretion, the trial court grants a party's request for a hearing. No testimony shall be taken at the hearing. A decision of the trial court not to grant a request for a hearing may not be appealed and does not constitute reversible error. If the trial court determines that the plaintiff has failed to establish prima-facie evidence of physical impairment, it shall dismiss the plaintiff's complaint without prejudice;
In the event a trial is scheduled to commence in less than 60 days after May 1, 2007, a trial court can shorten the deadlines contained in this paragraph as necessary in order to make a determination regarding the prima- facie evidence of physical impairment before trial commences; and
(2)(A) The plaintiff in any asbestos claim or silica claim filed in this state on or after May 1, 2007, shall file together with the complaint a medical report (which shall be in the form of an affidavit) and accompanying documentation setting forth the medical findings necessary to establish prima- facie evidence of physical impairment as provided in paragraph (17) or (18) of Code Section 51-14-3. In addition, the plaintiff's complaint shall allege with specificity that the plaintiff satisfies the prima-facie evidence of physical impairment with respect to an asbestos claim or silica claim.
(B) Within 90 days of service of plaintiff's complaint, any defendant may file an opposition with the trial court challenging plaintiff's prima-facie evidence of physical impairment. To the extent any such opposition is based upon the medical opinion of a licensed physician, that physician shall be a qualified physician, as that term is defined in subparagraph (A) of paragraph (19) of Code Section 51-14-3, and shall be either a board certified internist, a board certified pathologist, a board certified pulmonologist, a board certified occupational medicine physician, a board certified oncologist, or a certified B-reader. Defendant's opposition shall be filed with the trial court and served on plaintiff's counsel and each defendant.
(C) If the defendant does not file an opposition challenging plaintiff's prima-facie evidence of physical impairment within the time permitted, the trial court shall determine if the plaintiff has established prima-facie evidence of physical impairment based on the papers and documentation submitted to the trial court. The trial court's decision shall be made in a timely manner.
(D) If the defendant files an objection, the plaintiff may file a reply with the trial court within ten days of service of defendant's opposition. The reply must be served on each defendant.
(E) The trial court shall determine if the plaintiff has established prima-facie evidence of physical impairment with respect to an asbestos claim or silica claim in a timely manner based on the papers and documentation submitted to the trial court. A hearing will be conducted only if the trial court so orders on its own motion, or if, in the exercise of discretion, the trial court grants a party's request for a hearing. No testimony shall be taken at the hearing. A decision of the trial court not to grant a request for a hearing may not be appealed and does not constitute reversible error. If the trial court determines that the plaintiff has failed to establish prima-facie evidence of physical impairment, it shall dismiss the plaintiff's complaint without prejudice.
(a) All asbestos claims and silica claims filed in this state on or after May 1, 2007, shall include with the complaint a sworn information form containing the following information:
(1) The exposed person's name, address, date of birth, social security number, and marital status;
(2) If the exposed person alleges exposure to asbestos or silica through the testimony of another person or other than by direct or bystander exposure to a product or products, the name, address, date of birth, social security number, and marital status for each person by which claimant alleges exposure, hereafter the “index person,” and the claimant's relationship to each such person;
(3) The specific location of each alleged exposure;
(4) The specific asbestos-containing product or silica-containing product to which the exposed person was exposed and the manufacturer of each product;
(5) The beginning and ending dates of each alleged exposure as to each asbestos-containing product or silica-containing product for each location at which exposure allegedly took place for plaintiff and for each index person;
(6) The occupation and name of employer of the exposed person at the time of each alleged exposure;
(7) The specific condition related to asbestos or silica claimed to exist;
(8) Any supporting documentation of the condition claimed to exist; and
(9) The identity of any bankruptcy trust to which a claim has been submitted concerning any asbestos or silica injury of the exposed person, attaching any claim form or other information submitted to such trust or trusts with respect to the exposed person. Plaintiff must also identify any bankruptcy trust that the plaintiff believes is or may be liable for all or part of the injury at issue, even if a claim has not been submitted to that trust at the time the complaint is filed.
(b) If a plaintiff filing an asbestos claim or silica claim fails to file with the complaint a sworn information form or files a sworn information form that is allegedly defective or incomplete, and one or more defendants allege, with specificity, by motion to dismiss filed on or before the close of discovery, that said sworn information form is missing, defective, or incomplete, the plaintiff's complaint shall be dismissed without prejudice for failure to state a claim, except that the plaintiff may file the sworn information form or cure the alleged defect or omission any time between service of the motion to dismiss and 30 days after any order of dismissal identifying the defective or missing item or items. The trial court may, in the exercise of its discretion, extend the time for filing the missing information as it shall determine justice requires.
