I Am Not My Brother's Keeper: a Brief History of Georgia's Apportionment Statute and the Future of Tort Reform

• Publication year: 2023

I am not my Brother's Keeper: A Brief History of Georgia's Apportionment Statute and the Future of Tort Reform

Jordan S. Lipp

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I am not my Brother's Keeper: A Brief History of Georgia's Apportionment Statute and the Future of Tort Reform

Jordan S. Lipp^*

I. Introduction

Imagine approaching a stop sign in Hamilton, Georgia and illegally rolling through it. After you make your rolling stop and pull out into the road, a driver T-bones your car, and your gas tank erupts into flames. Can you recover anything for your injuries, and if so, from whom?

The answer could turn on the jurisdiction in which you live and, in Georgia, the number of people you name as parties to the lawsuit. Can you sue the car manufacturer, even though the driver probably sparked the fire? Can you recover damages, even though you could have avoided the accident by stopping at the stop sign? If you can recover, do you recover less because you are partially to blame?

As to the first question, you can sue whomever you please. However, states split on the second and third questions: your rolling stop might bar any recovery, and the number of people you sue might diminish or enhance the chances of your recovery.

Until 2022, Georgia did not allow a lone defendant to reduce damages by pointing to people who might be responsible but were not parties to the lawsuit. For example, assume a jury finds the driver 20% at fault, the manufacturer 40% at fault, and you 40% at fault. If the driver were the only named defendant to the lawsuit, the driver would be responsible for 60% of the damages—all the fault not attributable to

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you. Before 2022, then, Georgia tort law—with proper strategy on the plaintiff's part—was extremely pro-plaintiff.

This Comment will examine the history of multi-party fault and apportionment under Georgia law. To begin, Part II traces the history of Georgia's joint and several liability, which determines who must satisfy the judgment and in what percentage. Then, Parts III and IV examine tort reform and Georgia's apportionment statute to explain how an at-fault plaintiff can recover. Part V compares Georgia's 2005 apportionment law to similar statutes from other states. Part VI considers future tort reform legislation in Georgia.

II. Shift Away From Common Law Contributory Negligence

When both the person suing and the person being sued are at fault, the law must decide whether, and to what degree, the at-fault plaintiff can recover damages. Historically, an at-fault plaintiff recovered nothing. Now, most states allow at least some recovery when the plaintiff is responsible for their own injuries.

A. Initial Terminology

To aid the discussion below, some preliminary definitions are helpful. The terminology comes in three steps: negligence, apportionment, then liability.

Contributory negligence means that if a plaintiff's own conduct did not meet the standard of care—how a reasonably prudent person in the same or similar circumstances would have behaved—the law bars the plaintiff from recovering.¹ This doctrine dictates that if the plaintiff is even 1% at fault, they cannot recover anything.² Put another way, the plaintiff must be 100% blameless. From the T-bone hypothetical, you could not recover anything because you made a rolling stop into the intersection.

In contrast, pure comparative negligence means that a plaintiff recovers the percentage of their damages that were caused by the defendant.³ That is, a plaintiff who is 99% at fault can recover 1% of their damages.⁴ In your situation, you can recover at least some money so long as the driver or manufacturer is partially to blame.

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Striking a balance in the middle, modified comparative negligence means that a plaintiff recovers damages unless the plaintiff was responsible for less than (A) 51% of the blame or (B) 50% of the blame, depending on the jurisdiction.⁵ After your wreck, you can recover unless you are more to blame than the defendants.

Second, apportionment means dividing liability for an injury among tortfeasors and the plaintiff.⁶ In short, the factfinder fills in a number next to each tortfeasor's and the plaintiff's name on the verdict form that corresponds to that person's proportional blame. The numbers should add up to 100%.

