2021 Georgia Code
Title 51 - Torts
Chapter 12 - Damages
Article 1 - General Provisions
§ 51-12-2. General and Special Damages Distinguished; When Recovered

1. General damages are those which the law presumes to flow from any tortious act; they may be recovered without proof of any amount.
2. Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered.

(Orig. Code 1863, § 3002; Code 1868, § 3015; Code 1873, § 3070; Code 1882, § 3070; Civil Code 1895, § 3910; Civil Code 1910, § 4507; Code 1933, § 105-2006.)

- For note criticizing Georgia's adherence to the special damages requirement for actions of malicious use of legal process absent plaintiff's arrest or the attachment of property, see 13 Mercer L. Rev. 396 (1962). For note, "Whose Sperm Is It Anyways in the Wild, Wild West of the Fertility Industry?," see 34 Ga. St. U.L. Rev. 847 (2018).

General damages are those which law presumes to flow from tortious act, and may be awarded without proof of any specific amount, to compensate the plaintiff for the injury done. Alexander v. Holmes, 85 Ga. App. 124, 68 S.E.2d 242 (1951); Georgia Power Co. v. Womble, 150 Ga. App. 28, 256 S.E.2d 640 (1979); Callahan v. Panfel, 195 Ga. App. 891, 395 S.E.2d 80 (1990).

Petition setting forth alleged torts, and claiming damages generally in named amount, states cause of action for recovery of general damages, nominal damages, and punitive damages, as the evidence might show; and is not subject to dismissal as claiming no recoverable damages. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

- A plea which alleges no special damages is to be construed as one which claims general damages only. Atlanta Glass Co. v. Noizet, 88 Ga. 43, 13 S.E. 833 (1891).

If the pleadings are not expressly limited, a petition setting forth a tort, and claiming unspecified damages in a stated amount, will be construed as seeking general damages, so as to authorize their recovery; and even though the injury be slight and no actual damage be shown, at least nominal damages would be recoverable. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

- Award for general damages under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is limited to those damages that can be measured by actual injury suffered, and the general provisions of subsection (a) of O.C.G.A. § 51-12-2 are not applicable. Regency Nissan, Inc. v. Taylor, 194 Ga. App. 645, 391 S.E.2d 467 (1990).

- An award for general damages under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., is limited to those damages that can be measured by an actual injury suffered, and the general provisions of O.C.G.A. § 51-12-2 are not applicable; furthermore, claims under the Act for equitable relief, exemplary damages, treble damages, and attorney's fees are dependent on actual injury or damage resulting from a violation of the Act. Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68 (2005).

- Punitive damages are included in the genus general damages. Atlantic Coast Line R.R. v. Thomas, 14 Ga. App. 619, 82 S.E. 299 (1914).

- Bodily pain and suffering are inferred from personal injury, and loss of time from the disabling effect thereof. County of Bibb v. Ham, 110 Ga. 340, 35 S.E. 656 (1900).

- The jury, in giving general damages, must observe the cardinal rule of law, which is that damages are given only as compensation for the injury done. Batson v. Higginbothem, 7 Ga. App. 835, 68 S.E. 455 (1910).

Special damages are sustained when there is loss of money, or some other material temporal advantage capable of being assessed in monetary value. Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (5th Cir. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1580, 39 L. Ed. 2d 882 (1974).

Requirement of special damages is satisfied if the plaintiff knows the flow of the plaintiff's business as a whole is diminished, and it is impossible to point to any specific customers, or orders which have been lost. Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (5th Cir. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1580, 39 L. Ed. 2d 882 (1974).

If only special or punitive damages are expressly pled and prayed, recovery is limited to damages thus sought. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

Mere failure of the petition to allege facts showing the correct measure of damages does not render petition bad as against general demurrer (now motion to dismiss) when the petition otherwise sets out a cause of action. When it appears from the allegations of the petition that the plaintiff is entitled to recover, and the amount of the plaintiff's damage is alleged, the petition is good as against general demurrer (now motion to dismiss). Horwitz v. Teague, 77 Ga. App. 386, 48 S.E.2d 697 (1948).

