Document Sample
          By David C. Marshall, Christian J. Lang and Marcus W. Wisehart

                                                                      Apportioning fault to a non-party
                                                              is one of the most effective weapons in a
                                                              defense attorney’s arsenal. Its full im-
                                                              pact was exhibited in Herrera (Hagan) v.
                                                              Miles Properties, Inc, which involved the
                                                              murder of a 26 year old man at an
                                                              apartment complex. Two people were
                                                              convicted of charges related to their in-
                                                              volvement in the murder. Over plain-
                                                              tiff’s objection, the Court permitted the
                                                              two non-party criminals to be listed on
   David C. Marshall             Christian J. Lang            the verdict form. The jury allocated 95%
                                                              of fault to the non-party criminals and
                                                              5% to the defendant property manage-
                                                              ment company.

                                                                      Out of fear of similar outcomes,
                                                              the plaintiff’s bar has been working tire-
                                                              lessly in an attempt to limit defense
                                                              counsel’s ability to point the finger at
                                                              non-parties that are at fault. Specifical-
                                                              ly, they are attempting to limit the appli-
                                                              cation of O.C.G.A. § 51-12-33 to scena-
                 Marcus W. Wisehart                           rios where a plaintiff is partly at fault, as
                                                              opposed to scenarios where the plaintiff
 David C. Marshall and Christian J. Lang are partners,
 and Marcus W. Wisehart is an associate, with the law
                                                              is “innocent." Plaintiff’s parsed inter-
 firm of Hawkins Parnell Thackston & Young LLP.               pretation is contrary to the plain lan-
 Their nationwide litigation practice focuses on the de-      guage and intent of the statute. Had it
 fense of claims involving products liability, toxic torts,
 long term care and assisted living facilities, breach of
                                                              been accepted by the trial court, it most
 warranty and transportation. David serves as national        certainly would have significantly al-
 coordinating counsel and trial counsel to assist clients     tered the outcome of Herrera (Hagan) v.
 in managing and defending litigation nationwide, and
 he has tried cases in several states.
                                                              Miles Properties, Inc.

 In 2010, David and Christian tried the case of Herrera              The recent Georgia Court of Ap-
 v. Miles Properties, Inc. in the State Court of DeKalb
 County – one of the first cases in Georgia where a jury
                                                              peals decision in Cavalier Convenience,
 apportioned a large amount of fault to non-party crimi-      Inc. v. Sarvis,1 correctly rejected the
 nals in a negligent security action.                         plaintiff’s bar interpretation. This ruling
                                                              has defined the parameters of Georgia’s
                                                              apportionment statute in future cases.

