Supreme Court Upholds Apportionment
In an important premises liability ruling, the Georgia Supreme Court upheld Georgia's apportionment statute, O.C.G.A. § 51-12-33. In a 5 -2 decision, with Justice Benham and Presiding Justice Hunstein dissenting, the Georgia Supreme Court found that (1) the jury is allowed to apportion damages among the property owner and the criminal assailant, and (2) instructions or special verdict form requiring such apportionment would not violate the plaintiff's constitutional rights.
In addition to the Supreme Court's thorough analysis of the statutory construction of O.C.G.A. § 51-12-33, the opinion dispensed with the policy arguments promoted by the Plaintiff's Bar. First, the Supreme Court held that allowing apportionment does not nullify a property owner's duty to keep its premises safe, as O.C.G.A. § 51-3-1 was unmodified. Secondly, the court held that property owners remain responsible for their actions and will be required to pay damages in proportion to the level of responsibility. Third, the Supreme Court refused to accept the argument that the negligence of a property owner is derivative of a criminal assailant's conduct. The Supreme Court held the actions of the parties are wholly separate and there is not respondeat superior. Fourth, the Supreme Court denied the argument that apportionment provides a disincentive to property owners as property continue to face potential liability for an amount of damages commensurate with its responsibility for the plaintiff's harm. Fifth, the Supreme Court dispelled the notion that a single, indivisible injury cannot be apportioned. The Supreme Court stated that even though the injury may be singular, the damages flowing from the injury may be apportioned by statute among the responsible tort feasors.