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By: Katie Dod
“NOT IT!” can be a great childhood (or even adult) phrase to avoid chores or other unpleasantries of life, but it can also be a critically important concept for defendants in premises liability cases when non-party entities may be fully or partially at fault for a plaintiff’s damages. In the recent case of Double View Ventures, LLC v. Polite, 2014 WL 1227777, the Georgia Court of Appeals clarified the circumstances when defendants can ask a jury to apportion fault to non-parties under Georgia law. Previously, the Supreme Court of Georgia upheld the constitutionality of Georgia’s apportionment statute which cleared the way for defendants to identify non-parties on a jury verdict form to reduce their own liability. A defendant, however, is still required to prove a “rational basis” for a jury to apportion fault to that non-party and it was unclear what evidence would be required to meet that burden. In Polite, the plaintiff established that he was attacked while walking between the property of the apartment complex at which he lived and an adjoining gas station. A wrought iron fence encompassed much of the apartment complex, but, in an area where there was a path used by residents to traverse from the complex to the Chevron, all that was present was a wooden gate that was easily breached. A security expert testified that, in light of prior crime on the property and in the neighborhood, the existence of this wooden gate fell beneath the standard of care required by the apartment complex to keep its premises safe. It was undisputed that the gate was on the Chevron’s property and that it had been installed by owners of the Chevron though repaired by the apartment complex. Defendant identified three separate entities which could have been owners of the Chevron, but neither party could conclusively identify the legal entity which owned the Chevron at the time of the attack. The trial court denied defendant’s request to identify a Chevron entity on the jury verdict form as a potential at-fault party and the jury returned a verdict in favor of plaintiff in which it apportioned no fault to plaintiff’s criminal attackers and 13% fault to plaintiff. An extended panel of the Court of Appeals held it was error for the trial court to exclude the Chevron entity from the jury verdict form given the facts. The Court found that a jury issue existed as to whether the Chevron entity had a duty to maintain the gate on its property. The dissent noted that, given the inability to properly identify the Chevron entity, there was no ability to determine what knowledge that entity had of prior crime on the property and, consequently, no ability to establish that the Chevron entity could be legally at fault for plaintiff’s injury. The majority countered, however, that given the high frequency of crime in the neighborhood and on the Chevron’s property, there was a question of fact as to Chevron’s knowledge of prior substantially similar crime which should have been resolved by the jury, not a trial court judge. In other words, the determination as to whether there was a rational basis to apportion fault to the Chevron entity was for the jury, not the judge. The Court of Appeals also did not find it fatal that the defendant could not specifically identify the Chevron entity as the statute only required defendant to give the best possible identity under the circumstances.
This holding is incredibly helpful to defendants in premises liability cases as it loosens the proof requirements for property owners and managers who seek to apportion fault to a non-party. A defendant need not meet the same burden to identify a non-party as a plaintiff must meet to recover. If there is some evidence upon which a jury could rationally rely to find a non-party wholly or partially at fault for a plaintiff’s injury, the jury can weigh that evidence and decide whether to apportion fault and, if so, in what amount. Defendants still must introduce some evidence to apportion fault to the non-party, and they should be careful in deciding strategically whether to do so if the evidence would also implicate the defendant (such as the existence of well-known high crime in the neighborhood). Defendants should also be careful as to how this evidence is presented so as to not send mixed messages. Defendants should not push the issue of apportionment so far as to confused the jury in to believing that the mere existence of crime near a property creates liability for property owners and managers. It is likely the contours of apportionment will continue to be defined through future litigation, but, for now, one important issue was resolved favorably to defendants. Plaintiff, however, indicated an appeal is likely, so it is possible the victory could be short-lived, but, at least for now, there is one concept from childhood which may prove critically important to defendants seeking to reduce their liability.