 Georgia Defense Lawyers Association                                                      2011 Law Journal | 33
       This article will examine the his-      held that Code Section 2992 which
tory of joint and several liability, the       stated that, “If the imprisonment be the
birth of apportionment of liability to         act of several persons, the party may sue
non-parties, how it was used in a negli-       them jointly or separately; and if jointly,
gent security case, the advantages and         all shall be responsible for the entire re-
challenges of using apportionment, and         covery” should apply.5
how the plaintiff’s bar is attempting to
chip away at the defense’s ability to use              Under Georgia law there also ex-
it.                                            isted a right of contribution between
                                               joint tortfeasors set forth by Georgia
I.       History:                              Code § 3008. This law, enacted in 1863,
                                               provided that, “If the judgment is en-
         A.        Joint and Several           tered jointly against several trespassers,
                   Liability:                  and is paid off by one, the others shall be
                                               liable to him for contribution.”
        Georgia law on joint and several
liability traces its roots back to the mid             The Georgia Supreme Court
1800s. In 1851 the Georgia Supreme             maintained the distinction between
Court held that the rule is that where         damage to property and personal torts
there is “an action for a joint tort against   in 1903, when it held that where a plain-
several defendants, that the Jury are          tiff sought theories of recovery for tres-
(sic.) to assess damages against all the       pass and malicious abuse of legal
defendants jointly, according to the           process, it was error for the court to
amount which in their judgment, the            charge the jury that they may find a ver-
most culpable of the defendants ought to       dict for the plaintiff for different
pay.”2                                         amounts against the different defen-
                                               dants without charging also that such a
       In 1884 the Georgia Supreme             verdict could only be found in the event
Court again addressed the issue of joint       they find for the plaintiff solely on the
and several liability in the context of the    count in trespass.6
first Georgia Code. In a case in which
Plaintiff alleged false imprisonment at                In 1975 the Georgia Supreme
the hands of two defendants, the Geor-         Court went further in defining joint lia-
gia Supreme Court rejected the applica-        bility in holding that there need not be a
tion of Georgia Code § 3075 which pro-         concert in action between joint tortfea-
vided that “when several trespassers are       sors in finding that defendants are joint
sued jointly, the plaintiff may recover        tortfeasors, and that each defendant
against all, the greatest injury done by       should be liable for the full amount of a
either. But the jury may, in their verdict,    plaintiff’s damages.7
specify the particular damage to be re-
covered of each.”3                                    B.     Negligence of the
       The Georgia Supreme Court held
that section 3075 referred to trespasses              The Georgia Supreme Court set
committed to property and not to the           forth an excellent summary of the state
commission of a personal tort such as          of contributory and comparative negli-
false imprisonment. 4 The court instead        gence as it existed prior to the enact-

Georgia Defense Lawyers Association                                       2011 Law Journal | 34
ment of OCGA § 51-12-33 in Union          would be jointly and severally liable
Camp Corp. v. Helmy,8. The Court held     where a plaintiff’s negligence was great-
that:                                     er than one defendant but not the aggre-
                                          gate negligence of all defendants. The
         Under Georgia law, there         Court answered the question in the af-
         is found what can be de-         firmative and held that “unless the
         scribed as a hybrid form of      plaintiff's negligence is equal to or
         the doctrines of both con-       greater than the aggregate negligence of
         tributory negligence and         all defendants, plaintiff may recover.
         comparative     negligence.      Therefore, a plaintiff whose comparative
                                          fault exceeds that of one defendant but
         As a matter of contributory      does not exceed that of another defen-
         negligence, it is the rule in    dant is entitled to a judgment against
         this state that, if the plain-   both defendants …”10
         tiff, in the exercise of ordi-
         nary care, could have                    By way of example, under the law
         avoided the accident, he is      prior to the enactment of O.C.G.A. § 51-
         denied recovery. O.C.G.A.        12-33, if defendant A was 50% negligent,
         § 51-11-7; see, e.g.; Clark v.   defendant B was 5% negligent and plain-
         Carla Gay Dress Co., 178         tiff was 45% negligent, plaintiff could
         Ga. App. 157, 160 (342           still recover 55% of an award jointly
         S.E.2d 468) (1986). How-         against both defendants. Defendant B,
         ever, in all other cases,        despite being much less negligent than
         Georgia law's comparative-       Plaintiff, would be jointly liable and
         negligence rule is that if       would have to resort to a contribution
         the plaintiff's negligence       claim against defendant A.
         was less than the defen-
         dant's, the plaintiff is not           C.     Tort Reform Act
         denied recovery although                      of 1987:
         his damages shall be dimi-
         nished by the jury in pro-              Code Section 3075 cited above
         portion to the degree of         eventually became O.C.G.A. § 51-12-31.
         fault attributable to him.       The 1987 version of O.C.G.A. § 51-12-31
         See, e.g., Ga. Power Co. v.      read as follows:
         Maxwell, 52 Ga. App. 430
         (2) (183 SE 654) (1936).               Except as provided in Code
         Thus, a tort plaintiff can-            Section 51-12-33, where an
         not recover if his negli-              action is brought jointly
         gence is greater than or               against several trespassers,
         equal to the negligence of             the plaintiff may recover
         the defendant. O.C.G.A. §              damages for the greatest
         51-11-7, supra. Walton v.              injury done by any of the
         United States, 484 F.Supp.             defendants against all of
         568 (S.D. Ga. 1980).9                  them. In its verdict, the
                                                jury may specify the par-
     The specific question posed in             ticular damages to be re-
Union Camp was whether defendants               covered of each defendant.

