Tort Reform in Georgia

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Baseball has been called the great American pastime. We all love an occasional trip to Turner Field to watch the Braves, and nothing can compare with family outings to minor league baseball games in smaller cities. I have nothing but pleasant memories of the spring and summer afternoons and evenings rooting for my son in years of Little League baseball.

Against this cultural background, the news story of a New Jersey lawsuit has rubbed a lot of people the wrong way. According to an Associated Press report, Elizabeth Lloyd, a woman in Manchester Township, NJ, has sued an 11-year-old…

In the past 10 days this plaintiffs’ trial lawyer, in the capacity of State Bar of Georgia president, has co-presided over a joint meeting of the State Bar Executive Committee and the Georgia Supreme Court, had a joint press conference with the Attorney General of Georgia and spoke at a lunch meeting that included general counsels of some of Georgia’s leading corporations. In 75 days, I will complete my term as State Bar president and get back to practicing law full-time.

I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a…

As president of the State Bar of Georgia, I have occasion to work on a number of issues and controversies beyond the scope of my own personal injury, wrongful death and commercial trucking accident trial practice.  The following is excerpted from an article by Kathleen Joyner in the Fulton County Daily Report on September 23, 2011.

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Bar committee OKs rule change
Public defenders in same circuit would be allowed to represent co-defendants under proposed amendment

The State Bar of Georgia’s Disciplinary Rules and Procedures Committee on Wednesday unanimously approved a rule change that would allow public defenders in the…

The Georgia Supreme Court issued a landmark decision today, in FLORES et al. v. EXPREZIT! STORES, holding that a convenience store that sold a 12 pack of beer to a visibly intoxicated customer could be accountable for the injuries and deaths that resulted.

The Georgia dram shop statute, OCGA § 51-1-40, provides:

(a) The General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person,

…

I applaud the decision of the Republicans newly in control of the United States House of Representatives to read the entire United States Constitution on the first day of the new Congress. Everyone in government should keep the Constitution firmly in mind.

The commitment of  constitutional conservatives’  to our country’s founding principles is widely known. That of course includes the Bill of Rights that was ratified along with the original Constitution, as well as other amendments adopted since that time.

Probably everyone is familiar with some of the key concepts in the Bill of rights, including:

  • Free exercise of religion (First Amendment)
  • No establishment of religion  (First Amendment)
  • Freedom of speech (First Amendment)
  • Freedom of press (First Amendment)
  • Right to peaceably assemble and petition government for redress of grievances (First Amendment)
  • Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"
  • Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"
  • Right against self-incrimination in criminal case (Fifth Amendment)
  • Due process of law (Fifth Amendment)
  • No double jeopardy (Fifth Amendment)
  • Right to face accuser, impartial jury and assistance of counsel in criminal cases (Sixth Amendment)
  • No cruel or unusual punishment, excessive bail or excessive fines (Eighth Amendment)

Equally sacrosanct in our Constitution since 1789 is the Seventh Amendment, which provides:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 The right to a trial by jury for civil suits dates back almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases.

Our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, "In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Other founders were equally adamant about the critical importance of access to civil justice. Thomas Jefferson called civil jury trials, "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

But today, that Seventh Amendment right may well be the most ignored and endangered of those enumerated in the Bill of Rights. After 25 years of propaganda  from corporations that seek to avoid accountability for harms caused to ordinary people has threatened to shred the constitutional right to jury trial through a variety of procedural and substantive roadblocks, all at the expense of ordinary American citizens’ Seventh Amendment rights.

I trust that true Constitutional conservatives in Congress will be as enthusiastic about upholding the Seventh Amendment right to jury trial in civil cases as they are about other Constitutional rights.

Five years after passage of legislation to limit rights of people who have been injured, the Georgia Supreme Court on March 22 unanimously held unconstitutional the $350,000 arbitrary cap on noneconomic damages in medical negligence cases. The "one size fits all" limitation on damages was found to violate the right to jury trial under the Georgia constitution.

Georgia’s constitution guarantees the right to a jury trial only with respect to cases as to which there existed a right to jury trial at common law or by statute at the time of the adoption of the Georgia Constitution in 1798. The Court traced the right to jury trial in medical malpractice cases all the way back to 14th century England and developed as part of English common law. That common law of England as it existed in 1776 was adopted as part of Georgia law prior to adoption of the first Georgia constitution in 1798. The existence of a cap on the damages that a jury can award violates the constitutional right to trial by jury. Click here for the full text of the decision in Atlanta Oculoplastic Surgery, PC v, Nestlehutt.

Because the unanimous ruling is based upon a broad constitutional principle, it would take a constitutional amendment to reinstate the cap. Only a few days remain to introduce such an amendment in the General Assembly, where it would be difficult to muster the required two-thirds majority in both the House and Senate.

No one expects the proponents of rationed justice to give up. But they will have a difficult path.

As an Atlanta trial attorney representing folks who are badly hurt in interstate commercial trucking accidents, and the survivors of those who are killed, I spend a lot of my time flying around the country to take depositions of trucking company executives and truck drivers, and briefing issues under federal motor carrier safety law. It’s a specialized practice area that a lot of folks don’t even realize exists.

But in the midst of the "pick and ax" work of litigation, sometimes it’s good to step back and look at the tort law system in historical perspective. Some folks who push hardest  to cut off the rights of folks who are hurt badly due to someone else’s carelessness seem to think that this whole area of law sprung up in the past generation.

But the roots go back 4,000 years.