(c) All asbestos claims and silica claims along with sworn information forms must be individually filed in separate civil actions except that claims relating to the exposure to asbestos or silica for the same exposed person whose alleged injury is the basis for the civil action may be joined in a single action. Otherwise, no claims on behalf of a group or class of persons shall be joined in single civil action.
(a) Until such time as the trial court enters an order determining that the plaintiff has established prima-facie evidence of physical impairment, no asbestos claim or silica claim shall be subject to discovery, except discovery related to establishing or challenging the prima-facie evidence of physical impairment or by order of the trial court upon motion of one of the parties and for good cause shown.
(b) The medical criteria set forth in this chapter to establish prima- facie evidence of physical impairment are solely for the purpose of determining whether a claim meets the criteria to proceed in court. The fact that a plaintiff satisfies the criteria necessary to establish prima-facie evidence of physical impairment for an asbestos claim or silica claim shall not be construed as an admission or determination that the exposed person in fact has a condition related to exposure to asbestos or silica and shall not be cited, referred to, or otherwise used at trial.
(c) Unless stipulated to by the parties, an expert report submitted for the purpose of establishing or challenging prima-facie evidence of physical impairment is inadmissible for any other purpose.
(a) Notwithstanding Code Section 1-2-6 or 1-2-10, a civil action alleging an asbestos claim or silica claim may only be brought or maintained in the courts of Georgia if the plaintiff, whether a citizen of Georgia or a citizen of some other state, is a resident of Georgia at the time of filing the action or the exposure to asbestos or silica on which the claim is based occurred in Georgia; provided, however, nothing contained in this chapter shall preclude a nonresident of Georgia who currently has a case pending in this state that was filed before April 12, 2005, from maintaining that asbestos claim or silica claim if that nonresident can establish prima-facie evidence of physical impairment with respect to an asbestos claim or silica claim as provided in paragraph (17) or (18) of Code Section 51-14-3. Civil actions alleging an asbestos claim or silica claim filed on or after May 1, 2007, must comply with the forum provisions set forth in this Code section. Civil actions alleging an asbestos claim or silica claim filed on or after April 12, 2005, and before May 1, 2007, must comply with the forum provisions of Code Section 51-14-8, as enacted on April 12, 2005, by 2005 Act No. 29 (Ga. L. 2005, p. 145) as they existed prior to May 1, 2007.
(b) The trial court, on motion of a defendant, shall dismiss each asbestos claim or silica claim that is subject to this chapter against the defendant unless the plaintiff files a written statement with the trial court electing to abate the plaintiff's claim against the defendant for a period of 180 days from the date the trial court disposes of the defendant's motions in order to afford the plaintiff an opportunity to file a new action on the claims in another state of the United States.
(c)(1) A trial court may not abate or dismiss a claim under this Code section until the defendant files with the trial court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, the defendant waives the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed or the period of abatement ends. The fact that a claim subject to this Code section was barred by the statute of limitations in all other states of the United States at the time it was filed in this state shall not prevent the claim from being dismissed pursuant to this Code section and such claim shall be dismissed even if it cannot be filed in another state. The trial court may not abate or dismiss a claim under this Code section until the defendant files with the trial court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff in another state of the United States, the plaintiff may elect that the plaintiff and the defendant may rely on responses to discovery already provided under Georgia law, plus any additional discovery that may be conducted under the rules of civil procedure in another state, or use responses to discovery already provided and conduct additional discovery as permitted under the rules of civil procedure in such other state.
(2) If less than all of the defendants agree to provide the stipulations set forth in paragraph (1) of this subsection, then the court shall dismiss the claims against those defendants who so stipulate.
(d) To comply with this Code section in relation to an action that involves both claims that arose in this state and claims that arose outside this state, a trial court shall consider each claim individually and shall sever from the action the claims that are subject to this Code section.
(e) If a plaintiff alleges that the exposed person was exposed to asbestos or silica while located in more than one jurisdiction, the trial court shall determine, for purposes of this Code section, which of the jurisdictions is the most appropriate forum for the claim, considering the relative amounts and lengths of the exposed person's exposure to asbestos or silica in each jurisdiction.
