Who Owes How Much? Developments in Apportionment and Joint and Several Liability Under O.c.g.a. § 51-12-33

• Publication year: 2012

Who Owes How Much? Developments in Apportionment and Joint and Several Liability Under O.C.G.A. § 51-12-33

Thomas A. Eaton

[Page 15]

Special Contribution

Who Owes How Much? Developments in Apportionment and Joint and Several Liability Under O.C.G.A. § 51-12-33

by Thomas A. Eaton^*

I. Introduction

For most of its history, Georgia followed the traditional common law rule of joint and several liability and the equally well-settled principle that negligence could not be compared with intent when apportioning liability. Both of those propositions were dramatically altered by the enactment of the 2005 amendments to the Official Code of Georgia Annotated (O.C.G.A.) section 51-12-33¹ as construed by the Georgia

[Page 16]

Supreme Court in two recent opinions. In McReynolds v. Krebs,² the court held that pursuant to O.C.G.A. § 51-12-33(b): (1) damages must be apportioned among persons who are liable according to percentages of fault of each person even if the plaintiff is not herself at fault; and (2) such apportioned damages are not subject to the rule of joint and several liability.³ In Couch v. Red Roof Inns, Inc.,⁴ the court held that under the same statute fault could be apportioned among negligent and intentional tortfeasors.⁵ The combination of these two rulings will have a considerable impact on tort litigation in Georgia. Defendants, particularly those in negligent security premises liability cases, will see their liability exposure significantly reduced. They will now be responsible only for the percentage of damages corresponding to their own percentage of fault.⁶ Innocent plaintiffs will now bear the burden of the "uncollectible share"⁷ of damages, thereby reducing the prospect of securing a full recovery.⁸ Moreover, the successful plaintiff will have to collect separately from each individual defendant, thereby increasing the transaction costs of securing recovery.⁹

This Article is divided into three sections. The first section discusses apportionment, Couch v. Red Roof Inns, Inc., and related cases. The focus of this discussion is on to whom fault may or may not be apportioned. The second section discusses joint and several liability, McReynolds v. Krebs, and related cases. The focus of this discussion is on from whom can a successful plaintiff collect a damage award. The third section of this Article briefly discusses what lies ahead in light of these recent developments.

[Page 17]

II. APPORTIONMENT: To Whom May Fault be Apportioned?

A. Intentional Tortfeasors: Couch v. Red Roof Inns, Inc.

In order to understand the significance of Couch v. Red Roof Inns, Inc.,¹⁰ a little background is needed. Prior to Couch, Georgia courts held that comparative negligence is not a defense to an intentional tort.¹¹ The primary justification for this rule is the notion that intent is "a separate and distinct" type of conduct from negligence.¹² The vast majority of states take the same position: comparative fault is not a defense to an intentional tort.¹³ Thus, the long-standing rule in Georgia and elsewhere has been that intent and negligence are not comparable.

[Page 18]

In 2005, the Georgia legislature enacted a comprehensive tort reform package. Amendments to O.C.G.A. § 51-12-33¹⁴ were a part of that package. Subsection (b) § of 51-12-33 provides that:

the trier of fact. . . shall . .. 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

[Page 19]

Code section shall be the liability of each person against whom they are awarded, [and] shall not be a joint liability . . . .¹⁵

The term "fault" is not defined in the statute. The issue presented to the Georgia Supreme Court in Couch was whether the undefined term fault contained in O.C.G.A. § 51-12-33 altered the common law definition to now permit apportionment among negligent and unidentified intentional tortfeasors.¹⁶

The complaint in Couch alleged that the plaintiff was a registered guest of a Red Roof Inn hotel in Atlanta which was owned by one defendant and managed by another defendant. The complaint further alleged that while on those premises, the plaintiff was abducted, beaten, and robbed by several individuals. None of the assailants were ever identified, arrested, or prosecuted. The plaintiff filed a premises liability suit against the defendants in the United States District Court for the Northern District of Georgia, alleging that they failed to exercise reasonable care to protect the plaintiff, an invitee, from the foreseeable risk of a criminal assault. The defendants filed a pleading in which they gave notice of their intent to have fault apportioned to the unknown criminal assailants.¹⁷ The plaintiff responded by challenging the applicability and constitutionality of the apportionment statute. The federal district court did not rule on this motion.¹⁸ Instead, it certified the following two questions to the Georgia Supreme Court:

(1) In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack, is the jury allowed to consider the "fault" of the criminal assailant and apportion its award of damages among the property owner and the criminal assailant, pursuant to [O.C.G.A.] § 51-12-33?

