LWDN Quick Flash ~ Oct 2010
Premises Liability Update in Georgia
STATUTE: OCGA § 51-12-33
(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.
(d)(1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
ANALYSIS: Cavalier Convenience, Inc. v. Sarvis, 2010 WL 269838 (Ga. Ct. App., July 9, 2010).
The Court of Appeals of Georgia held that under the recently amended OCGA § 51-12-33, a trier of fact is required to apportion its award of damages among multiple liable defendants even though the plaintiff bears no fault. The Court explained that prior to the amendment of OCGA § 51-12-33, the statute permitted apportionment, but only where the plaintiff was partially at fault. However, in this precedent setting case, the Court focused on the use of the language “if any” placed in OCGA § 51-12-33(b), and determined that it is clear that the legislature did not intend for apportionment to be limited to those cases where the plaintiff was to some degree at fault. Instead, the Court agreed with the defendants’ contention that apportionment is mandated anytime where multiple defendants are found liable. The Court noted, to find that apportionment is mandated only if the plaintiff is to some degree at fault would be to overlook the use and placement of the “if any” clause in the statute.
The Court clearly articulated, “where damages are to be awarded in an action brought against more than one person for injury to person or property-whether or not such damages must be reduced pursuant to” the plaintiff’s percentage of fault as articulated under OCGA § 51-12-33(a), “the trier of fact ‘shall ... apportion its award of damages among the persons who are liable according to the percentage of fault of each person.’” Id. at *3, quoting OCGA § 51-12-33. The Court explained that if the legislature had “intended for subsection (b) of OCGA § 51-12-33 to be triggered only upon a reduction of damages pursuant to subsection (a) of that Code section, it could have so stated; but it did not impose any such prerequisite.” In so holding, the Court reiterated that the statute must be construed according to its plain terms. It continued, “where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden”. Id. at *3. The Court noted that its opinion gives “appropriate deference to the legislative process and separation of powers” Id. at *3.
APPLICATION: Herrera Properties v. Miles Properties, No. 08A83964-6 (DeKalb County State Court) – still unpublished
The Daily Report article, Lawyers: New Day in Premises Liability, details a DeKalb County State Court jury trial in which the jury awarded $184,192 to the mother of the deceased, who was shot in the head during an armed robbery at an apartment complex managed by the defendant landlord. In light of the Cavalier Convenience, Inc. v. Sarvis, 2010 WL 269838 (Ga. Ct. App., July 9, 2010) decision and under OCGA § 51-12-33, the jury was allowed to apportion responsibility for the award between the apartment manager and the two men convicted in Hagan’s death. The two criminal defendants names’ were added to the jury form along with the defendant Miles Properties with instructions to allocate responsibility for the incident among the three. The article cited to the portion of OCGA § 51-12-33 which provided that the jury “shall…apportion its award of damages among the persons who are liable according to the percentage of fault of each person”. This permits blame to be spread beyond the named defendants.
Further, the article cited to Cavalier Convenience, Inc. v. Sarvis and focused on the use of “if any” in the statute, which was interpreted to mean that regardless of whether the plaintiff bore any responsibility for the matter in dispute, liability for multiple defendants had to be apportioned. In expounding on the use of the “if any” language, the article quoted Presiding Judge Herbert E. Phipps in holding that “…the legislature did not intend for apportionment to be limited to those cases wherein the plaintiff was to some degree at fault”.
The Plaintiff’s attorney in this matter expressed his disdain for the Court’s interpretation of the statute and was quoted in the article as asserting that apportioned liability is unfair to the innocent victims of crime in premises liability cases. Specifically, he said, “The statute was changed to allow a defendant such as Miles [Properties] to simply file a motion of intent [within 120 days of trial] to name the criminal defendants on the jury form, regardless of whether they were co-defendants, regardless of whether they could pay the first penny of damages.” It is unlikely that the criminal co-defendants named have assets to satisfy the judgment. However, the Defense attorney believed that “being able to apportion liability to the criminal defendants really levels the playing field”. With these two varying opinions, the fate of the future of premises liability remains in the hands of the Georgia Supreme Court, as appeals have been filed in both the Herrera Properties v. Miles Properties, No. 08A83964-6 (DeKalb County State Court) and Cavalier Convenience, Inc. v. Sarvis, 2010 WL 269838 (Ga. Ct. App., July 9, 2010) cases.
TAKE AWAY: If a matter is proceeding to trial, and a defendant intends to hold a nonparty or co-defendant responsible for the plaintiff’s injuries in a premises liability action, defense counsel must give notice that a nonparty was wholly or partially at fault by filing a pleading setting forth the nonparty's name and last known address within 120 days before the date of trial. OCGA § 51-12-33 (d)(1) & (2). If such is done, then fault will be apportioned between the co-defendants, whether the plaintiff was at fault or not. OCGA § 51-12-33 (a) & (b). If the matter was settled via a settlement agreement with a nonparty defendant prior to trial, then the negligence or fault of a nonparty will also be considered. OCGA § 51-12-33 (d)(1) & (2).
