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FMG Law Blog Line

Georgia Supreme Court Upholds Apportionment Statute

Posted on: July 10th, 2012

By Sun Choy and Jake Daly

Yesterday the Georgia Supreme Court issued its much-anticipated opinion inCouch v. Red Roof Inns, Inc., which involved a challenge to the validity and constitutionality of Georgia’s apportionment statute, O.C.G.A. § 51-12-33.  The case arose out of a third-party criminal attack on a guest of a motel, who subsequently sued the owner and manager of the motel for their alleged negligent failure to maintain the premises in a safe condition.  The plaintiff did not sue the unknown criminals who attacked him (even as John Doe defendants), and so the defendants identified them as at-fault non-parties to whom fault should be allocated pursuant to the apportionment statute.  Upon the plaintiff’s challenge to the statute via a motion in limine, Judge Steve C. Jones of the United States District Court for the Northern District of Georgia certified the following two questions to the Georgia Supreme Court:

  1. In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack, is the jury allowed to consider the “fault” of the criminal assailant and apportion its award of damages among the property owner and the criminal assailant, pursuant to O.C.G.A. § 51-12-33?
  2. In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack, would jury instructions or a special verdict form requiring the jury to apportion its award of damages among the property owner and the criminal assailant, pursuant to O.C.G.A. § 51-12-33, result in a violation of the plaintiff’s constitutional rights to a jury trial, due process or equal protection?

The Georgia Supreme Court answered the first question in the affirmative and the second question in the negative.  Sun Choy and Jake Daly of FMG authored an amicus curiae brief on behalf of the Georgia Defense Lawyers Association in support of the validity and constitutionality of the statute.

Justice Harold Melton, writing for a five-justice majority, focused almost exclusively on the plaintiff’s argument that the statute does not permit a jury to apportion fault between negligent and intentional tortfeasors.  The statute provides that a jury shall consider the “negligence or fault” of a non-party when the plaintiff settles with the non-party or when the defendant gives the prescribed notice.  Looking to the ordinary meaning of the word “fault,” as well as the plain language and context of the statute, Justice Melton concluded that fault includes intentional conduct.  Because the statute “is designed to apportion damages among ‘all persons or entities who contributed to the alleged injury or damages,’” it would “make[] no sense if persons whose intentional acts that contributed to the damages are excluded.”  Moreover, had the General Assembly intended to exclude intentional acts from the scope of the statute, it could have done so explicitly as it did in the statute governing the right of contribution, and as other state legislatures have done in their apportionment statutes.

Turning briefly to the plaintiff’s constitutional arguments, Justice Melton wrote that the plaintiff had not shown that the statute violates his constitutional rights to a jury trial, due process, or equal protection.  The statute does not violate the right to a jury trial because it does not infringe on a jury’s ability to assess liability, calculate damages, and identify the tortfeasors who are responsible.  The right to due process is not violated because the statute is clear, provides adequate guidance to juries, and preserves a plaintiff’s right to pursue a judgment against all tortfeasors.  And with respect to equal protection, the statute is supported by a rational basis of apportioning damages among all tortfeasors, not just those whom a plaintiff elects to sue.

The significance of Couch to property owners and their insurers cannot be overstated since, as the defense bar has already seen, some jurors will apportion almost all of the fault to the non-party criminal who attacked the plaintiff.  Indeed, in one case the jury apportioned 95% of the fault to the non-party criminals.  Most immediately, Couch likely renders moot at least some of the other appeals currently pending in the Georgia Supreme Court and the Georgia Court of Appeals.  The long-term implications, however, remain to be seen.  It would be natural to assume that fewer cases like Couch will be filed, and while there may well be a decrease, it would be premature to think that these cases will go away completely.  As Justice Melton observed, a property owner still owes a duty and still will be liable for its proportional share of damages, and it is not inconceivable that any given jury could apportion a large percentage of fault to the property owner and a small percentage of fault to the non-party criminal.

For more information, contact Sun Choy at 770.818.1412 or [email protected]or Jake Daly at 770.818.1431 or [email protected].

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