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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Appeals which holds the pattern jury instruction on comparative negligence is incompatible with O.C.G.A. § 15-12-33 and no longer valid.

Clark v. Rush, Case No. A11A1418 (Ga. Ct. App., Nov. 1, 2011), involved a motor vehicle accident in which Clark pulled out in front of Rush, and Rush sustained injuries. Clark argued Rush was partly at fault because of excessive speed. The trial judge gave the pattern jury instruction on comparative negligence. This charge instructs the jury that if it finds the plaintiff was at fault, but less at fault than the defendant, the jury is to reduce its award “in proportion to” the plaintiff’s negligence. The jury was not given a special verdict form allowing it to specify the percentage of fault attributable to the plaintiff. Clark’s attorney timely objected to the charge and the verdict form. The jury awarded Rush $20,000, and Clark appealed.

The Court of Appeals agreed that the pattern jury instruction is now erroneous after passage of the Tort Reform Act of 2005. O.C.G.A. § 15-12-33(a) now requires the jury to assign a specific percentage of fault to the plaintiff, and implicitly requires a special verdict form showing the percentage, so that the judge can reduce the award accordingly. The Court reversed and remanded for a new trial.