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APPORTIONMENT OF DAMAGES BETWEEN PROPERTY OWNERS AND CRIMINAL ASSAILANTS

Posted by Christina Cribbs
This week, the Georgia Supreme Court handed down another landmark decision on apportionment. Couch v. Red Roof Inns, Inc., 2012 Ga. LEXIS 673 (July 9, 2012). The Plaintiff in Couch was assaulted at a hotel and later sued the hotel owner for failing to keep the premises safe. The Court took up the Couch case on two certified questions from the United States District Court for the Northern District of Georgia: (1) whether in a premises liability action, a jury may apportion damages between a landowner that negligently failed to prevent a criminal attack and the criminal assailant, and (2) in such a case, whether jury instructions or a special verdict form that requires apportionment of damages between the landowner and the criminal assailant violate plaintiff’s constitutional right to trial by jury, due process, or equal protection.

In a 5-2 decision, the Supreme Court held that damages may be apportioned between a landowner and a criminal assailant in a premises liability case. The Court quickly dismissed all Plaintiff’s constitutional claims, concluding that instructing the jury to consider the fault of the criminal assailant does not violate the plaintiff’s constitutional rights.

The Court’s ruling effectively means that even when the jury finds that a landowner was negligent in failing to prevent a criminal attack, the jury may still consider the criminal assailant’s fault and apportion damages accordingly. The Court noted that the jury must consider the fault of “all wrongdoing parties.” Couch, 2012 Ga. LEXIS 673 at *2 (emphasis added). This ruling is very favorable to the defense bar, because it allows the jury to consider not only the fault of the landowner for failing to prevent the attack, but also the assailant’s fault in causing plaintiff’s damages. Rather than being held fully responsible for plaintiff’s damages, the landowner’s responsibility may be reduced by the proportion of fault assigned to the criminal assailant. The Couch decision is sure to cause an uproar from Plaintiff’s attorneys far and wide.