- The proof of special damage must be sufficient to enable the jury to estimate the amount thereof, with reasonable certainty. The exact figures need not be submitted. National Refrigerator & Butchers Supply Co. v. Parmalee, 9 Ga. App. 725, 72 S.E. 191 (1911).

- Even when a plaintiff seeks recovery for the cost of repairs of a vehicle only and does not also seek recovery for loss of use and diminution in value, the plaintiff must prove the fair market value of the vehicle immediately prior to the collision since the cost of repairs cannot exceed such a value. Canal Ins. Co. v. Tullis, 237 Ga. App. 515, 515 S.E.2d 649 (1999).

- Physicians' bills, expenses of nursing, and the like are ranked as special damages, and can not be recovered without any special averment in regard to them. Central Ga. Power Co. v. Fincher, 141 Ga. 191, 80 S.E. 645 (1913).

- Following a finding of legal malpractice, property owners were entitled to special damages under O.C.G.A. § 51-12-2(a) for legal fees and general damages under § 51-12-2(b) based on damage to the owner's business, the anguish of the owner's spouse, and interference with the quiet enjoyment of the owners' property that flowed directly and foreseeably from the attorneys' malpractice. The owner's initial visit to the attorneys was a plea to protect the owners from the consequences of a levy and sale of an interest in the owners' residence, and the sale was exactly what the attorneys failed to prevent. Pullen v. Cornelison (In re Pullen), Bankr. (Bankr. N.D. Ga. Aug. 4, 2010).

- Even though the statutory definitions of general and special damages refer to tortious acts, general and special damages also may be recovered in contract actions if the damages are not remote or consequential and arose naturally and according to the usual course of things from the breach. Bill Parker & Assocs. v. Rahr, 216 Ga. App. 838, 456 S.E.2d 221 (1995).

Lost profits are recoverable as damages if such are shown with reasonable certainty. DeVane v. Smith, 154 Ga. App. 442, 268 S.E.2d 711 (1980).

- In order to make out right to damages for lost profits, parties are obligated to establish with reasonable certitude their provable estimated net loss of profits by showing the factors giving rise to the provable estimated gross revenues less the provable estimated expenses. Bennett v. Smith, 245 Ga. 725, 267 S.E.2d 19 (1980).

- Special damages must be alleged and proved in slander and libel cases, unless the words are actionable per se. Windsor & Jowers v. Oliver, 41 Ga. 538 (1871); Ransone v. Christian, 56 Ga. 351 (1876).

- Since the plaintiff remained employed and received all raises due the plaintiff, when the plaintiff offered no evidence that the plaintiff's failure to receive a part-time job for which the plaintiff applied was the result of the plaintiff's alleged defamation, and the plaintiff's voluntary act of hiring an attorney when the plaintiff was a witness before a personnel review board did not actually flow from the defendants' allegedly tortious acts, the plaintiff showed no special damages. Meyer v. Ledford, 170 Ga. App. 245, 316 S.E.2d 804 (1984).

General damages for slander may be recovered under O.C.G.A. § 51-12-2(a) when a defendant has intentionally and wantonly injured the plaintiff's reputation through slander without proof of any amount; when an injured party claimed that the slander concerned the injured party's profession, damage was inferred under O.C.G.A. § 51-5-4(b). Galardi v. Steele-Inman, 259 Ga. App. 249, 576 S.E.2d 555 (2002).

- Trial court did not err by granting summary judgment to the defendants on the plaintiff's claim of slander of title alleging that the estate suffered special damages by the loss in value of the slandered property because the plaintiff failed to raise an issue of fact regarding special damages as the plaintiff did not bring forth any facts regarding the value of the property at any time between April 2009, the date the forged assignment was recorded, to March 2011, the date of the Supreme Court's decision quieting title to the property; and the plaintiff did not show how the value of the property during that period suffered from the fact that the forged assignment was recorded. Veatch v. Aurora Loan Servs., LLC, 331 Ga. App. 597, 771 S.E.2d 241 (2015).