Georgia Defense Lawyers Association                                 2011 Law Journal | 35
         Judgment in such case                    (c)   Without the necessity
         must be entered severally.                     of being charged by
                                                        an action or judg-
As noted above, this statute only applied               ment, the right of in-
to property damage claims.                              demnity, express or
                                                        implied, from another
      O.C.G.A. § 51-12-32 was born of                   or others shall con-
Code Section 3008 and continued to                      tinue unabated and
provide for the right of contribution be-               shall not be lost or
tween joint tortfeasors as follows:                     prejudiced by com-
                                                        promise and settle-
         (a) Except as provided in                      ment of a claim or
             Code Section 51-12-                        claims for injury to
             33, where a tortious                       person or property or
             act does not involve                       for wrongful death
             moral turpitude, con-                      and release there-
             tribution among sev-                       from.
             eral trespassers may
             be enforced just as if         Finally O.C.G.A. § 51-12-33 which
             an action had been             was first enacted in 1987 read as
             brought against them           follows:
             jointly. Without the
             necessity of being                   (a) Where an action is
             charged by action or                     brought against more
             judgment, the right of                   than one person for
             a joint trespasser to                    injury to person or
             contribution      from                   property and the
             another or others                        plaintiff is himself to
             shall continue un-                       some degree respon-
             abated and shall not                     sible for the injury or
             be lost or prejudiced                    damages claimed, the
             by compromise and                        trier of fact, in its de-
             settlement of a claim                    termination of the to-
             or claims for injury to                  tal amount of damag-
             person or property or                    es to be awarded, if
             for wrongful death                       any, may apportion
             and release therefrom.                   its award of damages
                                                      among the persons
         (b) If judgment is en-                       who are liable and
             tered jointly against                    whose degree of fault
             several     trespassers                  is greater than that of
             and is paid off by one                   the injured party ac-
             of them, the others                      cording to the degree
             shall be liable to him                   of fault of each per-
             for contribution.                        son. Damages, if ap-
                                                      portioned by the trier
                                                      of fact as provided in

Georgia Defense Lawyers Association                                   2011 Law Journal | 36
                this Code section,                    Except as provided in Code
                shall be the liability of             Section 51-12-33, where an
                each person against                   action is brought jointly
                whom        they     are              against several persons,
                awarded, shall not be                 the plaintiff may recover
                a joint liability among               damages for an injury
                the persons liable,                   caused by any of the de-
                and shall not be sub-                 fendants against only the
                ject to any right of                  defendant or defendants
                contribution.                         liable for the injury. In its
                                                      verdict, the jury may speci-
This statute provided a better remedy                 fy the particular damages
for a party in Defendant B’s position in              to be recovered of each de-
the earlier illustration, as he is only lia-          fendant. Judgment in such
ble for 5% of Plaintiff’s award.                      a case must be entered
        In interpreting this statute the
Georgia Court of Appeals specifically          The primary change is that this statute
noted that O.C.G.A. § 51-12-33(a) only         now states that a plaintiff may recover
applied to apportion fault to parties to       damages for an injury “only against the
an action, and could not be used to ap-        defendant or defendants liable for the
portion fault to parties who had been          injury.” Further this statute replaces the
dismissed from an action11. In other           word “trespassers” which connotes
words, prior to 2005, O.G.C.A. § 51-12-        damage to property with “persons."
33 did not allow for apportionment of
fault to a non-party. Further, the statute            B.     O.C.G.A. § 51-12-32:
is clear that apportionment was only
available in cases where plaintiff was to              This section was left unchanged
some degree responsible for her injury.        and allows for a scenario where one
Joint liability continued to exist for an      “joint trespasser” may assert a contribu-
innocent plaintiff filing suit against mul-    tion claim against another.
tiple defendants.
                                                      C.     O.C.G.A. § 51-12-33:
II.      Senate Bill 3 –
         The Birth of                                 The most noteworthy change was
                                               to O.C.G.A. § 51-12-33 which reads:
         Apportionment of
         Fault to a Non-Party:                        (a) Where an action is
                                                      brought against one or
         A.        O.C.G.A. § 51-12-31:               more persons for injury to
                                                      person or property and the
       The latest version of tort reform              plaintiff is to some degree
was passed in 2005 through Senate Bill                responsible for the injury
3. It made several changes to both                    or damages claimed, the
O.C.G.A. §§ 51-12-31 and 51-12-33.                    trier of fact, in its determi-
O.C.G.A. § 51-12-31 was amended to                    nation of the total amount
read as follows:                                      of damages to be awarded,

