Apportionment of Fault Presents Advocacy Challenge to Lawyers for Innocent Victims

In a case of negligent security against a commercial property owner, Couch v. Red Roof Inns Inc., S12Q0625, the Georgia Supreme Court last week 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  analysis of the statutory construction of O.C.G.A. § 51-12-33, the opinion dispensed with the policy arguments argued by the plaintiffs.

None of that came as a surprise to me. The apportionment of fault rule as opposed to a rule of joint and several liability does have a certain appeal to people who have not had to deal with the realities of representing innocent injured people.

The apportionment statute presents an advocacy challenge for lawyers representing innocent people injured through the negligence or wrongful acts of others. For example, if a jury apportions 95% of a $1,000,000 verdicts to a non-party from which no damages can be recovered, and 5% of the verdict to a solvent defendant, then the innocent plaintiff only collects $50,000 of the $1,000,000 judgment. And if the solvent defendant made an offer of judgment under O.C.G.A. § 9-11-68, then the victim may be tagged with that defendant’s defense expenses and come out with nothing at all.

How can this be addressed? Several ideas have been put forward, none of which are foolproof. However, here are a few.

–  A timeline may be used to show a long pattern of negligence in management of a defendant company over a period of weeks or months, compared with the few seconds or minutes in which the the insolvent defendant or non-party was involved. For example, if a trucking company had a long pattern of failure to manage truck driver safety, hours of service, vehicle maintenance, etc., and both their truck driver and another driver were negligent at the moment of the crash, consider graphically illustrating the disparity in the amount of time each was involved in conduct leading to the crash. If a premises owner was repeatedly on notice of the risk of crime on the premises but allowed conditions to become a virtual invitation to criminal assault, then the timeline might help overcome the inclination to apportion everything to the criminal who exploited a target of opportunity.

– A scale may be used to illustrate the relative weight of the number of choices made by each party or non-party to whom fault must be apportioned. If a pebble or a coin on a balance scale represents each choice made that leads up to an injurious event, those made over months or years of safety mismanagement will weigh far more than one momentary bad choice at the time of the incident.

– Think in terms of epidemiology and prevention. The Centers for Disease Control has an entire department devoted to studying the epidemiology of accidents and injury prevention. Analyze how a prudent person in the position of the defendant could easily foresee a risk of injury and the simple, inexpensive actions by the party with the greatest opportunity to manage the situation could have prevented it. Then figure out graphic ways to present that.

None of these approaches are perfect, but they may suggest ways to overcome the obstacles created by the apportionment statute.

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Ken Shigley is immediate past president of the State Bar of Georgia and a double board certified Civil Trial Advocate and Civil Pretrial Advocate of the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12). In addition, Mr. Shigley has an “AV Preeminent” rating in Martindale-Hubbell Law Directory and is listed as a “Super Lawyer” in Atlanta Magazine,  “Legal Elite” in Georgia Trend magazine, and in “Who’s Who in Law” in Atlanta Business Chronicle.