- When special damages arising from a nuisance occur, the allegations should be sufficiently specific to authorize the defendant of the items thereof. Exley v. Southern Cotton Oil Co., 151 F. 101 (S.D. Ga. 1907).

- Fact that the jury chose to allocate certain amounts of the special damages proven by the testimony between nuisance and negligence claims was not reversible error because the testimony established damages to the property, including diminished value and costs to protect the property, and that total amount was not reflected in the jury's nuisance award; under O.C.G.A. § 51-12-2(a), the jury was authorized to award additional general damages based on the parties' negligence within its enlightened conscience and based on the testimony presented at trial. Ingles Mkts., Inc. v. Kempler, 317 Ga. App. 190, 730 S.E.2d 444 (2012).

- When water from a mill dam overflows another's land, nominal damages are recoverable when special damages are not alleged. Ellington v. Bennett, 59 Ga. 286 (1877).

- When a suit is for special damages alone, which are not recoverable, a recovery of nominal damages will not be granted. Sparks Milling Co. v. Western Union Tel. Co., 9 Ga. App. 728, 72 S.E. 179 (1911).

- When several different elements of damage are claimed, it is error requiring the grant of a new trial for the judge to fail in the judge's charge to the jury to give the jury any rule for estimating the damages claimed; and this is true notwithstanding no written request for such charge is made by the defendant. Southeastern Greyhound Lines v. Hancock, 71 Ga. App. 471, 31 S.E.2d 59 (1944).

- Trial court erred when the court denied a bank's motion for a new trial in a fraud case because the amount of damages awarded was excessive in that the evidence adduced at trial did not authorize the jury's award of $100,000 against the bank because the suing construction company alleged and proved only economic harm in an amount substantially less than that award, namely $9,400 via a materialman's lien, and renovation expenses in the amount of $23,000. Further, the jury's award of an additional $55,000 against the bank as punitive damages was erroneous since there was no charge on punitive damages, let alone proper guidance on the clear and convincing evidence required; the verdict form did not pose the question of punitive damages except by quotation of O.C.G.A. § 51-12-5.1(f), which required the jury to find specific intent to cause harm before the jury could award punitive damages in excess of $250,000; and the proceedings were not properly bifurcated. First Southern Bank v. C & F Servs., 290 Ga. App. 304, 659 S.E.2d 707 (2008).

- The law allowing special damages as actually flowed from the act, but which must be proved in order to be recovered, does not embody a substantial, vital, and controlling issue presented by pleadings and evidence, and the court has no duty to so instruct in the absence of a special request. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).

If special damages are not asked for, it is error to charge latter part of this section. Sammons v. Wilson, 20 Ga. App. 241, 92 S.E. 950 (1917).

- For a discussion of the nature of damages sustained by a person who suffers a false imprisonment through the negligence of another, see Baggett v. National Bank & Trust Co., 174 Ga. App. 346, 330 S.E.2d 108 (1985).

- In a nuisance suit brought by a property owner against the City of Atlanta, which involved the city failing to properly maintain a storm pipe that traversed and served the property owner's land and resulted in extensive flooding of the land and the home, the trial court properly awarded compensatory damages in the amount of $300,000 and that amount was not excessive, as a matter of law, as there was evidence that the property owner suffered special damages in the amount of $203,376, including loss of personal property, diminution in the value of the property, and rental expenses incurred when the property owner was forced to move from the home. There was also sufficient evidence to support an award of damages for personal injuries and damages for annoyance and discomfort based on the property owner spending over seven years battling sinkholes in the yard and flooding in the home, the home being infested with rats, insects, and mold, and the property owner's physician testifying that the property owner smelled of mold and suffered from mold-induced migraines. City of Atlanta v. Hofrichter, 291 Ga. App. 883, 663 S.E.2d 379 (2008).

