Torts

• Publication year: 2021

Torts

Pamela A. Wilkins
Mercer University School of Law, wilkins_pa@law.mercer.edu

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Torts

Pamela A. Wilkins^*

The Georgia Supreme Court's torts decisions of the June 1, 2020, through May 31, 2021, survey period ran the gamut.¹ Dog bite liability? Check. Proximate cause? Check. Negligent misrepresentation by a sperm bank? Alas, check. And apportionment of fault? Check, check, check.

Two themes emerge from the cases of the past term. First, in the apportionment setting, one sees the court's commitment to textualism and its readiness to interpret Georgia's apportionment statutes as abrogating longstanding common-law doctrines. Second—and, not surprisingly, this is most apparent in the court's business torts jurisprudence—one sees a deference to business interests: this is a business-friendly court. Of course, many cases fall outside either of these themes.

But enough summary. Let's dive in.

I. Apportionment Cases

In its 2020-2021 term, the Georgia Supreme Court continued to wrestle with questions regarding apportionment of damages. In its three major apportionment cases, the court also proved willing to interpret Georgia's apportionment statutes broadly and to find the statute abrogates many well-established common-law doctrines recognized in Georgia's decisional law.

A. Apportionment in Strict Products Liability Cases: Johns v. Suzuki Motor of America, Inc.

In the first of the three apportionment cases, the Georgia Supreme Court held in Johns v. Suzuki Motor of America, Inc,² that the plain

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language of Official Code of Georgia Annotated section 51-12-33(a)³ requires apportionment of damages in strict products liability cases.⁴ In other words, principles of comparative fault apply to products liability actions: under O.C.G.A. § 51-12-33, juries must apportion fault between defendants whose products are defective and plaintiffs whose fault contributed to their injuries.⁵

In Johns, the plaintiff suffered serious injuries when the front brake on his Suzuki motorcycle suddenly failed.⁶ He sued the manufacturer and its American distributor⁷ alleging both a design defect and negligence.⁸ Specifically, he alleged that a defect in the front master brake cylinder resulted in a misdirected flow of brake fluid that ultimately caused the motorcycle's sudden brake failure. However, the plaintiff also admitted that he had never changed the brake fluid in the motorcycle, despite his having owned it for eight years and despite instructions in the owner's manual to replace the brake fluid every two years.⁹

The jury agreed the brakes were defective but also found the plaintiff 49% at fault. Accordingly, the trial court reduced his recovery. The plaintiff appealed on the ground that because his claim was based on strict products liability, damages should not have been reduced based on apportionment of fault under O.C.G.A. § 51-12-33. The court of appeals affirmed the trial court's ruling on apportionment, and the plaintiff appealed.¹⁰

In affirming the decision of the court of appeals, the Georgia Supreme Court relied on a plain meaning interpretation of Georgia's apportionment statute.¹¹ O.C.G.A. § 51-12-33(a), which was enacted in 2005, provides that:

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

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percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.¹²

The core of the court's reasoning was simple. A products liability action is necessarily one for "injury to person," and the apportionment statute does not limit the kinds of actions to which it applies.¹³ Although the court had once referred to the statute as "codifying the doctrine of comparative negligence," nothing in the statute limits its application to classic negligence cases.¹⁴ Accordingly, the court concluded that a "strict products liability claim falls comfortably within the statute's textual ambit."¹⁵

In so ruling, the supreme court held that Georgia's broad apportionment statute supplants both prior state decisional law and a longstanding common law rule barring use of a plaintiff's negligence as a defense in a products liability action.¹⁶ Within Georgia, a long line of court of appeals and supreme court precedent—including some precedent post-dating an earlier iteration of Georgia's apportionment statute—held that strict products liability claims are not subject to apportionment based on a plaintiff's potential fault.¹⁷ However, the court disregarded these cases because: (i) they pre-dated the current apportionment statute;¹⁸ (ii) the current apportionment statute under which the cases were decided is materially different from Georgia's prior apportionment statute;¹⁹ and (iii) decisions post-dating either iteration of the apportionment statute generally had not considered the effect of the statute.²⁰