Last, the liability regime dictates from whom a plaintiff can recover when multiple tortfeasors are apportioned blame. Joint and several liability, which Georgia common law followed, means each defendant is liable for the full amount of damages (but can seek contribution from the other defendants).⁷ Several liability means that each defendant is only liable for damages up to its proportional amount of fault—the fault apportioned to that defendant.⁸ The plaintiff must recover each defendant's individual share of harm from each individual defendant.⁹

B. Contributory Negligence as Common Law Rule

At common law, contributory negligence was the rule. From 1809, Butterfield v. Forrester¹⁰ is the seminal English case on contributory negligence. Forrester was repairing his house and placed a pole in the road. Later that day near dusk, Butterfield rode his horse down the road at breakneck speed and, not seeing the pole, crashed into it. Had Butterfield been careful, he would have seen the pole and avoided it.¹¹ The King's Bench affirmed a directed verdict and held that Forrester—as a matter of law—could not recover because he was to blame for his

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injuries: "One person being in fault will not dispense with another's using ordinary care for himself."¹²

In American law, Smith v. Smith¹³ is the leading contributory negligence case. Fourteen years after Butterfield, the defendant piled wood on the road at the bottom of a hill and left a stick protruding out of the pile. The plaintiff incorrectly hitched an overloaded wagon to his horse and traveled the road. When the wagon and horse struck the woodpile, the horse was injured.¹⁴ The Massachusetts Supreme Judicial Court initially noted that its sense of justice pointed toward holding the defendant liable: "[H]e who does an unlawful act, such as incumbering the highway, should be answerable for any direct damages which happen to any one who is thereby injured."¹⁵ However, the court followed Butterfield and held that someone who helps cause their own injury is barred from recovering in tort.¹⁶ The court held that the plaintiff could not recover because "he might have avoided the obstruction, if he had managed his horse with ordinary skill and care."¹⁷

Other American courts followed suit. For example, Vermont adopted contributory negligence in Washburn v. Tracy.¹⁸ As the plaintiff rode his horse along the road past the defendant on his wagon, the defendant "so carelessly and negligently managed his said wagon and horse . . . that the shaft of the said defendant's wagon was then and there thrust into the side of the plaintiffs said mare."¹⁹ The Vermont Supreme Court reversed a jury verdict for the plaintiff because the trial judge did not instruct the jury that the plaintiff could not recover if he was at fault.²⁰ Reflecting broad agreement in American law at that time, the court held that "where the injury arises from the plaintiff's own misconduct, or want of ordinary caution, notwithstanding the defendant's neglect, . . . the plaintiff cannot recover."²¹ Indeed, during the nineteenth century, states were so uniform in adopting contributory negligence that in 1854 the

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Supreme Court of Pennsylvania predicted that contributory negligence "is not likely to be changed in all time to come."²²

Georgia also initially followed a contributory negligence regime. In 1855's Branan v. May,²³ Mays mules drowned in a river that he was forced to cross after Branan obstructed the roadway. After checking a nearby bridge that also seemed unsafe, May crossed what he thought was only ankle-deep water. But the mules' heads got stuck below the surface, drowning them. May sued Branon for the mules' value.²⁴

The Supreme Court of Georgia allowed May to recover only because he had exercised ordinary care.²⁵ That is, May had zero fault. The court made a policy choice to be lenient to defendants: "[N]otwithstanding the defendant be in fault, it does not dispense with another's using ordinary care and caution for himself."²⁶ Branan's underlying policy choice encourages people to take care of themselves.²⁷ The court reasoned that the law is more efficient if people look after their own safety than try to predict how their conduct might harm others.²⁸

So, at least through the mid-1800s, most jurisdictions agreed that a plaintiff who was partially to blame for his own injuries recovered nothing.

C. Three-Way Split of Authority Among States Today

Today, states follow three approaches when a plaintiff is to blame for his injuries: contributory negligence, comparative negligence, and modified comparative negligence.

Only a few states still follow the contributory negligence common law rule. Maryland, Alabama, North Carolina, Virginia, and Washington D.C. preserve the contributory negligence doctrine.²⁹ All other states either follow comparative or modified comparative negligence.

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D. Georgia's Shift to Modified Comparative Negligence

Today, Georgia follows the modified comparative negligence rule by statute.³⁰ More specifically, Georgia applies the 50% rule.³¹

Just one year after the Branan decision, Macon & Western Railroad Co. v. Winn³² began to lay the groundwork for comparative negligence in Georgia. The deceptively simple opinion seemed to follow Branan but said in dicta that "[h]e who is most negligent, can never ask a Court for compensation; he who is least so, may or may not, according to the facts and circumstances of the case."³³ Indeed, modern cases recognize Winn as a turning point in Georgia's contributory negligence system.³⁴

Three years after Winn, in a short, four-page opinion, Flanders v. Meath³⁵ recast the Winn decision as the wholesale adoption of comparative...