- In a breach of contract and fraud action, the appellate court refused to disturb the jury's verdict awarding the lessor general damages because such damages were available on a fraud claim and there simply was no basis to overturn the verdict. Goody Prods. v. Dev. Auth. of Manchester, 320 Ga. App. 530, 740 S.E.2d 261 (2013).

Cited in Bass v. Postal Telegraph-Cable Co., 127 Ga. 423, 56 S.E. 465, 12 L.R.A. (n.s.) 489 (1907); Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369, 170 S.E. 549 (1933); Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935); Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939); Smith v. Fischer, 59 Ga. App. 791, 1 S.E.2d 684 (1939); First Bancredit Corp. v. J.G. McKenzie Lumber Co., 65 Ga. App. 595, 16 S.E.2d 191 (1941); Gloss v. Jacobs, 86 Ga. App. 161, 71 S.E.2d 253 (1952); Colgate-Palmolive Co. v. Tullos, 219 F.2d 617 (5th Cir. 1955); Weimer v. Cauble, 214 Ga. 634, 106 S.E.2d 781 (1959); Henderson v. Stewart, 102 Ga. App. 533, 117 S.E.2d 176 (1960); Porter v. Bland, 105 Ga. App. 703, 125 S.E.2d 713 (1962); Studdard v. Evans, 108 Ga. App. 819, 135 S.E.2d 60 (1964); Town Fin. Corp. v. Hughes, 134 Ga. App. 337, 214 S.E.2d 387 (1975); Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976); Bradley v. Godwin, 152 Ga. App. 782, 264 S.E.2d 262 (1979); Taylor v. Greiner, 156 Ga. App. 663, 275 S.E.2d 737 (1980); Keasler v. Cedar Bluff Bank, 162 Ga. App. 57, 290 S.E.2d 150 (1982); Hayes v. Irwin, 541 F. Supp. 397 (N.D. Ga. 1982); Getz Servs., Inc. v. Perloe, 173 Ga. App. 532, 327 S.E.2d 761 (1985); Bell v. King, Phipps & Assocs., 176 Ga. App. 702, 337 S.E.2d 364 (1985); Stepperson, Inc. v. Long, 256 Ga. 838, 353 S.E.2d 461 (1987); Associated Health Sys. v. Jones, 185 Ga. App. 798, 366 S.E.2d 147 (1988); Daniels v. Johnson, 191 Ga. App. 70, 381 S.E.2d 87 (1989); Sykes v. Sin, 229 Ga. App. 155, 493 S.E.2d 571 (1997); Cavin v. Brown, 246 Ga. App. 40, 538 S.E.2d 802 (2000); Edel v. Southtowne Motors of Newnan II, Inc., 338 Ga. App. 376, 789 S.E.2d 224 (2016).

RESEARCH REFERENCES

Am. Jur. 2d.

- 22 Am. Jur. 2d, Damages, § 18.

- 25 C.J.S., Damages, § 2.

- Necessity and manner, in personal injury or death action, of pleading special damages in the nature of medical, nursing, and hospital expenses, 98 A.L.R.2d 746.

What constitutes special damages in action for slander of title, 4 A.L.R.4th 532.

Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, sexual organs and processes, 13 A.L.R.4th 183.

Excessiveness or adequacy of damages awarded for injuries to legs and feet, 13 A.L.R.4th 212.

Excessiveness or adequacy of damages awarded for injuries to head or brain, or for mental or nervous disorders, 14 A.L.R.4th 328.

Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, circulatory, digestive, and glandular systems, 14 A.L.R.4th 539.

Excessiveness or adequacy of damages awarded for injuries to back, neck, or spine, 15 A.L.R.4th 294.

Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, respiratory system, 15 A.L.R.4th 519.

Excessiveness or adequacy of damages awarded for injuries to head or brain, 50 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system, 51 A.L.R.5th 467.