Apportionment of Damages Statute Misconstrued to Detriment of Injured Georgians

As a lawyer in Atlanta representing injured people in Georgia, I was disappointed when a three judge panel of the Georgia Court of Appeals interpreted OCGA 51-12-33 to require apportionment of damages among multiple parties — whether or not they are in the case and whether or not they can be held legally or financially accountable —  who are found at fault, even when there is no fault at all on the part of the person who was injured.

Since enactment of the “tort reform” legislation in 2005, we have argued in many cases that the legislature left in place, in OCGA 51-12-31, the rule of joint and several liability in cases where the injury victim was to no degree responsible for anything related to the injury.  Reading the plain language of the code sections, that clearly makes sense.  Several trial courts have agreed.

However, in Cavalier Convenience, Inc. v. Sarvis, 2010 WL 2698381, decided on July 9, 2010, a three judge panel of the Georgia Court of Appeals reversed a trial court that had ruled in the manner I think makes sense. The Court of Appeals held, in part, that

“The trial court’s contrary construction – that apportionment is mandated only if the plaintiff is to some degree at fault – essentially overlooks the use and placement of the ‘ if any’  clause.”

I respect the Court of Appeals and its individual judges, but respectfully disagree with this holding.

It is an important issue affecting many Georgians, as mandatory apportionment of damages among those at fault even when they are  absent non-parties from whom recovery is legally and/or financially impossible, to the disadvantage of seriously injured Georgians who are totally blameless, can have draconian results.

Perhaps the Supreme Court will grant certiorari and reverse this decision.

Ken Shigley , author of Georgia Law of Torts: Trial Preparation & Practice , is  A Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers . He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, wrongful death, products liability,  spinal cord injury, brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. This post is subject to our ethical disclaimer.