History Uprooted: Georgia Applies Apportionment to Strict Liability Claims

• Publication year: 2020

History Uprooted: Georgia Applies Apportionment to Strict Liability Claims

Carey Sartain

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History Uprooted: Georgia Applies Apportionment to Strict Liability Claims^*

I. Introduction

Adrienne Johns had experience riding motorcycles for over 20 years when in 2013, total failure of the front brake on his 2006 Suzuki GSX-R1000 caused him to hit a curb, throwing him from his bike and knocking him unconscious. The accident resulted in Johns being hospitalized for over two months following spinal fusion surgery and surgery to repair his hand. Subsequent to the accident, he discovered that there had been a recall notice from Suzuki related to his bike model's front brake. At trial, Johns proved that a design defect in the front brake had ultimately caused the brake to fail, resulting in Johns' accident. The jury awarded Johns $10.5 million in compensatory damages.¹ Under common law principles of strict liability, Johns would receive the verdict in whole. However, the Georgia Supreme Court upheld the jury's apportionment of 49% of the fault to Johns himself for his failure to properly maintain the brake fluid.² This may seem at odds with common law principles of strict liability because it is.

Apportionment and contributory negligence in tort law have been evolving bodies of statutes and judicial law throughout legal history. However, one thing that has historically remained steadfast in the state of Georgia has been the common law principle that a plaintiff's comparative negligence is not a defense to a claim based upon strict liability.³ But now, as we have seen in the illustration above, that has changed for the state of Georgia and is up for debate in other jurisdictions. ⁴ This reassessment of the appropriateness of

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apportionment in strict liability cases in Georgia follows on the heels of numerous states reconsidering a similar long standing common law principle—the rule against apportionment among intentional and negligent tortfeasors.⁵ Following tort reform in Georgia that reshaped the apportionment statute, courts have been tasked with interpreting the changes with the backdrop of years of Georgia case law following common law principles. Other states, including Pennsylvania, have been facing similar tasks of statutory interpretation in relation to apportionment in strict liability and inevitably reaching varying results.

The topic examined in this Comment is where Georgia law now stands in regard to applying apportionment in strict liability cases compared to other jurisdictions and what this new direction may mean for practitioners and plaintiffs in the state. This Comment will consider the development of tort law in the areas of contributory negligence and strict liability from common law to present. Specifically, Part II will provide an historical overview of apportionment in tort law, looking at the history of contributory negligence, joint and several liability, and contribution. Part III will track the development and implementation of the body of law known as strict liability and the historical applicability of apportionment to strict liability claims. Part IV will then compare and contrast how various states have approached the applicability of apportionment in strict liability cases following various versions of tort reform. Part V will compare this change in approach to how some states have progressed to allowing apportionment to intentional tortfeasors. Finally, Part VI will address how the recent Georgia Supreme Court decision will affect plaintiffs and practitioners in their approach to cases involving strict liability claims in Georgia and argue why the common law principles should have been maintained.

II. The World of Apportionment: Contributory Negligence, Joint and Several Liability, and Contribution

A. The Transition from Contributory Negligence to Systems of Comparative Negligence

Originating in England in 1806, the common law doctrine of contributory negligence completely barred a plaintiff from recovering if

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his or her own negligence contributed to the injury.⁶ The doctrine is often referred to as the "all-or-nothing" rule for its hallmark of awarding a plaintiff damages or denying them any recovery whatsoever due to contributing to the injury via their own negligence.⁷ Although at first glance this rule may seem based in fairness by disallowing negligent plaintiffs from recovering from others for their own carelessness, the all-or-nothing approach often denies justice in practice. Under this rule a plaintiff who is severely injured, yet barely negligent, would be barred from recovering from a very negligent defendant. A good example is a jaywalker who tries to cross an intersection late at night and is hit by a driver who is speeding, has his headlights off, and runs a red light.⁸ The jay walker's negligence pales in comparison to the acts of the driver, yet the driver would be barred from recovery under the common law contributory negligence doctrine. Some jurisdictions attempted to mitigate the harshness of this rule by implementing exceptions such as the last clear chance doctrine, which finds a defendant liable where a plaintiff is also negligent if the defendant had the last clear chance to avoid the accident, hence the name.⁹