Notwithstanding any other provision of law, an asbestos claim or silica claim that meets the requirements of this chapter permitting a claim to be filed in this state may only be filed in the county where the plaintiff resides or a county in which the exposure to asbestos or silica on which the claim is based occurred. If a plaintiff alleges that an exposed person was exposed to asbestos or silica while located in more than one county, the trial court shall determine which of the counties is the most appropriate forum for the claim, considering the relative amounts and lengths of the exposed person's exposure to asbestos or silica in each of those counties.
A trial court may consolidate for trial any number and type of asbestos claims or silica claims with the consent of all the parties. In the absence of such consent, the trial court may consolidate for trial only asbestos claims or silica claims relating to the same exposed person and members of his or her household.
(a) Asbestos claims and silica claims that accrued before April 12, 2005, or that will accrue on or after May 1, 2007, shall be governed by this chapter, as it exists on May 1, 2007. Asbestos claims and silica claims that accrued on or after April 12, 2005, and before May 1, 2007, shall be governed by Chapter 14 of Title 51, as enacted on April 12, 2005, by 2005 Act No. 29 (Ga. L. 2005, p. 145).
(b) Notwithstanding the foregoing, all asbestos claims and silica claims filed on or after April 12, 2005, and before May 1, 2007, shall be subject to and comply with the provisions of Code Sections 51-14-6, 51-14-7, 51-14-8, 51- 14-9, and 51-14-10, as enacted on April 12, 2005, by 2005 Act No. 29 (Ga. L. 2005, p. 145). All asbestos claims and silica claims filed on or after May 1, 2007, shall be subject to and comply with Code Sections 51-14-7, 51-14-8, 51- 14-9, 51-14-10, and 51-14-11, as they exist on May 1, 2007.
In the event any part, portion, section, subsection, paragraph, sentence, clause, phrase, or word of this chapter shall be declared or adjudged invalid or unconstitutional, such adjudication shall in no manner affect the other parts, portions, sections, subsections, paragraphs, sentences, clauses, phrases, or words of this chapter which shall remain of full force and effect as if the part, portion, section, subsection, paragraph, sentence, clause, phrase, or word so declared or adjudged invalid or unconstitutional were not originally a part hereof. For example, if a court determines that a particular word renders any portion or application of this chapter unconstitutional, in that event, the court shall strike that word and apply this chapter as if it were enacted without that word. The General Assembly declares that it would have passed the remaining parts of this chapter if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional. The General Assembly does not intend for this chapter to make any substantive change in the law governing claims that accrued before April 12, 2005, and has only included procedural provisions that govern where such claims can be filed and what early reports must be filed in such cases. This chapter shall be interpreted consistently with the General Assembly's intention not to make any substantive changes in the law applicable to cases that accrued before April 12, 2005. The General Assembly expressly declares its intent that Code Section 51-14-9 remain in full force and effect if any other part or parts of this chapter shall be declared or adjudged invalid or unconstitutional. The General Assembly further expressly declares its intent that, in the event any part, portion, section, subsection, paragraph, sentence, clause, phrase, or word of this chapter shall be declared or adjudged invalid or unconstitutional as applied to asbestos claims or silica claims that accrued before April 12, 2005, such adjudication shall in no manner affect the applicability of any part, portion, section, subsection, paragraph, sentence, clause, phrase, or word of this chapter to asbestos claims or silica claims that accrued or may accrue on or after May 1, 2007.
The General Assembly finds that the number of asbestos related claims has increased significantly in recent years and threatens the continued viability of a number of uniquely situated companies that have not ever manufactured, sold, or distributed asbestos or asbestos products and are argued to be liable only as successor corporations. This liability has created an overpowering public necessity to provide an immediate, clarifying, and remedial legislative solution. The General Assembly intends that the cumulative recovery by all asbestos claimants from innocent successors be limited, and intends to simply clarify and fix the form of asbestos claimants' remedies without impairing their substantive rights and finds that there are no alternative means to meet this public necessity. The General Assembly finds that Pennsylvania, Ohio, Texas, Mississippi, Florida, and South Carolina have enacted legislation similar to this chapter that, among other things, provides limitations of liabilities for asbestos claims for innocent successors. The General Assembly finds the public interest as a whole is best served by providing relief to these innocent successors so that they may remain viable and continue to contribute to this state. The General Assembly further finds that Georgia's successor liability statutes were never intended or contemplated to impose liability on successors in the situation covered by this chapter.
