Proportional Liability

In a case of negligent security against a commercial property owner, Couch v. Red Roof Inns Inc., S12Q0625, the Georgia Supreme Court last week upheld Georgia’s apportionment statute, O.C.G.A. § 51-12-33.

In a 5 -2 decision, with Justice Benham and Presiding Justice Hunstein dissenting, the Georgia Supreme Court found that (1) the jury is allowed to apportion damages among the property owner and the criminal assailant, and (2) instructions or special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights. In addition to the Supreme Court’s  analysis of the statutory construction of O.C.G.A. § 51-12-33, the opinion

The blogging gurus have told me not to write blog posts like legal briefs.

  • Make posts short, with short sentences and bullet points, they say.
  • But tonight, leaving a bar association dinner, a judge’s law clerk read my name tag and had a flash of recognition.
  • In researching a question on which there was no case authority in Georgia,  she searched Westlaw for hours without success, and then Googled the question.
  • That led to a post on my blog that was, yes, written like a legal brief, complete with citations. 
  • Of course it was, since I had copied and pasted from a brief I had filed in a case.
  • She read the turgid prose in my post, looked up the cases I cited, decided my analysis was correct, and gave that work product to the judge in an order to sign.

So much for short, bullet pointed blog posts.  If I want to write a law review article and put in on my blog, complete with exhaustive legal citations, in order to share some creative legal thinking with lawyers, judges and judicial clerks out there, by golly I’ll do it.

Representing individuals and families in cases of personal injury and wrongful death in Georgia, we deal with complex rules that the legislature tried to make more difficult in tort reform legislation in 2005.  However, in that hastily assembled legislation, the "law of unintended consequences" was at work.

When the Georgia legislature passed that omnibus tort reform bill almost four years ago, one of the provisions was to require juries to apportion fault between all parties and non-parties — even if they cannot be held liable — at whom the defendant points an accusing finger.

In Indiana last week, a jury following instructions under an apparently similar law awarded $48 million to a man rendered paraplegic in a steel mill accident, and refused to assign any percentage of fault to several non-parties whom the defendant corporation had tried to blame.

Anthony Arciniega, 42, was rendered paraplegic on November 20, 2004, when the refractory suddenly broke loose from the ladder, causing him to lose his grip and fall 17 feet. The jury found Minteq International, Inc. negligent for overspraying its refractory onto a stationary ladder in a Burns Harbor steel mill. Despite the injury, however, Mr. Arciniega returned to work at the steel mill in a wheelchair within six months. The jury also decided that Mr. Arciniega was zero percent at fault for the accident.  In addition to blaming the injured worker, Minteq’s lawyers tried to lay blame on other contractors in the steel mill and on International Steel Group. The jury flatly rejected both claims.

The apportionment of fault statute that the General Assembly of Georgia  passed in 2005 is O.C.G.A. § 51-12-33, which reads as follows:

(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.

In other states that similarly require allocation of fault between defendants, courts have held that the jury may be required to allocate percentages of fault between an employee driver and his employer against whom separate claims similar to negligent training, entrustment, hiring and supervision are made. 

When the Georgia General Assembly passed Senate Bill 3 — the "tort reform" conglomeration — in February 2005, most of the legislators hadn’t even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement.  I heard one prominent Republican legislator privately describe it has having been "written with a crayon."  Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate.  Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn’t understand what was in the bill," etc. 

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970’s, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar’s proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

In the spasm of tort reform (SB 3) that passed with scant discussion of details, Georgia has replaced the ancient rule of joint and several liability with a new rule of proportional liability. Applying to cases arising after Gov. Perdue signed it on 2/16/05, the new law (text below) provides that a jury is required to apportion fault not only among parties but also among non-parties, known and unknown, as to which a defendant gives notice. We anticipate many complications in litigation, all to the benefit of defendants and insurance companies and probably none benefiting innocent injury victims. Combined with the Daubert rule on expert testimony and offers of judgment, this represents a radical change in the nuts and bolts of tort law practice in Georgia.
In future posts we will explore some of the issues implicit in the new proportional liability rule, and some of the unintended (?) consequences. See the text below.