66.730 Nonproduct Liability 'Cap'; Burden of Proof

66.730 Nonproduct Liability "Cap"; Burden of Proof The plaintiff must prove by a preponderance of the evidence that the defendant (give the following only as supported by evidence) a. acted with "specific intent" to harm, b. acted while under the influence of alcohol, c. acted while under the influence of drugs (and that such drugs were not lawfully prescribed or administered in accordance with prescription), or d. acted while under the influence of intentionally consumed glue, aerosol, or other toxic vapor to that degree that defendant's judgment was substantially impaired. (Note: "Uncapped" nonproduct liability punitive damages may be awarded against an active tortfeasor only. O.C.G.A. §51-12-5.1(f). The code section does not give a definition of that term or specify how that determination should be made (i.e., by the jury or by the court upon motion) or the burden. However, in almost all instances, the determination will have been decided by the court on motion or by the jury before having gotten this far.) (For the rare case, resume charge.) The plaintiff must prove by a preponderance of the evidence that the defendant was active, as opposed to passive, in committing the wrong that caused the harm. Kothari v. Patel, 262 Ga. App. 168, 585 S.E.2d 97 (2003) (Note: The jury should return the "cap" findings on a special interrogatory or verdict form. The committee suggests that the court attempt to obtain a consensus in pretrial conference on how the cap issue will be addressed.) Rolleston v. Estate of Sims, 253 Ga. App. 182, 187