The story of  tort law begins around 2100 B.C. in ancient Sumeria, the birthplace of Abraham, in the area of the Tigris-Euphrates delta in present day southern Iraq and Kuwait.   Much as later American tort law would emphasize business, insurance, motor vehicles and manufactured products, Sumerian laws focused on their context, including pragmatic rules for orderly compensation supplanting the instinct for uncontrolled revenge.  The Laws of Ur-Nammu (c. 2112–2085 B.C.)  mandated compensation in silver for putting out a man’s eye, and the Code of Lipit-Ishtar (c. 1934-1924 BC) set a negligence standard for property damage to a house.  The Sumerian city-state of Eshnunna developed a legal code (c. 1900 B.C.), that expanded upon these principles of compensation for damages done to another, addressing conflicts over sunken boats, gored oxen, biting dogs and  collapsing walls.

A couple of centuries later, upstream in the Tigris-Euphrates river valley,  Sumerian laws become the foundation of the Code of Hammurabi (c. 1700 BC).  Included were early versions of the principal features of tort liability – intentional tort, negligence, strict liability, indirect causation, fixed versus variable compensation, notice, knowledge, objective standards for conduct, monetary compensation for private harms, and perhaps even contributory negligence. 

When Moses led the Hebrews out of Egyptian slavery (circa 1440 B.C. –  1290 B.C.), the Mosaic laws included echoes of Sumeria (father Abraham’s hometown) and Hammurabi.  The Torah is filled with what we think of as ‘tort’ rules, indicating the depth of the roots of tort law in the Judeo-Christian tradition.  Precursors of tort law in the Pentateuch include the spreading fire, the straying livestock, the uncovered pit, the bull goring another bull (property damage), the bull goring humans (personal injury), the injunction to maintain a railing around one’s roof, compensation for  accidental injury of one man by another swinging an ax, and that one man quarreling with and injuring another man must pay the wages of the injured man until he recovers.

A thousand years after Hammurabi, the legal system of ancient Greece began to emerge. The emphasis was on  fairness and integrity of judges more than the specifics of rules and doctrine, as judges were chosen by the parties much as private mediators and arbitrator are chosen today.  However, running through is a growing preference for resolving disputes through just compensation rather than the bloody retribution and feuds of old. Principles of corrective justice emerged. 

Plato in The Laws wrote of "little repeated torts between neighbors" for which there was strict liability to others for either personal harm or invasion of property, and awards of a multiple of pecuniary damages for “churlish” conduct.  Aristotle in Nichomachean Ethics taught the rectification of marginal inequality created by involuntary transactions in which either an intentional act or an unintentional “mistake” – equivalent to concept of negligence in modern tort law – causes foreseeable injury.  The amount of inequality to be rectified was the the community’s valuation the physical injury due to the defendant’s wrongful act.  Customary Greek law was first codified by Dracon, circa 622 B.C., with penalties so harsh as to give us the word draconian and as to require reform within a generation. By 594 B.C., Salon was given a year to reform the Athenian constitution, legal code and law courts. Under the Code of Salon, juries of as many as 500 members determined both fault and penalties, a spectacle against which those who distrust modern juries would surely recoil.

Early Roman law was simple and pragmatic, arising from an agrarian culture thrust into a role of economic and military dominance.  The disparate sources of customary laws were codified initially on ten wooden panels around 889 B.C. by a panel of ten patrician jurists (Decemvirs), into the “Ten Tables,” later expanded by 450 B.C. to the “Twelve Tables.” Private wrongs were called "delicts." The penalty for intentional homicide was blood vengeance at the election of the victim’s family, while for an unintentional homicide payment of a prescribed number of cattle or a ram (scapegoat) for ritual sacrifice by the victim’s family.  For accidental personal injury there was often an election between retaliation in kind or a specified payment. Delicts addressing various categories of property damage required two or three times the amount of actual pecuniary loss.

The Twelve Tables were replaced by the Lex Aquila, enacted by popular plebiscite circa 286 B.C.  While preserving the general rule of strict liability for one’s actions, the Lex Aquila introduced elements of fault and negligence. To encourage truthfulness, willful denial of a meritorious claim could result in doubling of the damages awarded.  The Lex Cornelia ( c. 67 B.C.) adjusted monetary remedies upward to account for four centuries of inflation since adoption of the Twelve Tables.

Throughout Rome’s thousand year dominance, its laws were continually reformed, refined, and influenced by legal scholars, culminating in the Justinian Code. Except for the limitations inherent in a class-conscious, patriarchal society heavily dependent on a slave economy, Roman law provided the foundation for civil remedies for personal injury, including (1) money damages as the dominant remedy in resolving civil disputes; (2) the identification of instances in which strict liability for the consequences of one’s actions might not apply, such as in the instance of action not voluntarily taken; (3)  transparency in judicial decision making as Praetors were required pronounce the law they would apply; and (4) judicial discretion to determine when strict application of legal rules, or the absence of rules and remedies, would produce a manifestly unjust outcome.

Over thousands of years, these early foundations of tort law led to the development of English common law and our American tort law system.  This body of law has been in the process of reforming to meet the changing needs and conditions of western civilization for 5,000 years.

Sometimes the pendulum swings too far in one direction or another, and when that happens, lawmakers and judges tug it back toward the middle of the path. Fortunately, we have some legislators in both parties who understand the issues in enough depth to make wise choices rather than being consumed in the urgency of political sausage making while struggling with the immediacy of budget problems and the cacophony of interest group demands. Some of  the folks who beat the drums loudest for "tort reform" go too far, sometimes out of a desire to generate political campaign contributions from particular interests. But some ideas in the "tort reform" area can have merit if applied fairly and in moderation.

Over time, despite the excesses on the margins, the path of development of personal injury law tends to be consistent with Georgia’s state motto: "Wisdom, Justice, Moderation."