Opinion: Just the Facts, Please: an Examination of the "judicial Hellhole" Narrative
| Publication year | 2023 |
| Pages | 0026 |
Jury verdicts are acts of governance by Georgia’s citizens from all counties and all walks of life. Their verdicts should motivate improvements in public and private safety measures and corporate responsibility instead of complaints about judges.
BY MADELEINE N. SIMMONS, ADAM MALONE AND JON POPE
GBJ: Feature
As a mandatory Bar, our members advocate varying views of the law. This opinion piece is an example and offers a counter perspective to the article on "phantom damages" and the collateral source rule offered in our June 2023 edition. As it was for the previous article, the statements, views and opinions expressed within this article are those of the authors and do not necessarily reflect those of the State Bar of Georgia, its Officers, Board of Governors, Sections, Committees, Editorial Board or staff
A powerful network of business interests that has long promoted the false idea that Georgia is a "judicial hellhole" and its "tort system" has imposed a financial burden on Georgians is continuing their efforts by lobbying for tort law changes.[1] The American Tort Reform Foundation (ATRF), based in Washington, D.C., publishes the notorious "Judicial Hellhole" list. Its members and supporters include representatives from the tobacco, insurance, chemical, auto and pharmaceutical industries.[2] The "Judicial Hellhole" list has been widely criticized as a gimmick designed to intimidate judges and pressure lawmakers to enact unnecessary laws with unintended consequences.[3] As one observer noted, the list "is not based on research into the actual conditions in the courts," and in fact "empirical research tends to debunk the industry complaints."[4] A prime example is ATRF's claim that "[n]uclear verdicts are bogging down business" in Georgia even though Georgia has been named the "Top State for Business" nine years in a row.[5]
Lawmakers, judges and the legal community should not rely on propaganda from organizations whose reason for existing and stated goal is to remake the tort system for their members' benefit. Methodology matters, as every trial lawyer and judge in the state knows.
ATRF's disclosed "methodology" is that the information is member-driven and that its members submit anecdotal information about cases.[6] Despite their apparent lack of peer review or application of journalistic standards, publications by the ATRF and similarly created organizations have unfortunately spread an inaccurate view of the law and courts.[7] This article endeavors to fact check some of the claims made by ATRF's most widely distributed publication and compare its characterization of Georgia's courts with the facts.
The Stories Behind the Verdicts
Most people believe that the use of nuclear weapons should be avoided. Playing on the visceral terror that the term evokes, ATRF made up the term "nuclear verdict" as part of its propaganda. ATRF and ILR have tried to create the illusion that a "nuclear" verdict is synonymous with an "unjust" verdict, but the term is nothing more than a label based on raw numbers. They define the term as any verdict of $10 million or more.[8] A verdict of$10 million dollars to a person with quadriplegia would be "nuclear," for example, even if the amount awarded was equal to or less than the person's medical expenses.
So, what are the stories behind these so-called "nuclear verdicts" in Georgia? Carmichael v. CVS is a case frequently cited by business lobbyists, and it also appears on a "judicial hellhole" list for its $43 million verdict.[9] In that case, despite numerous criminal encounters and employees
complaining to management about the dangerous criminal activity, CVS stopped providing security guards and, subsequently, a series of violent crimes occurred on the premises. A cashier was threatened with death and robbed at gunpoint; a customer was violently attacked and robbed in the parking lot; and another cashier was robbed at gunpoint—all within the two years prior to Carmichael's attack. Employees had asked CVS to provide a security guard, but CVS would not grant those requests.[10] Customers themselves cannot be expected to travel with an armed guard and will rarely know that a business has been the victim of armed robbery when they enter a premises. Yet when a jury found CVS largely responsible for foreseeable violent crime on the premises to Carmichael, ATRF labeled the verdict "nuclear."[11] ATRF did not complain about CVS' conduct, but rather the fact that CVS was held responsible, bemoaning that the business was "held liable for these extraordinary sums on the basis that [it] should have had more security."[12]
