The jury ultimately found for the plaintiff against the other driver and awarded her $1,246,000.42. The liable driver appealed, alleging that the trial court erred in construing the Georgia apportionment statute (O.C.G.A. § 51-12-33) to bar her cross-claims against GM for contribution and setoff. On appeal, the Court of Appeals held that the trial court correctly construed O.C.G.A. § 51-12-33.
Many states, finding that the purpose of the strict liability doctrine is to protect otherwise defenseless victims from defective products, hold that principles of comparative negligence do not apply to strict liability actions. Georgia is not one of those states. In Johns v. Suzuki Motor of Am., S19G1478, 2020 Ga. LEXIS 760, the Supreme Court of Georgia recently held that Georgia’s comparative fault statute, OCGA § 51-12-33, applies to strict products liability claims brought pursuant to Georgia’s product liability statute, OCGA § 51-1-11.As stated in Johns, Adrian Johns (Johns) was injured in August of 2013 when the front brake on his Suzuki motorcycle failed. He sued Suzuki Motor Corporation and Suzuki Motor of America, Inc. (collectively, Suzuki), asserting, among other claims, a claim of strict products liability.
The jury, however, apportioned 49 percent of the fault for the crash to the plaintiff for his failure to properly maintain the motorcycle. The trial court found that O.C.G.A. § 51-12-33 applied and apportioned fault to reduce the $12.5 million jury award to $6,375,000. The plaintiff appealed and alleged that the trial court erred in reducing his damages because Section 51-12-33 did not apply to strict product liability claims.
In Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 862 S.E.2d 295 (Ga. 2021), the Georgia Supreme Court limited the apportionment of fault in tort cases. As reported in SGR’s Appellate Blog, the Court ruled that O.C.G.A. § 51-12-33(b) allowed the apportionment of fault among persons who are liable (parties and non-parties) only in a multi-defendant case. In other words, where a case is brought against only a single defendant, no fault can be apportioned to responsible non-parties and the defendant must pay 100 percent of the damages, less any percentage of fault attributed to the plaintiff.
ocus of the opinion—is merely dicta because the Georgia Supreme Court still affirmed the underlying decision to apportion 0% fault to the assailant, 5% fault to the victim, and 95% fault to the property owner—CVS—based upon the phrasing of the apportionment jury instruction used at trial. GEORGIA’S APPORTIONMENT STATUTEGeorgia’s legislature enacted the Apportionment Statute as part of the Tort Reform Act of 2005 and more recently passed a significant amendment to the Statute in 2022to cure the impacts of a 2021 Georgia Supreme Court’s decision. The Carmichael appeal was decided under the pre-2022 version of the Statute. The Apportionment Statute governs the reduction of damages awarded by a jury based upon the proportion of fault attributed to those other than the defendant(s), including the plaintiff.Subsection (a) of the statute focuses on the proportion of fault attributed to plaintiffs. Subsections (b) and (c) concern the fault of defendants and non-party entities and individuals. O.C.G.A. § 51-12-33(a) provides:Where the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damagesotherwise awarded to the plaintiff in proportion to his or her percentage of fault.O.C.G.A. § 51-12-33(b) provides:The trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages in proportion to the percentage of fault attributable to the plaintiff, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. O.C.G.A. § 51-12-33(c) provides:The trier of fact, in assessing percentages of fault, considers the fault of all persons or entities contributing to the alleged injury, regardless of whether the person or entity was, or could have been, named as a party in the litigation.THE GEORGIA SUPREME COURT’SCARMICHAELDECISIONBackgroundThe plaintiff
Subsection (a) of the statute focuses on the proportion of fault attributed to plaintiffs. Subsection (b) concerns the fault of non-party entities and individuals.O.C.G.A. § 51-12-33 (a) provides:Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any,shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damagesotherwise awarded to the plaintiff in proportion to his or her percentage of fault.O.C.G.A. § 51-12-33 (b) provides:Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person
Id. at * 3. The Court of Appeals affirmed, holding that fault could not be apportioned to the employer under O.C.G.A. § 51-12-33(c) because it did not contribute to the plaintiff’s alleged injury or damages. Id. at * 6-7.
For all cases filed after May 13, 2022, Georgia has amended its apportionment of fault statute, O.C.G.A. § 51-12-33. The amendment affects subsection (b), which formerly stated that in actions brought against “more than one person for injury to person or property,” the amount of damages awarded, after taking a reduction for the plaintiff’s percentage of fault, shall be apportioned among the person or persons liable according the each person’s percentage of fault.
(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).
p does not violate the right to a trial by jury because the Georgia Supreme Court previously held that there is no right to jury determined punitive damages. As to the legislative remitter argument Defendants pointed to prior decisions wherein the Georgia Supreme Court determined that the legislature may lawfully limit punitive damages to further policy concerns. Finally, Defendants argued that the absence of an inflation index does not create an equal protection problem.The Court has not announced when it will issue an opinion on this case, but it is expected in 2023. The Supreme Court upheld the cap on two prior occasions, which in theory should mean they maintain the status quo. However, other recent decisions by the Supreme Court raise concerns about the likelihood of a favorable outcome.Expansion of Exposure for Employers for Vicarious LiabilityIn 2020 the Georgia Supreme Court issued a ruling in Quynn v. Hulsey, 310 Ga. 473 (2020) and held that the Georgia Apportionment Statute, O.C.G.A. § 51-12-33, mandates that a jury should consider the fault of an employer for “direct negligence” claims separate from any vicarious liability for the negligence of an employee. Under long-standing prior precedent, if a defendant employer admitted that its employee was in the course and scope of employment at the time of the accident and that it would be liable for the negligence of its employee (if any), a plaintiff’s claims for negligent entrustment, hiring, training, supervision, and retention were subject to summary judgment—absent viable punitive damages claim. In Quynn, the Court held that negligence of the employer for its own independent negligence (in hiring, retaining, supervising the employee) should be considered separately under Georgia’s apportionment statute. As a result, direct negligence claims are no longer subject to summary judgment when the employer admits vicarious liability. As a practical matter, this shift in employer protections under the likely means plaintiffs will be