As used in this chapter, the term:
(1)(A) “Asbestos claim” means any claim, wherever or whenever made, for damages, losses, indemnification, contribution, loss of consortium, or other relief arising out of, based on, or in any way related to the health effects of exposure to asbestos, including, but not limited to:
(i) Any claim, to the extent recognized by applicable state law now or in the future, for:
(I) Personal injury or death;
(II) Mental or emotional injury;
(III) Risk or fear of disease or other injury;
(IV) The costs of medical monitoring or surveillance; or
(V) Damage or loss caused by the installation, presence, or removal of asbestos; and
(ii) Any claim made by or on behalf of an exposed person or based on that exposed person's exposure to asbestos, including a representative, spouse, parent, child, or other relative of the exposed person.
(B) “Asbestos claim” shall not mean a claim brought under:
(i) A workers' compensation law administered by this state to provide benefits, funded by a responsible employer or its insurance carrier, for occupational diseases or injuries or for disability or death caused by occupational diseases or injuries;
(ii) The Act of April 22, 1908, known as the Federal Employers' Liability Act, 45 U.S.C. Section 51, et seq.;
(iii) The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sections 901-944, 948-950; or
(iv) The Federal Employees Compensation Act, 5 U.S.C. Chapter 81.
(2) “Corporation” means a corporation for profit, including a domestic corporation organized under the laws of this state or a foreign corporation organized under laws other than the laws of this state.
(3) “Successor” means a corporation that assumes or incurs, or has assumed or incurred, successor asbestos related liabilities.
(4) “Successor asbestos related liabilities” means any liabilities, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, which are related in any way to asbestos claims and were assumed or incurred by a corporation as a result of or in connection with a merger or consolidation, or the plan of merger or consolidation related to the merger or consolidation, with or into another corporation, or which are related in any way to asbestos claims based on the exercise of control or the ownership of stock of the corporation before the merger or consolidation. The term includes liabilities that, after the time of the merger or consolidation for which the fair market value of total gross assets is determined under Code Section 51-15-4, were or are paid or otherwise discharged, or committed to be paid or otherwise discharged, by or on behalf of the corporation, or by a successor of the corporation, or by or on behalf of a transferor, in connection with settlements, judgments, or other discharges in this state or another jurisdiction.
(5) “Transferor” means a corporation from which successor asbestos related liabilities are or were assumed or incurred.
(a) The limitations contained in Code Section 51-15-4 apply to a domestic or foreign corporation that is a successor and became a successor before January 1, 1972, or is any of that successor corporation's successor corporation.
(b) The limitations contained in Code Section 51-15-4 do not apply to:
(1) Any claim against a corporation that does not constitute a successor asbestos related liability;
(2) An insurance corporation;
(3) Any obligations under the federal National Labor Relations Act or under any collective bargaining agreement; or
(4) A successor that, after a merger or consolidation, continued in the business of mining asbestos, in the business of selling or distributing asbestos fibers, or in the business of manufacturing, distributing, removing, or installing asbestos-containing products that were the same or substantially the same as those products previously manufactured, distributed, removed, or installed by the transferor.
(a) Except as further limited in subsection (b) of this Code section, the cumulative successor asbestos related liabilities of a corporation are limited to the fair market value of the total gross assets of the transferor determined as of the time of the merger or consolidation. The corporation does not have any responsibility for successor asbestos related liabilities in excess of this limitation.
(b) If the transferor had assumed or incurred successor asbestos related liabilities in connection with a prior merger or consolidation with a prior transferor, the fair market value of the total assets of the prior transferor, determined as of the time of the earlier merger or consolidation, shall be substituted for the limitation set forth in subsection (a) of this Code section for the purpose of determining the limitation of liability of a corporation.
(a) A corporation may establish the fair market value of total gross assets for the purpose of the limitations under Code Section 51-15-4 through any method reasonable under the circumstances, including:
(1) By reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in an arm's length transaction; or
(2) In the absence of other readily available information from which fair market value can be determined, by reference to the value of the assets recorded on a balance sheet.
(b) Total gross assets include intangible assets.
