In July of 2010 the Georgia Court of Appeals held that Georgia’s Tort Reform Act of 2005 requires juries to apportion damages among responsible parties even if the plaintiff is not partly at fault. The decision in Cavalier Convenience, Inc. v. Sarvis recognized that the Tort Reform Act changed the prior law that had allowed apportionment of damages only if the plaintiff was partially at fault. The amended statute and the Court’s recent decision benefits defendants greatly by shifting responsibility for the plaintiff’s injury to others in proportion to their fault. Despite this benefit, subsequent cases reveal a hidden danger as the right to shift responsibility to other parties may create an obligation to pursue apportionment. Under these cases, a defendant may lose the right to contribution if apportionment is not pursued in the initial tort action.
In Cavalier Convenience, the driver of a car was injured in a collision with an allegedly intoxicated 17-year-old. Sarvis sued the 17-year-old driver as well as two stores that allegedly sold the teenager alcoholic beverages. The trial court refused to allow the stores to apportion damages to the 17-year-old because Sarvis was not partially at fault. The Court of Appeals reversed, finding that the plain language of the amended statute allows apportionment even when the plaintiff was not himself negligent. The Georgia Supreme Court accepted the case for review but the matter settled before the appeal was resolved. Consequently, the holding in Cavalier remains valid but may be challenged if the Georgia Supreme Court is presented with the issue again.
Cavalier drew the attention of the plaintiff’s bar which filed an amicus brief in the Court of Appeals contending that apportionment would be improper as a matter of public policy because it could result in a jury finding the driver 100% at fault and absolving the stores of liability despite their wrongful conduct. The Court of Appeals noted this concern, but reasoned that it cannot rewrite the statute.
A subsequent jury verdict from August 2010 confirmed the fear expressed by the plaintiff’s bar and shows the benefit of apportionment to defendants. Hagan v. Miles Properties was a death case brought against the owner of an apartment complex where a shooting occurred. In light of Cavalier, the trial court allowed the owner to seek apportionment with the shooter. The DeKalb County jury awarded $184,192 to the victim’s mother but apportioned the damages almost entirely to the criminal actors, assigning 95% of the fault to the criminals and just 5% to the apartment owner. Given this verdict, it is clear that Cavalier provides defense counsel another arrow in their quiver to reduce liability. This additional weapon may, however, come with a cost.
In McReynolds v. Krebs, decided by the Court of Appeals in November 2010, a passenger who was injured in a car crash sued the driver of the other vehicle as well as the car’s manufacture (GM), contending that the vehicle’s design contributed to her injuries. After GM settled, the other driver sought to apportion damages between himself and GM. The trial court and the Court of Appeals found that the driver was entitled to seek apportionment but that GM was not required to remain in the suit. But, because apportionment allowed the driver to reduce his liability to his own percentage of fault, the driver was not entitled to any contribution from GM nor any set-off for the payments made by GM. The trial, in other words, was the driver’s only opportunity to present evidence of the fault of others, eliminating any right to contribution following the verdict.
The driver did not present evidence of liability by GM, and therefore was not allowed to hold GM responsible for any portion of the jury’s ultimate $1.2 million award. The failure to present evidence of GM’s negligence is understandable because developing such evidence would have required him to prepare and present his own product liability case against GM in the context of defending the tort action brought by the plaintiff. Such an effort would have been an expensive undertaking with the only benefit being a potential reduction of liability if he established GM’s partial responsibility. Given the size of the verdict, and with the unfair benefit of hindsight, the effort may have been warranted.
The potential fallout from McReynolds is that despite the Tort Reform’s benefit in allowing apportionment, defendants must now weigh the need to thoroughly develop evidence establishing that other parties are at least partially responsible for the plaintiff’s injuries. Failure to consider apportionment during the defense of a tort action may result in the inability to seek contribution from others responsible for the plaintiff’s damages in a subsequent suit.