Georgia Defense Lawyers Association                                        2011 Law Journal | 37
         if any, shall determine the      (d)(1) Negligence or fault of
         percentage of fault of the       a nonparty shall be consi-
         plaintiff and the judge          dered if the plaintiff entered
         shall reduce the amount of       into a settlement agreement
         damages           otherwise      with the nonparty or if a de-
         awarded to the plaintiff in      fending party gives notice
         proportion to his or her         not later than 120 days prior
         percentage of fault.             to the date of trial that a
                                          nonparty was wholly or par-
         (b) Where an action is           tially at fault.
         brought against more than
         one person for injury to            (2) The notice shall be
         person or property, the tri-     given by filing a pleading
         er of fact, in its determina-    in the action designating
         tion of the total amount of      the nonparty and setting
         damages to be awarded, if        forth the nonparty's name
         any, shall after a reduction     and last known address, or
         of damages pursuant to           the best identification of
         subsection (a) of this Code      the nonparty which is
         section, if any, apportion       possible under the cir-
         its award of damages             cumstances, together with
         among the persons who            a brief statement of the ba-
         are liable according to the      sis for believing the non-
         percentage of fault of each      party to be at fault.
         person. Damages appor-
         tioned by the trier of fact      (e) Nothing in this Code
         as provided in this Code         section shall eliminate or
         section shall be the liability   diminish any defenses or
         of each person against           immunities which current-
         whom they are awarded,           ly exist, except as expressly
         shall not be a joint liability   stated in this Code section.
         among the persons liable,
         and shall not be subject to      (f)(1) Assessments of per-
         any right of contribution.       centages of fault of non-
                                          parties shall be used only
         (c) In assessing percentag-      in the determination of the
         es of fault, the trier of fact   percentage of fault of
         shall consider the fault of      named parties.
         all persons or entities who
         contributed to the alleged          (2) Where fault is as-
         injury or damages, regard-       sessed against nonparties
         less of whether the person       pursuant to this Code sec-
         or entity was, or could          tion, findings of fault shall
         have been, named as a par-       not subject any nonparty
         ty to the suit.                  to liability in any action or
                                          be introduced as evidence
                                          of liability in any action.

