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FMG Law Blog Line

Can Wrongdoers Do No Wrong?

Posted on: January 31st, 2017

By: Kevin R. Stone

In Goldstein, Garber & Salama, LLC v. J.B., the Georgia Court of Appeals was faced with a case in which a nurse anesthetist (Paul Serdula) sexually assaulted a dental patient (J.B.) while she was sedated for a surgical procedure.  Serdula pleaded guilty and went to prison.  J.B. filed a civil lawsuit against the dental practice (GGS) where the assault occurred.  At the time of trial, Serdula was not a defendant in the lawsuit.  Still, he was included on the verdict form so the jury could apportion fault between him and GGS.  Surprisingly, the jury determined that (1) Serdula, who committed the intentional assault, was 0% at fault; and (2) GGS was 100% at fault for Serdula’s actions, leaving it on the hook for the entire $3.7 million verdict.

The Court of Appeals held that the verdict was not void or plainly erroneous even though a literal reading of it indicates that Serdula, who undisputedly committed the assault, bears no fault.  In his dissent, Judge Ray astutely noted that “A finding that Serdula did not contribute to J.B.’s injuries is wholly incomprehensible.  A finding that Serdula was not at fault would logically be a finding that he did nothing wrong.  If he did nothing wrong by molesting J.B., how then can GGS be liable for negligently placing him in the position to molest her?  A finding of no fault on Serdula’s part would seemingly equate to a finding of no fault on GGS’ part.”

The issue is now before the Georgia Supreme Court (Case No. S16G0744) and the consequences of the outcome are far-reaching.  If the opinion stands as is, it allows a jury to hold an allegedly negligent actor at 100% fault for intentional, criminal acts that were undisputedly committed by someone else.  The Georgia Defense Lawyers Association (GDLA) submitted an amicus brief in support of the dissent’s view of the apportionment issue.  We will continue to follow this case and keep you updated.

For any questions, please contact Kevin Stone at [email protected].

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