(c) Total gross assets include the aggregate coverage under any applicable third-party liability insurance that was issued to the transferor whose assets are being valued for purposes of this Code section, which insurance has been collected or is collectable to cover successor asbestos related liabilities except compensation for liabilities arising from workers' exposure to asbestos solely during the course of their employment by the transferor. For purposes of this subsection, a settlement with an insurance company shall fix what amount of coverage was collectable.
(a) Except as provided in subsections (b), (c), and (d) of this Code section, the fair market value of total gross assets at the time of a merger or consolidation shall increase annually at a rate equal to the sum of:
(1) The prime rate as published by the Board of Governors of the Federal Reserve System, as published in statistical release H.15 or any publication that may supersede it, for each calendar year since the merger or consolidation; and
(2) One percent.
(b) The rate provided in subsection (a) of this Code section shall not be compounded.
(c) The adjustment of fair market value of total gross assets shall continue as provided under subsection (a) of this Code section until the date the adjusted value is first exceeded by the cumulative amounts of successor asbestos related liabilities paid or committed to be paid by or on behalf of the corporation or a predecessor, or by or on behalf of a transferor, after the time of the merger or consolidation for which the fair market value of total gross assets is determined.
(d) No adjustment of the fair market value of total gross assets shall be applied to any liability insurance otherwise included in the definition of total gross assets by subsection (c) of Code Section 51-15-5.
The courts in this state shall apply, to the fullest extent permissible under the United States Constitution, this state's substantive law, including the limitation under this chapter, to the issue of successor asbestos related liabilities. This chapter shall be construed liberally to accomplish its remedial purposes.
If any part, portion, section, subsection, paragraph, sentence, clause, phrase, or word of this chapter, or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect the other parts, portions, sections, subsections, paragraphs, sentences, clauses, phrases, or words or applications of this chapter that can be given effect without the invalid part, portion, section, subsection, paragraph, sentence, clause, phrase, or word or application, and to this end the parts, portions, sections, subsections, paragraphs, sentences, clauses, phrases, and words of this chapter are declared severable.
As used in this chapter, the term:
(1) “Claimant” means an individual or an individual's survivor, including a decedent's estate, who seeks or has sought recovery of damages in a COVID-19 liability claim; provided, however, that all individuals claiming to have sustained damages of a single individual, are considered a single claimant.
(2) “COVID-19” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), and any mutation or viral fragments thereof, or any disease or condition caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), which were the subject of the public health state of emergency declared by the Governor on March 14, 2020.
(3) “COVID-19 liability claim” means a cause of action for:
(A) Transmission, infection, exposure, or potential exposure of COVID-19 to a claimant:
(i) At any healthcare facility or on the premises of any entity, individual, or healthcare provider, resulting in injury to or death of a claimant; or
(ii) Caused by actions of any healthcare provider or individual resulting in injury to or death of a claimant;
(B) Acts or omissions by a healthcare facility or healthcare provider in arranging for or providing healthcare services or medical care to the claimant resulting in injury or death of the claimant for COVID-19 or where the response to COVID-19 reasonably interfered with the arranging for or the providing of healthcare services or medical care at issue to the claimant; or
(C) Manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer that is directly related to providing such personal protective equipment or sanitizer to claimant by any entity during a public health state of emergency for COVID-19, which departs from the normal manufacturing, labeling, donating, or distributing personal protective equipment of such entity that proximately results in injury to or death of a claimant.
(4) “Entity” means any association, institution, corporation, company, trust, limited liability company, partnership, religious or educational organization, political subdivision, county, municipality, other governmental office or governmental body, department, division, bureau, volunteer organization; including trustees, partners, limited partners, managers, officers, directors, employees, contractors, independent contractors, vendors, officials, and agents thereof, as well as any other organization other than a healthcare facility.
(5) “Healthcare facility” shall have the same meaning as “healthcare facility” as provided for in paragraph (17) of Code Section 31-6-2 and all related parties; as “institution” as provided for in subparagraphs (A) and (C) through (G) of paragraph (4) and paragraph (5) of Code Section 31-7-1 and all related parties; as “end stage renal disease” as provided for in paragraph (6) of Code Section 31-44-1 and all related parties; and shall mean the recipient of a contract as authorized in paragraph (5) of Code Section 37-1-20 and any clinical laboratory certified under the Clinical Laboratory Improvement Amendments in Section 353 of the Public Health Service Act, 42 U.S.C. Section 263a. Such term shall not be construed to include premises.
