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Posted by Susan J. Levy and Christina Cribbs
Apportionment is a hot topic in Georgia these days. Controversial issues include whether O.C.G.A. § 51-12-33 (Georgia’s apportionment statute) is constitutional, whether damages can be apportioned when there is only one defendant, and whether apportionment should apply in premises liability actions against landowners.

On Tuesday, June 5, 2012, the Georgia Supreme Court heard oral arguments in GFI Management Services v. Medina, No. S12A1228 (DeKalb County State Court). Medina is a premises liability case where plaintiff was shot in the leg at an apartment complex managed by Defendant. Defendant sought apportionment of damages between itself and the unidentified shooter. Plaintiff objected to apportionment of damages on the grounds that it was not appropriate in a premises liability case where the landowner may be held responsible for the criminal acts of a third party, and that the apportionment statute was unconstitutional. In an Order dated January 11, 2012, DeKalb County State Court Judge Alvin T. Wong agreed and declared Georgia’s apportionment statute unconstitutionally vague. Defendant appealed Judge Wong’s ruling.

In arguments before the Georgia Supreme Court, Defendant’s attorney argued that to uphold Judge Wong’s decision finding the apportionment statute unconstitutional, the Court would have to overturn its recent March 2012 decision in McReynolds v. Krebs. Plaintiff’s attorney countered that apportionment of damages in a premises case would render meaningless Georgia statutes which impose upon an owner or occupier of land the duty to exercise ordinary care to keep its premises safe from third party criminal activity. O.C.G.A. § 51-3-1. However, Justice Nahmias explained that nothing in the apportionment statute affects the duty of a landowner; apportionment merely affects the amount of damages for which it may be held liable to plaintiff.

In the unlikely event that the Georgia Supreme Court agrees with Judge Wong, we can sound the death knell for apportionment. Finding the statute unconstitutional would signal the end of apportionment, despite the fact that the legislature was resolute in its desire to create a mechanism for allowing damages to be apportioned among all responsible persons. The defense bar will hold its collective breath until the Supreme Court issues its decision in Medina.