Articles Posted in APPORTIONMENT OF DAMAGES

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Posted by Christina Cribbs
The topic of apportionment is no stranger to our blog; we have written about the subject on several occasions. The Court of Appeals’ July, 2014 decision on the issue of apportionment, Zaldivar v. Prickett, flatly denies defendants the opportunity to ask the jury to apportion damages to a plaintiff’s employer when the employer allegedly negligently entrusted a company vehicle to plaintiff. 2014 Ga. App. Lexis 552, No. A14A0113, July 16, 2014.
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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.
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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.
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Posted by Christina Cribbs

McReynolds v. Krebs, 2012 GA. LEXIS 337 (March 23, 2012) arises out of a motor vehicle accident where Plaintiff Krebs was a passenger in the vehicle struck by Defendant McReynolds. Plaintiff filed suit against McReynolds and General Motors (“GM”), the manufacturer of the car she was riding in at the time of the accident. Prior to trial, Plaintiff settled with GM for an undisclosed amount. At trial, the jury awarded Plaintiff a $1.2 million judgment against Defendant McReynolds.
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Posted by Christina Cribbs
The Supreme Court of Georgia issued a long-awaited opinion in McReynolds v. Krebs on March 23, 2012. Both the plaintiffs’ bar and defense lawyers were anxious to learn how the Supreme Court would interpret Georgia’s Apportionment statute (1). While Plaintiff Krebs prevailed in this case, it is likely that the future implications of the Krebs decision will be more favorable to defendants than to plaintiffs.
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Posted by H. Lee Pruett

Leaving aside, for the moment, the issue of whether the Georgia apportionment statute allows the jury to assign fault to a criminal assailant in premises liability cases alleging negligent security (see “Appellate courts to consider question of premises liability apportionment,” Daily Report, November 11, 2011), we need to point out a recent decision by the Georgia Court of Appeals which holds the pattern jury instruction on comparative negligence is incompatible with O.C.G.A. § 15-12-33 and no longer valid.
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Posted by H. Lee Pruett

In Cavalier Convenience, Inc. v. Sarvis, Case No. A10A0538 (Ga. Ct. App., July 9, 2010), the Georgia Court of Appeals looked to legislative intent to render a no-nonsense reading of O.C.G.A. § 51-12-33, which, as amended in 2005, ostensibly eliminated joint and several liability among multiple defendants. See [previous blogs on this statute]. The issue in Cavalier was whether the jury was obligated to apportion liability among the defendants when the plaintiff was without fault. The case arose out of vehicle accident in which Defendant Jeremi Bath collided with the plaintiff. In the subsequent lawsuit, the plaintiff also named as defendants two stores which allegedly sold alcohol to Bath prior to the accident. The trial court granted the plaintiff’s motion to preclude application of the apportionment statute because there was no allegation that the plaintiff was to any degree at fault.

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Posted by Susan J. Levy

A debate is raging among Georgia’s trial judges, the defense bar, and the plaintiff’s bar on the “correct” interpretation of the recently enacted statutes pertaining to joint and several liability. In DeKalb County alone, judges are split on the issue. On January 22, 2009, in a case being defended by this firm, Judge Janis Gordon gave the defense the opportunity to apportion damages to a non-party when there was only one named defendant and the plaintiff passenger was not responsible for his injuries. Taylor v. DeKalb County, Civ. Action No: 06A50694-7, State Court of DeKalb County (January 22, 2009). See also Georgia Insurance Defense Lawyer blog post dated January 26, 2009, DeKalb County Judge Upholds Constitutionality of Apportionment Statute: O.C.G.A. § 51-12-33.
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Posted by H. Lee Pruett

Since our January 26, 2009 post discussing a case this firm is defending in the State Court of DeKalb County and Judge Janis Gordon’s Order which denied the Plaintiff’s Motion to Strike Defendant’s Notice of Fault of Non-Party pursuant to O.C.G.A. § 51-12-33, at least two other Georgia trial courts have issued rulings somewhat at odds with Judge Gordon’s Order. To date, no appellate court has rendered a decision on any of the numerous issues being raised concerning the meaning and scope of this statute. The two trial court orders discussed below only emphasize the confusion litigants face in attempting to apply the statute to any given case.
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Posted by Susan J. Levy and H. Lee Pruett

In 2005, the Georgia Legislature passed a number of tort reform measures designed, at least in part, to benefit defendants in civil suits. The Tort Reform Act included an amendment to O.C.G.A. § 51-12-33 which specifically abrogated joint and several liability and mandated that juries now consider the fault of nonparties in assessing the percentages of fault. In a recent case handled by our firm, we used the new statute and timely filed a Notice of Fault of Nonparty identifying the driver of Plaintiff’s vehicle as the at-fault nonparty. In response, Plaintiff filed a Motion to Strike, arguing (1) that O.C.G.A. § 51-12-33 is unconstitutional and (2) that there can be no apportionment of fault under O.C.G.A. § 51-12-33 unless the plaintiff is to some degree responsible for his damages.
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