Apportionment – Liability Based on Fault, Not Pocket Size
By Neil Wilcove and Will Tate


Apportionment of damages is the distribution of a percentage of the judgment, as determined by a jury, to each party responsible for the injury to the plaintiff.  See O.C.G.A. § 51-12-33.  The party receiving the allocated damages is then individually responsible for paying his or her portion of the judgment. 

Apportionment was a boon to all insurance companies as well as individuals and businesses who maintained some net worth.  They were no longer responsible for the “judgment proof” co-defendants who could not pay their own portion of the judgment.  The key to litigation of tort cases, therefore, became the establishment of some fault of the plaintiff in order to trigger the protections of the apportionment statute.  It has long been the law that any time a plaintiff was partially responsible for his or her own injuries, the jury could assign fault to each person who contributed to the injury the plaintiff suffered, as long as their amount of fault was greater than that of the plaintiff. 

However, recent Georgia Court decisions have determined the language of the statute authorizing apportionment applies to any instance where multiple parties may have contributed to the plaintiff’s harm, including where the plaintiff’s own actions or negligence did not contribute to his or her injury.  See Cavalier Convenience, Inc. v. Sarvis, 2010 WL 2698381 (July 9, 2010).  No longer must defendants prove some sort of negligence or contribution of the plaintiff to his or her own injuries or damages to gain the right to have the liability apportioned among the liable parties. 

This application is particularly important to business owners and operators.  Consider an apartment complex were an individual attacks a visitor on the complex’s property.  The visitor in no way contributed to his injury.  The visitor establishes that the attacker caused him injury and that the property manager was a negligent in failing to maintain adequate security measures.  Also, the attacker was previously convicted for the attack despite exhausting all of his funds on his defense.  Applying the recent decisions, a jury will be able to allocate each liable party, the attacker and the property manager, with their own portion of the award to the visitor.  The apartment manager will not be forced to pay all of the damages to a plaintiff for the independent criminal acts of the insolvent attacker, only the amount that jury finds the property manager was liable.  In a recent DeKalb State court proceeding, on which the above example is based, a property manager was found liable for 5% of a $180,000 award.  Had the previous interpretations of the availability of apportionment stood, the property manager would have ultimately been liable for the entire amount because the attacker was jailed and insolvent.

The jury’s power to apportion damages does not end with the parties of the lawsuit.  Any person or business may be considered by the jury as long as notice was given to the court of the potentially liable entity more that 120 days prior to the trial.  O.C.G.A. § 51-12-33(d).  During the progression of litigation, you should be mindful of other parties who may have contributed to the damages alleged by the plaintiff and give notice of their potential liability to the court.

For more information regarding this article, please contact Neil Wilcove at 770.818.1430 or by email at [email protected] or Will Tate at 770.818.1429 or by email at [email protected].



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