Georgia Defense Lawyers Association                            2011 Law Journal | 38
         (g) Notwithstanding the               plaintiff to be any degree at fault. In-
         provisions of this Code               stead, the plain language of the statute
         section or any other provi-           instructs the trier of fact to first reduce
         sions of law which might              the total amount of damages by plain-
         be construed to the con-              tiff’s degree of fault if any and then to
         trary, the plaintiff shall not        apportion damages amongst the defen-
         be entitled to receive any            dants according to the percentage of
         damages if the plaintiff is           fault of each defendant.
         50 percent or more re-
         sponsible for the injury or                  Sections (c) through (f) are en-
         damages claimed.                      tirely new sections and were added to
                                               allow for the apportionment of fault to
The latest version of O.C.G.A. § 51-12-33      non-parties. Section (c) states that the
revolutionizes how liability of multiple       trier of fact shall consider the fault of
“at fault” parties is viewed in Georgia. It    all persons or entities who contributed
also provides the defense a brand new          to the alleged injury or damages, re-
weapon to use in defending cases – the         gardless of whether the person or
ability to apportion fault to a non-party      entity was, or could have been,
that contributed to the injury alleged.        named as a party to the suit. Sec-
                                               tion (d) states that “Negligence or fault
       The legislative intent in enacting      of a nonparty shall be considered”
O.C.G.A. § 51-12-33 is to hold persons         where Plaintiff has entered into a set-
accountable for their own actions and          tlement agreement with a nonparty or
not for the actions of others, which ar-       where the Defendant provides notice
guably is fundamentally fair to all per-       not later than 120 days prior to the
sons. In that context, the legislature set     date of trial that a nonparty was
forth three scenarios:                         wholly or partially at fault. (empha-
                                               sis added).
        Section (a) establishes guidelines
pertaining to comparative negligence.                 Section (e) was added to reserve
In so doing, this Section provides for the     defenses or immunities to defendants
scenario where a plaintiff is to some de-      unless expressly stated in this section.
gree at fault for the alleged injury to per-   Section (f) provides that “assessments of
son or property. It is equally applicable      percentages of fault of nonparties shall
to actions where there are one or more         be used only in the determination of the
defendants. This Section simply reduces        percentage of fault of named parties.”
a plaintiff’s recovery by his proportion of    This section cannot be used to subject a
fault; however, plaintiff is not entitled to   non-party to liability and cannot be used
any recovery if he is 50% or more at           as evidence of liability in another suit.
fault.                                         Finally section (g) re-asserts that a
                                               Plaintiff cannot recover where he is
        Section (b) establishes appor-         found more than 50% liable.
tionment where multiple persons are at
fault for an alleged injury to person or
property. This Section apportions fault
to each responsible person, both plain-
tiff and defendants, but does not require

Georgia Defense Lawyers Association                                       2011 Law Journal | 39
III. Using Apportionment of                    omissions of the apartment complex or
     Fault to a Non-Party:                     the property management company. The
                                               apartment complex, property manage-
                                               ment company or security company
       Apportionment of fault to a non-
                                               would be the only names on the verdict
party can be used by the defense in
                                               form. Now, the apportionment statute
many different factual scenarios. The
                                               allows a jury to properly consider the
most basic is the motor vehicle accident
                                               fault of the non-party criminal wrong-
where the phantom vehicle causes an
                                               doer. Despite the protest by the plain-
accident, before disappearing into the
                                               tiff’s bar, the plain language and inten-
night. Fault can then be apportioned
                                               tion of the apportionment statute is to
against “John Doe” offering little more
                                               hold persons accountable for their indi-
than a description of the mystery ve-
                                               vidual actions and not for the actions of
hicle. This statute can also be used to
                                               others. After all, this is the very essence
apportion fault to the driver of a vehicle
                                               of individual responsibility.
in which plaintiff is a passenger, where
he or she is potentially liable but is not a
party to the suit.                                    The apportionment statute was
                                               used effectively in Herrera (Hagan) v.
        Further O.C.G.A. § 51-12-33(d)         Miles Properties, Inc. In that case, Wes-
provides that fault may be apportioned         ley Hagan was shot and killed by two in-
against a non-party “regardless of             dividuals who conspired to rob him ear-
whether the person or entity was, or           lier that day. At approximately 11:00
could have been, named as a party to the       p.m., while Mr. Hagan was walking on
suit.” This opens the door for a party to      the grounds of the apartment complex,
apportion fault against parties otherwise      towards his mother’s apartment, he was
immune or protected from suit such as a        shot several times and died approx-
plaintiff’s employer, governmental enti-       imately one month later. The jury was
ties, or insolvent parties.                    informed of the names of the two indi-
                                               viduals who were involved in the shoot-
        As referenced in the introduction      ing, that one of those individuals pled
of this article, one of the more effective     guilty to conspiracy to commit robbery
uses for the apportionment statute is to       and that the other was convicted of felo-
apportion fault to a non-party criminal        ny murder. One of the non-party crimi-
wrongdoer in a premises liability or neg-      nals even testified at trial. The jury con-
ligent security case. These types of cases     sidered the facts of the shooting and ap-
typically involve a person that is in some     portioned 95% of fault amongst the two
way harmed by a criminal who then sues         people involved in the shooting and only
an apartment complex or property man-          5% against the management company,
agement company because of their sol-          resulting in a $9,000 verdict against the
vency rather than the person directly re-      management company.
sponsible for the harm – the likely
judgment-proof (or unknown) criminal                  It is likely that the use of the non-
actor(s).                                      party apportionment statute is more ef-
                                               fective in a case like Herrera where the
      Traditionally, the criminal party        criminal wrongdoer’s identity is known
frequently was not named and the case          and the jury can identify a specific per-
would be focused entirely on the acts or       son to blame. The application of the ap-