Although the doctrine of contributory negligence was initially popular, by the early 1900's the tide was turning for the doctrine that completely bars recovery for even negligibly negligent plaintiffs.¹⁰ The Federal Employers' Liability Act of 1908,¹¹ which allowed a plaintiff to recover from a negligent defendant despite his own negligence, was influential in this shift.¹² Through either judicial enactment or statute, forty-six states have now replaced contributory negligence with some version of the doctrine of comparative negligence.¹³

The states that have adopted comparative negligence have typically implemented one of two main types, pure or modified.¹⁴ Under pure comparative negligence, a plaintiff can recover the amount of his damages reduced by a percentage of his causal negligence, and every person that contributes to the damage is only liable for the percentage of

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negligence apportioned to him or her.¹⁵ It matters not whether the plaintiff contributed one percent or ninety-nine percent in a pure comparative negligence system. They may still recover. However, in a modified comparative negligence state, such as Georgia, a plaintiff may only recover if his percentage of contributed negligence is less than that contributed by the defendant, or numerically, less than 50% percent.¹⁶

B. Joint and Several Liability

The common law doctrine of joint and several liability developed in a way similar to that of contributory negligence.¹⁷ The doctrine originally allowed multiple tortfeasors who acted in concert to be subject to joint liability, meaning each tortfeasor could potentially be liable for the entire amount of damages.¹⁸ In the early twentieth century, joint and several liability expanded to include defendants who caused an indivisible injury to the plaintiff.¹⁹ The idea behind this doctrine was to allow a practical way to ensure that the plaintiff was able to recover for their damages from some source. In states where defendants can be joint and severally liable, it is left to the defendants to sort out their respective proportions of liability and payment between each other. For example, if Defendant A and Defendant B are held joint and severally liable and Defendant A pays the plaintiff damages of $100,000, Defendant A can then seek contribution, or in other words partial reimbursement, from Defendant B.

C. Contribution

Under common law, it was believed that injuries were indivisible and as such, fault could not be apportioned. As a result, contribution among joint tortfeasors was staunchly prohibited. A plaintiff would be more apt to seek to recover from a defendant with monetary resources, regardless of his degree of fault, because of the likelihood that the wealthier defendant would be able to pay the damages. This left one defendant carrying the burden of all involved with no ability to seek help from others who also contributed to the damages. As such, Defendant A from

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the example above, at common law, would not be able to seek contribution from Defendant B if there was a judgement against him, thus making Defendant A shoulder the $100,000 alone. This innate unfairness led to criticism of the rule against contribution and by the 1960s a majority of jurisdictions in the United States had enacted statutes to allow contribution among joint tortfeasors.²⁰

III. The Development of the Doctrine of Strict Liability

Strict liability holds a unique place in the world of apportionment. Under the doctrine of strict liability, certain conduct and activities are so inherently dangerous that a defendant will be liable regardless of fault. In other words, strict liability, in a nutshell, is liability without fault; the plaintiff need only prove that the tort occurred and that the defendant is responsible. As a result, this area of tort law is very limited. The three main categories of strict liability are: (1) the keeping of wild animals; (2) ultrahazardous activities; and (3) consumer product liability. The common denominator of these three categories is that each is dangerous in some way and requires a high level of responsibility by the defendant. As such, strict liability principles are distinct from those of negligence.²¹ In negligence, liability is imposed for the failure to exercise reasonable care, whereas in strict liability, liability may be imposed even when reasonable care is exercised.²²

A. Strict Liability for Animals

Strict liability is applicable to the keeping of wild animals for obvious reasons. one, there is no real need for people to keep such exotic animals like bobcats, lions, and tigers as pets.²³ Further, there is a clear high risk of injury resulting from the keeping of such...