Apportioning Fault to All Liable Parties in Premise Liability Cases

In Couch v. Red Roof Inns, No. 1:10-cv-00045 (N.D. Ga.) the plaintiff was violently attacked by an unknown assailant while staying at defendant’s hotel. Plaintiff sued the hotel for failing to keep its premises safe. After plaintiff filed a motion in limine in the trial court to exclude the appearance of a non-party criminal assailant on the verdict form, the Northern District of Georgia certified the question of whether a jury can apportion fault to a non-party or third-party criminal assailant to the Supreme Court of Georgia. See Couch v. Red Roof Inns, Inc., No. S12Q0625 (Ga. July 9, 2012). On July 9, 2012, the Supreme Court answered that “the jury is allowed to apportion damages among the property owner and the criminal assailant.” (Slip Op. at 2).

Specifically, Justice Melton, writing for the majority, opined that “[a]s a party at fault, such an assailant must be included with others who may be at fault, e.g. the property owner in a premises liability action, for purposes of apportioning damages among all wrongdoing parties.” (Id. at 2). Justice Melton further reasoned that the meaning of Georgia’s apportionment statute, O.C.G.A. § 51-12-33, is clear when it states that a jury should “apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” See O.C.G.A. § 51-12-33(b) (Id. at 5). Because “fault” includes “conduct done wrongly or negligently,” i.e. intentionally or negligently, an assailant who willfully attacked a hotel guest has responsibility for that wrongdoing in damages. (Id. at 6-8).

Plaintiff’s offered six policy-based reasons why non-parties should not have fault assigned to them in these instances, but the Court rejected all six.

Plaintiff first argued that requiring apportionment in this manner nullifies a property owner’s duty to keep its premises safe. The Court answered that a duty remains even in the case of apportionment.

Plaintiff next argued that allowing apportionment to non-parties permits property owners to avoid the consequences of their actions or inactions. The Court responded that property owners remain responsible and will have to pay damages in proportion to their level of responsibility.

Third, Plaintiff argued that the negligence of a property owner is derivative of a criminal assailant’s conduct, so a property owner must be liable for that third parties’ wrongdoing. The Court concluded that Plaintiff’s likening of a landowner to a principal and a criminal assailant to an agent was a misplaced analogy.

Fourth, Plaintiff argued that apportionment would provide a disincentive for a property owner to keep his premises safe. The Court disagreed stating that a property owner must still keep his property safe or else be liable in damages commensurate with his liability.

Fifth, Plaintiff argued that the purported injury suffered is indivisible and cannot be apportioned. The Court held that while the injury may be singular, the damages flowing therefrom may be divided.

Finally, Plaintiff argued that defendant had no evidence to support apportionment. The Court determined that the level of evidentiary support was a question of fact to be determined by the jury at a later time. (Id. at 15-16).

The two-justice dissent disagreed with the majority’s definition of the word “fault.” They opined that intentional torts are not included in the comparative analysis of damage in tort, meaning that an intentional tortfeasor (like the criminal assailant) could have not had any fault apportioned to him. According to the dissent, the majority’s definition of fault preempted Georgia’s common law and violated statutory construction principles.

This decision further clarifies Georgia’s apportionment law, piggy-backing on the Court’s other recent decision of McReynolds v. Krebs, No. S11G0638, 2012 WL 1034449 (Ga. Mar. 23, 2012) where the high court held that apportionment is available whenever there are multiple liable defendants irrespective of plaintiff’s conduct.