(2) In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack, would jury instructions or a special verdict form requiring the jury to apportion its award of damages among the property owner and the criminal assailant, pursuant to [O.C.G.A.] § 51-

[Page 20]

12-33, result in a violation of the plaintiff[']s constitutional rights to a jury trial, due process or equal protection?¹⁹

Thus, the court was called upon to resolve both a question of statutory construction and a question of constitutional law. The court held that "(1) the jury is allowed to apportion damages among the property owner and the criminal assailant and (2) instructions or a special verdict form requiring such apportionment would not violate the plaintiff's constitutional rights."²⁰

The key to the majority's ruling on the statutory construction issue was that it viewed intentional wrongdoing as falling within the "ordinary meaning" of the statutory term "fault."²¹ As stated by the court, "the ordinary meaning of 'fault' . . . includes intentional conduct."²² The court further observed that O.C.G.A. § 51-12-33(d)(l) refers to "[n]egligence or fault," indicating that the term "fault" must necessarily encompass more than simple negligence.²³ The court also noted that had the legislature intended to exclude "intent" from the ambit of fault, it could have done so explicitly.²⁴

By characterizing the ordinary meaning of fault to include intent, the court was able to dismiss other concerns. As interpreted by the majority, the ordinary meaning rendered it unnecessary to consider that other states authorizing apportionment among negligent and intentional tortfeasors do so under statutes that expressly define fault to include intent.²⁵ The ordinary meaning construction also rendered inapplicable the canon regarding strict construction of statutes in derogation of common law.²⁶

The majority dismissed the constitutional challenges in a single paragraph. The plaintiff's constitutional right to a jury trial is not violated because the jury still performs its "normal function-it assesses liability, calculates damages, and names the tortfeasors who are responsible."²⁷ Plaintiffs are not denied due process because the statute is not unconstitutionally vague and it does not destroy a vested property right.²⁸ Finally, the apportionment statute does not violate

[Page 21]

the principle of equal protection because it is supported by a rational basis.²⁹

The majority's analysis of the statutory construction issue is facile at best. The ultimate test of what a statute means is not how the Webster's New Collegiate Dictionary defines the word "fault," but it is the legislative intent. Justice Benham properly noted that "there is more to statutory construction when Georgia's common law is at issue than looking through the dictionary of one's choice . . . ."³⁰ Given the historical refusal of Georgia and other common law courts to compare intent with negligence, the absence of a statutory definition of fault,³¹ and the fact that the Georgia comparative negligence statute³² was not amended when the apportionment provisions were enacted, it is not so clear that the legislature intended to permit apportionment among negligent and intentional wrongdoers.

One consequence of Couch is to create a de facto comparative fault defense to an intentional tort when the plaintiff is partially at fault-an outcome never before permitted under Georgia law. A simple example will illustrate this point. Assume a plaintiff is attacked in the parking lot of a bar and brings suit against the owner of the premises for negligent security. Assume further that the premises owner alleges that the plaintiff was negligent³³ and seeks to apportion fault to the criminal assailant. Finally, assume that a jury apportions five percent of the fault to the plaintiff, twenty percent to the premises owner, and

[Page 22]

seventy-five percent to the criminal assailant.³⁴ Applying O.C.G.A. § 51-12-33(b) as construed, in Couch to these facts, the criminal assailant's liability to the plaintiff would be reduced by five percent notwithstanding the fact that the comparative negligence statute on its face does not appear to apply in the context of intentional torts.³⁵

The majority's treatment of the constitutional issues is even more troubling, not so much for its conclusions as for its lack of depth or explanation.³⁶ The court in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt³⁷ held that the legislative cap on non-economic damages in medical malpractice cases violated the jury trial...