Georgia Defense Lawyers Association                                       2011 Law Journal | 40
portionment statute becomes a bit more                 Prior to trial Sarvis filed a motion
abstract where the criminal wrongdoer           seeking to preclude the issue of appor-
escapes capture or is otherwise un-             tionment from being argued or submit-
known and appears on the jury verdict           ted to the jury. Essentially, Sarvis was
only as “John Doe.” Without a specific          seeking a ruling that the defendants
person to identify, it is easier for a plain-   should be jointly and severally liable for
tiff to re-direct the focus of the case         any verdict awarded to Sarvis. Defen-
away from the criminal wrongdoer and            dants countered by arguing that
back toward the apartment complex,              O.C.G.A. § 51-12-33 mandated appor-
property management company or secu-            tionment where multiple defendants are
rity company.                                   found liable13. Sarvis responded that
                                                O.C.G.A. § 51-12-33 mandated appor-
    IV.            The Future of the            tionment among defendants only in
                   Apportionment                cases where the plaintiff was alleged to
                   Statute:                     have been responsible for some degree
                                                for the injury and damages claimed14.
       Undoubtedly, the plaintiff’s bar         There was no such contention that Sar-
understands the value of the addition of        vis was responsible for his injuries.
the non-party apportionment statute to
the defense’s arsenal and has made a                   The State Court of Evans County
concerted effort to limit its use. Al-          agreed with Sarvis’ position and entered
though contrary to the clear and unam-          an Order prohibiting any mention to the
biguous language of the apportionment           jury of apportionment of damages.15 Es-
statute, the primary argument set forth         sentially, liability against Bath, Cavalier,
by the plaintiff’s bar is that joint and        and Ken’s would have been joint and
several liability is not dead and that ap-      several. Cavalier and Ken’s applied for
portionment of fault is improper in the         and were granted interlocutory appeal of
case of an innocent (non-negligent)             this order.
plaintiff. In effect, the plaintiff’s bar is
attempting to turn back the hands of                    The Court of Appeals reviewed
time to the law as it existed prior to          the history of apportionment and tort
2005.                                           reform in Georgia and noted that prior
                                                to 2005, O.C.G.A. § 51-12-33 only pro-
         A.        Cavalier Convenience         vided for apportionment where plaintiff
                   v. Sarvis                    was partially at fault. O.C.G.A. § 51-12-
       The Court of Appeals took up the         33(b), enacted post tort reform, provides
issue of the apportionment statute in           that the trier of fact in its determination
Cavalier Convenience, Inc. v. Sarvis.12         of the total amount of damages “shall
Sarvis arose out of an auto accident be-        after a reduction of damages pursuant
tween Sarvis and Bath, who Sarvis al-           to subsection(a), if any, apportion its
leged was intoxicated at the time of the        award of damages among the persons
accident. Sarvis also named Cavalier            who are liable according to the percen-
Convenience, Inc. and Ken’s Supermar-           tage of fault of each person.”16 (empha-
kets as Defendants alleging that they un-       sis added).
lawfully sold intoxicating beverages to                 In granting Sarvis’ motion, the
Bath.                                           trial court held that:

Georgia Defense Lawyers Association                                         2011 Law Journal | 41
         The 'after' language con-             The Court of Appeals noted that had the
         templates that compara-               legislature wanted to limit apportion-
         tive negligence must at a             ment to situations where there was a re-
         minimum be an issue con-              duction of damages pursuant to subsec-
         sidered by the jury before            tion (a) (where Plaintiff was partly at
         proceeding to apportion-              fault) it could have specifically done
         ment under subsection (b).            so.20
         In a case such as this one,
         where there is no allega-                    Additionally, Sarvis argued that
         tion or factual threshold as          O.C.G.A. § 51-12-31 authorized the trial
         to plaintiff’s fault, the jury        court to find that apportionment is not
         never even considers sub-             mandated where the plaintiff bears no
         section (a) and the thre-             fault. The Court of Appeals rejected this
         shold for the apportion-              argument noting that the language of
         ment stage of subsection              O.C.G.A. § 51-12-31 clearly limits its use
         (b) is never reached.17               to situations where O.C.G.A. § 51-12-33
                                               does not apply.21
The Court of Appeals disagreed focusing
on the “if any” clause following the “af-             The Court of Appeals also re-
ter”. The Court held that with the inser-      jected Sarvis’ argument that such an in-
tion of this language, the legislature         terpretation of O.C.G.A. § 51-12-33
clearly did not intend to make plaintiff’s     renders OCGA §§ 51-12-31 and 51-12-32
liability a threshold issue, or to limit ap-   meaningless as there are no cases that
portionment to cases where the plaintiff       would fall under those statutes22. Sarvis
is partly at fault18. The Court concluded      argued that these three statutes must be
that both Sarvis and the trial court’s in-     read “in pari materia” to ascertain legis-
terpretation overlooked the use of the         lative intent23. The Court of Appeals
phrase “if any”.                               disagreed and held that reading statutes
                                               in pari materia may not be resorted to
      The Court of Appeals ultimate            where the language of the statue under
holding was that                               consideration is clear, and that this was
                                               one of those cases where the language
         where damages are to be               was clear24.
         awarded in an action
         brought against more than                    The important thing about this
         one person for injury to              portion of the opinion is that O.C.G.A. §
         person or property –                  51-12-33 does arguably render O.C.G.A. §
         whether or not such dam-              51-12-31 obsolete, as it is hard to envision
         ages must be reduced pur-             a factual situation where this statute
         suant to O.C.G.A. § 51-12-            would apply to possibly allow for joint and
         33 (a) – the trier of fact            several liability.  However, the Court’s
         'shall' apportion its award           holding was simply that this possibility
         of damages among the                  need not even be addressed as the lan-
         persons who are liable ac-            guage of O.C.G.A. § 51-12-33 was clear.
         cording to the percentage                    Finally the Court of Appeals re-
         of fault of each person.19            jected Sarvis’ public policy arguments
                                               noting that its only job was to interpret