The Georgia General Assembly has imposed a duty on owners and occupiers of land to keep their premises safe for people who visit.[13] Plaintiffs have multiple hurdles to climb before they can recover on a premises liability claim. The duty imposed "depends, to a certain extent, on whether the one entering the property is an invitee, a licensee or a trespasser."[14] Only invitees are granted a duty of ordinary care.[15] For example, the Court of Appeals has found a guest at a private home who was injured while riding a zipline was a licensee, not an invitee, meaning the landowner owed no duty of reasonable care at all, but only a duty not to willfully or wantonly injure.[16]
In the context of premises liability actions involving third-party criminal conduct, "the proprietor is generally insulated from liability; an exception to this general rule arises, however, where the proprietor had sufficient reason to anticipate such criminal conduct."[17] To show the landowner or occupier had a duty of care, the plaintiff must also show that criminal activity was reasonably foreseeable.[18] For example, the Court of Appeals of Georgia has found a plaintiff could not recover for a murder in a convenience store parking lot, despite rampant crime in the area, where there was no evidence the defendant "knew or had grounds to know about problems in the parking lot."[19]
Once the plaintiff has established the landowner owed a duty of care, she still must go on to prove liability, which includes showing "whether the proprietor acted reasonably in the face of the particular foreseeable risk or whether the proprietor breached its duty to do so."[20]This showing requires the factfinder to "weigh the likelihood and severity of the foreseeable harm against the cost and feasibility of additional security measures in considering whether the duty owed was breached."[21]
Of course, plaintiffs must also prove the lack of adequate security measures caused injury. The Court of Appeals has found a plaintiff was unable to recover, for example, where he claimed needed security measures were a functional gate and a courtesy officer, but he could not show the shooter entered through a broken gate and could not show a competent security officer had the ability to prevent the altercation.[22] These examples are but a few of the many ways plaintiffs with legitimate claims are unfortunately barred from being made whole.
Another of Georgia's business-friendly laws that often fades into the background of premises liability cases, even though it is vitally important to the broader discussion, is Georgia's workers' compensation law. It bars an employee from suing her employer for failure to provide a safe workplace even if the employer has repeated, actual notice of physical violence to its employees, like CVS had in the Carmichael case.[23] Although many states, like Alabama, have exceptions to the workers' compensation bar for grossly negligent conduct,[24] Georgia does not. Thus, there is little financial incentive for a business owner to act reasonably to keep its premises safe unless customers can hold them responsible for a failure to do so.
ATRF also cites Holland v. Cypress Insurance Company as a problematic "nuclear" verdict.[25] In that case, the jury awarded $13 million for the value of the plaintiff's life, $2 million for his conscious pain and suffering, and $6 million in attorney's fees because of the defendant's bad faith.[26] The defendant commercial truck driver "concealed parts of his medical history, including a past brain aneurysm, lung disease (COPD), sleep apnea, chronic back pain, coughing fits, and blackouts" in addition to his status as a smoker, his use of a breathing machine in his truck, a prior hospitalization, and his use of opioids.[27]Omitting these facts, ATRF claimed simply that "[t]he driver suffered a sudden medical emergency while behind the wheel and was found unresponsive in the vehicle."[28] The Eleventh Circuit, however, held that there was "no basis to disturb the jury's implicit finding that Appellants failed to carry their burden of proof for the 'act of God' affirmative defense."[29]
In that same case, the evidence supported a finding that the driver took hydrocodone the day of the collision, and "taking a narcotic and driving would plainly satisfy the bad faith standard" as the Eleventh Circuit observed.[30] ATRF, however, bemoaned a finding of bad faith and award of attorney's fees on the ground of what it called "traces of opioids" in the driver's system.[31] The Eleventh Circuit affirmed the jury's verdict in a per curiam opinion.[32] Therefore, ATRF's position leans toward protecting businesses or companies on the hook for these damages over displaying the full set of facts.
ATRF's "Judicial Hellhole" paper also complained about a so-called nuclear verdict in the amount of $15 million for a "young man" who "injur[ed] his leg."[33]The "young man" was 15 years old, and the "injury" was a partial amputation of his leg and other injuries, which necessitated seven surgeries by the time of trial and would require expensive prosthetics.[34] Those prosthetics and...
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