(6) “Healthcare provider” means any physician or other person licensed or otherwise authorized in this state to furnish healthcare services, including, but not limited to, any dentist, podiatrist, optometrist, pharmacist, psychologist, clinical social worker, advanced practice registered nurse, registered optician, licensed professional counselor, physical therapist, massage therapist, marriage and family therapist, chiropractor, athletic trainer qualified pursuant to Code Section 43-5-7, occupational therapist, speech-language pathologist, audiologist, dietitian, physician assistant, cardiac technician, emergency medical technician, paramedic, or related parties.
(7) “Medical care” means any act defined as the practice of medicine under Code Section 43-34-21.
(8) “Personal protective equipment” means equipment worn to minimize exposure to hazards that cause injuries and illnesses, including, but not limited to, items such as gloves, masks, face shields, safety glasses, shoes, earplugs, muffs, respirators, coveralls, vests, and full body suits.
(9) “Premises” means, other than a healthcare facility, any property owned, occupied, leased, operated, maintained, or managed by an individual or entity, whether residential, agricultural, commercial, industrial, or other real property located within the State of Georgia.
(10) “Public health state of emergency” means a state of emergency as a result of a public health emergency as defined in Code Section 38-3-3 and as declared by the Governor and approved by the General Assembly pursuant to Code Section 38-3-51.
(11) “Related parties” includes persons, business corporations, general partnerships, limited partnerships, limited liability companies, limited liability partnerships, joint ventures, nonprofit corporations, or any other for profit or not for profit organization that owns or controls, is owned or controlled by, or operates under common ownership or control, of a healthcare provider or healthcare facility, or has legal responsibility for the acts or omissions of such healthcare facility or healthcare provider.
(12) “Sanitizer” means a liquid, gel, or foam generally used to decrease infectious agents such as viruses on the body, objects, or other spaces which receive human contact.
(13) “State of emergency” shall have the same meaning as set forth in Code Section 38-3-3.
(a) No healthcare facility, healthcare provider, entity, or individual shall be held liable for damages in an action involving a COVID-19 liability claim against such healthcare facility, healthcare provider, entity, or individual, unless the claimant proves that the actions of the healthcare facility, healthcare provider, entity, or individual showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
(b) The immunity set forth in subsection (a) of this Code section shall be provided in addition to, and shall in no way limit, any other immunity protections that may apply in state or federal law.
(a) Except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, in an action involving a COVID-19 liability claim against an individual or entity for transmission, infection, exposure, or potential exposure of COVID-19 to a claimant on the premises of such individual or entity, there shall be a rebuttable presumption of assumption of the risk by the claimant when:
(1) Any receipt or proof of purchase for entry, including, but not limited to, an electronic or paper ticket or wristband, issued to a claimant by the individual or entity for entry or attendance, includes a statement in at least ten-point Arial font placed apart from any other text, stating the following warning:
“Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.”; or
(2) An individual or entity of the premises has posted at a point of entry, if present, to the premises, a sign in at least one-inch Arial font placed apart from any other text, a written warning stating the following:
“Warning
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.”
(b) The provisions in this Code section shall not be construed so as to limit or restrict the immunities from liability provided in Code Section 51-16-2; further failure to participate as provided in subsection (a) of this Code section shall in no way limit or restrict the immunities from liability provided in Code Section 51-16-2 nor shall such failure to participate be admissible.
(a) Except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, in an action involving a COVID-19 liability claim for transmission, infection, exposure, or potential exposure of COVID-19 to a claimant at any healthcare facility or on the premises of any healthcare provider, resulting in injury to or death of a claimant there shall be a rebuttable presumption of assumption of the risk by the claimant when a healthcare facility or a healthcare provider has posted at a point of entry, if present, to the premises, a sign in at least one-inch Arial font placed apart from any other text, a written warning stating the following:
“Warning
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.”
(b) The provisions in this Code section shall not be construed so as to limit or restrict the immunities from liability provided in Code Section 51-16-2; further failure to participate as provided in subsection (a) of this Code section shall in no way limit or restrict the immunities from liability provided in Code Section 51-16-2 nor shall such failure to participate be admissible.
This chapter shall not modify or supersede the terms or application of:
(1) Title 16, relating to crimes and offenses;
(2) Title 31, relating to health or any state regulations related thereto;
(3) Chapter 9 of Title 34, relating to workers' compensation; and
(4) Chapter 3 of Title 38, relating to emergency management.
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