Georgia Defense Lawyers Association                                        2011 Law Journal | 42
the statute as written and that it had no           Second, the DeKalb Rape Crisis
authority to adopt a construction con-        Center argues even more directly that:
trary to that of the legislature.25 As
noted below, several groups chimed in                        In a rape victim’s
with their opinion as to why the Court of            civil action against lan-
Appeals interpretation of the statute is             dlord, liability of the prop-
bad policy.                                          erty owner is based on its
                                                     negligent conduct which
       The Georgia Supreme Court                     exposed the victim to the
granted plaintiff’s Petition for Writ of             intentional tort, and but
Certiorari26, and this case was to be ar-            for that conduct, the victim
gued before the Georgia Supreme Court                would not have been
on April 20, 2011. However, the parties              harmed. It is neither un-
consented to a withdrawal of this peti-              fair nor irrational for an
tion on February 24, 2011, likely as the             innocent victim to collect
result of a settlement.                              full damages from a negli-
                                                     gent defendant who knew
         B.        Sarvis and Apportion-             or should have known that
                   ment of Fault to Non-             an injury would be inten-
                   Parties                           tionally inflicted and failed
                                                     in its duty to take reasona-
       The situation in Sarvis involved              ble steps to prevent it.28
the apportionment of fault to a fellow
defendant rather than a non-party;                   Also, one should expect plaintiffs
however, the decision is relevant in that     to argue that joint and several liability
the plaintiff’s bar has raised identical      has existed in Georgia for over 150 years
arguments in opposition to defendants’        and that with the passage of the 2005
attempts to Apportion Fault to Non-           version of O.C.G.A. § 51-12-33, the legis-
Parties. In fact there are two amicus cu-     lature did not intend to change 150 years
riae briefs referenced in the Sarvis opi-     of law. Plaintiffs will reference the in-
nion that raise arguments that you can        terplay between O.C.G.A. §§ 51-12-31,
expect the next time you attempt to ap-       51-12-32 and 51-12-33 in support of this
portion fault as was done in Herrera.         argument.

         First, the GTLA argues that if ap-           With the withdrawal of the peti-
portionment were allowed in a case like       tion for certiorari, Sarvis provides a
Sarvis, a jury would likely apportion fault   green light for defendants to properly
almost completely on the driver absolving     point the finger to the responsible per-
the other defendants of any fault. This       sons, regardless of whether the plaintiff
would relieve the other defendants from       is at fault or if those at fault are parties
liability and “effectively remove any inde-   to the action. However, this is an issue
pendent duty on the part of the initial       that the plaintiff’s bar will not cease con-
tortfeasor”.27                                testing, meaning the Sarvis decision is
                                              likely not the end of this story.

Georgia Defense Lawyers Association                                       2011 Law Journal | 43
     305 Ga. App. 141 (2010).

2    Simpson v. Perry, 9 Ga. 508 (1851).

3    McCalla v. Shaw, 72 Ga. 458 (1884).

4    Id. at 460.

5    Id. at 459.

6    Hay v. Collins, 118 Ga. App. 243 (1903).

7    Mitchell v. Gilson, 233 Ga. 453 (1975).

8258 Ga. 263 (1988) Despite being passed in 1987 O.C.G.A. § 51-12-33 did not apply to
this section as it applied to actions arising after July 1, 1987 – a fact noted by the Court.

9    Id. at 267.

10   Id.

11   Schriever v. Maddox, 259 Ga. App. 558 (2003).
      305 Ga. App. 141 (2010).

13   Id. at 142.

14   Id.

15   Id.

16   Id. at 143.

17   Id. at 144.

18   Id.

19   Id. at 145.

20    Id.

21   Id.

22 In fact, the Court of Appeals recently rejected the argument that the right of contribu-
tion no longer exists in Georgia in Murray v. Patel, 304 Ga. App. 253 (2010).

Georgia Defense Lawyers Association                                           2011 Law Journal | 44
23   Id. at 146.

24   Id.

25   Id. at 147.

26   2011 Ga. LEXIS 34.

27   Sarvis, at 147.

28   Id.

Georgia Defense Lawyers Association   2011 Law Journal | 45

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