Similarly, although the Georgia Supreme Court acknowledged the longstanding common law rule that a plaintiff's negligence cannot be a defense in a products liability case,²¹ it held the statute abrogated the

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common law rule.²² The court also observed that products liability law initially developed when most jurisdictions still recognized the doctrine of contributory negligence, under which a plaintiff's negligence, however slight, would have been a total bar to recovery.²³ Barring products liability defendants from asserting a plaintiff's negligence makes far more sense in the contributory negligence setting than in the comparative negligence setting. And as the court pointed out, the drafters of the Third Restatement recognized that "a strong majority of jurisdictions apply the comparative responsibility doctrine to products liability actions."²⁴

The ruling in Johns was no surprise. The supreme court had already interpreted the apportionment statute broadly and in derogation of a common law rule by allowing for apportionment in cases involving intentional torts.²⁵ Litigants should continue to expect broad interpretations of O.C.G.A. § 51-12-33.

B. Apportionment and Notice of Non-Party Defendants in Respondeat Superior Actions: Atlanta Women's Specialists, LLC v. Trabue

In the second case construing O.C.G.A. § 51-12-33, the court in Atlanta Women's Specialists, LLC v. Trabue²⁶ held that Georgia's apportionment statute requires a defendant to file notice of non-party fault when the defendant "wants to reduce a potential damages award against him by having the jury apportion damages between him and his defendant employer based on an assessment of the fault of a nonparty co-employee."²⁷

This consolidated case involved medical malpractice.²⁸ The plaintiff sued Atlanta Women's Specialists (AWS) as well as a physician who was an AWS employee (the defendant physician). The plaintiff did not allege independent negligence by AWS but did allege negligence by the defendant physician and a non-party physician also employed by AWS. The plaintiff sought recovery against AWS on the basis of vicarious liability. At the close of evidence, defense counsel, who represented both

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AWS and the defendant physician, asked the trial court to apportion damages between the defendant physician and AWS based on the percentages of fault of the defendant physician and the non-party physician. The trial court refused, finding that the defendants had not provided advance notice, as required by o.C.G.A. § 51-12-33(d),²⁹ of their contention that the non-party physician was wholly or partially at fault. However, after the verdict, the trial court granted the defendants' motion for a new trial on the apportionment issue, accepting the defendants' contention that the trial court should have required the jury to assess the relative percentages of fault of the defendant physician and the non-party physician. The Georgia Court of Appeals reversed the trial court's ruling on apportionment, finding, inter alia, that the apportionment statute required the defendants to provide advance notice of non-party fault in vicarious liability cases.³⁰

The Georgia Supreme Court agreed with the court of appeals and relied closely on the text of the apportionment statute. It first noted that the statute distinguishes between liability and fault and that a non-party can be at fault but cannot be liable.³¹ It next determined that O.C.G.A. § 51-12-33(b) did not apply.³² That section, which requires fault-based apportionment among liable parties, did not apply because it does not concern non-parties like the non-party physician.³³ Instead, subsection (d), which concerns allocation of non-party fault, would apply.³⁴ Because the defendant physician wished to have the jury apportion fault between himself and the non-party physician, subsection (d)'s notice provisions would apply before the jury would be permitted to apportion fault.³⁵ The defendant physician had not provided notice that the non-party physician was at fault, so he was not entitled to have the jury apportion fault between himself and the non-party physician (liability for which ultimately would pass on to AWS).³⁶

In dissent, Justice Bethel agreed that, absent notice, the jury could not apportion fault between the defendant physician and the non-party

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physician.³⁷ However, the dissent noted that AWS was a named party and that the non-party physician's fault was imputed to AWS under the doctrine of respondeat superior.³⁸ Differently put, Justice Bethel determined that AWS was itself at fault through the fault of the non-party physician and that, therefore, the jury could apportion fault between AWS and the defendant physician.³⁹ Finally, Justice Bethel determined there was no statutory prohibition on apportioning fault between AWS and the defendant...